NONDISCLOSURE AGREEMENT
Exhibit (e)(7)
NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of June 11, 2008, is made by and
between eTelecare Global Solutions, Inc., a Philippines corporation (“eTelecare”) and Providence
Equity Asia Limited, a company organized under the laws of Hong Kong (“Buyer”).
RECITALS
WHEREAS, Buyer and eTelecare (together, the “Parties” and each individually, a “Party”) desire
to enter into discussions related to a possible business combination or change in control
transaction (the “Possible Transaction”), and these discussions will of necessity involve the
disclosure by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) of
confidential and proprietary information; and
WHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof
confidential; and (ii) reflect their agreement on certain matters relating to the disclosure of
such information and the confidentiality of the discussions in general.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.
Definitions. The following terms shall have the meanings set forth below:
1.1 “Confidential Information” includes all non-public information, whether written or
oral (whatever the form or storage medium), or gathered by inspection, or acquired by one Party or
its Representatives from the other Party or its Representatives regarding such Party or its
business in connection with a Possible Transaction after the date hereof, regardless of whether
such information is specifically identified as “confidential” and shall also include the portions
of all notes, analyses, compilations, studies, forecasts, interpretations or other documents
prepared by the Receiving Party to the extent that they contain, reflect or are based upon, in
whole or in part, the information delivered, disclosed or furnished to the Receiving Party pursuant
hereto. “Confidential Information” shall also include statements regarding, or summaries or
descriptions of, the existence of negotiations regarding or progress of the Possible Transaction.
The term “Confidential Information” does not include information which (i) was known to the
Receiving Party or its Representatives or was in its or its Representatives possession prior to the
date of its disclosure pursuant to this Agreement; (ii) is or becomes generally available to the
public or individuals in the industry in which such Party operates, other than through an
unauthorized disclosure by the Receiving Party or its Representatives in violation of this
Agreement; (iii) becomes available to the Receiving Party or its Representatives from a source
other than the Disclosing Party or its Representatives, provided that the Receiving Party does not
know that such source is prohibited from transmitting such Confidential Information to the
Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its
Representatives; or (iv) is independently developed by the Receiving Party or any of its
Representatives.
1.2 “person” shall be broadly interpreted to include, without limitation, any
individual, corporation, company, group, partnership, limited liability company or other entity.
1.3 “Representatives” means a Party and its affiliates, and its
and their respective directors, officers, employees, agents, partners, co-investors or other
financing sources or representatives, including, without limitation, its and their respective
attorneys, accountants, consultants and financial advisors.
1.4 “affiliates” when used in connection with the Buyer, shall not include any of the
Buyer’s affiliated investment funds’ portfolio companies or any individuals.
2. Confidential Information. Each Party recognizes and acknowledges that damage could
result if the Confidential Information were used or disclosed other than as permitted by this
Agreement. Except as otherwise required by applicable law or regulatory authority, each Party
agrees to keep confidential and not disclose, and cause its Representatives (excluding any
Representative who executes a separate confidentiality agreement with eTelecare or its affiliates)
to keep confidential and not disclose, to any person the Confidential Information it or its
Representatives receives from the other Party or its Representatives without the Disclosing Party’s
prior written consent, except as provided below. The Receiving Party or its Representatives shall
be entitled to disclose the Confidential Information of the Disclosing Party and provide copies of
the same, without the Disclosing Party’s prior written consent, to those Representatives of the
Receiving Party who need to know such Confidential Information solely for the purpose of evaluating
the Possible Transaction. The Receiving Party shall be responsible for any violations of the
confidentiality provisions of this Agreement caused by any of the Receiving Party’s
Representatives, except to the extent any such Representative executes a separate confidentiality
agreement with eTelecare or its affiliates in which case the Buyer shall not be responsible for any
such violations.
3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving
Party nor any of its Representatives shall use the Confidential Information for any purpose other
than evaluation of the Possible Transaction. Except as otherwise set forth in this Agreement, the
restrictions on use of Confidential Information in this Agreement shall extend until such time, if
ever, the Confidential Information becomes publicly available (otherwise than through a breach of
this Agreement). Except to the extent a Party’s legal counsel advises the Party that disclosure is
required by applicable law or regulatory authority, without the prior written consent of the other
Party, neither Party will, and will direct the respective Party’s Representatives not to, disclose
to any other person that such Confidential Information has been requested or made available, that
discussions or negotiations are taking place concerning the Possible Transaction, or any of the
terms, conditions or other facts with respect to the Possible Transaction, including the status
thereof, or the terms of this Agreement.
4. Requested Disclosure of Confidential Information. In the event that a Receiving Party
or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this
Agreement is legally requested (by oral questions, interrogatories, request for information or
documents, subpoena, civil investigative demand or similar process) or otherwise required to
disclose any Confidential Information of a Disclosing Party (including disclosure requirements
under the United States Securities Act of 1933, as amended, or the United States Securities
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Exchange Act of 1934, as amended, or in each case the rules and regulations promulgated
thereunder, or any applicable laws, rules and regulations under the laws of the Philippines), the
Receiving Party will provide the Disclosing Party, to the extent possible, with notice, prior to
disclosing such Confidential Information, so that the Disclosing Party may, at the Disclosing
Party’s expense, seek an appropriate protective order and/or waive compliance with this Agreement.
If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party
is nonetheless obligated as a result of such legal request or other requirement to disclose such
Confidential Information, it may, without violating its obligations under this Agreement, furnish
only that portion of such Confidential Information that such Party is obligated to disclose and
agrees to use commercially reasonable efforts to obtain assurance that confidential treatment will
be accorded such Confidential Information.
5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any
materials or Confidential Information hereunder, shall be construed as granting or conferring any
license or other rights to the other Party, either expressly or by implication, estoppel or
otherwise, with respect to any trademark, patent, copyright, technological information or other
information, or other intellectual property.
6. Ownership of Confidential Information. The Confidential Information shall remain the
property of the Disclosing Party, and the Disclosing Party may demand the return or destruction
thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the
Receiving Party shall, at the Receiving Party’s option, either (a) return to the Disclosing Party
all physical documents, drawings, data, memoranda and other written materials together with any
tapes and computer stored information, including any copies thereof, embodying, containing or
relating to the Disclosing Party’s Confidential Information, in the possession of the Receiving
Party or its Representatives; or (b) destroy and cause each of its Representatives to destroy all
copies of any such materials or the parts thereof embodying, containing or relating to such other
party’s Confidential Information (provided that the Receiving Party may retain on a
confidential basis one copy of the Confidential Information in order to comply with legal,
regulatory, or policy requirements and any electronic information (including emails and
attachments) may be retained in backup servers if it is not intentionally made available to any
person, and is retained in accordance with the Receiving Party’s normal policies with respect to
the electronic retention of records). The Receiving Party will keep confidential any copies,
extracts or other reproductions in whole or in part of any such materials which it is not
practicable to destroy. Upon written request by the Disclosing Party, a senior officer of the
Receiving Party shall certify within a reasonable time following such request that the destruction
of Confidential Information in compliance with this paragraph was completed. Notwithstanding the
return or destruction of the Confidential Information, each Party and its Representatives shall
continue to be bound by the obligations of confidentiality and other obligations and agreements
hereunder.
7. Communications: Nonsolicit. In consideration of the Confidential Information being
furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period of two years
from the date of this Agreement, the Receiving Party and its affiliates will not, without the prior
written consent of the Disclosing Party: solicit to employ or actually employ (A) any person now
employed by the Disclosing Party in an executive or management level position or (B) any of the
employees of the Disclosing Party with whom the Receiving Party or its
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Representatives have had contact with during the negotiations regarding the Possible
Transaction.
Until the earliest of (i) the execution by Buyer or one of its affiliates of a final
definitive agreement regarding a Possible Transaction with eTelecare or (ii) two years from the
date of this Agreement, Buyer agrees not to initiate or maintain any contact (except for those
contacts made in the ordinary course of business or apart from a Possible Transaction) with any
officer or employee of eTelecare or its subsidiaries, regarding the Possible Transaction or
eTelecare’s business, operations, prospects or finances, except with the express permission of
eTelecare. Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) will arrange for appropriate
contacts with officers and employees of eTelecare for due diligence purposes. Buyer should submit
or direct to Xxxxxx Xxxxxxx all communications regarding the Possible Transaction, including
questions regarding procedures, requests for due diligence information and requests for management
meetings or other contact with officers and employees of eTelecare.
This Section 7 will not restrict a Party or its affiliates from conducting any general
solicitations for employees (including through the use of employment agencies) not specifically
directed at the other Party, its employees or members, and will not restrict a Party or its
affiliates from hiring any person who (i) responds to any such general solicitation; (ii) contacts
a Party on his or her own initiative without any solicitation by or encouragement from such Party
or (iii) has not been employed by the non-hiring Party during the preceding six months.
8. Material Non-Public Information. Buyer acknowledges and agrees that it is aware (and
that its Representatives are aware) that (i) the Confidential Information being furnished to Buyer
or its Representatives contains or may itself be material, non-public information regarding
eTelecare and (ii) the United States and Philippines securities laws prohibit any persons who have
material, nonpublic information concerning eTelecare, including the Confidential Information, from
purchasing or selling securities of eTelecare or from communicating such information to any person
under circumstances in which it is reasonably foreseeable that such person is likely to purchase or
sell such securities in reliance upon such information.
9. Standstill Provision. Buyer agrees that until the earlier to occur of (x) eighteen
(18) months from the date of this Agreement and (y) the execution of a definitive agreement with
respect to the Possible Transaction, unless specifically invited in writing to do so by eTelecare,
Buyer and each of its affiliates will not in any manner (a) effect, or seek, offer or propose to
effect (whether publicly or otherwise), or cause or participate in, (i) any acquisition of (A) any
securities (or beneficial ownership thereof) entitled to, or that may be entitled to, vote in the
election of eTelecare’s Board of Directors, including American Depositary Shares representing
common shares of eTelecare (collectively, “Voting Securities”), (B) any rights or options to
acquire any Voting Securities, or (C) any assets or non Voting Securities of eTelecare or any
assets or securities of its subsidiaries; in each case, except for such assets or securities as are
then being offered for sale by eTelecare or any of its subsidiaries, (ii) any merger,
consolidation, tender or exchange offer, or other business combination involving eTelecare or any
subsidiary thereof, (iii) any restructuring, recapitalization, liquidation, dissolution or similar
transaction with respect to eTelecare or any subsidiary thereof; (iv) any “solicitation” of
“proxies” (as such terms are defined or used in Regulation 14A of the United States Exchange Act of
1934 (the “Exchange Act”)) or consents with respect to any Voting Securities, any “election
contest” (as
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such term is defined or used in Rule 14a-11 of the Exchange Act) with respect to eTelecare, or
any demand for a copy of eTelecare’s stock ledger, list of its stockholders, or other books and
records; (b) form, join or participate in any group (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to the matters set forth in clause (a); or (c) make (publicly or to
eTelecare, its Representatives or securityholders, directly or indirectly) any request or proposal
to amend, waive or terminate any provision of this Section 9 or any inquiry or statement relating
thereto; provided; however nothing herein shall preclude or affect (1) the Possible Transaction or
(2) the acquisition by Buyer or any of its affiliates of any entity or business (through stock
purchase, asset purchase, merger or otherwise) that holds securities of eTelecare. Notwithstanding
the foregoing, the provisions of this Section shall not apply, and the Buyer or any of its
affiliates shall be free to engage in any of the activities otherwise prohibited by this Section,
in the event any of the following shall occur: (i) the acquisition of securities, directly or
indirectly, by any person or group of persons acting as a group (other than the Buyer) if, as a
result of such acquisition, the person or group of persons owns 25% or more of any class of the
then outstanding Voting Securities; (ii) the commencement by any person or group of persons acting
as a group (other than the Buyer) of a tender or exchange offer if, as a result of such tender or
exchange offer, the person or group of persons would own 25% or more of any class of the then
outstanding Voting Securities; or (iii) the formal public announcement by eTelecare of board
approval and the execution of a definitive agreement that would result in the acquisition by a
person (other than the Buyer) of more than 50% of the outstanding Voting Securities of eTelecare or
all or substantially all of eTelecare’s assets.
10. No Agreement. Each Party understands and agrees that no contract or agreement
providing for any Possible Transaction shall be deemed to exist between the parties hereto unless
and until a final definitive agreement has been executed and delivered, and each party hereby
waives, in advance, claims seeking enforcement of a binding agreement in connection with any
transaction unless and until the parties shall have entered into a final definitive agreement. Each
Party also agrees that unless and until a final definitive agreement regarding a Possible
Transaction has been executed and delivered, neither party will be under any legal obligation of
any kind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement
except for the matters specifically agreed to herein. Buyer further acknowledges and agrees that
eTelecare reserves the right, in its sole discretion, to reject any and all proposals made by Buyer
or any of its Representatives with regard to a Possible Transaction, to determine not to engage in
discussions or negotiations and to terminate discussions and negotiations with Buyer at any time,
and to conduct, directly or through any of its Representatives, any process for any transaction
involving eTelecare or any of its subsidiaries, if and as they in their sole discretion shall
determine (including, without limitation, negotiating with any other interested parties and
entering into a definitive agreement without prior notice to Buyer or any other person).
11. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor
its Representatives makes any representation or warranty hereunder as to the accuracy or
completeness of any Confidential Information of the Disclosing Party or other information disclosed
pursuant to this Agreement. The Receiving Party agrees that neither the Disclosing Party nor its
Representatives shall have any liability hereunder to the Receiving Party or to any of the
Receiving Party’s Representatives as a result of the use of such Confidential Information by the
Receiving Party and the Receiving Party’s Representatives, it being understood that only those
particular representations and warranties that may be made to the Receiving Party by the
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Disclosing Party or its affiliates in a definitive transaction agreement, when, as and if it
is executed, and subject to such limitations and restrictions as may be specified in such
definitive agreement, shall have any legal effect.
12. Notices. All notices, requests, consents, and other communications required or
permitted hereunder shall be in writing and shall be personally delivered, mailed using
first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized
overnight courier or faxed to the following addresses or to such other address as the parties
hereto may designate in writing:
eTELECARE:
eTelecare Global Solutions, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
Attn: Xxxx Xxxxxx, President
Fax: (000) 000-0000
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
Attn: Xxxx Xxxxxx, President
Fax: (000) 000-0000
with a copy to (which shall not constitute delivery):
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
Fax: (000) 000-0000
BUYER:
Providence Equity Asia Limited
18/F, York House, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxxxxxxx Xxxxxx
Fax: 000 0000 0000
18/F, York House, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxxxxxxx Xxxxxx
Fax: 000 0000 0000
With a copy to (which shall not constitute delivery):
Weil, Gotshal & Xxxxxx LLP
29/F, Gloucester Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
Attn: Xxxxx Xxxxx
Fax: 000 0000 0000
29/F, Gloucester Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
Attn: Xxxxx Xxxxx
Fax: 000 0000 0000
All such notices, requests, consents and other communications shall be deemed to be properly
given if delivered (a) if delivered personally to the address as provided in this Section, be
deemed given upon delivery, (b) if delivered by facsimile transmission to the facsimile
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number as provided for in this Section, be deemed given upon facsimile confirmation, (c) if
sent by mail, upon delivery and (d) if delivered by overnight courier to the address as provided in
this Section upon receipt. Any Party from time to time may change its address, facsimile number or
other information for the purpose of notices to that party by giving notice specifying such change
to the other Party hereto.
13. Severability. If any term or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and
provisions of this Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
14. Entire Agreement; Amendments. This Agreement comprises the full agreement between the
Parties concerning the Confidential Information. This Agreement supersedes any prior understandings
or agreements, regardless of form, between the Parties with respect to the Confidential
Information. No amendments, changes or modifications may be made to this Agreement without the
express written consent of each of the Parties hereto.
15. Governing Law and Venue. This Agreement and all matters related thereto shall be
governed by and construed in accordance with the laws of the State of New York, applicable to
contracts made and to be performed therein, without giving effect to its principles or rules
regarding conflicts of laws, other than such principles directing application of New York law. The
state and federal courts located in New York shall have exclusive jurisdiction and venue over any
dispute arising out of or relating to this Agreement, and each Party consents to the personal
jurisdiction and venue of these courts, and each agrees that all proceedings relating hereto will
be brought in courts located in the State of New York.
16. Remedies; Legal Fees. Each Party acknowledges that the other may be irreparably
injured if the Receiving Party breaches any of its obligations under this Agreement. The Parties
each agree that money damages may not be a sufficient remedy for any breach of this Agreement and
that, in the event of a breach by a Party or its Representatives, the other Party shall be entitled
to seek equitable relief, including injunction and specific performance as a remedy for such breach
(without any obligation of such Party to post any bond or other surety in connection therewith).
Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by a
Party or its Representatives but shall be in addition to all other remedies available at law or
equity to the non-breaching Party. In the event of litigation relating to this Agreement, if a
court of competent jurisdiction determines that a Party or any of its Representatives have breached
this Agreement, then such Party shall be liable and pay to the other Party the reasonable legal
fees incurred by the other Party in connection with such litigation, including any appeal
therefrom.
17. Waiver. Each Party understands and agrees that no failure or delay by the other Party
in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or future exercise of any
right, power or privilege hereunder.
18. Term of Agreement. This Agreement shall terminate on the earlier to occur of (i) the
closing of the Possible Transaction and (ii) two years from the date hereof.
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19. Binding Effect. No Recourse. This Agreement shall benefit and be binding upon the
Parties and their respective successors and assigns. No past, present or future director, officer,
employee, member, shareholder, incorporator, partner, and/or affiliate of the Parties or any
affiliate thereof shall have any liability for any obligations of the parties hereto under this
agreement or for any claim based on, in respect of or by reason of such obligations or their
creation.
20. Construction. This Agreement has been negotiated by the Parties and their respective
attorneys, and the language of this Agreement shall not be construed for or against either Party.
21. Counterparts: Facsimile Signatures. This Agreement may be executed in two or more
counterparts, each of which shall be binding as of the date first written above. Each such copy
shall be deemed an original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. This Agreement may be executed and delivered
by facsimile or by other electronic means (such as a .pdf file or other electronic file) and upon
such delivery the signature delivered thereby will be deemed to have the same effect as if the
original signature had been delivered to the other party. The original signature copy shall be
delivered to the other party by overnight courier. The failure to deliver the original signature
copy and/or the nonreceipt of the original signature copy shall have no effect upon the binding and
enforceable nature of this Agreement.
[remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of
the day and year first written above.
| eTELECARE GLOBAL SOLUTIONS, INC. a Philippines corporation |
||
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
Name:
|
Xxxx X. Xxxxxxxxx | |
Title:
|
Chairman of the Board | |
| PROVIDENCE EQUITY ASIA LIMITED | ||
By:
|
/s/ Xxxxx X. Xx | |
Name:
|
Xxxxx X. Xx | |
Title:
|
Vice President | |
Signature Page to Nondisclosure Agreement
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