<PAGE>
FILE NO. 333-04349
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2 TO FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
TELESPECTRUM WORLDWIDE INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7389 23-2845501
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
443 SOUTH GULPH ROAD
KING OF PRUSSIA, PA 19406
(610) 962-5140
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
J. BRIAN O'NEILL
Chairman of the Board and Chief Executive Officer
TeleSpectrum Worldwide Inc.
443 South Gulph Road
King of Prussia, PA 19406
(610) 962-5140
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
Copies to:
THOMAS J. SHARBAUGH BARRY M. ABELSON
DAVID A. GERSON BRIAN M. KATZ
Morgan, Lewis & Bockius LLP Pepper, Hamilton & Scheetz
2000 One Logan Square 3000 Two Logan Square
Philadelphia, Pennsylvania 19103- 18th & Arch Streets
6993 Philadelphia, Pennsylvania 19103-
(215) 963-5000 2799
(215) 981-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
CROSS-REFERENCE SHEET
LOCATION IN PROSPECTUS
OF INFORMATION REQUIRED BY PART I
OF FORM S-1
<TABLE>
<CAPTION>
ITEM NO. CAPTION LOCATION IN PROSPECTUS
-------- ------- ----------------------
<C> <S> <C>
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus... Outside Front Cover Page
2. Inside Front and Outside
Back Cover Pages of
Prospectus................. Inside Front and Outside Back Cover
Pages
3. Summary Information, Risk
Factors and Ratio of
Earnings to Fixed Charges.. Prospectus Summary; Risk Factors; The
Company
4. Use of Proceeds............. Prospectus Summary; Use of Proceeds
5. Determination of Offering
Price...................... Underwriting
6. Dilution.................... Dilution
7. Selling Security Holders.... Principal and Selling Stockholders
8. Plan of Distribution........ Outside Front Cover Page; Underwriting
9. Description of Securities to
be Registered.............. Description of Capital Stock
10. Interests of Named Experts
and Counsel................ Not applicable
11. Information with Respect to
the Registrant............. Prospectus Summary; Risk Factors;
Dividend Policy; Capitalization;
Selected Pro Forma Combined Financial
Data; Management's Discussion and
Analysis of Pro Forma Financial
Condition and Pro Forma Results of
Operations; Selected Financial Data of
TeleSpectrum Worldwide and the
Operating Businesses; Management's
Discussion and Analysis of Financial
Condition and Results of Operations;
Business; Management; Certain
Relationships and Related Party
Transactions; Shares Eligible for
Future Sale; Index to Financial
Statements
12. Disclosure of Commission
Position on Indemnification
for Securities Act
Liabilities................ Not applicable
</TABLE>
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
Subject to Completion
Dated July 16, 1996
10,656,000 Shares
[LOGO OF TELESPECTRUM WORLDWIDE INC. APPEARS HERE]
Common Stock
(par value $.01 per share)
Of the 10,656,000 shares of Common Stock offered hereby, 10,286,000 shares are
being sold by TeleSpectrum Worldwide Inc., a Delaware corporation (the
"Company"), and 370,000 shares are being sold by the Selling Stockholders. See
"Principal and Selling Stockholders." Following the Offering, the Company's
officers, directors and five-percent stockholders will own approximately 56.4%
of the outstanding shares of Common Stock. The Company will not receive any of
the proceeds from the sale of Common Stock by the Selling Stockholders. Of the
net proceeds from the sale of Common Stock by the Company, an aggregate of
approximately $108.9 million will benefit certain persons who are to become
officers, directors or five-percent stockholders of the Company upon the
consummation of the Offering.
Prior to the Offering, there has been no public market for the Common Stock of
the Company. It is currently anticipated that the initial public offering price
will be between $14.00 and $16.00 per share. See "Underwriting" for information
relating to the factors to be considered in determining the initial public
offering price.
The Company's Common Stock has been approved for quotation and trading on The
Nasdaq National Market under the symbol "TLSP."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" COMMENCING ON PAGE 9 FOR CERTAIN INFORMATION THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROCEEDS PROCEEDS TO
PRICE TO UNDERWRITING TO SELLING
PUBLIC DISCOUNT(1) COMPANY(2) STOCKHOLDERS
- --------------------------------------------------------
<S> <C> <C> <C> <C>
Per Share $ $ $ $
- --------------------------------------------------------
Total(3) $ $ $ $
- --------------------------------------------------------
</TABLE>
(1) The Company and the Selling Stockholders have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(2) Before deducting expenses of the Offering payable by the Company, estimated
at $2,600,000.
(3) The Company has granted the Underwriters an option to purchase up to an
additional 1,598,400 shares of Common Stock, on the same terms as set forth
above, solely to cover over-allotments, if any. If such option is exercised in
full, the total Price to Public, Underwriting Discount and Proceeds to Company
will be $ , $ and $ , respectively. See "Underwriting."
The shares of Common Stock being offered by this Prospectus are offered by the
Underwriters, subject to prior sale, when, as and if delivered to and accepted
by the Underwriters, and subject to approval of certain legal matters by
Pepper, Hamilton & Scheetz, counsel for the Underwriters. It is expected that
delivery of the shares of Common Stock will be made against payment therefor on
or about , 1996 at the offices of J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York.
J.P. MORGAN & CO.
DILLON, READ & CO. INC.
LEGG MASON WOOD WALKER
INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
, 1996
<PAGE>
The inside front cover art depicts the TeleSpectrum Worldwide Inc. logo
and includes photographs of call center representatives, a direct mail
production line, the planet Earth, an integrated circuit and a satellite disk.
The inside cover art also includes the following text:
TeleSpectrum Worldwide Inc.
Single Source Solution
Outbound Telesales
Inbound Customer Service & Care
TeleSpectrum Worldwide Inc.
. 23 Call Centers in 7 States
. More than 4000 Associates
. More than 600 Licensed Insurance Agents
. More than 1,700 Computerized Workstations
. Capacity for 300 million calls per year
. 24 hours-a-day inbound call operations
Research Services
Direct Mail & Fulfillment
Database Management
Consulting Services
Complete Call Center Management
<PAGE>
No person has been authorized to give any information or to make any
representations not contained in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company or any Underwriters. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, the Common
Stock in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation.
No action has been or will be taken in any jurisdiction by the Company, the
Selling Stockholders or any Underwriter that would permit a public offering of
the Common Stock or possession or distribution of this Prospectus in any
jurisdiction where action for that purpose is required, other than in the
United States. Persons into whose possession this Prospectus comes are required
by the Company and the Underwriters to inform themselves about and to observe
any restrictions as to the offering of the Common Stock and the distribution of
this Prospectus.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Prospectus Summary.................. 4
Risk Factors........................ 9
Use of Proceeds..................... 16
Dividend Policy..................... 16
Capitalization...................... 17
Dilution............................ 18
Selected Pro Forma Combined
Financial Data..................... 19
Management's Discussion and Analysis
of Pro Forma Financial Condition
and Pro Forma Results of
Operations......................... 21
Selected Financial Data of
TeleSpectrum Worldwide and the
Operating Businesses............... 23
</TABLE>
<TABLE>
<CAPTION>
Page
<S> <C>
Management's Discussion and
Analysis of Financial Condition
and
Results of Operations ............ 26
Business........................... 42
Management......................... 51
Certain Relationships and Related
Party Transactions................ 58
Principal and Selling Stockhold-
ers............................... 65
Description of Capital Stock....... 68
Shares Eligible for Future Sale.... 70
Underwriting....................... 71
Legal Matters...................... 72
Experts............................ 72
Additional Information............. 73
Index to Financial Statements...... F-1
</TABLE>
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR NOT PARTICIPATING IN
THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION
TO THE OBLIGATIONS OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
The Company intends to furnish to its stockholders annual reports containing
consolidated financial statements audited by its independent public accountants
and quarterly reports containing unaudited consolidated financial statements
for each of the first three quarters of each fiscal year.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK
AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
3
<PAGE>
PROSPECTUS SUMMARY
Simultaneously with the closing of the offering made by this Prospectus (the
"Offering"), TeleSpectrum Worldwide Inc. will acquire, in separate transactions
(the "Acquisitions"), a number of telemarketing, market research and direct
mail and fulfillment businesses (collectively, the "Operating Businesses") for
an aggregate consideration of $160.8 million, which consists of: (i) $90.9
million in cash to be paid to the Sellers of the Operating Businesses described
in this Prospectus upon the consummation of the Offering; (ii) forgiveness of a
$0.5 million promissory note from one of the Operating Businesses; (iii) the
$44.9 million estimated fair value of 4,403,863 shares of Common Stock to be
issued to the Sellers; (iv) the $2.1 million estimated fair value of warrants
to purchase 593,400 shares of Common Stock at the assumed initial public
offering price of $15.00 per share to be issued in connection with the
Acquisitions; (v) the $18.7 million deemed value for accounting purposes of the
CRW Lender Warrants and CRW Management Warrants as discussed in this Prospectus
to purchase 2,272,562 shares of Common Stock currently owned by CRW Financial,
Inc. ("CRW Financial") at $1.50 per share; and (vi) estimated transaction costs
of $3.7 million. The estimated purchase price for the Acquisitions is subject
to certain purchase price adjustments at closing and earn-out arrangements. See
"Certain Relationships and Related Party Transactions--The Acquisitions" and
"--CRW Transactions." Unless otherwise indicated, all references herein to the
"Company" include the Operating Businesses after the effectiveness of the
Acquisitions, and references herein to "TeleSpectrum Worldwide" shall mean
TeleSpectrum Worldwide Inc. prior to the effectiveness of the Acquisitions.
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and the financial statements,
including the notes thereto, appearing elsewhere in this Prospectus. Unless
otherwise indicated, all share, per share and financial information set forth
herein: (i) has been adjusted to give effect to the Acquisitions and a
8.510137-for-1 stock split effected through a stock dividend in May 1996; (ii)
assumes an initial public offering price of $15.00 per share, which is the
midpoint of the range of anticipated public offering prices set forth on the
cover page of this Prospectus; and (iii) assumes no exercise of the
Underwriters' over-allotment option. In addition, all references to years,
unless otherwise noted, refer to the Company's fiscal year, which ends on
December 31.
This Prospectus contains forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including those set forth under "Risk Factors" and elsewhere in this
Prospectus.
THE COMPANY
TeleSpectrum Worldwide was founded in April 1996 to create a national provider
of integrated teleservices solutions. With the capabilities of the Operating
Businesses, the Company can offer its clients complete direct marketing
solutions that build upon a foundation of outbound and inbound telemarketing
and include inbound customer service, market research, direct mail and
fulfillment and other direct marketing services. The Company operates over
1,500 "workstations" (each of which consists of a telephone- and computer-
equipped work area designed to accommodate one employee) in 20 call centers
located primarily in the eastern United States, and currently has the capacity
to handle over 300 million calls per year. The Company focuses on providing
teleservices to major clients in the telecommunications, insurance, financial
services, pharmaceuticals and healthcare, consumer products and high technology
industries. The Company's pro forma revenues were $88.0 million for 1995 (of
which the Company estimates that approximately 60% was derived from outbound
telemarketing) and $57.7 million for the six months ended June 30, 1996, and
its pro forma net income was $2.6 million for 1995 and $2.5 million for the six
months ended June 30, 1996.
The teleservices industry facilitates the direct communication of marketing
information to and from current and prospective customers by telephone. Direct
marketing methods, such as telemarketing and direct mail, employ a "one-to-one"
approach to deliver a marketing message directly to a specific current or
prospective customer and to elicit immediate customer response. As businesses
seek greater returns from their investments in marketing activities, they are
increasingly coupling traditional indirect marketing methods such as
advertising with direct marketing methods such as telemarketing. Advances in
computer and telecommunications technology are helping telemarketers to more
accurately identify and contact prospective customers, and are providing call
center representatives ("CCRs") with more complete on-line guidance and
support. Improvements in the scale and speed of computer and telecommunications
networking capabilities allow teleservices providers to implement larger and
4
<PAGE>
more complex programs for their clients. As the trend toward outsourcing
continues, the Company believes, based upon management's experience in the
teleservices industry and in other industries which provide or use outsourced
services, that businesses will increasingly seek to reduce the number of
vendors they utilize, and may prefer single-source providers of integrated
solutions drawing upon a variety of related teleservices capabilities.
Moreover, the Company believes that further opportunities may emerge for an
integrated teleservices provider that can assemble and offer other value-added
teleservices, such as inbound customer service, market research, direct mail
and fulfillment, training, consulting, call center management and electronic
order processing. See "Business--Industry Overview" and "--Competition."
The Company's goal is to become the premier provider of integrated teleservices
solutions. To attain this goal, the Company intends to provide a single source
for complete, integrated solutions to its clients' direct marketing and
customer service needs, establish long-term relationships with major clients,
add new clients in its targeted industries and pursue strategic acquisitions
that will enable the Company to broaden its market reach. See "Business--
Strategy" and "--Sales, Marketing and Clients."
The Company is being formed by the Acquisitions of substantially all of the
assets of the following Operating Businesses from the entities described below
and their affiliates (the "Sellers"):
The SOMAR Business ("SOMAR")--Headquartered in Salisbury, North Carolina,
SOMAR, Inc. operates 686 workstations in seven call centers located in North
Carolina and West Virginia. SOMAR currently focuses on outbound services and
has a diverse portfolio of clients in the insurance, financial services,
telecommunications and retail industries.
The NBG Business ("NBG")--Headquartered in Cambridge, Massachusetts, NBG
Services, Inc. operates 266 workstations in six call centers located in
Massachusetts and Arizona. NBG provides outbound telemarketing services to
clients in the high technology, financial services and telecommunications
industries. NBG also provides market research, database development and account
management services.
The Harris Businesses ("Harris")--Harris Direct Marketing, Inc. ("HDM"),
headquartered in Philadelphia, Pennsylvania, and Harris Fulfillment, Inc.
("HFI"), headquartered in King of Prussia, Pennsylvania, comprise a regional
vertically-integrated direct mail and fulfillment organization. Harris provides
its services primarily to companies in the pharmaceuticals and healthcare,
financial services and insurance industries. In addition, Harris operates an
automated inbound call center to provide fulfillment services to a client in
the pharmaceuticals and healthcare industry.
The Reich Business ("Reich")--Headquartered in Philadelphia, Pennsylvania, The
Reich Group, Inc. and its affiliates comprise a fully-integrated direct
marketing company with expertise in strategic planning, marketing,
telemarketing and database development services. Reich, which operates 320
workstations in three call centers, specializes in providing services to
companies in the financial services, telecommunications and insurance
industries.
The TeleSpectrum Business ("TeleSpectrum")--Headquartered in Annapolis,
Maryland, TeleSpectrum, Inc. provides inbound and outbound telemarketing and
fulfillment services. TeleSpectrum operates 134 workstations in two call
centers and focuses on providing inbound customer services to companies in the
high technology, pharmaceuticals and healthcare and consumer products
industries. In addition, TeleSpectrum's affiliate provides call center
management outsourcing and telemarketing consulting and training services for
businesses.
The Response Center Business ("The Response Center")--Headquartered in Upper
Darby, Pennsylvania, The Response Center, Inc. and its affiliate provide custom
market research, data tabulation, analysis and consulting, principally to
clients in the telecommunications, financial services, utilities and
pharmaceuticals and healthcare industries. The Response Center operates 130
workstations in one call center.
5
<PAGE>
The Company maintains its principal executive offices at 443 South Gulph Road,
King of Prussia, Pennsylvania 19406, and has facilities in Arizona, California,
Delaware, Maryland, Massachusetts, North Carolina, Pennsylvania and West
Virginia. The telephone number of its principal executive offices is (610)-962-
5140. See "Business--TeleSpectrum Worldwide Facilities."
THE OFFERING
COMMON STOCK OFFERED:
<TABLE>
<S> <C>
By the Company....................... 10,286,000 shares
By the Selling Stockholders.......... 370,000 shares
TOTAL OFFERING(1) ..................... 10,656,000 shares
COMMON STOCK OUTSTANDING AFTER THE
OFFERING(2)(3)........................ 23,200,000 shares
USE OF PROCEEDS BY THE COMPANY......... To pay the cash portion of the
purchase price for the Operating
Businesses, to repay indebtedness
assumed in connection with the
Acquisitions, to make certain capital
expenditures and to fund general
corporate purposes, including working
capital and possible acquisitions. See
"Use of Proceeds."
DIVIDEND POLICY........................ The Company intends to retain its
earnings to fund development of its
business and does not anticipate
paying cash dividends in the
foreseeable future. See "Dividend
Policy."
RISK FACTORS........................... For a discussion of certain
considerations relevant to an
investment in the Common Stock, see
"Risk Factors."
NASDAQ NATIONAL MARKET SYMBOL.......... "TLSP"
</TABLE>
- --------
(1)Assumes that the Underwriters' over-allotment option for up to 1,598,400
shares of Common Stock is not exercised. See "Underwriting."
(2)Includes 4,403,863 shares of Common Stock to be issued in connection with
the closing of the Acquisitions. Excludes additional shares of Common Stock
which may be issued to three of the Sellers pursuant to earn-out arrangements.
See "Certain Relationships and Related Party Transactions--The Acquisitions."
(3)Excludes 1,433,600 shares of Common Stock issuable upon the exercise of
options to be granted on the date of this Prospectus under the TeleSpectrum
Worldwide Inc. 1996 Equity Compensation Plan (the "1996 Stock Incentive Plan")
and 593,400 shares of Common Stock issuable upon the exercise of warrants to be
granted on the date of this Prospectus. All of such options and warrants have a
per share exercise price equal to the initial public offering price. Also
excludes 400,000 shares that would be issuable upon the exercise of options
that the Company is to grant, pursuant to employment agreements with two of its
executive officers, ratably over the course of the next four years. As of the
date of this Prospectus, 866,400 additional shares are reserved for future
issuance under the 1996 Stock Incentive Plan (466,400 shares, if all of the
options to be granted to two of its executive officers over the next four years
were to be granted). See "Certain Relationships and Related Party
Transactions--The Acquisitions" and "Management--Employment Agreements" and "--
1996 Stock Incentive Plan."
6
<PAGE>
SUMMARY PRO FORMA COMBINED FINANCIAL DATA
TeleSpectrum Worldwide will acquire, simultaneously with and as a condition to
the consummation of the Offering, the Operating Businesses. These Acquisitions
will be recorded using the purchase method of accounting. The Summary Pro Forma
Combined Financial Data assume the consummation of the Acquisitions and the
consummation of the Offering. See "Certain Relationships and Related Party
Transactions--The Acquisitions," "Pro Forma Combined Financial Statements" and
"Notes to Pro Forma Combined Financial Statements."
--------------------------------
<TABLE>
<CAPTION>
PRO FORMA
YEAR ENDED
DECEMBER 31, SIX MONTHS ENDED JUNE 30,
1995 1995 1996
Dollars in thousands, except per share data ------------ ------------ ------------
<S> <C> <C> <C>
PRO FORMA STATEMENT OF INCOME DATA(1):
Revenues $87,954 $42,588 $57,706
Cost of services 59,597 27,337 39,317
Selling, general and administrative
expense(2) 17,525 8,657 10,956
Goodwill amortization(3) 5,860 2,930 2,930
------- ------------ ------------
Operating income 4,972 3,664 4,503
Interest income 158 28 103
Interest expense(4) (94) (34) (49)
------- ------------ ------------
Income before income taxes 5,036 3,658 4,557
Income taxes(5) 2,407 1,749 2,060
------- ------------ ------------
Net income $ 2,629 $ 1,909 $ 2,497
------- ------------ ------------
Net income per share(6) $ 0.12 $ 0.09 $ 0.12
======= ============ ============
</TABLE>
<TABLE>
<S> <C> <C> <C>
Shares used in computing pro forma net
income per share (6) 21,200,000 21,200,000 21,200,000
----------- ---------- ----------
</TABLE>
<TABLE>
----------
<CAPTION>
AT JUNE 30, 1996
PRO FORMA,
ACTUAL AS ADJUSTED(1)
Dollars in thousands ------- --------------
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents $ -- $ 32,384
Working capital (deficit) (1,506) 45,819
Goodwill -- 146,505
Total assets 22,446 218,175
Long-term debt, less current maturities -- --
Stockholders' equity 20,440 208,310
</TABLE>
- --------
(1)Assumes that the closings of the Acquisitions and the Offering had occurred
as of January 1, 1995, in the case of the pro forma statement of income data,
and as of June 30, 1996, in the case of the pro forma balance sheet data. The
pro forma combined financial data are based upon preliminary estimates,
available information and certain assumptions that management deems
appropriate. The pro forma combined financial data presented herein are not
necessarily indicative of the results the Company would have obtained had such
events occurred at the beginning of the period or of the future results of the
Company. The pro forma combined financial data should be read in conjunction
with the other financial data and notes thereto included elsewhere in this
Prospectus. The aggregate consideration for the Acquisitions is $160.8 million,
which consists of: (i) $90.9 million of cash to be paid to the Sellers upon the
consummation of the Offering; (ii) forgiveness of a $0.5 million promissory
note from
7
<PAGE>
one of the Operating Businesses; (iii) the $44.9 million estimated fair value
of 4,403,863 shares of Common Stock to be issued to the Sellers; (iv) the $2.1
million estimated fair value of warrants to purchase 593,400 shares of Common
Stock at the assumed initial public offering price of $15.00 per share to be
issued in connection with the Acquisitions; (v) the $18.7 million deemed value
for accounting purposes of the CRW Lender Warrants and CRW Management Warrants
as discussed in this Prospectus to purchase 2,272,562 shares of Common Stock
currently owned by CRW Financial at $1.50 per share; and (vi) estimated
transaction costs of $3.7 million. The estimated purchase price for the
Acquisitions is subject to certain purchase price adjustments at closing and
earn-out arrangements. See "Certain Relationships and Related Party
Transactions--The Acquisitions" and "--CRW Transactions."
(2)Includes a pro forma adjustment to reflect compensation expense of the
officers of the Operating Businesses and officers of TeleSpectrum Worldwide
based upon employment agreements to be entered into not later than the closing
of the Acquisitions. Does not reflect costs (which will be significant) related
to other employees of TeleSpectrum Worldwide or corporate expenses related to
being a public company. See "Management's Discussion and Analysis of Pro Forma
Financial Condition and Pro Forma Results of Operations," "Management--
Executive Compensation" and "--Employment Agreements" and Note 2 of Notes to
Pro Forma Combined Financial Statements.
(3)Represents a pro forma adjustment to reflect the amortization expense on the
goodwill recorded in connection with the Acquisitions.
(4)Includes a pro forma adjustment to reflect the elimination of interest
expense resulting from the reduction of debt paid from the net proceeds of the
Offering.
(5)Includes a pro forma adjustment to calculate the provision for income taxes
on the pro forma combined results at effective tax rates of 47.8% and 45.2% in
1995 and 1996, respectively.
(6)Computed on a basis described in Note 5 of Notes to Pro Forma Combined
Financial Statements.
8
<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the following factors
should be considered carefully by prospective investors in evaluating the
Company and its business before purchasing shares of Common Stock offered
hereby.
ABSENCE OF COMBINED OPERATING HISTORY
TeleSpectrum Worldwide was founded in April 1996 and has conducted no
operations to date. TeleSpectrum Worldwide has entered into agreements to
acquire the Operating Businesses simultaneously with the consummation of the
sale of the shares of Common Stock offered hereby. The Operating Businesses
have been operating independently and the Company may not be able to
successfully integrate these businesses and their disparate operations,
employees and management. In connection with the Acquisitions, three of the
Sellers and certain of the executives of the Operating Businesses may receive
earn-outs and bonuses based upon the performance of that Operating Business,
and certain of the Acquisition agreements require the Company to maintain the
separate existence of certain of the Operating Businesses pending completion of
earn-out arrangements. Such provisions may delay the integration by the Company
of the Operating Businesses and therefore may adversely impact the Company's
business, financial condition and results of operations. The Company's
management group has been assembled only recently and the management control
structure is still in its formative stages. Management may not be able to
oversee the combined entity and implement effectively the Company's operating
strategies. See "Certain Relationships and Related Party Transactions--The
Acquisitions," "Business--The Operating Businesses" and "Management."
POTENTIAL INABILITY TO MANAGE GROWTH
The Operating Businesses, particularly those engaged primarily in
telemarketing, have expanded significantly in the past several years and this
expansion will place demands on the Company's administrative, operational and
financial resources. Any continued growth of the Company's client base and its
services could place an additional strain on the capacity, management and
operations of the Company and the Operating Businesses. The Company's future
performance and profitability will depend in part on its ability to
successfully implement improved financial and management systems, to add
capacity as and when needed and to hire qualified personnel to respond to
changes in its business. The failure to implement such systems, add any such
capacity or hire such qualified personnel may have a material adverse effect on
the Company's business, financial condition and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
RELIANCE ON MAJOR CLIENTS AND KEY INDUSTRIES
It is anticipated that a significant portion of the Company's revenues will be
derived from relatively few clients. The Company's ten largest clients in 1995
accounted for approximately 56.4% of the Company's 1995 pro forma revenues, and
one client--Mass Marketing Insurance Group--accounted for approximately 11.9%
of the Company's 1995 pro forma revenues. In addition, each of the Company's
Operating Businesses is substantially dependent on one or a limited number of
clients. Certain of the clients of the Operating Businesses, including certain
material clients of individual Operating Businesses, compete with one another.
When providing services to clients that compete with one another, the Company's
policy is to abide by procedures with respect to the maintenance of
confidentiality or other safeguards that may be requested by either client,
which may include performing services in facilities and with staff that are
separate from those used in performing services for competitors.
Notwithstanding these procedures, competing clients may realign their
outsourcing needs after the Acquisitions so as to avoid potential or perceived
conflicts. The Company's contracts with its clients can generally be canceled
by the client upon relatively short notice. Moreover, the Company does not
believe that it is the sole or primary source for any of the services rendered
to those clients which utilize a number of other teleservices organizations.
The loss of one or more of its major clients could have a material adverse
effect on the Company's business, results of operations and financial
condition. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Overview" and "Business--Sales, Marketing and Clients."
In addition, the Company's future prospects are dependent in large part upon
continued demand from the industries primarily served by the Company. A
significant downturn in the demand for teleservices generally, and particularly
from clients in the insurance, financial services, pharmaceuticals and
healthcare, telecommunications,
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consumer products or high technology industries, could have a material adverse
effect on the Company's business, financial condition and results of
operations. See "Business."
RISKS GENERALLY ASSOCIATED WITH ACQUISITIONS
An element of the Company's strategy is to pursue strategic acquisitions that
either expand or complement the Company's business. The Company may not be able
to identify additional attractive acquisition candidates on terms favorable to
the Company or in a timely manner. Acquisitions involve a number of special
risks, including the diversion of management's attention to the assimilation of
the operations and personnel of the acquired companies, adverse short-term
effects on the Company's operating results and the potential inability to
integrate financial and management reporting systems. A significant portion of
the Company's capital resources, including any remaining balance of the net
proceeds of this Offering, could be used for these acquisitions. The Company
may require additional debt or equity financing for future acquisitions, which
may not be available on terms favorable to the Company, if at all. Moreover,
the Company may not be able to successfully integrate any acquired business
into the Company's business or to operate any acquired business profitably. See
"Business--Strategy--Pursue Strategic Acquisitions" and "Use of Proceeds."
POTENTIAL FLUCTUATIONS IN QUARTERLY OPERATING RESULTS
The Operating Businesses have in the past experienced, and the Company could in
the future experience, quarterly variations in revenues, operating income and
cash flow as a result of many factors, including the timing and magnitude of
clients' marketing campaigns and customer service programs, the opening of new
call centers, the loss of a major client, weather-related interruptions,
additional selling, general and administrative expenses to acquire and support
new business, the timing and magnitude of required capital expenditures and
changes in the revenue mix among the Company's various service offerings or in
the relative contribution of the several Operating Businesses. In connection
with certain contracts, the Company could incur costs in periods prior to
recognizing revenues under those contracts. In addition, the Company must plan
its operating expenditures based on revenue forecasts, and a revenue shortfall
below such forecasts in any quarter would likely adversely affect the Company's
operating results for that quarter. See "Management's Discussion and Analysis
of Pro Forma Financial Condition and Pro Forma Results of Operations."
POSSIBLE DECLINE IN EFFECTIVENESS OF TELEMARKETING
The Company derives its revenues primarily from telemarketing activities.
Although the telemarketing industry has grown significantly in the last ten
years, advances in new forms of direct marketing, such as the development of
interactive commerce through television, computer networks (including the
Internet) and other media, could have an adverse effect on the demand for
teleservices as a form of direct marketing. As the industry continues to grow,
telemarketing's effectiveness as a direct marketing tool may also decrease as a
result of consumer saturation and consumer resistance to telemarketing
generally. Although the Company attempts to monitor industry trends and respond
accordingly, the Company may not be able to anticipate and successfully respond
to such trends in a timely manner.
RELIANCE ON KEY PERSONNEL
The Company's operations are dependent upon the efforts of the senior
management of the Operating Businesses, as well as J. Brian O'Neill, Chairman
of the Board and Chief Executive Officer, Michael C. Boyd, President and Chief
Operating Officer, Richard C. Schwenk, Jr., Senior Vice President and Chief
Financial Officer, and William F. Rhatigan, who is to be President of the
Company's Telemarketing Group following consummation of the Offering. Although
Mr. O'Neill intends to devote the majority of his time to the Company's
business, he is also Chairman of the Board and Chief Executive Officer of CRW
Financial, a principal stockholder of the Company, and is required to devote a
substantial amount of time to those duties. The Company will likely also be
dependent on the senior management of companies that may be acquired in the
future. If any of these executives become unable to continue in or devote
adequate time to their present roles, or if the Company is unable to attract
and retain other skilled management personnel, the Company's business, results
of operations and financial condition could be adversely affected. See
"Management." The Company does not maintain any policies of key person life
insurance on the lives of any of its senior management personnel.
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DEPENDENCE ON LABOR FORCE
Teleservices are labor-intensive and often characterized by high personnel
turnover. Unskilled and semi-skilled employees typically work part-time and
receive relatively modest hourly wages; skilled or licensed employees commonly
work full-time and command higher wages. Some of the Company's telemarketing
activities, particularly insurance product sales and inbound customer service,
require highly-trained employees. A high turnover rate among the Company's
employees would increase the Company's recruiting and training costs, and if
the Company were unable to recruit and retain a sufficient number of employees,
it would be forced to limit its growth or possibly curtail its operations. In
certain markets, the Company competes for qualified personnel with other
teleservices providers, and periodically is required to pay premium hourly
wages to attract and retain personnel. The Company may be unable to continue to
hire and retain a sufficient number of qualified personnel, which would have a
material adverse effect on the Company's business, financial condition and
results of operations. See "Business--Personnel and Training."
RELIANCE ON TECHNOLOGY
The Operating Businesses have invested significant resources in sophisticated
telecommunications and computer technology, including universal workstations,
predictive dialers, automated call distributors, digital switches and computer
systems. The Company anticipates that it will be necessary to continue
investing in technology. The Company may not be successful in anticipating
technological changes or in selecting and developing new and enhanced
technology on a timely basis. In addition, the temporary or permanent loss of
telecommunications, computer equipment or software, through casualty or
operating malfunction, could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Business--The
Operating Businesses."
The telecommunications and computer systems of the Operating Businesses contain
certain incompatible software and hardware systems. Accordingly, it may not be
feasible to integrate such systems and any attempt to do so may cause
disruptions which could delay or prevent the Company from realizing any
benefits that might be derived from integration, such as the elimination of
duplicate functions and the facilitation of capacity shifting. Such disruptions
could have a material adverse effect on the Company.
POSSIBLE ADVERSE IMPACT OF GOVERNMENT REGULATION
The telemarketing industry has become subject to an increasing amount of
federal and state regulation during the past five years. The federal Telephone
Consumer Protection Act of 1991 limits the hours during which telemarketers may
call consumers and prohibits the use of automated telephone dialing equipment
to call certain telephone numbers. The federal Telemarketing and Consumer Fraud
and Abuse Prevention Act of 1994 (the "TCFAPA") broadly authorizes the Federal
Trade Commission (the "FTC") to issue regulations prohibiting
misrepresentations in telemarketing sales. The FTC's new telemarketing sales
rules prohibit misrepresentations of the cost, terms, restrictions, performance
or duration of products or services offered by telephone solicitation, prohibit
a telemarketer from calling a consumer when that consumer has instructed the
telemarketer not to contact him or her, prohibit a telemarketer from calling
prior to 8:00 a.m. or after 9:00 p.m. and specifically address other perceived
telemarketing abuses in the offering of prizes and the sale of business
opportunities or investments. Violation of these rules may result in
injunctions or monetary penalties and can give rise to private actions for
damages. While the FTC's new rules have not caused the Operating Businesses to
alter their operating procedures, additional federal or state consumer-oriented
legislation could limit the telemarketing activities of the Company or its
clients or significantly increase the Company's costs of regulatory compliance.
Several of the industries served by the Company, particularly the insurance
industry, are subject to varying degrees of government regulation. Although
compliance with these regulations is generally the responsibility of the
Company's clients, the Company could be subject to a variety of enforcement or
private actions for its failure or the failure of its clients to comply with
such regulations. Employees of the Company who sell insurance products are
required to be licensed by various state insurance commissions and participate
in regular continuing education programs, many of which are currently provided
by the Company. This requires the Company to comply
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with the extensive regulations of these state commissions, and changes in these
regulations could materially increase the Company's operating costs. See
"Business--Government Regulation."
COMPETITION
The teleservices industry is extremely competitive and highly fragmented. The
Company competes with numerous independent direct marketing services firms,
some of which are larger than the Company, as well as the in-house
telemarketing, customer service, market research and direct mail and
fulfillment operations of many of its clients or potential clients. The
teleservices industry competes with other marketing tools, such as television,
radio, print and other advertising media, as well as electronic commerce media
such as the Internet. The Company's business, financial condition and results
of operations could be materially and adversely affected if additional
competitors with greater resources than the Company were to enter the industry,
or if the Company's clients were to choose to conduct more of their direct
marketing activities internally. See "Business--Competition."
POSSIBLE NEED FOR ADDITIONAL FINANCING
The Company currently estimates that the net proceeds of the Offering, together
with cash generated from operations, will be sufficient to finance its current
operations, potential obligations relating to the Acquisitions and planned
capital expenditure requirements at least through 1997. There can be no
assurance, however, that the Company will not be required to seek additional
capital at an earlier date. In particular, the maximum aggregate amount that
may ultimately be payable by the Company with respect to purchase price
adjustments or earn-out payments related to the Acquisitions cannot currently
be quantified. If such an amount substantially exceeds the Company's
expectations and the benefits to the Company from the operations of the
Operating Business which result in such payment obligations, the Company could
be required to seek additional financing. The Company may, from time to time,
seek additional funding through public or private financing, including equity
financing. There can be no assurance that adequate funding will be available as
needed or, if available, on terms acceptable to the Company. If additional
funds are raised by issuing equity securities, existing shareholders may
experience dilution. Insufficient funds may require the Company to scale back
or eliminate some or all of its teleservices offerings. See "Use of Proceeds"
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
AMORTIZATION OF INTANGIBLE ASSETS
Approximately $146.5 million, or 67.2%, of the Company's pro forma total assets
as of June 30, 1996 consists of goodwill arising from the Acquisitions of the
Operating Businesses. Goodwill is an intangible asset that represents the
difference between the aggregate purchase price for the assets acquired and the
amount of such purchase price allocated to such assets for purposes of the
Company's pro forma balance sheet. Goodwill is amortized over a period of time,
with the amount amortized in a particular period constituting an expense that
would reduce the Company's net income in that period. A reduction in net income
resulting from the amortization of goodwill may have an adverse impact upon the
market price of the Company's Common Stock.
PORTIONS OF OFFERING PROCEEDS PAYABLE TO AFFILIATES
Approximately $90.9 million of the net proceeds to the Company from the sale of
the shares of Common Stock offered hereby will be used to pay the cash portion
of the purchase price for the Operating Businesses. Approximately $25.0
million, or 27.5%, of such amount will be paid to SOMAR, Inc., which will
become a greater than 5% stockholder of the Company following consummation of
the Acquisition of the SOMAR Operating Business. Richard W. Virtue, who is
named to become a director of the Company, is the Chairman and a principal
stockholder of SOMAR, Inc., and Gregory M. Alcorn, who is to become Chief
Executive Officer of the Company's SOMAR division, is the President and a
stockholder of SOMAR, Inc.; Messrs. Virtue and Alcorn will thus benefit
indirectly from amounts to be received by SOMAR, Inc. Approximately $14.1
million, or 15.5%, of the cash portion of the purchase price will be paid to
NBG Services, Inc. William F. Rhatigan, who is named to become a director of
the Company and the President of its Telemarketing Group, is the Chairman and a
principal stockholder of NBG Services, Inc., and Michael J. Gallant, who is to
become President of the Company's NBG division, is the President and a
principal stockholder of NBG Services, Inc.; Messrs. Rhatigan and Gallant will
thus benefit indirectly from amounts to be received by NBG Services, Inc.
Approximately $12.2 million, or 13.4%, of the cash portion of the purchase
price will be paid to HDM and HFI as the Sellers of the Harris Operating
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Business. Edward M. Idzik, who is to become President of the Company's Harris
division, is the President and a principal stockholder of both HDM and HFI, and
thus will benefit indirectly from amounts to be received by HDM and HFI.
Approximately $20.0 million, or 22.0%, of the cash portion of the purchase
price will be paid to entities affiliated with The Reich Group, Inc. as the
Sellers of the Reich Operating Business. Morton M. Reich, who is to become
President of the Company's Reich division, is the President and sole
stockholder of the Sellers of the Reich Operating Business, and thus will
benefit indirectly from amounts to be received by such Sellers. Approximately
$8.0 million, or 8.8%, of the cash portion of the purchase price will be paid
to entities affiliated with TeleSpectrum, Inc. as the Sellers of the
TeleSpectrum Operating Business. Karen E. Schweitzer, who is to become
President of the Company's TeleSpectrum division, is the President and a
principal stockholder of the Sellers of the TeleSpectrum Operating Business and
thus will benefit indirectly from amounts to be received by such Sellers.
Approximately $11.6 million, or 12.8%, of the cash portion of the purchase
price will be paid to entities affiliated with The Response Center, Inc. as the
Sellers of The Response Center Operating Business. Patrick M. Baldasare, who is
to become President of the Company's The Response Center division, is the
President and a principal stockholder of the Sellers of The Response Center
Operating Business and thus will benefit indirectly from amounts to be received
by such Sellers.
Simultaneously with the consummation of the Acquisitions, the Company will
repay indebtedness of the Operating Businesses of approximately $17.0 million;
Messrs. Virtue, Alcorn, Rhatigan, Gallant, Idzik and Reich and Ms. Schweitzer,
in their respective capacities with the Sellers of the Operating Businesses,
will benefit indirectly from such repayments.
The Company has agreed to pay certain fees and expenses of the Sellers of the
respective Operating Businesses incurred in connection with the Acquisitions;
the maximum amount of such fees and expenses cannot be determined in advance,
but is expected to be approximately $1.0 million. Messrs. Virtue, Alcorn,
Rhatigan, Gallant, Idzik, Reich and Baldasare and Ms. Schweitzer, in their
respective capacities with the Sellers of the Operating Businesses, will
benefit indirectly from such payments.
SOMAR, Inc. and NBG Services, Inc. are the Selling Stockholders in the
Offering. The net proceeds to the Selling Stockholders are expected to be
approximately $5.2 million, of which $0.5 million will be received by SOMAR,
Inc. and $4.7 million will be received by NBG Services, Inc. Messrs. Virtue and
Alcorn, in their respective capacities with SOMAR, Inc., and Messrs. Rhatigan
and Gallant, in their respective capacities with NBG Services, Inc., will
benefit indirectly from such net proceeds.
POTENTIAL INFLUENCE OF EXISTING STOCKHOLDERS
After the sale of shares of Common Stock offered hereby, the Company's
executive officers, directors and 5% stockholders will own beneficially an
aggregate of approximately 56.4% of the outstanding shares of Common Stock
(approximately 52.8% if the Underwriters' over-allotment option is exercised in
full). In particular, CRW Financial will own approximately 36.7% of the
outstanding shares of Common Stock (approximately 34.3% if the Underwriters'
over-allotment option is exercised in full). J. Brian O'Neill, Chairman of the
Board and Chief Executive Officer of the Company, is the Chairman of the Board
and Chief Executive Officer of CRW Financial. The Company's officers, directors
and 5% stockholders if acting together would, and CRW Financial may, be able to
control the election of directors and matters requiring the approval of
stockholders of the Company. This concentration of ownership by existing
stockholders may also have the effect of delaying or preventing a change in
control of the Company. See "Principal and Selling Stockholders."
POTENTIAL CONFLICTS OF INTEREST
The Company is subject to risks associated with potential conflicts of interest
that may arise out of the interrelationships among certain of its officers,
directors, significant stockholders and third parties. J. Brian O'Neill,
Chairman of the Board and Chief Executive Officer of the Company, is the
Chairman of the Board and Chief Executive Officer of CRW Financial. CRW
Financial is a principal stockholder of the Company. Mark J. DeNino, a director
of the Company, is a director of CRW Financial and a general partner of
Technology Leaders II Management L.P., which is the sole general partner of
Technology Leaders II L.P. Technology Leaders II L.P. is
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a principal stockholder of CRW Financial. See "Principal and Selling
Stockholders." William F. Rhatigan, who will serve as President of the
Company's Telemarketing Group and is a person named to become a director of the
Company upon consummation of the Offering, and Michael J. Gallant, who will
serve as President of the Company's NBG division upon consummation of the
Offering, together own all of the common stock of the Seller of the NBG
Operating Business. In connection with the Acquisition of the NBG Operating
Business, the Seller of the NBG Operating Business may receive a payment from
the Company based upon 1996 earnings of the NBG Operating Business. See
"Certain Relationships and Related Party Transactions--The Acquisitions--NBG."
Richard W. Virtue, who will be engaged as a consultant to the Company and who
is a person named to become a director of the Company upon consummation of the
Offering, is a principal stockholder of the Seller of the SOMAR Operating
Business, and Gregory M. Alcorn, who will serve as the President of the
Company's SOMAR division upon consummation of the Offering, is a minority
stockholder of the Seller of the SOMAR Operating Business. In connection with
the Acquisition of the SOMAR Operating Business, the Seller of the SOMAR
Operating Business may receive payments from the Company based upon 1996 and
1997 earnings of the SOMAR Operating Business. See "Certain Relationships and
Related Party Transactions--The Acquisitions--SOMAR." Morton M. Reich, who will
serve as the President of the Company's Reich division upon consummation of the
Offering, is the sole stockholder of the Seller of the Reich Operating
Business. In connection with the Acquisition of the Reich Operating Business,
the Seller of the Reich Operating Business may receive payments from the
Company based upon 1996 earnings of the Reich Operating Business. See "Certain
Relationships and Related Party Transaction--The Acquisitions--Reich." The
interests of the foregoing persons in their capacities with the third parties
identified may come into conflict with the interests of such persons in their
respective capacities with the Company.
DEPENDENCE ON TELEPHONE AND POSTAL SERVICE
The Company's business is materially dependent upon service provided by various
local and long distance telephone companies and the United States Postal
Service. Rate increases imposed by these organizations will increase the
Company's operating expenses and adversely affect its operating results to the
extent that the Company is unable to pass the increases through to its clients.
Any significant interruption or capacity limitation in either service would
have a material adverse effect on the Company's business, financial condition
and results of operations. See "Business--Services Overview."
SHARES ELIGIBLE FOR FUTURE SALE
The 10,656,000 shares being sold in this Offering will be freely tradeable
unless acquired by affiliates of the Company; an aggregate of 12,544,000
unregistered shares of Common Stock will be outstanding immediately following
consummation of the Offering. The market price of the Common Stock could be
adversely affected by the sale of substantial amounts of Common Stock in the
public market following the Offering.
Simultaneously with the closing of this Offering, the Sellers will receive, in
the aggregate, 4,403,863 shares of Common Stock as a portion of the
consideration for their businesses; except for the 370,000 shares of Common
Stock to be sold by the Selling Stockholders, these shares are not being
offered by this Prospectus. The Company, each of its directors and officers,
and the holders of all of the shares of Common Stock and options or warrants to
purchase shares of Common Stock that are or will be outstanding prior to the
consummation of the Acquisitions have agreed with the Underwriters not to
offer, sell or otherwise dispose of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for such shares for a period of
180 days after the date of this Prospectus without the prior written consent of
J.P. Morgan Securities Inc. The holders of the shares of Common Stock and
warrants issued or to be issued in the Acquisitions have agreed not to offer,
sell or otherwise dispose of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for such shares for a period of
360 days after the date of this Prospectus without the prior written consent of
J.P. Morgan Securities Inc. In connection with the Acquisitions, the Company
has granted certain stockholders the right to include up to 4,033,863 shares of
Common Stock in certain registrations of Common Stock under the Securities Act
of 1933, as amended (the ""Securities Act''), effected following consummation
of the Offering. In addition, certain of such stockholders have the right to
demand or piggyback registration of all or a portion of the shares of
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Common Stock that may be issued to them in payment of the earn-out component of
the purchase price for their Operating Businesses. In connection with the CRW
Lender Warrants and the CRW Management Warrants (each as defined in "Certain
Relationships and Related Party Transactions--CRW Transactions--Initial
Capitalization"), the Company has granted demand and piggyback registration
rights with respect to 2,272,562 shares of Common Stock purchasable from CRW
Financial upon exercise thereof. In addition, the Company intends to file a
registration statement under the Securities Act to register initially the
issuance or, if applicable, resale of an aggregate of 2,300,000 shares of
Common Stock reserved for issuance in connection with the 1996 Stock Incentive
Plan (less any shares theretofore issued upon exercise of any options
exercisable prior to the filing of such registration statement, as to which
shares the exemption provided pursuant to Rule 701 under the Securities Act may
be available). The issuance of shares upon the exercise of options or warrants
could result in the dilution of the voting power of the shares of Common Stock
purchased in the Offering and could have a dilutive effect on earnings per
share. None of the securities described above was acquired in a transaction
registered under the Securities Act, and, accordingly, such securities may not
be sold except in transactions registered under the Securities Act or pursuant
to an exemption from registration. See "Certain Relationships and Related Party
Transactions" and "Shares Eligible for Future Sale."
NO PRIOR PUBLIC MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to the Offering, there has not been a public market for the Common Stock,
and there can be no assurance that an active trading market will develop and
continue after the Offering is completed or that the market price of the Common
Stock will not decline below the initial public offering price. The initial
public offering price will be determined by negotiations between the Company
and the representatives of the Underwriters. See "Underwriting" for a
discussion of the factors to be considered in determining the initial public
offering price. The trading price of the Common Stock could be subject to
significant fluctuations in response to introduction of new products or
services by competitors, variations in quarterly operating results, changes in
government regulations or market conditions affecting the teleservices and
direct marketing industries and other events or factors. In addition, the stock
market in the past has experienced significant price and value fluctuations,
which have not necessarily been related to corporate operating performance. The
volatility of the market could adversely affect the market price of the Common
Stock and the ability of the Company to raise equity in the public markets. See
"Underwriting."
ANTI-TAKEOVER PROVISIONS
Certain provisions of the Company's Bylaws impose certain procedures and
limitations applicable to stockholders' meetings, proposal of business and
nomination of directors that could have the effect of making it more difficult
for a third party to acquire, or discouraging a third party from attempting to
acquire, control of the Company. Such provisions may limit the price that
certain investors may be willing to pay in the future for shares of the Common
Stock. These provisions may also reduce the likelihood of an acquisition of the
Company at a premium price by another person or entity. In addition, under the
Company's Certificate of Incorporation, the Board of Directors has the
authority to fix the rights and preferences of, and issue shares of, preferred
stock without further action of the stockholders. Therefore, preferred stock
could be issued, without stockholder approval, that could have voting,
liquidation and dividend rights superior to that of existing stockholders. The
issuance of preferred stock could adversely affect the voting power of holders
of Common Stock and the likelihood that such holders would receive dividend
payments and payments on liquidation, and could have the effect of delaying,
deferring or preventing a change in control of the Company. The Company has no
present plan to issue any shares of preferred stock. See "Description of
Capital Stock."
DILUTION
After giving effect to the Acquisitions, the purchasers of the shares of Common
Stock offered hereby will experience immediate and substantial dilution of
$12.34 per share in the pro forma as adjusted net tangible book value of their
shares. See "Dilution." In the event the Company issues additional Common Stock
in the future, including shares which may be issued in connection with earn-out
arrangements relating to the Acquisitions or with future acquisitions,
purchasers of Common Stock in this Offering may experience further dilution in
the net tangible book value per share of the Common Stock.
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USE OF PROCEEDS
The net proceeds to the Company from the sale of the shares of Common Stock
offered hereby, after deducting estimated underwriting discounts and other
offering expenses, all of which are payable by the Company, are estimated to be
approximately $140.9 million (approximately $163.2 million if the Underwriters'
over-allotment option is exercised in full), assuming an initial public
offering price of $15.00 per share. The Company will not receive any of the net
proceeds from the sale of shares of Common Stock by the Selling Stockholders.
The principal uses of such net proceeds to the Company are described below.
Consummation of Acquisitions
Approximately $90.9 million of the net proceeds will be used to pay the cash
portion of the aggregate purchase price for the Operating Businesses at closing
of the Acquisitions. See "Certain Relationships and Related Party
Transactions--The Acquisitions." In addition, approximately $3.7 million of the
net proceeds will be used to pay fees and expenses incurred in connection with
the negotiation and consummation of the Acquisitions.
Repayment of Indebtedness
An aggregate of approximately $17.0 million of the net proceeds will be used to
repay indebtedness of the Operating Businesses assumed in the Acquisitions. As
of June 30, 1996 the following indebtedness was to be repaid: SOMAR, $10.5
million; NBG, $1.2 million; Harris, $1.7 million; Reich, $0.7 million; and
TeleSpectrum, $2.9 million. The above indebtedness have maturities ranging from
demand through 2006 with interest rates ranging from approximately 4% to
approximately 20%. Indebtedness incurred within the last year was incurred
primarily for capital equipment and working capital purposes. See "Certain
Relationships and Related Party Transactions--The Acquisitions."
Capital Expenditures
Approximately $16.0 million of the net proceeds will be used to make certain
anticipated capital expenditures related to telephone equipment, computer
hardware and software and purchases in connection with the opening of new call
center facilities for SOMAR and TeleSpectrum. Of this amount, the Company is
committed to expend up to $14.0 million for the purpose of meeting SOMAR's
capital expenditure requirements. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Liquidity and Capital Resources"
and "Certain Relationships and Related Party Transactions--The Acquisitions--
SOMAR."
Working Capital and General Corporate Purposes
The balance of the net proceeds, approximately $13.3 million (approximately
$35.6 million if the Underwriters' over-allotment option is exercised in full),
will be added to the Company's working capital and used for general corporate
purposes, including possible acquisitions and capital expenditures associated
with integrating the Operating Businesses. In addition, a portion of the net
proceeds may be used for closing purchase price adjustments in connection with
the Acquisitions and to pay that portion of the purchase price of certain
Acquisitions that is subject to earn-out arrangements; the Company cannot
currently quantify the maximum amount that it may ultimately be required to pay
for these purposes. See "Certain Relationships and Related Party Transactions--
The Acquisitions." With the exception of the Acquisitions, the Company is not
currently involved in negotiations and has no current commitments or agreements
with respect to any acquisitions, and no such acquisitions may ever be
consummated.
Pending application of the net proceeds as described above, the Company intends
to invest the net proceeds in short-term investment grade securities.
DIVIDEND POLICY
The Company does not anticipate paying any cash dividends on its Common Stock
in the foreseeable future because it intends to retain its earnings, if any, to
finance the expansion of its business and for general corporate purposes. Any
payment of future dividends will be at the discretion of the Board of Directors
and will depend upon, among other factors, the Company's earnings, financial
condition, capital requirements, level of indebtedness, contractual
restrictions with respect to the payment of dividends and other considerations
that the Company's Board of Directors deems relevant.
16
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company at June 30,
1996, on a pro forma as adjusted basis to reflect (i) the sale of 10,286,000
shares of Common Stock offered hereby at an assumed initial public offering
price of $15.00 per share and the application of a portion of the estimated net
proceeds therefrom and (ii) the consummation of the Acquisitions and the
issuance of 4,403,863 shares of Common Stock in connection therewith. See
"Selected Financial Data of TeleSpectrum Worldwide and the Operating
Businesses" and "Use of Proceeds." This table should be read in conjunction
with the pro forma financial statements and the related notes thereto included
elsewhere in this Prospectus.
<TABLE>
-----------------
<CAPTION>
AT JUNE 30, 1996
PRO FORMA,
ACTUAL AS ADJUSTED(1)
Dollars in thousands ------- --------------
<S> <C> <C>
Long-term debt and capital lease obligations, less
current portion $ -- $ --
------- --------
Stockholders' equity:
Preferred stock, $.01 par value per share,
5,000,000 shares authorized, no shares issued and
outstanding -- --
Common stock, $.01 par value per share, 200,000,000
shares authorized, 8,510,137 shares issued and
outstanding, actual, 23,200,000 shares issued and
outstanding, pro forma as adjusted 85 232
Additional paid-in capital 20,774 208,497
Retained earnings (deficit) (419) (419)
------- --------
Total stockholders' equity 20,440 208,310
------- --------
Total capitalization $20,440 $208,310
======= ========
</TABLE>
- --------
(1)Excludes additional shares of Common Stock which may be issued to three of
the Sellers pursuant to earn-out arrangements. Also excludes 2,027,000 shares
of Common Stock issuable upon the exercise of options and warrants to be
granted on the date of this Prospectus, with a per share exercise price equal
to the initial public offering price. As of the date of this Prospectus,
866,400 additional shares are reserved for future issuance under the 1996 Stock
Incentive Plan (466,400 shares, if all of the options to be granted ratably
over the next four years to two executive officers of the Company pursuant to
their employment agreements were to be granted). See "Certain Relationships and
Related Party Transactions--The Acquisitions" and "Management--1996 Stock
Incentive Plan."
17
<PAGE>
DILUTION
The Company had a net tangible book value at June 30, 1996, of $279,000, or
$.03 per share of Common Stock. Net tangible book value per share is determined
by dividing the net tangible book value of the Company (tangible assets less
liabilities) by the number of shares of Common Stock outstanding. Adjusting for
the Acquisitions and the sale by the Company of the 10,286,000 shares of Common
Stock offered hereby at an assumed initial public offering price of $15.00 per
share, and the application of the estimated net proceeds therefrom as described
under "Use of Proceeds," the pro forma net tangible book value of the Company,
as adjusted, at June 30, 1996 would have been $61,805,000, or $2.66 per share.
This amount represents an immediate dilution to new investors of $12.34 per
share and an immediate increase in pro forma as adjusted net tangible book
value per share to existing stockholders of $2.63 per share. The following
table illustrates this per share dilution to new investors:
<TABLE>
----------
<S> <C> <C>
Assumed initial public offering price per share $15.00
Net tangible book value per share at June 30, 1996 $ .03
Increase in net tangible book value per share resulting from the
Acquisitions
and the Offering (1) 2.63
-----
Pro forma as adjusted net tangible book value per share after the
Acquisitions
and the Offering 2.66
------
Pro forma as adjusted dilution to new investors(2) $12.34
======
</TABLE>
- --------
(1)The increase in net tangible book value per share consists of a decrease of
$3.44 to the net tangible book value per share resulting from the Acquisitions
and an increase of $6.07 to the net tangible book value per share resulting
from the Offering.
(2)Determined by subtracting the pro forma as adjusted net tangible book value
per share after the Offering from the assumed initial public offering price per
share.
If the Underwriters' over-allotment option is exercised in full, the increase
in pro forma net tangible book value per share attributable to the Offering,
pro forma as adjusted net tangible book value per share after the Offering, and
pro forma as adjusted dilution to new investors would be $3.36, $3.39 and
$11.61, respectively.
The following table sets forth at June 30, 1996, after giving effect to the
Acquisitions and the sale of the Common Stock offered by the Company in the
Offering: (i) the number of shares of Common Stock purchased by existing
stockholders from the Company and the total consideration (including the fair
value of the shares of Common Stock issued to the Sellers) and average price
per share paid to the Company for such shares; (ii) the number of shares of
Common Stock purchased by new investors in the Offering from the Company and
the total consideration and the price per share paid by them for such shares;
and (iii) the percentage of shares purchased from the Company by existing
stockholders and the new investors and the percentages of consideration paid to
the Company for such shares by existing stockholders and new investors.
<TABLE>
<CAPTION>
--------------------------------------------------------
SHARES PURCHASED TOTAL CONSIDERATION
AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ------------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders(1) 12,914,000 55.7% $ 47,000,000 23.3% $ 3.64
New investors 10,286,000 44.3 154,290,000 76.7 $15.00
---------- ----- ------------- -----
Total 23,200,000 100.0% $ 201,290,000 100.0%
========== ===== ============= =====
</TABLE>
- --------
(1)Consists of the Sellers and the stockholders of TeleSpectrum Worldwide prior
to the consummation of the sale of the shares of Common Stock offered hereby.
Sales by the Selling Stockholders in the Offering will reduce the outstanding
number of shares held by existing stockholders to 12,544,000 shares, or
approximately 54.1% of the total number of shares of Common Stock outstanding
after the Offering, and will increase the number of shares to be held by new
stockholders to 10,656,000 shares, or approximately 45.9% of the total number
of shares of Common Stock outstanding after the Offering. See "Principal and
Selling Stockholders."
18
<PAGE>
SELECTED PRO FORMA COMBINED FINANCIAL DATA
TeleSpectrum Worldwide will acquire, simultaneously with and as a condition to
the consummation of the Offering, the Operating Businesses. These Acquisitions
will be recorded using the purchase method of accounting. The Selected Pro
Forma Combined Financial Data assume the consummation of the Acquisitions and
the consummation of the Offering. See "Certain Relationships and Related Party
Transactions--The Acquisitions," and the Pro Forma Combined Financial
Statements and Notes to Pro Forma Combined Financial Statements included
elsewhere in this Prospectus.
---------------------------------
<TABLE>
<CAPTION>
Dollars in thousands, except per
share data PRO FORMA
YEAR ENDED
DECEMBER 31, SIX MONTHS ENDED JUNE 30,
1995 1995 1996
------------ ---------- --------------
<S> <C> <C> <C>
PRO FORMA STATEMENT OF INCOME DA-
TA(1):
Revenues $87,954 $42,588 $57,706
Cost of services 59,597 27,337 39,317
Selling, general and administrative
expense(2) 17,525 8,657 10,956
Goodwill amortization(3) 5,860 2,930 2,930
---------- ---------- ----------
Operating income 4,972 3,664 4,503
Interest income 158 28 103
Interest expense(4) (94) (34) (49)
---------- ---------- ----------
Income before income taxes 5,036 3,658 4,557
Income taxes(5) 2,407 1,749 2,060
---------- ---------- ----------
Net income $ 2,629 $ 1,909 $ 2,497
---------- ---------- ----------
Net income per share(6) $ 0.12 $ 0.09 $ 0.12
========== ========== ==========
Shares used in computing pro forma
net income
per share(6) 21,200,000 21,200,000 21,200,000
---------- ---------- ----------
-------------------------
<CAPTION>
JUNE 30, 1996
PRO FORMA
ACTUAL AS ADJUSTED(1)
Dollars in thousands ---------- --------------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents $ -- $ 32,384
Working capital (deficit) (1,506) 45,819
Goodwill -- 146,505
Total assets 22,446 218,175
Long-term debt, less current maturi-
ties -- --
Stockholders' equity 20,440 208,310
</TABLE>
- --------
(1)Assumes that the closings of the Acquisitions and the Offering had occurred
as of January 1, 1995, in the case of the pro forma statement of income data,
and as of June 30, 1996, in the case of the pro forma balance sheet data. The
pro forma combined financial data are based upon preliminary estimates,
available information and certain assumptions that management deems
appropriate. The pro forma combined financial data presented herein are not
necessarily indicative of the results the Company would have obtained had such
events occurred at the beginning of the period, or of the future results of the
Company. The pro forma combined financial data should be read in conjunction
with the other financial data and notes thereto included elsewhere in this
Prospectus. The aggregate consideration for the Acquisitions is $160.8 million
which consists of: (i) $90.9 million in cash to be paid to the Sellers upon the
consummation of the Offering; (ii) forgiveness of a $0.5 million promissory
note from one of the Operating Businesses; (iii) the $44.9 million estimated
fair value of 4,403,863 shares of Common Stock to be issued to the Sellers;
(iv) the $2.1 million estimated fair value of warrants to purchase 593,400
shares of Common Stock at the assumed initial public offering price of $15.00
per share to be issued in connection with the Acquisitions; (v) the $18.7
million deemed value for accounting purposes of the CRW Lender Warrants and CRW
Management Warrants as discussed in this Prospectus to purchase 2,272,562
shares of Common Stock at $1.50 per share; and (vi) estimated transaction costs
of $3.7 million. The estimated purchase price for the Acquisitions is subject
to certain purchase price adjustments at closing and earn-out arrangements. See
"Certain Relationships and Related Party Transactions--The Acquisitions."
(2)Includes a pro forma adjustment to reflect compensation expense of the
officers of the Operating Businesses and officers of TeleSpectrum Worldwide
based upon employment agreements to be entered into not later than the
19
<PAGE>
closing of the Acquisitions. Does not reflect costs (which will be significant)
related to other employees of TeleSpectrum Worldwide or corporate expenses
related to being a public company. See "Management's Discussion and Analysis of
Pro Forma Financial Condition and Pro Forma Results of Operations,"
"Management--Executive Compensation" and "--Employment Agreements" and Note 2
of Notes to Pro Forma Combined Financial Statements.
(3)Represents a pro forma adjustment to reflect the amortization expense on the
goodwill recorded in connection with the Acquisitions.
(4)Includes a pro forma adjustment to reflect the elimination of interest
expense resulting from the reduction of debt paid from the net proceeds of the
Offering.
(5)Includes a pro forma adjustment to calculate the provision for income taxes
on the pro forma combined results at effective tax rates of 47.8% and 45.2% in
1995 and 1996, respectively.
(6)Computed on a basis described in Note 5 of Notes to Pro Forma Combined
Financial Statements.
20
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF PRO FORMA FINANCIAL CONDITION AND PRO
FORMA RESULTS OF OPERATIONS
GENERAL
TeleSpectrum Worldwide was founded in April 1996 to create a national provider
of integrated teleservices solutions that build upon a foundation of outbound
and inbound telemarketing and include inbound customer service, market
research, direct mail and fulfillment and other direct marketing services. The
Company focuses on providing teleservices to major clients in the
telecommunications, insurance, financial services, pharmaceuticals and
healthcare, consumer products and high technology industries.
The Company's revenues are derived primarily from service fees charged to
clients on an hourly or project basis and commissions charged on a per result
basis. A majority of the Company's pro forma 1995 revenues were derived from
service fees. In the aggregate, the revenues of the Operating Businesses have
grown from $23.7 million in 1991 to $88.0 million in 1995. This growth
primarily resulted from the Operating Businesses' ability to meet their
clients' increasing demands to deliver new services as the market required and
to attract new clients with quality service at competitive prices.
The Company's cost of services consists primarily of compensation, telephone
and other call center-related operating and support expenses. Cost of services
as a percentage of revenues has fluctuated during the period 1991 through 1995
as a result of call center start-up costs, offset in certain periods by
efficiencies associated with increased operations. The Company anticipates
continued fluctuations in cost of services as a percentage of revenues.
TeleSpectrum Worldwide, which has conducted no operations to date, has entered
into agreements to acquire the Operating Businesses simultaneously with the
consummation of the sale of the Common Stock offered hereby. The Operating
Businesses have been operating independently. The Company intends to integrate
these businesses, their operations and administrative functions over a period
of time, subject to contractual obligations in the agreements relating to the
Acquisitions. See "Certain Relationships and Related Party Transactions--The
Acquisitions." Such integration may present opportunities to reduce costs
through the elimination of duplicate functions and through economies of scale,
particularly in obtaining greater volume discounts from telecommunications
service providers, but may also necessitate additional costs and expenditures
for corporate management and administration, corporate expenses related to
being a public company, systems integration, employee relocation and severance
and facilities expansion. These various costs and possible cost-savings may
make comparison of future operating results with historical results difficult.
See "Management--Executive Compensation" and "--Employment Agreements."
PRO FORMA RESULTS OF OPERATIONS
The following discussions should be read in conjunction with the Selected Pro
Forma Combined Financial Data, the Selected Financial Data of the Operating
Businesses and the Financial Statements and related notes appearing elsewhere
in this Prospectus.
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Revenues. Revenues increased to $57.7 million in the six months ended June 30,
1996 from $42.6 million in the six months ended June 30, 1995, an increase of
$15.1 million, or 35.5%. The increase in revenues resulted primarily from
increased call volume from existing clients and the addition of new clients.
Cost of Services. Cost of services increased to $39.3 million in the six months
ended June 30, 1996 from $27.3 million in the six months ended June 30, 1995,
an increase of $12.0 million, or 43.8%. As a percentage of revenues, cost of
services increased to 68.1% in the six months ended June 30, 1996 from 64.2% in
the six months ended June 30, 1995. This percentage increase was primarily the
result of start-up costs associated with adding new capacity to support the
Operating Businesses' growth and a temporary shift at one of the Operating
21
<PAGE>
Businesses to lower margin services to fill capacity resulting from an
unexpected reduction in demand from a major client.
Selling, General and Administrative. Selling, general and administrative
expenses, excluding goodwill, increased to $11.0 million in the six months
ended June 30, 1996 from $8.7 million in the six months ended June 30, 1995, an
increase of $2.3 million, or 26.6%. The increase was primarily the result of
additional administrative, personnel and related corporate expenses associated
with the Operating Businesses' growth. As a percentage of revenues, selling,
general and administrative expenses decreased to 19.0% in the six months ended
June 30, 1996 from 20.3% in the six months ended June 30, 1995, primarily as a
result of the spreading of expenses over increased revenues.
LIQUIDITY AND CAPITAL RESOURCES
The Company will utilize proceeds from the Offering to repay substantially all
of the Operating Businesses' existing short-term and long-term debt. In
addition, TeleSpectrum Worldwide has obtained a commitment for a bank credit
facility with a borrowing limit of $50.0 million. The closing of the credit
facility is subject to: (i) the consummation of the Offering, with gross
proceeds to the Company of at least $144.0 million resulting in cash remaining
on the balance sheet of the Company (following consummation of the Acquisitions
and payment of the consideration therefor, and the repayment of indebtedness
assumed in the Acquisitions) of no less than $22.0 million; and (ii) customary
conditions. The Company does not believe that the credit facility will be
required to meet the Company's planned capital expenditures through at least
1997.
In connection with the acquisition of the assets of the SOMAR Operating
Business, the Company has agreed to expend up to $14.0 million, if necessary,
to meet that Operating Business's capital expenditures requirements, which
primarily relate to potential openings of additional call centers. The Company
may also be required to expend certain amounts in payment of the cash portion
of earn-out provisions and purchase price adjustments related to the
Acquisitions. The Company does not have any other commitments for significant
capital expenditures, although it anticipates expanding and upgrading existing
call centers and opening new call centers in the ordinary course of business.
The Company believes that funds generated from operations, together with the
net proceeds of the Offering, will be sufficient to finance its current
operations, potential obligations relating to the Acquisitions and planned
capital expenditure requirements at least through 1997. In the longer term, the
Company may require additional sources of liquidity to fund future growth. Such
sources of liquidity may include additional offerings or debt financings.
INFLATION
The Company does not believe that inflation has had a material effect on the
operating results of the Operating Businesses. However, there can be no
assurance that the Company's business will not be affected by inflation in the
future.
POTENTIAL FLUCTUATIONS IN QUARTERLY OPERATING RESULTS
The Operating Businesses have in the past experienced, and the Company could in
the future experience, quarterly variations in revenues, operating income and
cash flow as a result of many factors, including the timing and magnitude of
clients' marketing campaigns and customer service programs, the opening of new
call centers, the loss of a major client, weather-related interruptions,
additional selling, general and administrative expenses to acquire and support
new business, the timing and magnitude of required capital expenditures and
changes in the revenue mix among the Company's various service offerings or in
the relative contribution of the several Operating Businesses. In connection
with certain contracts, the Company could incur costs in periods prior to
recognizing revenues under those contracts. In addition, the Company must plan
its operating expenditures based on revenue forecasts, and a revenue shortfall
below such forecasts in any quarter would likely adversely affect the Company's
operating results for that quarter.
22
<PAGE>
SELECTED FINANCIAL DATA OF TELESPECTRUM WORLDWIDE AND THE OPERATING BUSINESSES
The selected financial data of TeleSpectrum Worldwide and the Operating
Businesses are derived in part from the more detailed financial statements and
notes thereto of TeleSpectrum Worldwide and the Operating Businesses included
elsewhere in this Prospectus. The balance sheet data at June 30, 1996, and the
statement of income data for the period from inception through June 30, 1996,
for TeleSpectrum Worldwide have been derived from the audited financial
statements included elsewhere herein. The balance sheet data as of December 31,
1994 and 1995, and the statement of income data for each of the three years in
the period ended December 31, 1995, for SOMAR, Harris and Reich have been
derived from the audited financial statements included elsewhere herein. The
balance sheet data as of December 31, 1991, 1992 and 1993, and the statement of
income data for each of the two years in the period ended December 31, 1992,
for SOMAR, Harris and Reich have been derived from unaudited data. The balance
sheet data at September 30, 1994 and 1995 and the statement of income data for
each of the two years in the period ended September 30, 1995 for The Response
Center have been derived from the audited financial statements included
elsewhere herein. The balance sheet data as of September 30, 1991, 1992 and
1993 and the statement of income data for each of three years in the period
ended September 30, 1993 for The Response Center have been derived from
unaudited data. The balance sheet data as of December 30, 1994 and December 29,
1995, and the statement of income data for the years ended December 31, 1993,
December 30, 1994 and December 29, 1995, for NBG have been derived from the
audited financial statements included elsewhere herein. The balance sheet data
as of December 27, 1991, December 25, 1992 and December 31, 1993 and the
statement of income data for December 27, 1991 and December 25, 1992, for NBG
have been derived from unaudited data. The balance sheet data at December 31,
1995, and the statement of income data for the year then ended, for
TeleSpectrum have been derived from the audited financial statements included
elsewhere herein. The balance sheet data as of December 31, 1991, 1992, 1993
and 1994, and the statement of income data for each of the four years in the
period ended December 31, 1994, for TeleSpectrum have been derived from
unaudited data.
The selected individual financial data of the Operating Businesses for the six
months ended June 30, 1995 and 1996 have been derived from the unaudited
financial statements included elsewhere herein. Such selected financial data
are not necessarily indicative of the results to be expected for the full year.
In the opinion of the Company, the unaudited financial statements of the
Operating Businesses reflect all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of the financial
position and results of operations of the Operating Businesses for those
periods in accordance with generally accepted accounting principles. Selected
Financial Data of the Operating Businesses should be read in conjunction with
the financial statements and notes thereto and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included elsewhere
in this Prospectus. All Operating Businesses have fiscal years ending December
31, with the exceptions of The Response Center, whose year end is September 30,
and NBG, which operates on a fifty-two, fifty-three week fiscal year ending on
the last Friday of the calendar year.
23
<PAGE>
<TABLE>
-------------------------------------------------
<CAPTION>
SIX MONTHS
ENDED
FISCAL YEAR ENDED JUNE 30,
1991 1992 1993 1994 1995 1995 1996
Dollars in thousands ------ ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENTS OF INCOME
DATA:
SOMAR
Revenues $4,674 $6,594 $10,703 $20,785 $31,900 $14,795 $20,803
Cost of services 2,712 5,194 7,731 15,623 25,048 11,221 16,888
Selling, general and
administrative
expenses 1,712 1,775 2,787 4,115 5,162 2,620 3,092
Operating income
(loss) 250 (375) 185 1,047 1,690 954 823
Income (loss) before
income taxes 217 (474) 96 627 979 655 379
NBG
Revenues $814 $ 2,875 $ 4,849 $ 5,778 $12,829 $ 5,599 $ 8,924
Cost of services 533 1,838 3,200 4,259 8,572 3,556 5,995
Selling, general and
administrative
expenses 169 1,028 1,289 1,443 2,115 1,046 1,389
Operating income 112 9 360 76 2,142 997 1,540
Income (loss) before
income taxes 112 (35) 285 33 2,106 967 1,518
Harris
Revenues $5,944 $5,734 $ 7,018 $10,115 $12,690 $ 7,525 $ 5,367
Cost of services 3,192 3,008 3,834 5,530 6,402 3,543 2,762
Selling, general and
administrative
expenses 2,223 2,273 2,473 2,680 2,986 1,431 1,521
Operating income 529 453 711 1,905 3,302 2,551 1,084
Income before income
taxes 322 281 569 1,719 3,158 2,454 1,051
Reich
Revenues $5,009 $3,252 $ 4,375 $ 5,424 $12,253 $ 5,521 $11,347
Cost of services 3,981 2,388 3,172 4,225 7,836 3,417 6,692
Selling, general and
administrative
expenses 1,429 1,019 1,111 976 2,534 665 1,199
Operating income
(loss) (401) (155) 92 223 1,883 1,439 3,456
Income (loss) before
income taxes (553) (220) 71 199 1,840 1,412 3,425
TeleSpectrum
Revenues $4,167 $6,827 $ 9,916 $ 9,386 $11,854 $ 5,592 $ 8,034
Cost of services 3,017 4,555 7,429 6,754 8,338 3,828 5,290
Selling, general and
administrative
expenses 1,144 1,622 2,628 2,636 3,072 1,652 2,121
Operating income
(loss) 6 650 (141) (4) 444 112 623
Income (loss) before
income taxes (81) 552 (240) (154) 278 27 504
The Response Center
Revenues $3,057 $3,946 $ 6,061 $ 6,183 $ 6,719 $ 3,556 $ 3,231
Cost of services 1,360 1,771 2,911 3,426 3,583 1,772 1,690
Selling, general and
administrative
expenses 661 972 2,806 2,800 2,717 1,617 1,296
Operating income
(loss) 1,036 1,203 344 (43) 419 167 245
Income (loss) before
income taxes 1,033 1,208 356 (37) 429 167 245
TeleSpectrum Worldwide
(1)
Revenues $ -- $ -- $ -- $ -- $ -- $ -- $ --
Cost of services -- -- -- -- -- -- --
Selling, general and
administrative
expenses -- -- -- -- -- -- 419
Operating income
(loss) -- -- -- -- -- -- (419)
Income (loss) before
income taxes -- -- -- -- -- -- (419)
</TABLE>
- --------
(1)TeleSpectrum Worldwide was incorporated on April 26, 1996; accordingly there
were no historical operating results prior to that date.
24
<PAGE>
<TABLE>
----------------------------------------
<CAPTION>
AT FISCAL YEAR END AT JUNE 30,
1991 1992 1993 1994 1995 1996
Dollars in thousands ------ ------ ------ ------ ------- -----------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
SOMAR
Cash and cash
equivalents $ 10 $ 1 $ 16 $ 2 $ 25 $ 4
Working capital
(deficit) (147) (280) (149) (242) (1,990) (2,129)
Total assets 1,644 1,694 2,014 5,526 10,792 15,287
Long-term debt,
including capital
lease obligations,
less current
portion 238 786 755 1,145 1,639 3,219
Stockholders' equity
(deficit) 123 (487) (391) 478 771 918
NBG
Cash and cash
equivalents $ 2 $ 14 $ 9 $ -- $ 700 $ 1,959
Working capital
(deficit) 12 (95) (102) (238) 1,270 2,411
Total assets 488 616 1,162 1,483 4,234 5,663
Long-term debt,
including capital
lease obligations,
less current
portion 202 208 265 277 454 760
Stockholders' equity 113 78 363 396 2,254 3,652
Harris
Cash and cash
equivalents $ 232 $ 469 $ 334 $ 975 $ 2,919 $ 877
Working capital 529 623 931 2,260 3,741 3,442
Total assets 5,365 5,679 7,101 8,773 10,803 9,401
Long-term debt less
current portion 1,948 2,006 1,818 1,863 1,530 1,390
Stockholders' equity 2,254 2,465 3,007 4,580 6,375 6,070
Reich
Cash and cash
equivalents $ 66 $ 30 $ 28 $ 31 $ 220 $ 371
Working capital
(deficit) (575) (220) (243) (59) 821 2,654
Total assets 1,175 795 827 1,111 4,318 6,360
Long-term debt,
including capital
lease obligations,
less current
portion 26 159 226 273 371 414
Stockholder's equity
(deficit) (637) (541) (470) (272) 1,668 4,363
TeleSpectrum
Cash and cash
equivalents $ 100 $ 330 $ 28 $ 163 $ 15 $ 605
Working capital
(deficit) (296) (97) (85) (241) 37 (34)
Total assets 2,051 3,217 3,224 3,182 3,549 5,590
Long-term debt,
including capital
lease obligations,
less current
portion 659 293 470 217 57 3
Stockholders' equity 92 765 481 409 687 1,191
The Response Center
Cash and cash
equivalents $ 293 $ 98 $ 213 $ 72 $ 282 $ 744
Working capital 1,053 1,508 1,179 1,111 1,665 1,802
Total assets 1,369 1,947 2,034 1,863 2,298 2,934
Long-term debt less
current portion -- -- -- -- -- --
Stockholders' equity 1,124 1,569 1,353 1,283 1,812 2,130
TeleSpectrum Worldwide
(1)
Cash and cash
equivalents $ -- $ -- $ -- $ -- $ -- $ --
Working capital
(deficit) -- -- -- -- -- (1,506)
Total assets -- -- -- -- -- 22,446
Long-term debt,
including capital
lease obligations,
less current
portion -- -- -- -- -- --
Stockholders' equity -- -- -- -- -- 20,440
</TABLE>
- --------
(1)TeleSpectrum Worldwide was incorporated on April 26, 1996; accordingly,
there were no historical results prior to that date.
25
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Selected
Financial Data of TeleSpectrum Worldwide and the Operating Businesses and the
Financial Statements and related notes thereto appearing elsewhere in this
Prospectus.
TELESPECTRUM WORLDWIDE
TeleSpectrum Worldwide was formed on April 26, 1996 and incurred a net loss for
the period from April 26, 1996 (inception) to June 30, 1996 of $419,000 of
general and administrative expenses. These expenses consisted of officers'
salary, an executive placement fee and other start-up expenses.
OPERATING BUSINESSES
Each of the Sellers (other than TeleSpectrum Training Services, Inc., an
affiliate of TeleSpectrum, Inc.) has elected to be treated as an "S
corporation" under Subchapter S of the Internal Revenue Code of 1986, as
amended (the "Code"). As a result, no Seller (other than TeleSpectrum Training
Services, Inc.) was subject to federal income taxes.
SOMAR
Founded in 1982, SOMAR is one of the nation's largest providers of outsourced
telephone-based sales, marketing and customer management services, principally
to clients in the insurance industry and also to clients in the financial
services, telecommunications and consumer products industries. SOMAR typically
receives payment on an hourly basis for services rendered.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the periods indicated.
<TABLE>
-------------------------------------------------------------------------------
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands ------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $10,703 100.0% $20,785 100.0% $31,900 100.0% $14,795 100.0% $20,803 100.0%
Cost of services 7,731 72.2 15,623 75.2 25,048 78.5 11,221 75.8 16,888 81.2
Selling, general and
administrative
expenses 2,787 26.1 4,115 19.8 5,162 16.2 2,620 17.8 3,092 14.9
------- ------- ------- ------- -------
Total operating
expenses 10,518 98.3 19,738 95.0 30,210 94.7 13,841 93.6 19,980 96.1
Operating income 185 1.7 1,047 5.0 1,690 5.3 954 6.4 823 3.9
Interest expense, net 89 0.8 420 2.0 711 2.2 299 2.0 444 2.1
------- ------- ------- ------- -------
Pre-tax income $ 96 0.9 $ 627 3.0 $ 979 3.1 $ 655 4.4 $ 379 1.8
======= ======= ======= ======= =======
</TABLE>
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Revenues. Revenues increased to $20.8 million in the six months ended June 30,
1996 from $14.8 million in the six months ended June 30, 1995, an increase of
$6.0 million, or 40.6%. The increase in revenues resulted primarily from
increased call volume from existing insurance clients and the addition of new
telecommunications clients.
Cost of Services. Cost of services, which primarily consists of labor,
telephone and other call center-related operating and support expenses,
increased to $16.9 million in the six months ended June 30, 1996 from $11.2
million in the six months ended June 30, 1995, an increase of $5.7 million, or
50.5%. As a percentage of revenues, cost of services increased to 81.2% in the
six months ended June 30, 1996 from 75.8% in the six months ended June 30,
1995. This percentage increase was primarily the result of a temporary shift to
lower margin services to fill capacity resulting from an unexpected reduction
in demand from SOMAR's largest client, costs associated with revenues lost due
to inclement weather and start-up costs associated with the opening of the
Beckley, West Virginia call center on March 1, 1996. Start-up costs included
recruiting and education of new call center management and staff.
26
<PAGE>
Selling, General and Administrative. Selling, general and administrative
expenses increased to $3.1 million in the six months ended June 30, 1996 from
$2.6 million in the six months ended June 30, 1995, an increase of $0.5
million, or 18.0%. The increase was primarily the result of additional
administrative, personnel and related corporate expenses associated with
SOMAR's growth. As a percentage of revenues, selling, general and
administrative expenses decreased to 14.9% in the six months ended June 30,
1996 from 17.8% in the six months ended June 30, 1995, primarily as a result of
the spreading of expenses over increased revenues.
Interest Expenses, Net. Interest expense, net, increased to $0.4 million in the
six months ended June 30, 1996 from $0.3 million in six months ended June 30,
1995, an increase of $0.1 million, or 48.5%. The increase resulted from higher
average borrowings outstanding during the six months ended June 30, 1996
compared with the six months ended June 30, 1995. The borrowed funds were used
primarily to finance working capital requirements, to open the Beckley, West
Virginia call center and to purchase new equipment. As a percentage of
revenues, interest expense, net, increased to 2.1% in the six months ended June
30, 1996 from 2.0% in the six months ended June 30, 1995.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Revenues. Revenues increased to $31.9 million in 1995 from $20.8 million in
1994, an increase of $11.1 million, or 53.5%. This increase primarily resulted
from increased call volume from existing insurance clients and the addition of
new insurance clients.
Cost of Services. Cost of services increased to $25.0 million in 1995 from
$15.6 million in 1994, an increase of $9.4 million, or 60.3%. As a percentage
of revenues, cost of services increased to 78.5% in 1995 from 75.2% in 1994.
This increase resulted primarily from start-up costs related to the opening of
two new call centers in Huntington, West Virginia in March and August 1995, and
a delay in anticipated new business. The start-up costs included new management
and staff, insurance licensing and education.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $5.2 million in 1995 from $4.1 million in 1994, an
increase of $1.1 million, or 25.4%. This increase primarily resulted from
additional administrative, personnel and corporate expenses associated with the
growth in existing facilities. As a percentage of revenues, selling, general
and administrative expenses decreased to 16.2% in 1995 from 19.8% in 1994,
primarily as a result of the spreading of expenses over increased revenues.
Interest Expense, Net. Interest expense, net, increased to $0.7 million in 1995
from $0.4 million in 1994, an increase of $0.3 million, or 69.3%. This increase
resulted from higher average borrowings outstanding during 1995 compared to
1994. The borrowed funds were used primarily to finance working capital
requirements, to open the Huntington, West Virginia call centers and to
purchase new equipment. As a percentage of revenues, interest expense, net,
increased to 2.2% in 1995 from 2.0% in 1994.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Revenues. Revenues increased to $20.8 million in 1994 from $10.7 million in
1993, an increase of $10.1 million, or 94.2%. This increase primarily resulted
from increased call volume from existing clients and the addition of new
clients, primarily in the financial services industry.
Cost of Services. Cost of services increased to $15.6 million in 1994 from $7.7
million in 1993, an increase of $7.9 million, or 102.1%. As a percentage of
revenues, cost of services increased to 75.2% in 1994 from 72.2% in 1993. This
increase resulted primarily from start-up costs related to the opening of two
new call centers in Fayetteville, North Carolina and Asheville, North Carolina
in January 1994 and September 1994, respectively. These costs included new
management and staff, insurance licensing and education.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $4.1 million in 1994 from $2.8 million in fiscal 1993, an
increase of $1.3 million, or 47.7%. This increase primarily resulted from
additional administrative, personnel and corporate expenses associated with the
growth in existing facilities. As a percentage of revenues, selling, general
and administrative expenses decreased to 19.8% in 1994 from 26.1% in 1993,
primarily as a result of the spreading of expenses over the increased revenues.
27
<PAGE>
Interest Expense, Net. Interest expense, net, increased to $0.4 million in 1994
from $0.1 million in 1993, an increase of $0.3 million. This increase resulted
from higher average borrowings outstanding during 1994 compared to 1993. The
borrowed funds were primarily to finance working capital requirements, to open
the Asheville and Fayetteville, North Carolina call centers and to purchase new
equipment. As a percentage of revenues, interest expense, net, increased to
2.0% in 1994 from 0.8% in 1993.
Liquidity and Capital Resources
SOMAR's principal source of liquidity has been available borrowings under
credit facilities. The following table sets forth selected information from
SOMAR's statements of cash flows for the periods indicated:
<TABLE>
-------------------------------------------------
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands ----- ----- ------- ------ -----
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities $ 254 $ 57 $ 441 $ 142 $ (720)
Net cash provided by (used in)
investment activities (444) 346 (2,870) (1,186) (657)
Net cash provided by (used in)
financing activities 205 (417) 2,452 1,080 1,356
</TABLE>
From 1993 through the end of 1995, SOMAR generated $0.8 million in net cash
from operating activities. During this period, $3.2 million of cash was
generated primarily from pre-tax income plus non-cash charges, and was reduced
by $2.4 million of cash used to fund increases in working capital resulting
from the increase in revenues over the same period. Net cash used in the six
months ended June 30, 1996 principally reflects increases in accounts
receivable resulting from the increase in revenues.
Cash used in investment activities was attributable to equipment and other
capital to support SOMAR's growth, namely through additions to SOMAR's number
of call centers and expenditures for information technology equipment and
through investments in database management, telephone systems and management
information systems. From the beginning of 1993 through June 30, 1996, SOMAR
opened five new call centers, adding approximately 506 workstations. Capital
expenditures during this period of $7.5 million were funded with borrowings and
capitalized leases.
Financing activities have included distributions to shareholders and borrowing
activity. Dividends paid to shareholders from the beginning of 1993 through
June 30, 1996 of $1.6 million were primarily payments to cover shareholder
taxes related to SOMAR's S-corporation status.
On December 29, 1995, SOMAR entered into an agreement with a bank for a one-
year revolving line of credit (the "Credit Facility") which now has a maximum
borrowing limit applicable to SOMAR of $6.5 million and an interest rate equal
to the bank's prime rate plus one percentage point. The Credit Facility is
secured by trade accounts receivable, equipment and other assets of SOMAR. The
agreement terminates on January 1, 1997, and contains certain restrictive
covenants which, among other things, require the maintenance of certain
financial ratios, limit capital expenditures and bonuses and restrict future
indebtedness.
On December 31, 1995, SOMAR borrowed $1.0 million from a bank on a short-term
basis in connection with the transition of its line of credit from another
lender. This short-term note was repaid on January 3, 1996, with proceeds from
the new Credit Facility.
From 1993 through June 30, 1996, SOMAR financed certain equipment purchases
through term financing agreements and capital leases with various lending
institutions and a government agency. The financing agreements are secured by
the related equipment and other assets of SOMAR. As of June 30, 1996,
outstanding obligations under term financing agreements with the various
lending institutions totaled $2.9 million, with a weighted average interest
rate of 9.9%, and outstanding capital leases were $3.2 million, with a weighted
average interest rate of 9.4%. The outstanding amounts under these financing
arrangements and leases will be paid in connection with the closing of the
Offering. On July 5, 1996 SOMAR obtained term financing of $0.7 million with an
annual interest rate of 4.0% from the West Virginia Economic Development
Authority ("WVEDA"). This financing replaced $0.7 million of term financing
used to finance SOMAR's Huntington, West Virginia call centers.
28
<PAGE>
NBG
Founded in 1991, NBG provides outbound telemarketing services to clients in the
financial services, telecommunications and high technology industries. NBG's
revenues are derived primarily from service fees charged to clients on a
performance/results basis, rather than on an hourly basis.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the periods indicated.
<TABLE>
<CAPTION>
---------------------------------------------------------------------
YEAR ENDED TWENTY-SIX WEEKS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
Dollars in thousands ------------ ------------ ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $4,849 100.0% $5,778 100.0% $12,829 100.0% $5,599 100.0% $8,924 100.0%
Cost of services 3,200 66.0 4,259 73.7 8,572 66.8 3,556 63.5 5,995 67.2
Selling, general and
administrative
expenses 1,289 26.6 1,443 25.0 2,115 16.5 1,046 18.7 1,389 15.5
------ ------ ------- ------ ------
Total operating
expenses 4,489 92.6 5,702 98.7 10,687 83.3 4,602 82.2 7,384 82.7
Operating income 360 7.4 76 1.3 2,142 16.7 997 17.8 1,540 17.3
Interest expense, net 75 1.5 43 0.7 36 0.3 30 0.5 22 0.3
------ ------ ------- ------ ------
Pre-tax income $ 285 5.9 $ 33 0.6 $ 2,106 16.4 $ 967 17.3 $1,518 17.0
====== ====== ======= ====== ======
</TABLE>
Twenty-Six Weeks Ended June 28, 1996 Compared to Twenty-Six Weeks Ended June
30, 1995
Revenues. Revenues increased to $8.9 million in the twenty-six weeks ended June
28, 1996 from $5.6 million in the twenty-six weeks ended June 30, 1995, an
increase of $3.3 million, or 59.4%. This increase was primarily a result of an
increase in revenues from two of NBG's most significant clients to $8.3 million
in the twenty-six weeks ended June 28, 1996 from $5.1 million in the twenty-six
weeks ended June 30, 1995, an increase of $3.2 million, or 62.7%. Revenues from
these clients increased primarily as a result of increased telemarketing call
volume.
Cost of Services. Cost of services, which primarily consists of labor,
telephone and other call center-related operating and support expenses,
increased to $6.0 million in the twenty-six weeks ended June 28, 1996 from $3.6
million in the twenty-six weeks ended June 30, 1995, an increase of $2.4
million, or 68.6%. As a percentage of revenues, cost of services increased to
67.2% in the twenty-six weeks ended June 28, 1996 from 63.5% in the twenty-six
weeks ended June 30, 1995. This increase primarily resulted from higher
performance-based revenue per unit of cost in the twenty-six weeks ended June
30, 1995 than in the twenty-six weeks ended June 28, 1996.
Selling, General, and Administrative. Selling, general, and administrative
expenses increased to $1.4 million in the twenty-six weeks ended June 28, 1996
from $1.0 million in the twenty-six weeks ended June 30, 1995, an increase of
$0.4 million, or 32.8%. As a percentage of revenues, selling, general, and
administrative expenses decreased to 15.5% in the twenty-six weeks ended June
28, 1996 from 18.7% in the twenty-six weeks ended June 30, 1995, primarily as a
result of the spreading of expenses over increased revenues.
Year Ended December 29, 1995 Compared to Year Ended December 30, 1994
Revenues. Revenues increased to $12.8 million in 1995 from $5.8 million in
1994, an increase of $7.0 million, or 122.0%. This increase was primarily a
result of an increase in revenues from two of NBG's most significant clients to
$11.9 million in 1995 from $5.2 million in 1994, an increase of $6.7 million,
or 128.9%. Revenues from these clients increased primarily as a result of
increased telemarketing call volume and in particular, a full year of revenues
in 1995 from one of these clients, compared to approximately four months of
revenues in 1994. The remaining increase was due to the addition of several
clients in the high technology and financial services industries.
29
<PAGE>
Cost of Services. Cost of services increased to $8.6 million in 1995 from $4.3
million in 1994, an increase of $4.3 million, or 101.3%. As a percentage of
revenues, cost of services decreased to 66.8% in 1995 from 73.7% in 1994. This
decrease primarily resulted from the spreading of certain fixed costs over
increased revenues.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $2.1 million in 1995 from $1.4 million in 1994, an
increase of $0.7 million, or 46.6%. This increase primarily resulted from
additional administrative, personnel and related corporate expenses associated
with NBG's growth. As a percentage of revenues, selling, general and
administrative expenses decreased to 16.5% in 1995 from 25.0% in 1994,
primarily as a result of the spreading of expenses over increased revenues.
Year Ended December 30, 1994 Compared to Year Ended December 31, 1993
Revenues. Revenues increased to $5.8 million in 1994 from $4.8 million in 1993,
an increase of $1.0 million, or 19.2%. This increase was primarily a result of
an increase in revenues from two of NBG's most significant clients to $5.2
million in 1994 from $4.6 million in 1993. The remaining increase was a result
of increased telemarketing call volume from other existing clients and the
addition of new clients.
Cost of Services. Cost of services increased to $4.3 million in 1994 from $3.2
million in 1993, an increase of $1.1 million, or 33.1%. As a percentage of
revenues, cost of services increased to 73.7% in 1994 from 66.0% in 1993. This
increase resulted primarily from investments to increase capacity.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $1.4 million in 1994 from $1.3 million in 1993, an
increase of $0.1 million, or 11.9%. This increase resulted primarily from
additional administrative, personnel and related corporate expenses associated
with NBG's growth. As a percentage of revenues, selling, general and
administrative expenses decreased to 25.0% in 1994 from 26.6% in 1993,
primarily as a result of the spreading of expenses over increased revenues.
Liquidity and Capital Resources
NBG's primary sources of liquidity have historically been cash flows from
operating activities and available borrowing capacity under credit facilities.
The following table sets forth selected information from NBG's statements of
cash flows for the period indicated.
<TABLE>
-----------------------------------------------------------------
<CAPTION>
YEAR ENDED TWENTY-SIX WEEKS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
Dollars in thousands ------------ ------------ ------------ ----------- -----------
<S> <C> <C> <C> <C> <C>
Net cash provided by
(used in) operating
activities $ 280 $215 $1,383 $ 1,287 $ 2,163
Net cash provided by
(used in) investing
activities (78) (42) (594) (143) (52)
Net cash provided by
(used in) financing
activities (207) (182) (89) (216) (852)
</TABLE>
From 1993 through the twenty-six weeks ended June 28, 1996, NBG generated net
cash of $4.0 million from operating activities. This amount was generated
primarily from pre-tax income plus depreciation and amortization.
Historically, net cash used in investing activities has been expended for
equipment and other capital to support expansion of NBG's call center
operations, including additions to NBG's data management, telephone and
management information systems. Financing activities have included limited
borrowings, and distributions to stockholders. NBG finances the majority of its
equipment purchases with capital leases. The Company has a line of credit with
a bank, which expires in May 1997 and provides for a maximum borrowing of
$500,000. As of June 28, 1996, there were no outstanding borrowings under this
line of credit.
30
<PAGE>
HARRIS
Founded in 1931, Harris is a regional, vertically-integrated direct mail and
fulfillment organization which provides its services primarily to companies in
the pharmaceuticals and healthcare, financial services and insurance
industries. Harris operates two wholly-owned subsidiaries, Harris Direct
Marketing, Inc. ("HDM") and Harris Fulfillment, Inc. ("HFI"). HDM clients and
certain of HFI clients compensate Harris on a per project basis.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the periods indicated.
<TABLE>
---------------------------------------------------------------------
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands ------------ ------------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $7,018 100.0% $10,115 100.0% $12,690 100.0% $7,525 100.0% $5,367 100.0%
Cost of services 3,834 54.6 5,530 54.7 6,402 50.5 3,543 47.1 2,762 51.5
Selling, general and
administrative
expenses 2,473 35.3 2,680 26.5 2,986 23.5 1,431 19.0 1,521 28.3
------ ------- ------- ------ ------
Total operating
expenses 6,307 89.9 8,210 81.2 9,388 74.0 4,974 66.1 4,283 79.8
Operating income 711 10.1 1,905 18.8 3,302 26.0 2,551 33.9 1,084 20.2
Interest expense, net 142 2.0 186 1.8 144 1.1 97 1.3 33 0.6
------ ------- ------- ------ ------
Pre-tax income $ 569 8.1 $ 1,719 17.0 $ 3,158 24.9 $2,454 32.6 $1,051 19.6
====== ======= ======= ====== ======
</TABLE>
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Revenues. Revenues decreased to $5.4 million in the six months ended June 30,
1996 from $7.5 million in the six months ended June 30, 1995, a decrease of
$2.1 million, or 28.7%. This decrease resulted from a 30.1% decrease in HFI
revenue and a 26.2% decrease in HDM revenue. The decrease in HFI revenue to
$3.4 million in the six months ended June 30, 1996 from $4.8 million in the six
months ended June 30, 1995 was primarily a result of a $1.2 million decrease in
revenue from a single pharmaceutical client. The decrease in HDM revenue to
$2.0 million in the six months ended June 30, 1996 from $2.7 million in the six
months ended June 30, 1995 was due to the loss of $0.5 million in revenue
resulting from the loss of a significant client and a $0.4 million decrease in
revenue from another significant client, partially offset by revenue growth in
the remaining HDM client base and revenue generated from new clients.
Cost of Services. Cost of services, which primarily consists of labor and other
direct mail and fulfillment-related operating and support expenses, decreased
to $2.8 million in the six months ended June 30, 1996 from $3.5 million in the
six months ended June 30, 1995, a decrease of $0.7 million, or 22.0%. As a
percentage of revenues, cost of services increased to 51.5% in the six months
ended June 30, 1996 from 47.1% in the six months ended June 30, 1995. This
increase primarily resulted from the spreading of certain fixed costs of HFI's
operations over decreased revenues.
Selling, General and Administrative. Selling, general and administrative
expenses remained relatively constant at $1.5 million in the six months ended
June 30, 1996 and $1.4 million in the six months ended June 30, 1995. As a
percentage of revenues, selling, general and administrative expenses increased
to 28.3% in the six months ended June 30, 1996 from 19.0% in the six months
ended June 30, 1995. This increase was primarily a result of a decrease in
revenues at HFI. Selling, general and administrative expenses remained
relatively consistent at HDM as a percentage of HDM revenues for the six months
ended June 30, 1996 compared to the six months ended June 30, 1995, as HDM was
able to reduce its fixed costs at a rate consistent with the decrease in HDM
revenue.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Revenues. Revenues increased to $12.7 million in 1995 from $10.1 million in
1994, an increase of $2.6 million, or 25.5%. This increase primarily resulted
from an increase in HFI revenues to $8.3 million in 1995 from $5.4 million in
1994. The increase in HFI revenues reflected a $2.4 million increase generated
from a single pharmaceuticals client and a 23.5% increase from the remaining
HFI client base. The increase in HFI revenues
31
<PAGE>
was partly offset by a decrease in HDM revenues to $4.6 million in 1995 from
$5.0 million in 1994, primarily as a result of the loss of two significant
direct mail clients, partially offset by revenues from several new clients.
Cost of Services. Cost of services increased to $6.4 million in 1995 from $5.5
million in 1994, an increase of $0.9 million, or 15.8%. As a percentage of
revenues, cost of services decreased to 50.5% in 1995 from 54.7% in 1994. This
decrease primarily resulted from the spreading of certain fixed costs of HFI's
operations over increased revenues. HDM's cost of services as a percentage of
revenues in 1995 remained consistent with that of 1994.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $3.0 million in 1995 from $2.7 million in 1994, an
increase of $0.3 million, or 11.4%. This increase primarily resulted from
additional infrastructure needed to support Harris's growth. As a percentage of
revenues, selling, general and administrative expenses decreased to 23.5% in
1995 from 26.5% in 1994. This decrease was primarily a result of the spreading
of expenses over increased revenues.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Revenues. Revenues increased to $10.1 million in 1994 from $7.0 million in
1993, an increase of $3.1 million, or 44.1%. This increase primarily resulted
from an increase in HFI revenues to $5.4 million in 1994 from $3.2 million in
1993, $2.2 million of which was generated from an HFI pharmaceuticals client.
HDM revenues increased to $5.0 million in 1994 from $4.0 million in 1993. This
increase was primarily a result of an investment made in printing and insertion
equipment which generated an additional $0.8 million in HDM revenues from HDM's
two most significant clients.
Cost of Services. Cost of services increased to $5.5 million in 1994 from $3.8
million in 1993, an increase of $1.7 million, or 44.2%. As a percentage of
revenues, cost of services remained stable.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $2.7 million in 1994 from $2.5 million in 1993, an
increase of $0.2 million, or 8.4%. The increase was primarily due to additional
infrastructure needed to support Harris's growth. As a percentage of revenues,
selling, general and administrative expenses decreased to 26.5% in 1994 from
35.3% in 1993, primarily as a result of the spreading of expenses over
increased revenues.
Liquidity and Capital Resources
Harris's primary sources of liquidity have been cash flows from operating
activities, availability of borrowings on its lines of credit, and bank
financing for equipment purchases. The following table sets forth selected
information from Harris's statements of cash flows for the periods indicated.
<TABLE>
-------------------------------------------------
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands ------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities $ 230 $ 1,883 $ 4,149 $ 2,136 $ (251)
Net cash provided by (used in)
investing activities (429) (903) (460) (325) (305)
Net cash provided by (used in)
financing activities 64 (339) (1,745) (1,234) (1,486)
</TABLE>
From 1993 through June 30, 1996, Harris generated $6.0 million in net cash from
operating activities. During this period, $8.7 million of cash was generated
from pre-tax income plus non-cash charges, reduced by $2.7 million of cash used
for working capital. Harris's working capital needs have been supplemented by
advances from customers for freight and postage. In the six months ended June
30, 1996, Harris used net cash in operating activities due to the timing of its
clients' payments.
32
<PAGE>
Net cash used in investing activities has supported HDM equipment purchases and
growth of HFI. Harris has incurred significant capital equipment expenditures
in its HDM operations, including expenditures for printing, insertion and
commingler equipment. In 1993, Harris generated $0.3 million in proceeds from
the sale of certain property and equipment.
Financing activities have included payments on HDM's facility mortgage and
distributions to stockholders. Stockholder distributions totaled $27,000, $0.1
million, $1.4 million and $1.4 million in 1993, 1994, 1995 and the six months
ended June 30, 1996, respectively. Harris's two lines of credit expired in
April 1996 and Harris did not elect to renew them. Harris has secured several
equipment loans from a bank, which are being paid down by cash generated from
operating activities.
33
<PAGE>
REICH
Founded in 1978, Reich offers telemarketing services to clients in the
financial services, telecommunications and insurance industries. Reich also
offers additional value-added services to its clients, such as marketing
planning, database marketing, creative development, situation analysis, in-
house copy and art services and production management. Reich earns revenue for
telemarketing services on an hourly basis and is compensated for planning and
marketing services on a fee-for-service basis.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the periods indicated.
<TABLE>
-------------------------------------------------------------------------------
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands ------------ ------------ ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $4,375 100.0% $5,424 100.0% $12,253 100.0% $5,521 100.0% $11,347 100.0%
Cost of services 3,172 72.5 4,225 77.9 7,836 63.9 3,417 61.9 6,692 58.9
Selling, general and
administrative expenses 1,111 25.4 976 18.0 2,534 20.7 665 12.0 1,199 10.6
------ ------ ------- ------ -------
Total operating
expenses 4,283 97.9 5,201 95.9 10,370 84.6 4,082 73.9 7,891 69.5
Operating income 92 2.1 223 4.1 1,883 15.4 1,439 26.1 3,456 30.5
Interest expense, net 21 0.5 24 0.4 43 0.4 27 0.5 31 0.3
------ ------ ------- ------ -------
Pre-tax income $ 71 1.6 $ 199 3.7 $ 1,840 15.0 $1,412 25.6 $ 3,425 30.2
====== ====== ======= ====== =======
</TABLE>
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Revenues. Revenues increased to $11.3 million in the six months ended June 30,
1996 from $5.5 million in the six months ended June 30, 1995, an increase of
$5.8 million, or 106.0%. This increase primarily resulted from increased
telemarketing call volume from two existing clients in the financial services
industry and one existing client in the telecommunications industry. Reich's
call center in West Virginia, which opened in May 1995, and the relocation and
expansion of its Delaware and West Virginia call centers provided additional
capacity for the increased call volume.
Cost of Services. Cost of services, which primarily consists of labor,
telephone and other call center-related operating, support, relocation and
expansion expenses, increased to $6.7 million for the six months ended June 30,
1996 from $3.4 million for the six months ended June 30, 1995, an increase of
$3.3 million or 95.8%. As a percentage of revenues, cost of services decreased
to 58.9% in the six months ended June 30, 1996 from 61.9% in the six months
ended June 30, 1995. This decrease primarily resulted from lower long-distance
service rates and a lower average cost of labor.
Selling, General and Administrative. Selling, general and administrative costs
increased to $1.2 million for the six months ended June 30, 1996 from $0.7
million for the six months ended June 30, 1995, an increase of $0.5 million, or
80.3%. The increase primarily resulted from increases in salaries and related
expenses attributable to the existing personnel as well as personnel added to
the executive management team. The remaining increase was primarily the result
of increases in general and administrative costs associated with the increased
business activity.As a percentage of revenues, selling, general and
administrative expenses decreased to 10.6% for the six months ended June 30,
1996 from 12.0% for the six months ended June 30, 1995 primarily as a result of
the spreading of expenses over increased revenues.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Revenues. Revenues increased to $12.3 million in 1995 from $5.4 million in
1994, an increase of $6.9 million, or 126.0%. This increase primarily resulted
from increased telemarketing call volume from a financial services client and
the addition of new clients in the telecommunications and financial services
industries. The opening of Reich's call center in West Virginia in May 1995
provided the capacity for the increased call volume. Revenues from non-
telemarketing-related services decreased to $0.9 million in 1995 from $1.3
million in 1994, as Reich focused its attention on telemarketing activities.
34
<PAGE>
Cost of Services. Cost of services increased to $7.8 million in 1995 from $4.2
million in 1994, an increase of $3.6 million, or 85.5%. As a percentage of
revenues, however, cost of services decreased to 63.9% in 1995 from 77.9%. This
decrease primarily resulted from the increased utilization of existing
capacity.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $2.5 million in 1995 from $1.0 million in 1994, an
increase of $1.5 million, or 160.0%. The majority of this increase was due to a
one-time $0.8 million increase in compensation to Reich's president and sole
shareholder to $0.9 million in 1995 from $0.1 million in 1994. The remaining
increase was primarily due to salaries and related expenses attributable to
personnel added to the executive management team in 1995, as well as additional
general and administrative costs associated with the increase in business
activity.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Revenues. Revenues increased to $5.4 million in 1994 from $4.4 million in 1993,
an increase of $1.0 million, or 24.0%. This increase primarily resulted from
increased telemarketing call volume from financial services clients.
Cost of Services. Cost of services increased to $4.2 million in 1994 from $3.2
million in 1993, an increase of $1.0 million, or 33.2%. As a percentage of
revenues, cost of services increased to 77.9% in 1994 from 72.5% in 1993. This
increase primarily resulted from increased costs for additional management and
other infrastructure required to handle the revenue growth. Other
infrastructure costs were primarily attributable to additional account
management, information services and operation management personnel.
Selling, General and Administrative. Selling, general and administrative
expenses decreased to $1.0 million in 1994 from $1.1 million in 1993, a
decrease of $0.1 million, or 12.2%. As a percentage of revenues, selling,
general and administrative expenses decreased to 18.0% in 1994 from 25.4% in
1993. This decrease primarily resulted from enhanced control and management of
expenses, particularly the reduction of administrative and office support
expenses.
Liquidity and Capital Resources
Reich's principal sources of liquidity have been cash flows from operating
activities and available borrowing capacity under credit facilities and capital
leases. The following table sets forth selected information from Reich's
statements of cash flows for the periods indicated.
<TABLE>
<CAPTION> --------------------------------------------------------
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
1993 1994 1995 1995 1996
------- -------- -------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Dollars in thousands
Net cash provided by
(used in)
operating
activities $ (4) $ 219 $ 745 $ 1,091 $ 2,326
Net cash provided by
(used in)
investing
activities (37) (138) (1,212) (595) (829)
Net cash provided by
(used in)
financing
activities 39 (78) 656 (115) (1,346)
</TABLE>
From 1993 through June 30, 1996, Reich's net cash provided by operating
activities of $3.3 million was primarily generated from pre-tax income. During
the period, operating cash flow was negatively impacted by increases in working
capital (excluding cash and current maturities on long-term debt). The
additional working capital was principally related to the increase in accounts
receivable that resulted from the growth in the telemarketing business over the
same period.
Net cash used in investing activities was attributable to equipment and other
capital to support the opening of a new call center and relocation and
expansion of Reich's Delaware and West Virginia call center facilities. The
significant increase in 1995 capital expenditures related to the opening of
Reich's new call center operation in
35
<PAGE>
West Virginia. The continued capital expenditures during the six months ended
June 30, 1996 related to the expansion and relocation of the Delaware and West
Virginia call center facilities.
Financing activities primarily have included borrowing activities under various
long-term debt arrangements, capital leases and shareholder loans. In December
1995, Reich received commitments for low interest loans of up to $0.7 million
from the City of Wheeling, West Virginia and the WVEDA. These loans will be
used to fund the cost associated with the relocation and expansion of Reich's
West Virginia call center which was originally funded by operating cash flows.
36
<PAGE>
TELESPECTRUM
Founded in 1984, TeleSpectrum specializes in providing both inbound and
outbound telemarketing services to the high technology, pharmaceuticals and
healthcare and consumer products industries. TeleSpectrum's revenues primarily
derive from inbound teleservices and call center management services.
TeleSpectrum is typically paid on an hourly basis for telemarketing services
and on a negotiated, project-by-project basis for other services.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the period indicated.
<TABLE>
<CAPTION>
------------------------------------------------------------------------
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
1993 1994 1995 1995 1996
Dollars in thousands -------------- ------------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $ 9,916 100.0% $9,386 100.0% $11,854 100.0% $5,592 100.0% $8,034 100.0%
Cost of services 7,429 74.9 6,754 72.0 8,338 70.2 3,828 68.5 5,290 65.8
Selling, general and
administrative
expenses 2,628 26.5 2,636 28.0 3,072 26.0 1,652 29.5 2,121 26.4
------- ------ ------- ------ ------
Total operating
expenses 10,057 101.4 9,390 100.0 11,410 96.2 5,480 98.0 7,411 92.2
Operating income
(loss) (141) (1.4) (4) -- 444 3.8 112 2.0 623 7.8
Interest expense, net 99 1.0 150 1.6 184 1.6 85 1.5 119 1.5
------- ------ ------- ------ ------
Pre-tax income (loss) $ (240) (2.4) $ (154) (1.6) $ 260 2.2 $ 27 0.5 $ 504 6.3
======= ====== ======= ====== ======
</TABLE>
Six Months Ended June 30, 1996 Compared to Six Months Ended June 30, 1995
Revenues. Revenues increased to $8.0 million in the six months ended June 30,
1996 from $5.6 million in the six months ended June 30, 1995, an increase of
$2.4 million, or 43.7%. This increase primarily resulted from increased call
volume from existing clients and the addition of several new clients.
Cost of Services. Cost of services, which primarily consists of labor,
telephone and other call center-related operating and support expenses,
increased to $5.3 million in the six months ended June 30, 1996 from $3.8
million in the six months ended June 30, 1995, an increase of $1.5 million, or
38.2%. As a percentage of revenues, cost of services decreased to 65.8% in the
six months ended June 30, 1996 from 68.5% in the six months ended June 30,
1995. This decrease primarily resulted from increased utilization of existing
capacity.
Selling, General and Administrative. Selling, general and administrative
expenses increased to $2.1 million in the six months ended June 30, 1996 from
$1.7 million in the six months ended June 30, 1995, an increase of $0.4
million, or 28.4%. This increase was principally the result of additional
administrative, personnel and related corporate expenses associated with
TeleSpectrum's growth. As a percentage of revenues, selling, general and
administrative expenses decreased to 26.4% in 1996 from 29.5% in 1995,
primarily as a result of the spreading of expenses over increased revenues.
Interest Expense, Net. Interest expense, net, increased to $119,000 in the six
months ended June 30, 1996 from $85,000 in the six months ended June 30, 1995.
This increase primarily reflected higher average outstanding borrowings during
the six months ended June 30, 1996 compared to borrowings in the six months
ended June 30, 1995. Borrowings were used to finance working capital needs.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Revenues. Revenues increased to $11.9 million in 1995 from $9.4 million in
1994, an increase of $2.5 million, or 26.3%. This increase primarily resulted
from increased call volume from existing inbound clients and the addition of
new inbound clients, principally in the pharmaceuticals and healthcare
industry.
Cost of Services. Cost of services increased to $8.3 million in 1995 from $6.8
million in 1994, an increase of $1.5 million, or 23.5%. As a percentage of
revenues, cost of services decreased to 70.2% in 1995 from 72.0% in 1994,
primarily as a result of the spreading of fixed costs over increased revenues.
37
<PAGE>
Selling, General and Administrative. Selling, general and administrative
expenses increased to $3.1 million in 1995 from $2.6 million in 1994, an
increase of $0.5 million, or 16.5%. This increase primarily resulted from
additional administrative, personnel and corporate expenses associated with the
growth in revenues. As a percentage of revenues, selling, general and
administrative expenses decreased to 26.0% in 1995 from 28.0% in 1994,
primarily as a result of the spreading of expenses over increased revenues.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Revenues. Revenues decreased to $9.4 million in 1994 from $9.9 million in 1993,
a decrease of $0.5 million, or 5.3%. This decrease was primarily the result of
a loss of revenues of approximately $0.4 million from a pharmaceuticals and
healthcare client.
Cost of Services. Cost of services decreased to $6.8 million in 1994 from $7.4
million in 1993, a decrease of $0.8 million, or 9.1%. As a percentage of
revenues, cost of services decreased to 72.0% in 1994 from 74.9% in 1993,
primarily as a result of the closing of a software products distribution
division.
Selling, General and Administrative. Selling, general and administrative
expenses were $2.6 million in 1993 and 1994. As a percentage of revenues,
selling, general and administrative expenses increased to 28.0% in 1994 from
26.5% in 1993, primarily as a result of the decrease in revenues.
Liquidity and Capital Resources
TeleSpectrum's primary sources of liquidity have been cash flows from operating
activities and available borrowing capacity under credit facilities. The
following sets forth selected information from TeleSpectrum's statement of cash
flows for the periods indicated:
<TABLE>
--------------------------------------------
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
Dollars in thousands 1993 1994 1995 1995 1996
<S> <C> <C> <C> <C> <C>
--------- --------- -------- --------- ----------
Net cash provided by
(used in) operating
activities $(412) $(260) $ (4) $ (8) $ (170)
Net cash provided by
(used in) investing
activities (69) 37 (99) (288) (526)
Net cash provided by
(used in) financing
activities 179 359 (45) 133 1,286
</TABLE>
Net cash used in operating activities from 1993 through June 30, 1996 resulted
principally from increases in working capital to support increases in revenue,
offset by net income. Net cash used in investing activities was expended
primarily for the purchase of telecommunications and computer equipment. Net
cash provided by financing activities included borrowings under TeleSpectrum's
line of credit facility and payments of debt and capital lease obligations.
In May 1996, TeleSpectrum obtained a $4.0 million revolving line of credit with
interest at the bank's prime rate plus 1.5%. This revolving credit facility is
to be used for refinancing of existing debt, working capital purposes and
capital expenditure purposes. This credit facility contains a financial
covenant which requires TeleSpectrum to maintain a prescribed interest coverage
ratio.
In connection with the agreement for the Acquisition of the TeleSpectrum
Operating Business, CRW Financial advanced TeleSpectrum $0.5 million, evidenced
by a promissory note due one year from the date the proceeds were received with
interest at 9.0%. The note has been contributed by CRW Financial to
TeleSpectrum Worldwide as part of the Initial Capitalization. Upon the closing
of the Acquisition of the TeleSpectrum Operating Business, TeleSpectrum
Worldwide will pay a portion of the purchase price by cancellation of the
promissory note.
38
<PAGE>
THE RESPONSE CENTER
Founded in 1987, The Response Center is a full service custom market research
firm which primarily serves clients in the telecommunications, financial
services, utilities, pharmaceuticals and healthcare industries. The Response
Center derives its revenues from the provision of market research services and
is paid on a per-project basis.
Results of Operations
The following table sets forth selected financial data and data as a percentage
of revenues for the periods indicated.
<TABLE>
---------------------------------------------------------------------------------------------------------
<CAPTION>
SIX MONTHS ENDED NINE MONTHS ENDED
YEAR ENDED SEPTEMBER 30, MARCH 31, JUNE 30,
1993 1994 1995 1995 1996 1995 1996
Dollars in thousands ------------- ------------- ------------- ------------ ------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $6,061 100.0% $6,183 100.0% $6,719 100.0% $3,584 100.0% $2,781 100.0% $5,199 100.0% $4,583 100.0%
Cost of services 2,911 48.0 3,426 55.4 3,583 53.3 1,811 50.5 1,534 55.2 2,702 52.0 2,438 53.2
Selling, general
and
administrative
expenses 2,806 46.3 2,800 45.3 2,717 40.5 1,551 43.3 1,310 47.1 2,107 40.5 1,731 37.8
------ ------ ------ ------ ------ ------ ------
Total
operating
expenses 5,717 94.3 6,226 100.7 6,300 93.8 3,362 93.8 2,844 102.3 4,809 92.5 4,169 91.0
Operating income
(loss) 344 5.7 (43) (0.7) 419 6.2 222 6.2 (63) (2.3) 390 7.5 414 9.0
Interest expense
(income), net (12) (0.2) (6) (0.1) (10) (0.2) -- -- -- -- -- -- -- --
------ ------ ------ ------ ------ ------ ------
Pre-tax income
(loss) $ 356 5.9 $ (37) (0.6) $ 429 6.4 $ 222 6.2 $ (63) (2.3) $ 390 7.5 $ 414 9.0
====== ====== ====== ====== ====== ====== ======
</TABLE>
Nine Months Ended June 30, 1996 Compared to Nine Months Ended June 30, 1995
Revenues. Revenues decreased to $4.6 million in the nine months ended June 30,
1996 from $5.2 million in the nine months ended June 30, 1995, a decrease of
$0.6 million, or 11.9%. This decrease was the result of reduced revenues from
The Response Center's largest client and revenues from tracking surveys related
to federal elections performed in the nine months ended June 30, 1995, which
were not repeated in the nine months ended June 30, 1996.
Cost of Services. Cost of services, which primarily consists of labor,
telephone and other call center-related operating and support expenses,
decreased to $2.4 million in the nine months ended June 30, 1996 from $2.7
million in the nine months ended June 30, 1995, a decrease of $0.3 million, or
9.8%. As a percentage of revenues, cost of services increased to 53.2% in the
nine months ended June 30, 1996 from 52.0% in the nine months ended June 30,
1995, as a result of the spreading of relatively fixed call center-related
operating and support expenses over reduced revenues.
Selling, General and Administrative. Selling, general and administrative
expenses decreased to $1.7 million in the nine months ended June 30, 1996 from
$2.1 million in the nine months ended June 30, 1995, a decrease of $0.4
million, or 17.9%. As a percentage of revenues, selling, general and
administrative expenses decreased to 37.8% in the nine months ended June 30,
1996 from 40.5% in the nine months ended June 30, 1995 as a result of lower
executive compensation which was $0.7 million in the nine months ended June 30,
1996 and $1.1 million in the nine months ended June 30, 1995.
Six Months Ended March 31, 1996 Compared to Six Months Ended March 31, 1995
Revenues. Revenues decreased to $2.8 million in the six months ended March 31,
1996 from $3.6 million in the six months ended March 31, 1995, a decrease of
$0.4 million, or 22.4%. This decrease was primarily the result of reduced
revenues from The Response Center's largest client and revenues from tracking
surveys related to federal elections performed in the six months ended March
31, 1995, which were not repeated in the six months ended March 31, 1996.
Cost of Services. Cost of services decreased to $1.5 million in the six months
ended March 31, 1996 from $1.8 million in the six months ended March 31, 1995,
a decrease of $0.3 million, or 15.3%. As a percentage of revenues, cost of
services increased to 55.2% in the six months ended March 31, 1996 from 50.5%
in the six months ended March 31, 1995 as a result of the spreading of
relatively fixed call center-related operating and support expenses over
reduced revenues.
39
<PAGE>
Selling, General and Administrative. Selling, general and administrative
expenses decreased to $1.3 million in the six months ended March 31, 1996 from
$1.6 million in the six months ended March 31, 1995, a decrease of $0.3
million, or 15.5%. As a percentage of revenues, selling, general and
administrative expenses increased to 47.1% in the six months ended March 31,
1996 from 43.3% in the six months ended March 31, 1995, primarily as a result
of the decrease in revenues. Selling, general and administrative expenses
include compensation paid to The Response Center's officers totaling $0.6
million in the six months ended March 31, 1996 and $0.7 million in the six
months ended March 31, 1995.
Year Ended September 30, 1995 Compared to Year Ended September 30, 1994
Revenues. Revenues increased to $6.7 million in 1995 from $6.2 million in 1994,
an increase of $0.5 million, or 8.7%. The Response Center generated
approximately 20.0% of 1995 revenues from new clients. This increase in
revenues was partially offset by a decrease in revenues from an existing
client.
Cost of Services. Cost of services increased to $3.6 million in 1995 from $3.4
million in 1994, an increase of $0.2 million, or 4.6%. As a percentage of
revenues, cost of services decreased to 53.3% in 1995 from 55.4% in 1994. This
decrease primarily resulted from reduced recruitment cost due to more cost
effective agreements with temporary agencies, and reduced telephone expense as
a percentage of revenues, partially offset by increased interviewer payroll
costs as a percentage of revenues. Reduced telephone expense resulted from
lower rates negotiated in a new long distance contract.
Selling, General and Administrative. Selling, general and administrative
expenses decreased to $2.7 million in 1995 from $2.8 million in 1994, a
decrease of $0.1 million, or 3.0%. As a percentage of revenues, selling,
general and administrative expenses decreased to 40.5% in 1995 from 45.3% in
1994, primarily as a result of economies of scale related to increased revenues
despite increased data processing payroll costs. Selling, general and
administrative expenses include compensation paid to The Response Center's
officers totaling $1.5 million in each of 1994 and 1995.
Year Ended September 30, 1994 Compared to Year Ended September 30, 1993
Revenues. Revenues increased to $6.2 million in 1994 from $6.1 million in 1993,
an increase of $0.1 million, or 2.0%. This increase in revenues was due to
increased revenues from new and existing clients, partly offset by a decrease
in revenues from The Response Center's largest client.
Cost of Services. Cost of services increased to $3.4 million in 1994 from $2.9
million in 1993, an increase of $0.5 million, or 17.7%. As a percentage of
revenues, cost of services increased to 55.4% in 1994 from 48.0% in 1993. This
increase was primarily the result of a single, large project in 1993 which was
billed at a higher-than-standard rate.
Selling, General and Administrative. As a percentage of revenues, selling,
general and administrative expenses decreased to 45.3% in 1994 from 46.3% in
1993. Selling, general and administrative expenses include compensation paid to
The Response Center's officers of $1.5 million in 1994 as compared to $1.7
million in 1993.
40
<PAGE>
Liquidity and Capital Resources
The Response Center's principal source of liquidity has historically been cash
flows from operating activities and loans from shareholders. The following
table sets forth selected information from The Response Center's statements of
cash flows for the periods indicated.
<TABLE>
----------------------------------------------------------------------
<CAPTION>
SIX MONTHS NINE MONTHS
YEAR ENDED SEPTEMBER 30, ENDED MARCH 31, ENDED JUNE 30,
1993 1994 1995 1995 1996 1995 1996
Dollars in thousands ------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Net cash provided by
(used in)
operating
activities $ 368 $ 111 $188 $ 130 $ 529 $ 81 $ 693
Net cash provided by
(used in)
investing
activities 158 (59) 44 23 (148) 18 (156)
Net cash provided by
(used in)
financing
activities (412) (193) (22) (22) (22) (22) (75)
</TABLE>
From fiscal 1993 through June 30, 1996, The Response Center generated $1.4
million in cash from operating activities. During this period, $1.3 million of
cash was generated from pre-tax income plus noncash charges, and $0.1 million
of cash was generated from working capital (excluding cash and current
maturities of long-term debt). Additional working capital changes were
principally related to a decrease in accounts payable and increase in accounts
receivable resulting from the increase in revenues.
Investing activities have included purchases of property and equipment, sales
of short term investments and purchases of short term investments.
Financing activities have included distributions to and borrowing activity from
shareholders.
41
<PAGE>
BUSINESS
TeleSpectrum Worldwide was founded in 1996 to create a national provider of
integrated teleservices solutions. With the capabilities of the Operating
Businesses, the Company can offer its clients complete solutions that build
upon a foundation of outbound and inbound telemarketing and include inbound
customer service, market research, direct mail and fulfillment and other direct
marketing services. The Company operates over 1,500 workstations in 20 call
centers located primarily in the eastern United States, and has the capacity to
handle 300 million calls per year. The Company focuses on providing
teleservices to major clients in the telecommunications, insurance, financial
services, pharmaceuticals and healthcare, consumer products and high technology
industries.
ORGANIZATION
Simultaneously with the closing of this Offering, TeleSpectrum Worldwide will
acquire six teleservices and related businesses. The aggregate consideration to
be paid by TeleSpectrum Worldwide for the Operating Businesses is $160.8
million which consists of: (i) $90.9 million in cash to be paid to the Sellers
upon the consummation of the Offering; (ii) forgiveness of a $0.5 million
promissory note from one of the Operating Businesses; (iii) the $44.9 million
estimated fair value of 4,403,863 shares of Common Stock to be issued to the
Sellers; (iv) the $2.1 million estimated fair value of warrants to purchase
593,400 shares of Common Stock at the assumed initial public offering price of
$15.00 per share to be issued in connection with the Acquisitions; (v) the
$18.7 million deemed value for accounting purposes of the CRW Lender Warrants
and CRW Management Warrants as discussed in this Prospectus to purchase
2,272,562 shares of Common Stock currently owned by CRW Financial at $1.50 per
share; and (vi) estimated transaction costs of $3.7 million. The estimated
purchase price for the Acquisitions is subject to certain purchase price
adjustments at closing and earn-out arrangements. See "Certain Relationships
and Related Party Transactions--The Acquisitions" and "--CRW Transactions."
The consummation of each Acquisition is subject to customary conditions. These
conditions include, among others, the continuing accuracy as of the closing
date of the representations and warranties of the Operating Businesses and of
TeleSpectrum Worldwide, the performance by each of them of all covenants
included in the agreements relating to the Acquisition and the nonexistence of
a material adverse change in the results of operations, financial condition or
business of each Operating Business.
INDUSTRY OVERVIEW
The teleservices industry facilitates the direct communication of marketing
information to and from current and prospective customers by telephone.
Indirect marketing methods, such as radio, television and print advertising,
employ a "one-to-many" approach to convey marketing information that can
position products and services within a broad market context. Direct marketing
methods, such as telemarketing and direct mail, employ a "one-to-one" approach
to deliver a marketing message directly to a specific current or prospective
customer and to elicit immediate customer response. In addition to traditional
outbound and inbound telemarketing, teleservices include inbound telephone-
based customer service and support and related value-added services such as
market research, direct mail and fulfillment, training, consulting, call center
management and electronic order processing.
As businesses seek greater returns from their investments in marketing
activities, they are increasingly coupling traditional indirect marketing
methods such as advertising with direct marketing methods such as
telemarketing. Advances in computer and telecommunications technology are
helping telemarketers to more accurately identify and contact potential
customers, and are providing CCRs with more complete on-line guidance and
support. Improvements in the scale and speed of computer and telecommunications
networking capabilities allow teleservices providers to implement larger and
more complex programs for their clients. As a result, clients in a variety of
industries have the opportunity to increase the breadth and depth of their
telemarketing efforts. Industry sources estimate that companies in the United
States spent approximately $77 billion on telemarketing activities in 1995.
To date, businesses have relied overwhelmingly upon in-house call center
personnel to provide telemarketing and telephone-based customer support
services. However, the Company believes that businesses are increasingly
outsourcing their ancillary needs to third party providers as they focus more
closely upon their core businesses. This trend toward outsourcing may be
reinforced by the rising level of capital expenditures necessary to provide
telemarketing services that can take full advantage of recent advances in
computer and telecommunications technology. Providers of outsourced
teleservices can offer clients economies of scale in sharing the cost of new
42
<PAGE>
technology among a larger base of users than might be possible with in-house
telemarketing, while at the same time better matching available capacity to
fluctuating client demand.
As the trend toward outsourcing continues, the Company believes that businesses
will increasingly seek to reduce the number of vendors they utilize, and may
prefer single-source providers of integrated solutions drawing upon a variety
of related services and capabilities. Such a trend could encourage
consolidation within the currently fragmented teleservices industry. The
Company thus believes that further opportunities may emerge for an integrated
teleservices provider that can assemble and offer other value-added services,
such as inbound customer service, market research, direct mail and fulfillment
and other direct marketing services, which together can create complete
solutions to clients' direct marketing needs.
STRATEGY
The Company's goal is to become the premier national provider of integrated
teleservices solutions. To attain this goal, the Company intends to employ the
following strategies:
Offer a Single Source for Complete, Integrated Solutions
The Company intends to offer its clients a single source for all of their
outsourced teleservices needs. To effect this strategy, the Company is focused
upon assembling the full spectrum of teleservices resources, including outbound
and inbound calling, customer service, market research, direct mail and
fulfillment, training, consulting, call center management and electronic order
processing. In particular, the Company will utilize its expertise and expand
its capacity to provide sophisticated and flexible inbound customer service
solutions for its clients. The Company will seek to craft tailored, value-added
teleservices solutions that are designed to achieve clients' intended marketing
results.
Establish Long-Term Relationships with Major Clients
The Company seeks to establish associations with major clients whose
outsourcing needs foster long-term, significant relationships. As clients
continue to outsource an increasing portion of their direct sales and customer
service activities, the Company will endeavor to capitalize upon its
relationships and past performance to expand the range of services that it
provides to each of its clients.
Add New Clients in Targeted Industries
The Company is focused upon expanding its client base in those industries
currently utilizing teleservices, including telecommunications, insurance,
financial services, pharmaceuticals and healthcare and high technology. The
Company believes that within these industries there are many large corporations
which may employ the services offered by the Company for a substantial portion
of their direct sales and customer service needs. The Company will seek to
provide services to new clients in its existing targeted industries, and to add
clients in new targeted industries where it believes that it can utilize its
capabilities and expertise. In particular, due to increased competition for
local and long-distance telephone customers anticipated to result from recent
deregulation, the Company has identified additional teleservices opportunities
and is targeting new clients in the telecommunications industry.
Pursue Strategic Acquisitions
The Company intends to complement internal growth through aggressive pursuit of
acquisitions to expand the Company's capacity, add new services and products
and extend its market reach. The Company's management team includes individuals
with significant experience in effecting strategic acquisitions and integrating
acquired businesses.
SERVICES OVERVIEW
Simultaneously with the closing of the Offering, TeleSpectrum Worldwide will
acquire, in the Acquisitions, the Operating Businesses. The Operating
Businesses provide the following services:
43
<PAGE>
Outbound Telemarketing
The Company provides both business-to-consumer and business-to-business
outbound telemarketing services, which consist primarily of direct sales
activities initiated by the Company on behalf of clients. These activities are
directed towards client-generated, electronically transmitted lists of
customers who have been selected to match the demographic profile of the
targeted customer for the offered product or service. The Company's
computerized call management systems utilize predictive dialers to
automatically dial telephone numbers, determine if a live connection is made
and present connected calls to a CCR who has been trained for the client's
program. The client or the Company provides a prepared script to assist the CCR
in marketing the product or service to the call recipient. SOMAR, NBG, Reich
and TeleSpectrum provide outbound telemarketing services.
Inbound Teleservices
The Company provides inbound teleservices support for activities such as
customer service, catalog sales, response to customer inquiries and electronic
order processing. Inbound callers typically call toll-free numbers to request
product or service information, place orders for advertised products or obtain
assistance with a previous order or purchase. The Company uses automated call
distributors to direct callers to appropriate CCRs, who have access to on-line
support databases to address customers' needs. TeleSpectrum and Harris provide
inbound teleservices.
Market Research
The Company's market research capabilities include problem conceptualization,
program design, data gathering by telephone, mail and focus groups, data
tabulation and results analysis. Interviewing personnel use advanced data
collection technology to obtain data from a statistically projectable sample of
survey contacts. The Company then tabulates and analyzes fielded data using
multi-variate statistical techniques, and produces detailed reports that can
answer clients' marketing questions and suggest further avenues of inquiry
where appropriate. The Response Center provides market research services.
Direct Mail and Fulfillment
The Company's direct mail services include preparing, addressing, coordinating,
sorting and mailing materials to current and potential customers of the
Company's clients. The Company also provides fulfillment services, which
involve filling orders received through outbound telemarketing, direct mail
solicitation and inbound customer service calls, including automated inbound
call center services. In its direct mail operations, the Company obtains name
and address data from clients, processes the data to eliminate duplicates and
correct errors and addresses pre-printed materials, in some cases with
personalized greetings and messages. Mailings are then coordinated and collated
by automated folding and inserting equipment, sorted by zip code to obtain the
fullest available postal discounts for mass-mailings, and in most instances
mailed from the Company's in-house postal facility. In its fulfillment
operations, the Company maintains warehouse space for storage of client-
supplied products and literature, which are sorted and bar-coded for inventory
control. Harris provides direct mail services; Harris and TeleSpectrum provide
fulfillment services.
Additional Value-Added Services
The Company offers additional value-added services, such as strategic
marketing, planning and consulting services, database marketing and management,
training and call center management, to complement its core teleservices
offerings. Planning and consulting services include product development and
program design. Call center management involves all aspects of recruiting,
staffing, managing operations, providing analysis and reports to clients at
their own on-site telemarketing facilities and providing call center technology
and systems integration for database development. Reich and TeleSpectrum
provide additional value-added services.
44
<PAGE>
THE OPERATING BUSINESSES
The following table sets forth certain information about the Operating
Businesses as of June 30, 1996.
<TABLE>
<CAPTION>
EMPLOYEES CCRS
(FULL- (FULL- INSURANCE
TIME/ TIME/ AGENTS
PART- PART- (FULL-
TIME) TIME) TIME) WORKSTATIONS CALL CENTERS
--------- --------- --------- ------------ ------------
<S> <C> <C> <C> <C> <C>
SOMAR 1,767/0 1,571/0 517* 686 7
NBG 129/685 58/680 0 266 6
Harris 154/6 0/0 0 0 1
Reich 792/0 670/0 72** 320 3
TeleSpectrum 280/7 165/7 0 134 2
The Response Center 85/100 38/98 0 130 1
--------- --------- --- ----- ---
Total 3,207/798 2,502/785 589 1,536 20
</TABLE>
- --------
* Holding an aggregate of 8,000 insurance licenses in 35 states.
** Holding an aggregate of 521 insurance licenses in 46 states.
SOMAR
Founded in 1982, SOMAR is a nationwide provider of outsourced telephone-based
sales, marketing and customer management services, principally to clients in
the insurance industry and also to clients in the financial services,
telecommunications and consumer products industries. SOMAR's three principal
clients in 1995 were in the insurance industry and accounted for 32.7%, 15.7%
and 15.0% of SOMAR's 1995 revenues of $31.9 million. For the six months ended
June 30, 1996, these same clients accounted for 22.2%, 21.6% and 6.1% of
SOMAR's revenues of $20.8 million in that period. As of June 30, 1996, SOMAR's
1,571 CCRs (of whom 517 were licensed insurance agents) operated 686
workstations in seven call centers located in North Carolina and West Virginia.
These call centers are managed from SOMAR's headquarters facility in Salisbury,
North Carolina through local- and wide-area networking telecommunications and
computer technology.
NBG
Founded in 1991, NBG provides nationwide outbound telemarketing services to
clients in the financial services, telecommunications and high technology
industries. NBG's principal clients in 1995 were a financial services industry
client and an outsourcing contractor, which coordinated the provision of
services to a telecommunications industry company and a financial services
industry company; these two principal clients accounted for 52.7% and 40.2%,
respectively, of NBG's 1995 revenues of $12.8 million. For the twenty-six weeks
ended June 28, 1996, these same clients accounted for 66.2% and 26.7%,
respectively, of NBG's revenues of $8.9 million in that period. As of June 30,
1996, NBG's 738 CCRs operated 266 workstations in six call centers located in
Massachusetts and Arizona. These call centers are managed from NBG's
headquarters in Cambridge, Massachusetts.
Harris
Founded in 1931, Harris is a regional, vertically-integrated direct mail and
fulfillment organization which provides its services primarily to companies in
the pharmaceuticals and healthcare, financial services and insurance
industries, principally in the Middle Atlantic states. Harris operates a full
service direct mail organization that provides data processing, lettershop,
printing and bindery and postal services. Utilizing electronic tracking and
automated customer interface technologies, Harris also provides turnkey
fulfillment services including warehousing, inventory management, packing and
shipping. Harris's principal client in 1995 was a pharmaceuticals industry
client, which accounted for 44.7% of Harris's 1995 revenues of $12.7 million.
For the six months ended June 30, 1996, this same client accounted for 46.2% of
Harris' revenues of $5.4 million in that period.
Reich
Founded in 1978, Reich offers nationwide telemarketing services to clients in
the financial services, telecommunications and insurance industries. Reich also
offers additional value-added services to its clients, such as marketing
planning, database marketing, creative development, situation analysis, in-
house copy and art services and production management. Reich's principal
clients in 1995 were two financial services industry
45
<PAGE>
clients, an insurance industry client and a telecommunications industry client,
which accounted for 46.2%, 12.3%, 14.7% and 14.7%, respectively, of Reich's
1995 revenues of $12.3 million. For the six months ended June 30, 1996, these
same clients accounted for 42.5%, 0.4%, 10.3% and 33.8%, respectively, of
Reich's revenues of $ 11.3 million in that period. As of June 30, 1996, Reich's
792 CCRs (of whom 72 were licensed insurance agents) operated 320 workstations
in Reich's three call centers in Pennsylvania, Delaware and West Virginia.
These call centers are managed from Reich's headquarters in Philadelphia,
Pennsylvania.
TeleSpectrum
Founded in 1984, TeleSpectrum specializes in providing nationwide inbound and
outbound telemarketing and fulfillment services to the high technology,
pharmaceuticals and healthcare and consumer products industries. Based in
Annapolis, Maryland, TeleSpectrum also provides call center management and
telephone marketing, consulting and training services. As of June 30, 1996,
TeleSpectrum's 172 CCRs operated 134 workstations in two call centers located
in Maryland. TeleSpectrum's proprietary training services include both
customized and off-the-shelf solutions. TeleSpectrum's principal client in 1995
was a high technology industry client, which accounted for 21.7% of
TeleSpectrum's 1995 revenues of $11.9 million. For the six months ended June
30, 1996, TeleSpectrum's principal client was a high technology industry
client, which accounted for 8.2%, of TeleSpectrum's revenues of $8.0 million in
that period.
The Response Center
Founded in 1987, The Response Center is a nationwide, full service custom
market research firm which primarily serves clients in the telecommunications,
financial services, utilities, pharmaceuticals and healthcare industries. The
Response Center designs and implements, through the use of customized software,
research programs in areas such as customer satisfaction, advertising tracking,
product positioning, pricing strategies and concept testing. The Response
Center then analyzes the results of its research and presents those results to
clients. As of June 30, 1996, 136 CCRs operated 130 workstations from The
Response Center's call center in Upper Darby, Pennsylvania. The Response
Center's principal client in 1995 was in the telecommunications industry and
accounted for 27.5% of 1995 revenues of $6.7 million. For the nine months ended
June 30, 1996, The Response Center's principal client was in the
telecommunications industry, and accounted for 25.2% of The Response Center's
revenues of $4.6 million in that period.
No client referred to above was a significant client of more than one Operating
Business.
COMPETITION
The telemarketing industry is intensely competitive. Industry participants
compete primarily on price, available capacity, range of service offerings,
quality and customer service. The Company competes with numerous independent
telemarketing firms, as well as the in-house telemarketing operations of many
of its clients or potential clients. The Company's competitors include APAC
TeleServices Inc., ICT Group, Inc., ITI Marketing Services, Inc., MATRIXX
Marketing Inc., SITEL Corporation and West Telemarketing Corporation. In
addition, most businesses that are significant consumers of teleservices
utilize more than one telemarketing firm at a time and reallocate work among
various firms from time to time. A significant amount of such work is
contracted on an individual project basis, with the effect that the Company and
other firms seeking such business are required to compete with each other
frequently as individual projects are initiated. Further, the Company believes
that businesses with telemarketing operations will continue to outsource the
management of those operations and that this trend may attract new competitors,
including competitors that are substantially larger and better capitalized than
the Company, into the Company's market. The Company may not be able to compete
effectively against its current competitors, and the Company cannot assure that
additional competitors with greater resources than the Company will not enter
the industry and compete effectively against the Company or that the trend
toward outsourcing telemarketing activity will continue. To the extent that the
Company is unable to compete successfully against its existing and future
competitors, its business, operating results and financial condition could be
materially adversely affected.
SALES, MARKETING AND CLIENTS
The Company's marketing strategy centers around providing tailored solutions to
each client's teleservices needs. Each Operating Business has its own sales
personnel and, as of June 30, 1996, there were a total of 26 sales
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<PAGE>
personnel employed by all of the Operating Businesses. The Company intends to
enable sales personnel from all of its Operating Businesses to work together to
take advantage of potential cross-selling opportunities. Sales personnel are
compensated by salary and bonuses based on individual performance and overall
profitability.
Sales teams work directly with each client or potential client to develop an
effective solution to the client's teleservices needs. Often, the Company
initially develops a pilot program for a new client to demonstrate the
Company's abilities and the effectiveness of its teleservices offerings. The
Company's sales personnel often communicate results of teleservices programs
and assist clients in modifying programs for future use.
The Company generally operates under short-term contractual relationships with
its clients. Pricing often includes an initial fee, a base service charge and
separate charges for ancillary services. Service charges for telemarketing
services are based upon hourly rates for outbound calls, per minute rates for
inbound calls or a commission or performance payment on successful sales or
results. Charges for other services such as consulting, market research,
training, direct mail and fulfillment may be computed on a fee-for-service or
piecework basis.
Historically, the Operating Businesses have acquired new clients and marketed
their services primarily by attending trade shows, advertising in industry
publications, responding to requests for proposals, pursuing client referrals
and cross-selling to existing clients. The Company targets those companies with
the greatest potential to generate recurring revenues because of their ongoing
direct sales and customer service needs, and also those which have large
customer bases which can benefit from targeted telemarketing programs. Many of
the Company's current clients have sizable in-house telemarketing operations,
and the Company often competes against those in-house operations for the
client's business. During 1995, the Company provided, on a pro forma basis,
services to over 441 clients. Mass Marketing Insurance Group accounted for
approximately 11.9% of the Company's pro forma 1995 revenues. No other client
accounted for more than 10.0% of the Company's pro forma revenues in 1995.
TARGETED INDUSTRIES
The Company targets its teleservices solutions toward clients in the following
industries:
Telecommunications
The Company provides telemarketing programs for major telecommunications
companies for long distance, cellular and cable products and services, as well
as regional telecommunications companies marketing advanced telephone features.
The Company offers its telecommunications industry clients a range of services,
including customer service, sales and survey campaigns.
Insurance
The Company works with large consumer insurance companies and their agents,
complementing its clients' own sales efforts by offering products such as life
and accidental death and dismemberment insurance. On a pro forma combined basis
as of June 30, 1996, the Company employed 589 agents collectively holding 8,521
state insurance licenses from 46 states.
Financial Services
The Company provides banks and other financial services clients with a wide
range of services, which primarily consist of credit cardholder acquisitions
and also include active account generation, account balance transfer, account
retention and customer service.
Pharmaceuticals and Healthcare
The Company provides pharmaceuticals clients with product support, customer
service and fulfillment services. In addition, the Company performs market
research and analysis for clients in the healthcare industry.
Consumer Products
The Company provides its consumer products clients with customer service, order
entry and new customer acquisition services and can support inbound calls 24
hours per day and 365 days per year.
47
<PAGE>
High Technology
The Company provides product support and customer service inbound teleservices
for clients in the computer hardware and software industry. In addition, the
Company provides business-to-business teleservices such as lead generation,
customer qualification and account management, as well as call center
management, for high technology clients.
PERSONNEL AND TRAINING
On a pro forma combined basis as of June 30, 1996, the Company employed 3,207
individuals on a full-time basis and 798 individuals on a part-time basis,
3,287 of whom were CCRs. The Company's ability to hire, train and manage
qualified employees is critical to its ability to provide high quality services
to its clients. The Company's service centers are located in areas that give
the Company access to a capable labor supply. The Company provides training
upon hire, as well as advanced and follow-up training. This training includes
instruction in proper direct marketing and customer service techniques, as well
as instruction in the specific characteristics of the industries which the
Company serves. In addition, the Company has 589 insurance CCRs on a pro forma
combined basis as of June 30, 1996, each of whom is licensed to sell insurance
in one or more states, and all of whom collectively are licensed to sell
insurance in 46 states.
QUALITY ASSURANCE
The Operating Businesses have consistently emphasized quality service and
extensive employee training. The Company's quality assurance program includes
the selection and training of qualified CCRs, the training and professional
development of call center management personnel, monitoring of calls and sales
verification and editing. Both the Company and its clients are able to perform
real time on-site and remote call monitoring to maintain quality and
efficiency. Sales confirmations may be recorded (with the customer's consent),
and callers may also be monitored by management personnel to verify the
accuracy and authenticity of transactions. Additionally, the Company is able to
provide its clients with current updates on the progress of an ongoing
telemarketing effort. Access to this data allows the Company and its clients to
identify previously unrecognized potential campaign opportunities and to
immediately modify or enhance a telemarketing effort.
GOVERNMENT REGULATION
Telemarketing sales practices are regulated at both the federal and state
level. The federal Telephone Consumer Protection Act of 1991 (the "TCPA"),
enforced by the Federal Communications Commission, imposes restrictions on
unsolicited automated telephone calls to residential telephone subscribers.
Under the TCPA it is unlawful to initiate telephone solicitations to
residential telephone subscribers before 8:00 a.m. or after 9:00 p.m., local
time at the subscriber's location, or to use automated telephone dialing
systems or artificial or prerecorded voices to call certain subscribers.
Additionally, the TCPA requires telemarketing firms to develop a written policy
implementing a "do not call" list, including the training of its telemarketing
personnel to comply with these restrictions. Currently, the Company trains its
service representatives to comply with the regulations of the TCPA and programs
its call management system to prevent initiating telephone calls during
restricted hours or to individuals maintained on the Company's "do not call"
list.
The Federal Trade Commission (the "FTC") regulates both general sales
practices, and telemarketing specifically. Under the Federal Trade Commission
Act (the "FTC Act"), the FTC has broad authority to prohibit a variety of
advertising or marketing practices that may constitute "unfair or deceptive
acts and practices."
The FTC also administers the federal Telemarketing and Consumer Fraud and Abuse
Prevention Act of 1994 (the "TCFAPA"). Under the TCFAPA, the FTC has issued
regulations prohibiting a variety of deceptive, unfair or abusive practices in
telemarketing sales. Generally, these rules prohibit misrepresentations of the
cost, quantity, terms, restrictions, performance or characteristics of products
or services offered by telephone solicitation or of refund, cancellation or
exchange policies. The regulations also regulate the use of prize promotions in
telemarketing to prevent deception and require that a telemarketer identify
promptly and clearly the seller on
48
<PAGE>
whose behalf the telemarketer is calling, the purpose of the call, the nature
of the goods or services offered and, if applicable, that no purchase or
payment is necessary to win a prize. The regulations also require that
telemarketers maintain records on various aspects of their business. The
Company believes that it is in compliance with the TCPA and the regulations
promulgated pursuant to the TCFAPA.
Violation of the rules and regulations applicable to telemarketing practices
may result in injunctions against certain operations or in monetary penalties;
moreover, such violations may give rise to private actions for damages.
From time to time, bills are introduced in Congress which, if enacted, would
regulate the use of credit information. There can be no assurance that any such
legislation, if enacted, will not have an adverse effect on the telemarketing
industry generally or the Company's operations specifically.
Most states have enacted statutes similar to the FTC Act prohibiting unfair or
deceptive acts and practices. A number of states have enacted legislation and
other states are considering enacting legislation to regulate telemarketing.
For example, telephone sales in certain states are not final until a written
contract is delivered to and signed by the buyer, and such a contract often may
be canceled within three business days. At least one state also prohibits
telemarketers from requiring credit card payment, and several other states
require certain telemarketers to obtain licenses, post bonds or submit sales
scripts to the state's attorney general.
The industries served by the Company's Operating Businesses are also subject to
government regulation. Company employees who complete the sale of insurance
products are required to be licensed by various state insurance commissions and
to participate in regular continuing education programs, which currently are
provided by the Company.
49
<PAGE>
TELESPECTRUM WORLDWIDE FACILITIES
The Company's corporate headquarters are located in 3,000 square feet of leased
space in King of Prussia, Pennsylvania, where it shares office space with CRW
Financial, a principal stockholder of the Company. See "Certain Relationships
and Related Party Transactions--Headquarters Lease." In addition, as of June
30, 1996 the Company maintained the following material facilities:
<TABLE>
<CAPTION>
OPERATING DATE
BUSINESS LOCATION OPENED WORKSTATIONS
- ------------------- ------------------- -------------- ------------
<S> <C> <C> <C>
SOMAR Salisbury, NC February 1991 96
Winston-Salem, NC December 1992 84
Fayetteville, NC January 1994 104
Asheville, NC September 1994 81
Huntington, WV March 1995 103
Huntington, WV August 1995 103
Beckley, WV March 1996 115
NBG Cambridge, MA November 1991 32
Andover, MA November 1994 48
Westborough, MA June 1995 40
Burlington, MA December 1995 40
Phoenix, AZ December 1995 66
Cambridge, MA January 1996 40
Harris Philadelphia, PA February 1976 *
King of Prussia, PA May 1987 **
Reich Philadelphia, PA February 1989 64
Wilmington, DE January 1996 60
Wheeling, WV April 1996 196
TeleSpectrum Annapolis, MD June 1989 117
San Francisco, CA June 1989 ***
Annapolis, MD September 1992 **
Linthicum, MD June 1993 17
The Response Center Upper Darby, PA April 1996 130
-----
1,536
=====
</TABLE>
- --------
* Direct mail services.
** Fulfillment services.
*** Consulting and training services.
All of the Company's material facilities are leased, with the exception of the
Harris facility in Philadelphia, which is owned.
The Company believes that its existing and planned facilities are adequate for
the Company's current and near-term anticipated operations.
LEGAL PROCEEDINGS
The Company is not currently engaged in any legal proceedings that are
expected, individually or in the aggregate, to have a material adverse effect
on the business, results of operation or financial condition of the Company.
50
<PAGE>
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information concerning each of the
executive officers and directors of the Company following the consummation of
this Offering:
<TABLE>
<CAPTION>
NAME AGE POSITION WITH THE COMPANY
<S> <C> <C>
J. Brian O'Neill 36 Chairman of the Board and Chief Executive Officer
Michael C. Boyd 55 President, Chief Operating Officer and Director
Richard C. Schwenk, Jr. 46 Senior Vice President and Chief Financial Officer
William F. Rhatigan 51 President of the Company's Telemarketing Group and Person
Named to Become a Director
Mark J. DeNino 42 Director
Richard W. Virtue 51 Person Named to Become a Director
Gregory M. Alcorn 38 Chief Executive Officer of the Company's SOMAR division
Patrick M. Baldasare 40 President of the Company's Market Research division
Michael J. Gallant 54 President of the Company's NBG division
Edward M. Idzik 54 President of the Company's Harris division
Morton M. Reich 56 President of the Company's Reich division
Karen E. Schweitzer 53 President of the Company's TeleSpectrum division
</TABLE>
J. BRIAN O'NEILL has been Chairman of the Board and Chief Executive Officer
since the formation of TeleSpectrum Worldwide in April 1996. Mr. O'Neill is
also Chairman of the Board of Directors and Chief Executive Officer of CRW
Financial, a receivables management company which was spun off from Casino and
Credit Services, Inc., a casino credit database and collection service
provider, in May 1995. Although Mr. O'Neill intends to devote the majority of
his time to the Company's business, he is also required to devote a substantial
amount of his time to his duties at CRW Financial. From July 1992 to May 1995,
Mr. O'Neill was Chairman and Chief Executive Officer of Casino and Credit
Services, Inc. From May 1988 to July 1992, Mr. O'Neill was Chairman of O'Neill
Properties, Inc., a real estate development company.
MICHAEL C. BOYD has been President and Chief Operating Officer of TeleSpectrum
Worldwide since its formation in April 1996 and a director since May 1996. Mr.
Boyd was a co-founder of QVC Network, Inc., a home shopping television company,
in 1986, and served as President and Chief Operating Officer until 1994. From
1994 to 1996, Mr. Boyd was an independent consultant.
RICHARD C. SCHWENK, JR. has served as Senior Vice President and Chief Financial
Officer of TeleSpectrum Worldwide since May 1996. Mr. Schwenk served as Chief
Financial Officer and Executive Vice President of Electronic Payment Services,
Inc., a provider of automated teller machine and point-of-sale transaction
processing services, from November 1992 to January 1996. From January 1991 to
July 1992, Mr. Schwenk was the Chief Financial Officer and Vice President of
Finance for Harris Adacom Corporation, a manufacturer and distributor of data
communication and computer peripheral equipment.
WILLIAM F. RHATIGAN will serve as President of the Company's Telemarketing
Group and will become a director upon consummation of the Offering. Mr.
Rhatigan was Chairman and Chief Executive Officer of NBG Services, Inc. from
1991 until the consummation of the Offering.
MARK J. DENINO has served as a director of TeleSpectrum Worldwide since May
1996. Mr. DeNino has been a managing director of Technology Leaders Management,
Inc., the general partner of Technology Leaders II L.P., which is a venture
capital firm and significant shareholder of CRW Financial, since 1994. For more
than three years prior to that, Mr. DeNino was President of Crossroads Capital,
Inc., an investment banking firm.
RICHARD W. VIRTUE has served as Chief Executive Officer of SOMAR, Inc. since
1982, and will relinquish that post upon consummation of the Offering at which
time he will become a director of the Company. Mr. Virtue has
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<PAGE>
entered into a consulting agreement under which he will render consulting
services to the Company following the Offering. See "Certain Relationships and
Related Party Transactions--The Acquisitions--SOMAR."
Upon consummation of the Acquisitions, the Company will form separate divisions
which will operate the respective Operating Businesses. The following
individuals will hold the positions indicated with such divisions. See "Certain
Relationships and Related Party Transactions--The Acquisitons."
GREGORY M. ALCORN will become Chief Executive Officer of the Company's SOMAR
division upon consummation of the Offering. Mr. Alcorn served as President of
SOMAR, Inc. from 1982 until the consummation of the Offering.
PATRICK M. BALDASARE will serve as President of the Company's Market Research
division upon consummation of the Offering. Mr. Baldasare was President of The
Response Center, Inc. from 1987 until the consummation of the Offering.
MICHAEL J. GALLANT will serve as President of the Company's NBG division upon
consummation of the Offering. Mr. Gallant was President of NBG Services, Inc.
from 1991 until the consummation of the Offering.
EDWARD M. IDZIK will serve as President of the Company's Harris division upon
consummation of the Offering. Mr. Idzik was President of HDM and HFI from 1979
until the consummation of the Offering.
MORTON M. REICH will serve as President of the Company's Reich division upon
consummation of the Offering. Mr. Reich was President of The Reich Group, Inc.
from 1978 until the consummation of the Offering.
KAREN E. SCHWEITZER will serve as President of the Company's TeleSpectrum
division upon consummation of the Offering. Ms. Schweitzer co-founded
TeleSpectrum, Inc. and was its President from 1984 until the consummation of
the Offering.
The Company intends to elect another independent, unaffiliated director (in
addition to Mr. DeNino) to the Company's Board of Directors as promptly as
practicable.
COMMITTEES OF THE BOARD OF DIRECTORS
The Company's Board of Directors has established two committees: an Audit
Committee and a Compensation Committee.
The responsibilities of the Audit Committee include recommending to the Board
of Directors the independent public accountants to be selected to conduct the
annual audit of the books and records of the Company, reviewing the proposed
scope of such audit and approving the audit fees to be paid, accounting and
financial controls of the Company with the independent public accountants and
the Company's financial and accounting staff and reviewing and approving
transactions between the Company and its directors, officers and affiliates.
Mr. DeNino is the sole member of the Audit Committee. Following consummation of
the Offering, the additional independent, unaffiliated director to be elected
to the Company's Board of Directors will be appointed to the Audit Committee.
The Compensation Committee provides a general review of the Company's
compensation plans to ensure that they meet corporate objectives. The
responsibilities of the Compensation Committee also include administering the
1996 Stock Incentive Plan, including selecting the officers and salaried
employees to whom awards will be granted. Mr. DeNino is the sole member of the
Compensation Committee. Following consummation of the Offering, the additional
independent, unaffiliated director to be elected to the Company's Board of
Directors will be appointed to the Compensation Committee.
52
<PAGE>
DIRECTOR COMPENSATION
Directors who are not currently receiving compensation as officers, employees
or consultants of the Company are entitled to receive an annual retainer fee of
$7,500, plus $500 and reimbursement of expenses for each meeting of the Board
of Directors and each committee meeting that they attend in person. In
addition, directors receive certain formula grants of non-qualified stock
options under the 1996 Stock Incentive Plan. See "--1996 Stock Incentive Plan."
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The members of the Compensation Committee following the consummation of the
Offering are to be Mr. DeNino and the other independent, unaffiliated director
to be elected to the Company's Board of Directors as promptly as practicable.
EXECUTIVE COMPENSATION
TeleSpectrum Worldwide was incorporated in April 1996. Effective upon
consummation of the Acquisitions and for the balance of 1996, the Company
anticipates that it will, pursuant to employment agreements, pay compensation
based on the following annual salaries to its Chief Executive Officer and to
the four other individuals named below who are to be executive officers of the
Company and who the Company believes will be its four other most highly
compensated executive officers in 1996 (together, the "Named Executive
Officers").
<TABLE>
-------------------------------------------
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION
COMPENSATION AWARDS
------------ ------------
SECURITIES
UNDERLYING
SALARY($) BONUS($) OPTIONS
NAME AND PRINCIPAL POSITION --------- -------- ------------
<C> <S> <C> <C>
J. Brian O'Neill 130,000 -- (1) 500,000(2)
Chairman of the Board and Chief Executive Officer
Michael C. Boyd 275,000 225,000(3) 300,000(2)(4)
President and Chief Operating Officer
William F. Rhatigan 250,000 150,000(5) --
President of the Company's Telemarketing Group
Morton M. Reich 300,000 200,000(6) --
President of the Company's Reich division
Edward M. Idzik 275,000 225,000(5) --
President of the Company's Harris division
</TABLE>
- --------
(1) Mr. O'Neill will be entitled to an annual bonus based upon the operating
performance of the Company. The terms and amount of the annual bonus, which
shall not exceed $400,000, will be determined by the Compensation Committee of
the Company's Board of Directors after the additional independent, unaffiliated
director to be elected to the Company's Board of Directors is appointed to the
Compensation Committee.
(2) Options are to be granted under the 1996 Stock Incentive Plan as of the
date of this Prospectus at an exercise price equal to the initial public
offering price. One-fourth of the options will vest immediately; the balance of
the options will vest ratably over three years commencing on the first
anniversary of the date of grant.
(3) Consists of a performance bonus to be awarded based in part upon the
individual's performance and in part upon the operating performance of the
Company.
(4) Does not include options to purchase 300,000 additional shares that the
Company is to grant ratably over the course of the next four years pursuant to
Mr. Boyd's employment agreement.
(5) Consists of a guaranteed bonus.
(6) Consists of a performance bonus to be awarded based in part upon the
individual's performance and in part upon the operating performance of the
Company's Reich division.
1996 STOCK INCENTIVE PLAN
The Company has adopted the 1996 Stock Incentive Plan, effective as of May 17,
1996. The 1996 Stock Incentive Plan provides for grants of stock options
("Options"), restricted stock, stock appreciation rights and performance units
(collectively, "Grants") to selected officers (including officers who are also
directors) and other employees of the Company, independent contractors and
consultants who perform services to the Company and its subsidiaries (the
"Participants"). In addition, the 1996 Stock Incentive Plan provides for grants
of formula stock options to non-employee directors. By encouraging stock
ownership, the Company seeks to motivate such individuals and to encourage such
individuals to devote their best efforts to the business and financial success
of the Company.
53
<PAGE>
General. Subject to adjustment in certain circumstances as discussed below, the
1996 Stock Incentive Plan authorizes up to 2,300,000 shares of Common Stock for
issuance pursuant to the terms of the 1996 Stock Incentive Plan. If and to the
extent Options or Grants granted under the 1996 Stock Incentive Plan expire or
are terminated for any reason without being exercised, the shares of Common
Stock subject to such Option or Grant again will be available for purposes of
the 1996 Stock Incentive Plan.
Administration of the 1996 Stock Incentive Plan. The 1996 Stock Incentive Plan
is administered and interpreted by the Compensation Committee (the "Committee")
of the Board of Directors consisting of not less than two persons appointed by
the Board of Directors from among its members, each of whom must be a
"disinterested person" as defined by Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and an "outside director" as
defined by Section 162(m) of the Code. Except with the formula stock option
grants to non-employee directors, the Committee has the sole authority to (i)
determine the individuals to whom awards shall be made under the 1996 Stock
Incentive Plan, (ii) determine the type, size and terms of the awards to be
made to each such individual, (iii) determine the time when the grants will be
made and the duration of any applicable exercise or restriction period,
including the criteria for vesting and the acceleration of vesting and (iv)
deal with any other matters arising under the Plan. See "--Committees of the
Board of Directors."
Awards. Awards under the 1996 Stock Incentive Plan may consist of (i) options
intended to qualify as incentive stock options ("ISOs") within the meaning of
Section 422 of the Code, (ii) so-called "nonqualified stock options" that are
not intended to so qualify ("NQSOs"), (iii) restricted stock, (iv) stock
appreciation rights ("SARs") and (v) performance units.
Eligibility for Participation. Awards may be made to any employee (including
officers and directors), independent contractor and consultant of the Company
or its subsidiaries. Non-employee directors of the Company are entitled only to
formula awards of NQSOs. During any calendar year, no participant may receive
awards for more than 500,000 shares of Common Stock issued or available for
issuance under the 1996 Stock Incentive Plan. As of June 30, 1996, no options
were outstanding under the 1996 Stock Incentive Plan.
Options. The exercise price of any ISO granted under the 1996 Stock Incentive
Plan will not be less than the fair market value of the underlying shares of
Common Stock on the date of grant. The exercise price of an ISO granted to an
employee who owns more than 10% of the Common Stock may not be less than 110%
of the fair market value of the underlying shares of Common Stock on the date
of grant. The exercise price of an NQSO may be greater than, equal to or less
than the fair market value of the underlying shares of Common Stock on the date
of grant. The Committee will determine the term of each Option; provided,
however, that the exercise period may not exceed ten years from the date of
grant, and the exercise period of an ISO granted to an employee who owns more
than 10% of the Common Stock may not exceed five years from the date of grant.
The participant may pay the exercise price (i) in cash, (ii) with the approval
of the Committee, by delivering shares of Common Stock owned by the participant
and having a fair market value on the date of exercise equal to the exercise
price or (iii) by a combination of the foregoing. The participant may instruct
the Company to deliver the shares of Common Stock due upon the exercise to a
designated broker instead of to the participant.
Formula Option Grants to Non-Employee Directors. Non-employee directors are
entitled to receive NQSOs pursuant to the formula grants under the 1996 Stock
Incentive Plan. According to the formula grants, each non-employee director who
is a member of the Board of Directors as of the effective date of the 1996
Stock Incentive Plan will receive a grant of an NQSO to purchase 2,500 shares
of Common Stock at a price equal to the initial public offering price in this
Offering. Thereafter, on each date on which the Company holds its annual
meeting of stockholders, each non-employee director in office immediately
before and after the annual election of directors will receive a grant of an
NQSO to purchase 2,500 shares of Common Stock at an exercise price equal to the
closing price per share on The Nasdaq National Market on the date of grant.
Each non-employee director who first becomes a member of the Board of Directors
after the effective date of the 1996 Stock Incentive Plan will receive a grant
of an NQSO to purchase 2,500 shares of Common Stock on the date he or she
becomes a member of the Board of Directors, at an exercise price equal to the
closing price of the Common Stock on The Nasdaq National Market on the date of
grant. The term of each such option shall be ten years and each such option
shall be fully and immediately exercisable upon the date of grant.
54
<PAGE>
Restricted Stock. The Committee may issue shares of restricted Common Stock to
a participant pursuant to the 1996 Stock Incentive Plan. Shares may be issued
for consideration or for no consideration, as the Committee determines. The
number of shares of Common Stock granted to each participant shall be
determined by the Committee, subject to the maximum limit described above.
Grants of restricted stock will be made subject to such performance
requirements, vesting provisions, transfer restrictions or other restrictions
and conditions as the Committee may determine in its sole discretion.
Stock Appreciation Rights. The Committee may grant SARs alone or in tandem with
any stock option pursuant to the 1996 Stock Incentive Plan. The exercise price
of an SAR will be either (i) the exercise price of the related stock option or
(ii) the fair market value of a share of Common Stock on the date of grant of
the SAR. When the participant exercises an SAR, the participant will receive
the amount by which the fair market value of the Common Stock on the date of
exercise exceeds the exercise price of the SAR. The participant may elect to
have such appreciation paid in cash or in shares of Common Stock, subject to
Committee approval. To the extent a participant exercises a tandem SAR, the
related option shall terminate. Similarly, upon exercise of a stock option, the
related SAR, if any, shall terminate.
Performance Units. The Committee may grant performance unit awards payable in
cash or shares of Common Stock at the end of a specified performance period.
Payment will be contingent upon achieving performance goals by the end of the
performance period. The measure of a performance unit may, in the Committee's
discretion, be equal to the fair market value of a share of Common Stock. The
performance goals will be comprised of specified annual levels of one or more
performance criteria as the Committee may deem appropriate such as earnings per
share of Common Stock of the Company, net earnings, operating earnings, unit
volume, net sales, market share, balance sheet measurements, cash return on
assets, stockholder return, or return on capital. The Committee will determine
the length of an award period, the maximum payment value of an award, and the
minimum performance goals required before payment will be made.
Amendment and Termination of the 1996 Stock Incentive Plan. The Board of
Directors may amend or terminate the 1996 Stock Incentive Plan at any time;
provided, however, that, the Board of Directors may not amend the 1996 Stock
Incentive Plan to (i) increase (except for increases due to the adjustments
discussed below) the aggregate number of shares of Common Stock for which
Options and/or Grants may be granted hereunder, (ii) decrease the minimum
exercise price specified by the 1996 Stock Incentive Plan in respect of ISOs,
(iii) change the class of employees eligible to receive ISOs under the 1996
Stock Incentive Plan, (iv) increase the individual limit of shares of Common
Stock for which Options and/or Grants may be granted to any single individual
under the 1996 Stock Incentive Plan, or (v) make any amendment that requires
stockholder approval pursuant to Rule 16b-3 of the Exchange Act or Section
162(m) of the Code without stockholder approval. The 1996 Stock Incentive Plan
will terminate on the day immediately preceding the tenth anniversary of its
effective date, unless terminated earlier by the Board of Directors or extended
by the Board of Directors with approval of the stockholders.
Adjustment Provisions. Subject to the change of control provisions below, in
the event of certain transactions identified in the 1996 Stock Incentive Plan,
the Board of Directors may appropriately adjust: (i) the number of shares of
Common Stock (and the option price per share) subject to the unexercised
portion of any outstanding options or SARs, (ii) the number of sharers of
Common Stock to be acquired pursuant to an award which has not vested, and
(iii) the number of shares of Common Stock for which awards may be made under
the 1996 Stock Incentive Plan, and such adjustments shall be effective and
binding for all purposes of the 1996 Stock Incentive Plan.
Change of Control of the Company. In the event of a change of control, all
Options and Grants shall be fully vested. Each participant will be provided
with advance written notice by the Company prior to the change of control (to
the extent possible) and will have the right, within 90 days after such notice,
to exercise the options and SARs in full. Any Options or SARs not timely
exercised will terminate unless exchanged or substituted with
55
<PAGE>
the Company (or its successor). Within 12 months following a change of control,
a percentage of the performance unit payments, if any, for the full performance
period in which the participant so terminates equal to the percentage of the
performance period during which the participant was in the employ or service of
the Company (or its successor) and all amounts for the prior performance period
if not then distributed will be distributed to such participant in a lump sum.
A change of control is defined as (i) a tender offer, merger or other
transaction as a result of which any person or group becomes the owner of more
than 50% of the Common Stock or the combined voting power of the Company's then
outstanding securities, (ii) a liquidation or a sale of substantially all the
Company's assets, (iii) the individuals constituting the Board of Directors or
individuals nominated or elected by them cease to constitute a majority of the
Board of Directors, or (iv) the Company's merger or consolidation with any
other corporation (other than a wholly owned subsidiary) if the Company is not
the surviving corporation (or survives only as a subsidiary of another
corporation).
Section 162(m). Under Section 162(m) of the Code, the Company may be precluded
from claiming a federal income tax deduction for total remuneration in excess
of $1,000,000 paid to the chief executive officer or to any of the other four
most highly compensated officers in any one year. Total remuneration would
include amounts received upon the exercise of stock options granted under the
1996 Stock Incentive Plan and the value of shares received when the shares of
restricted stock became transferable (or such other time when income is
recognized). An exception does exist, however, for "performance-based
compensation," including amounts received upon the exercise of stock options
pursuant to a plan approved by stockholders that meets certain requirements.
The 1996 Stock Incentive Plan has been approved by stockholders and is intended
to make grants of Options thereunder meet the requirements of "performance-
based compensation." Awards of restricted stock generally will not qualify as
"performance-based compensation."
New Plan Benefits. Upon the Effective Date, it is contemplated that the Company
will grant certain Options under the 1996 Stock Incentive Plan at an exercise
price equal to the initial public offering price per share. With regard to
options granted to executive officers, one-fourth of the options vest
immediately and the remaining options vest ratably over the next three years on
successive anniversaries of the date of grant. Options granted to non-employee
directors vest immediately in their entirety. All other options will vest one-
third each on the first, second and third anniversaries of the date of grant.
All options expire on the tenth anniversary of the date of grant. The following
table sets forth certain information with respect to such contemplated Option
grants.
<TABLE>
<CAPTION>
DOLLAR VALUE(1) NUMBER OF UNITS(2)
NAME AND POSITION ---------------- ------------------
<S> <C> <C>
J. Brian O'Neill Not determinable 500,000
Chairman of the Board and Chief
Executive Officer
Michael C. Boyd Not determinable 300,000(3)
President and Chief Operating
Officer
William F. Rhatigan Not determinable --
President of the Company's
Telemarketing Group
Morton M. Reich Not determinable --
President of the Company's Reich
division
Edward M. Idzik Not determinable --
President of the Company's Harris
division
All current executive officers as a Not determinable 900,000(3)(4)
group
All current directors who are not Not determinable 2,500
executive officers as a group
All employees, including all current
officers who are not executive
officers, as a group Not determinable 383,600
</TABLE>
- --------
(1)The dollar values of the awards under the 1996 Stock Incentive Plan are not
determinable at this time, since the options are expected to be granted at an
exercise price equal to the initial public offering price of the Common Stock.
(2) The number of units represents the number of shares of Common Stock
underlying the options expected to be granted.
(3)Does not include options to purchase 300,000 additional shares that the
Company is to grant ratably over the course of the next four years pursuant to
Mr. Boyd's employment agreement.
(4)Does not include options to purchase 100,000 additional shares that the
Company is to grant ratably over the course of the next four years pursuant to
an executive officer's employment agreement.
56
<PAGE>
EMPLOYMENT AGREEMENTS
Effective as of the consummation of the Offering, the Company will enter into
employment agreements with the Named Executive Officers and certain of the
Company's other executive officers. Mr. O'Neill's agreement provides that he
will be employed by the Company through May 20, 2000 at an annual salary of
$130,000, plus an annual bonus. The terms and amount of the annual bonus, which
shall not exceed $400,000, will be determined by the Compensation Committee of
the Company's Board of Directors after the additional independent, unaffiliated
director to be elected to the Company's Board of Directors is appointed to the
Compensation Committee. In addition, Mr. O'Neill's employment agreement
provides that he shall be granted options to purchase 500,000 shares of Common
Stock. The options are to be granted pursuant to the Company's 1996 Stock
Incentive Plan. See "Management--1996 Stock Incentive Plan." If Mr. O'Neill is
terminated without cause, or if Mr. O'Neill terminates his employment for "good
reason" (as defined in this employment agreement), he is entitled to receive
$330,000 per year for the remainder of the term of his agreement. Mr. Boyd's
agreement provides that he will be employed by the Company through April 21,
2000 at an annual salary of $275,000, plus an annual performance bonus of up to
$281,250 based in part upon his performance and in part upon the operating
performance of the Company and stock options, of which options to purchase
300,000 shares of Common Stock are to be granted upon the Effective Date and
options to purchase 75,000 shares of Common Stock are to be granted annually
thereafter during the term of his employment agreement. The options are to be
granted pursuant to the Company's 1996 Stock Incentive Plan. See "Management--
1996 Stock Incentive Plan." Mr. Boyd's salary and bonus will be increased to
match the salary and guaranteed bonus of any employee of the Company
subsequently hired at a salary and guaranteed bonus which exceeds $500,000 in
the aggregate. If Mr. Boyd is terminated without cause, or if Mr. Boyd
terminates his employment for "good reason" (as defined in his employment
agreement), he is entitled to receive $387,500 payable over a one-year period.
Mr. Schwenk's agreement provides that he will be employed by the Company
through May 5, 2000 at an annual salary of $200,000, plus an annual performance
bonus of up to $187,500 based in part upon his performance and in part upon the
operating performance of the Company and stock options, of which options to
purchase 100,000 shares of Common Stock are to be granted upon the Effective
Date and options to purchase 25,000 shares of Common Stock are to be granted
annually thereafter during the term of his employment agreement. The options
are to be granted pursuant to the Company's 1996 Stock Incentive Plan. See
"Management--1996 Stock Incentive Plan." If Mr. Schwenk is terminated without
cause, or if Mr. Schwenk terminates his employment for "good reason" (as
defined in this employment agreement), he is entitled to receive $275,000
payable over a one-year period. Mr. Rhatigan's agreement provides that he will
be employed by the Company for a four-year term at an annual salary of
$250,000, plus an annual guaranteed bonus of $150,000. If Mr. Rhatigan is
terminated without cause, he will continue to receive his salary and bonus for
the remainder of the term of the agreement. Mr. Alcorn's agreement provides
that he will be employed by the Company for a four-year term at an annual
salary of $195,000, plus an annual performance bonus of up to $195,000 based
upon the operating performance of the Company's SOMAR division. If Mr. Alcorn
is terminated without cause, he will continue to receive his salary for the
remainder of the term of the agreement. Mr. Baldasare's agreement provides that
he will be employed through December 31, 1999 at an annual salary of $195,000,
which shall increase to $220,000 after December 21, 1997, plus an annual bonus,
which bonus shall be a portion of a pool, the amount of which shall be
determined by the operating performance of the Company's Market Research
division. If Mr. Baldasare is terminated without cause, he will continue to
receive his salary for the remainder of the term of the agreement and his bonus
for the year of termination. Mr. Gallant's agreement provides that he will be
employed by the Company for a four-year term at an annual salary of $250,000,
plus an annual guaranteed bonus of $150,000. If Mr. Gallant is terminated
without cause, he will continue to receive his salary and bonus for the
remainder of the term of the agreement. Mr. Idzik's agreement provides that he
will be employed by the Company for a four-year term at an annual salary of
$275,000, plus an annual guaranteed bonus of $225,000. If Mr. Idzik is
terminated without cause, he will continue to receive his salary and bonus for
the remainder of the term of the agreement. Mr. Reich's agreement provides that
he will be employed by the Company through December 31, 1999 at an annual
salary of $300,000 plus an annual performance bonus of up to $200,000 based in
part upon his performance and in part upon the operating performance of the
Company's Reich division. If Mr. Reich is terminated without cause, he will
continue to receive his salary for the remainder of the term of the agreement.
Ms. Schweitzer's agreement provides that she will be employed by the Company
for a four-year term at an annual salary of $160,000 plus an annual performance
bonus of at least $150,000 based in part upon her performance, and in part upon
the operating performance of the Company's TeleSpectrum division. If Ms.
Schweitzer is terminated without cause, she will continue to receive her salary
for the remainder of the term at the agreement. Each of the agreements contains
confidentiality and non-competition provisions. The non-competition provisions
apply throughout the term of employment and for a period of two years
thereafter, with the exception of Messrs. O'Neill, Boyd and Schwenk whose
agreements provide for non-competition throughout the terms of their respective
employment and for a period of one year thereafter.
57
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The following table contains information concerning the aggregate cash paid and
stock and warrants issued in connection with the Acquisitions (excluding cash
and securities that may be paid or issued in connection with earn-out
arrangements). Also excludes CRW Lender Warrants and CRW Management Warrants.
See "--CRW Transactions."
<TABLE>
--------------------------------------------------------------
<CAPTION>
VALUE OF VALUE OF
SHARES OF SHARES
CASH COMMON STOCK SHARES UNDERLYING
(IN SHARES OF (IN UNDERLYING WARRANTS
MILLIONS) COMMON STOCK MILLIONS) WARRANTS (IN MILLIONS)
OPERATING BUSINESS --------- ------------ ------------ ---------- -------------
<S> <C> <C> <C> <C> <C>
SOMAR $25.0 2,207,340 $21.7 210,000 $0.7
NBG 14.1 1,120,225 12.7 112,500 0.4
Harris 12.2 202,192 2.0 60,900 0.2
Reich 20.0 441,468 4.3 105,000 0.4
TeleSpectrum 8.0(1) 176,587 1.7 44,100 0.2
The Response Center 11.6 256,051 2.5 60,900 0.2
----- --------- ----- ------- ----
Total $90.9 4,403,863 $44.9 593,400 $2.1
</TABLE>
- --------
(1)Does not include the cancellation of a $0.5 million promissory note from the
Seller of the Operating Business held by the Company.
THE ACQUISITIONS
Simultaneously with and as a condition of the consummation of the sale of the
shares of Common Stock offered hereby, TeleSpectrum Worldwide will acquire the
Operating Businesses in the Acquisitions, upon the following material terms:
SOMAR
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of SOMAR for $25.0 million in cash,
2,207,340 shares of Common Stock (valued at $21.7 million), contingent
payments, the grant of warrants (valued at $0.7 million) and the payment of
certain of SOMAR's expenses. The contingent payment for 1996, if any, is equal
to 50% of the amount by which the earnings before interest and taxes ("EBIT")
of the Company's SOMAR division for 1996 exceed $4.3 million and is payable in
cash. SOMAR's 1995 EBIT was $1.7 million. The contingent payment for 1997, if
any, is equal to the amount by which 1997 EBIT of the Company's SOMAR division
exceeds $17.3 million, multiplied by five, less the bonus payment discussed
below, not to exceed $45.0 million. The 1997 payment is payable in Common Stock
registrable upon demand by SOMAR. The number of shares to be issued in
satisfaction of the contingent payment will be calculated by reference to the
trading price of the Company's Common Stock at the time of the determination of
1997 EBIT. In addition, the Company shall make a bonus payment to the Company's
SOMAR division, in an amount equal to 50% of the amount by which the 1997 EBIT
exceeds $17.3 million, not to exceed $5.0 million. The bonus payment is payable
in cash to the SOMAR division for the purpose of granting bonuses to employees
of the SOMAR division, at the discretion of Mr. Alcorn. SOMAR shall reimburse
the Company the amount, if any, by which the stockholders' equity set forth on
the SOMAR balance sheet as of the closing date of the Acquisition is less than
the stockholders' equity set forth on the SOMAR balance sheet as of December
31, 1995, excluding expenses associated with the Acquisition and the Offering
and certain permitted distributions.
The Company will issue warrants exercisable for an aggregate of 210,000 shares
of Common Stock to certain senior management personnel of SOMAR, including
Messrs. Alcorn (31,500 shares) and Virtue (129,500 shares) at an exercise price
per share equal to the initial public offering price. The warrants will be
immediately exercisable and will expire ten years from issuance. On the
Effective Date the Company will grant options under the 1996 Stock Incentive
Plan to purchase an aggregate of 90,000 shares of Common Stock to certain
employees of SOMAR, not including Messrs. Alcorn and Virtue, at an exercise
price per share equal to the initial public
58
<PAGE>
offering price, which options shall be subject to a three-year vesting period.
The Company has granted piggyback registration rights with respect to those
shares issued in payment of a portion of the purchase price of the Acquisition.
SOMAR has the right to include in the Offering 171,429 shares of Common Stock,
36,000 shares of which it has determined to include in the Offering.
The Company will cause the Operating Business of SOMAR to be held and operated
as a separate division of the Company through December 31, 1997. The Company
will not allocate any Company expenses to SOMAR through December 31, 1997,
other than expenses directly incurred by SOMAR. The Company has committed to
make available to the Company's SOMAR division up to $14.0 million for the
purpose of meeting SOMAR's capital expenditure requirements. At or prior to the
Effective Date, CRW Financial, a significant stockholder of the Company, will
nominate and vote its shares in favor of the election of Mr. Virtue to the
Company's Board of Directors.
The Company will reimburse SOMAR for the fees and expenses incurred in
connection with the audit of its financial statements for the years ended
December 31, 1993 and 1994; one-half of the fee paid by SOMAR to The Robinson-
Humphrey Company, Inc., not to exceed $400,000; one-half of all accounting
fees, excluding those fees described above, incurred by SOMAR in connection
with the Acquisition and the Offering; and one-half of the legal fees incurred
by SOMAR in connection with the Acquisition and the Offering.
Upon consummation of the Offering, Mr. Virtue will repay to the Seller of the
SOMAR Operating Business an advance that, as of June 30, 1996, was in the
amount of $0.9 million. At or prior to the consummation of the Offering, all
amounts owing to the Company from certain entities which are under common
control and ownership with SOMAR, Inc. (the "SOMAR Affiliates"), or owing to
the SOMAR Affiliates from the Company, will be fully satisfied. All agreements,
understandings and arrangements with such SOMAR Affiliates will be amended so
that all continuing obligations of the Company's SOMAR division thereunder are
no greater than they would be under agreements with unaffiliated third parties.
NBG
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of NBG for $14.1 million in cash,
1,120,225 shares of Common Stock (valued at $12.7 million), a contingent
payment, the grant of warrants (valued at $0.4 million), and the payment of
certain of NBG's expenses. The contingent payment is equal to the amount by
which the product of NBG's 1996 EBIT and 7.25 exceeds $25.4 million. NBG's 1995
EBIT was $2.1 million. The Company has agreed to operate NBG as a separate
business through 1996. The Company will not allocate any Company expenses to
NBG through 1996, other than expenses directly incurred by NBG. The amount of
the contingent payment is payable in the form of a convertible promissory note
to be issued at closing of the Acquisition of NBG, which note is payable in
three equal installments of principal, together with accrued interest thereon,
ending January 2, 1999. Interest on the unpaid principal balance of the note
accrues at 7.25% per annum. The outstanding principal balance, or a portion
thereof, is convertible into shares of the Common Stock after the thirtieth day
following the first anniversary of the closing of the Acquisition of NBG, at a
conversion price equal to the average of the closing sale prices of the Common
Stock on the five trading days prior to December 31, 1996. NBG shall reimburse
the Company the amount, if any, by which the shareholders' equity set forth on
the NBG balance sheet as of the closing date of the Acquisition is less than
the shareholders' equity set forth on the NBG balance sheet as of December 31,
1995, excluding certain permitted distributions.
The Company will issue warrants exercisable for an aggregate of 56,250 shares
of Common Stock to each of Messrs. Rhatigan and Gallant, at an exercise price
per share equal to the initial public offering price. The warrants will be
immediately exercisable and will expire ten years from the date of issuance. On
the Effective Date, the Company will grant options under the 1996 Stock
Incentive Plan to purchase an aggregate of 75,000 shares of the Common Stock to
certain employees of NBG, not including Messrs. Rhatigan and Gallant, at an
exercise price per share equal to the initial public offering price, which
options shall be subject to a three-year vesting period. NBG has piggyback
registration rights with respect to those shares of Common Stock issued in
payment of a portion of the purchase price of the Acquisition and those shares
of Common Stock to be issued pursuant to the convertible note, if any. NBG has
the right to include in the Offering 334,000 shares of Common Stock, all of
which it has determined to include in the Offering.
59
<PAGE>
At or prior to the Effective Date, CRW Financial, a significant stockholder of
the Company, shall nominate and vote its shares in favor of the election of Mr.
Rhatigan to the Company's Board of Directors. The Company shall pay the
expenses incurred by NBG's independent public accounting firm and up to
$100,000 of the legal fees incurred by NBG in connection with the Acquisition
and the Offering.
Harris
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of Harris for $12.2 million in cash,
202,192 shares of Common Stock (valued at $2.0 million), the grant of warrants
(valued at $0.2 million) and the payment of certain of Harris's expenses.
Harris has piggyback registration rights with respect to those shares of Common
Stock issued in payment of a portion of the purchase price of the Acquisition.
The Company will issue warrants exercisable for an aggregate of 60,900 shares
of Common Stock to certain executives of Harris, including warrants exercisable
for 54,810 shares to Mr. Idzik, at an exercise price per share equal to the
initial public offering price. The warrants will be immediately exercisable and
will expire ten years from the date of issuance. On the Effective Date, the
Company will grant options under the 1996 Stock Incentive Plan to purchase an
aggregate of 26,100 shares of the Common Stock to certain employees of Harris,
not including Mr. Idzik, at an exercise price per share equal to the initial
public offering price, which options shall be subject to a three-year vesting
period. Harris shall reimburse the Company the amount, if any, by which the
shareholders' equity set forth on the Harris balance sheet as of the closing
date of the Acquisitions is less than the shareholders' equity set forth on the
Harris balance sheet as of December 31, 1995, excluding certain permitted
distributions. The Company will pay the expenses incurred by Harris's
independent accounting firm and up to $100,000 of the legal fees incurred by
Harris in connection with the Acquisition and the Offering.
Reich
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of Reich for $20.0 million in cash,
441,468 shares of Common Stock (valued at $4.3 million), a contingent payment,
the grant of warrants (valued at $0.4 million), and the payment of certain of
Reich's expenses. The contingent payment is based upon the amount, if any, by
which Reich's 1996 EBIT multiplied by 7.25 exceeds $25.0. Reich's 1995 EBIT was
$1.9 million. The Company has agreed to operate Reich as a separate business
through 1996. The Company will not allocate any Company expense to Reich
through 1996, other than expenses directly incurred by Reich. The contingent
payment is payable in the form of a convertible promissory note to be issued at
closing of the Acquisition, which note is payable in three equal installments
of principal, together with accrued interest thereon, ending January 2, 1999.
Interest on the unpaid principal balance of the note accrues at 7.25% per
annum. The outstanding principal balance, or a portion thereof, is convertible
into shares of the Common Stock after the thirtieth day following the first
anniversary of the closing of the Acquisition of Reich, at a conversion price
equal to the average of the closing sale prices of the Common Stock on the five
trading days prior to December 31, 1996. The Company will issue warrants
exercisable for an aggregate of 105,000 shares of Common Stock to Morton M.
Reich, at an exercise price per share equal to the initial public offering
price. The warrants will be immediately exercisable and will expire ten years
from the date of issuance. On the Effective Date, the Company will grant
options under the 1996 Stock Incentive Plan to purchase an aggregate of 45,000
shares of the Common Stock to certain employees of Reich, not including Mr.
Reich, at an exercise price per share equal to the initial public offering
price, which options shall be subject to a three-year vesting period. Reich has
piggyback registration rights with respect to those shares of Common Stock
issued in payment of a portion of the purchase price of the Acquisition and
those shares of Common Stock to be issued pursuant to the convertible note, if
any. Reich shall reimburse the Company the amount, if any, by which the
shareholders' equity set forth on the Reich balance sheet as of the closing
date is less than the shareholders' equity set forth in the Reich balance sheet
as of December 31, 1995, excluding expenses associated with the Acquisition and
the Offering. In addition, prior to the closing of the Acquisition, Reich may
(i) make distributions in an amount necessary to enable Mr. Reich to pay all
federal, state and local taxes for all periods prior to such closing and (ii)
distribute on the day immediately prior to such closing an amount equal to the
aggregate net income of Reich for federal income tax purposes for 1995;
provided, however, that if Reich does not have sufficient cash to make such
distributions, the
60
<PAGE>
Company will assume an obligation to pay such amount prior to March 1, 1997.
The Company will pay the expenses incurred by Reich's independent accounting
firm and up to $100,000 of the legal fees incurred by Reich in connection with
the Acquisition and the Offering.
TeleSpectrum
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of TeleSpectrum for $8.0 million in cash,
176,587 shares of Common Stock (valued at $1.7 million), the grant of warrants
(valued at $0.2 million), the payment of certain of TeleSpectrum's expenses and
the cancellation of the outstanding principal amount of a promissory note held
by TeleSpectrum Worldwide, in the original principal amount of $500,000, which
represented an advance of purchase price from CRW Financial to TeleSpectrum on
behalf of TeleSpectrum Worldwide. The Company will issue warrants exercisable
for an aggregate of 44,100 shares to two executives of TeleSpectrum, including
warrants to Ms. Schweitzer exercisable for 22,050 shares at an exercise price
per share equal to the initial public offering price. The warrants will be
immediately exercisable and will expire ten years from the date of issuance. On
the Effective Date, the Company will grant options under the 1996 Stock
Incentive Plan to purchase an aggregate of 18,900 shares of Common Stock to
certain employees of TeleSpectrum, not including Ms. Schweitzer, at an exercise
price per share equal to the initial public offering price, which options shall
be subject to a three-year vesting period. TeleSpectrum has piggyback
registration rights with respect to those shares of Common Stock issued in
payment of a portion of the purchase price of the Acquisition. TeleSpectrum
shall reimburse the Company the amount, if any, by which the shareholders'
equity set forth on the TeleSpectrum balance sheet as of the closing date of
the Acquisition is less than the shareholders' equity set forth on the
TeleSpectrum balance sheet as of December 31, 1995. The Company will pay the
expenses incurred by TeleSpectrum's independent accounting firm and up to
$100,000 of the legal fees incurred by TeleSpectrum in connection with the
Acquisition and the Offering.
The Response Center
TeleSpectrum Worldwide will acquire substantially all of the assets (and assume
substantially all of the liabilities) of The Response Center for $11.6 million
in cash, 256,051 shares of Common Stock (valued at $2.5 million), the grant of
warrants (valued at $0.2 million) and the payment of certain of The Response
Center's expenses. The Company will issue warrants exercisable for an aggregate
of 60,900 shares of Common Stock to certain executives of The Response Center,
including warrants to Mr. Baldasare exercisable for 55,474 shares, at an
exercise price per share equal to the initial public offering price. The
warrants will be immediately exercisable and will expire ten years from the
date of issuance. On the Effective Date, the Company will grant options under
the 1996 Stock Incentive Plan to purchase an aggregate of 26,100 shares of
Common Stock to certain employees of The Response Center, including 11,887 to
Mr. Baldasare, which options vest immediately and are exercisable at an
exercise price per share equal to the initial public offering price. The
Response Center has piggyback registration rights with respect to those shares
of Common Stock issued at closing in payment of a portion of the purchase price
of the Acquisition. TeleSpectrum Worldwide will pay the expenses incurred by
The Response Center's independent public accounting firm and up to $100,000 of
legal fees incurred in connection with the Acquisition and the Offering. The
Response Center shall reimburse the Company the amount, if any, by which the
stockholders' equity set forth on The Response Center balance sheet as of the
closing date is less than the sum of the stockholders' equity set forth on The
Response Center balance sheet as of September 30, 1995 and The Response
Center's net income for income tax purposes for the period from October 1, 1995
through March 31, 1996, minus the sum of $455,000 and certain permitted
distributions.
CONSULTING AGREEMENT WITH PERSON NAMED TO BECOME DIRECTOR
Effective as of the consummation of the Offering, the Company will enter into a
consulting agreement with Richard W. Virtue, who has been named to become a
director of the Company. Mr. Virtue's agreement provides that he will perform
consulting services for the Company for $150,000 per year. The agreement has a
three-year term and contains confidentiality and non-competition provisions.
HEADQUARTERS LEASE
TeleSpectrum Worldwide subleases an aggregate of approximately 3,000 square
feet of space in King of Prussia, Pennsylvania from CRW Financial. The space
houses TeleSpectrum Worldwide's headquarters facility, and
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<PAGE>
comprises 14.2% of the aggregate space previously occupied by CRW Financial at
this location. CRW Financial, in turn, leases this space from CRW Building
Limited Partnership, a partnership controlled by J. Brian O'Neill, who is
Chairman and Chief Executive Officer of both TeleSpectrum Worldwide and CRW
Financial. The sublease commenced on May 9, 1996, and expires on September 30,
2004. Under the sublease, TeleSpectrum Worldwide performs and pays 14.2% of all
obligations of CRW Financial under its lease with CRW Building Limited
Partnership; monthly base rent payments under the sublease are approximately
$4,100. TeleSpectrum Worldwide believes that the sublease reflects the
prevailing commercial market rate for the space that it occupies.
62
<PAGE>
CRW TRANSACTIONS
Initial Capitalization
CRW Financial, the sole stockholder of TeleSpectrum Worldwide, has made a
capital contribution to TeleSpectrum Worldwide of $1.6 million in cash and $0.5
million in the form of a promissory note from TeleSpectrum, Inc. to CRW
Financial. The capital contribution represents the proceeds of borrowings by
CRW Financial under subordinated notes (the "CRW Notes") issued to eight
individuals and one partnership (the "Lenders") on May 22, 1996. Amounts
outstanding under the CRW Notes bear interest at 12% per annum. Principal and
interest on the CRW Notes are due and payable in full immediately upon
repayment in full of all amounts owing from CRW Financial to Mellon Bank N.A.
(the "Mellon Repayment"), or in quarterly installments of 12.5% of the
principal amount plus accrued but unpaid interest beginning January 1, 1997 if
the Mellon Repayment has not been effected on or before any such quarterly
repayment date. As part of the consideration for the CRW Notes, CRW Financial
issued to the Lenders warrants (the "CRW Lender Warrants") to purchase a total
of 1,433,454 shares of Common Stock of TeleSpectrum Worldwide that are
currently owned by CRW Financial. The CRW Lender Warrants are exercisable at
any time during a 10-year period at a price of $1.50 per share (the "CRW
Warrant Price"). In connection with the CRW Initial Capitalization,
TeleSpectrum Worldwide has granted the Lenders the right to have the
TeleSpectrum Worldwide shares of Common Stock owned by CRW Financial and
underlying the CRW Lender Warrants registered under the Securities Act along
with the registration of any other TeleSpectrum Worldwide shares of Common
Stock and also the right to certain demand registrations subject to the
Lenders' agreement not to sell during the 180 days after consummation of the
Offering any shares of Common Stock acquired through exercise of the CRW Lender
Warrants. The Lenders, their respective relationships with CRW Financial and
TeleSpectrum Worldwide and their respective loan and share amounts are as
follows:
<TABLE>
--------------------------------
<CAPTION>
SHARES OWNED BY
CRW FINANCIAL AND
UNDERLYING CRW
CRW NOTE LENDER WARRANTS
LENDER -------- ---------------
<S> <C> <C>
Technology Leaders II L.P. $362,250 247,270
Stockholder of CRW Financial
TL Ventures Third Corp. 287,750 196,423
Stockholder of CRW Financial
J. Brian O'Neill 650,000 443,693
Chairman of the Board and Chief Executive
Officer of CRW Financial and of the Company
Michael C. Boyd 200,000 136,514
President and Chief Operating Officer of the Com-
pany
Richard C. Schwenk, Jr. 200,000 136,514
Senior Vice President and Chief Financial Officer
of the Company
Bernard Morgan 100,000 68,250
Director of CRW Financial
Robert N. Verratti 100,000 68,250
Director of CRW Financial
Arthur R. Spector 100,000 68,250
Consultant to CRW Financial
Jonathan P. Robinson 50,000 34,145
Chief Financial Officer of CRW Financial and
Director of Acquisitions of the Company
Kevin E. Mullin 50,000 34,145
Director of Acquisitions of CRW Financial
---------- ---------
$2,100,000 1,433,454
========== =========
</TABLE>
63
<PAGE>
In consideration of the grant by Mellon Bank, N.A., CRW Financial's primary
lender, of a waiver of a restrictive covenant in the agreement governing CRW
Financial's loan facility, which waiver permitted CRW Financial to issue the
CRW Notes and thereby to effect the initial capitalization of TeleSpectrum
Worldwide, CRW Financial granted to Mellon Bank, N.A. a warrant to purchase
75,445 shares of Common Stock of TeleSpectrum Worldwide currently owned by CRW
Financial. This warrant is exercisable at any time during a 10-year period at
the CRW Warrant Price.
CRW Management Warrants
CRW Financial granted warrants (the "CRW Management Warrants") on May 17, 1996
to four individuals related to CRW Financial (the "CRW Managers") who are
performing services on behalf of CRW Financial in connection with the
Acquisitions and the Offering. The CRW Management Warrants entitle the holders
to purchase a total of 839,108 shares of Common Stock of TeleSpectrum Worldwide
that are currently owned by CRW Financial. The CRW Management Warrants vest
immediately and are exercisable at any time after vesting during a 10-year
period at the CRW Warrant Price. TeleSpectrum Worldwide has granted the CRW
Managers the right to have the shares of Common Stock underlying the CRW
Management Warrants registered under the Securities Act along with the
registration of any other shares of Common Stock and also the right to certain
demand registrations, subject to the CRW Managers' agreement not to sell during
the 180 days after consummation of the Offering any shares of Common Stock
acquired through exercise of the CRW Management Warrants. The CRW Managers
(whose respective relationships with CRW Financial and TeleSpectrum Worldwide
are described above in connection with the CRW Notes) and their respective
share amounts underlying the CRW Management Warrants are as follows: J. Brian
O'Neill--610,160 shares; Arthur R. Spector--76,316 shares; Jonathan P.
Robinson--76,316 shares; and Kevin E. Mullin--76,316 shares.
See Pro Forma Combined Financial Statements for purchase accounting for the CRW
Lender Warrants and the CRW Management Warrants.
CRW Market Research
On or prior to the Effective Date, CRW Financial will terminate the operations
of the market research business it has conducted since January 1996 ("CRWMR")
and will make the employees of CRWMR available to be hired by the Company or
the Company's Market Research division on or after the closing of the
Acquisitions. Neither the Company nor the Company's Market Research division
will have any obligation to hire any CRWMR employees. CRW Financial will retain
the accounts receivable and all accounts payable and other obligations
associated with the CRWMR business.
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<PAGE>
PRINCIPAL AND SELLING STOCKHOLDERS
Prior to the Acquisitions and the Offering, all of the Common Stock was held by
CRW Financial. The following table sets forth certain information regarding the
beneficial ownership of the Common Stock as of June 30, 1996, assuming
completion of the Acquisitions, and as adjusted to reflect the sale of the
Common Stock being offered hereby, by: (i) each person (or group of affiliated
persons) known by the Company to be the beneficial owner of more than five
percent of the outstanding Common Stock; (ii) each executive officer of the
Company; (iii) each director of the Company and each person named to become a
director; (iv) all of the Company's directors, persons named to become
directors and executive officers as a group; and (v) the Selling Stockholders.
Each stockholder possesses sole voting and investment power with respect to the
shares listed, unless otherwise noted.
<TABLE>
------------------------------------------------------------------------------
<CAPTION>
SHARES BENEFICIALLY OWNED SHARES TO BE BENEFICIALLY
PRIOR TO THE OFFERING NUMBER OF OWNED AFTER OFFERING
---------------------------------- SHARES ----------------------------------
NUMBER BEING NUMBER
OF SHARES PERCENT OFFERED OF SHARES PERCENT
BENEFICIAL OWNER --------------- ------- --------- --------------- -------
<S> <C> <C> <C> <C> <C>
CRW Financial, Inc. 8,510,137 65.9 -- 8,510,137 36.7
443 South Gulph Road
King of Prussia, PA
19406
J. Brian O'Neill 8,635,137 (1) 66.2 -- 8,635,137 (1) 37.0
443 South Gulph Road
King of Prussia, PA
19406
Entities Affiliated with 8,510,137 (2) 65.9 -- 8,510,137 (2) 36.7
Technology Leaders II
L.P.
435 Devon Park Drive
Wayne, PA 19087
SOMAR, Inc. (3) 2,207,340 17.1 36,000 2,171,340 9.4
118 South Main Street
Salisbury, NC 28144
NBG Services, Inc. (4) 1,120,225 8.7 334,000 786,225 3.4
One Broadway, 12th
Floor
Cambridge, MA 02142
Michael C. Boyd 211,514 (5) 1.6 -- 211,514 (5) *
Richard C. Schwenk, Jr. 161,514 (5) 1.2 -- 161,514 (5) *
Mark J. DeNino 8,512,637 (2)(6) 65.9 -- 8,512,637 (2)(6) 36.7
William F. Rhatigan 1,176,475 (7) 9.1 -- 842,475 (7) 3.6
Richard W. Virtue 2,336,840 (8) 17.9 -- 2,165,411 (8) 9.9
Gregory M. Alcorn 31,500 (9) * -- 31,500 (9) *
Patrick M. Baldasare 323,412 (10) 2.5 -- 323,412 (10) 1.4
Edward M. Idzik 257,002 (11) 2.0 -- 257,002 (11) 1.1
Morton M. Reich 546,468 (12) 4.2 -- 546,468 (12) 2.3
Karen E. Schweitzer 198,637 (13) 1.5 -- 198,637 (13) *
Michael J. Gallant 1,176,475 (7) 9.1 -- 842,475 (7) 3.6
All directors, persons
named to become direc-
tors and executive of-
ficers, as a group (12
persons) 13,664,221 (14) 100.0 370,000 13,294,221 (14) 56.4
</TABLE>
- --------
* Less than one percent.
(1)Includes 8,510,137 shares held by CRW Financial. Mr. O'Neill is Chairman of
the Board and Chief Executive Officer, and a principal stockholder, of CRW
Financial, and may be deemed to have shared voting and investment power over
the shares held by CRW Financial. Mr. O'Neill disclaims beneficial ownership of
all such shares. Of the shares held by CRW Financial, 443,693 shares are
purchasable by Mr. O'Neill from CRW Financial upon the exercise of CRW Lender
Warrants granted to Mr. O'Neill, and 610,160 shares are issuable by CRW
Financial to Mr. O'Neill upon the exercise of CRW Management Warrants granted
to Mr. O'Neill. Also includes 125,000 shares issuable upon the exercise of
options contemplated to be granted to Mr. O'Neill under the 1996 Stock
Incentive Plan upon consummation of the Offering at an exercise price equal to
the initial public offering price per share, which options are immediately
exercisable. Does not include 375,000 shares issuable upon the exercise of
stock options contemplated to be granted to Mr. O'Neill under the 1996 Stock
Incentive Plan upon consummation of the Offering at an exercise price equal to
the initial public offering price per share. None of the excluded warrants or
options will be exercisable within 60 days of June 30, 1996.
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<PAGE>
(2)Consists of 8,510,137 shares held by CRW Financial. Technology Leaders II
L.P. is a limited partnership whose sole general partner is Technology Leaders
II Management L.P. TL Ventures Third Corp. is a wholly owned subsidiary of
Technology Leaders II Offshore, C.V., whose co-general partner is Technology
Leaders II Management L.P. Technology Leaders II L.P. and Technology Leaders II
Offshore, C.V. are together referred to herein as "TL Ventures." Mark J.
DeNino, a director of the Company is a general partner of Technology Leaders II
Management L.P. TL Ventures is a significant stockholder of CRW Financial, and
may be deemed to share with Technology Leaders II L.P., voting and investment
power over the shares held by CRW Financial, of which Mr. DeNino is a director.
TL Ventures and Mr. DeNino disclaim beneficial ownership of all such shares. Of
the shares held by CRW Financial, 443,693 shares are purchasable by TL Ventures
upon the exercise of CRW Lender Warrants granted to TL Ventures, which warrants
are immediately exercisable. Mr. DeNino disclaims beneficial ownership of all
such shares.
(3)SOMAR, Inc. has not held any position or office in or had any material
relationship with the registrant or any of its predecessors or affiliates
within the past three years.
(4)NBG Services, Inc. has not held any position or office in or had any
material relationship with the registrant or any of its predecessors or
affiliates within the past three years.
(5)Consists of 136,514 shares issuable upon the exercise of CRW Lender
Warrants, which warrants are immediately exercisable. Also includes 75,000 and
25,000 shares issuable upon the exercise of stock options contemplated to be
granted to Messrs. Boyd and Schwenk, respectively, under the 1996 Stock
Incentive Plan upon consummation of the Offering at an exercise price equal to
the initial public offering price per share, which options are immediately
exercisable. Does not include 225,000 and 75,000 shares issuable upon the
exercise of stock options contemplated to be granted to Messrs. Boyd and
Schwenk, respectively, under the 1996 Stock Incentive Plan upon consummation of
the Offering at an exercise price equal to the initial public offering price
per share. These options will not be exercisable within 60 days of June 30,
1996.
(6)Includes 2,500 shares issuable upon the exercise of options granted to Mr.
DeNino under the 1996 Stock Incentive Plan in connection with Mr. DeNino's
appointment to the Company's Board of Directors. All such options are
immediately exercisable.
(7)Includes 1,120,225 shares held by NBG Services, Inc. Mr. Rhatigan and Mr.
Gallant together own all of the outstanding capital stock of NBG Services,
Inc., and each may be deemed to share voting and investment power over the
shares held by NBG Services, Inc. Also includes 56,250 shares issuable to each
of Messrs. Rhatigan and Gallant upon exercise of warrants granted to such
persons in connection with the Acquisition of the NBG Operating Business, which
warrants are immediately exercisable.
(8)Includes 2,207,340 shares held by SOMAR, Inc. Mr. Virtue is a principal
stockholder of SOMAR, Inc., and may be deemed to share voting and investment
power over the shares held by SOMAR, Inc. with Christopher F. Virtue, a
principal stockholder of SOMAR. Mr. Virtue disclaims beneficial ownership of
all such shares. Also includes 129,500 shares issuable upon the exercise of
warrants granted to Mr. Virtue in connection with the Acquisition of the SOMAR
Operating Business, which warrants are immediately exercisable.
(9)Consists of 31,500 shares issuable upon the exercise of warrants granted to
Mr. Alcorn in connection with the Acquisition of the SOMAR Operating Business,
which warrants are immediately exercisable.
(10)Includes 256,051 shares held by The Response Center, Inc. and The Tab
House, Inc. Mr. Baldasare is a principal shareholder of both The Response
Center, Inc. and The Tab House, Inc., and may be deemed to have sole voting and
investment power over the shares held by such entities. Also includes 55,474
shares issuable upon the exercise of warrants granted to Mr. Baldasare in
connection with the Acquisition of The Response Center Operating Business,
which warrants are immediately exercisable, and 11,887 shares issuable upon the
exercise of options granted to Mr. Baldasare in connection with the Acquisition
of The Response Center Operating Business, which options are immediately
exercisable.
(11)Includes 202,192 shares held by HDM and HFI. Mr. Idzik is a principal
shareholder of HDM and HFI, and may be deemed to have sole voting and
investment power over the shares held by HDM and HFI. Also includes 54,810
shares issuable upon the exercise of warrants granted to Mr. Idzik in
connection with the Acquisition of the Harris Operating Business, which
warrants are immediately exercisable.
66
<PAGE>
(12)Includes 441,468 shares held by The Reich Group, Inc. and its affiliates.
Mr. Reich is the sole stockholder of The Reich Group, Inc. and of all such
affiliates, and may be deemed to have sole voting and investment power over the
shares held by such entities. Also includes 105,000 shares issuable upon the
exercise of warrants granted to Mr. Reich in connection with the Acquisition of
the Reich Operating Business, which warrants are immediately exercisable.
(13)Includes 176,587 shares held by TeleSpectrum, Inc. Ms. Schweitzer is
President and a 50% stockholder of TeleSpectrum, Inc. and may be deemed to
share voting and investment power over the shares held by TeleSpectrum, Inc.
with Sherry F. Paterra, a 50% stockholder. Also includes 22,050 shares issuable
upon the exercise of warrants to be granted to Ms. Schweitzer in connection
with the Acquisition of the TeleSpectrum Operating Business, which warrants are
immediately exercisable.
(14)Includes 510,834 shares issuable upon the exercise of immediately
exercisable warrants, and 14,387 shares issuable upon the exercise of
immediately exercisable options issued in connection with the Acquisitions.
Does not include 1,471,052 shares issuable upon the exercise of options to be
granted upon consummation of the Offering or 400,000 shares issuable upon the
exercise of options to be granted by the Company ratably over the next four
years to two executive officers pursuant to their employment agreements; none
of the excluded options will be exercisable within 60 days of June 30, 1996.
See also Notes (1) through (11) above.
67
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 200,000,000 shares of
Common Stock, par value $.01 per share, and 5,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). The following summary
description of the capital stock of the Company does not purport to be complete
and is subject to the detailed provisions of, and qualified in its entirety by
reference to, the Certificate of Incorporation and Bylaws, copies of which have
been filed as exhibits to the registration statement of which this Prospectus
forms a part, and to the applicable provisions of the General Corporation Law
of the State of Delaware (the "DGCL").
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. Subject to the
rights of any holders of Preferred Stock, holders of Common Stock are entitled
to receive ratably such dividends as may be declared by the Board of Directors
out of funds legally available. See "Dividend Policy." In the event of a
liquidation, dissolution or winding up of the Company, holders of the Common
Stock are entitled to share ratably in the distribution of all assets remaining
after payment of liabilities, subject to the rights of any holders of Preferred
Stock. The holders of Common Stock have no preemptive rights to subscribe for
additional shares of the Company and no right to convert their Common Stock
into any other securities. In addition, there are no redemption or sinking fund
provisions applicable to the Common Stock. All of the outstanding shares of
Common Stock are, and the Common Stock offered hereby will be, fully paid and
nonassessable.
PREFERRED STOCK
The Board of Directors is authorized, without further action by the
stockholders, to issue any or all shares of authorized Preferred Stock as a
class without series or in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting any series. The issuance of Preferred
Stock could adversely affect the voting power of holders of Common Stock and
could have the effect of delaying, deferring or impeding a change in control of
the Company. As of the date of this Prospectus, the Company has not authorized
the issuance of any Preferred Stock and there are no plans, agreements or
understandings for the issuance of any shares of Preferred Stock.
CERTAIN PROVISIONS OF DELAWARE LAW AND THE COMPANY'S CERTIFICATE OF
INCORPORATION AND BYLAWS
The Company is subject to the provisions of Section 203 of the DGCL. Section
203 prohibits a publicly-held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed
manner. A "business combination" includes a merger, asset sale or other
transaction resulting in a financial benefit to the interested stockholder.
Subject to certain exceptions, an "interested stockholder" is a person who,
together with affiliates and associates, owns, or within three years prior to
the proposed business combination has owned 15% or more of the corporation's
voting stock.
The Company's Certificate of Incorporation provides that liability of directors
of the Company is eliminated to the fullest extent permitted under Section
102(b)(7) of the DGCL. As a result, no director of the Company will be liable
to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability: (i) for any breach of the director's
duty of loyalty to the Company or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) for any wilful or negligent payment of an unlawful
dividend, stock purchase or redemption; or (iv) for any transaction from which
the director derived an improper personal benefit.
68
<PAGE>
The Bylaws of the Company provide that stockholders must follow an advance
notification procedure for certain stockholder nominations of candidates for
the Board of Directors and for certain other stockholder business to be
conducted at an annual meeting. These provisions could, under certain
circumstances, operate to delay, defer or prevent a change in control of the
Company.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C.
69
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this Offering and the Acquisitions, the Company will have
23,200,000 shares of Common Stock outstanding, based upon the number of shares
outstanding as of June 30, 1996. The 10,656,000 shares sold in this Offering
will be freely tradeable without restriction or further registration under the
Securities Act, unless acquired by an "affiliate" of the Company as that term
is defined in Rule 144 promulgated under the Securities Act ("Rule 144"), which
shares will be subject to resale limitations of Rule 144 described below. As of
the consummation of this Offering, holders of 6,305,425 shares of Common Stock
will have piggyback rights to require the Company in certain circumstances to
register such shares for sale under the Securities Act.
In general, under Rule 144 as currently in effect, a stockholder who has
beneficially owned for at least two years shares privately acquired directly or
indirectly from the Company or from an affiliate of the Company, and persons
who are affiliates of the Company who have acquired the shares in registered
transactions, will be entitled to sell within any three-month period a number
of shares that does not exceed the greater of: (i) one percent of the
outstanding shares of Common Stock (approximately 232,000 shares immediately
after completion of the offering); or (ii) the average weekly trading volume in
the Common Stock during the four calendar weeks preceding such sale. Sales
under Rule 144 are also subject to certain requirements relating to the manner
and notice of sale and the availability of current public information about the
Company.
The Company, each of its directors and officers, the holders of all of the
shares of Common Stock that are or will be outstanding prior to the
consummation of the Acquisitions and the holders of all of the CRW Lender
Warrants and CRW Management Warrants have agreed with the Underwriters not to
offer, sell or otherwise dispose of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for such shares for a period of
180 days after the date of this Prospectus without the prior written consent of
J.P. Morgan Securities Inc. The holders of the shares of Common Stock and
warrants issued or to be issued in the Acquisitions have agreed with the
Underwriters not to offer, sell or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for such
shares for a period of 360 days after the date of this Prospectus without the
prior written consent of J.P. Morgan Securities Inc.
In connection with the Acquisitions, the Company has granted certain of the
Sellers the right to include up to 4,033,863 shares of Common Stock in certain
registrations of Common Stock under the Securities Act effected following
consummation of the Offering. In addition, certain of the Sellers have the
right to demand or piggyback registration of all or a portion of the shares of
Common Stock that may be issued to them in payment of the earn-out component of
the purchase price for their Operating Businesses. In connection with the
shares issuable upon exercise of the CRW Lender Warrants and the CRW Management
Warrants, the Company has agreed to include the 2,272,562 shares of Common
Stock issuable upon exercise thereof in any registration of shares of Common
Stock to be sold by the Company.
Prior to this Offering, there has been no market for the Common Stock. No
predictions can be made with respect to the effect, if any, that public sales
of shares of the Common Stock or the availability of shares for sale will have
on the market price of the Common Stock after the completion of the Offering.
Sales of substantial amounts of Common Stock in the public market following the
Offering, or the perception that such sales may occur, could adversely affect
the market price of the Common Stock or the ability of the Company to raise
capital through sales of its equity securities. See "Risk Factors--No Prior
Public Market; Possible Volatility of Stock Price."
70
<PAGE>
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date of this Prospectus (the "Underwriting Agreement"), the
Underwriters named below, for whom J.P. Morgan Securities Inc., Dillon, Read &
Co. Inc., Legg Mason Wood Walker, Incorporated and The Robinson-Humphrey
Company, Inc. are acting as representatives (the "Representatives"), have
severally agreed to purchase, and the Company has agreed to sell to them, the
respective numbers of shares of Common Stock set forth opposite their names
below. Under the terms and conditions of the Underwriting Agreement, the
Underwriters are obligated to take and pay for all such shares of Common Stock,
if any are taken. Under certain circumstances, the commitments of nondefaulting
Underwriters may be increased as set forth in the Underwriting Agreement.
<TABLE>
<CAPTION>
NUMBER
OF SHARES
UNDERWRITERS ----------
<S> <C>
J.P. Morgan Securities Inc.
Dillon, Read & Co. Inc.
Legg Mason Wood Walker, Incorporated
The Robinson-Humphrey Company, Inc.
----------
Total 10,656,000
==========
</TABLE>
The Underwriters propose initially to offer the Common Stock directly to the
public at the price set forth on the cover page of this Prospectus and to
certain dealers at such price less a concession not in excess of $ per
share. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per share to other dealers. After the initial public
offering of the Common Stock, the public offering price and such concession may
be changed.
The Company has granted to the Underwriters an option, expiring at the close of
business on the 30th day after the date of this Prospectus, to purchase up to
1,598,400 additional shares of Common Stock at the initial public offering
price, less the underwriting discount. The Underwriters may exercise such
option solely for the purpose of covering over-allotments, if any. To the
extent the Underwriters exercise the option, each Underwriter will have a firm
commitment, subject to certain conditions, to purchase approximately the same
percentage of such additional shares as the number set forth next to such
Underwriter's name in the preceding table bears to the total number of shares
of Common Stock offered hereby.
The Company and the Selling Stockholders have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act.
The Company, each of its directors and officers, and the holders of all of the
shares of Common Stock and options or warrants to purchase shares of Common
Stock that are or will be outstanding prior to the consummation of the
Acquisitions have agreed with the Underwriters not to offer, sell or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for such shares for a period of 180 days after the
date of this Prospectus without the prior written consent of J.P. Morgan
Securities Inc. The holders of the shares of Common Stock and warrants issued
or to be issued in the Acquisitions have agreed with the Underwriters not to
offer, sell or otherwise dispose of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for such shares for a period of
360 days after the date of this Prospectus without the prior written consent of
J.P. Morgan Securities Inc.
71
<PAGE>
The Company has applied for listing of the Common Stock on The Nasdaq National
Market, under the trading symbol "TLSP."
The Underwriters have advised the Company that they do not expect that sales to
accounts over which they exercise discretionary authority will exceed 5% of the
shares offered hereby.
Prior to this Offering, there has been no public market for the Common Stock.
The initial public offering price for the shares of Common Stock offered hereby
was determined by agreement among the Company and the Underwriters. Among the
factors considered in making such determination were the history of and the
prospects for the industry in which the Company competes, an assessment of the
Company's management, the present operations of the Company, the historical
results of operations of the Company and the trend of its revenues and
earnings, the prospects for future earnings of the Company, the general
conditions of the securities markets at the time of the Offering and the prices
of similar securities of generally comparable companies.
There can be no assurance that an active trading market will develop for the
Common Stock or that the Common Stock will trade in the public market
subsequent to the Offering at or above the initial public offering price.
From time to time in the ordinary course of their respective businesses, the
Representatives and their respective affiliates have provided and may in the
future provide investment banking and other financial services to the Company
and its affiliates. The Company will pay Legg Mason Wood Walker, Incorporated a
fee of $1.4 million for investment banking services rendered in connection with
the structuring and negotiation of the Acquisitions. The Company has also
agreed to pay one-half of the $800,000 fee due from the Seller of the SOMAR
Operating Business to The Robinson-Humphrey Company, Inc. for financial
advisory services, including advice regarding the Acquisition of SOMAR by
TeleSpectrum Worldwide. See "Certain Relationships and Related Party
Transactions--The Acquisitions--SOMAR."
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed upon
for the Company by Morgan, Lewis & Bockius LLP, Philadelphia, Pennsylvania.
Certain legal matters relating to the shares of Common Stock offered hereby
will be passed upon for the Underwriters by Pepper, Hamilton & Scheetz,
Philadelphia, Pennsylvania.
EXPERTS
The financial statements of TeleSpectrum Worldwide as of June 30, 1996 and for
the period from inception (April 26, 1996) to June 30, 1996 included in this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
giving said reports.
The financial statements of SOMAR, Harris and Reich as of December 31, 1994 and
1995 and for each of the three years in the period ended December 31, 1995
included in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of NBG as of December 30, 1994 and December 29, 1995
and for each of the three fiscal years in the period ended December 29, 1995
included in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
72
<PAGE>
The financial statements of The Response Center as of September 30, 1994 and
1995 and for each of the two years in the period ended September 30, 1995
included in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of TeleSpectrum as of and for the year ended December
31, 1995 included in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-1 (the "Registration
Statement") under the Securities Act and the rules and regulations promulgated
thereunder, covering the Common Stock offered hereby. This Prospectus omits
certain information contained in the Registration Statement, and reference is
made to the Registration Statement, and the exhibits and schedules thereto for
further information with respect to the Company and the Common Stock offered
hereby. Statements contained in this Prospectus as to the contents of any
contract, agreement or other document filed as an exhibit to the Registration
Statement are not necessarily complete, and in each instance, reference is made
to the exhibit for a more complete description of the matter involved, each
such statement being qualified in its entirety by such reference. The
Registration Statement may be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the regional offices of the Commission
maintained at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of such
materials may be obtained from the Public Reference Section of the Commission,
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, registration statements and certain other
filings made with the Commission through its Electronic Data Gathering,
Analysis and Retrieval ("EDGAR") system are publicly available through the
Commission's site on the Internet's World Wide Web, located at
http://www.sec.gov. The Registration Statement, including all exhibits thereto
and amendments thereof, has been filed with the Commission through EDGAR.
The Company intends to furnish its stockholders with unaudited quarterly
reports and annual reports containing financial statements audited by
independent public accountants.
73
<PAGE>
INDEX TO FINANCIAL STATEMENTS
TELESPECTRUM WORLDWIDE INC.
<TABLE>
<S> <C>
PRO FORMA COMBINED FINANCIAL STATEMENTS:
Basis of Presentation................................................... F-3
Pro Forma Combined Balance Sheet as of June 30, 1996.................... F-4
Pro Forma Combined Statement of Income for the Year Ended December 31,
1995................................................................... F-5
Pro Forma Combined Statement of Income for the Six Months Ended June
30, 1995............................................................. F-6
Pro Forma Combined Statement of Income for the Six Months Ended June
30, 1996............................................................. F-7
Notes to Pro Forma Combined Financial Statements........................ F-8
HISTORICAL FINANCIAL STATEMENTS(/1/):
TELESPECTRUM WORLDWIDE INC. (TELESPECTRUM WORLDWIDE)
Report of Independent Public Accountants........................... F-12
Balance Sheet as of June 30, 1996.................................. F-13
Statement of Operations for the Period from Inception (April 26,
1996) to June 30, 1996............................................. F-13
Statement of Stockholder's Equity (Deficit)........................ F-14
Notes To Financial Statements...................................... F-15
SOMAR, INC. (SOMAR)
Report of Independent Public Accountants........................... F-18
Balance Sheets as of December 31, 1994 and 1995, and June 30,
1996............................................................... F-19
Statements of Income for the Years Ended December 31, 1993, 1994 and
1995, and Six Months Ended June 30, 1995 and 1996................ F-20
Statements of Stockholders' Equity for the Years Ended December 31,
1993, 1994 and 1995, and Six Months Ended June 30, 1996.......... F-21
Statements of Cash Flows for the Years Ended December 31, 1993, 1994
and 1995, and Six Months Ended June 30, 1995 and 1996............ F-22
Notes to Financial Statements...................................... F-23
NBG SERVICES, INC. (NBG)
Report of Independent Public Accountants........................... F-30
Balance Sheets as of December 30, 1994, December 29, 1995, and June
28, 1996......................................................... F-31
Statements of Income for the Years Ended December 31, 1993, December
30, 1994 and December 29, 1995, and Twenty Six Weeks Ended June
30, 1995 and June 28, 1996....................................... F-32
Statements of Shareholders' Equity for the Years Ended December 31,
1993, December 30, 1994 and December 29, 1995, and Twenty Six
Weeks Ended June 28, 1996........................................ F-33
Statements of Cash Flows for the Years Ended December 31, 1993, Decem-
ber 30, 1994 and December 30, 1995, and Twenty Six Weeks Ended
June 30, 1995 and June 28, 1996.................................. F-34
Notes to Financial Statements...................................... F-35
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC. (HARRIS)
Report of Independent Public Accountants........................... F-39
Combined Balance Sheets as of December 31, 1994 and 1995, and June 30,
1996............................................................. F-40
Combined Statements of Income for the Years Ended December 31, 1993,
1994 and 1995, and Six Months Ended June 30, 1995 and June 30,
1996............................................................. F-41
Combined Statements of Shareholders' Equity for the Years Ended De-
cember 31, 1993, 1994 and 1995, and Six Months Ended June 30,
1996............................................................... F-42
Combined Statements of Cash Flows for the Years Ended December 31,
1993, 1994 and 1995, and Six Months Ended June 30, 1995 and June
30, 1996......................................................... F-43
Notes to Combined Financial Statements.............................. F-44
</TABLE>
(1) The audited financial statements included in this Prospectus have been
included in accordance with Securities and Exchange Commission Staff
Accounting Bulletin No. 80.
F-1
<PAGE>
<TABLE>
<S> <C>
THE REICH GROUP COMPANIES (REICH)
Report of Independent Public Accountants............................ F-49
Combined Balance Sheets as of December 31, 1994 and 1995 and June
30, 1996........................................................... F-50
Combined Statements of Income for the Years Ended December 31, 1993,
1994 and 1995, and Six Months Ended June 30, 1995 and 1996......... F-51
Combined Statements of Shareholder's Equity for the Years Ended De-
cember 31, 1993, 1994 and 1995, and Six Months Ended June 30, 1996
................................................................... F-52
Combined Statements of Cash Flows for the Years Ended December 31,
1993, 1994 and 1995 and Six Months Ended June 30, 1995 and 1996.... F-53
Notes To Combined Financial Statements................................ F-54
THE RESPONSE CENTER INC. AND THE TAB HOUSE, INC. (THE RESPONSE
CENTER)
Report of Independent Public Accountants........................... F-60
Combined Balance Sheets as of September 30, 1994 and 1995, March 31,
1996 and June 30, 1996........................................... F-61
Combined Statements of Income for the Years Ended September 30, 1994
and 1995 and Six Months Ended March 31, 1995 and 1996 and Nine
Months Ended June 30, 1996....................................... F-62
Combined Statements of Shareholders' Equity for the Years Ended Sep-
tember 30, 1994 and 1995, Six Months Ended March 31, 1996 and
Three Months Ended June 30, 1996................................. F-63
Combined Statements of Cash Flows for the Years Ended September 30,
1994 and 1995 and Six Months Ended March 31, 1995 and 1996 and
Nine Months Ended June 30, 1995 and 1996......................... F-64
Notes To Combined Financial Statements............................. F-65
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
(TELESPECTRUM)
Report of Independent Public Accountants........................... F-69
Combined Balance Sheets as of December 31, 1995 and June 30, 1996.. F-70
Combined Statements of Income for the Year Ended December 31, 1995,
and Six Months Ended June 30, 1995 and 1996...................... F-71
Combined Statements of Stockholders' Equity for the Year Ended Decem-
ber 31, 1995, and Six Months Ended June 30, 1996................. F-72
Combined Statements of Cash Flows for the Year Ended December 31,
1995, and Six Months Ended June 30, 1995 and 1996................ F-73
Notes To Combined Financial Statements............................. F-74
</TABLE>
F-2
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
PRO FORMA COMBINED FINANCIAL STATEMENTS
BASIS OF PRESENTATION
(UNAUDITED)
The following unaudited pro forma combined financial statements give effect
to the acquisitions by TeleSpectrum Worldwide Inc. ("TeleSpectrum Worldwide")
of substantially all of the net assets of (i) SOMAR, (ii) NBG, (iii) Harris,
(iv) Reich, (v) The Response Center and (vi) TeleSpectrum (together the
"Operating Businesses"). TeleSpectrum Worldwide and the Operating Businesses
are hereafter referred to as the "Company." These acquisitions (the
"Acquisitions") will occur simultaneously with the closing of TeleSpectrum
Worldwide's initial public offering (the Offering) and will be accounted for
using the purchase method. The unaudited pro forma combined financial
statements also give effect to the issuance of Common Stock, which will be
issued by TeleSpectrum Worldwide to the sellers of the Operating Businesses
(the "Sellers") upon the effectiveness of the Offering. These statements are
based on the historical financial statements of TeleSpectrum Worldwide and the
Operating Businesses included elsewhere in this Prospectus and the estimates
and assumptions set forth below and in the notes to the unaudited pro forma
combined financial statements.
The unaudited pro forma combined balance sheet gives effect to these
transactions (the "Acquisitions and Offering") as if they had occurred on June
30, 1996. The unaudited pro forma combined statements of income give effect to
these transactions as if they had occurred on January 1, 1995.
The pro forma adjustments are based upon preliminary estimates, currently
available information and certain assumptions that management deems
appropriate. In management's opinion, the preliminary estimates regarding
allocation of the purchase price of the Operating Businesses are not expected
to materially differ from the final adjustments. These adjustments will be
finalized after the Closing of the Acquisitions. The unaudited pro forma
combined financial data presented herein are not necessarily indicative of the
results TeleSpectrum Worldwide would have obtained had such events occurred at
the beginning of the period, as assumed, or of the future results of
TeleSpectrum Worldwide. The unaudited pro forma combined financial statements
should be read in conjunction with the other financial statements and notes
thereto included elsewhere in this Prospectus.
F-3
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
OPERATING BUSINESSES--HISTORICAL
---------------------------------------------------- PRO FORMA
THE ACQUISITIONS PRO FORMA
DOLLARS IN TELESPECTRUM RESPONSE AND OFFERING TELESPECTRUM
THOUSANDS WORLDWIDE SOMAR NBG HARRIS REICH CENTER TELESPECTRUM ADJUSTMENTS WORLDWIDE
- ---------- ------------ ------- ------ ------ ------ -------- ------------ ------------ ------------
(NOTE 4)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash
equivalents....... $ -- $ 4 $1,959 $ 877 $ 371 $ 744 $ 605 $ 27,824(a)(b)(c)(d)(e) $ 32,384
Marketable
securities........ -- -- 170 -- -- 313 -- -- 483
Accounts
receivable........ -- 7,183 1,286 3,760 3,511 1,396 3,409 -- 20,545
Amounts due from
affiliates........ 500 1,237 -- -- 135 -- -- (1,700)(b)(e) 172
Due from
TeleSpectrum
Worldwide Inc..... -- 74 42 -- -- 44 51 (211)(b) --
Prepaid expenses
and other......... -- 523 205 576 129 109 283 -- 1,825
------- ------- ------ ------ ------ ------ ------ -------- --------
Total current
assets.......... 500 9,021 3,662 5,213 4,146 2,606 4,348 25,913 55,409
------- ------- ------ ------ ------ ------ ------ -------- --------
PROPERTY AND
EQUIPMENT, NET..... 22 6,266 1,893 4,135 2,193 240 1,085 -- 15,834
GOODWILL........... -- -- -- -- -- -- -- 146,505(b)(c) 146,505
OTHER ASSETS....... 21,924 -- 108 53 21 88 157 (21,924)(a)(b) 427
------- ------- ------ ------ ------ ------ ------ -------- --------
Total assets.... $22,446 $15,287 $5,663 $9,401 $6,360 $2,934 $5,590 $150,494 $218,175
======= ======= ====== ====== ====== ====== ====== ======== ========
LIABILITIES AND
STOCKHOLDERS'
EQUITY
CURRENT
LIABILITIES:
Line of credit.... $ -- $ 4,438 $ -- $ -- $ -- $ -- $2,289 $ (6,727)(c) $ --
Current
maturities of
long-term debt.... -- 2,857 434 309 246 -- 594 (4,440)(c) --
Accounts
payable........... 11 2,449 350 267 548 217 534 -- 4,376
Accrued
liabilities....... 1,784 578 467 442 527 287 501 (1,763)(a)(b) 2,823
Customer
advances.......... -- -- -- 753 -- 300 -- -- 1,053
Due to
affiliates........ 211 439 -- -- 70 -- -- (336)(b) 384
Other current
liabilities....... -- 389 -- -- 101 -- 464 -- 954
------- ------- ------ ------ ------ ------ ------ -------- --------
Total current
liabilities..... 2,006 11,150 1,251 1,771 1,492 804 4,382 (13,266) 9,590
------- ------- ------ ------ ------ ------ ------ -------- --------
LONG-TERM DEBT..... -- 3,219 760 1,390 414 -- 3 (5,786)(c) --
OTHER NONCURRENT
LIABILITIES........ -- -- -- 170 91 -- 14 -- 275
STOCKHOLDERS'
EQUITY:
Preferred Stock,
$.01 par value,
5,000,000 shares
authorized........ -- -- -- -- -- -- -- -- --
Common stock,
$.01 par value,
200,000,000
shares
authorized,
23,200,000 shares
issued and
outstanding (pro
forma)............ 85 12 -- 1 2 51 6 75(a)(b)(d) 232
Additional paid-
in capital........ 20,774 789 -- 45 450 1 217 186,221(a)(b)(d) 208,497
Net unrealized
gain on
marketable
securities........ -- -- -- -- -- 100 -- (100)(d) --
Retained earnings
(deficit)......... (419) 117 3,652 6,149 4,150 1,978 968 (17,014)(c) (419)
Treasury stock,
at cost........... -- -- -- (125) (239) -- -- 364(c) --
------- ------- ------ ------ ------ ------ ------ -------- --------
Total
stockholders'
equity.......... 20,440 918 3,652 6,070 4,363 2,130 1,191 169,546 208,310
======= ======= ====== ====== ====== ====== ====== ======== ========
Total
liabilities and
stockholders'
equity.......... $22,446 $15,287 $5,663 $9,401 $6,360 $2,934 $5,590 $150,494 $218,175
======= ======= ====== ====== ====== ====== ====== ======== ========
</TABLE>
- -----
See accompanying notes to pro forma combined financial statements.
F-4
<PAGE>
TELESPECTRUM WORLDWIDE INC.* AND OPERATING BUSINESSES
PRO FORMA COMBINED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
OPERATING BUSINESSES--HISTORICAL
--------------------------------------------------------- PRO FORMA
THE ACQUISITIONS PRO FORMA
DOLLARS AND SHARES IN RESPONSE AND OFFERING TELESPECTRUM
THOUSANDS SOMAR NBG HARRIS REICH CENTER TELESPECTRUM ADJUSTMENTS WORLDWIDE
- --------------------- ------- ------- ------- ------- -------- ------------ ------------ ------------
(NOTE 5)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
REVENUES................ $31,900 $12,829 $12,690 $12,253 $6,428 $11,854 $ -- $87,954
OPERATING EXPENSES:
Cost of services....... 25,048 8,572 6,402 7,836 3,401 8,338 -- 59,597
Selling, general and
administrative........ 5,162 2,115 2,986 2,534 2,662 3,072 (1,006)(g) 17,525
Goodwill
amortization.......... -- -- -- -- -- -- 5,860 (f) 5,860
------- ------- ------- ------- ------ ------- ------- -------
Total operating
expenses............ 30,210 10,687 9,388 10,370 6,063 11,410 4,854 82,982
------- ------- ------- ------- ------ ------- ------- -------
Operating income..... 1,690 2,142 3,302 1,883 365 444 (4,854) 4,972
INTEREST INCOME......... 45 19 70 14 10 -- -- 158
INTEREST EXPENSE........ (756) (55) (214) (57) -- (184) 1,172 (h) (94)
------- ------- ------- ------- ------ ------- ------- -------
Income before taxes.... 979 2,106 3,158 1,840 375 260 (3,682) 5,036
INCOME TAXES............ -- -- -- -- -- 18 (2,425)(i) (2,407)
------- ------- ------- ------- ------ ------- ------- -------
NET INCOME.............. $ 979 $ 2,106 $ 3,158 $ 1,840 $ 375 $ 278 $(6,107) $ 2,629
======= ======= ======= ======= ====== ======= ======= =======
PRO FORMA NET INCOME PER
SHARE.................. $ 0.12 (l)
=======
SHARES USED IN COMPUTING
PRO FORMA NET INCOME
PER SHARE.............. 21,200 (l)
=======
</TABLE>
- --------
* TeleSpectrum Worldwide was incorporated on April 26, 1996; accordingly there
were no historical results prior to that date (See Note 1).
See accompanying notes to pro forma combined financial statements.
F-5
<PAGE>
TELESPECTRUM WORLDWIDE INC.* AND OPERATING BUSINESSES
PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
OPERATING BUSINESSES--HISTORICAL
------------------------------------------------------ PRO FORMA
THE ACQUISITIONS PRO FORMA
DOLLARS AND SHARES IN RESPONSE AND OFFERING TELESPECTRUM
THOUSANDS SOMAR NBG HARRIS REICH CENTER TELESPECTRUM ADJUSTMENTS WORLDWIDE
- --------------------- ------- ------ ------ ------ -------- ------------ ------------ ------------
(NOTE 5)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
REVENUES................ $14,795 $5,599 $7,525 $5,521 $3,556 $5,592 $ -- $42,588
OPERATING EXPENSES:
Cost of services....... 11,221 3,556 3,543 3,417 1,772 3,828 -- 27,337
Selling, general and
administrative........ 2,620 1,046 1,431 665 1,617 1,652 (374)(g) 8,657
Goodwill
amortization.......... -- -- -- -- -- -- 2,930 (f) 2,930
------- ------ ------ ------ ------ ------ -------- -------
Total operating
expenses............ 13,841 4,602 4,974 4,082 3,389 5,480 2,556 38,924
------- ------ ------ ------ ------ ------ -------- -------
Operating income
(loss).............. 954 997 2,551 1,439 167 112 (2,556) 3,664
INTEREST INCOME......... -- -- 20 8 -- -- -- 28
INTEREST EXPENSE........ (299) (30) (117) (35) -- (85) 532 (h) (34)
------- ------ ------ ------ ------ ------ -------- -------
Income before taxes.... 655 967 2,454 1,412 167 27 (2,024) 3,658
INCOME TAXES............ -- -- -- -- -- -- (1,749)(i) (1,749)
------- ------ ------ ------ ------ ------ -------- -------
NET INCOME (LOSS)....... $ 655 $ 967 $2,454 $1,412 $ 167 $ 27 $ (3,773) $ 1,909
======= ====== ====== ====== ====== ====== ======== =======
PRO FORMA NET INCOME PER
SHARE.................. $ 0.09(l)
=======
SHARES USED IN COMPUTING
PRO FORMA NET INCOME
PER SHARE.............. 21,200(l)
=======
</TABLE>
- --------
* TeleSpectrum Worldwide was incorporated on April 26, 1996; accordingly there
were no historical results prior to that date (See Note 1).
See accompanying notes to pro forma combined financial statements.
F-6
<PAGE>
TELESPECTRUM WORLDWIDE INC.* AND OPERATING BUSINESSES
PRO FORMA COMBINED STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1996
(UNAUDITED)
<TABLE>
<CAPTION>
OPERATING BUSINESSES--HISTORICAL
------------------------------------------------------- PRO FORMA
THE ACQUISITIONS PRO FORMA
DOLLARS AND SHARES IN TELESPECTRUM RESPONSE AND OFFERING TELESPECTRUM
THOUSANDS WORLDWIDE SOMAR NBG HARRIS REICH CENTER TELESPECTRUM ADJUSTMENTS WORLDWIDE
- --------------------- ------------ ------- ------ ------ ------- -------- ------------ ------------- ------------
(NOTE 5)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
REVENUES................ $ -- $20,803 $8,924 $5,367 $11,347 $3,231 $8,034 $ -- $57,706
OPERATING EXPENSES:
Cost of services....... -- 16,888 5,995 2,762 6,692 1,690 5,290 -- 39,317
Selling, general and
administrative........ 419 3,092 1,389 1,521 1,199 1,296 2,121 (81)(g) 10,956
Goodwill
amortization.......... -- -- -- -- -- -- -- 2,930 (f) 2,930
----- ------- ------ ------ ------- ------ ------ ------- -------
Total operating
expenses............ 419 19,980 7,384 4,283 7,891 2,986 7,411 2,849 53,203
----- ------- ------ ------ ------- ------ ------ ------- -------
Operating income
(loss).............. (419) 823 1,540 1,084 3,456 245 623 (2,849) 4,503
INTEREST INCOME......... -- 10 32 46 15 -- -- -- 103
INTEREST EXPENSE........ -- (454) (54) (79) (46) -- (119) 703 (h) (49)
----- ------- ------ ------ ------- ------ ------ ------- -------
Income (loss) before
taxes................. (419) 379 1,518 1,051 3,425 245 504 (2,146) 4,557
INCOME TAXES............ -- -- -- -- -- -- -- (2,060)(i) (2,060)
----- ------- ------ ------ ------- ------ ------ ------- -------
NET INCOME (LOSS)....... (419) $ 379 $1,518 $1,051 $ 3,425 $ 245 $ 504 $(4,206) $ 2,497
===== ======= ====== ====== ======= ====== ====== ======= =======
PRO FORMA NET INCOME PER
SHARE.................. $ 0.12(l)
=======
SHARES USED IN COMPUTING
PRO FORMA NET INCOME
PER SHARE.............. 21,200(l)
=======
</TABLE>
- --------
* TeleSpectrum Worldwide was incorporated on April 26, 1996; accordingly,
there were no historical results prior to that date (See Note 1).
See accompanying notes to pro forma combined financial statements.
F-7
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS
(UNAUDITED)
1. TELESPECTRUM WORLDWIDE BACKGROUND:
TeleSpectrum Worldwide was incorporated as a wholly-owned subsidiary of CRW
Financial, Inc. ("CRW") on April 26, 1996. Accordingly, there are no historical
financial statements available for TeleSpectrum Worldwide prior to April 26,
1996. On May 22, 1996, CRW contributed $2.1 million of capital to TeleSpectrum
Worldwide. The $2.1 million CRW capital contribution consisted of $1.6 million
of cash and a $0.5 million promissory note from TeleSpectrum. The note
represented an April 1996 advance of the purchase price from CRW on behalf of
TeleSpectrum Worldwide (See Note 3).
TeleSpectrum Worldwide was formed to create a national provider of integrated
teleservices solutions. TeleSpectrum Worldwide has conducted no operations to
date and will acquire the Operating Businesses simultaneously with the
consummation of the Offering. See "Risk Factors," "Certain Relationships and
Related Party Transactions" and page F-3 for additional information.
2. HISTORICAL FINANCIAL STATEMENTS:
The historical financial statements represent the financial position and
results of operations for TeleSpectrum Worldwide and the Sellers and were
derived from the respective financial statements where indicated. All Operating
Businesses have December 31 year ends, except for the Response Center and NBG.
The Response Center's year end is September 30 and NBG operates on a fifty-two,
fifty-three week fiscal year ending on the last Friday of the calendar year.
However, for purposes of the Pro Forma Combined Financial Statements, the
balance sheet and statements of income information for The Response Center and
NBG are as of June 30, 1996 and the year ended December 31, 1995 and the six
months ended June 30, 1995 and 1996. The audited historical financial
statements included elsewhere in this Prospectus have been included in
accordance with Securities and Exchange Commission Staff Accounting Bulletin
No. 80. Included in the TeleSpectrum Worldwide June 30, 1996 balance sheet is
$21,924,000 of other assets which consists of $20,271,000 and $1,653,000 of
deferred acquisition costs and deferred public offering costs, respectively.
See TeleSpectrum Worldwide historical financial statements.
3. ACQUISITION OF OPERATING BUSINESSES:
Concurrent with the closing of the Offering, TeleSpectrum Worldwide will
acquire substantially all of the net assets of the Operating Businesses. The
Acquisitions will be accounted for using the purchase method of accounting with
TeleSpectrum Worldwide treated as the acquirer. The total estimated purchase
price is $160.8 million, which consists of: (i) $90.9 million of cash to be
paid to the Sellers upon the consummation of the Offering; (ii) forgiveness of
the $0.5 million promissory note from TeleSpectrum; (iii) the $44.9 million
estimated fair value of 4,403,863 shares of Common Stock to be issued to the
Sellers; (iv) the $2.1 million estimated fair value of warrants to purchase
593,400 shares of Common Stock at the assumed initial public offering price of
$15.00 per share to be issued in connection with the Acquisitions; (v) the
$18.7 million deemed value for accounting purposes of the CRW Lender Warrants
and CRW Management Warrants as discussed in this Prospectus to purchase
2,272,562 shares of Common Stock currently owned by CRW Financial at $1.50 per
share; and (vi) estimated transaction costs of $3.7 million. The estimated
purchase price for the Acquisitions is subject to certain purchase price
adjustments at closing and earn-out arrangements. See "Certain Relationships
and Related Party Transactions".
The 4,403,863 shares of the Company's Common Stock to be issued to the
Sellers are valued as follows:
<TABLE>
<CAPTION>
SHARES VALUE PER SHARE TOTAL VALUE
--------- --------------- -----------
<S> <C> <C>
370,000 $15.00 $ 5,550,000
4,033,863 9.75 39,330,164
--------- -----------
4,403,863 $44,880,164
========= ===========
</TABLE>
F-8
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
The 370,000 shares, were valued at the assumed initial public offering price
since the shares will be issued to the Sellers and sold in of the Offering. The
remaining 4,033,863 shares to be issued to the Sellers were valued at a 35%
discount to the assumed initial public offering price, or $9.75 per share. This
discount was based upon an appraisal and upon the fact that holders of these
shares have agreed to not offer, sell or otherwise dispose of any of these
shares for a period of 360 days after the Offering without the prior written
consent of J.P. Morgan Securities Inc. These shares are not subject to demand
registration rights, and as a result may not be freely tradeable for up to
three years after the consummation of the Acquisitions.
The estimated total purchase price of $160.8 million of the Acquisitions has
been allocated to the assets acquired and liabilities assumed. Based upon
management's preliminary analysis, it is anticipated that the historical
carrying value of the Operating Businesses' assets and liabilities will
approximate fair value. The amount allocated to goodwill is $146.5 million. The
Operating Businesses have no long-term client contracts and client
relationships can be cancelled by the client upon relatively short notice.
Though the Operating Businesses have sophisticated computer systems, the
computer systems are not proprietary. No additional portion of the price was
allocated to these items. Further, management has not identified any other
tangible or identifiable intangible assets of the Operating Businesses to which
a portion of the purchase price could reasonably be allocated.
In addition to the purchase price discussed above, the SOMAR, NBG and Reich
acquisitions have certain earn-out provisions based upon 1996 and/or 1997
operating results. The earn-out provisions will be recorded in accordance with
the Emerging Issues Task Force 95-8 "Accounting for Contingent Consideration
Paid to the Shareholders of an Acquired Company." If these earn-out provisions
are achieved there will be additional purchase price allocated to goodwill.
There are no pro forma adjustments required for the earn-out provisions in the
pro forma combined financial statements relating to the earn-out provisions. In
addition, TeleSpectrum Worldwide has agreed to implement a bonus plan for the
employees of SOMAR. Such bonus payments could be significant.
4. UNAUDITED PRO FORMA COMBINED BALANCE SHEET ADJUSTMENTS:
(a) To reflect the sale of 10,286,000 shares of Common Stock at an assumed
initial public offering price of $15.00 per share, net of expenses and
underwriting discount, for net proceeds of $140.9 million.
(b) To reflect: (i) the use of $90.9 million of the net proceeds of the
Offering to pay the cash portion of the purchase price of the Operating
Businesses payable at closing; (ii) forgiveness of the $0.5 million
promissory note from TeleSpectrum; (iii) the issuance of 4,403,863 shares
of Common Stock to the Sellers; (iv) the issuance of warrants to purchase
593,400 shares of Common Stock at the Offering price; and (v) estimated
transaction costs of $3.7 million.
(c) To reflect the use of a portion of the net proceeds of the Offering to
reduce debt originally incurred by the Operating Businesses payable at
closing.
(d) To reflect the purchase price adjustments associated with the acquisition
of the Operating Businesses (approximately $4.0 million), including
estimated closing adjustments based primarily on minimum required
shareholders' equity balance at closing. The estimated closing purchase
price adjustments relate primarily to additional estimated payments to the
Sellers to reflect the increase in the Operating Businesses' shareholders'
equity through the closing of the Acquisitions. See "Certain Relationships
and Related Party Transactions--The Acquisitions."
(e) To reflect the repayment of the SOMAR amount due from affiliates of $1.2
million.
F-9
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
A summary of the unaudited proforma combined balance sheet adjustments (a),
(b), (c), (d) and (e) is as follows:
<TABLE>
<CAPTION>
DEBIT (CREDIT)
----------------------------------------------------------------
BALANCE SHEET ACCOUNTS UNAUDITED PRO FORMA COMBINED BALANCE SHEET ADJUSTMENTS
- ---------------------- ----------------------------------------------------------------
(A) (B) (C) (D) (E) TOTAL
--------- -------- -------- -------- ------- ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Cash.................... $ 141,080 $(93,503) $(16,953) $ (4,000) $ 1,200 $ 27,824
Amounts due from
affiliates............. (500) (1,200) (1,700)
Due from TeleSpectrum
Worldwide Inc. ........ (211) (211)
Goodwill................ 160,829 (14,324) 146,505
Other assets............ (1,653) (20,271) (21,924)
Line of credit.......... 6,727 6,727
Current maturities of
long-term debt......... 4,440 4,440
Accrued liabilities..... 1,463 300 1,763
Due to affiliates....... 336 336
Long-term debt.......... 5,786 5,786
Common stock............ (103) (44) 72 (75)
Additional paid-in
capital................ (140,787) (46,936) 1,502 (186,221)
Net unrealized gain on
available securities... 100 100
Retained earnings....... 17,014 17,014
Treasury stock, at
cost................... (364) (364)
--------- -------- -------- -------- ------- ---------
$ -- $ -- $ -- $ -- $ -- $ --
========= ======== ======== ======== ======= =========
</TABLE>
5. UNAUDITED PRO FORMA COMBINED STATEMENTS OF INCOME ADJUSTMENTS:
(f) To reflect the amortization expense for the goodwill recorded in
connection with the acquisition of the Operating Businesses. The goodwill
is being amortized on a straight-line basis over an estimated life of 25
years.
(g) To reflect officers' compensation expense of the Operating Businesses and
TeleSpectrum Worldwide (see below) based upon employment agreements
entered into upon the closing of the Acquisitions.
(h) To reflect the elimination of interest expense resulting from the
reduction of debt from the net proceeds of the Offering (see
Adjustment(c)).
(i) To calculate the provision for income taxes on the combined pro forma
income before taxes at effective tax rates of 47.8% and 45.2% in 1995 and
1996, respectively.
(j) The weighted average shares outstanding used to calculate pro forma
earnings per share is based upon the estimated average number of shares of
Common Stock and common stock equivalents outstanding during the period
calculated as follows:
<TABLE>
<S> <C>
Shares issued in the formation of TeleSpectrum Worldwide....... 8,510,137
Shares issued to the Sellers of the Operating Businesses....... 4,403,863
Shares issued in the Offering.................................. 10,286,000
Less: Shares issued in the Offering whose proceeds will be used
for working capital and capital expenditures ................. (2,000,000)
----------
21,200,000
==========
</TABLE>
Outstanding options and warrants have been excluded since all such options
and warrants are exercisable at the Offering price.
TeleSpectrum Worldwide has entered into employment agreements with its Chief
Executive Officer, Chief Operating Officer and a Chief Financial Officer which
provide for total minimum annual compensation of $605,000. This amount was
reflected in pro forma adjustment 5(g).
In addition, TeleSpectrum Worldwide is in the process of hiring other
corporate staff. Also, certain corporate expenses will be incurred in 1996 and
thereafter related to operating as a public company and in managing the
Operating Businesses, which heretofore have operated as autonomous businesses.
These additional expenses (which will be significant) have not been reflected
in the accompanying pro forma statements of income. The effect of the
additional expenses and related benefits is not currently estimable as the
Acquisitions have not been consummated and the expected synergies of combining
the Operating Businesses are not specifically quantifiable at this time. See
"Executive Compensation" and "Employment Agreements" under "Management."
F-10
<PAGE>
TELESPECTRUM WORLDWIDE INC. AND OPERATING BUSINESSES
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
6. PRO FORMA COMBINED STATEMENTS OF INCOME SIGNIFICANT ACCOUNTING POLICIES
The following significant accounting policies have been reflected in the
Company's pro forma combined income statements.
Revenue Recognition and Concentration of Credit Risk
The Company recognizes revenues as services are performed for its clients.
The Company's ten largest clients in 1995 represented approximately 56.4% of
the Company's pro forma revenues, with the largest client accounting for 11.9%.
Loss of one or more of these clients could have a material adverse effect on
the Company's business, results of operations and financial condition.
Depreciation
Depreciation is recorded on a straight line basis as follows:
<TABLE>
<CAPTION>
TYPE USEFUL LIVES
---- ------------
<S> <C>
Building and Building Improvements.............................. 10-40
Telemarketing Equipment......................................... 5-7
Machinery and Equipment......................................... 5-10
Furniture and Office Equipment.................................. 3-10
Leasehold Improvements.......................................... 5-10
</TABLE>
Training Costs
The Company maintains on-going training programs for its employees. The cost
of this training is charged to expense when incurred.
F-11
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To TeleSpectrum Worldwide Inc.:
We have audited the accompanying balance sheet and statement of
stockholder's equity of TeleSpectrum Worldwide Inc. (a Delaware Corporation)
as of June 30, 1996 and statement of operations for the period from inception
(April 26, 1996) to June 30, 1996. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of TeleSpectrum Worldwide
Inc. as of June 30, 1996, and the results of its operations for the period
from inception (April 26, 1996) to June 30, 1996, in conformity with generally
accepted accounting principles.
Arthur Andersen LLP
Philadelphia, Pa.
July 15, 1996
F-12
<PAGE>
TELESPECTRUM WORLDWIDE INC.
BALANCE SHEET
JUNE 30, 1996
(IN THOUSANDS--EXCEPT PAR VALUE AND SHARE AMOUNTS)
<TABLE>
<S> <C>
ASSETS
DUE FROM OPERATING BUSINESS........................................... $ 500
PROPERTY AND EQUIPMENT................................................ 22
DEFERRED ACQUISITION COSTS............................................ 20,271
DEFERRED PUBLIC OFFERING COSTS........................................ 1,653
-------
Total assets...................................................... $22,446
=======
LIABILITIES AND STOCKHOLDER'S EQUITY
ACCOUNTS PAYABLE...................................................... $ 11
DUE TO OPERATING BUSINESS............................................. 211
ACCRUED EXPENSES...................................................... 1,784
STOCKHOLDER'S EQUITY:
Preferred stock, $.01 par value, 5,000,000 shares authorized, none
issued............................................................. --
Common stock, $.01 par value, 200,000,000 shares authorized,
8,510,137 shares issued and outstanding............................ 85
Additional paid in capital.......................................... 20,774
Accumulated deficit................................................. (419)
-------
Total liabilities and stockholder's equity........................ $22,446
=======
</TABLE>
TELESPECTRUM WORLDWIDE INC.
STATEMENT OF OPERATIONS
FOR THE PERIOD FROM APRIL 26, 1996 (INCEPTION) TO JUNE 30, 1996
(IN THOUSANDS)
<TABLE>
<S> <C>
REVENUES............................................................ $ --
OPERATING EXPENSES:
Cost of services.................................................. --
Selling, general and administrative .............................. 419
---------
Total operating expenses........................................ 419
=========
Operating loss.................................................. (419)
INTEREST INCOME..................................................... --
INTEREST EXPENSE.................................................... --
---------
NET LOSS............................................................ $ (419)
=========
NET LOSS PER SHARE.................................................. $ 0.05
=========
SHARES USED IN COMPUTING NET LOSS PER SHARE......................... 8,510,137
=========
</TABLE>
The accompanying notes are an integral part of these statements.
F-13
<PAGE>
TELESPECTRUM WORLDWIDE INC.
STATEMENT OF STOCKHOLDER'S EQUITY
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
PREFERRED COMMON
STOCK STOCK
------------- ----------------
ADDITIONAL TOTAL
PAID-IN STOCKHOLDER'S
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT EQUITY
------ ------ --------- ------ ---------- ------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Incorporated on April
26, 1996............... -- $-- 8,510,137 $85 $ (75) $ -- $ 10
Capital Contribution
(Note 1)............... -- -- -- -- 2,100 -- 2,100
Issuance of Equity Owned
by Parent (Note 6)..... -- -- -- -- 18,749 -- 18,749
Net loss................ -- -- -- -- -- (419) (419)
--- ---- --------- --- ------- ----- -------
Balance, June 30, 1996.. -- $-- 8,510,137 $85 $20,774 $(419) $20,440
=== ==== ========= === ======= ===== =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-14
<PAGE>
TELESPECTRUM WORLDWIDE INC.
NOTES TO FINANCIAL STATEMENTS
1. BACKGROUND:
TeleSpectrum Worldwide Inc. (TeleSpectrum Worldwide) was incorporated in
Delaware on April 26, 1996, as a wholly owned subsidiary of CRW Financial, Inc.
(CRW). TeleSpectrum Worldwide was formed to create a national provider of
integrated teleservices solutions (see Note 2). On May 22, 1996, TeleSpectrum
Worldwide received a $2.1 million capital contribution from CRW (see Note 6).
On May 21, 1996, TeleSpectrum Worldwide effected a 8.510137 for 1 split of its
Common Stock. All share and per share amounts included in the financial
statements reflect this split.
TeleSpectrum Worldwide has conducted no operations to date and has entered
into agreements to acquire substantially all of the net assets of the
businesses discussed in Note 2. These businesses have been operating
independently and TeleSpectrum Worldwide may not be able to successfully
integrate these businesses and their operations, employees and management.
Given the nature of TeleSpectrum Worldwide, it is and will be subject to many
risks, including but not limited to (i) an absence of combined operating
history, (ii) the potential inability to manage growth, (iii) risks generally
associated with acquisitions, (iv) possible fluctuations in quarterly results,
(v) reliance on major clients and key industries, (vi) possible decline in
effectiveness of telemarketing and (vii) reliance on key personnel.
2. ACQUISITIONS AND PUBLIC OFFERING:
In May 1996, CRW assigned to TeleSpectrum Worldwide its rights to acquire
substantially all of the net assets of SOMAR, Inc. (SOMAR), NBG Services, Inc.
(NBG), Harris Direct Marketing, Inc. and Harris Fulfillment, Inc. (Harris), The
Reich Group Companies (Reich), The Response Center, Inc. and The Tab House,
Inc. (The Response Center) and TeleSpectrum, Inc. and TeleSpectrum Training
Services, Inc. (TeleSpectrum); together, the Operating Businesses. These
acquisitions will occur contemporaneously with the closing of TeleSpectrum
Worldwide's initial public offering (the Offering) and will be accounted for
using the purchase method. The estimated total purchase price of the Operating
Businesses is $160.8 million, which consists of: (i) $90.9 million in cash to
be paid to the sellers of the Operating Businesses (the Sellers) upon the
consummation of the Offering; (ii) forgiveness of the $0.5 million promissory
note from TeleSpectrum (see Note 3); (iii) the $44.9 million estimated fair
value of 4,403,863 shares of Common Stock to be issued to the Sellers; (iv) the
$2.1 million estimated fair value of warrants to purchase 593,400 shares of
Common Stock at the assumed initial public offering price of $15.00 per share
to be issued in connection with the acquisitions of the Operating Businesses
(Acquisitions); (v) the $18.7 million deemed value for accounting purposes of
the CRW Lender Warrants and CRW Management Warrants (see Note 6) to purchase
2,272,562 shares of Common Stock (currently owned by CRW) at $1.50 per share;
and (vi) estimated transaction costs of $3.7 million. The estimated purchase
price for the Acquisitions is subject to certain purchase price adjustments at
Closing, as defined and earn-out arrangements.
The 4,403,863 shares of the Company's Common Stock to be issued to the
Sellers are valued as follows:
<TABLE>
<CAPTION>
VALUE
SHARES PER SHARE TOTAL VALUE
------ --------- -----------
<S> <C> <C>
370,000 $15.00 $ 5,550,000
4,033,863 9.75 39,330,000
--------- -----------
4,403,863 $44,880,164
========= ===========
</TABLE>
The 370,000 shares were valued at the assumed initial public offering price
since the shares will be issued to the Sellers and sold in the Offering. The
remaining 4,033,863 shares were valued at a 35% discount to the assumed initial
public offering price, or $9.75 per share. This discount was based upon an
appraisal and upon the fact that holders of these shares have agreed to not
offer, sell or otherwise dispose of any of these shares for a period of 360
days after the Offering without the prior written consent of J.P. Morgan
Securities Inc. These shares are not subject to demand registration rights, and
as a result may not be freely tradeable for up to three years after the
consummation of the Acquisitions.
F-15
<PAGE>
In addition to the total per share price discussed above, the SOMAR, NBG and
Reich acquisitions have earnout provisions based upon 1996 and/or 1997
operating results. If these earnout provisions are achieved, there will be
additional purchase price. In addition, TeleSpectrum Worldwide has agreed to
implement a bonus plan for the employees of SOMAR. Such bonus payments could be
significant. Also, Telespectrum Worldwide will be committed to provide up to
$14.0 million in funding for future SOMAR capital expenditures.
3. TRANSACTIONS WITH OPERATING BUSINESS
Upon signing the asset purchase agreement with TeleSpectrum in April 1996,
CRW (See Note 6) advanced TeleSpectrum $500,000 in the form of a promissory
note due in one year with interest at 9%. Upon the closing of the acquisition,
a portion of the purchase price will be paid by cancellation of the promissory
note (see Note 2).
In connection with the acquisitions, TeleSpectrum Worldwide has agreed to
reimburse certain acquisition costs incurred by the Operating Businesses. As of
June 30, 1996, the amount payable to the Operating Businesses was $211,000.
4. OPTIONS AND WARRANTS:
The 1996 Equity Compensation Plan
On May 17, 1996 TeleSpectrum Worldwide adopted The 1996 Equity Compensation
Plan (the Plan). The Plan reserves up to 2,300,000 shares of Common Stock for
issuance in connection with the exercise and/or grant of incentive and
nonqualified stock options, restricted stock, stock appreciation rights and
performance units to selected officers (including officers who are also
directors) and other TeleSpectrum Worldwide employees, independent contractors
and consultants. In addition, the Plan provides for grants of formula stock
options to employee directors.
In May 1996, TeleSpectrum Worldwide agreed to grant to the Chief Executive
Officer, Chief Operating Officer and Chief Financial Officer and other
management options to purchase 1,000,000 shares of Common Stock at the Offering
price per share. In addition, TeleSpectrum Worldwide granted 152,500 options to
a director and an outside consultant at the Offering price per share. Of the
options granted to the executives, options to purchase 225,000 shares of Common
Stock will vest upon consummation of the Offering. All of the remaining options
will vest over three years and are exercisable over ten years. In addition,
400,000 shares are issuable upon the exercise of options that TeleSpectrum
Worldwide is to grant, pursuant to employment agreements with two of its
executive officers, ratably over the course of the next four years.
Upon the effective date of the Offering, TeleSpectrum Worldwide has agreed to
grant to employees of the Operating Businesses options to purchase 281,100
shares of Common Stock at the offering price per share. Of these options,
11,887 are vested and exercisable immediately and the remainder of the options
will vest over three years and are exercisable over ten years.
Warrants
Effective upon the consummation of the Offering, TeleSpectrum Worldwide will
issue warrants to purchase 593,400 shares of Common Stock in connection with
the acquisitions of the Operating Businesses at the Offering per share price.
These warrants are exercisable for ten years.
5. EMPLOYMENT AGREEMENTS:
TeleSpectrum Worldwide has entered into employment agreements with its Chief
Executive Officer, Chief Operating Officer and Chief Financial Officer which
provide for minimum annual compensation of $605,000 plus bonuses. In addition,
in connection with the Closing of the Acquisitions, TeleSpectrum Worldwide will
enter into employment agreements with several management members of the
Operating Businesses, which agreements provide for minimum annual compensation
of $3.4 million plus bonuses.
F-16
<PAGE>
6. CRW TRANSACTIONS:
As discussed in Note 1, CRW made a capital contribution to TeleSpectrum
Worldwide on May 22, 1996 of $1.6 million in cash and $0.5 million in the form
of a promissory note from TeleSpectrum, Inc. to CRW. The capital contribution
represents the proceeds of borrowings by CRW under subordinated notes issued to
the following individuals and partnership: J. Brian O'Neill, TeleSpectrum
Worldwide's Chairman of the Board and Chief Executive Officer and Chairman and
Chief Executive Officer of CRW, TL Ventures (a significant CRW stockholder),
Michael Boyd, TeleSpectrum Worldwide's Chief Operating Officer and President,
Richard C. Schwenk, Jr., TeleSpectrum Worldwide's Senior Vice President and
Chief Financial Officer, Jonathan P. Robinson, CRW's Chief Financial Officer
and TeleSpectrum Worldwide's Director of Acquisitions, Kevin Mullin, CRW's
Director of Acquisitions, Arthur Spector, a consultant to CRW, Bernard Morgan
and Robert Veratti (CRW directors) and Technology Leaders L.P., a stockholder
of CRW. As additional consideration, the lenders to CRW received warrants from
CRW to purchase 1,433,454 shares of TeleSpectrum Worldwide Common Stock owned
by CRW at $1.50 per share (CRW Lender Warrants). In addition, CRW issued to its
bank, warrants to purchase 75,000 shares of TeleSpectrum Worldwide Common Stock
owned by CRW at $1.50 share. These warrants were issued as consideration for
CRW bank's issuing a waiver under its loan facility with CRW, permitting the
May 22, 1996 capital contribution to TeleSpectrum Worldwide.
CRW also agreed to issue warrants to purchase 839,108 shares of TeleSpectrum
Worldwide Common Stock owned by CRW at $1.50 per share to Messrs. O'Neill,
Robinson, Mullin and Spector (CRW Management Warrants). The warrants were
granted by CRW to these individuals for services provided to CRW.
The deemed value for accounting purposes of the CRW Lender Warrants and the
CRW Management Warrants is based upon the difference between $9.75 (35%
discount to the assumed initial public offering price) and the $1.50 warrant
exercise price. The deemed value for accounting purposes of $18.7 million is
treated as additional purchase price consideration of the acquisitions of the
Operating Businesses and has been reflected as "Deferred Acquisition Costs" in
the accompanying June 30, 1996 balance sheet.
TeleSpectrum Worldwide subleases an aggregate of 3,000 square feet in King of
Prussia (suburban Philadelphia), Pennsylvania from CRW. The sublease commenced
on May 9, 1996 and requires monthly base rent payments through September 30,
2004 of approximately $4,100. TeleSpectrum Worldwide believes the lease to be
at the prevailing commercial market rate.
7. REVOLVING CREDIT COMMITMENT:
The Company has obtained a commitment for a bank credit facility with a
borrowing limit of $50.0 million. The closing of the credit facility is subject
to the (i) consummation of the Offering, with gross proceeds to the Company of
at least $144.0 million, resulting in cash remaining on the balance sheet of
the Company (following consummation of the Acquisitions and the repayment of
indebtedness assumed in the Acquisitions) of no less than $22.0 million; and
(ii) customary conditions.
8. ACCRUED EXPENSES:
Accrued expenses principally consists of professional fees related to the
Acquisitions and the Offering.
9. SIGNIFICANT ACCOUNTING POLICIES:
Pervasiveness of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
New Accounting Pronouncement
The Financial Accounting Standards Board has issued SFAS No. 123, "Accounting
for Stock-Based Compensation." The Company is required to adopt this standard
for the year ending December 31, 1996. The Company has elected to adopt the
disclosure requirement of this pronouncement. This pronouncement will have no
impact on the Company's reported financial position or results of operations.
F-17
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To SOMAR, Inc.:
We have audited the accompanying balance sheets of SOMAR, Inc. (a North
Carolina corporation) as of December 31, 1994 and 1995, and the related
statements of income, stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1995. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of SOMAR, Inc. as of December 31,
1994 and 1995, and the results of its operations and its cash flows for each of
the three years in the period ended December 31, 1995, in conformity with
generally accepted accounting principles.
Arthur Andersen LLP
Charlotte, North Carolina,
April 29, 1996
F-18
<PAGE>
SOMAR, INC.
BALANCE SHEETS
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31
--------------- JUNE 30,
1994 1995 1996
------ ------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash............................................ $ 2 $ 25 $ 4
Accounts receivable, net of reserves of $40 for
1994, 1995 and 1996............................ 2,822 4,825 7,183
Amounts due from--
TeleSpectrum Worldwide Inc. ................... -- -- 74
Stockholders................................... 529 881 925
Affiliates..................................... 1 210 312
Prepaid expenses and other...................... 307 451 523
------ ------- -------
Total current assets.......................... 3,661 6,392 9,021
PROPERTY AND EQUIPMENT, net....................... 1,865 4,400 6,266
------ ------- -------
Total assets.................................. $5,526 $10,792 $15,287
====== ======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Line of credit.................................. $1,429 $ 1,182 $ 4,438
Note payable--Bank.............................. -- 1,000 --
Current portion of long term debt............... 82 2,182 1,798
Current portion of capital lease obligations.... 501 852 1,059
Accounts payable................................ 1,345 1,959 2,449
Accrued compensation............................ 340 523 578
Other accrued expenses.......................... 101 122 389
Amounts due to an affiliate..................... 105 562 439
------ ------- -------
Total current liabilities..................... 3,903 8,382 11,150
------ ------- -------
LONG-TERM DEBT.................................... 300 767 1,074
------ ------- -------
CAPITAL LEASE OBLIGATIONS......................... 845 872 2,145
------ ------- -------
COMMITMENTS AND CONTINGENCIES (Notes 5 and 6)
STOCKHOLDERS' EQUITY:
Common stock, $1 par value; 100,000 shares
authorized; 11,765 shares issued and
outstanding.................................... 12 12 12
Additional paid-in capital...................... 772 789 789
Retained earnings (deficit)..................... (306) (30) 117
------ ------- -------
Total stockholders' equity.................... 478 771 918
------ ------- -------
Total liabilities and stockholders' equity.... $5,526 $10,792 $15,287
====== ======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-19
<PAGE>
SOMAR, INC.
STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE
FOR THE YEAR ENDED SIX MONTHS ENDED
DECEMBER 31 JUNE 30
------------------------- ------------------
1993 1994 1995 1995 1996
------- ------- ------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES........................ $10,703 $20,785 $31,900 $ 14,795 $ 20,803
------- ------- ------- -------- --------
OPERATING EXPENSES..............
Cost of services.............. 7,731 15,623 25,048 11,221 16,888
Selling, general and
administrative expenses...... 2,787 4,115 5,162 2,620 3,092
------- ------- ------- -------- --------
Total operating expenses.... 10,518 19,738 30,210 13,841 19,980
------- ------- ------- -------- --------
Operating income............ 185 1,047 1,690 954 823
INTEREST INCOME................. 17 12 45 -- 10
INTEREST EXPENSE................ (106) (432) (756) (299) (454)
------- ------- ------- -------- --------
NET INCOME...................... $ 96 $ 627 $ 979 $ 655 $ 379
======= ======= ======= ======== ========
PRO FORMA DATA (UNAUDITED)
Historical net income......... $ 96 $ 627 $ 979 $ 655 $ 379
Pro forma provision for income
taxes........................ 49 261 414 269 141
------- ------- ------- -------- --------
Pro forma net income.......... $ 47 $ 366 $ 565 $ 386 $ 238
======= ======= ======= ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
F-20
<PAGE>
SOMAR, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONAL RETAINED TOTAL
COMMON PAID-IN STOCKHOLDER EARNINGS STOCKHOLDERS'
STOCK CAPITAL LOAN (DEFICIT) EQUITY (DEFICIT)
------ ---------- ----------- --------- ----------------
<S> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1,
1993................... $12 $474 $(612) $(361) $(487)
Net income............. -- -- -- 96 96
--- ---- ----- ----- -----
BALANCE, DECEMBER 31,
1993................... 12 474 (612) (265) (391)
Net income............. -- -- -- 627 627
Distributions.......... -- -- -- (668) (668)
Repayments of stock-
holder loan........... -- -- 612 -- 612
Stock options.......... -- 298 -- -- 298
--- ---- ----- ----- -----
BALANCE, DECEMBER 31,
1994................... 12 772 -- (306) 478
Net income............. -- -- -- 979 979
Distributions.......... -- -- -- (703) (703)
Stock options.......... -- 17 -- -- 17
--- ---- ----- ----- -----
BALANCE, DECEMBER 31,
1995................... 12 789 -- (30) 771
Net income (unau-
dited)................ -- -- -- 379 379
Distributions (unau-
dited)................ -- -- -- (232) (232)
--- ---- ----- ----- -----
BALANCE, June 30, 1996
(unaudited)............ $12 $789 $ -- $ 117 $ 918
=== ==== ===== ===== =====
</TABLE>
The accompanying notes are an integral part of these statements.
F-21
<PAGE>
SOMAR, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE
FOR THE YEAR ENDED SIX MONTHS
DECEMBER 31 ENDED JUNE 30
----------------------- ----------------
1993 1994 1995 1995 1996
----- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income ........................ $ 96 $ 627 $ 979 $ 655 $ 379
Adjustments to reconcile net income
to net cash provided by (used in)
operating activities--
Depreciation and amortization.... 145 288 775 283 593
Stock option compensation ex-
pense........................... -- 298 17 17 --
Changes in operating assets and
liabilities--
Accounts receivable............ 144 (1,987) (2,003) (1,620) (2,432)
Prepaid expenses and other..... (89) (123) (144) (136) (72)
Accounts payable............... (165) 559 614 935 490
Accrued expenses............... 123 395 203 8 322
----- ------- ------- ------- -------
Net cash provided by (used
in) operating activities.... 254 57 441 142 (720)
----- ------- ------- ------- -------
INVESTING ACTIVITIES:
Purchases of property and equip-
ment.............................. (19) (174) (2,309) (765) (511)
Advances to stockholder............ (426) (103) (352) (422) (44)
Advances to affiliates............. -- (2) (209) -- (102)
Repayments of advances to affili-
ates.............................. 1 13 -- 1 --
Repayment of stockholder loan...... -- 612 -- -- --
----- ------- ------- ------- -------
Net cash (used in) provided
by investing activities..... (444) 346 (2,870) (1,186) (657)
----- ------- ------- ------- -------
FINANCING ACTIVITIES:
Borrowings on long-term debt....... 24 25 2,824 1,032 806
Repayments on long-term debt....... (86) (31) (257) (220) (883)
Borrowings (repayments) on note
payable--Bank..................... -- -- 1,000 -- (1,000)
Borrowings (repayments) from affil-
iates............................. 506 (491) 458 99 (123)
Distributions paid to sharehold-
ers............................... -- (669) (703) -- (232)
Payments on capital lease obliga-
tions............................. (302) (297) (623) (502) (468)
Net (repayments) borrowings on line
of credit agreement............... 63 1,046 (247) 671 3,256
----- ------- ------- ------- -------
Net cash provided by (used
in) financing activities.... 205 (417) 2,452 1,080 1,356
----- ------- ------- ------- -------
NET INCREASE (DECREASE) IN CASH...... 15 (14) 23 36 (21)
CASH, BEGINNING OF PERIOD............ 1 16 2 2 25
----- ------- ------- ------- -------
CASH, END OF PERIOD.................. $ 16 $ 2 $ 25 $ 38 $ 4
===== ======= ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-22
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
SOMAR, Inc. (the "Company") is a provider of outsourced telephone-based
sales, marketing and customer management services, to clients principally in
the insurance industry and also to clients in the financial services,
telecommunications and consumer products industries.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISK
The Company recognizes revenues on programs as services are performed for its
clients, generally based upon hours incurred.
The nature of the industry is such that the Company is dependent on several
large clients for a significant portion of its annual revenues. For the years
ended December 31, 1993, 1994, 1995, and for the six months ended June 30,
1996, the Company had three, four, three and three clients, respectively, that
each accounted for more than 10% of the Company's revenues. For the period
ended December 31, 1993, the three clients accounted for 36%, 25% and 11% of
the Company's revenues, respectively. For the period ended December 31, 1994,
the four clients accounted for 20%, 17%, 16% and 13% of the Company's revenues,
respectively. For the period ended December 31, 1995, the three clients
accounted for 33%, 16% and 15% of the Company's revenues. For the six months
ended June 30, 1996, the three clients accounted for 22%, 20%, and 13% of the
Company's revenues, respectively. The loss of one or more of these major
clients could have a materially adverse effect on the Company's business.
Concentration of credit risk is limited to trade accounts receivable and is
subject to the financial conditions of certain major clients described above.
Two of these clients are engaged in transactions with each other and represent
a single credit risk to the Company. The Company does not require collateral to
secure clients' receivables. The Company performs periodic reviews of its
clients' financial condition to reduce collection risk on trade accounts
receivable.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Depreciation is provided using
the straight-line method for financial reporting purposes and accelerated
methods for income tax reporting purposes over the estimated useful lives of
the respective assets. Assets recorded under capital leases are amortized using
the straight-line method over the estimated useful lives of the leased assets.
Upon sale or retirement, the related cost and accumulated depreciation are
removed from the accounts, and any gain or loss is recognized in the statement
of income.
Major improvements are capitalized and charged to expense through
depreciation. Repairs and maintenance are charged to expense as incurred.
Certain general and administrative expenses associated with the opening of new
call centers are expensed prior to the opening of the call center.
As of January 1, 1993, the Company prospectively revised the remaining lives
of certain furniture and equipment to better reflect the periods during which
such assets are expected to remain in service. Furniture and equipment lives
that previously averaged three years were increased to an average of six years.
This change increased income for the year ended December 31, 1993, by $101,000.
F-23
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
STATEMENT OF CASH FLOWS
For the years ended December 31, 1993, 1994, 1995 and the six months ended
June 30, 1996, the Company paid interest of $114,000, $366,000, $750,000 and
$450,000, respectively.
INCOME TAXES
The Company has elected to be taxed as an S Corporation under the provisions
of the Internal Revenue Code and North Carolina General Statutes. As a result,
the Company is not subject to federal income taxes, and the taxable income of
the Company is included in the individual tax returns of the Company's
stockholders. Accordingly, no provision for federal or state income taxes has
been recorded in the accompanying financial statements.
The Company reports certain income and expense items for income tax purposes
on a basis different from that reflected in the accompanying financial
statements. The principal differences relate to the timing of the recognition
of accrued expenses that are not deductible for federal income tax purposes
until paid and the use of accelerated methods of depreciation for income tax
purposes. At December 31, 1995, the financial reporting basis of the Company's
net assets exceeds the tax basis of the net assets by approximately $580,000.
In the event that the S Corporation is terminated, deferred income taxes
applicable to these differences would be reflected in the accompanying
financial statements.
Given the pending sale of the business (see Note 8), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The differences between the federal statutory income tax
rate and the pro forma income tax rate primarily relate to state and local
income taxes and expenses not deductible for tax purposes.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at fair value due to the short-term
nature of those instruments. The carrying amounts of the line of credit, note
payable and long-term debt approximate fair value on the balance sheet dates.
PREPAID AGENT LICENSE FEES
The Company capitalizes the cost of licensing its agents and amortizes
license fees over a 12-month period. Prepaid agent license fees amounted to
$59,000 and $172,000 at December 31, 1994 and 1995, respectively.
ACCOUNTING OF STOCK-BASED COMPENSATION
The Company currently utilizes Accounting Principles Board Opinion No. 25 in
its accounting for stock options. In October 1995, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards ("SFAS") No.
123, "Accounting for Stock-Based Compensation." The accounting method as
provided in the pronouncement is not required to be adopted; however, it is
encouraged. The Company does not anticipate adopting the accounting provisions
of the statement but will include in the footnotes to the financial statements
the disclosures required by SFAS No. 123 in fiscal 1996.
TRAINING COSTS
The Company maintains ongoing training programs for its employees. The cost
of this training is charged to expense when incurred. As of December 31, 1995,
the Company recorded a $407,000 receivable from a State Economic Development
Agency for certain educational and training costs that are to be reimbursed.
F-24
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INTERIM FINANCIAL STATEMENTS
The financial statements as of June 30, 1996 and for the six months ended
June 30, 1995 and 1996 are unaudited and, in the opinion of management of the
Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results for those interim
periods. The results of operations for the six months ended June 30, 1996 are
not necessarily indicative of the results to be expected for the full year.
2. PROPERTY AND EQUIPMENT:
<TABLE>
<CAPTION>
DECEMBER 31
USEFUL --------------- JUNE 30
LIVES 1994 1995 1996
--------- ------ ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Furniture and fixtures................... 5-7 years $ 874 $ 2,265 $3,074
Telemarketing equipment.................. 5 years 1,694 3,263 4,010
Building................................. 40 years -- -- 900
Leasehold improvements................... 5-6 years 9 359 362
------ ------- ------
2,577 5,887 8,346
Less--Accumulated depreciation and
amortization............................ (712) (1,487) (2,080)
------ ------- ------
$1,865 $ 4,400 $6,266
====== ======= ======
</TABLE>
The gross cost of equipment under capital lease obligations included above
amounted to $1,547,000, $2,547,000 and $4,485,000 at December 31, 1994, 1995
and June 30, 1996, respectively.
Depreciation and amortization expense for the years ended December 31, 1993,
1994, 1995, and for the six months ended June 30, 1996 was $145,000, $288,000,
$775,000 and $593,000, respectively.
3. LINE OF CREDIT AND NOTE PAYABLE--BANK:
At December 31, 1994 and 1995, the Company had a line of credit with Fremont
Financial Corporation ("Fremont"). The Company has entered into an agreement
with NationsBank of Georgia ("NationsBank") for a revolving line of credit with
a maximum borrowing limit of $6,500,000. Interest on the NationsBank line of
credit is payable monthly and accrues on borrowings under the revolving line of
credit at the bank's prime rate (8 1/2%) plus 1%.
The Company's borrowing base under the NationsBank revolver is limited to 85%
of eligible receivables as defined by the agreement. The line is secured by
trade accounts receivable, equipment and other assets of the Company. At July
12, 1996, the Company's availability under the NationsBank revolver was
approximately $780,000.
The agreement terminates on January 1, 1997, and contains certain restrictive
covenants that, among other things, require the maintenance of certain
financial ratios, limitations on capital expenditures and bonuses, and
restrictions on future indebtedness. As of March 31, 1996, the Company was in
violation of certain loan covenants for which it has obtained a waiver letter
from the bank. This waiver letter modified the loan covenants related to
certain required financial ratios. As of June 30, 1996, the Company is in
compliance with these revised loan covenants.
F-25
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
At December 31, 1995, the Company was transitioning its line of credit
arrangement from Fremont to NationsBank. In connection with the transition, the
Company borrowed $1,000,000 from NationsBank on a short-term basis at an
interest rate equal to the bank's prime rate (8.5%) plus 1%. This note was
repaid on January 3, 1996, with the proceeds from the new revolving line of
credit arrangement.
4. LONG-TERM DEBT:
<TABLE>
<CAPTION>
DECEMBER 31
------------- JUNE 30
1994 1995 1996
----- ------ -----------
(IN THOUSANDS)
<S> <C> <C> <C>
Note payable to MCI Telecommunications Corporation,
unsecured, payable in monthly installments of
$128,300 through July 1996, and remaining payment
of $118,700 due in August 1996, interest at 9.75%
(on June 15, 1996, this note was refinanced; the
refinanced note is payable in monthly installments
of $128,300 through March 1997 and $43,400 in
April 1997, at an interest rate of 9.75%)......... $ -- $ 981 $ 1,149
Notes payable to a bank, secured by related
equipment, payable on July 1, 1996, interest
payable monthly at the bank's prime rate plus 150
basis points (10% at December 31, 1995),
guaranteed by the Company's two principal
stockholders and two affiliated companies (on July
5, 1996, these notes were refinanced by the West
Virginia Economic Development Authority; the
refinanced notes are secured by assets of the
Company and are payable in monthly installments of
$21,250 including interest, through July 1999, at
an interest rate of 4%)........................... -- 720 720
Installment note payable to a bank, secured by
related equipment, payable in monthly installments
of $11,900 including interest, through August
1998, at the bank's prime interest rate plus 150
basis points (10% at December 31, 1995),
guaranteed by the Company's two principal
stockholders and two affiliated companies......... -- 331 274
Note payable to Network Sampling Services, balance
due July 1, 1997, including interest at 10%,
guaranteed by one of the Company's principal
stockholders...................................... 382 300 300
Installment note payable to a bank, secured by
related equipment, payable in monthly installments
of $11,957 including interest, through April 1998,
at the bank's prime interest rate plus 150 basis
points (10% at December 31, 1995), guaranteed by
the Company's two principal stockholders and two
affiliated companies.............................. -- 288 230
Installment note payable to a bank, secured by
related equipment, payable in monthly installments
of $21,774 including interest, through October
1996, at the bank's prime rate plus 150 basis
points (10% at December 31, 1995), guaranteed by
the Company's two principal stockholders and two
affiliated companies.............................. -- 226 114
Installment note payable to a finance company,
unsecured, payable in monthly installments of
$3,800 including interest, through August 1998 at
an interest rate of 9%............................ -- 103 85
----- ------ -------
382 2,949 2,872
Less--Current portion............................ (82) (2,182) (1,798)
----- ------ -------
$ 300 $ 767 $ 1,074
===== ====== =======
</TABLE>
F-26
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
Minimum principal repayments of long-term debt as of December 31, 1995, are
as follows (in thousands):
<TABLE>
<S> <C>
1996.................................................................. $2,182
1997.................................................................. 602
1998.................................................................. 165
------
$2,949
======
</TABLE>
The notes payable to a bank contain certain restrictive covenants. As of June
30, 1996, the Company was in violation of one of the loan covenants for which
it has obtained a waiver from the bank.
5. COMMITMENTS AND CONTINGENCIES:
The Company is party to various claims and other matters arising in the
normal course of business. In the opinion of management, the outcome of these
matters will not have a material adverse effect on the Company's financial
position or results of operations.
LEASES
The Company leases administrative offices, telephone call centers and
equipment under noncancelable operating leases. In addition, the Company has
capital leases covering certain operating equipment. Future minimum lease
payments at December 31, 1995, are as follows (in thousands):
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASES
--------- -------
<S> <C> <C>
1996...................................................... $ 673 $ 989
1997...................................................... 549 647
1998...................................................... 449 280
1999...................................................... 221 16
2000...................................................... 179 --
Thereafter................................................ 503 --
------ -----
Total................................................. $2,574 1,932
======
Less--Amount representing interest...................... (208)
-----
Present value of future minimum lease payments............ 1,724
Less--Current portion................................... (852)
-----
$ 872
=====
</TABLE>
Rent expense under operating leases was approximately $631,000, $599,000,
$673,000 and $389,000 for the years ended December 31, 1993, 1994, 1995, and
for the six months ended June 30, 1996, (including amounts paid to related
parties), respectively (see Note 7).
The Company financed purchases of approximately $59,000, $1,488,000,
$1,000,000 and $1,948,000 through capital leases in 1993, 1994, 1995, and for
the six months ended June 30, 1996, respectively.
EMPLOYEE BENEFIT PLAN
The Company sponsors a defined contribution 401(k) profit-sharing plan for
eligible employees. Company contributions to the plan, which are based on a
company match percentage, amounted to $8,000, $21,000,
F-27
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
$30,000 and $23,000 for the years ended December 31, 1993, 1994, 1995, and for
the six months ended June 30, 1996, respectively.
6. STOCK OPTIONS:
In December 1991, the Company's two principal stockholders granted stock
options to three key employees for the purchase of up to 2,588 shares of their
common stock at an exercise price of $10 per share. The options vested
immediately and were exercisable through December 31, 1994. The deemed value of
the options for accounting purposes at the date of grant was less than the $10
exercise price. Accordingly, no compensation expense was recorded at the date
of these grants.
In December 1994, the principal stockholders extended all option exercise
dates from December 31, 1994 to March 31, 1996. All remaining option terms,
including the $10 per share exercise price, remained unchanged. The deemed
value of the options for accounting purposes at the extension date was $125 per
share. Accordingly, $298,000 of compensation expense was recorded at the date
of extension.
In May 1995, the Company's two principal stockholders granted stock options
to another key employee for the purchase of up to 117 shares of their common
stock at an exercise price of $10 per share through March 31, 1996. The deemed
value of the options for accounting purposes at the date of grant was $156 per
share. Accordingly, $17,000 of compensation expense was recorded at the date of
grant.
At December 31, 1994 and 1995, no options had been exercised and 2,588 and
2,705 options were outstanding, respectively.
In March 1996, all options were exercised and 2,705 shares were issued by the
Company's principal shareholders to the option holders.
7. RELATED-PARTY TRANSACTIONS:
Southern Investments (a partnership), The Development Group, Inc. ("DGI"),
Southern Alloy of America, Inc., SOMAR Telecommunications, Inc. ("STI") and
Engineered Machine Technologies, Inc. ("EMTI") are affiliated with the Company
through common ownership.
The Company leases residential real estate, automobiles, computer equipment
and furniture and equipment from Southern Investments on a month-to-month
basis. Rent expense related to these operating leases totaled approximately
$495,000, $363,000, $278,000 and $144,000 for the years ended December 31,
1993, 1994, 1995 and for the six months ended June 30, 1996, respectively.
F-28
<PAGE>
SOMAR, INC.
NOTES TO FINANCIAL STATEMENTS--(CONCLUDED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
Following is a schedule of amounts due from a stockholders and affiliates (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------- JUNE 30,
1994 1995 1996
------------- --------
<S> <C> <C> <C>
Stockholders......................................... $529 $ 881 $ 925
Southern Investments................................. -- 102 115
DGI.................................................. -- 42 23
EMTI................................................. 1 5 9
STI.................................................. -- 61 165
----- ------- ------
$530 $1,091 $1,237
===== ======= ======
</TABLE>
Following is a schedule of amounts due to an affiliate (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------- JUNE 30,
1994 1995 1996
------ ------ --------
<S> <C> <C> <C>
Southern Alloy of America, Inc....................... $105 $562 $439
====== ====== ====
</TABLE>
Included in interest expense and interest income in the accompanying
financial statements is interest income (expense) from (to) related parties
(including allocated interest expense) as follows (in thousands):
<TABLE>
<CAPTION>
FROM (TO)
--------------------------
DECEMBER 31,
---------------- JUNE 30,
1993 1994 1995 1996
---- ---- ---- --------
<S> <C> <C> <C> <C>
Southern Alloy of America, Inc................... $(18) $(99) $(94) $(49)
Southern Investments............................. (14) 12 -- 6
---- ---- ---- ----
$(32) $(87) $(94) $(43)
==== ==== ==== ====
</TABLE>
In 1993, 1994, 1995 and for the six months ended June 30, 1996, the Company
was allocated interest expense from Southern Alloy of America, Inc., amounting
to approximately $18,000, $99,000, $94,000 and $49,000, respectively.
The Company's senior management are employees of DGI. DGI charges the Company
for services provided by these individuals. These expenses amounted to
approximately $879,000, $1,132,000, $1,136,000 and $675,000 in 1993, 1994, 1995
and for the six months ended June 30, 1996, respectively.
The Company has guaranteed a line of credit agreement for Southern Alloy of
America, Inc. The outstanding balance under this agreement amounted to
$1,424,000 at December 31, 1995 and $1,667,000 at June 30, 1996. The guarantee
related to this line of credit agreement is not being assumed in connection
with the sale of the business discussed in Note 8 below.
8. SALE OF BUSINESS:
In April 1996, the Company entered into an Asset Purchase Agreement with
TeleSpectrum Worldwide, a wholly owned subsidiary of CRW Financial, Inc.
("CRW"), whereby CRW agreed to purchase substantially all of the Company's net
assets.
F-29
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To NBG Services, Inc.:
We have audited the accompanying balance sheets of NBG Services, Inc. (a
Massachusetts corporation--see Note 1) as of December 30, 1994 and December 29,
1995, and the related statements of income, shareholders' equity and cash flows
for each of the three fiscal years in the period ended December 29, 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of NBG Services, Inc. as of
December 30, 1994 and December 29, 1995, and the results of its operations and
its cash flows for each of the three fiscal years in the period ended December
29, 1995, in conformity with generally accepted accounting principles.
Arthur Andersen LLP
Philadelphia, Pa.,
May 8, 1996
F-30
<PAGE>
NBG SERVICES, INC.
BALANCE SHEETS
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 30, DECEMBER 29, JUNE 28,
1994 1995 1996
------------ ------------ -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents.............. $ -- $ 700 $1,959
Short-term investments................. 14 210 170
Accounts receivable, net of reserves of
$37 in 1994 and $90 in 1995 and 1996.. 527 1,757 1,286
Due from TeleSpectrum Worldwide, Inc... -- -- 42
Prepaid expenses and other............. 31 129 205
------ ------ ------
Total current assets................. 572 2,796 3,662
PROPERTY AND EQUIPMENT, net.............. 817 1,336 1,893
OTHER ASSETS............................. 94 102 108
------ ------ ------
Total assets......................... $1,483 $4,234 $5,663
====== ====== ======
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of capital lease
obligations........................... $ 273 $ 277 $ 434
Bank overdraft......................... 82 -- --
Demand note............................ -- 500 --
Accounts payable....................... 196 212 350
Accrued expenses....................... 259 537 467
------ ------ ------
Total current liabilities............ 810 1,526 1,251
------ ------ ------
CAPITAL LEASE OBLIGATIONS................ 277 454 760
------ ------ ------
COMMITMENTS AND CONTINGENCIES (Note 5)
SHAREHOLDERS' EQUITY:
Common stock, no par value, 10,000
shares authorized,
100 shares issued and outstanding..... -- -- --
Retained earnings...................... 396 2,254 3,652
------ ------ ------
Total shareholders' equity........... 396 2,254 3,652
------ ------ ------
Total liabilities and shareholders'
equity.............................. $1,483 $4,234 $5,663
====== ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-31
<PAGE>
NBG SERVICES, INC.
STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE TWENTY-
SIX
FOR THE FISCAL YEAR ENDED WEEKS ENDED
-------------------------------------- -----------------
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
------------ ------------ ------------ -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES................ $4,849 $5,778 $12,829 $5,599 $8,924
------ ------ ------- ------ ------
OPERATING EXPENSES:
Cost of services...... 3,200 4,259 8,572 3,556 5,995
Selling, general and
administrative
expenses............. 1,289 1,443 2,115 1,046 1,389
------ ------ ------- ------ ------
Total operating
expenses........... 4,489 5,702 10,687 4,602 7,384
------ ------ ------- ------ ------
Operating income.... 360 76 2,142 997 1,540
INTEREST INCOME......... 1 17 19 -- 32
INTEREST EXPENSE........ (76) (60) (55) (30) (54)
------ ------ ------- ------ ------
NET INCOME.............. $ 285 $ 33 $ 2,106 $ 967 $1,518
====== ====== ======= ====== ======
PRO FORMA DATA
(UNAUDITED)
Historical net
income............... $ 285 $ 33 $ 2,106 $ 967 $1,518
Pro forma provision
for income taxes..... 125 25 864 396 622
------ ------ ------- ------ ------
Pro forma net income.. $ 160 $ 8 $ 1,242 $ 571 $ 896
====== ====== ======= ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-32
<PAGE>
NBG SERVICES, INC.
STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
TOTAL
RETAINED SHAREHOLDERS'
SHARES AMOUNT EARNINGS EQUITY
------ ------ -------- -------------
<S> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1993.................. 100 $ -- $ 78 $ 78
Net income.............................. -- -- 285 285
--- ----- ------ ------
BALANCE, DECEMBER 31, 1993................ 100 -- 363 363
Net income.............................. -- -- 33 33
--- ----- ------ ------
BALANCE, DECEMBER 30, 1994................ 100 -- 396 396
Net income.............................. -- -- 2,106 2,106
Distributions........................... -- -- (248) (248)
--- ----- ------ ------
BALANCE, DECEMBER 29, 1995................ 100 -- 2,254 2,254
Net income (unaudited).................. 1,518 1,518
Distributions (unaudited)............... -- -- (120) (120)
--- ----- ------ ------
BALANCE, JUNE 28, 1996 (unaudited)........ 100 $ -- $3,652 $3,652
=== ===== ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-33
<PAGE>
NBG SERVICES, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE TWENTY-
FOR THE FISCAL YEAR ENDED SIX WEEKS ENDED
-------------------------------------- -----------------
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
------------ ------------ ------------ -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income............ $ 285 $ 33 $ 2,106 $ 967 $1,518
Adjustments to
reconcile net income
to net cash provided
by operating
activities--
Depreciation and
amortization....... 128 205 319 132 230
Provision for loss
on accounts
receivable......... -- 37 113 50 15
Changes in operating
assets
and liabilities--
Accounts
receivable....... (176) (182) (1,343) (135) 456
Due from
TeleSpectrum
Worldwide, Inc... -- -- -- -- (42)
Prepaid expenses
and other........ (45) (46) (106) (71) (82)
Accounts payable.. 41 93 16 64 138
Accrued expenses.. 47 75 278 280 (70)
----- ---- ------- ----- ------
Net cash
provided by
operating
activities..... 280 215 1,383 1,287 2,163
----- ---- ------- ----- ------
INVESTING ACTIVITIES:
Purchase of short-term
investments.......... (41) (35) (205) -- --
Proceeds from short-
term investments..... -- 62 9 -- 40
Purchases of property
and equipment........ (37) (69) (398) (143) (92)
----- ---- ------- ----- ------
Net cash used in
investing
activities..... (78) (42) (594) (143) (52)
----- ---- ------- ----- ------
FINANCING ACTIVITIES:
Bank overdraft........ -- 82 (82) (82) --
Repayment of capital
lease obligations.... (207) (264) (259) (134) (232)
Proceeds from demand
note................. -- -- 500 -- --
Repayment of demand
note................. -- -- -- -- (500)
Distributions to
shareholders......... -- -- (248) -- (120)
----- ---- ------- ----- ------
Net cash used in
financing
activities..... (207) (182) (89) (216) (852)
----- ---- ------- ----- ------
NET INCREASE (DECREASE)
IN CASH AND CASH
EQUIVALENTS............ (5) (9) 700 928 1,259
CASH AND CASH
EQUIVALENTS, BEGINNING
OF PERIOD.............. 14 9 -- -- 700
----- ---- ------- ----- ------
CASH AND CASH
EQUIVALENTS, END OF
PERIOD................. $ 9 $ -- $ 700 $ 928 $1,959
===== ==== ======= ===== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-34
<PAGE>
NBG SERVICES, INC.
NOTES TO FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE
TWENTY-SIX WEEKS ENDED JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
RG Associates, Inc., d/b/a NBG Services, Inc. was incorporated in June 1991.
In April 1996, RG Associates, Inc., d/b/a NBG Services, Inc., amended its
Articles of Incorporation to change the name of the corporation to NBG
Services, Inc. (the "Company"). The Company provides outbound telemarketing
data processing and fulfillment services in the financial services,
telecommunications and high technology industries.
The Company operates on a fifty-two, fifty-three week fiscal year ending on
the last Friday of the calendar year.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISKS
The Company recognizes revenues as services are performed for its clients.
Cash received in advance of services performed is deferred and recorded as
deferred revenue in the accompanying balance sheets. For the fiscal years ended
December 31, 1993, December 30, 1994 and December 29, 1995, and the twenty-six
weeks ended June 28, 1996 the Company had one, two, two and two clients,
respectively, that each accounted for more than 10% of the Company's revenues.
For the fiscal year ended December 31, 1993, one client accounted for 95% of
the Company's revenues. For the fiscal year ended December 30, 1994, the two
clients accounted for 13% and 77% of the Company's revenues, respectively. For
the fiscal year ended December 29, 1995, the two clients accounted for 40% and
53% of the Company's revenues, respectively. For the twenty-six weeks ended
June 28, 1996, the two clients accounted for 27% and 66% of the Company's
revenue, respectively. The loss of either of these significant clients would
have a material adverse effect on the Company's business.
The concentration of credit risk is limited to trade accounts receivables and
is subject to the financial conditions of the Company's clients. The Company
does not require collateral or other securities to support customer
receivables.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments purchased with an
original maturity of three months or less to be cash equivalents.
Investments are held at market value, and at December 29, 1995 and June 28,
1996 were classified as short-term. Cash, cash equivalents and investments
consisted of the following:
<TABLE>
<CAPTION>
DECEMBER 30, DECEMBER 29, JUNE 28,
1994 1995 1996
------------ -------------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH:
Money market and demand accounts..... $ -- $700 $1,959
INVESTMENTS:
Common stocks........................ 11 196 160
Mutual funds......................... 3 14 10
----- ---- ------
$ 14 $910 $2,129
===== ==== ======
</TABLE>
The Company adopted Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities," (SFAS 115)
effective January 1, 1994. This statement requires the Company to classify its
investment securities as: (1) held to maturity, (2) available for sale or (3)
held for trading purposes. At December 30, 1994, December 29, 1995, and June
28, 1996 all of the Company's short-term investments are classified as
available for sale, therefore any unrealized holding gains or losses should be
F-35
<PAGE>
NBG SERVICES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE
TWENTY-SIX WEEKS ENDED JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
presented in a separate component of shareholders' equity. At December 30,
1994, December 29, 1995 and June 28, 1996, there were no significant unrealized
holding gains or losses.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Property and equipment
capitalized under capital leases are recorded at the present value of the
minimum lease payments due over the term of the lease. Depreciation and
amortization are provided using the straight-line method over the estimated
useful lives or the lease term, whichever is shorter.
Expenditures for maintenance, repairs and betterments which do not prolong
the useful life of an asset have been charged to operations as incurred.
Additions and betterments which substantially extend the useful life of the
asset are capitalized. Upon sale or other disposition of assets, the cost and
related accumulated depreciation and amortization are removed from the
respective accounts, and the resulting gain or loss, if any, is included in
income.
STATEMENT OF CASH FLOWS
For the fiscal years ended December 31, 1993, December 30, 1994, December 29,
1995 and the twenty-six weeks ended June 28, 1996, the Company paid interest of
$76,000, $60,000, $55,000 and $54,000, respectively. For the fiscal years ended
December 31, 1993, December 30, 1994, December 29, 1995 and the twenty-six
weeks ended June 28, 1996 the Company financed equipment purchases with capital
leases of $381,000, $302,000, $440,000 and $695,000, respectively.
INCOME TAXES
The Company has elected to be taxed under Subchapter S of the Internal
Revenue Code. As a result, the Company is not subject to federal income taxes,
and the taxable income of the Company is included in the shareholders' tax
returns. Therefore, no provision for federal and state income taxes has been
made for the fiscal years ended December 31, 1993, December 30, 1994 and
December 29, 1995 and the twenty-six weeks ended June 28, 1996.
The Company is on the cash basis of accounting for income tax reporting
purposes and on the accrual basis for financial reporting purposes. Therefore,
the Company reports certain income and expense items for income tax purposes on
a basis different from that reflected in the accompanying financial statements.
At December 29, 1995, the Company's financial reporting basis of the net assets
exceeds the tax basis of the net assets by approximately $1,500,000. In the
event that the S Corporation is terminated, deferred income taxes applicable to
these differences would be reflected in the accompanying financial statements.
Given the pending sale of the business (see Note 7), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The differences between the federal statutory income tax
rate and the pro forma income tax rate primarily relates to state and local
income taxes and expenses not deductible for tax purposes.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at fair value due to the short-term
nature of those instruments. The carrying amount of the demand note and capital
lease obligations approximates fair value at December 29, 1995 and June 28,
1996.
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and
F-36
<PAGE>
NBG SERVICES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND THE
TWENTY-SIX WEEKS ENDED JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
INTERIM FINANCIAL STATEMENTS
The financial statements as of June 28, 1996 and the twenty six weeks ended
June 30, 1995 and June 28, 1996 are unaudited and, in the opinion of management
of the Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results for those interim
periods. The results of operations for the twenty six weeks ended June 28, 1996
are not necessarily indicative of the results to be expected for the full year.
2. PROPERTY AND EQUIPMENT:
<TABLE>
<CAPTION>
USEFUL DECEMBER 30, DECEMBER 29, JUNE 28,
LIVES 1994 1995 1996
------ ------------ ------------ --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Telemarketing equipment.......... 5 $1,097 $1,845 $2,495
Furniture and office equipment... 7 155 195 332
Leasehold improvements........... 7 -- 50 50
------ ------ ------
1,252 2,090 2,877
Less--Accumulated depreciation
and amortization................ (435) (754) (984)
------ ------ ------
$ 817 $1,336 $1,893
====== ====== ======
Depreciation expense for the fiscal years ended December 31, 1993, December
30, 1994, December 29, 1995 and the twenty six weeks ended June 28, 1996 was
$128,000, $205,000, $319,000 and $230,000, respectively.
3. ACCRUED EXPENSES:
<CAPTION>
DECEMBER 30, DECEMBER 29, JUNE 28,
1994 1995 1996
------------ ------------ --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Accrued compensation............. $ 84 $ 174 $ 293
Accrued profit sharing........... 110 139 --
Accrued telephone................ 50 77 86
Accrued other.................... 15 147 88
------ ------ ------
$ 259 $ 537 $ 467
====== ====== ======
4. DEBT:
<CAPTION>
DECEMBER 30, DECEMBER 29, JUNE 28,
1994 1995 1996
------------ ------------ --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Demand note...................... $ -- $ 500 $ --
Capitalized lease obligations
(Note 5)........................ 550 731 1,194
------ ------ ------
550 1,231 1,194
Less-current portion............. (273) (777) (434)
------ ------ ------
$ 277 $ 454 $ 760
====== ====== ======
</TABLE>
On December 29, 1995, the Company borrowed $500,000 from a bank under a
demand note which bears interest at prime rate (8.5% at December 29, 1995). The
note was repaid on March 29, 1996. Interest expense on this note was $15,000
for the twenty-six weeks ended June 28, 1996.
F-37
<PAGE>
NBG SERVICES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONCLUDED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE
TWENTY-SIX WEEKS ENDED JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
The Company has a line of credit with a bank which provides for maximum
borrowings of $500,000. The line is collateralized by all of the assets of the
Company and is personally guaranteed by the shareholders. The line of credit
expires on May 31, 1997. At December 29, 1995 and June 28, 1996, there was no
outstanding balance on this line of credit.
5. COMMITMENTS AND CONTINGENCIES:
The Company leases facilities and equipment under capital and noncancelable
operating leases through December, 2002. Interest rates on the capital leases
range from 4% to 18%. Rent expense under operating leases for the fiscal years
ended December 31, 1993, December 30, 1994, December 29, 1995 and the twenty-
six weeks ended June 28, 1996 was $110,000, $213,000, $331,000 and $288,000,
respectively.
Future minimum lease payments under the Company's leases as of December 29,
1995 are as follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASES
--------- -------
(IN THOUSANDS)
<S> <C> <C>
1996...................................................... $ 747 $ 328
1997...................................................... 512 277
1998...................................................... 514 154
1999...................................................... 524 57
2000...................................................... 470 --
Thereafter................................................ 462 --
------ -----
Total minimum lease payments.............................. $3,229 816
======
Less--Amount representing interest........................ (85)
-----
Present value of future minimum lease payments............ 731
-----
Less--Current portion of principal payments............... (277)
-----
$ 454
=====
</TABLE>
The Company subleases two of its facilities under noncancelable operating
leases through December 31, 1996. Total minimum lease payments have not been
reduced by the minimum sublease rentals of $90,000 due to the Company under
these two noncancelable subleases.
6. EMPLOYEE BENEFIT PLANS:
The Company sponsors a noncontributory profit sharing plan for employees. The
Company's contributions to the plan are at the discretion of the Board of
Directors. For the fiscal years ended December 31, 1993, December 30, 1994 and
December 29, 1995 the Company's discretionary contributions to the plan were
$75,000, $110,000 and $139,000, respectively. There were no contributions to
the plan for the twenty-six weeks ended June 28, 1996.
On January 1, 1996, the Company adopted a defined contribution 401(k) savings
plan. The plan provides for a matching contribution by the Company based on
employee contributions. Additional Company contributions may be made at the
discretion of management. For the twenty six-weeks ended June 28, 1996, the
Company contributed $9,000 to the plan.
7. SALE OF BUSINESS:
In May 1996, an asset purchase agreement was signed among TeleSpectrum
Worldwide Inc., a wholly-owned subsidiary of CRW Financial, Inc., the Company
and the shareholders of the Company, whereby TeleSpectrum Worldwide agreed to
purchase substantially all of the net assets of the Company.
F-38
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Harris Direct Marketing, Inc. and Harris Fulfillment, Inc.:
We have audited the accompanying combined balance sheets of Harris Direct
Marketing, Inc. and Harris Fulfillment, Inc. (Pennsylvania corporations) as of
December 31, 1994 and 1995, and the related combined statements of income,
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1995. These financial statements are the responsibility of
the Companies' management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the combined financial position of Harris Direct
Marketing, Inc. and Harris Fulfillment, Inc. as of December 31, 1994 and 1995,
and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 1995, in conformity with generally
accepted accounting principles.
Arthur Andersen LLP
Philadelphia, Pa.,
April 19, 1996
F-39
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
COMBINED BALANCE SHEETS
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31
--------------- JUNE 30
1994 1995 1996
------ ------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents....................... $ 975 $ 2,919 $ 877
Accounts receivable, net of reserves of $25,
$161 and $77 at December 31, 1994, 1995 and
June 30, 1996.................................. 2,872 2,930 3,760
Prepaid expenses and other...................... 592 651 576
------ ------- ------
Total current assets.......................... 4,439 6,500 5,213
PROPERTY AND EQUIPMENT, net....................... 4,270 4,139 4,135
OTHER ASSETS...................................... 64 164 53
------ ------- ------
Total assets.................................. $8,773 $10,803 $9,401
====== ======= ======
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt............... $ 349 $ 299 $ 309
Accounts payable................................ 338 362 267
Accrued expenses................................ 616 635 442
Customer advances............................... 876 1,463 753
------ ------- ------
Total current liabilities..................... 2,179 2,759 1,771
------ ------- ------
LONG-TERM DEBT.................................... 1,863 1,530 1,390
------ ------- ------
DEFERRED RENT..................................... 116 120 139
------ ------- ------
OTHER NONCURRENT LIABILITIES...................... 35 19 31
------ ------- ------
COMMITMENTS AND CONTINGENCIES (Note 7)
SHAREHOLDERS' EQUITY:
Common stock (Harris Direct Marketing, Inc.), no
par value, 10,000 shares authorized, 99 shares
issued......................................... 1 1 1
Common stock (Harris Fulfillment, Inc.), $1 par
value, 1,000 shares authorized, 111 1/9 shares
issued and outstanding......................... -- -- --
Additional paid-in capital...................... 45 45 45
Retained earnings............................... 4,659 6,454 6,149
Treasury stock, at cost......................... (125) (125) (125)
------ ------- ------
Total shareholders' equity.................... 4,580 6,375 6,070
------ ------- ------
Total liabilities and shareholders' equity.... $8,773 $10,803 $9,401
====== ======= ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-40
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
COMBINED STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED FOR THE SIX MONTHS
DECEMBER 31 ENDED JUNE 30
------------------------ --------------------
1993 1994 1995 1995 1996
------ ------- ------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES....................... $7,018 $10,115 $12,690 $7,525 $5,367
------ ------- ------- --------- ---------
OPERATING EXPENSES:
Cost of services............. 3,834 5,530 6,402 3,543 2,762
Selling, general and
administrative expenses..... 2,473 2,680 2,986 1,431 1,521
------ ------- ------- --------- ---------
Total operating expenses... 6,307 8,210 9,388 4,974 4,283
------ ------- ------- --------- ---------
Operating income........... 711 1,905 3,302 2,551 1,084
INTEREST INCOME................ 21 9 70 20 46
INTEREST EXPENSE............... (163) (195) (214) (117) (79)
------ ------- ------- --------- ---------
NET INCOME..................... $ 569 $ 1,719 $ 3,158 $2,454 $ 1,051
====== ======= ======= ========= =========
PRO FORMA DATA (UNAUDITED)
Historical net income........ $ 569 $ 1,719 $ 3,158 $ 2,454 $ 1,051
Pro forma provision for in-
come taxes.................. 271 784 1,425 1,110 474
------ ------- ------- --------- ---------
Pro forma net income......... $ 298 $ 935 $ 1,733 $ 1,344 $ 577
====== ======= ======= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
F-41
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS
FULFILLMENT, INC.
COMBINED STATEMENTS OF SHAREHOLDERS' EQUITY
(in thousands-except share data)
<TABLE>
<CAPTION>
HARRIS DIRECT HARRIS
MARKETING, INC. FULFILLMENT, INC.
COMMON STOCK COMMON STOCK ADDITIONAL TOTAL
---------------- --------------------- PAID-IN RETAINED TREASURY SHAREHOLDERS'
SHARES AMOUNT SHARES AMOUNT CAPITAL EARNINGS STOCK EQUITY
------- ------- -------- -------- ---------- -------- -------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1,
1993................... 99 $ 1 111 1/9 $ -- $ 45 $ 2,544 $(125) $ 2,465
Net income............. -- -- -- -- -- 569 -- 569
Distributions.......... -- -- -- -- -- (27) -- (27)
------- ------- -------- -------- ---- ------- ----- -------
BALANCE, DECEMBER 31,
1993................... 99 1 111 1/9 -- 45 3,086 (125) 3,007
Net income............. -- -- -- -- -- 1,719 -- 1,719
Distributions.......... -- -- -- -- -- (146) -- (146)
------- ------- -------- -------- ---- ------- ----- -------
BALANCE, DECEMBER 31,
1994................... 99 1 111 1/9 -- 45 4,659 (125) 4,580
Net income............. -- -- -- -- -- 3,158 -- 3,158
Distributions.......... -- -- -- -- -- (1,363) -- (1,363)
------- ------- -------- -------- ---- ------- ----- -------
BALANCE, DECEMBER 31,
1995................... 99 1 111 1/9 -- 45 6,454 (125) 6,375
Net income (unau-
dited)................ -- -- -- -- -- 1,051 -- 1,051
Distributions (unau-
dited)................ -- -- -- -- -- (1,356) -- (1,356)
------- ------- -------- -------- ---- ------- ----- -------
BALANCE, JUNE 30, 1996
(unaudited)............ 99 $ 1 111 1/9 $ -- $ 45 $ 6,149 $(125) $ 6,070
======= ======= ======== ======== ==== ======= ===== =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-42
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE SIX
FOR THE YEAR ENDED MONTHS ENDED
DECEMBER 31 JUNE 30
------------------------ --------------
1993 1994 1995 1995 1996
------- ------ ------- ------ ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income......................... $ 569 $1,719 $ 3,158 $2,454 $1,051
Adjustments to reconcile net income
to net cash provided by (used in)
operating activities--
Depreciation and amortization.... 436 527 591 286 309
Provision for loss on accounts
receivable...................... 31 25 136 42 29
Provision for deferred rent...... 22 94 4 2 18
Changes in operating assets and
liabilities--
Accounts receivable............ (1,265) (628) (195) (658) (858)
Prepaid expenses and other..... (330) (51) (159) (1) 186
Accounts payable............... 305 (152) 24 87 (94)
Accrued expenses............... 44 160 3 (136) (182)
Customer advances.............. 418 189 587 60 (710)
------- ------ ------- ------ ------
Net cash provided by (used
in) operating activities.... 230 1,883 4,149 2,136 (251)
------- ------ ------- ------ ------
INVESTING ACTIVITIES:
Proceeds from the sale of property
and equipment..................... 255 -- -- -- --
Purchases of property and
equipment......................... (684) (903) (460) (325) (305)
------- ------ ------- ------ ------
Net cash used in investing
activities.................. (429) (903) (460) (325) (305)
------- ------ ------- ------ ------
FINANCING ACTIVITIES:
Net borrowings (repayments) on
lines of credit................... -- (250) -- -- --
Repayment of long-term debt........ (398) (360) (382) (174) (146)
Proceeds from long-term debt....... 489 417 -- -- 16
Shareholder distributions.......... (27) (146) (1,363) (1,060) (1,356)
------- ------ ------- ------ ------
Net cash provided by (used
in) financing activities.... 64 (339) (1,745) (1,234) (1,486)
------- ------ ------- ------ ------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS.................... (135) 641 1,944 577 (2,042)
CASH AND CASH EQUIVALENTS, BEGINNING
OF PERIOD........................... 469 334 975 975 2,919
------- ------ ------- ------ ------
CASH AND CASH EQUIVALENTS, END OF
PERIOD.............................. $ 334 $ 975 $ 2,919 $1,552 $ 877
======= ====== ======= ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-43
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
Harris Direct Marketing, Inc. and Harris Fulfillment, Inc. (together the
Company) are a regional, vertically-integrated direct mail and fulfillment
organization which provides its services primarily to companies in the
pharmaceutical, financial services and insurance industries.
The financial statements reflect the combined financial position, results of
operations and cash flows of Harris Direct Marketing, Inc. and Harris
Fulfillment, Inc. The Companies are engaged in related operations, and are
owned by the same shareholders who have identical ownership in each entity. The
financial statements reflect the elimination of all significant intercompany
accounts and transactions.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISKS
The Company recognizes revenues on programs as services are performed for its
clients based upon hours incurred. Cash received in advance of services
performed is deferred and recorded as customer advances in the accompanying
balance sheets. For the years ended December 31, 1993, 1994 and 1995 and the
six months ended June 30, 1996, the Company had one customer in the
pharmaceutical industry which accounted for 17.0%, 32.0%, 44.0% and 46.0%,
respectively, of the Company's revenues. The loss of this significant customer
would have a material adverse effect on the Company's business.
The concentration of credit risk is limited to trade accounts receivables and
is subject to the financial conditions of the Company's customers. The Company
does not require collateral or other securities to support customer
receivables.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments purchased with an
original maturity of three months or less to be cash equivalents. At the
balance sheet dates, cash equivalents were composed primarily of investments in
money market funds.
The Company maintains cash accounts which, at times, may exceed federally
insured limits. The Company has not experienced any losses from maintaining
cash accounts in excess of federally insured limits and believes that they are
not exposed to any significant risks on their cash accounts.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Depreciation and amortization
are provided using the straight-line method over the estimated useful lives.
Expenditures for maintenance, repairs and improvements that do not prolong
the useful life of an asset have been charged to operations as incurred.
Additions and betterments that substantially extend the useful life of the
asset are capitalized. Upon sale or other disposition of assets, the cost and
related accumulated depreciation and amortization are removed from the
respective accounts, and the resulting gain or loss, if any, is included in
income.
F-44
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
STATEMENT OF CASH FLOWS
For the years ended December 31, 1993, 1994 and 1995 and the six months ended
June 30, 1996, the Company paid interest of $150,000, $197,000, $222,000 and
$70,000, respectively.
INCOME TAXES
The Company has elected to be taxed under Subchapter S of the Internal
Revenue Code. As a result, the Company is not subject to federal income taxes,
and the taxable income of the Company is included in the shareholders' tax
returns. The Company has also elected S Corporation status for state income tax
purposes. Therefore, no provision for federal and state income taxes has been
made for the years ended December 31, 1993, 1994 and 1995 and the six months
ended June 30, 1996.
The Company reports certain income and expense items for income tax purposes
on a basis different from that reflected in the accompanying financial
statements. The principal differences relate to timing of the recognition of
bad debt expense, and the use of accelerated methods of depreciation for income
tax purposes. At December 31, 1995, the Company's financial reporting basis of
the net assets exceeds the tax basis of the net assets by approximately
$300,000. In the event that the S Corporation is terminated, deferred income
taxes applicable to these differences would be reflected in the accompanying
financial statements.
Given the pending sale of the business (see Note 9), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The differences between the federal statutory income tax
rate and the pro forma income tax rate primarily relates to state and local
income taxes and expenses not deductible for tax purposes.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at fair value due to the short-term
nature of those instruments. The carrying amount of long-term debt obligations
approximates fair value at the balance sheet dates.
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INTERIM FINANCIAL SERVICES
The financial statements as of June 30, 1996 and for the six months ended
June 30, 1995 and 1996 are unaudited and, in the opinion of management of the
Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results for those interim
periods. The results of operations for the six months ended June 30, 1996 are
not necessarily indicative of the results to be expected for the full year.
F-45
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(Continued)
(Information as of June 30, 1996 and for the
six months ended June 30, 1995 and 1996 is unaudited)
2. PREPAID EXPENSES AND OTHER:
<TABLE>
<CAPTION>
December 31
----------- June 30
1994 1995 1996
----- ----- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Prepaid postage......................................... $ 418 $ 498 $433
Other................................................... 174 153 143
----- ----- ----
$ 592 $ 651 $576
===== ===== ====
</TABLE>
3. PROPERTY AND EQUIPMENT:
<TABLE>
<CAPTION>
December 31
Useful ---------------- June 30
Lives 1994 1995 1996
------ ------- ------- -------
(In Thousands)
<S> <C> <C> <C> <C> <C>
Machinery and equipment............... 5-10 $ 3,344 $ 3,543 $ 3,582
Furniture and office equipment........ 5-10 814 969 1,231
Building and building improvements.... 10-30 2,341 2,345 2,349
Leasehold improvements................ 15 41 41 41
Land.................................. 80 80 80
------- ------- -------
6,620 6,978 7,283
Less--Accumulated depreciation and
amortization......................... (2,350) (2,839) (3,148)
------- ------- -------
$ 4,270 $ 4,139 $ 4,135
======= ======= =======
</TABLE>
Depreciation expense for the years ended December 31, 1993, 1994 and 1995,
and the six months ended June 30, 1996 was $436,000, $527,000, $591,000, and
$309,000, respectively.
4. ACCRUED EXPENSES:
<TABLE>
<CAPTION>
December 31
----------- June 30
1994 1995 1996
----- ----- ----
(In Thousands)
<S> <C> <C> <C> <C>
Accrued vacation..................................... $ 217 $ 210 $210
Accrued compensation................................. 139 161 48
Accrued other........................................ 260 264 184
----- ----- ----
$ 616 $ 635 $442
===== ===== ====
</TABLE>
5. LINES OF CREDIT:
The Company had two lines of credit with the same bank that expired in April
1996 and had a combined borrowing limit of $850,000. The lines bear interest at
the bank's prime rate (9.0% at December 31, 1994 and 8.25% at December 31,
1995). The Company had no outstanding balances on the lines of credit at
December 31, 1994 and 1995. The maximum borrowed under the lines was $390,000
and $850,000 in 1994 and 1995, respectively, and the average amount outstanding
was $128,000 and $212,000 in 1994 and 1995, respectively. The weighted average
interest rate during 1994 and 1995 was approximately 6.92% and 9.0%,
respectively.
F-46
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(Information as of June 30, 1996 and for the
six months ended June 30, 1995 and 1996 is unaudited)
6. LONG-TERM DEBT:
<TABLE>
<CAPTION>
DECEMBER 31
------------- JUNE 30
1994 1995 1996
------ ------ --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Mortgage payable to bank, payable in variable
monthly installments including interest at the
bank's prime rate plus .75% (10.25% at December
31, 1995) through June 2005...................... $1,317 $1,245 $1,202
Note payable to bank, payable in monthly
installments of $17,000 plus interest at 8.25%
through October 1998............................. 791 584 481
Note payable to bank, payable in monthly
installments of $4,000 plus interest at 7%
through December 1996............................ 93 -- --
Note payable to bank, payable in monthly
installments of $2,000 plus interest at prime
plus 1% through March 1995....................... 5 -- --
Other............................................. 6 -- 16
------ ------ ------
2,212 1,829 1,699
Less--Current portion............................. 349 299 309
------ ------ ------
$1,863 $1,530 $1,390
====== ====== ======
</TABLE>
In November 1994, the Company refinanced $509,000 of its outstanding debt
with an $825,000 note with the same bank. The net proceeds were used to finance
additional equipment purchases.
The mortgage and notes payable are with the same bank and are collateralized
by all of the Company's assets. Minimum principal repayments of long-term debt
as of December 31, 1995, are as follows (in thousands):
<TABLE>
<S> <C>
1996.................................................................. $ 299
1997.................................................................. 298
1998.................................................................. 273
1999.................................................................. 112
2000.................................................................. 124
Thereafter............................................................ 723
------
$1,829
======
</TABLE>
F-47
<PAGE>
HARRIS DIRECT MARKETING, INC. AND HARRIS FULFILLMENT, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONCLUDED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE
SIX MONTHS ENDED JUNE 30, 1995 AND 1996 IS UNAUDITED)
7. COMMITMENTS AND CONTINGENCIES:
The Company leases facilities through August 31, 2002. Rent expense under
operating leases for the years ended December 31, 1993, 1994 and 1995 and the
six months ended June 30, 1996 was $272,000, $568,000, $583,000 and $285,000,
respectively.
Future minimum lease payments under the Company's operating leases as of
December 31, 1995, are as follows (in thousands):
<TABLE>
<CAPTION>
OPERATING
LEASES
---------
<S> <C>
1996.............................................................. $ 567
1997.............................................................. 357
1998.............................................................. 388
1999.............................................................. 433
2000.............................................................. 464
Thereafter........................................................ 821
------
Total minimum lease payments...................................... $3,030
======
</TABLE>
The Company is party to various claims and other matters arising in the
normal course of business. In the opinion of management, the outcome of these
matters will not have a material adverse effect on the Company's financial
position or results of operations.
8. PROFIT SHARING PLAN:
The Company has a noncontributory profit sharing plan to provide retirement
benefits to its eligible employees. The amount of the Company's contribution is
determined at the discretion of the Company's Board of Directors. For the years
ended December 31, 1993, 1994 and 1995 and the six months ended June 30, 1996
the Company contributed $62,000, $55,000, $49,000 and $0, respectively, to the
profit sharing plan.
9. SALE OF BUSINESS:
In April 1996, an asset purchase agreement was entered into among CRW
Financial Inc. ("CRW"), the Company and the shareholders of the Company,
whereby TeleSpectrum Worldwide Inc., a wholly-owned subsidiary of CRW agreed to
purchase substantially all of the net assets of the Company.
F-48
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To The Reich Group Companies:
We have audited the accompanying combined balance sheets of The Reich Group
Companies identified in Note 1 as of December 31, 1994 and 1995, and the
related combined statements of operations, shareholder's equity (deficit) and
cash flows for each of the three years in the period ended December 31, 1995.
These financial statements are the responsibility of the Companies' management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the combined financial position of The Reich Group
Companies as of December 31, 1994 and 1995, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1995, in conformity with generally accepted accounting principles.
Arthur Andersen LLP
Philadelphia, Pa.,
April 24, 1996
F-49
<PAGE>
THE REICH GROUP COMPANIES
COMBINED BALANCE SHEETS
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31
-------------- JUNE 30,
1994 1995 1996
------ ------ -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash............................................. $ 31 $ 220 $ 371
Accounts receivable, net of reserves of $16 in
1994, and $73 in 1995 and $45 in 1996........... 691 2,544 3,511
Due from shareholder............................. 49 132 135
Prepaid expenses and other....................... 87 79 129
------ ------ ------
Total current assets........................... 858 2,975 4,146
EQUIPMENT AND FURNITURE, net....................... 248 1,328 2,193
OTHER ASSETS....................................... 5 15 21
------ ------ ------
Total assets................................... $1,111 $4,318 $6,360
====== ====== ======
LIABILITIES AND SHAREHOLDER'S EQUITY (DEFICIT)
CURRENT LIABILITIES:
Line of credit................................... $ 70 $ -- $ --
Current portion of long-term debt................ 102 155 246
Current portion of deferred rent................. 68 68 68
Accounts payable................................. 370 930 548
Accrued salaries and wages....................... 128 363 527
Notes payable to shareholder..................... -- 570 70
Other current liabilities........................ 179 68 33
------ ------ ------
Total current liabilities...................... 917 2,154 1,492
------ ------ ------
LONG-TERM DEBT..................................... 273 371 414
------ ------ ------
DEFERRED RENT...................................... 193 125 91
------ ------ ------
COMMITMENTS AND CONTINGENCIES (Note 6)
SHAREHOLDER'S EQUITY (DEFICIT):
Common stock (see Note 8)........................ 2 2 2
Additional paid-in capital....................... 350 450 450
Retained earnings (deficit)...................... (385) 1,455 4,150
Treasury stock, at cost (TRG/Communications, Inc.
150 shares)..................................... (239) (239) (239)
------ ------ ------
Total shareholder's equity (deficit)........... (272) 1,668 4,363
------ ------ ------
Total liabilities and shareholder's equity
(deficit)..................................... $1,111 $4,318 $6,360
====== ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-50
<PAGE>
THE REICH GROUP COMPANIES
COMBINED STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE SIX
FOR THE YEAR ENDED MONTHS ENDED
DECEMBER 31 JUNE 30
----------------------- ---------------
1993 1994 1995 1995 1996
------ ------ ------- ------ -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES............................. $4,375 $5,424 $12,253 $5,521 $11,347
------ ------ ------- ------ -------
OPERATING EXPENSES:
Cost of services................... 3,172 4,225 7,836 3,417 6,692
Selling, general and administrative
expenses.......................... 1,111 976 2,534 665 1,199
------ ------ ------- ------ -------
Total operating expenses......... 4,283 5,201 10,370 4,082 7,891
------ ------ ------- ------ -------
Operating income................. 92 223 1,883 1,439 3,456
INTEREST INCOME...................... 16 13 14 8 15
INTEREST EXPENSE..................... (37) (37) (57) (35) (46)
------ ------ ------- ------ -------
NET INCOME........................... $ 71 $ 199 $ 1,840 $1,412 $ 3,425
====== ====== ======= ====== =======
PRO FORMA DATA (UNAUDITED)
Historical net income.............. $ 71 $ 199 $ 1,840 $1,412 $ 3,425
Pro forma provision for income tax-
es................................ 39 97 746 578 1,397
------ ------ ------- ------ -------
Pro forma net income............... $ 32 $ 102 $ 1,094 $ 834 $ 2,028
====== ====== ======= ====== =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-51
<PAGE>
THE REICH GROUP COMPANIES
COMBINED STATEMENTS OF SHAREHOLDER'S EQUITY (DEFICIT)
(IN THOUSANDS - EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DIALDIRECT
THE REICH TELE- TRG/ COMMUNI- INSUREDIRECT
GROUP, INC. DIALDIRECT, INC. MARKETING, LTD. CATIONS, INC. AGENCY INC.
------------- ------------------ ------------------ ------------- -------------
COMMON STOCK COMMON STOCK COMMON STOCK COMMON STOCK COMMON STOCK ADDITIONAL RETAINED
------------- ------------------ ------------------ ------------- ------------- PAID-IN EARNINGS TREASURY
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL (DEFICIT) STOCK
------ ------ -------- -------- ------- -------- ------ ------ ------ ------ ---------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY
1, 1993.......... 100 $-- 100 $ -- 100 $ -- 150 $ 2 100 $-- $350 $ (655) $(239)
Net income...... -- -- -- -- -- -- -- -- -- -- -- 71 --
--- ---- ------- -------- ------- -------- --- --- --- ---- ---- ------ -----
BALANCE, DECEMBER
31, 1993......... 100 -- 100 -- 100 -- 150 2 100 -- 350 (584) (239)
Net income...... -- -- -- -- -- -- -- -- -- -- -- 199 --
--- ---- ------- -------- ------- -------- --- --- --- ---- ---- ------ -----
BALANCE, DECEMBER
31, 1994......... 100 -- 100 -- 100 -- 150 2 100 -- 350 (385) (239)
Capital contri-
bution to Dial
Direct
Telemarketing,
Ltd. by share-
holder.......... -- -- -- -- -- -- -- -- -- -- 100 -- --
Net income...... -- -- -- -- -- -- -- -- -- -- -- 1,840 --
--- ---- ------- -------- ------- -------- --- --- --- ---- ---- ------ -----
BALANCE, DECEMBER
31, 1995......... 100 -- 100 -- 100 -- 150 2 100 -- 450 1,455 (239)
--- ---- ------- -------- ------- -------- --- --- --- ---- ---- ------ -----
Net income (un-
audited)........ -- -- -- -- -- -- -- -- -- -- -- 3,425 --
Distribution to
shareholder (un-
audited)........ -- -- -- -- -- -- -- -- -- -- -- (730) --
--- ---- ------- -------- ------- -------- --- --- --- ---- ---- ------ -----
BALANCE, JUNE 30,
1996 (unau-
dited)........... 100 $-- 100 $ -- 100 $ -- 150 $ 2 100 $-- $450 $4,150 (239)
=== ==== ======= ======== ======= ======== === === === ==== ==== ====== =====
<CAPTION>
TOTAL
SHAREHOLDER'S
EQUITY
(DEFICIT)
-------------
<S> <C>
BALANCE, JANUARY
1, 1993.......... $ (542)
Net income...... 71
-------------
BALANCE, DECEMBER
31, 1993......... (471)
Net income...... 199
-------------
BALANCE, DECEMBER
31, 1994......... (272)
Capital contri-
bution to Dial
Direct
Telemarketing,
Ltd. by share-
holder.......... 100
Net income...... 1,840
-------------
BALANCE, DECEMBER
31, 1995......... 1,668
-------------
Net income (un-
audited)........ 3,425
Distribution to
shareholder (un-
audited)........ (730)
-------------
BALANCE, JUNE 30,
1996 (unau-
dited)........... $4,363
=============
</TABLE>
The accompanying notes are an integral part of these statements.
F-52
<PAGE>
THE REICH GROUP COMPANIES
COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE SIX
FOR THE YEAR ENDED MONTHS ENDED
DECEMBER 31 JUNE 30
--------------------- --------------
1993 1994 1995 1995 1996
----- ----- ------- ------ ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income............................ $ 71 $ 199 $ 1,840 $1,412 $3,425
Adjustments to reconcile net income to
net cash provided by (used in)
operating activities--
Depreciation and amortization....... 106 143 220 87 213
Amortization of deferred rent....... (68) (68) (68) (33) (33)
Loss on disposal of property........ 8 1 7 -- --
Changes in operating assets and
liabilities--
Accounts receivable............... (34) (193) (1,853) (959) (967)
Due from shareholder.............. 57 (40) (83) (16) (3)
Prepaid expenses and other
assets........................... 227 (33) (2) (115) (56)
Accounts payable.................. (348) 88 560 543 (382)
Accrued salaries and wages........ (43) 37 235 126 164
Other current liabilities......... 20 85 (111) 46 (35)
----- ----- ------- ------ ------
Net cash provided by (used in)
operating activities........... (4) 219 745 1,091 2,326
----- ----- ------- ------ ------
INVESTING ACTIVITIES:
Purchases of furniture and equipment,
net of capital lease obligations of
$178 in 1993 and $95 in 1995......... (37) (138) (1,212) (595) (829)
----- ----- ------- ------ ------
Net cash used in investing
activities..................... (37) (138) (1,212) (595) (829)
----- ----- ------- ------ ------
FINANCING ACTIVITIES:
Net borrowings (repayments) on line of
credit............................... 60 10 (70) (70) --
Repayment of long-term debt........... (97) (88) (109) (45) (116)
Proceeds from long-term debt.......... 76 -- 165 -- --
Capital contribution to DialDirect
Telemarketing, Ltd. from
shareholder.......................... -- -- 100 -- --
Proceeds from (repayment of) notes
payable to shareholder............... -- -- 570 -- (500)
Distribution to shareholder........... -- -- -- -- (730)
----- ----- ------- ------ ------
Net cash provided by (used in)
financing activities........... 39 (78) 656 (115) (1,346)
----- ----- ------- ------ ------
NET INCREASE (DECREASE) IN CASH......... (2) 3 189 381 151
CASH, BEGINNING OF PERIOD............... 30 28 31 31 220
----- ----- ------- ------ ------
CASH, END OF PERIOD..................... $ 28 $ 31 $ 220 $ 412 $ 371
===== ===== ======= ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-53
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
The Reich Group Companies (the "Company") offers telemarketing services to
clients in the financial services, insurance, telecommunications and publishing
industries. In 1995, the Company derived 93% of its revenue from telemarketing
activities.
The 1993, 1994 and 1995 financial statements reflect the combined financial
position, results of operations and cash flows of The Reich Group, Inc.,
DialDirect, Inc., DialDirect Telemarketing, LTD., TRG/Communications, Inc. and
InsureDirect Agency, Inc. The accompanying financial statements are presented
on a combined basis, as all companies are owned by the same shareholder. The
financial statements reflect the elimination of all significant intercompany
accounts and transactions.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISK
The Company recognizes revenues on programs as services are performed for
customers, generally based upon hours incurred. For the years ended December
31, 1993, 1994, 1995 and for the six months ended June 30, 1996, the Company
had three, two, four and three clients, respectively, that each accounted for
more than 10% of the Company's revenues. For the year ended December 31, 1993,
the three clients accounted for 36%, 21% and 11% of the Company's revenues,
respectively. For the year ended December 31, 1994, the two clients accounted
for 47% and 24% of the Company's revenues, respectively. For the year ended
December 31, 1995, the four clients accounted for 46%, 12%, 15% and 15% of the
Company's revenues, respectively. For the six months ended June 30, 1996 the
three clients accounted for 43%, 10% and 34% of the Company's revenues,
respectively. The loss of one or more of these major clients could have a
materially adverse effect on the Company's business.
The concentration of credit risk is limited to trade accounts receivables and
is subject to the financial and industry conditions of the Company's customers.
The Company does not require collateral or other securities to support customer
receivables.
CASH
The Company maintains cash accounts which, at times, may exceed federally
insured limits. The Company has not experienced losses from maintaining cash
accounts in excess of federally insured limits. The Company believes that it is
not exposed to significant credit risk in relation to their cash accounts.
EQUIPMENT AND FURNITURE
Equipment and furniture are recorded at cost. Equipment and furniture
capitalized under capital leases are recorded at the present value of the
minimum lease payments due over the term of the lease. Depreciation and
amortization are provided using the straight-line method over the estimated
useful lives of five to seven years.
Expenditures for maintenance, repairs and betterments which do not prolong
the useful life of an asset are charged to expense as incurred. Additions and
betterments which extend the useful life of the properties are capitalized.
Upon sale or other disposition of assets, the cost and related accumulated
depreciation and amortization are removed from the respective accounts, and the
resulting gain or loss, if any, is included in income.
F-54
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
PROFIT SHARING PLAN
The Company has a noncontributory profit sharing plan covering all eligible
employees. Contributions to the plan are at the sole discretion of the
management. Contributions of $40,000, and $62,000 were made for the years ended
December 31, 1993 and 1994, respectively. No contribution was made for the year
ended December 31, 1995, or for the six months ended June 30, 1996.
STATEMENT OF CASH FLOWS
For the years ended December 31, 1993, 1994 and 1995 and the six months ended
June 30, 1996, the Company paid interest of $37,000, $37,000, $57,000 and
$46,000.
INCOME TAXES
The Company has elected to be taxed under Subchapter S of the Internal
Revenue Code. As a result, the Company is not subject to federal or state
income taxes, and the taxable income of the Company is included in the
shareholder's tax returns. Therefore, no provision for federal and state income
taxes has been made for the years ended December 31, 1993, 1994 and 1995, and
the six months ended June 30, 1996.
The Company is on the cash basis of accounting for income tax reporting
purposes and on the accrual basis for financial reporting purposes. Therefore,
the Company reports certain income and expense items for income tax purposes on
a basis different from that reflected in the accompanying financial statements.
At December 31, 1995, the Company's financial reporting basis of the net assets
exceeds the tax basis of the net assets by approximately $934,000. In the event
that the S Corporation status is terminated, deferred income taxes applicable
to these differences would be reflected in the accompanying financial
statements.
Given the pending sale of the business (see Note 9), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The differences between the federal statutory income tax
rate and the pro forma income tax rate primarily relates to state and local
taxes and expenses not deductible for tax purposes.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at fair value due to the short-term
nature of those instruments. The carrying amount of long-term debt and capital
lease obligations approximates fair value at the balance sheet dates.
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the recorded amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INTERIM FINANCIAL STATEMENTS
The financial statements as of June 30, 1996 and for the six months ended
June 30, 1995 and 1996 are unaudited and, in the opinion of management of the
Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results for those interim
periods. The results of operations for the six months ended June 30, 1996 are
not necessarily indicative of the results to be expected for the full year.
F-55
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
2. EQUIPMENT AND FURNITURE:
<TABLE>
<CAPTION>
DECEMBER 31
USEFUL ---------------- JUNE 30
LIVES 1994 1995 1996
------ ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Telemarketing equipment.............. 5 $ 471 $ 1,766 $ 2,477
Furniture and office equipment....... 5-7 777 768 1,034
Leasehold improvements............... 7 60 76 177
------- ------- -------
1,308 2,610 3,688
Less--Accumulated depreciation and
amortization........................ (1,060) (1,282) (1,495)
------- ------- -------
$ 248 $ 1,328 $ 2,193
======= ======= =======
</TABLE>
Depreciation expense for the years ended December 31, 1993, 1994 and 1995 and
the six months ended June 30, 1996 was $106,000, $143,000, $220,000 and
$213,000, respectively.
3. OTHER CURRENT LIABILITIES:
<TABLE>
<CAPTION>
DECEMBER 31
----------- JUNE 30
1994 1995 1996
----- ----- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Accrued profit sharing................................... $ 62 $ -- $--
Advance billings......................................... 82 60 26
Other accrued liabilities................................ 35 8 7
----- ----- ----
$ 179 $ 68 $ 33
===== ===== ====
</TABLE>
4. LINE OF CREDIT:
The Company has a revolving line of credit with a bank which provides for
maximum borrowings of $700,000. Borrowings under the line are limited to 60% of
eligible accounts receivable, as defined. The line is collateralized by the
Company's accounts receivable and general intangibles, a second mortgage on the
personal residences of the Company's shareholder and his wife and other
personal assets of the Company's shareholder and his wife. The line is also
personally guaranteed by the Company's shareholder and his wife. At December
31, 1995 and June 30, 1996, there was no outstanding balance on this line of
credit. Interest on the outstanding balance is payable monthly and accrues on
borrowings under the revolving line of credit at the bank's base rate (10.5% at
December 31, 1995).
The agreement shall continue until all indebtedness to the bank has been
repaid in full and the parties terminate the agreement.
F-56
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND 1996 IS UNAUDITED)
5. LONG-TERM DEBT:
<TABLE>
<CAPTION>
DECEMBER 31
------------ JUNE 30
1994 1995 1996
----- ----- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Note payable to bank, interest is payable monthly at
the bank's rate plus 1/2% (11% on December 31,
1995). Principal due in monthly installments of
$4,000 through August 1998. This note is collater-
alized by accounts receivable, equipment and other
assets of the Company and a second mortgage on the
personal residences of the Company's shareholder
and his wife. Payment on the note is also guaran-
teed by the Company's shareholder and his wife..... $ 140 $ 105 $ 86
Note payable to regional industrial development au-
thority, interest accrues at 5%, principal and in-
terest due in monthly installments of $3,000
through August 2000, collateralized by specified
furniture and equipment of the Company............. -- 155 140
Payable to landlord, no stated interest (discounted
at 8.9%), unsecured, due in varying monthly in-
stallments from $3,000 to $4,000 through October
31, 1998........................................... 117 96 79
Capitalized lease obligations (Note 6).............. 118 170 355
----- ----- -----
375 526 660
Less--Current portion............................... (102) (155) (246)
----- ----- -----
$ 273 $ 371 $ 414
===== ===== =====
</TABLE>
Minimum principal repayments of long-term debt as of December 31, 1995,
excluding capitalized lease obligations (see Note 6), are as follows (in
thousands):
<TABLE>
<S> <C>
1996.................................................................... $ 95
1997.................................................................... 111
1998.................................................................... 91
1999.................................................................... 35
2000.................................................................... 24
----
$356
====
</TABLE>
In December 1995, the City of Wheeling, West Virginia issued a commitment to
provide $235,000 of financing at 5% interest for a term of five years.
Additionally, the West Virginia Economic Development Authority issued a
commitment to provide $500,000 of financing at prime less 4% (minimum rate of
5%) interest for a term of five years. Each loan is to be collateralized by the
furniture and equipment in the Company's West Virginia facility.
In 1995, the Company received a grant of $187,000 from the West Virginia
Economic Development Authority as a reimbursement for certain costs in
connection with the establishment of a calling center in West Virginia. The
grant has been recorded as an offset to cost of services in the combined
statement of income.
F-57
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND 1996 IS UNAUDITED)
6. COMMITMENTS AND CONTINGENCIES:
The Company leases facilities and equipment under capital and noncancelable
operating leases with terms through 2000. Interest rates on the capital leases
range from 11.0% to 15.5%. At December 31, 1995, the capital leases are
collateralized by telemarketing equipment with a book value of $137,000 (net of
accumulated amortization of $313,000). Rent expense under operating leases for
the years ended December 31, 1993, 1994, 1995, and the six months ended June
30, 1996 was $132,000, $140,000, $195,000, and $103,000, respectively.
Future minimum lease payments under the Company's leases as of December 31,
1995 are as follows (in thousands):
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASES
--------- -------
<S> <C> <C>
1996....................................................... $238 $ 78
1997....................................................... 220 78
1998....................................................... 188 44
1999....................................................... 11 1
2000....................................................... 1 --
---- ----
Total minimum lease payments............................... $658 201
====
Less--Amount representing interest......................... (31)
----
Present value of future minimum lease payments............. 170
Less--Current portion of principal payments................ (60)
----
$110
----
</TABLE>
In February 1996, the Company entered into an additional capital lease for
the acquisition of furniture and equipment for the Company's Delaware facility.
The total amount of the future lease commitment was $250,000 with monthly
payments of $8,000 for 36 months.
In November and December 1995, the Company entered into two leases for new
office space in connection with the expansion of its telemarketing facilities
in Delaware and West Virginia. The lease for the Delaware facility commenced on
January 1, 1996 with a minimum monthly rental payment of $6,000 for a term of
three years. The lease for the West Virginia facility commenced on April 1,
1996 with a minimum monthly rental payment of $10,000 beginning June 15, 1996
for a term of five years.
The Company is party to various claims and other matters arising in the
normal course of business. In the opinion of management, the outcome of these
matters will not have a material adverse effect on the Company's financial
position or results of operations.
7. NOTES PAYABLE TO SHAREHOLDER:
In December 1995, the Company received the proceeds from two demand notes
payable to its shareholder for $500,000 (repaid subsequent to December 31,
1995) and $70,000, respectively. The remaining note of $70,000 accrues interest
at 8%.
F-58
<PAGE>
THE REICH GROUP COMPANIES
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONCLUDED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND 1996 IS UNAUDITED)
8. COMMON STOCK:
The description of the Company's common stock is as follows:
<TABLE>
<CAPTION>
COMMON
STOCK
PAR VALUE
---------
<S> <C>
The Reich Group, Inc.
$1 par value, 1,000 shares authorized, 100 shares issued and
outstanding.................................................... $ 100
DialDirect, Inc.
$1 par value, 1,000 shares authorized, 100 shares issued and
outstanding.................................................... 100
DialDirect Telemarketing, Ltd.
$1 par value, 1,000 shares authorized, 100 shares issued and
outstanding.................................................... 100
TRG/Communications, Inc.
$2,000 stated value, 150 shares outstanding.................... 2,000
InsureDirect Agency, Inc.
$1 par value, 1,000 shares authorized, 100 shares issued and
outstanding.................................................... 100
------
$2,400
======
</TABLE>
9. SALE OF BUSINESS:
In April 1996, an asset purchase agreement was entered into among CRW
Financial Inc. ("CRW"), the Company and the shareholder of the Company whereby
TeleSpectrum Worldwide Inc., a wholly-owned subsidiary of CRW agreed to
purchase substantially all of the net assets of the Company.
F-59
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To The Response Center, Inc. and The Tab House, Inc.:
We have audited the accompanying combined balance sheets of The Response
Center, Inc. and The Tab House, Inc. (Pennsylvania corporations) as of
September 30, 1994 and 1995, and the related combined statements of operations,
shareholders' equity and cash flows for each of the two fiscal years in the
period ended September 30, 1995. These financial statements are the
responsibility of the Companies' management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the combined financial position of The Response Center,
Inc. and The Tab House, Inc. as of September 30, 1994 and 1995, and the results
of their operations and their cash flows for each of the two fiscal years in
the period ended September 30, 1995, in conformity with generally accepted
accounting principles.
As discussed in Note 2 to the combined financial statements, the Company
changed its method of accounting for marketable securities in fiscal 1995.
Arthur Andersen LLP
Philadelphia, Pa.,
April 26, 1996
F-60
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
COMBINED BALANCE SHEETS
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
SEPTEMBER 30
------------- MARCH 31, JUNE 30,
1994 1995 1996 1996
------ ------ ----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents............ $ 72 $ 282 $ 641 $ 744
Marketable securities................ 248 324 310 313
Accounts receivable, net of reserves
of $32, $28, $28, and $28........... 1,357 1,522 1,087 1,396
Due from TeleSpectrum Worldwide
Inc. ............................... -- -- -- 44
Prepaid expenses and other........... 14 23 41 109
------ ------ ------ ------
Total current assets............... 1,691 2,151 2,079 2,606
PROPERTY AND EQUIPMENT, net............ 164 139 250 240
OTHER ASSETS........................... 8 8 96 88
------ ------ ------ ------
Total assets....................... $1,863 $2,298 $2,425 $2,934
====== ====== ====== ======
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable..................... $ 126 $ 119 $ 198 $ 217
Accrued expenses..................... 326 275 241 287
Deferred revenue..................... 128 92 282 300
------ ------ ------ ------
Total current liabilities.......... 580 486 721 804
------ ------ ------ ------
COMMITMENTS AND CONTINGENCIES (Note 5)
SHAREHOLDERS' EQUITY:
Common stock (The Response Center,
Inc.), no par value, 1,000 shares
authorized, 550 shares issued and
outstanding......................... 51 51 51 51
Common stock (The Tab House, Inc.),
$.01 par value, 1,000 shares
authorized, 550 shares issued and
outstanding......................... -- -- -- --
Additional paid-in capital........... 1 1 1 1
Net unrealized gain on marketable
securities available for sale....... -- 121 98 100
Retained earnings.................... 1,231 1,639 1,554 1,978
------ ------ ------ ------
Total shareholders' equity......... 1,283 1,812 1,704 2,130
------ ------ ------ ------
Total liabilities and shareholders'
equity............................ $1,863 $2,298 $2,425 $2,934
====== ====== ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-61
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
COMBINED STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR FOR THE SIX FOR THE NINE
ENDED MONTHS ENDED MONTHS ENDED
SEPTEMBER 30 MARCH 31 JUNE 30
-------------------- ------------- -------------
1994 1995 1995 1996 1995 1996
--------- --------- ------ ------ ------ ------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
REVENUES..................... $ 6,183 $ 6,719 $3,584 $2,781 $5,199 $4,583
--------- --------- ------ ------ ------ ------
OPERATING EXPENSES:
Cost of services........... 3,426 3,583 1,811 1,534 2,702 2,438
Selling, general and
administrative............ 2,800 2,717 1,551 1,310 2,107 1,731
--------- --------- ------ ------ ------ ------
Total operating
expenses................ 6,226 6,300 3,362 2,844 4,809 4,169
--------- --------- ------ ------ ------ ------
Operating income (loss).. (43) 419 222 (63) 390 414
INTEREST INCOME.............. 8 10 -- -- -- --
INTEREST EXPENSE............. (2) -- -- -- -- --
--------- --------- ------ ------ ------ ------
NET INCOME (LOSS)............ $ (37) $ 429 $ 222 $ (63) $ 390 $ 414
========= ========= ====== ====== ====== ======
PRO FORMA DATA (UNAUDITED)
Historical net income
(loss).................... $ (37) $ 429 $ 222 $ (63) $ 390 $ 414
Pro forma provision
(benefit) for income
taxes..................... (15) 180 91 (25) 160 164
--------- --------- ------ ------ ------ ------
Pro forma net income
(loss).................... $ (22) $ 249 $ 131 $ (38) $ 230 $ 250
========= ========= ====== ====== ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-62
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
COMBINED STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
THE RESPONSE THE
CENTER, INC. TAB HOUSE, INC. UNREALIZED
COMMON STOCK COMMON STOCK ADDITIONAL GAIN ON TOTAL
------------- ------------------ PAID-IN MARKETABLE RETAINED SHAREHOLDERS'
SHARES AMOUNT SHARES AMOUNT CAPITAL SECURITIES EARNINGS EQUITY
------ ------ ------- -------- ---------- ---------- -------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, OCTOBER 1,
1993................... 550 $ 51 550 $ -- $ 1 $-- $1,301 $ 1,353
Net loss............... -- -- -- -- -- -- (37) (37)
Distributions.......... -- -- -- -- -- -- (33) (33)
--- ---- ------- -------- ---- ---- ------ -------
BALANCE, SEPTEMBER 30,
1994................... 550 51 550 -- 1 -- 1,231 1,283
Net income............. -- -- -- -- -- -- 429 429
Distributions.......... -- -- -- -- -- -- (21) (21)
Net unrealized gain on
marketable
securities............ -- -- -- -- -- 121 -- 121
--- ---- ------- -------- ---- ---- ------ -------
BALANCE, SEPTEMBER 30,
1995................... 550 51 550 -- 1 121 1,639 1,812
Net loss (unaudited)... -- -- -- -- -- -- (63) (63)
Distributions
(unaudited)........... -- -- -- -- -- -- (22) (22)
Net unrealized loss on
marketable securities
(unaudited)........... -- -- -- -- -- (23) -- (23)
--- ---- ------- -------- ---- ---- ------ -------
BALANCE, MARCH 31, 1996
(unaudited)............ 550 51 550 -- 1 98 1,554 1,704
Net income
(unaudited)........... -- -- -- -- -- -- 477 477
Distributions
(unaudited)........... (53) (53)
Net unrealized gain on
marketable securities
(unaudited)........... -- -- -- -- -- 2 -- 2
--- ---- ------- -------- ---- ---- ------ -------
BALANCE, JUNE 30, 1996
(unaudited)............ 550 $ 51 550 $ -- $ 1 $100 $1,978 $ 2,130
=== ==== ======= ======== ==== ==== ====== =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-63
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE
FOR THE FISCAL YEAR FOR THE SIX NINE MONTHS
ENDED MONTHS ENDED ENDED JUNE
SEPTEMBER 30 MARCH 31 30
-------------------- ------------- ------------
1994 1995 1995 1996 1995 1996
--------- --------- ----- ------ ----- -----
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income (loss).......... $ (37) $ 429 $ 222 $ (63) $ 390 $ 414
Adjustments to reconcile
net income to net cash
provided by operating
activities--
Depreciation and
amortization............ 43 48 28 30 40 47
Gain on sale of
marketable securities... (7) (22) (16) (2) (16) (2)
Changes in operating
assets and
liabilities--
Accounts receivable..... 13 (165) (47) 435 (205) 126
Due from TeleSpectrum
Worldwide............ -- -- -- -- -- (44)
Prepaid expenses and
other.................. 41 (8) (19) (18) (31) 5
Other assets............ (2) -- -- (87) -- (169)
Accounts payable........ (202) (7) 35 78 69 97
Accrued expenses........ 219 (51) (74) (34) (110) 11
Deferred revenue........ 43 (36) 1 190 (56) 208
--------- --------- ----- ------ ----- -----
Net cash provided by
(used in) operating
activities............ 111 188 130 529 81 693
--------- --------- ----- ------ ----- -----
INVESTING ACTIVITIES:
Purchases of marketable
securities.............. (93) -- -- (15) -- (17)
Proceeds on sales of
marketable securities... 73 67 44 9 45 9
Purchases of property and
equipment............... (39) (23) (21) (142) (27) (148)
--------- --------- ----- ------ ----- -----
Net cash provided by
(used in) investing
activities............ (59) 44 23 (148) 18 (156)
--------- --------- ----- ------ ----- -----
FINANCING ACTIVITIES:
Repayment of shareholder
loan.................... (160) -- -- -- -- --
Distributions paid....... (33) (22) (22) (22) (22) (75)
--------- --------- ----- ------ ----- -----
Net cash used in
financing activities.. (193) (22) (22) (22) (22) (75)
--------- --------- ----- ------ ----- -----
NET INCREASE (DECREASE) IN
CASH AND CASH
EQUIVALENTS............... (141) 210 131 359 77 462
CASH AND CASH EQUIVALENTS,
BEGINNING OF PERIOD....... 213 72 72 282 72 282
--------- --------- ----- ------ ----- -----
CASH AND CASH EQUIVALENTS,
END OF PERIOD............. $ 72 $ 282 $ 203 $ 641 $ 149 $ 744
========= ========= ===== ====== ===== =====
</TABLE>
The accompanying notes are an integral part of these statements.
F-64
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(INFORMATION AS OF MARCH 31, 1996 AND JUNE 30, 1996 AND FOR THE SIX MONTHS
ENDED MARCH 31, 1995 AND 1996 AND THE NINE MONTHS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
The Response Center, Inc. and the Tab House, Inc. (collectively the
"Company") provide custom market research and analysis, principally to clients
in the telecommunications, financial services, pharmaceutical and healthcare
industries.
The accompanying financial statements reflect the combined financial position
and results of operations of The Response Center, Inc. and The Tab House, Inc.
The accompanying financial statements are presented on a combined basis, as The
Response Center, Inc. and The Tab House, Inc. are owned by the same
shareholders who have identical ownership in each entity. The financial
statements reflect the elimination of all significant intercompany accounts and
transactions.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISK
The Company recognizes revenues as services are performed for customers on a
per project basis. In fiscal 1994, 1995, the six months ended March 31, 1996
and the nine months ended June 30, 1996, the Company had one customer, which
accounted for 36%, 27%, 21% and 26% of revenues, and 24%, 27%, 22% and 30% of
accounts receivable, respectively. The Company expects total revenues for this
customer to decline in fiscal 1996 versus 1995.
The concentration of credit risk is limited to trade accounts receivables and
is subject to the financial conditions of the Company's customers. The Company
does not require collateral or other securities to support customer
receivables.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments purchased with an
original maturity of three months or less to be cash equivalents. At the
balance sheet dates, cash equivalents were composed primarily of investments in
money market funds.
The Company maintains cash accounts which, at times, may exceed federally
insured limits. The Company has not experienced any losses from maintaining
cash accounts in excess of federally insured limits. The Company believes that
they are not exposed to any significant credit risks on their cash accounts.
MARKETABLE SECURITIES
During fiscal 1995, the Company began reporting marketable securities in
accordance with Statement of Financial Accounting Standards No. 115. All
securities have been classified as available-for-sale and reported at quoted
market value with net unrealized gains being reported as a separate component
of shareholders' equity. Prior to 1995, marketable securities were reported at
the lower of cost or market.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Depreciation and amortization
are provided using the straight-line method over the estimated useful lives as
follows:
<TABLE>
<S> <C>
Computer and office equipment...... 5 years
Furniture and fixtures............. 7 years
Leasehold improvements............. The lessor of 6 years or the lease term.
</TABLE>
F-65
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF MARCH 31, 1996 AND JUNE 30, 1996 AND FOR THE SIX MONTHS
ENDED MARCH 31, 1995 AND 1996 AND THE NINE MONTHS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED)
Expenditures for maintenance, repairs and betterments which do not prolong
the normal useful life of an asset have been charged to operations as incurred.
Additions and improvements which substantially extend the useful lives of the
properties are capitalized. Upon sale or other disposition of assets, the cost
and related accumulated depreciation and amortization are removed from the
respective accounts, and the resulting gain or loss, if any, is included in
income.
INCOME TAXES
The Company has elected to be taxed under Subchapter S of the Internal
Revenue Code. As a result, the Company is not subject to federal income taxes,
and the taxable income of the Company is included in the shareholders' tax
returns. The Company has also elected S Corporation status for state income tax
purposes. Therefore, no provision for federal and state income taxes has been
made in the accompanying financial statements.
The Company is on the cash basis of accounting for income tax purposes and on
the accrual basis for financial reporting purposes. Therefore, the Company
reports certain income and expense items for income tax purposes on a basis
different from that reflected in the accompanying financial statements. At
September 30, 1995, the Company's financial reporting basis of the net assets
exceeds the tax basis of the net assets by approximately $1,000,000. In the
event that the S Corporation is terminated, deferred income taxes applicable to
these differences would be reflected in the accompanying financial statements.
Given the pending sale of the business (see Note 6), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The differences between the federal statutory income tax
rate and the pro forma income tax rate primarily relates to state and local
income taxes and expenses not deductible for tax purposes.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at the fair value due to the short-term
nature of those instruments.
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INTERIM FINANCIAL STATEMENTS
The financial statements as of March 31, 1996 and June 30, 1996 and for the
six months ended March 31, 1995 and 1996 and for the nine months ended June 30,
1995 and 1996 are unaudited and, in the opinion of management of the Company,
include all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the results for those interim periods. The
results of operations for the six months ended March 31, 1996 and for the nine
months ended June 30, 1996 are not necessarily indicative of the results to be
expected for the full year.
401(K) PLAN
On October 1, 1991, the Company adopted a 401(k) plan for its employees (the
"Plan"). The Plan allows all participants to contribute a percentage of their
compensation with Company contributions. The Company contributed $10,000 and
$13,000 in fiscal 1994 and 1995, respectively.
F-66
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF MARCH 31, 1996 AND JUNE 30, 1996 AND FOR THE SIX MONTHS
ENDED MARCH 31, 1995 AND 1996 AND THE NINE MONTHS ENDED JUNE 30, 1995 AND 1996
IS UNAUDITED)
2. MARKETABLE SECURITIES:
The Company adopted Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities," (SFAS 115)
effective October 1, 1994. This statement requires the Company to classify its
investment securities as: (1) held-to-maturity, (2) available-for-sale or (3)
trading securities. At September 30, 1995, all of the Company's marketable
securities are classified as available for sale and reported at market value;
therefore, any unrealized holding gains or losses are presented as a separate
component of shareholders' equity. The cumulative effect of adopting SFAS 115
was an increase in shareholders' equity of $121,000.
In accordance with SFAS 115, the Company has not restated the financial
statements for prior years. For the year ended September 30, 1994, marketable
securities are carried at the lower of cost or market. The following is a
summary of available-for-sale securities as of September 30, 1995 (in
thousands):
<TABLE>
<CAPTION>
UNREALIZED UNREALIZED
HOLDING HOLDING MARKET
COST LOSSES GAINS VALUE
---- ---------- ---------- ------
<S> <C> <C> <C> <C>
Common stocks............................. $118 $ (6) $106 $218
Municipal bonds, maturity dates ranging
from 12/99 to 3/05....................... 59 -- 20 79
Mutual Funds.............................. 26 -- 1 27
---- ---- ---- ----
Total Marketable Securities............... $203 $ (6) $127 $324
==== ==== ==== ====
</TABLE>
During the year ended September 30, 1995 the Company sold marketable
securities in the amount of $103,000. Under the specific identification method,
the Company realized gains of $22,000 on these sales.
The following is a summary of available-for-sale securities as of September
30, 1994 (in thousands):
<TABLE>
<CAPTION>
UNREALIZED UNREALIZED
HOLDING HOLDING MARKET
COST LOSSES GAINS VALUE
---- ---------- ---------- ------
<S> <C> <C> <C> <C>
Common stocks............................. $148 $ (9) $ 77 $216
Municipal bonds, maturity dates ranging
from 12/99 to 3/05....................... 59 -- 12 71
Mutual Funds.............................. 41 (2) -- 39
---- ---- ---- ----
Total Marketable Securities............... $248 $(11) $ 89 $326
==== ==== ==== ====
</TABLE>
During the period ended September 30, 1994, the Company sold marketable
securities in the amount of $243,000. Under the specific identification method,
the Company realized gains of $17,000 on these sales.
F-67
<PAGE>
THE RESPONSE CENTER, INC. AND THE TAB HOUSE, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONCLUDED)
(INFORMATION AS OF MARCH 31, 1996 AND JUNE 30, 1996 AND FOR THE SIX MONTHS
ENDED
MARCH 31, 1995 AND 1996 AND THE NINE MONTHS ENDED JUNE 30, 1995 AND 1996 IS
UNAUDITED)
3. PROPERTY AND EQUIPMENT:
<TABLE>
<CAPTION>
SEPTEMBER 30
-------------- MARCH 31 JUNE 30
1994 1995 1996 1996
------ ------ -------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Computer equipment......................... $ 161 $ 154 $ 198 $ 199
Furniture and office equipment............. 89 96 148 145
Leasehold improvements..................... 19 19 65 74
------ ------ ----- -----
269 269 411 418
Less--Accumulated depreciation and
amortization.............................. (105) (130) (161) (178)
------ ------ ----- -----
$ 164 $ 139 $ 250 $ 240
====== ====== ===== =====
</TABLE>
Depreciation and amortization expense for the fiscal years ended September
30, 1994 and 1995, the six months ended March 31, 1996 and the nine months
ended June 30, 1996 was $43,000, $48,000, $30,000 and $47,000, respectively.
4. ACCRUED EXPENSES:
<TABLE>
<CAPTION>
SEPTEMBER 30
------------- MARCH 31 JUNE 30
1994 1995 1996 1996
------ ------ -------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Accrued compensation and
related expenses............ $ 115 $ 132 $103 $175
Accrued local taxes.......... 19 30 30 32
Other accrued liabilities.... 192 113 108 80
------ ------ ---- ----
$ 326 $ 275 $241 $287
====== ====== ==== ====
</TABLE>
5. COMMITMENTS AND CONTINGENCIES:
The Company leases a facility and equipment. Such leases have terms which
extend through 2000. Rent expense for the fiscal years ended September 30, 1994
and 1995 and the six months ended March 31, 1996 and the nine months ended June
30, 1996 was $157,000, $161,000, $64,000 and $90,000, respectively.
Future minimum lease payments under the Company's leases as of September 30,
1995 are as follows (in thousands):
<TABLE>
<S> <C>
1996................................................................... $138
1997................................................................... 111
1998................................................................... 58
1999................................................................... 55
2000................................................................... 55
----
Total minimum lease payments........................................... $417
====
</TABLE>
6. SALE OF BUSINESS:
In April 1996, an asset purchase agreement was entered into among
TeleSpectrum Worldwide Inc. a wholly-owned subsidiary of CRW Financial, the
Company, and the shareholders of the Company whereby TeleSpectrum Worldwide
agreed to purchase substantially all of the net assets of the Company.
F-68
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To TeleSpectrum, Inc. and TeleSpectrum Training Services, Inc.:
We have audited the accompanying combined balance sheet of TeleSpectrum, Inc.
and TeleSpectrum Training Services, Inc. (Maryland corporations) as of December
31, 1995, and the related combined statements of income, stockholders' equity
and cash flows for the year then ended. These financial statements are the
responsibility of the Companies' management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the combined financial position of TeleSpectrum, Inc.
and TeleSpectrum Training Services, Inc. as of December 31, 1995, and the
results of their operations and their cash flows for the year then ended, in
conformity with generally accepted accounting principles.
Arthur Andersen LLP
Philadelphia, Pa.,
April 17, 1996
(Except with respect
to the matter
discussed in Note 3,
as to which the date
is May 1, 1996)
F-69
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
COMBINED BALANCE SHEET
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31
----------- JUNE 30
1995 1996
----------- -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash................................................. $ 15 $ 605
Accounts receivable, net of reserves of $22 and $30.. 2,690 3,409
Due from TeleSpectrum Worldwide, Inc................. -- 51
Due from shareholder/officer......................... 4 --
Prepaid expenses and other........................... 95 283
------ ------
Total current assets............................... 2,804 4,348
PROPERTY AND EQUIPMENT, net............................ 657 1,085
OTHER ASSETS........................................... 88 157
------ ------
Total assets....................................... $3,549 $5,590
====== ======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Line of credit....................................... $1,350 $2,289
Current portion of long-term debt.................... 198 594
Accounts payable..................................... 498 534
Accrued compensation................................. 161 240
Deferred revenue..................................... 197 261
Other accrued expenses............................... 363 464
------ ------
Total current liabilities.......................... 2,767 4,382
------ ------
LONG-TERM DEBT AND OTHER NONCURRENT LIABILITIES........ 81 3
------ ------
DEFERRED TAXES......................................... 14 14
------ ------
COMMITMENTS AND CONTINGENCIES (Note 5)
STOCKHOLDERS' EQUITY:
Common stock, TeleSpectrum, Inc. $.01 par value,
5,000 shares authorized, 3,000 shares issued and
outstanding......................................... -- --
Common stock, TeleSpectrum Training Services, Inc. no
par value, 5,000 shares authorized, 200 shares
issued and outstanding.............................. 6 6
Additional paid-in capital........................... 217 217
Retained earnings.................................... 464 968
------ ------
Total stockholders' equity......................... 687 1,191
------ ------
Total liabilities and stockholders' equity......... $3,549 $5,590
====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-70
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
COMBINED STATEMENT OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE SIX
MONTHS ENDED
JUNE 30
FOR THE YEAR ENDED --------------
DECEMBER 31, 1995 1995 1996
------------------ ------ ------
(UNAUDITED)
<S> <C> <C> <C>
REVENUES.................................... $11,854 $5,592 $8,034
------- ------ ------
OPERATING EXPENSES:
Cost of services.......................... 8,338 3,828 5,290
Selling, general and administrative ex-
penses................................... 3,072 1,652 2,121
------- ------ ------
Total operating expenses................ 11,410 5,480 7,411
------- ------ ------
Operating income........................ 444 112 623
INTEREST EXPENSE............................ (184) (85) (119)
------- ------ ------
Income before income taxes.............. 260 27 504
INCOME TAX BENEFIT.......................... 18 -- --
------- ------ ------
NET INCOME.................................. $ 278 $ 27 $ 504
======= ====== ======
PRO FORMA DATA (UNAUDITED)
Historical net income..................... $ 278 $ 27 $ 504
Pro forma provision for income taxes...... 112 11 199
------- ------ ------
Pro forma net income...................... $ 166 $ 16 $ 305
======= ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-71
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
COMBINED STATEMENT OF STOCKHOLDERS' EQUITY
(IN THOUSANDS--EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK
---------------------------------
TELESPECTRUM
TRAINING
TELESPECTRUM, SERVICES, ADDITIONAL TOTAL
INC. INC. PAID-IN RETAINED STOCKHOLDERS'
SHARES SHARES AMOUNT CAPITAL EARNINGS EQUITY
------------- ------------ ------ ---------- -------- -------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1,
1995................... 3,000 200 $ 6 $217 $186 $ 409
Net income............ -- -- -- -- 278 278
----- --- ---- ---- ---- ------
BALANCE, DECEMBER 31,
1995................... 3,000 200 6 217 464 687
----- --- ---- ---- ---- ------
Net income (unau-
dited)............... -- -- -- -- 504 504
----- --- ---- ---- ---- ------
BALANCE, JUNE 30, 1996
(unaudited)............ 3,000 200 $ 6 $217 $968 $1,191
===== === ==== ==== ==== ======
</TABLE>
The accompanying notes are an integral part of these statements.
F-72
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
COMBINED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE SIX
MONTHS ENDED
JUNE 30
FOR THE YEAR ENDED --------------
DECEMBER 31, 1995 1995 1996
------------------ ------ -------
(UNAUDITED)
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income................................ $ 278 $ 154 $ 504
Adjustments to reconcile net income to net
cash used in operating activities--
Depreciation and amortization........... 343 107 99
Changes in operating assets and
liabilities--
Accounts receivable................... (679) (42) (720)
Due from TeleSpectrum Worldwide,
Inc.................................. -- -- (51)
Due from stockholder/officer.......... 1 5 --
Prepaid expenses and other............ (2) (162) (187)
Other, net ........................... (114) 57 63
Deferred revenue...................... (205) (405) 64
Accounts payable and accrued
liabilities.......................... 374 278 58
----- ----- -------
Net cash used in operating
activities......................... (4) (8) (170)
----- ----- -------
INVESTING ACTIVITIES:
Purchases of property and equipment....... (99) (288) (526)
----- ----- -------
Net cash used in investing
activities......................... (99) (288) (526)
----- ----- -------
FINANCING ACTIVITIES:
Net borrowings on line of credit.......... 807 (14) 2,289
Proceeds from notes payable............... -- 204 500
Principal payments on long-term debt and
capital leases........................... (852) (16) (1,503)
Bank overdraft............................ -- (41) --
----- ----- -------
Net cash used in financing
activities......................... (45) 133 1,286
----- ----- -------
NET (DECREASE) INCREASE IN CASH............. (148) (163) 590
CASH, BEGINNING OF PERIOD................... 163 163 15
----- ----- -------
CASH, END OF PERIOD......................... $ 15 $ -- $ 605
===== ===== =======
CASH PAID FOR:
Interest.................................. 182 82 116
===== ===== =======
Taxes..................................... 36 35 81
===== ===== =======
</TABLE>
The accompanying notes are an integral part of these statements.
F-73
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES:
INDUSTRY INFORMATION
TeleSpectrum, Inc. and TeleSpectrum Training Services, Inc. (together the
"Company") specializes in providing both outbound and inbound telemarketing
services and fullfillment to the high technology, pharmaceutical and healthcare
and consumer products industries.
The financial statements reflect the combined financial position and results
of operations of TeleSpectrum, Inc. and TeleSpectrum Training Services, Inc.
The accompanying financial statements are presented on a combined basis, as
TeleSpectrum, Inc. and TeleSpectrum Training Services, Inc. are owned by the
same stockholders who have identical ownership in each entity. The financial
statements reflect the elimination of all significant intercompany accounts and
transactions.
REVENUE RECOGNITION AND CONCENTRATION OF CREDIT RISK
The Company recognizes revenues on programs as services are performed for the
clients, generally based upon hours incurred. In 1995 and the six months ended
June 30, 1996, the Company had one client which accounted for approximately 12%
and 25% of revenues and 15% and 28% of accounts receivable, respectively.
The concentration of credit risk is limited to trade accounts receivables and
is subject to the financial conditions of the Company's clients. The Company
does not require collateral or other securities to support client receivables.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Property and equipment
capitalized under capital leases are recorded at the present value of the
minimum lease payments due over the term of the lease. Depreciation and
amortization are provided using the straight-line method over the estimated
useful lives of three to ten years.
Expenditures for maintenance, repairs and betterments which do not prolong
the normal useful life of an asset have been charged to operations as incurred.
Additions and betterments which substantially extend the useful life of the
properties are capitalized. Upon sale or other disposition of assets, the cost
and related accumulated depreciation and amortization are removed from the
respective accounts, and the resulting gain or loss, if any, is included in
income.
INCOME TAXES
TeleSpectrum, Inc. elected to be taxed as an S Corporation under the
provisions of the federal and state statutes. In lieu of federal and state
corporate income taxes, the stockholders are taxed on their proportionate share
of the Company's taxable income. Accordingly, no provision for federal or state
income taxes was recorded for the year ended December 31, 1995 or the six
months ended June 30, 1996.
The Company reports certain income and expense items for income tax purposes
on a basis different from that reflected in the accompanying financial
statements. The principal differences relate to the timing of the recognition
of accrued expenses which are not deductible for federal income tax purposes
until paid and the use of accelerated methods of depreciation for income tax
purposes. At December 31, 1995, the financial reporting basis of the Company's
net assets exceeds the tax basis of the net assets by approximately $140,000.
In the event that the S Corporation is terminated, deferred income taxes
applicable to these differences would be reflected in the accompanying
financial statements.
Given the pending sale of the business (see Note 6), for informational
purposes, the accompanying statements of income include an unaudited pro forma
adjustment for income taxes which would have been recorded if the Company had
not been an S Corporation, based on the tax laws in effect during the
respective periods. The
F-74
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
differences between the federal statutory income tax rate and the pro forma
income tax rate primarily related to state and local income taxes and expenses
not deductible for tax purposes.
TeleSpectrum Training Services, Inc. is a C Corporation and follows the
provisions of Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes." This standard requires an asset and liability approach to
the recognition of deferred tax assets and liabilities related to the expected
future consequences of events that have been recognized in the financial
statements or tax returns.
TeleSpectrum Training Services, Inc. has recorded $14,000 of long-term
deferred tax liabilities as of December 31, 1995 and June 30, 1996. This amount
relates principally to differences between the accelerated depreciation methods
used for income tax purposes and those used for financial reporting purposes.
The (benefit) for income taxes for TeleSpectrum Training Services, Inc. is
comprised of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31 JUNE 30,
1995 1996
----------- --------
<S> <C> <C>
Current................................................... $ 2 $--
Deferred.................................................. (20) --
---- ----
Total benefit........................................... $(18) $--
==== ====
</TABLE>
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the financial statements at fair value due to the short-term
nature of those instruments. The carrying amounts of line of credit, long-term
debt and capital lease obligations approximate fair value at the balance sheet
dates.
PERVASIVENESS OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
INTERIM FINANCIAL STATEMENTS
The financial statements as of June 30, 1996 and for the six months ended
June 30, 1995 and 1996 are unaudited and, in the opinion of management of the
Company, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of the results for those interim
periods. The results of operations for the six months ended June 30, 1996 are
not necessarily indicative of the results to be expected for the full year.
2. PROPERTY AND EQUIPMENT (IN THOUSANDS--EXCEPT USEFUL LIFE DATA):
<TABLE>
<CAPTION>
USEFUL DECEMBER 31 JUNE 30
LIVES 1995 1996
------ ----------- -------
<S> <C> <C> <C>
Telemarketing equipment.......................... 5-7 $ 825 $1,244
Furniture and office equipment................... 3-5 1,221 1,329
Leasehold Improvements........................... 3-10 91 91
------- ------
2,137 2,664
Less--Accumulated depreciation and amortization.. (1,480) (1,579)
------- ------
$ 657 $1,085
======= ======
</TABLE>
F-75
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995
AND 1996 IS UNAUDITED)
Depreciation expense for the year ended December 31, 1995 and the six months
ended June 30, 1996, was $343,000 and $99,000, respectively.
3. LINE OF CREDIT:
The Company entered into a new line of credit agreement in May 1996 (the
"new line") and used proceeds from the new line to pay down the amount owed
under the existing line of credit (the "old line"). The amount available for
borrowing under the new line is $4.0 million, with interest at the bank's
prime rate plus 1.5% (under the old line, interest, calculated as the bank's
prime rate plus 2.5%, was 11% at December 31, 1995). At December 31, 1995, the
balance of the old line was $1.35 million. Interest expense on borrowings
under the old line amounted to $127,000 during 1995 and interest expense under
the old and new lines amounted to $95,000 during the six months ended June 30,
1996.
4. LONG-TERM DEBT (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1995 1996
------------ --------
<S> <C> <C>
Note payable to bank (see Note 3), interest at the bank's
prime rate plus 2%, monthly principal payments of
$13,000 plus interest, maturing July 1996,
collateralized by all assets of the Company; eighty
percent (80%) guaranteed by the United States Small
Business Administration (SBA); personally guaranteed by
the Company's officers.................................. $ 91 $ --
Note payable, interest at 15%, monthly principal and in-
terest payments of $2,000, maturing October 1997, guar-
anteed by an officer of the
company................................................. 38 24
Note payable, interest at 22%, maturing June 1996,
guaranteed by an officer of the Company................. -- --
Note Payable, interest at 9%, maturity May 1997,
guaranteed by CRW Financial, Inc........................ -- 500
Capitalized lease obligations (Note 5)................... 126 73
----- -----
255 597
Less--Current portion.................................... (198) (594)
----- -----
$ 57 $ 3
===== =====
</TABLE>
Minimum principal repayments of long-term debt as of December 31, 1995,
excluding capitalized lease obligations, are as follows (in thousands):
<TABLE>
<S> <C> <C>
1996................................................................. $110
1997................................................................. 19
----
$129
====
</TABLE>
5. COMMITMENTS AND CONTINGENCIES:
The Company is party to various claims and other matters arising in the
normal course of business. In the opinion of management, the outcome of these
matters will not have a material adverse effect on the Company's financial
position or results of operations.
F-76
<PAGE>
TELESPECTRUM, INC. AND TELESPECTRUM TRAINING SERVICES, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(INFORMATION AS OF JUNE 30, 1996 AND FOR THE SIX MONTHS ENDED JUNE 30, 1995 AND
1996 IS UNAUDITED)
The Company leases facilities and equipment at several locations. Rent
expense under operating leases for the year ended December 31, 1995 and the six
months ended June 30, 1996 was $264,000 and $194,000 respectively.
Future minimum lease payments under the Company's leases as of December 31,
1995 are as follows (in thousands):
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASES
--------- -------
<S> <C> <C>
1996...................................................... $ 395 $ 99
1997...................................................... 447 36
1998...................................................... 441 4
1999...................................................... 382 --
2000...................................................... 19 --
------ ----
Total minimum lease payments.............................. $1,684 139
======
Less--Amount representing interest........................ (13)
----
Present value of future minimum lease payments............ 126
Less--Current portion..................................... (88)
----
$ 38
====
</TABLE>
6. SALE OF BUSINESS:
In April 1996, an asset purchase agreement was entered into among CRW
Financial, Inc. ("CRW"), the Company and the shareholders of the Company
whereby TeleSpectrum Worldwide Inc., a wholly-owned subsidiary of CRW, agreed
to purchase substantially all of the net assets of the Company.
Upon signing the asset purchase agreement, CRW advanced the Company $500,000
in the form of a promissory note due one year from the date the proceeds are
received with interest at 9%. Upon the closing of the transaction, a portion of
the purchase price will be paid by cancellation of the promissory note.
F-77
<PAGE>
The inside back cover depicts two flow charts. The first flow chart is
entitled "Inbound Process" and describes the inbound process using the following
text:
Customers Desire Product or Service or Have Questions
Response Via
Phone, Mail, Internet
Connect With
Telespectrum Representative
Who
Collects, Verifies, and Enhances Data and Interfaces with
External Customer Database
Client Needs Met Through
Fulfillment, E-Mail, Internet
Phone Call Back, Customer Satisfied, Client Reports
The second flow chart is entitled "Outbound Process" and describes the
outbound process using the following text:
Product/Service Offering
Generate List & Conduct Market Research to Segment List
Ongoing Database Management to Adjust Offering
Outbound Autodialing by Telespectrum Representative to Reach Customers
Customer Says Yes or Customer Says No
Quality Control
Fulfill/Take Orders or Capture Why
Update Master File/Generate Reports for Client
The back cover depicts the Company logo above the words "Telespectrum
Worldwide, Inc."
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth fees payable to the Securities and Exchange
Commission and the National Association of Securities Dealers, Inc., and other
estimated expenses expected to be incurred in connection with issuance and
distribution of securities being registered. All such fees and expenses shall
be paid by the Company.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee........... $ 74,555
NASD Fee...................................................... 22,121
Nasdaq National Market Listing Fee............................ 50,000
Printing and Engraving Expenses............................... 300,000
Accounting Fees and Expenses.................................. 1,400,000
Legal Fees and Expenses....................................... 400,000
Directors and Officers Insurance.............................. 150,000
Blue Sky Qualification Fees and Expenses...................... 25,000
Transfer Agent Fees and Expenses.............................. 7,500
Miscellaneous................................................. 170,824
----------
Total....................................................... $2,600,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of
directors to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty, except for liability (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any
transaction from which the director derived and improper personal benefit.
Article 7 of the registrant's Certificate of Incorporation provides that the
personal liability of directors of the registrant is eliminated to the fullest
extent permitted by Section 102(b)(7) of the DGCL.
Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances and subject to
certain limitations against certain costs and expenses, including attorneys'
fees actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of being a director or officer of the
corporation if it is determined that the director of officer acted in
accordance with the applicable standard of conduct set forth in such statutory
provision. Article 7 of the registrant's Bylaws provides that the registrant
will indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding by
reason of the fact that he is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another entity, against certain
liabilities, costs and expenses. Article 7 further permits the registrant to
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the registrant, or is or was serving at the request of
the registrant as a director, officer, employee or agent of another entity,
against any liability asserted against such person and incurred by such person
in any such capacity or arising out of his status as such, whether or not the
registrant would have the power to indemnify such person against such
liability under the DGCL. The registrant maintains directors' and officers'
liability insurance.
Under Section 9 of the Underwriting Agreement, the Underwriters are
obligated, under certain circumstances, to indemnify directors and officers of
the registrant against certain liabilities, including liabilities under the
Securities Act. Reference is made to the form of Underwriting Agreement filed
as Exhibit 1.01 hereto.
II-1
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On April 29, 1996, the registrant sold 8,510,137 shares of its common stock
(after giving effect to a 8.510137-to-1 stock split effected through a stock
dividend paid to stockholders of record on May 21, 1996) to CRW Financial,
Inc. in an organizational subscription for aggregate cash consideration of
$10,000. The transaction was intended to be exempt from the registration
requirements of the Securities Act of 1933, as amended, by virtue of Section
4(2) thereof.
On May 22, 1996, the registrant entered into an Amended and Restated Asset
Purchase Agreement with Harris Direct Marketing Inc., Harris Fulfillment Inc.,
Bruce M. Schorle and Edward M. Idzik, pursuant to which the registrant has
agreed to issue 202,192 shares of its Common Stock and warrants to purchase
60,900 shares, as partial consideration for the purchase by the registrant of
all of the net assets of the "Harris Operating Business" (as defined in the
Prospectus which forms a part of this registration statement (the
"Prospectus")). Pursuant to the Amended and Restated Asset Purchase Agreement,
the Company has agreed to grant 26,100 stock options to certain employees of
this Operating Business following consummation of the asset purchase. The
transaction was intended to be exempt from the registration requirements of
the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof.
On May 22, 1996, the registrant entered into an Amended and Restated Asset
Purchase Agreement with Dial Direct, Inc., Insure Direct, Inc., Dial Direct
Telemarketing, Ltd., TRG/Communication, Inc., The Reich Group, Inc. and Morton
M. Reich, pursuant to which the registrant has agreed to issue 441,468 shares
of its Common Stock and warrants to purchase 105,000 shares as partial
consideration for the purchase by the registrant of all of the net assets of
the "Reich Operating Business" (as defined in the Prospectus). Pursuant to the
Amended and Restated Asset Purchase Agreement, the Company has agreed to grant
45,000 stock options to certain employees of this Operating Business following
consummation of the asset purchase. The transaction was intended to be exempt
from the registration requirements of the Securities Act of 1933, as amended,
by virtue of Section 4(2) thereof.
On May 22, 1996 the registrant entered into an Amended and Restated Asset
Purchase Agreement with TeleSpectrum, Inc., TeleSpectrum Training Services,
Inc., Karen Schweitzer and Sherry Paterra, pursuant to which the registrant
has agreed to issue 176,587 shares of its Common Stock and warrants to
purchase 44,100 shares as partial consideration for the purchase by the
registrant of all of the net assets of the "TeleSpectrum Operating Business"
(as defined in the Prospectus). Pursuant to the Amended and Restated Asset
Purchase Agreement, the Company has agreed to grant 18,900 stock options to
certain employees of this Operating Business following consummation of the
asset purchase. The transaction was intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, by virtue
of Section 4(2) thereof.
On May 22, 1996, the registrant entered into an Amended and Restated Asset
Purchase Agreement with SOMAR, Inc., and Richard W. Virtue, pursuant to which
the registrant has agreed to issue 2,207,340 shares of its Common Stock and
warrants to purchase 210,000 shares as partial consideration for the purchase
by the registrant of all of the net assets of the "SOMAR Operating Business"
(as defined in the Prospectus). Pursuant to the Amended and Restated Asset
Purchase Agreement, the Company has agreed to grant 90,000 stock options to
certain employees of this Operating Business following consummation of the
asset purchase. The transaction was intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, by virtue
of Section 4(2) thereof.
On May 22, 1996, the registrant entered into an Amended and Restated Asset
Purchase Agreement with The Response Center, Inc., The Tab House, Inc.,
Patrick M. Baldasare, Richard Raquet and Edward Olesky, pursuant to which the
registrant has agreed to issue 256,051 shares of its Common Stock and warrants
to purchase 60,900 shares as partial consideration for the purchase by the
registrant of all of the net assets of "The Response Center Operating
Business" (as defined in the Prospectus). Pursuant to the Amended and Restated
Asset Purchase Agreement, the Company has agreed to grant 26,100 stock options
to certain employees of this Operating Business following consummation of the
asset purchase. The transaction was intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, by virtue
of Section 4(2) thereof.
II-2
<PAGE>
On May 22, 1996, the registrant entered into an Amended and Restated Asset
Purchase Agreement with NBG Services, Inc., William F. Rhatigan and Michael J.
Gallant, pursuant to which the registrant has agreed to issue 1,120,225 shares
of its Common Stock and warrants to purchase 112,500 shares as partial
consideration for the purchase by the registrant of all of the net assets of
the "NBG Operating Business" (as defined in the Prospectus). Pursuant to the
Amended and Restated Asset Purchase Agreement, the Company has agreed to grant
75,000 stock options to certain employees of this Operating Business following
consummation of the asset purchase. The transaction was intended to be exempt
from the registration requirements of the Securities Act of 1933, as amended,
by virtue of Section 4(2) thereof.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this registration statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.01 Form of Underwriting Agreement.**
3.01 Restated Certificate of Incorporation of TeleSpectrum Worldwide
Inc.**
3.02 Bylaws of TeleSpectrum Worldwide Inc.**
5.01 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
securities being registered.**
10.01 Asset Purchase Agreement, dated as of April 4, 1996, supplemented
April 6, 1996 and amended and restated as of May 22, 1996, by and
among CRW Financial, Inc., TeleSpectrum Worldwide Inc., Harris
Direct Marketing, Inc., Harris Fulfillment, Inc., Bruce M. Schorle
and Edward M. Idzik.*
10.02 Asset Purchase Agreement, dated as of April 5, 1996 and amended and
restated as of May 22, 1996, by and among CRW Financial, Inc.,
TeleSpectrum Worldwide Inc., DialDirect, Inc., InsureDirect, Inc.,
DialDirect Telemarketing, Ltd., TRG/Communications, Inc., The Reich
Group, Inc. and Morton M. Reich.*
10.03 Asset Purchase Agreement, dated as of April 10, 1996 and amended and
restated as of May 22, 1996, by and among CRW Financial, Inc.,
TeleSpectrum Worldwide Inc., TeleSpectrum, Inc., TeleSpectrum
Training Services, Inc., Karen Schweitzer and Sherry Paterra.*
10.04 Asset Purchase Agreement, dated as of April 26, 1996 and amended and
restated as of May 22, 1996, by and among SOMAR, Inc., Richard W.
Virtue, CRW Financial, Inc. and TeleSpectrum Worldwide Inc.*
10.05 Asset Purchase Agreement, dated as of April 30, 1996 and amended and
restated as of May 22, 1996, by and among TeleSpectrum Worldwide
Inc., The Response Center, Inc., The Tab House, Inc., Patrick M.
Baldasare, Richard Raquet and Edward Olesky.*
10.06 Asset Purchase Agreement, dated as of May 3, 1996 and amended and
restated as of May 22, 1996, by and among TeleSpectrum Worldwide
Inc., CRW Financial, Inc., NBG Services, Inc., William F. Rhatigan
and Michael J. Gallant.*
10.07 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc. and Edward M. Idzik.*
10.08 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial Inc. and Karen Schweitzer.*
10.09 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc. and Morton M. Reich.*
10.10 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc. and Patrick M. Baldasare.*
10.11 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., and Gregory M. Alcorn.*
10.12 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., and Michael J. Gallant.*
</TABLE>
- --------
*Previously filed.
**Filed herewith.
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.13 Form of Employment Agreement to be entered into between TeleSpectrum
Worldwide Inc. and William F. Rhatigan.*
10.14 Form of Consulting Agreement to be entered into between TeleSpectrum
Worldwide Inc. and Richard W. Virtue.*
10.15 Employment Agreement, dated as of May 21, 1996, into between
TeleSpectrum Worldwide Inc. and J. Brian O'Neill.**
10.16 Employment Agreement, dated as of April 22, 1996, between
TeleSpectrum Worldwide Inc. and Michael C. Boyd.**
10.17 Employment Agreement, dated as of May 6, 1996, between TeleSpectrum
Worldwide Inc. and Richard C. Schwenk, Jr.**
10.18 TeleSpectrum Worldwide Inc. 1996 Equity Compensation Plan.**
23.01 Consent of Arthur Andersen LLP.**
23.02 Consent of Morgan, Lewis & Bockius LLP (included in opinion filed as
Exhibit 5.01).**
24.01 Power of Attorney.*
27.01 Financial Data Schedule.**
99.01 Consent of William F. Rhatigan as a person named to become a
director.*
99.02 Consent of Richard W. Virtue as a person named to become a
director.*
</TABLE>
- --------
* Previously filed.
**Filed herewith.
(b) Financial statement schedules have been omitted because they are
inapplicable, are not required under applicable provisions of Regulation S-X,
or the information that would otherwise be included in such schedules is
contained in the registrant's financial statements or accompanying notes.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registrations statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Philadelphia, Commonwealth of Pennsylvania, on July 16, 1996.
TeleSpectrum Worldwide Inc.
By: /s/ J. Brian O'Neill
------------------------------
J. Brian O'Neill
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ J. Brian O'Neill Chairman of the Board
- ------------------------- and Chief Executive July 16, 1996
J. Brian O'Neill Officer and a Director
(Principal Executive
Officer)
President and Chief
/s/ Michael C. Boyd Operating Officer and a July 16, 1996
- ------------------------- Director
Michael C. Boyd
Chief Financial Officer
/s/ Richard C. Schwenk, (Principal Financial July 16, 1996
Jr. and Accounting Officer)
- -------------------------
Richard C. Schwenk, Jr.
* Director
- ------------------------- July 16, 1996
Mark J. DeNino
*By /s/ J. Brian O'Neill
------------------------------------
J. Brian O'Neill, Attorney-in-Fact,
pursuant to powers of attorney
previously filed as part of this
registration statement.
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.01 Form of Underwriting Agreement.**
3.01 Restated Certificate of Incorporation of TeleSpectrum Worldwide
Inc.**
3.02 Bylaws of TeleSpectrum Worldwide Inc.**
5.01 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
securities being registered.**
10.01 Asset Purchase Agreement, dated as of April 4, 1996, supplemented
April 6, 1996 and amended and restated as of May 22, 1996, by and
among CRW Financial, Inc., TeleSpectrum Worldwide Inc., Harris
Direct Marketing, Inc., Harris Fulfillment, Inc., Bruce M. Schorle
and Edward M. Idzik.*
10.02 Asset Purchase Agreement, dated as of April 5, 1996 and amended and
restated as of May 22, 1996, by and among CRW Financial, Inc.,
TeleSpectrum Worldwide Inc., DialDirect, Inc., InsureDirect, Inc.,
DialDirect Telemarketing, Ltd., TRG/Communications, Inc., The Reich
Group, Inc. and Morton M. Reich.*
10.03 Asset Purchase Agreement, dated as of April 10, 1996 and amended and
restated as of May 22, 1996, by and among CRW Financial, Inc.,
TeleSpectrum Worldwide Inc., TeleSpectrum, Inc., TeleSpectrum
Training Services, Inc., Karen Schweitzer and Sherry Paterra.*
10.04 Asset Purchase Agreement, dated as of April 26, 1996 and amended and
restated as of May 22, 1996, by and among SOMAR, Inc., Richard W.
Virtue, CRW Financial, Inc. and TeleSpectrum Worldwide Inc.*
10.05 Asset Purchase Agreement, dated as of April 30, 1996 and amended and
restated as of May 22, 1996, by and among TeleSpectrum Worldwide
Inc., The Response Center, Inc., The Tab House, Inc., Patrick M.
Baldasare, Richard Raquet and Edward Olesky.*
10.06 Asset Purchase Agreement, dated as of May 3, 1996 and amended and
restated as of May 22, 1996, by and among TeleSpectrum Worldwide
Inc., CRW Financial, Inc., NBG Services, Inc., William F. Rhatigan
and Michael J. Gallant.*
10.07 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., Edward M. Idzik.*
10.08 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc. and Karen Schweitzer.*
10.09 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc. and Morton M. Reich.*
10.10 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., Patrick M. Baldasare.*
10.11 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., and Gregory M. Alcorn.*
10.12 Form of Employment Agreement to be entered into among TeleSpectrum
Worldwide Inc., CRW Financial, Inc., and Michael J. Gallant.*
10.13 Form of Employment Agreement to be entered into between TeleSpectrum
Worldwide Inc. and William F. Rhatigan.*
10.14 Form of Consulting Agreement to be entered into between TeleSpectrum
Worldwide Inc. and Richard W. Virtue.*
10.15 Employment Agreement, dated as of May 21, 1996, between TeleSpectrum
Worldwide Inc. and J. Brian O'Neill.**
10.16 Employment Agreement, dated as of April 22, 1996, between
TeleSpectrum Worldwide Inc. and Michael C. Boyd.**
10.17 Employment Agreement, dated as of May 6, 1996, between TeleSpectrum
Worldwide Inc. and Richard C. Schwenk, Jr.**
10.18 TeleSpectrum Worldwide Inc. 1996 Equity Compensation Plan.**
23.01 Consent of Arthur Andersen LLP.**
23.02 Consent of Morgan, Lewis & Bockius LLP (included in opinion filed as
Exhibit 5.01).**
24.01 Power of Attorney.*
27.01 Financial Data Schedule.**
99.01 Consent of William F. Rhatigan as a person named to become a
director.*
99.02 Consent of Richard W. Virtue as a person named to become a
director.*
</TABLE>
- --------
* Previously filed.
** Filed herewith.
<PAGE>
TeleSpectrum Worldwide Inc.
10,656,000 Shares of Common Stock
-----------
Underwriting Agreement
_____________ , 1996
J.P. Morgan Securities Inc.
Dillon, Read & Co. Inc.
Legg Mason Wood Walker, Incorporated
The Robinson-Humphrey Company, Inc.
As Representatives of the several underwriters
listed in Schedule I hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
TeleSpectrum Worldwide Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives") an aggregate 10,286,000 shares of common stock, par value
$.01 per share, of the Company (the "Underwritten Company Shares") and, for the
sole purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, up to an additional
1,598,400 shares of common stock, par value $.01 per share, of the Company (the
"Option Shares"). SOMAR Inc. and NBG Services, Inc. (the "Selling
Stockholders") propose to sell to the several Underwriters 36,000 and 334,000
shares, respectively, of common stock par value $.01 per share, of the Company
(the "Selling Stockholder Underwritten Shares" and together with the
Underwritten Company Shares, the "Underwritten Shares"). The Underwritten
Shares and the Option Shares are herein referred to as the "Shares." The shares
of common stock, par value $.01 per share, of the Company to be outstanding
after giving effect to the sale of the Shares are herein referred to as the
"Stock". The Company has entered into the Amended and Restated Asset Purchase
Agreements identified on Exhibit A attached hereto (the "Acquisition
Agreements") with each of Harris Direct Marketing, Inc., Harris Direct
Fulfillment, Inc., DialDirect, Inc., InsureDirect, Inc., DialDirect
Telemarketing, Ltd., TRG/Communications, Inc., The Reich Group, Inc.,
TeleSpectrum, Inc., TeleSpectrum Training Services, Inc., SOMAR, Inc., The
Response Center, Inc., The Tab House, Inc. and NBG Services, Inc. (together, the
"Sellers") to purchase substantially all of their assets (the "Operating
Businesses") simultaneous with the closing of the sale of the
Underwritten
<PAGE>
Shares (the "Acquisitions"). For the purposes of this Agreement, unless the
context expressly otherwise requires, references to the Company and its
subsidiaries shall include the Operating Businesses as if the Acquisitions have
been completed.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective or, if a post-
effective amendment is filed with respect thereto, as amended by such post-
effective amendment at the time of its effectiveness, including in each case
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is referred to
in this Agreement as the "Registration Statement", and the prospectus in the
form first used to confirm sales of Shares is referred to in this Agreement as
the "Prospectus". If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company and the Selling Stockholders hereby agree with the
Underwriters as follows:
1. The Company agrees to issue and sell the Underwritten Company
Shares to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective number of
Underwritten Company Shares set forth opposite such Underwriter's name in
Schedule I hereto at a purchase price per share (the "Purchase Price") of
$____________.
The Selling Stockholders agree to sell the Underwritten Selling
Stockholder Shares to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated agrees to purchase,
severally and not jointly, from the Selling Stockholders the respective number
of Underwritten Selling Stockholder Shares set forth opposite such Underwriter's
name in Schedule I hereto at the Purchase Price.
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as hereinafter provided, and the Underwriters on the
basis of the representations and
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warranties herein contained, but subject to the conditions hereinafter stated,
shall have the option to purchase, severally and not jointly, from the Company
up to an aggregate of ________ Option Shares at the Purchase Price, for the sole
purpose of covering over-allotments (if any) in the sale of Underwritten Shares
by the several Underwriters.
If any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 11 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company and the Selling Stockholders by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional
Shares as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than once) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as
to which the option is being exercised and the date and time when the Option
Shares are to be delivered and paid for which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date nor later than the tenth full Business Day (as hereinafter defined)
after the date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 11 hereof). Any such notice shall be
given at least two Business Days prior to the date and time of delivery
specified therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement, as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Underwritten Company Shares shall be made to the
Company and payment for the Selling Stockholder Underwritten Shares shall be
made to the Selling Stockholders, in each case, by wire transfer in immediately
available funds to the accounts specified by the Company and the Selling
Stockholders, respectively, to the Representatives, no later than noon the
Business Day (as defined below) prior to the Closing Date (as defined below), on
________________, 19__, or at such other time on the same or such other date,
not later than the fifth Business Day thereafter, as the Representatives, the
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Company and the Selling Stockholders may agree upon in writing or, in the case
of the Option Shares, on the date and time specified by the Representatives in
the written notice of the Underwriters' election to purchase such Option Shares.
The time and date of such payment for the Underwritten Shares is referred to
herein as the "Closing Date" and the time and date for such payment for the
Option Shares, if other than the Closing Date, are herein referred to as the
"Additional Closing Date". As used herein, the term "Business Day" means any day
other than a day on which banks are permitted or required to be closed in New
York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company or the Selling
Stockholders, as the case may be. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of
[the stock transfer agent, address] [J.P. Morgan Securities Inc. set forth
above] not later than 1:00 P.M., New York City time, on the Business Day prior
to the Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the
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<PAGE>
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case may be,
in all material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented, if
applicable, at the Closing Date or Additional Closing Date, as the case may be,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to statements or
omissions in the Registration Statement or the Prospectus made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use therein;
(c) The pro forma combined financial statements of the Company
and the historical financial statements of the Company and the Sellers, and the
related notes thereto, included in the Registration Statement and the Prospectus
present fairly in all material respects the pro forma combined or historical
financial position, as the case may be, of the Company and the Sellers, as the
case may be, as of the dates indicated and the results of their operations and
changes in their cash flows for the periods specified; and said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, except as may be set forth therein,
and the supporting schedules included in the Registration Statement present
fairly in all material respects the information required to be stated therein;
and the pro forma combined financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and are based
upon good faith estimates and assumptions believed by the Company to be
reasonable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or to the Company's knowledge any
development involving a prospective material adverse change, in or affecting the
general affairs, business, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
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<PAGE>
a whole, otherwise than as set forth or contemplated in the Prospectus; and
except as setforth or contemplated in the Prospectus neither the Company nor any
of its subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(f) each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
and all the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and non-
assessable, and are owned by the Company, directly or indirectly, free and clear
of all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Company has an authorized capitalization as set forth in
the Prospectus under the captions "Capitalization" and Description of Capital
Stock" and such authorized capital stock conforms as to legal matters to the
description thereof set forth in the Prospectus, and all of the outstanding
shares of capital stock of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable and are not subject to any pre-emptive
or similar rights; and, except as expressly set forth in the Prospectus, there
are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments
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<PAGE>
convertible into or exchangeable for, any shares of capital stock or other
equity interests in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or options;
(i) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly issued
and will be fully paid and non-assessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights;
(j) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole; the issue and sale of the Shares and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will any such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any applicable law
or statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Shares or the consummation by
the Company of the transactions contemplated by this Agreement, except such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as may be
required under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(k) other than as set forth in the Prospectus, there are no legal
or governmental investigations, actions, suits
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<PAGE>
or proceedings pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be a
party or to which any property of the Company or any of its subsidiaries is or
may be the subject which, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate have, or reasonably be
expected to have, a material adverse effect on the general affairs, business,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(l) the Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
existing and enforceable leases with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries;
(m) no relationship, direct or indirect, exists between or among
the Company or any or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus and which is not so
described;
(n) no person, except for the Selling Stockholders, has the right
to require the Company to register any securities for offering and sale under
the Securities Act solely by reason of the filing of the Registration Statement
with the Commission or the issue and sale of the Shares;
(o) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
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<PAGE>
(p) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing
business with the Government of Cuba or with any person or affiliate located in
Cuba;
(q) Arthur Andersen LLP, which has audited certain financial
statements of the Company and its subsidiaries and the Sellers, are independent
public accountants with regard to the Sellers and the Company as required by the
Securities Act;
(r) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be filed and
have paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being contested
in good faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no material tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company or any
subsidiary;
(s) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Stock;
(t) the Company and each of its subsidiaries carry, or are
covered by, insurance (including self-insurance) in such amounts and covering
such risks as is adequate for the conduct of their respective businesses and the
value of their respective properties;
(u) the Company and each of its subsidiaries own or possess
adequate rights to use all material trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and licenses
(and any authorizations or permits) necessary for the conduct of their
respective businesses ("Intellectual Property") and have no reason to believe
that the conduct of their businesses will conflict with, and have not received
any notice of any claim of conflict with, the rights of others in respect
thereof;
(v) each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and
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<PAGE>
other tribunals, domestic or foreign, necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as conducted as
of the date hereof, and neither the Company nor any such subsidiary has received
any actual notice of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus; and to the Company's knowledge, each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date hereof;
(w) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or any of
its subsidiaries which are likely to have individually or in the aggregate a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(x) the Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(y) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended,
("ERISA") that is maintained, administered or contributed to by the Company or
any of its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended, ("Code"). No
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption. For
each such plan which is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid
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<PAGE>
contributions) exceeded the present value of all benefits accrued under such
plan determined using reasonable actuarial assumptions;
(z) the Stock of the Company, including the Shares, is authorized
for quotation, subject to official notice of issuance, on the Nasdaq National
Market; and
(aa) the Acquisition Agreements are in full force and effect on
the date hereof, and neither the Company, any of the Sellers or any of the other
parties hereto is in breach of its obligations thereunder.
5. Each of the Selling Stockholders severally represents and
warrants to each Underwriter that:
(a) the execution and delivery of this Agreement, the sale of the
Selling Stockholder Underwritten Shares and the performance by such Selling
Stockholder of its obligations under this Agreement, and the consummation of the
transactions contemplated herein will not conflict with or result in a breach of
any of the terms, or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property or assets of such
Selling Stockholder is subject;
(b) such Selling Stockholder has and will have at the Closing
Date good and marketable title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equity other than pursuant to this Agreement and the
Power-of-Attorney and Transfer Agreement (as described below); such Selling
Stockholder has full right, power and authority to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder hereunder; and upon delivery
of the Shares to be sold by such Selling Stockholder hereunder and payment of
the Purchase Price therefor as herein contemplated, each of the Underwriters
will receive good and marketable title to the Shares purchased by it from such
Selling Stockholder, free and clear of any pledge, lien security interest,
encumbrance, claim or equity;
(c) such Selling Stockholder has duly executed and delivered in
the form heretofore furnished to the Underwriters a Power of Attorney and
Transfer Agreement with J. Brian O'Neill and Michael C. Boyd, as attorneys-in-
fact (each, an "Attorney-in-Fact") and with Company; the Attorneys-in-Fact, or
either of them, are authorized to execute and deliver this Agreement on behalf
of such Selling Stockholder, to determine the Purchase Price to be paid by the
Underwriters to such Selling Stockholder within the limits specified in the
Power
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of Attorney and Transfer Agreement, to authorize the delivery of the Shares to
be sold by such Selling Stockholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Stockholder in connection with this
Agreement;
(d) all authorizations, approvals and consents necessary for the
execution and delivery by such Selling Stockholder of the Power of Attorney and
Custody Agreement, the execution and delivery by or on behalf of such Selling
Stockholder of this Agreement, and the sale and delivery of the Shares to be
sold by such Selling Stockholder hereunder (except such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Securities Act and the state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters) have been obtained
and are in full force and effect; and such Selling Stockholder has the full
right, power and authority to enter into this Agreement and such Power of
Attorney and Custody Agreement and to sell, transfer and deliver the Shares to
be sold by such Selling Stockholder;
(e) all information furnished to the Company by such Selling
Stockholder or on the Selling Stockholder's behalf relating to such Selling
Shareholder for use in connection with the preparation of the Registration
Statement and Prospectus (including, without limiting the generality of the
foregoing, all representations and warranties of such Selling Stockholder in the
Power of Attorney) is true and correct and does not omit to state any material
fact necessary to be stated therein in order to make such information not
misleading;
(f) such Selling Stockholder has no reason to believe that any of
the representations and warranties of the Company set forth in Section 4 of this
Agreement is or will be untrue or inaccurate in any material respect;
(g) such Selling Stockholder is not prompted to sell the Shares
to be sold by the Selling Stockholder hereunder by any information concerning
the Company which is not set forth in the preliminary prospectus;
(h) such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares; and
(i) such Selling Stockholder, pursuant to the Power of Attorney
and
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Transfer Agreement, has directed the Company to deliver certificates
representing the Shares to be sold by such Selling Stockholder to be delivered
by the Company to the Underwriters in accordance with this Agreement.
6. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement
to become effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and to furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 a.m., New York
City time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the
Representatives seven signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and to each
other Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and, during the
period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) as
the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such
advice in writing (i) when the Registration Statement has become effective, (ii)
when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Representatives with copies thereof, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose, (vi) of the
occurrence of any event, within the period referenced in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an
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untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, and (vii) of the
receipt by the Company of any notification with respect to any suspension of the
qualification of the Shares for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any order suspending any such qualification of the shares, or
notification of any such order thereof and, if issued, to use its best efforts
to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Company or
counsel for the Underwriters a prospectus relating to the Shares is required by
law to be delivered in connection with sales by the Underwriters or any dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been sold
by the Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to cooperate with the Underwriters to qualify the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representatives shall reasonably request and to continue such qualification
in effect so long as reasonably required for distribution of the Shares;
provided that the Company shall not be required to file a general consent to
service of process or be required to qualify as a foreign corporation in any
jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission promulgated thereunder;
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(h) for a period of three years after the Closing Date, to
furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange;
(i) for a period of 180 days after the date of the Prospectus,
not to (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any shares of Stock or any securities convertible into or exercisable or
exchangeable for Stock (other than options or other securities granted or to be
granted or that may be granted under the Company's 1996 Equity Compensation
Plan), (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of the Stock or (iii)
file a registration statement with the Commission relating to shares of Stock
issuable upon exercise or exchange of securities convertible into shares of
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Stock or such other securities, in cash or otherwise
without the prior written consent of J.P. Morgan Securities Inc., other than the
Shares to be sold hereunder and any shares of Stock of the Company issued upon
the exercise of options granted under existing employee stock option plans as of
the date hereof as further described in the Prospectus;
(j) to use the net proceeds received by the Company from the sale
of the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) to use its best efforts to list for quotation the Shares on
the National Association of Securities Dealers Automated Quotations National
Market (the "Nasdaq National Market");
(l) to file with the Commission such reports on Form SR as may be
required by Rule 463 under the Securities Act;
(m) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, issuance, execution and delivery
of the Shares, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
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supplements thereto), (iii) incurred in connection with the registration or
qualification of the Shares under the laws of such jurisdictions as the
Representatives may designate (including fees of counsel for the Underwriters
and its disbursements), (iv) in connection with the listing of the Shares on the
Nasdaq National Market, (v) related to the filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc. (including the
reasonable fees and disbursements of counsel for the Underwriters), (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors, (viii) the cost of preparing
stock certificates and (ix) the cost and charges of any transfer agent and any
registrar;
(n) as soon as practicable after the Closing Date, the Company
will take all necessary action to elect two additional independent directors to
its Board of Directors; and
(o) the Company and its subsidiaries will comply with all of
their respective covenants under the Acquisition Agreements.
7. Each of the Selling Stockholders covenants and agrees with the
several Underwriters as follows :
(a) for a period of 360 days after the date of the initial public
offering of the Shares not to offer, sell, contract to sell or otherwise dispose
of any shares of Stock of the Company or any securities convertible into or
exercisable or exchangeable for shares of Stock of the Company without the prior
written consent of J.P. Morgan Securities Inc., other than the Shares to be sold
hereunder and other than Shares acquired pursuant to the Acquisition Agreements
and distributed to designees in accordance with and pursuant to the Acquisition
Agreements who agree in writing to be subject to the restrictions contained in
this Section 7(a).
8. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, are subject to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) the Registration Statement shall have become effective (or if
a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment
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shall have become effective) not later than 5:00 P.M., New York City time, on
the date hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in effect, and
no proceedings for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with Section
6(a) hereof; and all requests for additional information shall have been
complied with to the reasonable satisfaction of the Representatives;
(b) the representations and warranties of the Company and the
Selling Stockholders contained herein are true and correct on and as of the
Closing Date or the Additional Closing Date, as the case may be, as if made on
and as of the Closing Date or the Additional Closing Date, as the case may be,
and each of the Company and the Selling Stockholders shall have complied with
all agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date or the Additional Closing Date, as
the case may be;
(c) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or to the Company's knowledge, any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus, the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the Closing Date or the Additional
Closing Date, as the case may be, on the terms and in the manner contemplated in
the Prospectus; and neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(d) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate
of an executive officer of the Company, with specific knowledge about the
Company's financial matters, reasonably satisfactory to the Representatives to
the effect set forth in subsections (a) and (b) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of this
Section and to the further effect that there has not occurred any material
adverse change, or to his
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knowledge, any development involving a prospective material adverse change, in
or affecting the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of J. Brian O'Neill or Michael C. Boyd, as Attorney-
in-Fact for the Selling Stockholders, to the effect that the representations and
warranties of each of the Selling Stockholders contained herein are true and
correct on and as of the Closing Date as if made on and as of the Closing Date
and each of the Selling Stockholders shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(f) the Acquisitions shall have been consummated pursuant to the
Acquisition Agreements and as described in the Registration Statement;
(g) Morgan Lewis & Bockius LLP, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with corporate power and authority to own its
properties and conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified and in good
standing would not have a material adverse effect on
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<PAGE>
the Company and its subsidiaries taken as a whole; and all of the outstanding
shares of capital stock of each subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims;
(iv) To such counsel's knowledge, other than as set forth or
contemplated in the Prospectus, there are no material legal or governmental
investigations, actions, suits or proceedings pending or, to such counsel's
knowledge, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the Company or
any of its subsidiaries is or may be a party or to which any property of the
Company or its subsidiaries is or may be the subject; to such counsel's
knowledge, no such proceedings are threatened by governmental authorities or
threatened by others; and such counsel does not know of any statutes,
regulations, contracts or other documents of a character that are required to be
described in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement to the Company,
except as enforcement thereof may be limited by fraudulent conveyance,
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles and except as
rights to indemnity and contribution hereunder may be limited by applicable law;
(vi) the authorized capital stock of the Company conforms
in all material respects as to legal matters to the description thereof
contained in the Prospectus;
(vii) the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be sold by the Company, including the
Stock issued in the Acquisitions, have been duly authorized and are validly
issued, fully paid and non-assessable;
(viii) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when delivered to and paid for the
Underwriters in accordance with the terms of this Agreement, will be validly
issued, fully paid and
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<PAGE>
non-assessable and the issuance of the Shares is not subject to any preemptive
or similar rights;
(ix) the statements in the Prospectus under "TeleSpectrum
Facilities," "Legal Proceedings", "Certain Relationships and Related Party
Transactions", and "Description of Capital Stock," and in the Registration
Statement in Items 14 and 15, insofar as such statements constitute a summary of
the terms of the Stock, legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such terms,
legal matters, documents or proceedings;
(x) the Registration Statement and the Prospectus and any
amendments and supplements thereto (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act;
(xi) the issue and sale of the Shares being delivered on the
Closing Date or the Additional Closing Date, as the case may be, and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any violation
of
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<PAGE>
the provisions of the Certificate of Incorporation or the By-Laws of the Company
or any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties;
(xii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Shares or the consummation of the
other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(xiii) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xiv) To such counsel's knowledge, each of the Company and
its subsidiaries is in compliance, in all material respects, with all laws and
regulations relating to the conduct of its business as conducted as of the date
of the Prospectus;
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<PAGE>
(xv) except as set forth in the Prospectus, there are no
restrictions upon the voting or transfer of, any shares of Stock pursuant to the
Company's Certificate of Incorporation or By-laws or any agreement or other
instrument known to such counsel to which the Company is a party or by which the
Company is bound;
(xvi) the Registration Statement was declared effective
under the Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission in the manner and within the time
period required by Rule 424(b) and no stop order suspending the effectiveness of
the Registration Statement has been issued and, to the best knowledge
of such counsel, no proceeding for that purpose is pending or threatened by the
Commission;
(xvii) except as set forth in the Prospectus, to the best of
such counsel's knowledge, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Securities Act;
(xviii) the Acquisitions have been consummated
pursuant to the Acquisition Agreements and as described in the Registration
Statement; and
(xix) the offer and sale of the shares of Stock in the
Acquisitions, and all other offers and sales of securities by the Company on or
prior to the Closing Date, are exempt from the registration requirements of
Section 5 of the Securities Act and are exempt from registration under all
applicable state securities laws or Blue Sky Laws.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Delaware and
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<PAGE>
Pennsylvania, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the applicable
laws; (B) as to matters involving the Operating Businesses, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of counsel to the Operating Businesses; and (C) as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. The opinion of such counsel
for the Company shall state that the opinion of any such other counsel upon
which they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
In addition, such counsel shall indicate that it has participated in
conferences with representatives of the Underwriters, officers and
representatives of the Company and representatives of the independent certified
public accountants of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and, although such counsel does not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, on the basis of the
foregoing, no facts have come to such counsel's attention which cause such
counsel to believe that the Registration Statement at the effective date thereof
and the Closing Date and any Option Closing Date contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or the
Prospectus, as amended or supplemented, if applicable, and on the Closing Date
and any Option Closing Date, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statement therein, in light
of the circumstances under which they were made, not misleading; provided, that
we do not express any comment with respect to the financial statements, the
notes thereto, the related schedules or any other financial or statistical
information contained in the Registration Statement or the Prospectus.
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The opinion of Morgan Lewis & Bockius LLP described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(h) _____________________, special counsel for NBG Services, Inc.
as a Selling Stockholder, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) this Agreement and the Power of Attorney and Custody
Agreement have been duly authorized, executed and delivered by such Selling
Stockholder; and
(ii) to the best of its knowledge and information, such
Selling Stockholder has good and marketable title to the Shares to be sold by
such Selling Stockholder hereunder and full power, right and authority to sell
such Shares, and upon the delivery of and payment for the Shares as herein
contemplated, each of the Underwriters will receive good and marketable title to
the Shares purchased by it from such Selling Stockholder, free and clear of any
mortgage, pledge, lien, security interest, encumbrance, claim or equity. In
rendering such opinion, counsel may assume that the Underwriters are without
notice of any defect in the title of such Selling Stockholder to the Shares
being purchased from such Selling Stockholder.
(i) Smith Helms Mulliss & Moore, L.L.P., special counsel for
SOMAR, Inc. as a Selling Stockholder, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) this Agreement and the Power of Attorney and Custody
Agreement have been duly authorized, executed and delivered by such Selling
Stockholder; and
(ii) Assuming that the Underwriters are purchasers in good
faith for value without knowledge or notice of any adverse claim (other than as
may be created by this Agreement or the Power of Attorney and Transfer Agreement
or any lien or restriction on transfer of the Shares to be sold by such Selling
Stockholder, upon closing of the Acquisition, such Selling Stockholder will have
good and marketable title to the Shares to be sold by such Selling Stockholder
hereunder and full power, right and authority to sell such Shares, and upon the
delivery of and payment for the Shares as herein contemplated (and as directed
in the Power of Attorney and Transfer Agreement), each of the Underwriters will
receive good and marketable, title to the Shares purchased by it from the
Selling Stockholder, free and clear of any mortgage, pledge, lien, security
interest,
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encumbrance, claim or equity.
(j) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing Date,
as the case may be, Arthur Anderson LLP shall have furnished to you letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information with
respect to the Company and its subsidiaries, the Sellers and the Operating
Businesses, contained in the Registration Statement and the Prospectus;
(k) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion of
Pepper, Hamilton & Scheetz, counsel to the Underwriters, with respect to the due
authorization and valid issuance of the Shares, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(l) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for quotation on The
Nasdaq National Market, subject to official notice of issuance;
(m) on or prior to the Closing Date or Additional Closing Date,
as the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives shall reasonably
request;
(n) The "lock-up" agreements, each substantially in the form of
Exhibit B hereto, between you, all holders of securities of the Company prior to
the Effective Date of the Registration Statement (including securities issued in
or in connection with the Acquisitions, holders of the CRW Lender Warrants and
holders of the CRW Management Warrants (each as defined in the Prospectus)), all
officers and directors of the Company relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the Closing Date
or Additional Closing Date, as the case may be; and
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(o) all transactions contemplated by the Acquisition Agreements
shall have been consummated on or prior to the Closing Date.
The several obligations of the Underwriters to purchase Option shares
hereunder are subject to satisfaction of the conditions set forth in paragraphs
(a) - (n) above on and as of the Additional Closing Date, except that the
certificate called for by paragraph (d) above, the opinions called for by
paragraphs (f), (g), (h) and (j) above and the comfort letter called for by
paragraph (i) above shall be dated the Additional Closing Date.
9. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use
therein; provided, however, that neither the Company nor a Selling Stockholder
shall be liable to any Underwriter under this Section 9 to the extent that any
such loss, claim, damage or liability results solely from an untrue statement of
a material fact contained in, or the omission of a material fact from, a
preliminary prospectus if (i) such untrue statement or omission was completely
corrected in the applicable Prospectus prior to the written confirmation of the
sale of the Shares giving rise to such liability, (ii) such Underwriter sold
Shares to the person alleging such loss, claim, damage or liability without
sending or giving the applicable Prospectus at or prior to the written
confirmation of the sale of the Shares giving rise to such liability, (iii) the
Company had furnished copies of the applicable Prospectus to such Underwriter
prior to the written confirmation of the sale of the Shares giving rise to such
liability and (iv) such Underwriter would not have been subject to such
liability if it had delivered the applicable Prospectus to such person at or
prior to the written confirmation of such sale.
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Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, by only with reference
to information relating such Selling Stockholder furnished to the Company by
such Selling Stockholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus, and any amendment or supplement thereto,
and subject to the last paragraph of this Section 9.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and the Selling
Stockholders to the same extent as the foregoing indemnity from the Company and
the Selling Stockholders to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be
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reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by J.P.
Morgan Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first, second and third
paragraphs of this Section 9 is unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Selling Stockholders and the Underwriters,
respectively, from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Selling Stockholders and
the Underwriters, respectively, in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders and the Underwriters, respectively, shall be
deemed to be in the same respective proportions as the
-28-
<PAGE>
net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders and the total underwriting discounts and
the commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public offering
price of the Shares. The relative fault of the Company, the Selling Stockholders
and the Underwriters, respectively, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
--- ----
one entity for such purposes) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation
-29-
<PAGE>
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or any
other person controlling the Company or the Selling Stockholders and (iii)
acceptance of and payment for any of the Shares.
The rights of SOMAR, Inc. as a Selling Stockholder under this Section
9 shall be in addition to any rights to indemnification by the Company under
Section 20(f) of that certain Asset Purchase Agreement by and among SOMAR, Inc.,
Richard W. Virtue, CRW Financial, Inc. and the Company, dated as of April 26,
1996, as amended and restated as of May 21, 1996.
Notwithstanding any provision of this Section 9 to the contrary, the
liability of each Selling Stockholder under this Section 9 shall not exceed the
purchase price received by such Selling Stockholder from the Underwriters for
the Shares sold by such Selling Stockholder.
10. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company and the Selling Stockholders, if after the execution and delivery
of this Agreement and prior to the Closing Date (or, in the case of the Option
Shares, prior to the Additional Closing Date) (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the reasonable judgment of the Representatives, is material and adverse
and which, in the reasonable judgment of the Representatives, makes it
impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
11. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall
-30-
<PAGE>
fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Shares set forth opposite their respective names in Schedule I bears
to the aggregate number of Underwritten Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any
--------
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 11 by an amount in excess of one-ninth of such number of Shares
without the written consent of such Underwriter. If on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date, and arrangements satisfactory to the Representatives,
the Company and the Selling Stockholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement (or the obligations of
the several Underwriters to purchase the Option Shares, as the case may be)
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders. In any such case either you or the
Company shall have the right to postpone the Closing Date (or, in the case of
the Option Shares, the Additional Closing Date), but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
12. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or the Selling
Stockholders shall be unable to perform their obligations under this Agreement
or any condition of the Underwriters' obligations cannot be fulfilled, the
Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the reasonable fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
-31-
<PAGE>
13. This Agreement shall inure to the benefit of and be binding upon
the Company, the Selling Stockholders, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
14. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by J.P. Morgan Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
J.P. Morgan Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o J.P. Morgan Securities Inc., 60 Wall Street, New York, New
York 10260 (telefax:______); Attention: Syndicate Department. Notices to the
Company shall be given to it at 443 South Gulph Road, King of Prussia,
Pennsylvania 19506; Attention: J. Brian O'Neill, Chairman and Chief Executive
Officer. Notices to SOMAR shall be given to it at 118 South Main Street,
Salisbury, North Carolina 28144 (telefax:704-647-0154); Attention: Gregory M.
Alcorn with a copy to J. Brian O'Neill and Michael C. Boyd at the address set
forth above. Notices to NBG Services, Inc. shall be given to it at
_________________, _____________, (telefax:___________);
Attention:_____________.
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
-32-
<PAGE>
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
If the foregoing is in accordance with your understanding, please sign
and return seven counterparts hereof.
Very truly yours,
TELESPECTRUM WORLDWIDE INC.
By:_______________________________
Title:
SOMAR, INC.
By:______________________________
Attorney-in-Fact
[EXECUTIONS CONTINUED]
-33-
<PAGE>
NBG SERVICES, INC.
By:______________________________
Attorney-in-Fact
Accepted:_________, 1996
J.P. Morgan Securities Inc.
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: J.P. Morgan Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:________________________________
Title:
-34-
<PAGE>
SCHEDULE I
Number of Shares
To Be Purchased
----------------
Underwriter
- -----------
J.P. Morgan Securities Inc....................
Dillon, Read & Co. Inc........................
Legg Mason Wood Walker, Incorporated......
The Robinson-Humphrey Company, Inc............
Total ================
-35-
<PAGE>
RESTATED CERTIFICATE OF INCORPORATIION
OF
CRW ACQUISITION CORP.
CRW Acquisition Corp., a Delaware corporation, the original Certificate of
Incorporation of which was filed with the Secretary of State of the State of
Delaware on April 29, 1996, HEREBY CERTIFIES that this Restated Certificate of
Incorporation restating, integrating, and amending its certificate of
Incorporation was duly proposed by its Board of Directors and adopted by its
stockholders in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware (the "GCL").
1. Corporate Name. The name of the corporation shall be
---------------
TeleSpectrum Worldwide Inc.
2. Registered Office. The address of the corporation registered
------------------
office is 1209 Orange Street, in the City of Wilmington, County of New Castle.
the name of its registered agent at such address is The Corporation Trust
Company.
3. Corporate Purpose. The nature of the business or purposes to be
------------------
conducted or promoted is to engage in any lawful act or activity for which
corporations may be organized under the GCL.
4. Capital Stock.
--------------
A. Authorized Shares. The total number of shares of all classes
-----------------
of stock which the corporation shall have the authority to issue is 205,000,000
of which 200,000,000 sharess are Common Stock, $.01 par value, and 5,000,000
shares are Preferred Stock, $.01 par value.
B. Authority of Board to Fix Terms of Preferred Stock. The Board
---------------------------------------------------
of Directors of the corporation is hereby expressly authorized at any time and
from time to time to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such class
or series such voting powers, full or limited, or no voting powers, and such
distinctive designations, preferences and relative, participating, optional or
other special rights and such qulifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such class or
series and to the fullest extent as may now or hereafter be permitted by the
GCL. including, without limiting the generality of the foregoing, the authority
to provide that any such class or series may be: (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative at such
<PAGE>
rates, on such conditions, and at such times, and payable in preference to, or
in such relation to, the dividends payable on any other class or classes or any
other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, or other securities
or property, of the corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution or
resolutions. Unless otherwise provided in such resolution or resolutions,
shares of Preferred Stock of such class or series which shall be issued and
thereafter acquired by the corporation through purchase, redemption, exchange,
conversion or otherwise shall return to the status of authorized but unissued
and undesignated Preferred Stock.
5. Bylaws. The Board of Directors is expressly authorized from
-------
time to time to make, alter or repeal the bylaws of the corporation.
6. Board of Directors.
-------------------
A. Responsibilities. The business and affairs of the Corporation
-----------------
shall be managed under the direction of the Board of Directors.
B. Number. The Board of Directors may increase or decrease the
-------
number of directors by the affirmative vote of one-half of the entire Board of
Directors.
C. Elections of Directors. Elections of directors need not be by
-----------------------
written ballot unless the bylaws of the Corporation shall so provide.
D. Nominations for Directors. Only persons who are nominated in
--------------------------
accordance with the procedures established in the bylaws shall be eligible for
election as directors.
E. Vacancies. Vacancies and newly created directorships may be
----------
filled by the Board of Directors.
7. Indemnification.
----------------
A. The corporation shall indemnify to the fullest extent permitted
under and in accordance with the GCL, as it exists as the date hereof or as it
may hereafter be amended, any person who was or is a party to (or witness in) or
is threatened to be made a party to (or witness in) any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has agreed to become a
director or officer of the corporation, or is or was a director or officer of
the corporation serving (or who has agreed to serve) at the request of the
corporation as a director, officer, trustee, employee or agent of or in any
other capacity with respect to another corporation, partnership, joint venture,
trust or other enterprise (in any of the foregoing capacities, a
2
<PAGE>
"Representative of the corporation"), or by reason of any action alleged to have
been taken or omitted in such capacity, and may indemnify to the same extent any
person who was or is a party to (or witness in) or is threatened to be made a
party to (or witness in) any such action, suit or proceeding by reason of the
fact that he is or was or has agreed to become an employee or agent of the
corporation, or is or was an employee or agent of the corporation serving (or
who has agreed to serve) at the request of the corporation as a Representative
of the corporation, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
B. Expenses (including attorney fees) incurred in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director or
officer of the corporation) or may (in the case of any action, suit or
proceeding against an employee, agent or Representative of the corporation) be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article.
C. The indemnification and other rights set forth in this Article
shall not be exclusive of any provisions with respect thereto in the bylaws or
any other contract or agreement between the corporation and any officer,
director, employee or agent or Representative of the corporation, and shall
inure to the benefit of the estate or personal representative of any person
indemnified hereunder.
D. Neither the amendment nor repeal of Section A, B, or C of this
Article nor the adoption of any provision of this Restated Certificate of
Incorporation inconsistent with such Section A, B or C shall eliminate or reduce
the effect of Sections A, B and C of this Article in respect of any matter
arising or relating to any actions or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision or in respect of any
cause of action, suit or claim relating to any such matter that would have given
rise to a right of indemnification or right to receive payments of expenses
pursuant to Section A, B or C of this Article if such provision had not been so
amended or repealed or if a provision inconsistent therewith had not been so
adopted.
E. No director of the corporation shall be personally liable to the
corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for any matter in respect of which such
director (a) shall be liable under Section 174 of the GCL or any amendment
thereof or successor provision thereto, or (b) shall be liable because, in
addition to any and all other requirements for liability, he:
3
<PAGE>
(1) shall have breached his duty of loyalty to the corporation
or its stockholders;
(2) shall not have acted in good faith or, in failing to act,
shall have failed so to act not in good faith;
(3) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing violation
of law; or
(4) shall have derived an improper personal benefit.
If the GCL is amended after the date hereof to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the GCL as so amended. Neither the amendment nor
repeal of this Section E nor the adoption of any provision of this Restated
Certificate of Incorporation inconsistent with this Section E shall eliminate or
reduce the effect of this Section E in respect of any matter arising or relating
to any actions or omissions occurring prior to such amendment, repeal or
adoption of an inconsistent provision.
8. Unanimous Consent of Stockholders in Lieu of Meeting. Any action
-----------------------------------------------------
required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of all of the outstanding stock entitled
to vote to take such action at any annual or special meeting of stockholders of
the corporation and shall be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer
or agent of the corporation having custody of the books in which proceedings or
meetings of stockholders are recorded. Every written consent shall bear the date
of signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to unless, within 60
days of the earliest dated consent delivered in the manner required in this
section to the corporation, written consents signed by the holders of all of the
outstanding stock entitled to vote to take such action are delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
9. Amendments. The corporation reserves the right to amend, alter,
----------
change or repeal any provision contained in this certificate of incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
4
<PAGE>
IN WITNESS WHEREOF, CRW Acquisition Corp. has caused this Certificate to be
signed on this 22nd day of May, 1996 in its name and attested by duly authorized
officers.
ATTEST: CRW ACQUISITION CORP.
- ----------------------- By: --------------------
Name: John E. Parker Name: Jonathan P. Robinson
Title: Secretary
<PAGE>
B Y L A W S
OF
TELESPECTRUM WORLDWIDE INC.
(a Delaware corporation)
...oo0oo...
ARTICLE I
Offices and Fiscal Year
SECTION 1.01. Registered Office.--The registered office of the corporation
------------------
shall be in the City of Wilmington, County of New Castle, State of Delaware
until otherwise established by resolution of the board of directors, and a
certificate certifying the change is filed in the manner provided by statute.
SECTION 1.02. Other Offices.--The corporation may also have offices at
--------------
such other places within or without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
requires.
SECTION 1.03. Fiscal Year.--The fiscal year of the corporation shall end
------------
on the 31st of December in each year.
ARTICLE II
Notice - Waivers - Meetings
SECTION 2.01. Notice, What Constitutes.--Whenever, under the provisions of
-------------------------
the Delaware General Corporation Law ("GCL") or the certificate of incorporation
or of these bylaws, notice is required to be given to any director or
stockholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail or courier or overnight delivery service or
express mail, charges prepaid, or by facsimile transmission to the address (or
to the facsimile telephone number) of the person appearing on the books of the
corporation, or in the case of directors, supplied to the corporation for the
purpose of notice. If the notice is sent by mail or courier service, it shall
be deemed to be given when deposited in the United States mail or with a courier
or overnight delivery service for delivery to that person or, in the case of
facsimile transmission, when received.
SECTION 2.02. Notice of Meetings of Board of Directors.--Notice of a
-----------------------------------------
regular meeting of the board of directors need not be given. Notice of every
special meeting of
<PAGE>
the board of directors shall be given to each director by telephone or in
writing at least 24 hours (in the case of notice by telephone or facsimile
transmission) or 48 hours (in the case of notice by telegraph, courier service
or overnight delivery service express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
board need be specified in a notice of the meeting.
SECTION 2.03. Notice of Meetings of Stockholders.--Written notice of the
-----------------------------------
place, date and hour of every meeting of the stockholders, whether annual or
special, shall be given to each stockholder of record entitled to vote at the
meeting not less than ten nor more than 60 days before the date of the meeting.
Every notice of a special meeting shall state the purpose or purposes thereof.
If the notice is sent by mail, it shall be deemed to have been given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at the address of the stock holder as it appears on the records of
the corporation.
SECTION 2.04. Waivers of Notice.
------------------
(a) Written Waiver.--Whenever notice is required to be given, under any
--------------
provision of the GCL or of the certificate of incorporation or these bylaws, a
written waiver, signed by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice of such meeting.
(b) Waiver by Attendance.--Attendance of a person at a meeting, either in
--------------------
person or by proxy, shall constitute a waiver of notice of such meeting, except
where a person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened.
SECTION 2.05. Exception to Requirements of Notice.
-----------------------------------
(a) General Rule.--Whenever notice is required to be given, under any
provision of the GCL or of the certificate of incorporation or these bylaws, to
any person with whom communication is unlawful, the giving of such notice to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given.
(b) Stockholders Without Forwarding Addresses.--Whenever notice is
------------------------------------------
required to be given, under any provision of the GCL or the certificate of
incorporation or these bylaws, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such
2
<PAGE>
person during the period between such two consecutive annual meetings, or (ii)
all, and at least two, payments (if sent by first class mail) of dividends or
interest on securities during a 12 month period, have been mailed addressed to
such person at his address as shown on the records of the corporation and have
been returned undeliverable, the giving of such notice to such person shall not
be required. Any action or meeting which shall be taken or held without notice
to such person shall have the same force and effect as if such notice setting
forth the person's then current address, the requirement that notice be given to
such person shall be reinstated.
ARTICLE III
Meetings of Stockholders
SECTION 3.01. Place of Meeting.--All meetings of the stockholders of the
-----------------
corporation shall be held at the registered office of the corporation, or at
such other place within or without the State of Delaware as shall be designated
by the board of directors in the notice of such meeting.
SECTION 3.02. Annual Meeting.--The board of directors may fix and
---------------
designate the date and time of the annual meeting of the stockholders, but if no
such date and time is fixed and designated by the board, the meeting fora ny
calendar year commencing in 1997 shall be held on the first Tuesday in May in
such year, if not a legal holiday under the laws of Delaware, and, if a legal
holiday, then on the next succeeding business day, not a Saturday, at 10:00
o'clock A.M., and at said meeting the stockholders then entitled to vote shall
elect directors and shall transact such other business as may properly be
brought before the meeting.
SECTION 3.03. Special Meetings.--Special meetings of the stockholders of
-----------------
the corporation may be called at any time by the chairman of the board, a
majority of the board of directors or the president. At any time, upon the
written request of any person or persons who have duly called a special meeting,
which written request shall state the purpose or purposes of the meeting, it
shall be the duty of the secretary to fix the date of the meeting which shall be
held at such date and time as the secretary may fix, not less than ten nor more
than 60 days after the receipt of the request, and to give due notice thereof.
If the secretary shall neglect or refuse to fix the time and date of such
meeting and give notice thereof, the person or persons calling the meeting may
do so.
SECTION 3.04. Quorum, Manner of Acting and Adjournment.
-----------------------------------------
(a) Quorum.--The holders of a majority of the shares entitled to vote,
-------
present in person or represented by proxy, shall constitute a quorum at all
meetings of the
3
<PAGE>
stockholders except as otherwise provided by the GCL, by the certificate of
incorporation or by these bylaws. If a quorum is not present or represented
at any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At any such adjourned meeting
at which a quorum is present or represented, the corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
(b) Manner of Acting.--Directors shall be elected by a plurality of the
-----------------
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all matters other than the
election of directors, the affirmative vote of the majority of shares present
in person or represented by proxy at the meeting and entitled to vote thereon
shall be the act of the stockholders, unless the question is one upon which, by
express provision of the applicable statute, the certificate of incorporation or
these bylaws, a different vote is required, in which case such express provision
shall govern and control the decision of the question. The stockholders present
in person or by proxy at a duly organized meeting can continue to do business
until adjournment, notwithstanding withdrawal of enough stockholders to leave
less than a quorum.
(c) Stockholder Proposals.--Nominations by stockholders of persons for
---------------------
election to the board of directors of the corporation may be made at an annual
meeting in compliance with Section 4.14 hereof. The proposal of other business
to be considered by the stockholders at an annual meeting of stockholders may be
made (i) pursuant to the corporation's notice of meeting, (ii) by or at the
direction of the board of directors, or (iii) by any stockholder of the
corporation pursuant to timely notice in writing to the secretary of the
corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the corporation not
less than 60 days prior to the meeting; provided, however, that in the event
-------- -------
that less than 75 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 15th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice to the secretary
shall set forth (a) as to the stockholder giving notice and the beneficial
owner, if any on whose behalf the proposal if made, (i) their name and record
address, and (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by each of them, and (b) a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder giving notice and the beneficial owner, if
any, on whose behalf the proposal is made. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting.
4
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Only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this section.
SECTION 3.05. Organization.--At every meeting of the stockholders, the
-------------
chairman of the board, if there be one, [or in the case of a vacancy in the
office or absence of the chairman of the board, one of the following persons
present in the order stated: the vice chairman, if one has been appointed, the
president, the vice presidents in their order of rank or seniority, a chairman
designated by the board of directors or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast], shall act as chairman, and the
secretary, or, in the absence of the secretary, an assistant secretary, [or in
the absence of the secretary and the assistant secretaries, a person appointed
by the chairman] shall act as secretary.
SECTION 3.06. Voting.
-------
(a) General Rule.--Unless otherwise provided in the certificate of
-------------
incorporation, each stockholder shall be entitled to one vote, in person or by
proxy, for each share of capital stock having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy.
---------------------------------
(1) A stockholder may execute a writing authorizing another person
or persons to act for the stockholder as proxy. Such execution may be
accomplished by the stockholder or the authorized officer, director,
employee or agent of the stockholder signing such writing or causing his or
her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature. A stockholder may
authorize another person or persons to act for the stockholder as proxy by
transmitting or authorizing the transmission of a facsimile or other means
of electronic transmission to the person who will be the holder of the
proxy or to proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the
proxy to receive such transmission if such facsimile or other means of
electronic transmission sets forth or is submitted with information from
which it can be determined that the facsimile or other electronic
transmission was authorized by the stockholder.
(2) No proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(3) A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only so long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation
generally.
5
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SECTION 3.07. Consent of Stockholders in Lieu of Meeting.--Any action
-------------------------------------------
required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of all of the outstanding stock entitled
to vote with respect to such action at any annual or special meeting of
stockholders of the corporation and shall be delivered to the corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated consent delivered in the
manner required in this section to the corporation, written consents signed by a
sufficient number of holders to take action are delivered to the corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded.
SECTION 3.08. Voting Lists.--The officer who has charge of the stock
-------------
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting. The list shall be arranged in alphabetical order, showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 3.09. Inspectors of Election.
-----------------------
(a) Appointment.--All elections of directors shall be by written ballot,
-----------
unless otherwise provided in the certificate of incorporation; the vote upon any
other matter need not be by ballot. In advance of any meeting of stockholders
the board of directors may appoint one or more inspectors, who need not be
stockholders, to act at the meeting and to make a written report thereof. The
board of directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the person's best ability.
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<PAGE>
(b) Duties.--The inspectors shall ascertain the number of shares
-------
outstanding and the voting power of each, shall determine the shares represented
at the meeting and the validity of proxies and ballots, shall count all votes
and ballots, shall determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
shall certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) Polls. The date and time of the opening and the closing of the polls
------
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) Reconciliation of Proxies and Ballots.--In determining the validity
--------------------------------------
and counting of proxies and ballots, the inspectors shall be limited to an
examination of the proxies, any envelopes submitted with those proxies, ballots
and the regular books and records of the corporation, except that the inspectors
may consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b) shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
ARTICLE IV
Board of Directors
SECTION 4.01. Powers.--All powers vested by law in the corporation shall
-------
be exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, the board of directors.
SECTION 4.02. Number.--Subject to the provisions of the certificate of
-------
incorporation, the board of directors shall consist of such number of directors
as may be determined from time to time by resolution adopted by a vote of a
majority of the entire board of directors; provided, however, that so long as
the corporation has only one stockholder, the board of directors may consist of
as few as one director.
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SECTION 4.03. Term of Office. Directors of the corporation shall hold
---------------
office until the next annual meeting of stockholders and until their
successors shall have been elected and qualified, except in the event of death,
resignation or removal.
SECTION 4.04. Vacancies.
----------
(a) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until the next annual
election of directors and until a successor is duly elected and qualified. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
(b) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
(c) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the entire board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorship, or
to replace the directors chosen by the directors then in office.
SECTION 4.05. Resignations.--Any director may resign at any time upon
-------------
written notice to the chairman, president or secretary of the corporation. The
resignation shall be effective upon receipt thereof by the corporation or at
such subsequent time as shall be specified in the notice of resignation and,
unless otherwise specified in the notice, the acceptance of the resignation
shall not be necessary to make it effective.
SECTION 4.06. Organization.--At every meeting of the board of directors,
------------
the chairman of the board, if there be one [or, in the case of a vacancy in the
office or absence of the chairman of the board, one of the following officers
present in the order stated: the vice chairman of the board, if there be one,
the president, the vice presidents in their order of rank and seniority, or a
chairman chosen by a majority of the directors present], shall preside, and the
secretary [or, in the absence of the secretary, an assistant secretary, or in
the absence of the secretary and the assistant secretaries, any person appointed
by the chairman of the meeting] shall act as secretary.
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<PAGE>
SECTION 4.07. Place of Meeting.--Meetings of the board of directors shall
-----------------
be held at such place within or without the State of Delaware as the board of
directors may from time to time determine, or as may be designated in the notice
of the meeting.
SECTION 4.08. Regular Meetings.--Regular Meetings of the board of
-----------------
directors shall be held without notice at such time and place as shall be
designated from time to time by resolution of the board of directors.
SECTION 4.09. Special Meetings.--Special meetings of the board of
-----------------
directors shall be held whenever called by the president or by two or more of
the directors.
SECTION 4.10. Conference Telephone Meetings.--One or more directors may
------------------------------
participate in a meeting of the board, or of a committee of the board, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting.
SECTION 4.11. Quorum, Manner of Acting and Adjournment.
-----------------------------------------
(a) General Rule.--At all meetings of the board, one-third of the total
-------------
number of directors shall constitute a quorum for the transaction of business.
The vote of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the board of directors, except as may be
otherwise specifically provided by the GCL or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present.
(b) Unanimous Written Consent.--Unless otherwise restricted by the
-------------------------
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting, if all
members of the board consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board.
SECTION 4.12. Executive and Other Committees.
-------------------------------
(a) Establishment.--The board of directors may, by resolution adopted by a
-------------
majority of the whole board, establish an Executive Committee and one or more
other committees, each committee to consist of one or more directors. The board
may designate one or more directors as alternate members of any committee. In
the absence or disqualification of a member of a committee and the alternate or
alternates, if any, designated for such member, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not they constitute a quorum, may unanimously appoint another director to act
at the meeting in the place of any such absent or disqualified member.
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<PAGE>
(b) Powers.--The Executive Committee, if established, and any such other
-------
committee to the extent provided in the resolution establishing such committee
shall have and may exercise all the power and authority of the board of
directors in the management of the business and affairs of the corporation and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) of GCL, fix the designation and any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of such
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation or fix the number of shares
of any stock or authorize the increase or decrease of shares of any series),
adopting an agreement of merger or consolidation under Section 251 or 252 of the
GCL, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation. The Executive Committee shall have
the power or authority to declare a dividend, to authorize the issuance of stock
and to adopt a certificate of ownership and merger pursuant to Section 253 of
the GCL. Any such committee or committees established by the board of directors
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee so formed shall
keep regular minutes of its meetings and report the same to the board of
directors when required.
(c) Committee Procedures.--The term "board of directors" or "board," when
--------------------
used in any provision of these bylaws relating to the organization or procedures
of or the manner of taking action by the board of directors, shall be construed
to include and refer to the Executive Committee or other committee of the board,
as and if applicable.
SECTION 4.13. Compensation of Directors.--Unless otherwise restricted
--------------------------
by the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 4.14. Qualifications and Election of Directors.
-----------------------------------------
(a) All directors of the corporation shall be natural persons of full age,
but need not be residents of Delaware or stockholders of the corporation.
Except in the case of vacancies, directors shall be elected by the stockholders.
No person who has reached
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<PAGE>
70 years of age may be elected or appointed to a term of office as a director of
the corporation. The term of office of any director elected or appointed in
conformity with the preceding sentence shall continue (to the extent provided in
the certificate of incorporation and these bylaws) after such director reaches
70 years of age.
(b) Nominations of persons for election to the board of directors of
the corporation may be made at a meeting of stockholders by or at the direction
of the board of directors.
(c) Nominations of persons for election to the board of directors of
the corporation may also be made by any stockholder of the corporation entitled
to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 4.14 (c) and (d). Such nominations,
other than those made by or at the direction of the board, shall be made
pursuant to timely notice in writing to the secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 60 days prior
to the meeting; provided, however, that in the event that less than 75 days'
-------- -------
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was
made. Such stockholder's notice to the secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the corporation which are
beneficially owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the rules and regulations promulgated under
the Securities Exchange Act of 1934 as amended; and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class and number of shares of capital stock of the corporation which are
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as a
director of the corporation. No person shall be eligible for election as a
director by the stockholders of the corporation unless nominated in accordance
with the procedures set forth herein.
(d) The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that any nomination made at the meeting was
not made in accordance with the foregoing procedures and, in such event, the
nomination shall be disregarded. Any decision by the chairman of the meeting
shall be conclusive and binding upon all stockholders of the corporation for any
purpose.
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<PAGE>
ARTICLE V
Officers
SECTION 5.01. Number, Qualifications and Designation.--The officers of the
---------------------------------------
corporation shall be chosen by the board of directors and shall be a chief
executive officer, a president, one or more vice presidents, a secretary, a
treasurer, and such other officers as may be elected in accordance with the
provisions of Section 5.03 of this Article. Any number of offices may be held
by the same person. Officers may, but need not, be directors or stockholders of
the corporation. The board of directors may elect from among the members of the
board a chairman of the board and a vice chairman of the board who shall not be
officers of the corporation unless the board of directors determines by
resolution that the chairman and/or the vice chairman shall be officers of the
corporation. The chairman of the board or the president, as designated from
time to time by the board of directors, shall be the chief executive officer of
the corporation. If the chairman of the board is designated by the board of
directors as the chief executive officer of the corporation, then the chairman
of the board shall be an officer of the corporation without any separate
resolution of the board specifically designating the chairman as an officer.
SECTION 5.02. Election and Term of Office.--The officers of the
----------------------------
corporation, except those elected by delegated authority pursuant to Section
5.03 of this Article, shall be elected annually by the board of directors, and
each such officer shall hold office for a term of one year and until a successor
is elected and qualified, or until his or her earlier resignation or removal.
Any officer may resign at any time upon written notice to the corporation.
SECTION 5.03. Subordinate Officers, Committees and Agents.--The board of
--------------------------------------------
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these bylaws, or as the board of directors may from
time to time determine. The board of directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinated officers, committees, employees and other
agents.
SECTION 5.04. The Chairman and Vice Chairman of the Board.--The chairman
--------------------------------------------
of the board, if there be one, or in the absence of the chairman, the vice
chairman of the board, if there be one, shall preside at all meetings of the
stockholders and of the board of directors, and shall perform such other duties
as may from time to time be assigned to such persons by the board of directors.
SECTION 5.05. The Chief Executive Officer.--The chief executive officer
----------------------------
shall have general supervision over the business and operations of the
corporation, subject, however, to the control of the board of directors. The
chief executive officer shall, in
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<PAGE>
general, perform all duties incident to the office of chief executive officer,
and such other duties from time to time may be assigned by the board of
directors and, if the chairman of the board is the chief executive officer, the
chairman of the board.
SECTION 5.06. The President.--The president shall have general supervision
--------------
over the business and operations of the corporation, subject, however, to the
control of the chief executive officer and the board of directors. The president
shall, in general, perform all duties incident to the office of president, and
such other duties as from time to time may be assigned by the chief executive
officer and the board of directors and, if the chairman of the board is the
chief executive officer, the chairman of the board.
SECTION 5.07. The Chief Operating Officer.-The Chief Operating Officer
----------------------------
shall perform the duties of the president in the absence of the president and
such other duties as may from time to time be assigned to them by the board of
directors or by the president.
SECTION 5.08. The Secretary.--The secretary, or an assistant secretary,
--------------
shall attend all meetings of the stockholders and of the board of directors and
shall record the proceedings of the stockholders and of the directors and of
committees of the board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents required to be executed
on behalf of the corporation under its seal; and , in general, shall perform
all duties incident to the office of secretary, and such other duties as may
from time to time be assigned by the board of directors or the president.
SECTION 5.09. The Treasurer.--The treasurer, or an assistant treasurer,
--------------
shall have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; whenever so required by the board of directors, shall render an
account showing his or her transaction as treasurer and the financial condition
of the corporation; and, in general, shall discharge such other duties as may
from time to time be assigned by the board of directors or the president.
SECTION 5.10 Officers' Bonds.--No officer of the corporation need provide
----------------
a bond to guarantee a faithful discharge of the officer's duties unless the
board of directors shall by resolution so require a bond in which event such
officer shall give the corporation a bond (which shall be renewed if and as
required) in such sum and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the duties of office.
SECTION 5.11. Salaries.--The salaries of the officers and agents of the
---------
corporation elected by the board of directors shall be fixed from time to time
by the board of directors.
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SECTION 5.12. Voting of Stock.--Unless otherwise ordered by the board of
---------------
directors, each of the chairman of the board, the president, and the principal
accounting officer (as identified in the corporation's most recent Annual Report
on Form 10-K or other report or legislation statement in which such officer is
required to be identified filed with the United States Securities and Exchange
Commission) shall have full power and authority, on behalf of the corporation,
to attend and to act and vote, in person or by proxy, at any meeting of the
stockholders of any company in which the corporation may hold stock, and at any
such meeting shall possess and may exercise any and all of the rights and powers
incident to the ownership of such stock which, as the owner thereof, the
corporation might have possessed and exercised if present. The board of
directors, by resolution adopted from time to time, may confer like powers upon
any other person or persons.
SECTION 5.13. Endorsement of Securities for Transfer. Each of the
--------------------------------------
chairman of the board, the president, and the principal accounting officer shall
have the power to endorse and deliver for sale, assignment or transfer
certificates for stock, bonds or other securities, registered in the name of or
belonging to the corporation, whether issued by the corporation or by any other
corporation, government, state or municipality or agency thereof; and the board
of directors from time to time may confer like power upon any other officer,
agent or person by resolution adopted from time to time. Every such endorsement
shall be countersigned by the treasurer or an assistant treasurer.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
SECTION 6.01. Form and Issuance.
-----------------
(a) Issuance.--The shares of the corporation shall be represented by
--------
certificates unless the board of directors shall by resolution provide that some
or all of any class or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or vice president, and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary, representing the number of shares
registered in certificate form.
(b) Form and Records.--Stock certificates of the corporation shall be in
----------------
such form as approved by the board of directors. The stock record books and the
blank stock certificate books shall be kept by the secretary or by any agency
designated by the board of directors for that purpose. The stock certificates
of the corporation shall be numbered
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and registered in the stock ledger and transfer books of the corporation as they
are issued.
(c) Signatures.--Any of or all the signatures upon the stock certificates
----------
of the corporation may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been placed upon, any
share certificate shall have ceased to be such officer, transfer agent or
registrar, before the certificate is issued, it may be issued with the same
effect as if the signatory were such officer, transfer agent or registrar at the
date of its issue.
SECTION 6.02. Transfer.--Transfers of shares shall be made on the share
--------
register or transfer books of the corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Delaware Uniform
Commercial Code-Investment Securities.
SECTION 6.03. Lost, Stolen, Destroyed or Mutilated Certificates.--The
-------------------------------------------------
board of directors may direct a new certificate of stock or uncertificated
shares to be issued in place of any certificate theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issuance of a new certificate
or certificates, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or the legal representative of
the owner, to give the corporation a bond sufficient to indemnify against any
claim that may be made against the corporation on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new certificate
or uncertificated shares.
SECTION 6.04. Record Holder of Shares.--The corporation shall be entitled
-----------------------
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
SECTION 6.05 Determination of Stockholders of Record.
---------------------------------------
(a) Meetings of Stockholders.--In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, and which record date shall
not be more than 60 nor less than ten days before the date of such meeting. If
no record date is fixed by the board of directors, the
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<PAGE>
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day immediately
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day immediately preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting.
(b) Consent of Stockholders.--In order that the corporation may
-----------------------
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the board of directors. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board
of directors is required by the GCL, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the books in which proceedings of meetings of stockholders are
recorded. If no record date has been fixed by the board of directors and prior
action by the board of directors is required by the GCL, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
(c) Dividends.--In order that the corporation may determine the
---------
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution relating
thereto.
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<PAGE>
ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
SECTION 7.01. Indemnification of Authorized Representatives in Third
------------------------------------------------------
Party Proceedings.--The corporation shall indemnify any person who was or is an
- -----------------
authorized representative of the corporation, and who was or is a party, or is
threatened to be made a party to any third party proceeding, by reason of the
fact that such person was or is an authorized representative of the corporation,
against expenses, judgments,fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not of itself create a presumption
that the authorized representative did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to, the best
interests of the corporation, and, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
SECTION 7.02. Indemnification of Authorized Representatives in
------------------------------------------------
Corporate Proceedings.--The corporation shall indemnify any person who was or is
- ---------------------
an authorized representative of the corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding, by reason of the fact
that such person was or is an authorized representative of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate proceeding if such person acted
in good faith and in a manner reasonably believed to be in, or not opposed to,
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such corporate proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 7.03. Mandatory Indemnification of Authorized Representatives.--
-------------------------------------------------------
To the extent that an authorized representative or other employee or agent of
the corporation has been successful on the merits or otherwise in defense of any
third party or corporate proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
-17-
<PAGE>
SECTION 7.04. Determination of Entitlement to Indemnification.--Any
-----------------------------------------------
indemnification under Section 7.01, 7.02 or 7.03 of this Article (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the authorized representative
or other employee or agent is proper in the circumstances because such person
has either met the applicable standard of conduct set forth in Section 7.01 or
7.02 or has been successful on the merits or otherwise as set forth in Section
7.03 and that the amount requested has been actually and reasonably
incurred. Such determination shall be made:
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such third party or
corporate proceeding; or
(2) if such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion;
(3) by the stockholders.
SECTION 7.05. Advancing Expenses.--Expenses actually and
------------------
reasonably incurred in defending a third party or corporate proceeding shall be
paid on behalf of an authorized representative by the corporation in advance of
the final disposition of such third party or corporate proceeding upon receipt
of an undertaking by or on behalf of the authorized representative to repay such
amount if it shall ultimately be determined that the authorized representative
is not entitled to be indemnified by the corporation as authorized in this
Article. The financial ability of any authorized representative to make a
repayment contemplated by this Section 7.05 shall not be a prerequisite to the
making of an advance. Expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
SECTION 7.06. Definitions.--For purposes of this Article:
-----------
(1) "authorized representative" shall mean any and all
directors and officers of the corporation and any person designated as
an authorized representative by the board of directors of the
corporation (which may, but need not, include any person serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise);
(2) "corporation" shall include, in addition to the corporation,
the resulting corporation of any consolidation or merger, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or
was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee
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<PAGE>
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued;
(3) "corporate proceeding" shall mean any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor or investigative proceeding by the corporation;
(4) "criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
(5) "expenses" shall include attorneys' fees and disbursements;
(6) "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan;
(7) "not opposed to the best interests of the corporation" shall include
actionS taken in good faith and in a manner the authorized representative
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan;
(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar involvement;
(10) "serving at the request of the corporation" shall include any service
as a director, officer or employee of the corporation which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants, or beneficiaries; and
(11) "third party proceeding" shall mean any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative, other than an action by or in the right of the corporation.
SECTION 7.07. Insurance.--The corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
the person and incurred by the person in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
or the obligation to indemnify such person against such liability under the
provisions of this Article.
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<PAGE>
SECTION 7.08. Scope of Article.--The indemnification of authorized
----------------
representatives and advancement of expenses, as authorized by the preceding
provisions of this Article, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7.09. Reliance on Provisions.--Each person who shall act as an
----------------------
authorized representative of the corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article.
ARTICLE VIII
General Provisions
SECTION 8.01. Corporate Seal.--The corporation shall have a corporate
--------------
seal, which shall have inscribed thereon the name of the corporation, the year
of its organization and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
SECTION 8.02 Deposit.--All funds of the corporation shall be deposited
-------
from time to time to the credit of the corporation in such banks, trust
companies, or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
SECTION 8.03. Corporate Records.
-----------------
(a) Examination by Stockholders.--Every stockholder shall, upon written
---------------------------
demand under oath stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the corporation's usual hours for
business, for any proper purpose, the stock ledger, list of stockholders, books
or records of account, and records of the proceedings of the stockholders and
directors of the corporation, and to make copies or extracts therefrom. A
"proper purpose" shall mean a purpose reasonably related to such person's
interest as a stockholder. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent so to act on behalf of the stockholder.
The demand under oath shall be directed to the corporation at its registered
office in Delaware or at its principal place of
-20-
<PAGE>
business. Where the stockholder seeks to inspect the books and records of the
corporation, other than its stock ledger or list of stockholders, the
stockholder shall first establish (1) that the stockholder has complied with the
provisions of the Section 8.05 respecting the form and manner of making demand
for inspection of such documents; and (2) that the inspection sought is for a
proper purpose. Where the stockholder seeks to inspect the stock ledger or list
of stockholders of the corporation and has complied with the provisions of this
Section 8.05 respecting the form and manner of making demand for inspection of
such documents, the burden of proof shall be upon the corporation to establish
that the inspection sought is for an improper purpose.
(b) Examination by Directors.--Any director shall have the right to examine
------------------------
the corporation's stock ledger, a list of its stockholders and its other books
and records for a purpose reasonably related to the person's position as a
director.
SECTION 8.06. Amendment of Bylaws.--These bylaws may be altered, amended
-------------------
or repealed or new bylaws may be adopted either (1) by vote of the stockholders
at a duly organized annual or special meeting of stockholders, or (2) by vote of
a majority of the board of directors at any regular or special meeting of
directors if such power is conferred upon the board of directors by the
certificate of incorporation.
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<PAGE>
One Oxford Centre Morgan, Lewis &
Pittsburgh, PA 15219 Bockius LLP
(412) 560-3300
Fax: (412) 560-3399
July 15, 1996
TeleSpectrum Worldwide Inc.
443 South Gulph Road
King of Prussia, Pennsylvania 19406
Re: Registration Statement on Form S-1
File No. 333-04349
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to TeleSpectrum Worldwide Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-1, File
No. 333-04349 (the "Registration Statement"), filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, relating to the public offering of an aggregate of 12,254,400 shares of
the Company's Common Stock, par value $.01 per share, including (i) up to
11,884,400 shares of Common Stock (the "Company Shares") to be sold by the
Company to the underwriters for whom J.P. Morgan Securities Inc., Dillon, Read &
Co., Inc., Legg Mason Wood Walker Incorporated and the Robinson-Humphrey
Company, Inc. are acting as representatives (the "Underwriters"), of which up to
1,598,400 shares are shares of Common Stock which the Underwriters will have an
option to purchase from the Company solely for the purpose of covering over-
allotments, and (ii) 370,000 shares of Common Stock (the "Selling Stockholders'
Shares") to be sold to the Underwriters by certain selling stockholders
identified in the Registration Statement (the "Selling Stockholders").
We are familiar with the Registration Statement. We have reviewed the Company's
Certificate of Incorporation and Bylaws, each as amended to date. We have also
examined such other public and corporate documents, certificates, instruments
and corporate records, and such questions of law, as we have deemed necessary
for purposes of expressing an opinion on the matters hereinafter set forth. In
all examinations of documents, instruments and other papers, we have assumed the
genuineness of all signatures on original and certified documents and the
conformity to
<PAGE>
Telespectrum Worldwide Inc.
July 15, 1996
Page 2
original and certified documents of all copies submitted to us as conformed,
photostatic or other copies.
On the basis of the foregoing, we are of the opinion that:
(a) the Company Shares, when issued and sold in accordance with the plan of
distribution set forth in the Registration Statement, will be validly issued,
fully paid and non-assessable; and
(b) the Selling Stockholders' Shares, when issued in accordance with the
terms of the respective asset purchase agreements between the Company and the
Selling Stockholders, which agreements have been filed as exhibits to the
Registration Statement, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.01 to the Registration
Statement and to the use of our name in the Prospectus forming a part thereof
under the caption "Legal Matters."
Yours truly,
/s/ Morgan, Lewis & Bockius LLP
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
This Agreement is made as of this 21st day of May, 1996 between
TeleSpectrum Worldwide Inc., a Delaware corporation (the "Company") and J. Brian
O'Neill (the "Employee").
RECITALS
--------
The Company desires to employ the Employee, and the Employee desires to
provide services to the Company, upon the terms and conditions hereinafter set
forth.
WITNESSETH:
----------
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. During the term of the Employee's employment under this
----------
Agreement (the "Employment Term"), the Employee shall be the Chief Executive
Officer of the Company and shall perform such duties consistent with such office
as are assigned by the Company's Board of Directors. Except for periodic travel
incident to Employee's duties hereunder, Employee shall not be required to
perform his duties hereunder outside a 35 mile radius of the Company's current
principal office.
(b) Employee represents to the Company that he is not subject or a party to
any employment agreement, non-competition covenant, non-disclosure agreement or
any other agreement, covenant, understanding or restriction of any nature which
would prohibit Employee from executing this Agreement and performing fully his
duties and responsibilities hereunder.
2. Performance.
-----------
The Employee shall devote such business efforts to the performance of his
duties hereunder as are required by the Company's Board of Directors and by the
Company's bylaws to be performed by the chief executive officer.
3. Term.
----
The Employment Term shall begin on the date hereof and shall continue until
May 20, 2000, unless terminated prior thereto in accordance with Sections 5 or
6.
4. Compensation for Employment.
---------------------------
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company during the Employment Term shall be $130,000
(such amount, as adjusted in accordance with this Section 4, is referred to
herein as the "Salary"), which the
<PAGE>
Company shall pay to the Employee in equal installments in accordance with the
normal payroll policies of the Company.
(b) Subject to the approval of the Compensation Committee of the Company's
Board of Directors, the Employee shall be eligible to receive annual bonuses in
an aggregate amount not to exceed $400,000. As used herein, the term "Base
Bonus" shall mean $400,000.
(c) Subject to the approval of the Compensation Committee of the Company's
Board of Directors, the Company shall grant Employee on or prior to the
effective date of the Company's registration statement on Form S-1 incentive
stock options to purchase 500,000 shares of the Company's common stock, par
value $.01 per share (the "Common Stock") with an exercise price equal to the
initial public offering price of the shares of Common Stock sold pursuant to the
registration statement. Such option will be granted under the Company's 1996
Equity Compensation Plan (or such other employee stock benefit plan established
from time to time by the Company) and will vest in four equal amounts (each
representing 25% of the option) beginning on the date of grant and on the next
three successive annual anniversary dates of the date of grant; provided,
--------
however, that such option shall automatically become fully vested upon a
- -------
termination of the Employment Term pursuant to Sections 5(a), 5(b) or 6.
(d) During the Employment Term, the Company shall provide the Employee with
fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "A" (the "Fringe Benefits") at such levels that are
provided to the senior officers of the Company.
(e) All amounts payable by the Company under this Section 4 shall be
subject to proration based upon the number of days in each such year that the
Employee was employed by the Company hereunder. The Employee's Salary will be
reviewed from time to time for possible increases, taking into account
Employee's responsibilities, the profitability of the Company, compensation of
other executives of the Company, increases in cost of living and other pertinent
factors. In light of such review, the Company in its sole discretion, may
increase the Salary but not decrease the Salary during the Employment Term.
(f) The Company shall reimburse the Employee for those expenses that are
incurred by him in connection with the performance of his duties under this
Agreement, are reasonably related to the Company's business or that have been
approved in writing by the Company's Board of Directors.
5. Termination Without Compensation.
--------------------------------
(a) Total Disability. If the Employee becomes totally disabled (as defined
----------------
below), the Company may terminate the Employment Term by notice to the Employee,
and as of the termination date, the Company shall have no further liability or
obligation to the Employee hereunder except as follows: the Employee shall
receive (i) unpaid Salary, Base Bonus and Fringe Benefits that have accrued
through the date of termination; and (ii) whatever benefits that he may be
entitled to receive under any then existing disability benefit plans of the
Company, including
-2-
<PAGE>
any such plans included in the Fringe Benefits. For the purposes hereof, the
Employee shall be deemed to be "totally disabled" if the Employee is considered
totally disabled under any group disability plan maintained by the Company and
in effect at that time, or in the absence of any such plan, under applicable
Social Security regulations. In the event of any dispute under this Section
5(a), the Employee shall submit to a physical examination by a licensed
physician mutually satisfactory to the Company and the Employee, the cost of
such examination to be paid by the Company, and the determination of such
physician shall be determinative.
(b) Death. If the Employee dies, this Employment Agreement shall terminate
-----
on the date of death, and thereafter the Company shall not have any further
liability or obligation to the Employee, his executors, administrators, heirs,
assigns or any other person claiming under or through his except that the
Employee's estate shall receive any unpaid Salary, Base Bonus and Fringe
Benefits that have accrued through the date of termination.
(c) Cause. The Company may terminate the Employment Term for "cause" by
-----
giving the Employee 30 days' notice of the termination date, and as of the
termination date, the Company shall not have any further liability or obligation
to the Employee, except that the Employee shall receive any unpaid Salary, Base
Bonus and Fringe Benefits that have accrued through the date of termination.
For purposes of this Agreement, "cause" shall mean the Employee's (i) breach of
(other than by reason of illness, injury or incapacity) of any of the material
terms or provisions of this Agreement, (ii) the willful and substantial failure
to comply fully with the lawful directives of the Board, (iii) substantial and
willful misconduct, (iv) material neglect of the Company's business, (v)
conviction of a felony or other crime involving moral turpitude, (vi)
misappropriation of funds or (vii) habitual abuse of alcohol, narcotics or other
controlled substances. In the case of a termination for "cause," the notice of
termination shall specify the basis for the Company's determination of "cause";
provided, however, that in the case of conduct described in clauses (i), (ii),
- -------- -------
(iii) and (iv) above, such conduct shall not constitute "cause" for the purposes
of this paragraph (c) unless (A) the Board shall have given the Employee notice
setting forth with specificity (1) the conduct deemed to constitute "cause," (2)
reasonable action that would remedy the objectionable conduct, and (3) a
reasonable time (not less than 5 days) within which the Employee may take such
remedial action, and (B) the Employee shall not have taken such specified
remedial action within such specified reasonable time.
6. Termination With Compensation. The Company shall have the right to
-----------------------------
terminate the Employment Term without cause at any time by giving the Employee
30 days' notice of the termination date. In addition, the Employee may
terminate his services under this Agreement "for good reason" by giving the
Board of Directors of the Company twenty (20) business days prior written notice
of such intent, which notice shall set forth in reasonable detail the facts and
circumstances which constitute "for good reason". In the event of a termination
of the Employment Term pursuant to this Section 6, the Company shall continue to
pay to the Employee the Salary and 50% of the Base Bonus and continue to provide
the Fringe Benefits listed in paragraph (a) of Exhibit A hereto through May 20,
2000. The Salary and Base Bonus to be paid and the Fringe Benefits to be
provided under this Section 6 are referred to herein as the "Termination
Compensation." The Employee shall not be entitled to any Termination
-3-
<PAGE>
Compensation unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company from any obligations
and liabilities of any type whatsoever under this Agreement, except for the
Company's obligations with respect to the Termination Compensation. The parties
hereto acknowledge that the Termination Compensation to be provided under this
Section 6 is to be provided in consideration for the above-specified release.
The Company's obligations under this Section 6 shall be reduced by and to the
extent of any income earned by the Employee through employment with an employer
other than the Company that is received by or accrued for the benefit of the
Employee during the remainder of the Employment Term; provided, however, that
-------- -------
such obligations shall only be so reduced by any such earnings if the Company,
upon written request from the Employee, grants a waiver of its rights under
Section 7 hereunder. For purposes hereof, the term "for good reason" shall mean
(i) any material breach by the Company of any provision of this Agreement which
is not fully addressed within thirty (30) days after written receipt of notice
of a breach or (ii) (A) on or after the date any "person" (as defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") is or becomes a "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the voting power of the then outstanding
securities of the Company (such event is referred to as a "change in control")
and (B) without Employee's express written consent, any of the following shall
occur: (1) the assignment to Employee of any duties inconsistent with Employee's
positions, duties, responsibilities and status with Employee immediately prior
to a change in control; (2) a change in Employee's reporting responsibilities,
titles or offices as in effect immediately prior to a change in control; (3) any
removal of Employee from, or any failure to re-elect Employee to the office of
Chief Executive Officer, except in connection with a termination of employment
pursuant to this Agreement.
7. Agreement Not to Compete.
------------------------
(a) The Employee covenants that for the period beginning on the
termination of Employee's employment hereunder and ending on the first
anniversary of the date of such termination of employment hereunder (the
"Restricted Period"), he will not, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as a partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any business or enterprise engaged directly or
indirectly in competition with the business conducted by the Company at any time
during such period within any portion of the United States in the direct
marketing business which includes inbound and outbound telemarketing,
fulfillment, direct mail, customer retention and market research (the
"Business"). It is recognized by the Employee and the Company that the Business
is and is expected to continue to be conducted throughout the United States and
that more narrow geographical limitations of any nature on this non-competition
covenant (and the non-solicitation covenant set forth in Section 7(b)) are
therefore not appropriate. The foregoing restriction shall not be construed to
prohibit the ownership by Employee as a passive investment of not more than five
percent (5%) of any class of securities
-4-
<PAGE>
of any corporation which is engaged in any of the foregoing businesses having a
class of securities registered pursuant to the Securities Exchange Act of 1934.
(b) The Employee further covenants that during the Restricted Period,
he will not, either directly or indirectly, (i) call on or solicit any person
who or which has been a customer of the Company with respect to the activities
prohibited by Section 7(a) or (ii) solicit the employment of any person who is
employed by the Company during such period on a full or part-time basis.
(c) The Employee recognizes and acknowledges that by reason of his
employment by the Company he has had access to Confidential Information relating
to the Business. The Employee acknowledges that such Confidential Information
is a valuable and unique asset and covenants that he will not disclose any such
Confidential Information after the date hereof to any person for any reason
whatsoever, unless such information (i) is in the public domain through no
wrongful act of Employee, (ii) has been rightfully received from a third party
without restriction and without breach of this Agreement or (iii) except as may
be required by law.
(d) The Employee acknowledges that the restrictions contained in this
Section 7 are reasonable and necessary to protect the legitimate interests of
the Company, and that any violation will result in irreparable injury to the
Company.
(e) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of this Section 7, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of this
Section 7 should ever be adjudicated to exceed the time, geographic, product or
service, or other limitations permitted by applicable law in any jurisdiction,
then such provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, product or service, or other limitations permitted by
applicable law.
(f) The covenants set forth in this Section 7 shall be in addition to
not in limitation of any similar covenants set forth in the Purchase Agreement.
8. Inventions, Designs and Product Developments.
--------------------------------------------
All inventions, innovations, designs, ideas and product developments,
developed or conceived by the Employee, solely or jointly with others, whether
or not patentable or copyrightable, at any time during the Employment Term or
during his employment by the Company prior to the commencement of the Employment
Term and that relate to the actual or planned business activities of the Company
(collectively, the "Developments") and all of the Employee's right, title and
interest therein, shall be the exclusive property of the Company. The Employee
hereby assigns, transfers and conveys to the Company all of his right, title and
interest in and to any and all such Developments. The Employee shall disclose
fully, as soon as practicable and in writing, all material and substantial
Developments to the Board. At any time and from time to time, upon the request
of the Company, the Employee shall execute and deliver
-5-
<PAGE>
in and to any and all such Developments. The Employee shall disclose fully, as
soon as practicable and in writing, all material and substantial Developments to
the Board. At any time and from time to time, upon the request of the Company,
the Employee shall execute and deliver to the Company any and all instruments,
documents and papers, give evidence and do any and all other reasonable acts
that, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable the Company to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark registrations or copyrights under United States or foreign
law with respect to any such Developments or to obtain any extension,
validation, re-issue, continuance or renewal of any such patent, trademark or
copyright. The Company will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses incurred
by his in compliance with the provisions of this Section 8.
9. Confidential Information.
------------------------
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which he is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the Company. The Employee shall return to the Company all
Company Information, and reproductions thereof, whether prepared by his or
others, that are in his possession immediately upon request and in any event
upon the completion of his employment by the Company.
10. Remedies.
--------
The Employee expressly acknowledges that the remedy at law for any breach
of Sections 7, 8 and 9 will be inadequate and that upon any such breach or
threatened breach, the Company shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the
-6-
<PAGE>
inadequacy of a legal remedy. Subject to the remainder of this Section 10, the
rights conferred upon the Company by the preceding sentence shall not be
exclusive of, but shall be in addition to, any other rights or remedies which
the Company may have at law, in equity or otherwise.
11. General.
-------
(a) Governing Law. This Agreement is made and entered into in the
-------------
Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced
and governed by and under the laws of the Commonwealth. Any dispute,
controversy or claim which relates in any way to this Agreement and which has
not been resolved by the parties shall be determined and settled in Pennsylvania
in accordance with Arbitration rules of the American Arbitration Association.
The arbitration hearing shall be held in Pennsylvania unless the Company and
Employee mutually agree to another location. The arbitration shall be heard by
a panel of three arbitrators, each of whom shall be experienced in the
resolution of disputes, controversies or claims relating to employment issues.
One such arbitrator shall be selected by Employee, one such arbitrator shall be
selected by the Company, and one such arbitrator shall be selected by the
arbitrators selected by the Company and Employee. Resolution of disputes,
controversies or claims shall be determined by a majority vote of the
arbitration panel. The Company shall bear all fees, costs and expenses of the
arbitration, and the legal expenses and attorneys' fees of each party, and costs
of all experts and witnesses, unless the arbitration award is granted to the
Company, in which event, the Company and Employee shall share equally all fees,
costs and expenses of the arbitration, including reasonable attorney's fees.
Any award rendered shall be final and conclusive upon the parties and any
judgment thereon may be enforced in any court having jurisdiction, unless
otherwise provided by Pennsylvania law. The party submitting such dispute shall
request the American Arbitration Association to allow the parties (i) to request
reasonable discovery pursuant to the rules then in effect under the Federal
Rules of Civil Procedure (as used in the United States District Court in the
Eastern District of Pennsylvania) for a period not to exceed 60 days prior to
such arbitration and (ii) to require the testimony to be transcribed. The fact
that arbitration has commenced shall not impair the exercise of any termination
rights in accordance with the provisions of this Agreement.
(b) Company. For purposes of Sections 7, 8, 9 and 10, the term "Company"
-------
shall be deemed to include any incorporated or unincorporated entities that are
controlled, directly or indirectly, by the Company through ownership, agreement
or otherwise.
(c) Binding Effect. All of the terms and provisions of this Agreement
--------------
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(d) Notices. All notices required to be given under this Agreement shall
-------
be in writing and shall be deemed to have been given when personally delivered
or when mailed by registered
-7-
<PAGE>
or certified mail, postage prepaid, return receipt requested, or when sent by
Federal Express or other overnight delivery service, addressed as follows:
TO EMPLOYEE:
Mr. J. Brian O'Neill
c/o CRW Financial, Inc.
443 S. Gulph Road
King of Prussia, PA 19406
Fax: 610-962-5109
TO THE COMPANY:
443 S. Gulph Road
King of Prussia, PA 19406
Fax: 610-962-5109
Attn: Chairman of the Board
With a copy to:
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103
Fax: 215-963-5299
Attn: Stephen M. Goodman, Esquire
(e) Entire Agreement; Modification. This Agreement constitutes the entire
------------------------------
agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the termination of the Employment Term and
--------
of the Employee's employment by the Company, this Agreement shall continue to
bind the parties for so long as any obligations remain under the terms of this
Agreement.
(g) Waiver. No waiver of any breach of this Agreement shall be construed
------
to be a waiver as to succeeding breaches.
(h) Severability. If any provision of this Agreement or application
-------------
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or
-8-
<PAGE>
application and shall not invalidate or render unenforceable such provision in
any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto duly executed this Agreement as of the day and year first written
above.
TELESPECTRUM WORLDWIDE INC.
By: /s/ J. Brian O'Neill
--------------------------------
Chairman of the Board
/s/ J. Brian O'Neill
_____________________________
J. BRIAN O'NEILL
-9-
<PAGE>
EXHIBIT A
FRINGE BENEFITS
---------------
(a) Health insurance and short-term and long-term disability insurance for
the Employee, with the same benefits generally provided to the Company's most
senior executive employees from time to time during the Employment Term.
(b) Eligibility to participate in any 401(k) savings plans maintained by
the Company during the Employment Term.
(c) Term life insurance.
(d) Eligibility to participate in any employee stock option plan maintained
by the Company during the Employment Term.
(e) Reimbursement, in accordance with the Company's policies, upon proper
accounting, of the monthly fee of a mobile telephone and charges for any
business telephone calls made on the Employee's personal telephone.
(f) Paid holidays in accordance with the Company's policies.
(g) Paid vacation of four weeks per year.
(h) An automobile allowance of $1,000 per month.
-10-
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
This Agreement is made as of this 22nd day of April, 1996 between
TeleSpectrum Worldwide Inc., a Delaware corporation (the "Company") and Michael
C. Boyd (the "Employee").
RECITALS
--------
The Company desires to employ the Employee, and the Employee desires
to provide services to the Company, upon the terms and conditions hereinafter
set forth.
WITNESSETH:
----------
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. During the term of the Employee's employment under this
----------
Agreement (the "Employment Term"), the Employee shall be the President and Chief
Operating Officer of the Company and shall perform such duties consistent with
such office as are assigned by the Company's Chief Executive Officer, Chairman
of the Board or Board of Directors. Except for periodic travel incident to
Employee's duties hereunder, Employee shall not be required to perform his
duties hereunder outside a 35 mile radius of the Company's current principal
office.
(b) Employee represents to the Company that he is not subject or a
party to any employment agreement, non-competition covenant, non-disclosure
agreement or any other agreement, covenant, understanding or restriction of any
nature which would prohibit Employee from executing this Agreement and
performing fully his duties and responsibilities hereunder, or which would in
any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to Employee by the
Company.
2. Performance.
-----------
The Employee shall devote his entire business efforts to the
performance of his duties hereunder; provided, however, that the Employee may
engage in personal investment and charitable activities so long as they do not
interfere with the performance of his duties hereunder.
3. Term.
----
The Employment Term shall begin on the date hereof and shall continue
until April 21, 2000, unless terminated prior thereto in accordance with
Sections 5 or 6.
<PAGE>
4. Compensation for Employment.
---------------------------
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company during the Employment Term shall be $275,000
(such amount, as adjusted in accordance with this Section 4, is referred to
herein as the "Salary"), which the Company shall pay to the Employee in equal
installments in accordance with the normal payroll policies of the Company.
(b) The Employee shall be eligible to receive annual bonuses as
follows: (i) up to $112,500 (the "Contribution Bonus") as determined by the
Company's Board of Directors based upon the Employee's overall contributions to
the Company, which shall include, without limitation, Employee's cooperation
with other senior officers and other employees of the Company and its operating
units; and (ii) a performance bonus (the "Performance Bonus"), if any, upon the
achievement by the Company of its projected revenues and earnings per share
(each as set forth in the Company's annual budget for such year) equal to the
product of $112,500 and the applicable bonus payout rate as set forth on Exhibit
"A" hereto. If either of the Company's revenues and earnings per share for any
year are less than 95% of the applicable projected amount, then the Performance
Bonus, if any, shall be in such amount as determined by the Board of Directors
in its sole discretion. If each of the Company's revenues and earnings per
share for any year exceed 110% of the applicable projected amounts, then the
Performance Bonus, if any, shall be in such amount as determined by the Board of
Directors in its sole discretion but shall not be less than $168,750. As used
herein, the term "Base Bonus" shall mean $225,000.
(c) Subject in each case to the approval of the Compensation Committee of
the Company's Board of Directors, the Company shall grant Employee (i) on or
prior to the effective date of the Company's registration statement on Form S-1
incentive stock options to purchase 300,000 shares of the Company's common
stock, par value $.01 per share (the "Common Stock") with an exercise price
equal to the initial public offering price of the shares of Common Stock sold
pursuant to the registration statement and (ii) on an annual basis an incentive
stock option to purchase 75,000 shares of Common Stock of an exercise price
equal to the fair market value of the Common Stock on the date of grant. Each
such option will be granted under the Company's 1996 Equity Compensation Plan
(or such other employee stock benefit plan established from time to time by the
Company) and will vest in four equal amounts (each representing 25% of the
option) beginning on the date of grant and on the next three successive annual
anniversary dates of the date of grant. Notwithstanding anything to the contrary
set forth herein, the Company shall have no obligation to grant any such option,
and the Employee shall have no right to cause the Company to grant any such
option, after the Employment Term has been terminated pursuant to this
Agreement; provided, however, that each outstanding option shall automatically
-------- -------
become fully vested upon a termination of the Employment Term pursuant to
Sections 5(a), 5(b) or 6.
-2-
<PAGE>
(d) During the Employment Term, the Company shall provide the Employee
with fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "A" (the "Fringe Benefits") at such levels that are
provided to the senior officers of the Company.
(e) All amounts payable by the Company under this Section 4 shall be
subject to proration based upon the number of days in each such year that the
Employee was employed by the Company hereunder. The Employee's Salary will be
reviewed from time to time for possible increases, taking into account
Employee's responsibilities, the profitability of the Company, increase in
compensation of other executives of the Company, increases in cost of living and
other pertinent factors. In light of such review, the Company in its sole
discretion, may increase the Salary but not decrease the Salary during the
Employment Term. In addition, if the Company enters into any employment
agreement with any person (other than those employment agreements with those
persons identified in the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on May 23, 1996) which provides for
the annual payment by the Company of salary and guaranteed bonus which exceeds
$500,000 in the aggregate (such excess amount is referred to as the "Excess
Amount"), then beginning on the sixtieth day after the execution of such
agreement, the Salary and Contribution Bonus shall be increased by an aggregate
amount equal to the Excess Amount and such Excess Amount shall be allocated
between Salary and the Contribution Bonus as appropriate.
(f) The Company shall reimburse the Employee for those expenses that
are incurred by him in connection with the performance of his duties under this
Agreement, are reasonably related to the Company's business or that have been
approved in writing by the Company's Chief Executive Officer or Chairman of the
Company's Board of Directors.
5. Termination Without Compensation.
--------------------------------
(a) Total Disability. If the Employee becomes totally disabled (as
----------------
defined below), the Company may terminate the Employment Term by notice to the
Employee, and as of the termination date, the Company shall have no further
liability or obligation to the Employee hereunder except as follows: the
Employee shall receive (i) unpaid Salary, Base Bonus and Fringe Benefits that
have accrued through the date of termination; and (ii) whatever benefits that he
may be entitled to receive under any then existing disability benefit plans of
the Company, including any such plans included in the Fringe Benefits. For the
purposes hereof, the Employee shall be deemed to be "totally disabled" if the
Employee is considered totally disabled under any group disability plan
maintained by the Company and in effect at that time, or in the absence of any
such plan, under applicable Social Security regulations. In the event of any
dispute under this Section 5(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative.
(b) Death. If the Employee dies, this Employment Agreement shall
-----
terminate on the date of death, and thereafter the Company shall not have any
further liability kor oblligation to the Employee, his executors,
adminisstrators, heirs, assigns or any other person claiming under or through
his except that the Employee's estate shall receive any unpaid Salary, Base
Bonus and Fringe Benefits that have accrued through the date of termination.
(c) Cause. The Company may terminate the Employment Term for "cause"
-----
by giving the Employee 30 days' notice of the termination date, and as of the
termination date, the Company shall not have any further liability or obligation
to the Employee, except that the Employee shall receive any unpaid Salary, Base
Bonus and Fringe Benefits that have accrued through the date of termination.
For purposes of this Agreement, "cause" shall mean the
-3-
<PAGE>
Employee's (i) breach of (other than by reason of illness, injury or incapacity)
of any of the material terms or provisions of this Agreement, (ii) the willful
and substantial failure to comply fully with the lawful directives of the Board,
(iii) substantial and willful misconduct, (iv) material neglect of the Company's
business, (v) conviction of a felony or other crime involving moral turpitude,
(vi) misappropriation of funds or (vii) habitual abuse of alcohol, narcotics or
other controlled substances. In the case of a termination for "cause," the
notice of termination shall specify the basis for the Company's determination of
"cause"; provided, however, that in the case of conduct described in clauses
-------- -------
(i), (ii), (iii) and (iv) above, such conduct shall not constitute "cause" for
the purposes of this paragraph (c) unless (A) the Board shall have given the
Employee notice setting forth with specificity (1) the conduct deemed to
constitute "cause," (2) reasonable action that would remedy the objectionable
conduct, and (3) a reasonable time (not less than 5 days) within which the
Employee may take such remedial action, and (B) the Employee shall not have
taken such specified remedial action within such specified reasonable time. In
the event that Employee is improperly terminated pursuant to the provisions of
Section 5(c), as determined by a court of competent jurisdiction, Employee shall
be entitled to reimbursement for all reasonable costs, including attorney's
fees, in challenging such termination. Such reimbursement shall be in addition
to all rights to which Employee is otherwise entitled under this Agreement.
6. Termination With Compensation. The Company shall have the right to
-----------------------------
terminate the Employment Term without cause at any time by giving the Employee
30 days' notice of the termination date. In addition, the Employee may
terminate his services under this Agreement "for good reason" by giving the
Board of Directors of the Company twenty (20) business days prior written notice
of such intent, which notice shall set forth in reasonable detail the facts and
circumstances which constitute "for good reason". In the event of a termination
of the Employment Term pursuant to this Section 6, the Company shall continue to
pay to the Employee the Salary and 50% of the Base Bonus and continue to provide
the Fringe Benefits listed in paragraph (a) of Exhibit B hereto for the period
beginning on the date of such termination and ending on the first anniversary of
such date, and as of the termination date, the Company shall not have any
further liability or obligation to the Employee. The Salary and Base Bonus to
be paid and the Fringe Benefits to be provided under this Section 6 are referred
to herein as the "Termination Compensation." The Employee shall not be entitled
to any Termination Compensation unless the Employee executes and delivers to the
Company after a notice of termination a release in a form satisfactory to the
Company in its sole discretion by which the Employee releases the Company from
any obligations and liabilities of any type whatsoever under this Agreement,
except for the Company's obligations with respect to the Termination
Compensation. The parties hereto acknowledge that the Termination Compensation
to be provided under this Section 6 is to be provided in consideration for the
above-specified release. The Company's obligations under this Section 6 shall
be reduced by and to the extent of any income earned by the Employee through
employment with an employer other than the Company that is received by or
accrued for the benefit of the Employee during the remainder of the Employment
Term; provided, however, that such obligations shall only be so reduced by any
-------- -------
such earnings if the Company, upon written request from the Employee, grants a
waiver of its rights under Section 7 hereunder. For purposes hereof, the term
"for good reason" shall mean (i) any material breach by the Company of any
provision of this Agreement which is not fully addressed within thirty (30) days
after written receipt of notice of a breach or (ii) (A) on or after the date any
"person" (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") is or becomes a "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company
-4-
<PAGE>
representing 50% or more of the voting power of the then outstanding securities
of the Company (such event is referred to as a "change in control") and (B)
without Employee's express written consent, any of the following shall occur:
(1) the assignment to Employee of any duties inconsistent with Employee's
positions, duties, responsibilities and status with Employee immediately prior
to a change in control; (2) a change in Employee's reporting responsibilities,
titles or offices as in effect immediately prior to a change in control; (3) any
removal of Employee from, or any failure to re-elect Employee to the offices of
President and/or Chief Operating Officer positions, except in connection with a
termination of employment pursuant to this Agreement.
7. Agreement Not to Compete.
------------------------
(a) The Employee covenants that for the period beginning on the
termination of Employee's employment hereunder and ending on the first
anniversary of the date of such termination of employment hereunder (the
"Restricted Period"), he will not, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as a partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any business or enterprise engaged directly or
indirectly in competition with the business conducted by the Company at any time
during such period within any portion of the United States in the direct
marketing business which includes inbound and outbound telemarketing,
fulfillment, direct mail, customer retention and market research (the
"Business"). It is recognized by the Employee and the Company that the Business
is and is expected to continue to be conducted throughout the United States and
that more narrow geographical limitations of any nature on this non-competition
covenant (and the non-solicitation covenant set forth in Section 7(b)) are
therefore not appropriate. The foregoing restriction shall not be construed to
prohibit the ownership by Employee as a passive investment of not more than five
percent (5%) of any class of securities of any corporation which is engaged in
any of the foregoing businesses having a class of securities registered pursuant
to the Securities Exchange Act of 1934.
(b) The Employee further covenants that during the Restricted
Period, he will not, either directly or indirectly, (i) call on or solicit any
person who or which has been a customer of the Company with respect to the
activities prohibited by Section 7(a) or (ii) solicit the employment of any
person who is employed by the Company during such period on a full or part-time
basis.
(c) The Employee recognizes and acknowledges that by reason of his
employment by the Company he has had access to Confidential Information relating
to the Business. The Employee acknowledges that such Confidential Information
is a valuable and unique asset and covenants that he will not disclose any such
Confidential Information after the date hereof to any person for any reason
whatsoever, unless such information (i) is in the public domain through no
wrongful act of Employee, (ii) has been rightfully received from a third party
without restriction and without breach of this Agreement or (iii) except as may
be required by law.
-5-
<PAGE>
(d) The Employee acknowledges that the restrictions contained in
this Section 7 are reasonable and necessary to protect the legitimate interests
of the Company, and that any violation will result in irreparable injury to the
Company.
(e) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of this Section 7, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of this
Section 7 should ever be adjudicated to exceed the time, geographic, product or
service, or other limitations permitted by applicable law in any jurisdiction,
then such provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, product or service, or other limitations permitted by
applicable law.
(f) The covenants set forth in this Section 7 shall be in addition
to not in limitation of any similar covenants set forth in the Purchase
Agreement.
8. Inventions, Designs and Product Developments.
--------------------------------------------
All inventions, innovations, designs, ideas and product developments,
developed or conceived by the Employee, solely or jointly with others, whether
or not patentable or copyrightable, at any time during the Employment Term or
during his employment by the Company prior to the commencement of the Employment
Term and that relate to the actual or planned business activities of the Company
(collectively, the "Developments") and all of the Employee's right, title and
interest therein, shall be the exclusive property of the Company. The Employee
hereby assigns, transfers and conveys to the Company all of his right, title and
interest in and to any and all such Developments. The Employee shall disclose
fully, as soon as practicable and in writing, all material and substantial
Developments to the Board. At any time and from time to time, upon the request
of the Company, the Employee shall execute and deliver to the Company any and
all instruments, documents and papers, give evidence and do any and all other
reasonable acts that, in the opinion of counsel for the Company, are or may be
necessary or desirable to document such transfer or to enable the Company to
file and prosecute applications for and to acquire, maintain and enforce any and
all patents, trademark registrations or copyrights under United States or
foreign law with respect to any such Developments or to obtain any extension,
validation, re-issue, continuance or renewal of any such patent, trademark or
copyright. The Company will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses incurred
by his in compliance with the provisions of this Section 8.
-6-
<PAGE>
9. Confidential Information.
------------------------
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which he is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the Company. The Employee shall return to the Company all
Company Information, and reproductions thereof, whether prepared by his or
others, that are in his possession immediately upon request and in any event
upon the completion of his employment by the Company.
10. Remedies.
--------
The Employee expressly acknowledges that the remedy at law for any breach
of Sections 7, 8 and 9 will be inadequate and that upon any such breach or
threatened breach, the Company shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy. Subject to the remainder of this
Section 10, the rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
11. General.
-------
(a) Governing Law. This Agreement is made and entered into in the
-------------
Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced
and governed by and under the laws of the Commonwealth. Any dispute,
controversy or claim which relates in any way to this Agreement and which has
not been resolved by the parties shall be determined and settled in Pennsylvania
in accordance with Arbitration rules of the American Arbitration Association.
The arbitration hearing shall be held in Pennsylvania unless the Company and
Employee mutually agree to another location. The arbitration shall be heard by
a panel of three arbitrators, each of whom shall be experienced in the
resolution of disputes, controversies or claims relating to
-7-
<PAGE>
employment issues. One such arbitrator shall be selected by Employee, one such
arbitrator shall be selected by the Company, and one such arbitrator shall be
selected by the arbitrators selected by the Company and Employee. Resolution of
disputes, controversies or claims shall be determined by a majority vote of the
arbitration panel. The Company shall bear all fees, costs and expenses of the
arbitration, and the legal expenses and attorneys' fees of each party, and cost
s of all experts and witnesses, unless the arbitration award is granted to the
Company, in which event, the Company and Employee shall share equally all fees,
costs and expenses of the arbitration, including reasonable attorney's fees. Any
award rendered shall be final and conclusive upon the parties and any judgment
thereon may be enforced in any court having jurisdiction, unless otherwise
provided by Pennsylvania law. The party submitting such dispute shall request
the American Arbitration Association to allow the parties (i) to request
reasonable discovery pursuant to the rules then in effect under the Federal
Rules of Civil Procedure (as used in the United States District Court in the
Eastern District of Pennsylvania) for a period not to exceed 60 days prior to
such arbitration and (ii) to require the testimony to be transcribed. The fact
that arbitration has commenced shall not impair the exercise of any termination
rights in accordance with the provisions of this Agreement.
(b) Company. For purposes of Sections 7, 8, 9 and 10, the term
-------
"Company" shall be deemed to include any incorporated or unincorporated entities
that are controlled, directly or indirectly, by the Company through ownership,
agreement or otherwise.
(c) Binding Effect. This Employment Agreement shall be binding upon
--------------
and shall inure to the benefit of the Employee, and, to the extent applicable,
his heirs, successors, assigns and executors, and personal representatives
(although as an Employment Contract, certain provisions hereof are clearly
limited to the Employee). This Employment Agreement shall be binding upon and
shall inure to the benefit of the Company, its successors and assigns,
including, without limitation, any person, partnership or corporation which may
acquire all or substantially all of the Company's assets in business, or with or
into which the Company may be consolidated or merged, and this provision shall
apply in the event or any subsequent merger, consolidation, or transfer unless
such merger or consolidation or subsequent merger or consolidation is a
transaction of the type which would result in termination under Section 6 above
(termination by Employee for good cause). This Employment Agreement is personal
to each of the parties and neither party may assign or delegate any of its
rights or obligations under this Employment Agreement without the prior written
consent of the other party.
(d) Notices. All notices required to be given under this Agreement
-------
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery service, addressed as follows:
TO EMPLOYEE:
Mr. Michael C. Boyd
16 Tullamore Drive
West Chester, PA 19382
TO THE COMPANY:
443 S. Gulph Road
King of Prussia, PA 19406
Fax: 610-962-5109
Attn: Chairman of the Board
-8-
<PAGE>
With a copy to:
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103
Fax: 215-963-5299
Attn: Stephen M. Goodman, Esquire
(e) Entire Agreement; Modification. This Agreement constitutes the
------------------------------
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the termination of the Employment Term
--------
and of the Employee's employment by the Company, this Agreement shall continue
to bind the parties for so long as any obligations remain under the terms of
this Agreement.
(g) Waiver. No waiver of any breach of this Agreement shall be
------
construed to be a waiver as to succeeding breaches.
(h) Severability. If any provision of this Agreement or application
-------------
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement as of the day and year first written
above.
TELESPECTRUM WORLDWIDE INC.
By: /s/ J. Brian O'Neill
---------------------------
Chairman of the Board
/s/ Michael C. Boyd
---------------------------
Michael C. Boyd
-9-
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Bonus
Payout
Revenues* EPS* Rate
--------- ---- ----
<S> <C> <C>
95 95 .50
100 95 .75
110 95 .75
95 100 1.00
95 110 1.00
100 100 1.00
110 100 1.25
100 110 1.25
110 110 1.50
</TABLE>
* As set forth in the Company's annual budget
A-2
<PAGE>
EXHIBIT B
FRINGE BENEFITS
---------------
(a) Health insurance and short-term and long-term disability insurance
for the Employee, with the same benefits generally provided to the Company's
most senior executive employees from time to time during the Employment Term.
(b) Eligibility to participate in any 401(k) savings plans maintained by
the Company during the Employment Term.
(c) Term life insurance.
(d) Eligibility to participate in any employee stock option plan
maintained by the Company during the Employment Term.
(e) Reimbursement, in accordance with the Company's policies, upon proper
accounting, of the monthly fee of a mobile telephone and charges for any
business telephone calls made on the Employee's personal telephone.
(f) Paid holidays in accordance with the Company's policies.
(g) Paid vacation of four weeks per year.
(h) An automobile allowance of $1,000 per month.
A-3
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
This Agreement is made as of this 6th day of May, 1996 between TeleSpectrum
Worldwide Inc., a Delaware corporation (the "Company") and Richard C. Schwenk,
Jr. (the "Employee").
RECITALS
--------
The Company desires to employ the Employee, and the Employee desires to
provide services to the Company, upon the terms and conditions hereinafter set
forth.
WITNESSETH:
----------
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. During the term of the Employee's employment under this
----------
Agreement (the "Employment Term"), the Employee shall be the Chief Financial
Officer of the Company and shall perform such duties consistent with such office
as are assigned by the Company's Chief Executive Officer. Except for periodic
travel incident to Employee's duties hereunder, Employee shall not be required
to perform his duties hereunder outside a 35 mile radius of the Company's
current principal office.
(b) Employee represents to the Company that he is not subject or a party to
any employment agreement, non-competition covenant, non-disclosure agreement or
any other agreement, covenant, understanding or restriction of any nature which
would prohibit Employee from executing this Agreement and performing fully his
duties and responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now or in
the future be assigned to Employee by the Company.
2. Performance.
-----------
The Employee shall devote his entire business efforts to the performance of
his duties hereunder; provided, however, that the Employee may engage in
personal investment and charitable activities so long as they do not interfere
with the performance of his duties hereunder.
3. Term.
----
The Employment Term shall begin on the date hereof and shall continue until
May 5, 2000, unless terminated prior thereto in accordance with Sections 5 or 6.
-1-
<PAGE>
4. Compensation for Employment.
---------------------------
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company during the Employment Term shall be $200,000
(such amount, as adjusted in accordance with this Section 4, is referred to
herein as the "Salary"), which the Company shall pay to the Employee in equal
installments in accordance with the normal payroll policies of the Company.
(b) The Employee shall be eligible to receive annual bonuses as follows:
(i) up to $75,000 as determined by the Company's Board of Directors based upon
the Employee's overall contributions to the Company, which shall include,
without limitation, Employee's cooperation with other senior officers and other
employees of the Company and its operating units; and (ii) a performance bonus
(the "Performance Bonus"), if any, upon the achievement by the Company of its
projected revenues and earnings per share (each as set forth in the Company's
annual budget for such year) equal to the product of $75,000 and the applicable
bonus payout rate as set forth on Exhibit "A" hereto. If either of the
Company's revenues and earnings per share for any year are less than 95% of the
applicable projected amount, then the Performance Bonus, if any, shall be in
such amount as determined by the Board of Directors in its sole discretion. If
each of the Company's revenues and earnings per share for any year exceed 110%
of the applicable projected amounts, then the Performance Bonus, if any, shall
be in such amount as determined by the Board of Directors in its sole discretion
but shall not be less than $112,500. As used herein, the term "Base Bonus"
shall mean $150,000.
(c) Subject in each case to the approval of the Compensation Committee of
the Company's Board of Directors, the Company shall grant Employee (i) on or
prior to the effective date of the Company's registration statement on Form S-1
incentive stock options to purchase 100,000 shares of the Company's common
stock, par value $.01 per share (the "Common Stock") with an exercise price
equal to the initial public offering price of the shares of Common Stock sold
pursuant to the registration statement and (ii) on an annual basis an incentive
stock option to purchase 25,000 shares of Common Stock of an exercise price
equal to the fair market value of the Common Stock on the date of grant. Each
such option will be granted under the
-2-
<PAGE>
Company's 1996 Equity Compensation Plan (or such other employee stock benefit
plan established from time to time by the Company) and will vest in four equal
amounts (each representing 25% of the option) beginning on the date of grant and
on the next three successive annual anniversary dates of the date of grant.
Notwithstanding anything to the contrary set forth herein, the Company shall
have no obligation to grant any such option, and the Employee shall have no
right to cause the Company to grant any such option, after the Employment Term
has been terminated pursuant to this Agreement; provided, however, that each
-------- -------
outstanding option shall automatically become fully vested upon a termination
of the Employment Term pursuant to Sections 5(a), 5(b) or 6.
(d) During the Employment Term, the Company shall provide the Employee with
fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "B" (the "Fringe Benefits") at such levels that are
provided to the senior officers of the Company.
(e) All amounts payable by the Company under this Section 4 shall be
subject to proration based upon the number of days in each such year that the
Employee was employed by the Company hereunder. The Employee's Salary will be
reviewed from time to time for possible increases, taking into account
Employee's responsibilities, the profitability of the Company, compensation of
other executives of the Company, increases in cost of living and other pertinent
factors. In light of such review, the Company in its sole discretion, may
increase the Salary but not decrease the Salary during the Employment Term.
(f) The Company shall reimburse the Employee for those expenses that are
incurred by him in connection with the performance of his duties under this
Agreement, are reasonably related to the Company's business or that have been
approved in writing by the Company's Chief Executive Officer.
5. Termination Without Compensation.
--------------------------------
(a) Total Disability. If the Employee becomes totally disabled (as defined
----------------
below), the Company may terminate the Employment Term by notice to the Employee,
and as of the termination date, the Company shall have no further liability or
obligation to the Employee hereunder except as follows: the Employee shall
receive (i) unpaid Salary, Base Bonus and Fringe Benefits that have accrued
through the date of termination; and (ii) whatever benefits that he may be
entitled to receive under any then existing disability benefit plans of the
Company, including any such plans included in the Fringe Benefits. For the
purposes hereof, the Employee shall be deemed to be "totally disabled" if the
Employee is considered totally disabled under any group disability plan
maintained by the Company and in effect at that time, or in the absence of any
such plan, under applicable Social Security regulations. In the event of any
dispute under this Section 5(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative.
-3-
<PAGE>
(b) Death. If the Employee dies, this Employment Agreement shall terminate
-----
on the date of death, and thereafter the Company shall not have any further
liability or obligation to the Employee, his executors, administrators, heirs,
assigns or any other person claiming under or through his except that the
Employee's estate shall receive any unpaid Salary, Base Bonus and Fringe
Benefits that have accrued through the date of termination.
(c) Cause. The Company may terminate the Employment Term for "cause" by
-----
giving the Employee 30 days' notice of the termination date, and as of the
termination date, the Company shall not have any further liability or obligation
to the Employee, except that the Employee shall receive any unpaid Salary, Base
Bonus and Fringe Benefits that have accrued through the date of termination.
For purposes of this Agreement, "cause" shall mean the Employee's (i) breach of
(other than by reason of illness, injury or incapacity) of any of the material
terms or provisions of this Agreement, (ii) the willful and substantial failure
to comply fully with the lawful directives of the Board, (iii) substantial and
willful misconduct, (iv) material neglect of the Company's business, (v)
conviction of a felony or other crime involving moral turpitude, (vi)
misappropriation of funds or (vii) habitual abuse of alcohol, narcotics or other
controlled substances. In the case of a termination for "cause," the notice of
termination shall specify the basis for the Company's determination of "cause";
provided, however, that in the case of conduct described in clauses
- -------- -------
(i), (ii), (iii) and (iv) above, such conduct shall not constitute "cause" for
the purposes of this paragraph (c) unless (A) the Board shall have given the
Employee notice setting forth with specificity (1) the conduct deemed to
constitute "cause," (2) reasonable action that would remedy the objectionable
conduct, and (3) a reasonable time (not less than 5 days) within which the
Employee may take such remedial action, and (B) the Employee shall not have
taken such specified remedial action within such specified reasonable time.
-4-
<PAGE>
6. Termination With Compensation. The Company shall have the right to
-----------------------------
terminate the Employment Term without cause at any time by giving the Employee
30 days' notice of the termination date. In addition, the Employee may
terminate his services under this Agreement "for good reason" by giving the
Board of Directors of the Company twenty (20) business days prior written notice
of such intent, which notice shall set forth in reasonable detail the facts and
circumstances which constitute "for good reason". In the event of a termination
of the Employment Term pursuant to this Section 6, the Company shall continue to
pay to the Employee the Salary and 50% of the Base Bonus and continue to provide
the Fringe Benefits listed in paragraph (a) of Exhibit B hereto for the period
beginning on the date of such termination and ending on the first anniversary of
such date, and as of the termination date, the Company shall not have any
further liability or obligation to the Employee. The Salary and Base Bonus to
be paid and the Fringe Benefits to be provided under this Section 6 are referred
to herein as the "Termination Compensation." The Employee shall not be entitled
to any Termination Compensation unless the Employee executes and delivers to the
Company after a notice of termination a release in a form satisfactory to the
Company in its sole discretion by which the Employee releases the Company from
any obligations and liabilities of any type whatsoever under this Agreement,
except for the Company's obligations with respect to the Termination
Compensation. The parties hereto acknowledge that the Termination Compensation
to be provided under this Section 6 is to be provided in consideration for the
above-specified release. The Company's obligations under this Section 6 shall
be reduced by and to the extent of any income earned by the Employee through
employment with an employer other than the Company that is received by or
accrued for the benefit of the Employee during the remainder of the Employment
Term; provided, however, that such obligations shall only be so reduced by any
-------- -------
such earnings if the Company, upon written request from the Employee, grants a
waiver of its rights under Section 7 hereunder. For purposes hereof, the term
"for good reason" shall mean (i) any material breach by the Company of any
provision of this Agreement which is not fully addressed within thirty (30) days
after written receipt of notice of a breach or (ii) (A) on or after the date any
"person" (as defined in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") is or becomes a "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the voting
power of the then outstanding securities of the Company (such event is referred
to as a "change in control") and (B) without Employee's express written consent,
any of the following shall occur: (1) the assignment to Employee of any duties
inconsistent with Employee's positions, duties, responsibilities and status with
Employee immediately prior to a change in control; (2) a change in Employee's
reporting responsibilities, titles or offices as in effect immediately prior to
a change in control; (3) any removal of Employee from, or any failure to re-
elect Employee to the office of Chief Financial Officer, except in connection
with a termination of employment pursuant to this Agreement.
7. Agreement Not to Compete.
------------------------
(a) The Employee covenants that for the period beginning on the
termination of Employee's employment hereunder and ending on the first
anniversary of the date of such
-5-
<PAGE>
termination of employment hereunder (the "Restricted Period"), he will not,
directly or indirectly, own, manage, operate, join, control, finance or
participate in the ownership, management, operation, control or financing of, or
be connected as a partner, principal, agent, representative, consultant or
otherwise with or use or permit his name to be used in connection with, any
business or enterprise engaged directly or indirectly in competition with the
business conducted by the Company at any time during such period within any
portion of the United States in the direct marketing business which includes
inbound and outbound telemarketing, fulfillment, direct mail, customer retention
and market research (the "Business"). It is recognized by the Employee and the
Company that the Business is and is expected to continue to be conducted
throughout the United States and that more narrow geographical limitations of
any nature on this non-competition covenant (and the non-solicitation covenant
set forth in Section 7(b)) are therefore not appropriate. The foregoing
restriction shall not be construed to prohibit the ownership by Employee as a
passive investment of not more than five percent (5%) of any class of securities
of any corporation which is engaged in any of the foregoing businesses having a
class of securities registered pursuant to the Securities Exchange Act of 1934.
(b) The Employee further covenants that during the Restricted Period,
he will not, either directly or indirectly, (i) call on or solicit any person
who or which has been a customer of the Company with respect to the activities
prohibited by Section 7(a) or (ii) solicit the employment of any person who is
employed by the Company during such period on a full or part-time basis.
(c) The Employee recognizes and acknowledges that by reason of his
employment by the Company he has had access to Confidential Information relating
to the Business. The Employee acknowledges that such Confidential Information
is a valuable and unique asset and covenants that he will not disclose any such
Confidential Information after the date hereof to any person for any reason
whatsoever, unless such information (i) is in the public domain through no
wrongful act of Employee, (ii) has been rightfully received from a third party
without restriction and without breach of this Agreement or (iii) except as may
be required by law.
(d) The Employee acknowledges that the restrictions contained in this
Section 7 are reasonable and necessary to protect the legitimate interests of
the Company, and that any violation will result in irreparable injury to the
Company.
(e) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of this Section 7, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of this
Section 7 should ever be adjudicated to exceed the time, geographic, product or
service, or other limitations permitted by applicable law in any jurisdiction,
then such provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, product or service, or other limitations permitted by
applicable law.
-6-
<PAGE>
(f) The covenants set forth in this Section 7 shall be in addition to
not in limitation of any similar covenants set forth in the Purchase Agreement.
8. Inventions, Designs and Product Developments.
--------------------------------------------
All inventions, innovations, designs, ideas and product developments,
developed or conceived by the Employee, solely or jointly with others, whether
or not patentable or copyrightable, at any time during the Employment Term or
during his employment by the Company prior to the commencement of the Employment
Term and that relate to the actual or planned business activities of the Company
(collectively, the "Developments") and all of the Employee's right, title and
interest therein, shall be the exclusive property of the Company. The Employee
hereby assigns, transfers and conveys to the Company all of his right, title and
interest in and to any and all such Developments. The Employee shall disclose
fully, as soon as practicable and in writing, all material and substantial
Developments to the Board. At any time and from time to time, upon the request
of the Company, the Employee shall execute and deliver to the Company any and
all instruments, documents and papers, give evidence and do any and all other
reasonable acts that, in the opinion of counsel for the Company, are or may be
necessary or desirable to document such transfer or to enable the Company to
file and prosecute applications for and to acquire, maintain and enforce any and
all patents, trademark registrations or copyrights under United States or
foreign law with respect to any such Developments or to obtain any extension,
validation, re-issue, continuance or renewal of any such patent, trademark or
copyright. The Company will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses incurred
by his in compliance with the provisions of this Section 8.
9. Confidential Information.
------------------------
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which he is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained
-7-
<PAGE>
by the Employee thereafter, shall remain at all times the exclusive property of
the Company. The Employee shall return to the Company all Company Information,
and reproductions thereof, whether prepared by his or others, that are in his
possession immediately upon request and in any event upon the completion of his
employment by the Company.
10. Remedies.
--------
The Employee expressly acknowledges that the remedy at law for any breach
of Sections 7, 8 and 9 will be inadequate and that upon any such breach or
threatened breach, the Company shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy. Subject to the remainder of this
Section 10, the rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
11. General.
-------
(a) Governing Law. This Agreement is made and entered into in the
-------------
Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced
and governed by and under the laws of the Commonwealth. Any dispute,
controversy or claim which relates in any way to this Agreement and which has
not been resolved by the parties shall be determined and settled in Pennsylvania
in accordance with Arbitration rules of the American Arbitration Association.
The arbitration hearing shall be held in Pennsylvania unless the Company and
Employee mutually agree to another location. The arbitration shall be heard by
a panel of three arbitrators, each of whom shall be experienced in the
resolution of disputes, controversies or claims relating to employment issues.
One such arbitrator shall be selected by Employee, one such arbitrator shall be
selected by the Company, and one such arbitrator shall be selected by the
arbitrators selected by the Company and Employee. Resolution of disputes,
controversies or claims shall be determined by a majority vote of the
arbitration panel. The Company shall bear all fees, costs and expenses of the
arbitration, and the legal expenses and attorneys' fees of each party, and costs
-8-
<PAGE>
of all experts and witnesses, unless the arbitration award is granted to the
Company, in which event, the Company and Employee shall share equally all fees,
costs and expenses of the arbitration, including reasonable attorney's fees. Any
award rendered shall be final and conclusive upon the parties and any judgment
thereon may be enforced in any court having jurisdiction, unless otherwise
provided by Pennsylvania law. The party submitting such dispute shall request
the American Arbitration Association to allow the parties (i) to request
reasonable discovery pursuant to the rules then in effect under the Federal
Rules of Civil Procedure (as used in the United States District Court in the
Eastern District of Pennsylvania) for a period not to exceed 60 days prior to
such arbitration and (ii) to require the testimony to be transcribed. The fact
that arbitration has commenced shall not impair the exercise of any termination
rights in accordance with the provisions of this Agreement.
(b) Company. For purposes of Sections 7, 8, 9 and 10, the term "Company"
-------
shall be deemed to include any incorporated or unincorporated entities that are
controlled, directly or indirectly, by the Company through ownership, agreement
or otherwise.
(c) Binding Effect. All of the terms and provisions of this Agreement
--------------
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(d) Notices. All notices required to be given under this Agreement shall
-------
be in writing and shall be deemed to have been given when personally delivered
or when mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed as follows:
TO EMPLOYEE:
Mr. Richard C. Schwenk, Jr.
107 Weatherburn Way
Newtown Square, PA 19073
-9-
<PAGE>
TO THE COMPANY:
443 S. Gulph Road
King of Prussia, PA 19406
Fax: 610-962-5109
Attn: Chairman of the Board
With a copy to:
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103
Fax: 215-963-5299
Attn: Stephen M. Goodman, Esquire
(e) Entire Agreement; Modification. This Agreement constitutes the entire
------------------------------
agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the termination of the Employment Term and
--------
of the Employee's employment by the Company, this Agreement shall continue to
bind the parties for so long as any obligations remain under the terms of this
Agreement.
(g) Waiver. No waiver of any breach of this Agreement shall be construed
------
to be a waiver as to succeeding breaches.
(h) Severability. If any provision of this Agreement or application
-------------
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or
-10-
<PAGE>
application and shall not invalidate or render unenforceable such provision in
any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto duly executed this Agreement as of the day and year first written
above.
TELESPECTRUM WORLDWIDE INC.
By: /s/ J. Brian O'Neill
--------------------------
Chairman of the Board
/s/ Richard C. Schwenk, Jr.
-----------------------------
RICHARD C. SCHWENK, JR.
-11-
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Bonus
Payout
Revenues* EPS* Rate
--------- ---- ------
<S> <C> <C>
95 95 .50
100 95 .75
110 95 .75
95 100 1.00
95 110 1.00
100 100 1.00
110 100 1.25
100 110 1.25
110 110 1.50
</TABLE>
* As set forth in the Company's annual budget
-12-
<PAGE>
EXHIBIT B
FRINGE BENEFITS
---------------
(a) Health insurance and short-term and long-term disability insurance for
the Employee, with the same benefits generally provided to the Company's most
senior executive employees from time to time during the Employment Term.
(b) Eligibility to participate in any 401(k) savings plans maintained by
the Company during the Employment Term.
(c) Term life insurance.
(d) Eligibility to participate in any employee stock option plan maintained
by the Company during the Employment Term.
(e) Reimbursement, in accordance with the Company's policies, upon proper
accounting, of the monthly fee of a mobile telephone and charges for any
business telephone calls made on the Employee's personal telephone.
(f) Paid holidays in accordance with the Company's policies.
(g) Paid vacation of four weeks per year.
(h) An automobile allowance of $1,000 per month.
-13-
<PAGE>
TELESPECTRUM WORLDWIDE INC.
1996 EQUITY COMPENSATION PLAN
-----------------------------
The purpose of the Telespectrum Worldwide Inc. 1996 Equity Compensation
Plan (the "Plan") is to provide (i) designated key employees (including
employees who are also officers or directors) of Telespectrum Worldwide Inc.
(the "Company") and its subsidiaries, (ii) independent contractors and
consultants who perform valuable services for the Company or its subsidiaries
and (iii) non-employee members of the Board of Directors of the Company (the
"Board") with the opportunity to receive grants of incentive stock options,
nonqualified stock options, stock appreciation rights, restricted stock and
performance units. The Company believes that the Plan will cause the
participants to contribute materially to the growth of the Company, thereby
benefitting the Company's shareholders, and will align the economic interests of
the participants with those of the shareholders.
1. Administration
--------------
(a) The Plan shall be administered and interpreted by a committee (the
"Committee"), which shall consist of not less than two persons appointed by the
Board. Prior to the Effective Date specified in Section 22(b), the Board may
exercise any power or authority of the Committee under the Plan and, in such
case, any reference to the Committee hereunder shall be deemed to include the
Board as a whole.
On and after the Effective Date set forth in Section 22(b), the Committee
shall consist of two or more persons appointed by the Board, all of whom shall
be "non-employee directors" as defined under Rule 16b-3 under the Securities
Exchange Act of 1934 (the "Exchange Act") and "outside directors" as defined
under section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code") and related Treasury regulations.
(b) Except as provided in Section 6, the Committee shall have the sole
authority to (i) determine the individuals to whom grants shall be made under
the Plan, (ii) determine the type, size and terms of the grants to be made to
each such individual, (iii) determine the time when the grants will be made and
the duration of any applicable exercise or restriction period, including the
criteria for exercisability and the acceleration of exercisability and (iv) deal
with any other matters arising under the Plan.
(c) The Committee shall have full power and authority to administer and
interpret the Plan, to make factual determinations and to adopt or amend such
rules, regulations, agreements and instruments for implementing the Plan and for
the conduct of its business as it deems necessary or advisable, in its sole
discretion. The Committee's interpretations of the Plan and all determinations
made by the Committee pursuant to the powers vested in it hereunder shall be
conclusive and binding on all persons having any interest in the Plan or
1
<PAGE>
in any awards granted hereunder. All powers of the Committee shall be executed
in its sole discretion, in the best interest of the Company, not as a fiduciary,
and in keeping with the objectives of the Plan and need not be uniform as to
similarly situated individuals.
2. Grants
------
Awards under the Plan may consist of grants of incentive stock options as
described in Section 5 ("Incentive Stock Options"), nonqualified stock options
as described in Section 5 and Section 6 ("Nonqualified Stock Options")(Incentive
Stock Options and Nonqualified Stock Options are collectively referred to as
"Options"), restricted stock as described in Section 7 ("Restricted Stock"),
stock appreciation rights as described in Section 8 ("SARs"), and performance
units as described in Section 9 ("Performance Units") (hereinafter collectively
referred to as "Grants"). All Grants shall be subject to the terms and
conditions set forth herein and to such other terms and conditions consistent
with this Plan as the Committee deems appropriate and as are specified in
writing by the Committee to the individual in a grant instrument (the "Grant
Instrument") or an amendment to the Grant Instrument. The Committee shall
approve the form and provisions of each Grant Instrument. Grants under a
particular Section of the Plan need not be uniform as among the grantees.
3. Shares Subject to the Plan
--------------------------
(a) Subject to the adjustment specified below, the aggregate number of
shares of common stock of the Company ("Company Stock") that may be issued under
the Plan is 230,000 shares, and the maximum aggregate number of shares of
Company Stock that shall be subject to Grants made under the Plan to any
individual during any calendar year shall be 500,000 shares. The shares may be
authorized but unissued shares of Company Stock or reacquired shares of Company
Stock, including shares purchased by the Company on the open market for purposes
of the Plan. If and to the extent Options or SARs granted under the Plan
terminate, expire, or are cancelled, forfeited, exchanged or surrendered without
having been exercised or if any shares of Restricted Stock or Performance Units
are forfeited, the shares subject to such Grants shall again be available for
purposes of the Plan.
(b) If there is any change in the number or kind of shares of Company Stock
outstanding (i) by reason of a stock dividend, spin off, recapitalization, stock
split, or combination or exchange of shares, (ii) by reason of a merger,
reorganization or consolidation in which the Company is the surviving
corporation, (iii) by reason of a reclassification or change in par value, or
(iv) by reason of any other extraordinary or unusual event affecting the
outstanding Company Stock as a class without the Company's receipt of
consideration, or if the value of outstanding shares of Company Stock is
substantially reduced as a result of a spinoff or the Company's payment of an
extraordinary dividend or distribution, the maximum number of shares of Company
Stock available for Grants, the maximum number of shares of Company Stock that
any individual participating in the Plan may be granted in any year, the number
of shares covered by outstanding Grants, the kind of shares issued under the
Plan, and
2
<PAGE>
the price per share or the applicable market value of such Grants may
appropriately adjusted by the Committee to reflect any increase or decrease in
the number of, or change in the kind or value of, of issued shares of Company
Stock to preclude the enlargement or dilution of rights and benefits under such
Grants; provided, however, that any fractional shares resulting from such
adjustment shall be eliminated. Any adjustments determined by the Committee
shall be final, binding and conclusive.
4. Eligibility for Participation
-----------------------------
(a) Prior to the Effective Date specified in Section 22(b), members of the
Board who are not employees of the Company or any of its subsidiaries ("Non-
Employee Directors") shall be eligible to participate in the Plan, but shall not
be eligible to receive Incentive Stock Options. After the Effective Date
specified in Section 22(b), Non-Employee Directors shall be eligible to receive
Grants only under Section 6 of the Plan. Any independent contractors or
consultants who perform valuable services to the Company or any of its
subsidiaries ("Consultants") shall be eligible to participate in the Plan, but
shall not be eligible to receive Incentive Stock Options.
(b) The Committee shall select the Employees, Non-Employee Directors and
Consultants to receive Grants and shall determine the number of shares of
Company Stock subject to a particular Grant in such manner as the Committee
determines. Employees, Consultants and Non-Employee Directors who receive
Grants under this Plan shall hereinafter be referred to as "Grantees".
5. Granting of Options
-------------------
(a) Number of Shares. The Committee shall determine the number of shares
----------------
of Company Stock that will be subject to each Grant of Options.
(b) Type of Option and Price.
------------------------
(i) The Committee may grant Incentive Stock Options that are intended
to qualify as "incentive stock options" within the meaning of section 422 of the
Code or Nonqualified Stock Options that are not intended so to qualify or any
combination of Incentive Stock Options and Nonqualified Stock Options, all in
accordance with the terms and conditions set forth herein.
(ii) The purchase price (the "Exercise Price") of Company Stock
subject to an Option shall be determined by the Committee and may be equal to,
greater than, or less than the Fair Market Value (as defined below) of a share
of such Stock on the date the Option is granted; provided, however, that (x) the
Exercise Price of an Incentive Stock Option shall be equal to, or greater than,
the Fair Market Value of a share of Company Stock on the date the Incentive
Stock Option is granted and (y) an Incentive Stock Option may not be granted
3
<PAGE>
to an Employee who, at the time of grant, owns stock possessing more than 10
percent of the total combined voting power of all classes of stock of the
Company or any parent or subsidiary of the Company, unless the Exercise Price
per share is not less than 110% of the Fair Market Value of Company Stock on the
date of grant.
(iii) If the Company Stock is traded in a public market, then the
Fair Market Value per share shall be determined as follows: (x) if the principal
trading market for the Company Stock is a national securities exchange or the
Nasdaq National Market, the last reported sale price thereof on the relevant
date or (if there were no trades on that date) the latest preceding date upon
which a sale was reported, or (y) if the Company Stock is not principally traded
on such exchange or market, the mean between the last reported "bid" and "asked"
prices of Company Stock on the relevant date, as reported on Nasdaq or, if not
so reported, as reported by the National Daily Quotation Bureau, Inc. or as
reported in a customary financial reporting service, as applicable and as the
Committee determines. If the Company Stock is not traded in a public market or
subject to reported transactions or "bid" or "ask" quotations as set forth
above, the Fair Market Value per share shall be as determined by the Committee.
(c) Option Term. The Committee shall determine the term of each Option.
-----------
The term of any Option shall not exceed ten years from the date of grant.
However, an Incentive Stock Option that is granted to an Employee who, at the
time of grant, owns stock possessing more than 10 percent of the total combined
voting power of all classes of stock of the Company, or any parent or subsidiary
of the Company, may not have a term that exceeds five years from the date of
grant.
(d) Exercisability of Options. Options shall become exercisable in
-------------------------
accordance with such terms and conditions, consistent with the Plan, as may be
determined by the Committee and specified in the Grant Instrument. The
Committee may accelerate the exercisability of any or all outstanding Options at
any time for any reason.
(e) Termination of Employment, Disability or Death.
----------------------------------------------
(i) Except as provided below, an Option may only be exercised while
the Grantee is employed by the Company as an Employee, Consultant or member of
the Board. In the event that a Grantee ceases to be employed by the Company for
any reason other than a "disability", death, or "termination for cause", any
Option which is otherwise exercisable by the Grantee shall terminate unless
exercised within 90 days of the date on which the Grantee ceases to be employed
by the Company (or within such other period of time as may be specified by the
Committee), but in any event no later than the date of expiration of the Option
term. Any of the Grantee's Options that are not otherwise exercisable as of the
date on which the Grantee ceases to be employed by the Company shall terminate
as of such date.
(ii) In the event the Grantee ceases to be employed by the Company on
4
<PAGE>
account of a "termination for cause" by the Company, any Option held by the
Grantee shall terminate as of the date the Grantee ceases to be employed by the
Company.
(iii) In the event the Grantee ceases to be employed by the Company
because the Grantee is "disabled", any Option which is otherwise exercisable by
the Grantee shall terminate unless exercised within one year after the date on
which the Grantee ceases to be employed by the Company (or within such other
period of time as may be specified by the Committee, but in any event no later
than the date of expiration of the Option term. Any of the Grantee's Options
which are not otherwise exercisable as of the date on which the Grantee ceases
to be employed by the Company shall terminate as of such date.
(iv) If the Grantee dies while employed by the Company or within 90
days after the date on which the Grantee ceases to be employed on account of a
termination of employment specified in Section 5(e)(i) above (or within such
other period of time as may be specified by the Committee), any Option that is
otherwise exercisable by the Grantee shall terminate unless exercised within one
year after the date on which the Grantee ceases to be employed by the Company
(or within such other period of time as may be specified by the Committee), but
in any event no later than the date of expiration of the Option term. Any of
the Grantee's Options that are not otherwise exercisable as of the date on which
the Grantee ceases to be employed by the Company shall terminate as of such
date.
(v) For purposes of this Section 5(e) and Sections 6, 7, 8 and 9:
(A) The term "Company" shall mean the Company and its parent and
subsidiary corporations.
(B) "Employed by the Company" shall mean employment as an Employee,
Consultant or member of the Board (so that, for purposes of exercising Options
and SARs and satisfying conditions with respect to Restricted Stock and
Performance Units, a Grantee shall not be considered to have terminated
employment until the Grantee ceases to be an Employee, Consultant and member of
the Board), unless the Committee determines otherwise.
(C) "Disability" shall mean a Grantee's becoming disabled within the
meaning of section 22(e)(3) of the Code.
(D) "Termination for cause" shall mean, except to the extent specified
otherwise by the Committee, a finding by the Committee that the Grantee has
breached his or her employment or service contract with the Company, or has been
engaged in disloyalty to the Company, including, without limitation, fraud,
embezzlement, theft, commission of a felony or proven dishonesty in the course
of his or her employment or service, or has disclosed trade secrets or
confidential information of the Company to persons not entitled to receive such
information. In the event a Grantee's employment is
5
<PAGE>
terminated for cause, in addition to the immediate termination of all
Grants, the Grantee shall automatically forfeit all Option shares for any
exercised portion of an Option for which the Company has not yet delivered
the share certificates, upon refund by the Company of the Exercise Price
paid by the Grantee for such shares.
(f) Exercise of Options. A Grantee may exercise an Option that has become
-------------------
exercisable, in whole or in part, by delivering a notice of exercise to the
Company with payment of the Exercise Price. The Grantee shall pay the Exercise
Price for an Option as specified by the Committee (x) in cash, (y) with the
approval of the Committee, by delivering shares of Company Stock owned by the
Grantee owned by the Grantee for the period necessary to avoid a charge to the
Company's earnings for financial reporting purposes (including Company Stock
acquired in connection with the exercise of an Option, subject to such
restrictions as the Committee deems appropriate) and having a Fair Market Value
on the date of exercise equal to the Exercise Price or (z) except with respect
to Options granted under Section 6 and held by persons who are then Non-Employee
Directors by such other method as the Committee may approve, including payment
through a broker in accordance with procedures permitted by Regulation T of the
Federal Reserve Board or any successor regulation of the agency than responsible
for administering margin regulations pertaining to securities brokers. Non-
Employee Directors who hold Options granted under Section 6 may make payment
through a broker in accordance with procedures permitted by Regulation T. The
Grantee shall pay the Exercise Price and the amount of any withholding tax due
(pursuant to Section 10) at the time of exercise. Shares of Company Stock shall
not be issued upon exercise of an Option until the Exercise Price is fully paid
and any required withholding is made.
(g) Limits on Incentive Stock Options. Each Incentive Stock Option shall
---------------------------------
provide that, if the aggregate Fair Market Value of the stock on the date of the
grant with respect to which Incentive Stock Options are exercisable for the
first time by a Grantee during any calendar year, under the Plan or any other
stock option plan of the Company or a parent or subsidiary, exceeds $100,000,
then the option, as to the excess, shall be treated as a Nonqualified Stock
Option. An Incentive Stock Option shall not be granted to any person who is not
an Employee of the Company or a parent or subsidiary (within the meaning of
section 424(f) of the Code).
6. Formula Option Grants to Non-Employee Directors
-----------------------------------------------
This Section 6 shall apply to any grant of an Option to a Non-Employee
Director after the Effective Date specified in Section 22(b).
(a) Initial Grant. Each Non-Employee Director who first becomes a member
-------------
of the Board after the Effective Date specified in Section 22(b) shall receive a
grant of a Nonqualified Stock Option to purchase 2,500 shares of Company Stock
on the date as of which he or she first becomes a member of the Board.
6
<PAGE>
(b) Annual Grants. On each date that the Company holds its annual meeting
-------------
of shareholders, commencing with the 1997 annual meeting, each Non-Employee
Director who is in office immediately after the annual election of directors
(other than a director who is first elected to the Board at such meeting) shall
receive a grant of a Nonqualified Stock Option to purchase 2,500 shares of
Company Stock. The date of grant of each such annual Grant shall be the date of
the annual meeting of the Company's shareholders.
(c) Exercise Price. The Exercise Price per share of Company Stock subject
--------------
to an Option granted under this Section 6 shall be equal to the Fair Market
Value of a share of Company Stock on the date of grant.
(d) Option Term and Exercisability. The term of each Option granted
------------------------------
pursuant to this Section 6 shall be ten years. Options granted under this
Section 6 shall be fully exercisable as of the date of grant.
(e) Payment of Exercise Price.
-------------------------
(i) The Exercise Price for an Option granted under this Section 6
shall be paid in cash. The Grantee shall pay the Exercise Price and the amount
of any withholding tax due at the time of exercise. Shares of Company Stock
shall not be issued upon exercise of an Option until the Exercise Price is fully
paid and any required withholding is made.
(ii) A Grantee may exercise an Option granted under this Section 6 by
delivering to the Committee a notice of exercise as described below, with
accompanying payment of the Exercise Price in accordance with Subsection (i)
above. The notice of exercise may instruct the Company to deliver shares of
Company Stock due upon the exercise of the Option to any registered broker or
dealer designated by the Committee in lieu of delivery to the Grantee. Such
instructions shall designate the account into which the shares are to be
deposited.
(f) Applicability of Plan Provisions. Except as otherwise provided in this
--------------------------------
Section 6, Nonqualified Stock Options granted to Non-Employee Directors shall be
subject to the provisions of this Plan applicable to Nonqualified Stock Options
granted to other persons, provided however that (i) if an event described in
Section 3(b) occurs, appropriate adjustments, as described in that Section,
shall be made automatically, (ii) with respect to the provisions of Section
5(e), the Committee shall not have discretion to modify the terms of such
provisions in the Grant Instrument, and (iii) in the event of a Change of
Control (as defined in Section 12), the provisions of Section 13 shall apply to
Options granted pursuant to this Section 6, except that the Committee shall not
have discretion under Section 13(c) to modify the automatic provisions of that
Section.
(g) Administration. The provisions of this Section 6 are intended to
--------------
operate automatically and not require administration. To the extent that any
administrative
7
<PAGE>
determinations are required, any determinations with respect to the provisions
of this Section 6 shall be made by the members of the Board who are not eligible
to receive Grants under this Section 6, but in no event shall such
determinations affect the eligibility of Grantees, the determination of the
Exercise Price, the timing of the Grants or the number of shares subject to
Options granted hereunder. If at any time there are not sufficient shares
available under the Plan to permit an automatic Grant as described in this
Section 6, the Grant shall be reduced pro rata (to zero, if necessary) so as not
to exceed the number of shares then available under the Plan.
7. Restricted Stock Grants
-----------------------
The Committee may issue shares of Company Stock to an Employee, Non-
Employee Director (but only before the Effective Date specified in Section
22(b)) or Consultant under a Grant of Restricted Stock, upon such terms as the
Committee deems appropriate. The following provisions are applicable to
Restricted Stock:
(a) General Requirements. Shares of Company Stock issued pursuant to
--------------------
Restricted Stock Grants may be issued for consideration or for no consideration
as determined by the Committee. The Committee may establish conditions under
which restrictions on shares of Restricted Stock shall lapse over a period of
time or according to such other criteria as the Committee deems appropriate.
The period of time during which the Restricted Stock will remain subject to
restrictions will be designated in the Grant Instrument as the "Restriction
Period."
(b) Number of Shares. The Committee shall determine the number of shares
----------------
of Company Stock to be issued pursuant to a Restricted Stock Grant and the
restrictions applicable to such shares.
(c) Requirement of Employment. If the Grantee ceases to be employed by the
-------------------------
Company (as defined in Section 5(e)) during a period designated in the Grant
Instrument as the Restriction Period, or if other specified conditions are not
met, the Restricted Stock Grant shall terminate as to all shares covered by the
Grant as to which the restrictions have not lapsed, and those shares of Company
Stock must be immediately returned to the Company. The Committee may, however,
provide for complete or partial exceptions to this requirement as it deems
appropriate.
(d) Restrictions on Transfer and Legend on Stock Certificate. During the
--------------------------------------------------------
Restriction Period, a Grantee may not sell, assign, transfer, pledge or
otherwise dispose of the shares of Restricted Stock except to a Successor
Grantee under Section 11(a). Each certificate for a share of Restricted Stock
shall contain a legend giving appropriate notice of the restrictions in the
Grant. The Grantee shall be entitled to have the legend removed from the stock
certificate covering the shares subject to restrictions when all restrictions on
such shares have lapsed. The Committee, in its sole discretion, may determine
that the Company will not issue
8
<PAGE>
certificates for shares of Restricted Stock until all restrictions on such
shares have lapsed, or that the Company will retain possession of certificates
for shares of Restricted Stock until all restrictions on such shares have
lapsed.
(e) Right to Vote and to Receive Dividends. Unless the Committee
--------------------------------------
determines otherwise, during the Restriction Period, the Grantee shall have the
right to vote shares of Restricted Stock and to receive any dividends or other
distributions paid on such shares, subject to any restrictions deemed
appropriate by the Committee.
(f) Lapse of Restrictions. All restrictions imposed on Restricted Stock
---------------------
shall lapse upon the expiration of the applicable Restriction Period and the
satisfaction of all conditions imposed by the Committee. The Committee may
determine, as to any or all Restricted Stock Grants, that the restrictions shall
lapse without regard to any Restriction Period.
8. Stock Appreciation Rights
-------------------------
(a) General Requirements. The Committee may grant stock appreciation
--------------------
rights ("SARs") to any Grantee separately or in tandem with any Option (for all
or a portion of the applicable Option). Tandem SARs may be granted either at
the time the Option is granted or at any time thereafter while the Option
remains outstanding; provided, however, that, in the case of an Incentive Stock
Option, SARs may be granted only at the time of the Grant of the Incentive Stock
Option. The Committee shall establish the base amount of the SAR at the time
the SAR is granted. Unless the Committee determines otherwise, the base amount
of each SAR shall be equal to the per share Exercise Price of the related Option
or, if there is no related Option, the Fair Market Value of a share of Company
Stock as of the date of Grant of the SAR.
(b) Tandem SARs. In the case of tandem SARs, the number of SARs granted to
-----------
a Grantee that shall be exercisable during a specified period shall not exceed
the number of shares of Company Stock that the Grantee may purchase upon the
exercise of the related Option during such period. Upon the exercise of an
Option, the SARs relating to the Company Stock covered by such Option shall
terminate. Upon the exercise of SARs, the related Option shall terminate to the
extent of an equal number of shares of Company Stock.
(c) Exercisability. An SAR shall be exercisable during the period
--------------
specified by the Committee in the Grant Instrument and shall be subject to such
vesting and other restrictions as may be specified in the Grant Instrument. The
Committee, in its sole discretion, may accelerate the exercisability of any or
all outstanding SARs at any time for any reason. SARs may only be exercised
while the Grantee is employed by the Company or during the applicable period
after termination of employment as described in Section 5(e). A tandem SAR shall
be exercisable only during the period when the Option to which it is related is
also exercisable. After the Effective Date specified in Section 22(b), no SAR
may be exercised for
9
<PAGE>
cash by an officer or director of the Company who is subject to Section 16 of
the Exchange Act, except in accordance with Rule 16b-3 under the Exchange Act.
(d) Value of SARs. When a Grantee exercises SARs, the Grantee shall
-------------
receive in settlement of such SARs an amount equal to the value of the stock
appreciation for the number of SARs exercised, payable in cash, Company Stock or
a combination thereof. The stock appreciation for an SAR is the amount by which
the Fair Market Value of the underlying Company Stock on the date of exercise of
the SAR exceeds the base amount of the SAR as described in Subsection (a).
(e) Form of Payment. The Committee shall determine whether the
---------------
appreciation in an SAR shall be paid in the form of cash, shares of Company
Stock, or a combination of the two, in such proportion as the Committee deems
appropriate. For purposes of calculating the number of shares of Company Stock
to be received, shares of Company Stock shall be valued at their Fair Market
Value on the date of exercise of the SAR. If shares of Company Stock are to be
received upon exercise of an SAR, cash shall be delivered in lieu of any
fractional share.
9. Performance Units
-----------------
(a) General Requirements. The Committee may grant performance units
--------------------
("Performance Units") to a Grantee. Each Performance Unit shall represent the
right of the Grantee to receive an amount based on the value of the Performance
Unit, if performance goals established by the Committee are met. A Performance
Unit shall be based on the Fair Market Value of a share of Company Stock or on
such other measurement base as the Committee deems appropriate. The Committee
shall determine the number of Performance Units to be granted and the
requirements applicable to such Units.
(b) Performance Period and Performance Goals. When Performance Units are
----------------------------------------
granted, the Committee shall establish the performance period during which
performance shall be measured (the "Performance Period"), performance goals
applicable to the Units ("Performance Goals") and such other conditions of the
Grant as the Committee deems appropriate. Performance Goals may relate to the
financial performance of the Company or its operating units, the performance of
Company Stock, individual performance, or such other criteria as the Committee
deems appropriate.
(c) Payment with respect to Performance Units. At the end of each
-----------------------------------------
Performance Period, the Committee shall determine to what extent the Performance
Goals and other conditions of the Performance Units are met and the amount, if
any, to be paid with respect to the Performance Units. Payments with respect to
Performance Units shall be made in cash, in Company Stock, or in a combination
of the two, as determined by the Committee.
10
<PAGE>
(d) Requirement of Employment. If the Grantee ceases to be employed by the
-------------------------
Company (as defined in Section 5(e)) during a Performance Period, or if other
conditions established by the Committee are not met, the Grantee's Performance
Units shall be forfeited. The Committee may, however, provide for complete or
partial exceptions to this requirement as it deems appropriate.
10. Withholding of Taxes
--------------------
(a) Required Withholding. All Grants under the Plan shall be subject to
--------------------
applicable federal (including FICA), state and local tax withholding
requirements. The Company shall have the right to deduct from all Grants paid
in cash, or from other wages paid to the Grantee, any federal, state or local
taxes required by law to be withheld with respect to such Grants. In the case of
Options and other Grants paid in Company Stock, the Company may require the
Grantee or other person receiving such shares to pay to the Company the amount
of any such taxes that the Company is required to withhold with respect to such
Grants, or the Company may deduct from other wages paid by the Company the
amount of any withholding taxes due with respect to such Grants.
(b) Election to Withhold Shares. A Grantee may elect to satisfy the
---------------------------
Company's income tax withholding obligation with respect to an Option, SAR,
Restricted Stock or Performance Units paid in Company Stock by having shares
withheld up to an amount that does not exceed the Grantee's maximum marginal tax
rate for federal (including FICA), state and local tax liabilities. The
election must be in a form and manner prescribed by the Committee and shall be
subject to the prior approval of the Committee. If the Grantee is a director or
officer who is subject to Section 16 of the Exchange Act, the election must be
made in compliance with Rule 16b-3 under the Exchange Act.
11. Transferability of Grants
-------------------------
(a) Only the Grantee or his or her authorized representative may exercise
rights under a Grant. Such persons may not transfer those rights except by will
or by the laws of descent and distribution or, with respect to Grants other than
Incentive Stock Options, if permitted under Rule 16b-3 of the Exchange Act (to
the extent applicable) and if permitted in any specific case by the Committee in
its sole discretion, pursuant to a qualified domestic relations order (as
defined under the Code or Title I of the ERISA or the regulations thereunder).
When a Grantee dies, the representative or other person entitled to succeed to
the rights of the Grantee ("Successor Grantee") may exercise such rights. A
Successor Grantee must furnish proof satisfactory to the Company of his or her
right to receive the Grant under the Grantee's will or under the applicable laws
of descent and distribution.
(b) Notwithstanding the foregoing, the Committee may provide, in a Grant
Instrument, that a Grantee may transfer Nonqualified Stock Options to his or her
children, grandchildren or spouse or to one or more trusts for the benefit of
such family members or to
11
<PAGE>
partnerships in which such family members are the only partners (a "Family
Transfer"), provided that the Grantee receives no consideration for a Family
Transfer and the Nonqualified Stock Options transferred in a Family Transfer
continue to be subject to the same terms and conditions that were applicable to
such Nonqualified Stock Options immediately prior to the Family Transfer.
12. Right of First Refusal
----------------------
Prior to the Effective Date specified in Section 22(b), if at any time an
individual desires to sell, encumber, or otherwise dispose of shares of Company
Stock distributed to him under this Plan, the individual shall first offer the
shares to the Company by giving the Company written notice disclosing: (a) the
name of the proposed transferee of the Company Stock; (b) the certificate number
and number of shares of Company Stock proposed to be transferred or encumbered;
(c) the proposed price; (d) all other terms of the proposed transfer; and (e) a
written copy of the proposed offer. Within 60 days after receipt of such
notice, the Company shall have the option to purchase all or part of such
Company Stock at the then current Fair Market Value (as defined in Section 5(b))
and may pay such price in installments over a period not to exceed four years,
at the discretion of the Committee.
In the event the Company does not exercise the option to purchase Company
Stock, as provided above, the individual shall have the right to sell, encumber,
or otherwise dispose of his shares of Company Stock on the terms of the transfer
set forth in the written notice to the Company, provided such transfer is
effected within 15 days after the expiration of the option period. If the
transfer is not effected within such period, the Company must again be given an
option to purchase, as provided above.
On and after the Effective Date specified in Section 22(b), the Company
shall have no further right to purchase shares of Company Stock under this
Section, and its limitations shall be null and void.
Notwithstanding the foregoing, the Committee may require that a Grantee
execute a stockholder's agreement, with such terms as the Committee deems
appropriate, with respect to any Company Stock distributed pursuant to this
Plan, in which case the provisions of this Section 9 and Section 10 below shall
not apply to such Company Stock.
13. Purchase by the Company
-----------------------
Prior to the Effective Date specified in Section 22(b), if a Grantee ceases
to be employed by the Company, the Company shall have the right to purchase all
or part of any Company Stock distributed to him under this Plan at its then
current Fair Market Value (as defined in Section 5(b)); provided, however, that
such repurchase shall be made in accordance with applicable accounting rules to
avoid adverse accounting treatment.
12
<PAGE>
14. Change of Control of the Company
--------------------------------
As used herein, a "Change of Control" shall be deemed to have occurred if:
(a) As a result of any transaction, any one stockholder, other than an
existing stockholder as of the effective date of the Plan (or his beneficiary or
estate), becomes a beneficial owner, directly or indirectly, of securities of
the Company representing more than 40% of the common stock of the Company or the
combined voting power of the Company's then outstanding securities;
(b) A liquidation or dissolution of the Company or sale (other than a
transfer to a subsidiary) of all or substantially all of the Company's assets
occurs;
(c) On or after the Effective Date specified in Section 22(b), any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 50% or
more of the voting power of the then outstanding securities of the Company;
(d) The shareholders of the Company approve (or, if shareholder
approval is not required, the Board approves) an agreement providing for (i) the
merger or consolidation of the Company with another corporation where the
shareholders of the Company, immediately prior to the merger or consolidation,
will not beneficially own, immediately after the merger or consolidation, shares
entitling such shareholders to 50% or more of all votes to which all
shareholders of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote), or where the members of the Board,
immediately prior to the merger or consolidation, would not, immediately after
the merger or consolidation, constitute a majority of the board of directors of
the surviving corporation, (ii) the sale or other disposition of all or
substantially all of the assets of the Company, or (iii) a liquidation or
dissolution of the Company;
(e) Any person has commenced a tender offer or exchange offer for 50%
or more of the voting power of the then outstanding shares of the Company; or
(f) At least a majority of the Board does not consist of individuals
who were elected, or nominated for election, by the directors in office at the
time of such election or nomination.
15. Consequences of a Change of Control
-----------------------------------
(a) Upon a Change of Control (i) the Company shall provide each Grantee
with outstanding Grants written notice of such Change of Control, (ii) all
outstanding Options and
13
<PAGE>
SARs shall automatically accelerate and become fully exercisable, (iii) the
restrictions and conditions on all outstanding Restricted Stock shall
immediately lapse, and (iv) Grantees holding Performance Units shall receive a
payment in settlement of such Performance Units, in an amount determined by the
Committee, based on the Grantee's target payment for the Performance Period and
the portion of the Performance Period that precedes the Change of Control.
(b) In addition, upon a Change of Control described in Section 12(b)(i)
where the Company is not the surviving corporation (or survives only as a
subsidiary of another corporation), all outstanding Options and SARs shall be
assumed by, or replaced with comparable options or rights by, the surviving
corporation.
(c) Notwithstanding the foregoing, subject to subsection (d) below, in the
event of a Change of Control, the Committee may take one or both of the
following actions: the Committee may (i) require that Grantees surrender their
outstanding Options and SARs in exchange for a payment by the Company, in cash
or Company Stock as determined by the Committee, in an amount equal to the
amount by which the then Fair Market Value of the shares of Company Stock
subject to the Grantee's outstanding Options and SARs exceeds the Exercise Price
of the Options or the base amount of the SARs, as applicable, and (ii) terminate
any or all outstanding Options and SARs at such time as the Committee deems
appropriate. Such surrender shall take place as of the date of the Change of
Control or such other date as the Committee may specify, and, in the case of an
Option or SAR held by a Grantee who is subject to Section 16(b) of the Exchange
Act, any such surrender or payment shall be made on such date as the Committee
shall determine consistent with Rule 16b-3 under the Exchange Act.
(d) Notwithstanding anything in the Plan to the contrary, in the event of a
Change of Control, the Committee shall not have the right to take actions
described in the Plan (including without limitation actions described in
Subsection (c) above) that would make the Change of Control ineligible for
pooling of interest accounting treatment or that would make the Change of
Control ineligible for desired tax treatment if, in the absence of such right,
the Change of Control would qualify for such treatment and the Company intends
to use such treatment with respect to the Change of Control.
16. Amendment and Termination of the Plan
-------------------------------------
(a) Amendment. The Board may amend or terminate the Plan at any time;
---------
provided, however, that any amendment that increases the aggregate number (or
individual limit for any single Grantee) of shares of Company Stock that may be
issued under the Plan (other than by operation of Section 3(b)), or modifies the
requirements as to eligibility for participation in the Plan, shall be subject
to approval by the shareholders of the Company and provided, further, that the
Board shall not amend the Plan without shareholder approval if such approval is
required by Rule 16b-3 of the Exchange Act or Section 162(m) of the Code.
14
<PAGE>
(b) Termination of Plan. The Plan shall terminate on the day immediately
-------------------
preceding the tenth anniversary of its effective date unless terminated earlier
by the Board or unless extended by the Board with the approval of the
shareholders.
(c) Termination and Amendment of Outstanding Grants. A termination or
-----------------------------------------------
amendment of the Plan that occurs after a Grant is made shall not materially
impair the rights of a Grantee unless the Grantee consents or unless the
Committee acts under Section 21(b). The termination of the Plan shall not impair
the power and authority of the Committee with respect to an outstanding Grant.
Whether or not the Plan has terminated, an outstanding Grant may be terminated
or amended under Section 21(b) or may be amended by agreement of the Company and
the Grantee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling document. No
------------------
other statements, representations, explanatory materials or examples, oral or
written, may amend the Plan in any manner. The Plan shall be binding upon and
enforceable against the Company and its successors and assigns.
17. Funding of the Plan
-------------------
This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Grants under this Plan. In no event shall
interest be paid or accrued on any Grant, including unpaid installments of
Grants.
18. Rights of Participants
----------------------
Nothing in this Plan shall entitle any Employee, Consultant or other person
to any claim or right to be granted a Grant under this Plan, except as provided
in Section 6. Neither this Plan nor any action taken hereunder shall be
construed as giving any individual any rights to be retained by or in the employ
of the Company or any other employment rights.
19. No Fractional Shares
--------------------
No fractional shares of Company Stock shall be issued or delivered pursuant
to the Plan or any Grant. The Committee shall determine whether cash, other
awards or other property shall be issued or paid in lieu of such fractional
shares or whether such fractional shares or any rights thereto shall be
forfeited or otherwise eliminated.
20. Requirements for Issuance of Shares
-----------------------------------
No Company Stock shall be issued or transferred in connection with any
Grant hereunder unless and until all legal requirements applicable to the
issuance or transfer of such
15
<PAGE>
Company Stock have been complied with to the satisfaction of the Committee. The
Committee shall have the right to condition any Grant made to any Grantee
hereunder on such Grantee's undertaking in writing to comply with such
restrictions on his or her subsequent disposition of such shares of Company
Stock as the Committee shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof and certificates
representing such shares may be legended to reflect any such restrictions.
Certificates representing shares of Company Stock issued under the Plan will be
subject to such stop-transfer orders and other restrictions as may be applicable
under such laws, regulations and other obligations of the Company, including any
requirement that a legend or legends be placed thereon.
21. Headings
--------
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the Section shall
control.
22. Effective Date of the Plan.
--------------------------
(a) Plan Effective Date. Subject to the approval of the Company's
-------------------
shareholders, this Plan shall be effective on May 17, 1996.
(b) Effective Date of Section 16 and Section 162(m) Provisions. The
----------------------------------------------------------
provisions of the Plan that refer to, or are applicable to persons subject to,
Section 16 of the Exchange Act or Section 162(m) of the Code shall be effective,
if at all, upon the initial registration of the Company Stock under Section
12(g) of the Exchange Act, and shall remain effective thereafter for so long as
such stock is so registered.
23. Miscellaneous
-------------
(a) Substitute Grants. The Committee may make a Grant to an employee of
-----------------
another corporation who becomes an Employee by reason of a corporate merger,
consolidation, acquisition of stock or property, reorganization or liquidation
involving the Company or any of its subsidiaries in substitution for a stock
option or restricted stock grant made by such corporation ("Substituted Stock
Incentives"). The terms and conditions of the substitute grant may vary from
the terms and conditions required by the Plan and from those of the Substituted
Stock Incentives. The Committee shall prescribe the provisions of the
substitute grants.
(b) Compliance with Law. The Plan, the exercise of Options and SARs and
-------------------
the obligations of the Company to issue or transfer shares of Company Stock
under Grants shall be subject to all applicable laws and to approvals by any
governmental or regulatory agency as may be required. With respect to persons
subject to Section 16 of the Exchange Act, it is the intent of the Company that
the Plan and all transactions under the Plan comply with all applicable
provisions of Rule 16b-3 or its successors under the Exchange Act. The
Committee
16
<PAGE>
may revoke any Grant if it is contrary to law or modify a Grant to bring it into
compliance with any valid and mandatory government regulation. The Committee
may also adopt rules regarding the withholding of taxes on payments to Grantees.
The Committee may, in its sole discretion, agree to limit its authority under
this Section.
(c) Ownership of Stock. A Grantee or Successor Grantee shall have no
------------------
rights as a shareholder with respect to any shares of Company Stock covered by a
Grant until the shares are issued or transferred to the Grantee or Successor
Grantee on the stock transfer records of the Company.
(d) Governing Law. The validity, construction, interpretation and effect
-------------
of the Plan and Grant Instruments issued under the Plan shall exclusively be
governed by and determined in accordance with the law of the Commonwealth of
Pennsylvania.
17
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and to all references to our firm included in or made a part of this
registration statement.
Arthur Andersen llp
Philadelphia, PA
July 16, 1996
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET AND STATEMENT OF STOCKHOLDER'S EQUITY AS OF JUNE 30, 1996 AND STATEMENT OF
OPERATIONS FOR THE PERIOD FROM INCEPTION TO JUNE 30, 1996 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> APR-26-1996
<PERIOD-END> JUN-30-1996
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 500
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 500
<PP&E> 22
<DEPRECIATION> 0
<TOTAL-ASSETS> 22,446
<CURRENT-LIABILITIES> 2,006
<BONDS> 0
0
0
<COMMON> 85
<OTHER-SE> 20,355
<TOTAL-LIABILITY-AND-EQUITY> 22,446
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 419
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (419)
<INCOME-TAX> 0
<INCOME-CONTINUING> (419)
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<CHANGES> 0
<NET-INCOME> (419)
<EPS-PRIMARY> (.05)
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</TABLE>
