EQUITY COMMITMENT LETTER September 19, 2008
Exhibit 7.02
EXECUTION COPY
September
19, 2008
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To:
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EGS
Acquisition Co LLC
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Re:
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Equity
Commitment
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Ladies and
Gentlemen:
1. Reference
is made to the Acquisition Agreement, dated as of the date hereof (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Acquisition
Agreement”), between EGS Acquisition Co LLC (“Purchaser”) and
eTelecare Global Solutions, Inc. (the “Company”), pursuant
to which Purchaser has agreed, among other things and subject to the terms and
conditions of the Acquisition Agreement, to commence a tender offer to purchase
all of the Company’s issued and outstanding common shares, par value PhP2.00 per
share, listed on the Philippine Stock Exchange, Inc. and all of the Company’s
issued and outstanding American Depository Shares traded on the Nasdaq Global
Market (the “Transactions”). Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Acquisition Agreement; provided however for the purpose of this letter,
“Affiliates” shall not include the Company or its Subsidiaries. The persons
listed on Exhibit A are collectively referred to herein as the “Investors”, each an
“Investor”. This
letter is being delivered by the undersigned to Purchaser in connection with the
execution of the Acquisition Agreement, as of the date hereof, by
Purchaser. All references to “$” in this letter shall be to United
States Dollars.
2. In
the event of the satisfaction or waiver by Purchaser of the Tender Offer
Conditions in accordance with the terms of the Acquisition Agreement, we agree
that on the Acceptance Date the undersigned will contribute or cause to be
contributed to Purchaser up to $150,000,000 (such amount, the “Commitment Amount”),
which amount shall be used by Purchaser together with the equity proceeds from
the other Commitment to fund the Offer Price, pay any other amounts to be paid
by Purchaser to any person on the Acceptance Date on the terms set forth in the
Acquisition Agreement and pay for related expenses. The undersigned
will not be under any obligation pursuant to the preceding sentence unless and
until the Tender Offer Conditions are satisfied or waived by Purchaser in
accordance with the terms of the Acquisition Agreement. The undersigned
will not be under any obligation under any circumstances to contribute or cause
to be contributed more than the Commitment Amount to Purchaser. At the
option and direction of Purchaser, the undersigned will fund the Commitment
Amount in part on the Acceptance Date (or such other date thereafter as directed
by ▇▇▇▇▇▇▇▇▇) and thereafter from time to time as directed by ▇▇▇▇▇▇▇▇▇;
provided that Purchaser shall, to the extent reasonably practicable, direct the
undersigned to fund portions of the Commitment Amount pro rata with the other
Investor funding commitment amounts pursuant to the other
Commitment.
3. This
letter and the obligation of the undersigned to fund the Commitment Amount will
terminate automatically and immediately (without any further action on the part
of any
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undersigned
person or any other person) upon the earlier to occur of (a) the Acceptance
Date, upon discharge of its obligations hereunder, (b) the termination of the
Acquisition Agreement pursuant to its terms, or (c) the Company or any of its
Affiliates asserting in any litigation or other proceeding any claim against any
Investor or its Affiliates, including under any limited guarantee of even date
herewith of any Investor (each, a “Limited
Guarantee”).
4. The
undersigned’s obligation to fund the Commitment may not be assigned, except as
permitted in this paragraph. Subject to the terms of any Interim
Investors Agreement or similar agreement entered into by and between the
Investors on or after the date hereof in connection with the Transactions, the
undersigned may assign all or a portion of its obligations to fund the
Commitment to any of the undersigned’s Affiliates and/or limited partners;
provided, that, except to the extent otherwise agreed by Purchaser, any such
assignment shall not relieve the undersigned of its obligations under this
letter. Purchaser may assign its rights to another wholly-owned direct or
indirect subsidiary, Affiliate, or other entity owned directly or indirectly by
the beneficial owners of Purchaser.
5. Notwithstanding
anything that may be expressed or implied in this letter, Purchaser, by its
acceptance of the benefits of this equity commitment, covenants, agrees and
acknowledges that no person other than the undersigned shall have any obligation
hereunder and that, notwithstanding that the undersigned may be a corporation,
partnership or limited liability company, no recourse hereunder or under any
documents or instruments delivered in connection herewith shall be had against
any former, current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder, Affiliate or assignee of the
undersigned or any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder, Affiliate or assignee
of any of the foregoing, whether by the enforcement of any assessment or by any
legal or equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any former, current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder, Affiliate or assignee of the
undersigned or any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder Affiliate or assignee
of any of the foregoing, as such, for any obligations of the undersigned under
this letter or any documents or instrument delivered in connection herewith or
for any claim based on, in respect of, or by reason of such obligation or their
creation.
6. Unless
assigned in accordance with the terms herein, this letter may only be enforced
by Purchaser. Purchaser’s creditors shall not have any right either
to enforce this letter or to cause Purchaser or the undersigned to enforce this
letter.
7. Concurrently
with the execution and delivery of this letter, the undersigned or an Affiliate
of the undersigned is executing and delivering to the Company a Limited
Guarantee related to Purchaser’s monetary obligations under the Acquisition
Agreement. The Company’s remedies against the undersigned under its
Limited Guarantee shall, and are intended to be, the sole and exclusive direct
or indirect remedies available to the Company against the undersigned and any
former, current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder, or Affiliate of the undersigned or any
former, current or future director, officer, employee, agent, general or limited
partner, manager, stockholder, or Affiliate
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of any of
the foregoing in respect of any liabilities or obligations arising under, or in
connection with, the Acquisition Agreement and the Transactions contemplated
thereby, including in the event Purchaser breaches its obligations under the
Acquisition Agreement, whether or not Purchaser’s breach is caused by the
undersigned’s breach of its obligations under this letter.
9. Except
to the extent required by applicable Law, including the rules and regulations
promulgated of any securities exchange or the rules and regulations promulgated
under the Exchange Act and PCC and SRC, this letter shall be treated as
confidential and is being provided to Purchaser solely in connection with the
Transactions. This letter may not be used, circulated, quoted or
otherwise referred to in any document, except with the written consent of the
undersigned. Notwithstanding the foregoing, this letter may be
provided to the Company if it agrees to treat the letter as confidential, except
that the Company may disclose the existence of this letter to its advisors on a
confidential basis in connection with the evaluation of the Transactions or to
the extent required by applicable Law or the applicable rules of any national
securities exchange.
10. This
letter may be executed in counterparts and by facsimile, each of which, when so
executed, shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. This letter shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Delaware applicable to contracts executed in and to be performed in
that State. All claims, actions, proceedings, suits, complaints,
petitions or other legal proceedings (collectively, “Actions”) arising out
of or relating to this letter 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 Action arising out of or relating to this letter
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 Action is improper,
or that this letter or the transactions contemplated hereby may not be enforced
in or by any of the above-named courts.
11. This letter may not be
amended except by an instrument in writing signed by each of the parties
hereto and
consented to in writing (which consent shall not be unreasonably withheld) by
the Company.
12. 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 LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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| Very truly yours, | |||
| NEWBRIDGE INTERNATIONAL INVESTMENT LTD. | |||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: Authorized Signatory | |||
Exhibit
A
Investors
Providence Equity Partners VI International
L.P.
Newbridge
International Investment Ltd.