This SUPPORT
AGREEMENT (this “ Agreement ”), dated as of [
], 2008, by and between [PURCHASER], a Delaware limited liability
company (“ Purchaser ”) and [SHAREHOLDER], a [
] (“ 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 [
] shares of common stock, $PhP2.00 par value (“ Common
Shares ”) and
[ ]
[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 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
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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 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
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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 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
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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 [
] duly organized, validly existing and in good standing under the
laws of [
]. Shareholder has all necessary power and authority to execute and
deliver this Agreement and to perform its
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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 t
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