Contract
Exhibit 7.03
EXECUTION
COPY
This
SUPPORT AGREEMENT (this “Agreement”), dated as
of September 19, 2008, by and between EGS Acquisition Co LLC, a Delaware limited
liability company (“Purchaser”) and
Newbridge International Investment Ltd, a British Virgin Islands company (“Shareholder”).
WHEREAS,
concurrently with the execution of this Agreement, eTelecare Global Solutions,
Inc., a Philippines corporation (“Company”) and
Purchaser are entering into an Acquisition Agreement of even date herewith (the
“Acquisition
Agreement”);
WHEREAS,
capitalized terms used but not defined in this Agreement have the meanings
ascribed thereto in the Acquisition Agreement;
WHEREAS,
as of the date hereof, Shareholder is the record and beneficial owner of
4,436,624 shares of common stock, PhP2.00 par value (“Common Shares”) and
1,955,926 American Depository Shares (“ADSs”), each of which
represents the right to receive one Common Share (together, the “Shares”) as set forth
on Annex 1
hereto (such Shares, together with any other Common Shares or ADSs acquired by
Shareholder after the date hereof (including pursuant to any exercise of Company
Options or Company RSUs, or exercise or conversion of other securities), being
collectively referred to herein as the “Shareholder Shares”);
and
WHEREAS,
as a condition to its willingness to enter into the Acquisition Agreement,
Purchaser has required that Shareholder enter into this Agreement and, in order
to induce Purchaser to enter into the Acquisition Agreement, Shareholder is
willing to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Agreements of
Shareholder.
(a) Tender. Unless
this Section
1(a) shall have been terminated in accordance with the terms of this
Agreement, Shareholder shall (i) as promptly as practicable after the
commencement of the Offer and in any event with respect to the Shareholder
Shares owned as of the date of the commencement of the Offer, within ten (10)
business days of the commencement of the Offer, validly tender or cause to be
tendered all of the Shareholder Shares into the Offer, pursuant to and in
accordance with the terms of the Offer and (ii) not withdraw any Shareholder
Shares from the Offer. As promptly as practicable after the
commencement of the Offer and in any event with respect to the Shareholder
Shares owned as of the date of the commencement of the Offer, within ten (10)
business days of the commencement of the Offer, Shareholder shall (i) deliver to
the depositary designated in the Offer (the “Depositary”) (A) a
letter of transmittal with respect to the Shareholder Shares, complying with the
terms of the Offer, (B) a certificate or certificates representing such
Shareholder Shares or, in the case of a book-entry transfer of any
uncertificated Shareholder
Shares, an
“agent’s message” or such other evidence of transfer as the Depositary may
reasonably request, and (C) all other documents or instruments required to be
delivered by all other shareholders of Company pursuant to the terms of the
Offer, and (ii) if any Shareholder Shares beneficially owned by such Shareholder
are held of record by a broker or any other Person, instruct the broker or such
other Person to tender such Shareholder Shares pursuant to and in accordance
with the terms of the Offer. The Shareholder acknowledges and agrees
that the Purchaser’s obligation to accept for payment and pay for the shares is
subject to the terms and conditions of the Offer.
(b) Voting. From
the date hereof until the termination of this Section 1(b) in
accordance with Section 4, at any meeting of the Shareholders of Company,
however called (or any action by written consent in lieu of a meeting), or any
adjournment thereof, Shareholder shall vote or cause to be voted all Shareholder
Shares or (as appropriate) execute written consents in respect thereof, (i)
in favor of (A)
any adoption of the Acquisition Agreement and approval of the transactions
contemplated thereby, (B) any Purchaser Insiders nominated by Purchaser to be
directors of Company, and (C) any other matter necessary for the consummation of
the transactions contemplated by the Acquisition Agreement and the Offer; and
(ii) against
(w) any action or agreement (including any amendment of any agreement) that
would result in a breach of any representation, warranty, covenant, agreement or
other obligation of Company in the Acquisition Agreement, (x) any extraordinary
corporate transaction, including, an Acquisition Proposal, merger, acquisition,
joint venture, sale, consolidation, reorganization, liquidation or winding up of
or involving Company and a third party, or any other proposal of a third party
to acquire Company or all or substantially all of the assets thereof, (y) any
agreement or other action that is intended or could reasonably be expected to
prevent, frustrate, impede, interfere with, delay, postpone or discourage the
consummation of the Offer (including the solicitation of proxies of others in
respect of any of the foregoing) or to dilute the benefits to Purchaser and its
Affiliates of the Offer, and (z) any amendment of Company Corporate Documents or
change in any manner the voting rights of any class of capital stock, except as
may be requested in writing by Purchaser, unless, in the case of clause (ii)
Purchaser has otherwise consented to such action in
writing. Shareholder shall also not commit or agree to take any
action inconsistent with the foregoing. Any such vote shall be cast (or consent
shall be given) by Shareholder in accordance with such procedures relating
thereto so as to ensure that it is duly counted, including for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote (or consent). Shareholder shall execute and deliver to
Purchaser any proxy cards that such Shareholder receives to vote in favor of any
transactions contemplated by the Acquisition Agreement.
(c) Irrevocable
Proxy. In furtherance of Shareholder’s agreement in Section 1(b) above,
Shareholder hereby irrevocably grants and appoints Purchaser and Purchaser’s
designees, and each of them individually, as Shareholder’s proxy and
attorney-in-fact (with full power of substitution) for and in the name, place
and stead of Shareholder, to dissent, consent, or otherwise use such voting
power to vote all Shareholder Shares (at any meeting of Shareholders of Company
however called or any adjournment thereof) or to execute one or more written
consents in respect of the Shareholder Shares as contemplated in Section 1(b). Such
proxy shall (A) be valid and irrevocable until the termination of this Section 1(c) pursuant
to Section 4,
and (B) automatically terminate upon such date.
2
Shareholder
represents that any and all other proxies heretofore given in respect of
Shareholder Shares are revocable, and that such other proxies have been
revoked. Shareholder affirms that the foregoing proxy is: (x) given
(A) in connection with the execution of the Acquisition Agreement and (B) to
secure the performance of Shareholder’s duties under this Agreement, (y) coupled
with an interest and may not be revoked except as otherwise provided in this
Agreement and (z) intended to be irrevocable prior to termination of this Section 1(c) in
accordance with this Agreement and applicable Law. The Shareholder
hereby ratifies and confirms all that such proxies and attorneys-in-fact may
lawfully do or cause to be done by virtue hereof.
(d) Restriction on Transfer;
Proxies; Non-Interference; etc. From the date hereof until the
termination of this Section
1(d) pursuant to Section 4,
Shareholder shall not directly or indirectly (i) sell, transfer (including by
operation of law), give, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement (including profit-sharing)
or understanding with respect to the sale, transfer, gift, pledge, encumbrance,
assignment or other disposition of, any Shareholder Shares (or any right, title
or interest thereto or therein), (ii) deposit any Shareholder Shares into a
voting trust or grant any proxies or enter into a voting agreement, power of
attorney or voting trust with respect to any Shareholder Shares (other than as
contemplated herein), (iii) take any action that would make any representation
or warranty of Shareholder set forth in this Agreement untrue or incorrect in
any material respect or have the effect of preventing, disabling or delaying
Shareholder from performing any of its obligations under this Agreement or (iv)
agree (whether or not in writing) to take any of the actions referred to in the
foregoing clauses (i), (ii) or (iii) of this Section
1(d). Any attempted transfer of Shareholder Shares in
violation of this Section 1(d) shall be
null and void.
(e) No
Solicitation. From the date hereof until the termination of
this Section
1(e) pursuant to Section
4, Shareholder shall, and shall cause its Affiliates and its
and its Affiliates’ directors, officers, employees, agents and other
representatives (including any investment banker, attorney or accountant
retained by it or any of its Affiliates) (collectively, the “Shareholder
Representatives”) not to, initiate, solicit, knowingly encourage or
otherwise facilitate (including by way of furnishing information) any inquiries
or the making of any inquiry, proposal or offer, with respect to or which may
reasonably be expected to lead to any Acquisition
Proposal. Shareholder further agrees that neither it nor any of its
Affiliates nor any of its or its Affiliates’ directors, officers, or employees
shall, and that it shall direct and use its reasonable best efforts to cause its
and its Affiliates’ agents and representatives not to, engage in any
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any Person relating to an Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal or otherwise enter into any agreement with respect to an Acquisition
Proposal. Shareholder shall promptly advise Purchaser, orally and in writing,
and in no event later than 24 hours after receipt, if any proposal, offer,
inquiry or other contact is received by, any information is requested from, or
any discussions or negotiations are sought to be initiated or continued with,
Shareholder in respect of any Acquisition Proposal, and shall, in any such
notice to Purchaser, indicate the identity of the Person making such proposal,
offer, inquiry or other contact and the terms and conditions of any proposals or
offers or the nature of any inquiries or contacts (and shall include with such
notice copies of any written materials received from or on behalf of
such
3
Person
relating to such proposal, offer, inquiry or request), and thereafter shall
promptly keep Purchaser fully informed of all material developments affecting
the status and terms of any such proposals, offers, inquiries or requests (and
Shareholder shall provide Purchaser with copies of any additional written
materials received that relate to such proposals, offers, inquiries or
requests). As used in this paragraph, “Affiliates” of Shareholder
shall not include Company.
(f) Conduct of
Shareholder. Until any termination of this Agreement in
accordance with its terms, Shareholder (i) shall maintain its status as duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and (ii) shall not dissolve, merge or combine
with any Person, or adopt any plan of complete or partial liquidation, in each
case, without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed, it being agreed that Purchaser may withhold
its consent only if in its reasonable judgment the proposed action would
jeopardize the benefits intended to be provided to Purchaser under this
Agreement.
(g) Publication. Shareholder
consents to Purchaser publishing and disclosing in the Offer Documents
Shareholder’s identity and ownership of Shares and the nature of Shareholder’s
commitments, arrangements and understandings under this
Agreement. Except with Purchaser’s prior written consent, Shareholder
shall not issue any press release or make any other public statement with
respect to this Agreement, the Acquisition Agreement, the transactions
contemplated thereby, or the Offer, except as may be required by applicable
Law.
2. Representations and
Warranties of Shareholder. Shareholder hereby represents and
warrants to Purchaser as follows:
(a) Organization;
Authority. Shareholder is a company duly organized, validly
existing and, if applicable, in good standing under the laws of the British
Virgin Islands. Shareholder has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations under this
Agreement. The execution, delivery and performance by Shareholder of
this Agreement and the transactions contemplated hereby have been duly
authorized and approved by all necessary action on the part of Shareholder and
no further action on the part of Shareholder is necessary to authorize the
execution and delivery by Shareholder of this Agreement or the performance by
Shareholder of its obligations under this Agreement. This Agreement
has been duly executed and delivered by Shareholder and, assuming due and valid
authorization, execution and delivery hereof by Purchaser, constitutes a valid
and binding obligation of Shareholder, enforceable against Shareholder in
accordance with its terms, subject to the Bankruptcy and Equity
Exception.
(b) Consents and Approvals; No
Violations. No consents or approvals of, or filings,
declarations or registrations with, any Governmental Entity are necessary for
the performance by Shareholder of its obligations under this Agreement, other
than (i) the filing of reports, if any, under Sections 13(d), 13(e) and 16 of the Exchange
Act as may be required in connection with this Agreement and the transactions
contemplated hereby and (ii) such other consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would not,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance by Shareholder of any of its obligations under
this
4
Agreement. Neither
the execution and delivery of this Agreement by Shareholder, nor the performance
by Shareholder of its obligations under this Agreement, will (A) conflict with
or violate any provision of the organizational documents of Shareholder or (B)
(x) violate any Law, judgment, writ or injunction of any Governmental Entity
applicable to Shareholder or any of its properties or assets, or (y) violate,
conflict with, result in the loss of any material benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the properties or assets of
Shareholder (including the Shareholder Shares) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, permit, lease, agreement or other instrument or obligation to which
Shareholder is a party, or by which its properties or assets may be bound or
affected, except, in the case of clause (B), for such violations, conflicts,
losses, defaults, terminations, cancellations, accelerations or Liens as would
not, individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance by Shareholder of any of its obligations under
this Agreement.
(c) Ownership of
Shares. Shareholder owns, beneficially and of record, all of
the Shareholder Shares. Shareholder owns all of the Shareholder
Shares free and clear of any proxy, voting restriction, adverse claim or other
Lien (other than proxies and restrictions in favor of Purchaser pursuant to this
Agreement and except for such transfer restrictions of general applicability as
may be provided under the Securities Act and the “blue sky” laws of the various
states of the United States or other applicable Law). Without
limiting the foregoing, except for proxies and restrictions in favor of
Purchaser pursuant to this Agreement and except for such transfer restrictions
of general applicability as may be provided under the Securities Act and the
“blue sky” laws of the various states of the United States or other applicable
Law, Shareholder has sole voting power and sole power of disposition and full
power to issue instructions with respect to all Shareholder Shares, with no
restrictions on Shareholder’s rights of voting or disposition pertaining thereto
and no Person other than Shareholder has any right to direct or approve the
voting or disposition of any Shareholder Shares. As of the date
hereof, Shareholder does not own, beneficially or of record, any securities of
Company (including Company Options or Company RSUs) other than the Shares listed
on Annex I which constitute Shareholder Shares.
(d) Brokers. No
broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission that
is payable by Company, Purchaser or any of Company’s Subsidiaries in connection
with the transactions contemplated by the Acquisition Agreement or the Offer
based upon arrangements made by or on behalf of Shareholder.
(e) Litigation. There
is no action, suit, investigation, complaint or other proceeding pending against
the Shareholder or, to the knowledge of the Shareholder, threatened against the
Shareholder or any other Person that restricts in any material respect or
prohibits (or, if successful, would restrict or prohibit) the exercise by any
party of its rights under this Agreement or the performance by any party of its
obligations under this Agreement.
5
(f) Shareholder Has Adequate
Information. The Shareholder is a sophisticated investor and
has independently and without reliance upon Purchaser and based on such
information as the Shareholder has deemed appropriate, made its own analysis and
decision to enter into this Agreement. The Shareholder acknowledges
that Purchaser has not made nor makes any representation or warranty to the
Shareholder, whether express or implied, of any kind or character except as
expressly set forth in this Agreement.
(g) Reliance. The
Shareholder understands and acknowledges that Purchaser is entering into the
Acquisition Agreement in reliance upon the Shareholder’s execution and delivery
of this Agreement.
(h) No
Setoff. To the knowledge of the Shareholder, there are no
legal or equitable defenses or counterclaims that have been or may be asserted
by or on behalf of Company, as applicable, to reduce the amount of the
Shareholder Shares or affect the validity or enforceability of the Shareholder
Shares.
3. Representations and
Warranties of Purchaser. Purchaser hereby represents and
warrants to Shareholder as follows:
(a) Organization;
Authority. Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser has all necessary power and authority to execute
and deliver this Agreement and to perform its obligations under this
Agreement. The execution, delivery and performance by Purchaser of
this Agreement and the transactions contemplated hereby have been duly
authorized and approved by all necessary action on the part of Purchaser and no
further action on the part of Purchaser is necessary to authorize the execution
and delivery by Purchaser of this Agreement or the performance by Purchaser of
its obligations under this Agreement. This Agreement has been duly
executed and delivered by Purchaser and, assuming due and valid authorization,
execution and delivery hereof by Shareholder, constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to the Bankruptcy and Equity Exception.
(b) Consents and Approvals; No
Violations. No consents or approvals of, or filings,
declarations or registrations with, any Governmental Entity are necessary for
the performance by Purchaser of its obligations under this Agreement, other than
those approvals contemplated by the Acquisition Agreement, the filing of
reports, if any, under Sections 13(d), 13(e) and 16 of the Exchange
Act as may be required in connection with this Agreement, the Acquisition
Agreement of the transactions contemplated thereby, and the Offer, and such
other consents, approvals, filings, declarations or registrations that, if not
obtained, made or given, would not, individually or in the aggregate, reasonably
be expected to prevent or materially delay the performance by Purchaser of any
of its obligations under this Agreement. Neither the execution and
delivery of this Agreement by Purchaser, nor the performance by Purchaser of its
obligations under this Agreement, will (A) conflict with or violate any
provision of the organizational documents of Purchaser or (B) (x) violate any
Law, judgment, writ or injunction of any Governmental Entity applicable to
Purchaser or any of its properties or assets, or (y) violate, conflict with,
result in the loss of any material benefit under, constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, result in the termination of or a right of termination or
cancellation
6
under,
accelerate the performance required by, or result in the creation of any Lien
upon any of the properties or assets of Purchaser under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, permit, lease, agreement or other instrument or obligation to which
Purchaser is a party, or by which its properties or assets may be bound or
affected, except , in the case of clause (B), for such violations, conflicts,
losses, defaults, terminations, cancellations, accelerations or Liens as would
not, individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance by Purchaser of any of its obligations under
this Agreement.
4. Termination.
(a) This
Agreement may be terminated by mutual consent of Shareholder and
Purchaser. This Agreement shall terminate on the later to occur of
(a) the termination of the Acquisition Agreement in accordance with its terms
and (b) the business day after the Offer is terminated or withdrawn by Purchaser
without any Shares being purchased thereunder; provided however, that
notwithstanding the foregoing: (i) the provisions
of this Section
4 and Section
5 shall survive any termination of this Agreement, and (ii) nothing
herein shall relieve any party from liability for breach of this
Agreement.
5. Miscellaneous.
(a) Action in Shareholder
Capacity Only. The parties acknowledge that this Agreement is
entered into by Shareholder in its capacity as owner of the Shareholder Shares
and that nothing in this Agreement shall in any way restrict or limit the
Shareholder, or any other officer or director of the Company, from taking or
refraining from taking any action in his or her capacity as a director or
officer of Company.
(b) Expenses. Except
as otherwise expressly provided in this Agreement, all costs and expenses
incurred in connection with the transactions contemplated by this Agreement
shall be paid by the party incurring such costs and expenses.
(c) Additional
Shares. Until any termination of this Agreement in accordance
with its terms, Shareholder shall promptly notify Purchaser of any change in the
number of Shareholder Shares, if any, as to which Shareholder acquires record or
beneficial ownership after the date hereof. Any Shares as to which
Shareholder acquires record or beneficial ownership after the date hereof and
prior to termination of this Agreement shall be Shareholder Shares for purposes
of this Agreement. Without limiting the foregoing, in the event of
any stock split, stock dividend or other change in the capital structure of
Company affecting Company Common Shares (including ADSs), the number of Shares
constituting Shareholder Shares shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional Shares or
other voting securities of Company issued to Shareholder in connection
therewith.
(d) Definition of “Beneficial
Ownership”. For purposes of this Agreement, “beneficial
ownership” with respect to (or to “own beneficially”) any securities shall mean
having “beneficial ownership” of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act), including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
7
(e) Further
Assurances. From time to time, at the request of Purchaser and
without further consideration, Shareholder shall execute and deliver such
additional documents and take (or cause to be taken as the case may be) all such
further action as may be reasonably required, necessary or proper to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(f) Entire Agreement; No Third
Party Beneficiaries. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof. This Agreement is not intended to and shall not confer upon
any Person other than the parties hereto any rights hereunder.
(g) Assignment; Binding
Effect. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Purchaser may assign its rights and
interests hereunder to any wholly-owned subsidiary of Purchaser, Affiliate or
other entity under control of the beneficial owners of Purchaser, if such
assignment would not cause a delay in the consummation of any of the
transactions contemplated hereby, provided that no such assignment shall relieve
Purchaser of its obligations hereunder if such assignee does not perform such
obligations. Subject to the preceding sentence, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Any purported assignment
not permitted under this Section shall be null and void. No past, present or
future director, officer, employee, Affiliate, incorporator, member, partner or
shareholder of Purchaser shall have any liability for any obligations
of Purchaser under this Agreement or for any claim based on, in
respect of, or by reason of, the Offer or the transactions contemplated
hereby.
(h) Amendments;
Waiver. This Agreement may not be amended or supplemented,
except by a written agreement executed by the parties hereto. Any
party to this Agreement may (A) waive any inaccuracies in the representations
and warranties of any other party hereto or extend the time for the performance
of any of the obligations or acts of any other party hereto or (B) waive
compliance by the other party with any of the agreements contained
herein. Notwithstanding the foregoing, no failure or delay by
Purchaser in exercising any right hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right hereunder. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
(i) Severability. If
any term or other provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other terms, provisions and conditions of
this Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
8
(j) Counterparts. This
Agreement may be executed in two or more separate counterparts, each of which
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by the other parties hereto.
(k) Descriptive
Headings. Headings of Sections and subsections of this
Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(l) Interpretation. When
a reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Wherever the words
“include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”.
(m) Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission) and shall be given,
if to
Purchaser, to:
EGS
Acquisition Co LLC
c/o Providence Equity
L.L.C.
000 Xxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxxxx
Facsimile: (000)
000-0000
EGS
Acquisition Co LLC
c/x Xxxxx Corporation
32/F Tower One Exchange Plaza,
Xxxxx Avenue
Makati City, Metro Manila,
Philippines 1226
Attention: Xxxxxxx X.
Xxxxxxxxx
Facsimile: (000)
0000000
with a copy to (which shall not
constitute notice):
Weil,
Gotshal & Xxxxxx LLP
29th
Floor, Gloucester Tower
The
Landmark, 15 Queen’s Road Central
Hong
Kong
Attention: Xxxxx
Xxxxx
Telephone: (000)
0000 0000
Facsimile: (000)
0000-0000
with a
copy to (which shall not constitute notice):
SyCip
Xxxxxxx Xxxxxxxxx & Xxxxxxxxx
SSHG
Center, 105 Xxxxx Xx Xxxxx
0
Xxxxxx
Xxxx 0000 Xxxxxxxxxxx
Attention: Xxxxxx
xx Xxxx, Xx.
Xxxxx Xxxxxx X. Xxxxxxx-Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
if to
Shareholder, to:
Newbridge
International Investment Ltd
c/x Xxxxx
Corporation
32/F Tower
One Exchange Plaza, Xxxxx Avenue
Makati
City, Metro Manila, Philippines 1226
Attention: Xxxxxxx
X. Xxxxxxxxx
Facsimile: (000)
0000000
with a
copy (which shall not constitute notice) to:
Xxxxx Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
or such
other address or facsimile number as such party may hereafter specify for the
purpose, by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 P.M. in the place of
receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed not to have been received until the next succeeding business day in
the place of receipt.
(n) Voidability. If prior
to the execution hereof, the Board of Directors of Company shall not have duly
and validly authorized and approved by all necessary corporate action, the
Agreement, the Acquisition Agreement and transactions contemplated hereby and
thereby, so that by the execution and delivery hereof Purchaser would become, or
could reasonably be expected to become subject to any restrictive provision of
any applicable “fair price,” “moratorium,” “control share acquisition,”
“interested shareholder” or other similar anti-takeover Law, then this Agreement
shall be void and unenforceable until such time as such authorization and
approval shall have been duly and validly obtained.
(o) Drafting. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provision of this
Agreement.
10
(p) Governing Law; Enforcement;
Jurisdiction; Waiver of Jury Trial.
(i) This
Agreement and all claims or causes of action (whether in contract or tort) that
may be based upon, arise out of or relate to this Agreement or the negotiation,
execution or performance of this Agreement, shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State; provided that for the avoidance
of doubt, any corporation law matters with respect to the Company and its
shareholders shall be governed by Philippines law.
(ii) All
claims arising out of or relating to this Agreement shall be heard and
determined exclusively in any Delaware state or federal court sitting in New
Castle County, Delaware. The parties hereto hereby (a) submit to the
exclusive jurisdiction of any state or federal court sitting in New Castle
County, Delaware for the purpose of any claim arising out of or relating to this
Agreement brought by any party hereto, and (b) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such action, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
action is brought in an inconvenient forum, that the venue of the claim is
improper, or that this Agreement or the transactions contemplated hereby may not
be enforced in or by any of the above-named courts.
(iii) EACH
OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(iv) The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any state or federal court sitting in New Castle County,
Delaware, without bond or other security being required, this being in addition
to any other remedy to which they are entitled at law or in equity.
[Remainder
of Page Intentionally Left Blank]
11
IN WITNESS
WHEREOF, the parties have caused this Agreement to be duly executed as of the
date first above written.
|
EGS
Acquisition Co LLC
|
||
| By: | /s/ R. Xxxxx Xxxxx | |
|
Name:
|
R. Xxxxx Xxxxx | |
|
Title:
|
Vice President | |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxxxxx X. Xxxxxxxxx | |
|
Title:
|
Vice President | |
|
NEWBRIDGE
INTERNATIONAL INVESTMENT LTD.
|
||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxxxxx X. Xxxxxxxxx | |
|
Title:
|
Authorized Signatory | |
Annex
1
|
Shareholder
|
Common
Shares
|
ADS
|
Company Stock
Options
|
Company
RSUs
|
Total
Shareholder Shares
|
|
Newbridge
International Investment Ltd.
|
4,436,624
|
1,955,926
|
0
|
0
|
6,392,550
|
