SUPPORT AGREEMENT
Exhibit 7.01
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
Philippine American Life and General Insurance Company, a corporation organized under the laws of
the Republic of the Philippines (“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 491,566
shares of common xxxxx, xXxX0.00 par value (“Common Shares”), 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 Agreement 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 Agreement in
accordance with Section 4, and subject to Section 5(a), 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, and (B) 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
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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 and (y) 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 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
shall not be revoked until the termination of this Agreement pursuant to Section 4, and (B)
automatically terminate upon such date. 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 Agreement 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 Agreement 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. In addition, from and after the Acceptance Date, Shareholder will cause any of its
designees on Company’s (or any of its Subsidiaries’) Board of Directors (or any committee thereof)
to resign to the extent necessary to enable Company to comply with the Acquisition Agreement.
(e) No Solicitation. From the date hereof until the termination of this Agreement
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
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enter into any agreement with respect to an Acquisition Proposal. Shareholder
agrees that it will immediately cease and cause to be terminated any existing discussions or
negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.
Shareholder agrees that it will take the necessary steps to promptly inform the Shareholder
Representatives of the obligations undertaken by Company in this Section 1(e). Shareholder
shall use reasonable best efforts to obtain the return from all such Persons or cause the
destruction of all copies of confidential information previously provided to any such parties by
Shareholder or Shareholder Representatives. Further, Shareholder agrees to comply with the
provisions of Section 4.2 of the Acquisition Agreement as if a party thereto. 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
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.
(h) Stop Transfer Instructions. Shareholder shall give (and hereby consents to
Purchaser giving) stop transfer instructions to the transfer agent for the Shareholder Shares
subject to the terms and conditions of this Agreement; provided, however that any such stop
transfer restriction shall terminate automatically without any notice or action by any Person upon
the termination of this Agreement in accordance with Section 4.
(i) Legends. If so requested by Purchaser and to the extent the Shareholder Shares
are certificated, Shareholder agrees that its Shareholder Shares shall bear a legend stating that
they are subject to this Agreement and that actions in breach of Section 1(d) are null and
void; provided; however Company shall remove such legend upon the termination of this Agreement in
accordance with Section 4.
2. Representations and Warranties of Shareholder. Shareholder hereby represents and
warrants to Purchaser as follows:
(a) Organization; Authority. Shareholder is a limited partnership duly organized,
validly existing and in good standing under the laws of Cayman 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
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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 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.
(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.
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(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 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. This Agreement may be terminated by mutual consent of Shareholder and
Purchaser. This Agreement shall terminate effective immediately upon the termination of the
Acquisition Agreement in accordance with its terms; provided however, that notwithstanding the
foregoing, (i) the provisions of this Section 4 and Section 5 (other than Section 5(e)) 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 person who is an
Affiliate of 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 that
is necessary for him or her to comply with her or her fiduciary or other duties as a director or
officer of Company.
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(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.
(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
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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.
(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:
Attention:
Facsimile:
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
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, 000 Xxxxx Xx Xxxxx
Xxxxxx Xxxx 0000 Xxxxxxxxxxx
Attention: Xxxxxx xx Xxxx, Xx.
Xxxxx Xxxxxx X. Xxxxxxx-Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SSHG Center, 000 Xxxxx Xx Xxxxx
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:
AIG Global Investment Corp. (Asia) Ltd.
23rd Floor, Philamlife Tower, 8767 Xxxxx xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxxx 0000
Attention: Xxxxxx Xxxxx
Facsimile: (00-0) 000-0000
23rd Floor, Philamlife Tower, 8767 Xxxxx xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxxx 0000
Attention: Xxxxxx Xxxxx
Facsimile: (00-0) 000-0000
with a copy (which shall not constitute notice) to:
Attention:
Facsimile:
Attention:
Facsimile:
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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
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.
(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]
8
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: Name: |
/s/ X. Xxxxx Xxxxx
|
|||||
| Title: | Vice President | |||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxxxx
|
|||||
| Title: | Vice President | |||||
9
| Philippine American Life and General Insurance Company | ||||||
| By: Name: |
/s/ Xxxxxx L1. Xxxxx
|
|||||
| Title: | Vice President | |||||
10
Annex 1
| Total | ||||||||||||||||||||
| Company | Shareholder | |||||||||||||||||||
| Shareholder | Common Shares | ADS | Stock Options | Company RSUs | Shares | |||||||||||||||
Philippine American
Life and General
Insurance Company |
491,566 | 0 | n/a | n/a | 491,566 | |||||||||||||||
11
