General
This
Amendment No. 4 amends and supplements the statement on Schedule 13D (the
“Schedule 13D”), filed with the United States Securities and Exchange Commission
(the “Commission”) on May 8, 2007, as amended and supplemented by Amendment No.
1, filed with the Commission on November 20, 2007, Amendment No. 2, filed with
the Commission on November 27, 2007, and Amendment No. 3 (“Amendment No. 3”),
filed with the Commission on November 29, 2007. Except as
supplemented herein, such statements, as heretofore amended and supplemented,
remain in full force and effect. The purpose of this Amendment No. 4
is to furnish the additional information contained herein.
The
Reporting Person is a participant in the transaction described in Item 4 below
together with Providence Equity Partners VI International L.P. (the “Sponsor”)
and EGS Acquisition Co LLC (“BidCo”), a Delaware limited liability company
formed by the Sponsor and Newbridge International Investment Ltd. (“Newbridge”)
for the purpose of effecting the transaction described in Item 4
below. As a result of the matters described in Item 4 below, the
Reporting Person may be deemed to constitute a “group” within the meaning of
Section 13(d)(3) of the Exchange Act of 1934 with the Sponsor and
BidCo. As a result, the Reporting Person may be deemed to
beneficially own any Shares that may be beneficially owned by the Sponsor or
BidCo. This Schedule 13D will be amended, or one or more additional
statements on Schedule 13D will be filed, as necessary and appropriate to
reflect the Shares, if any, owned by the Sponsor or BidCo. The
Reporting Person hereby disclaims beneficial ownership of any Shares that may be
beneficially owned by the Sponsor.
The
information set forth in the Exhibits to this Amendment No. 4 is hereby
expressly incorporated herein by reference, and the responses to each item of
this Amendment No. 4 are qualified in their entirety by the provisions of such
Exhibits.
Item
1. Security and Issuer
No
change.
Item
2. Identity and Background
The name
of the person filing this statement is Ayala Corporation.
Ayala
Corporation wholly owns Azalea International Venture Partners Ltd., a British
Virgin Islands or “BVI” company, and Azalea International Venture Partners Ltd.
in turn wholly owns LiveIt Investments Limited, a BVI company, which, in turn,
wholly owns Newbridge, also a BVI company.
The
principal office of Ayala Corporation is 34th Floor
Tower & One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226.
The
principal offices of Azalea International Venture Partners Ltd., LiveIt
Investments Limited and Newbridge are c/o 33rd Floor
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226.
The name,
business address, present principal occupation or employment, principal business
address and citizenship of each director and executive officer of Ayala
Corporation, Azalea International Venture Partners Ltd., LiveIt Investments
Limited and Newbridge are set forth in the attached Schedule A.
Ayala
Corporation is the holding company of the Ayala group with principal business
interests in real estate and hotels, financial services and bancassurance,
telecommunications, electronics, information technology and business process
outsourcing services, utilities, automotives, international and other
sectors.
Azalea
International Venture Partners Ltd., LiveIt Investments Limited and Newbridge
are offshore investment vehicles utilized by Ayala Corporation for its various
investments in the business process outsourcing, technology and other
sectors.
During the
last five years, none of Ayala Corporation, Azalea International Venture Partner
Ltd., LiveIt Investments Limited and Newbridge, and to the best of their
knowledge, any of the persons listed on Schedule A attached hereto, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of
competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item
3. Source and Amount of Funds or Other Consideration
Item 3 is
hereby supplemented as follows:
With
respect to the Offer as defined and described in Item 4 below (which Item 4 is
incorporated herein by reference), the Reporting Person estimates that the
amount of funds necessary to complete the Offer is approximately $290 million
(based on the Offer Price (as defined in Item 4 below)). As described
in further detail in Item 4 below, it is anticipated that the funding for the
Offer will be in the form of up to $150 million in cash to be contributed by
Newbridge to BidCo, pursuant to the Equity Commitment Letter (as defined in Item
4 below), and up to $150 million in cash to be contributed by the Sponsor to
BidCo pursuant to its equity commitment letter.
It is
anticipated that the funds to be contributed by Newbridge to BidCo will be
contributed to Newbridge indirectly from Ayala Corporation from general
corporate funds. Newbridge has also agreed, pursuant to the Support
Agreement (as defined in Item 4 below), to tender its Shares in the Offer and
anticipates receiving approximately $57,532,950 in gross proceeds from the sale
of such Shares.
The
information set forth in response to this Item 3 is qualified in its entirety by
reference to the Acquisition Agreement (as defined in Item 4), the Equity
Commitment Letter and the Support Agreement, which are incorporated herein by
reference.
Item
4. Purpose of Transaction
Item 4 is
amended and restated by the following:
On
September 19, 2008, the Issuer entered into an Acquisition Agreement (the
“Acquisition Agreement”) by and between the Issuer and BidCo. A copy
of the press release announcing the transaction is attached as Exhibit 7.07 to
this statement.
Under the
terms of the Acquisition Agreement, BidCo will commence a tender offer in the
Philippines and the United States (the “Offer”), which may be amended from time
to time in accordance with the terms of the Acquisition Agreement, to purchase
all of the Issuer’s outstanding Shares, at a price per share in cash of $9.00
(the “Offer Price”). Subject to the terms of the Acquisition
Agreement, it is anticipated that the Offer will commence no later than 25
business days after the public announcement of the entry into the Acquisition
Agreement on September 19, 2008. Completion of the Offer is subject
to various conditions, including that at least 66.67% of the issued and
outstanding Shares have been tendered into the Offer, U.S. antitrust approval
having been obtained and other customary conditions. Upon the
completion of the Offer, it is contemplated that the ADSs will be delisted from
the Nasdaq Global Market and will become eligible for termination of
registration pursuant to Section 12(g)(4) of the Act, and the Issuer’s common
shares will be delisted from the Philippines Stock Exchange, Inc. and
deregistered pursuant to the Securities Regulation Code of the
Philippines. A copy of the Acquisition Agreement is attached as
Exhibit 7.01 to this statement and is incorporated herein by
reference.
Concurrently
with the execution of the Acquisition Agreement, Newbridge delivered to BidCo an
equity commitment letter (the “Equity Commitment Letter”). Pursuant
to the Equity Commitment Letter, Newbridge will contribute or cause to be
contributed to BidCo up to $150 million in cash. A copy of the Equity
Commitment Letter is attached as Exhibit 7.02 to this statement and is
incorporated herein by reference. The Sponsor also entered into an equity
commitment letter with BidCo pursuant to which it will contribute or cause to be
contributed to BidCo up to $150 million in cash. The contributed
funds will be used by BidCo to fund the Offer Price, any other amounts to be
paid by BidCo to any person on the acceptance date of the Offer and related
expenses.
Concurrently
with the execution of the Acquisition Agreement, Newbridge entered into a
Support Agreement (the “Support Agreement”) with BidCo. Pursuant to
the Support Agreement, Newbridge has agreed to tender its Shares into the Offer
and not to withdraw any of its Shares from the Offer. Newbridge has
also agreed to vote its Shares (i) in favor of (A) any adoption of the
Acquisition Agreement and approval of the transactions contemplated thereby, (B)
any individuals nominated by BidCo to be directors of the
Issuer,
(C) any other matter necessary for the consummation of the transactions
contemplated by the Acquisition Agreement and the Offer and (ii) against (A) any
action or agreement that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the Issuer in the
Acquisition Agreement, (B) any extraordinary corporate transaction, (C) any
agreement or other action that is intended to or could reasonably be expected to
prevent, frustrate, impede, interfere with, delay, postpone or discourage the
consummation of the Offer and (D) any amendment of any the organizational
documents of the Issuer or change in the voting rights of any class of its
capital stock, and has granted an irrevocable proxy with respect to its Shares
to BidCo until the Acquisition Agreement is terminated in accordance with its
terms or the Offer is terminated or withdrawn. A copy of the Support
Agreement is attached as Exhibit 7.03 to this statement and is incorporated
herein by reference.
In
connection with the transactions contemplated by the Acquisition Agreement, the
Sponsor and Newbridge entered into the Interim Investors Agreement (the
“Investors Agreement”). The Investors Agreement governs the
management of BidCo until the completion of the Offer and certain other matters
as between the Sponsor and Newbridge. Upon the completion of the
Offer, it is contemplated that Newbridge and the Sponsor will enter into a
customary shareholders’ agreement. A copy of the Investors Agreement
is attached as Exhibit 7.04 to this statement and is incorporated herein by
reference.
Concurrently
with the execution of the Acquisition Agreement, Newbridge also entered into a
Limited Guarantee (the “Limited Guarantee”) in favor of the
Issuer. Pursuant to the terms of the Limited Guarantee, Newbridge has
agreed to pay to the Issuer 50% of (i) BidCo’s payment obligations to the Issuer
in respect of the termination fee of $14.5 million under the terms of the
Acquisition Agreement if and when due and (ii) BidCo’s obligations for breach of
the terms of the Acquisition Agreement; provided that Newbridge’s maximum
liability under the Limited Guarantee shall not exceed $7.25 million in the
aggregate. The Sponsor also entered into a similar limited guarantee
in favor of the Issuer. A copy of the Limited Guarantee is attached
as Exhibit 7.05 to this statement and is incorporated herein by
reference.
As an
inducement to the Issuer to enter into the Acquisition Agreement, Newbridge
agreed to enter into a Standstill Agreement (the “Standstill Agreement”) with
the Issuer, which would place certain restrictions on the actions of Newbridge
and its affiliates in the event that the Acquisition Agreement is terminated and
the Offer has not been completed. Pursuant to the Standstill
Agreement, if the Acquisition Agreement is terminated and the Offer has not been
completed, Newbridge and its affiliates shall be prohibited, subject to certain
specified exceptions, acting along or in concert with others, from (i) directly
or indirectly acquiring in excess of 32% of the outstanding Shares, (ii)
publicly offering, seeking or proposing any merger, consolidation, business
combination transaction, tender offer or exchange offer for at least 50% of the
outstanding Shares or (iii) seeking to nominate or elect more than two out of
seven directors of the Issuer. Depending upon the circumstances of
the termination of the Acquisition Agreement, (i) the duration of the standstill
ranges from 6 months to 18 months to three years and (ii) in the case of a
standstill of 18 months or three years, following the expiration of the
standstill, during an additional period of 6 months or two years, respectively,
Newbridge and its affiliates shall not acquire or agree to acquire Shares in
excess of 32% of the outstanding Shares without notifying the Issuer of such
intent not less than 25 business days prior thereto and, at the option of the
Issuer, being restricted from making any such acquisition for an additional
six-month period. During the standstill period and any additional
period as describe above, Newbridge has agreed that, if the board of directors
of the Issuer and the holders of a majority of the outstanding Shares approve a
merger, consolidation, business combination transaction, tender offer or
exchange offer for at least 50% of the outstanding Shares with a party other
than Newbridge, Newbridge and its affiliates who hold Shares will (i) vote any
Shares they have acquired in excess of the 6,392,550 Shares that Newbridge
currently owns in favor of such transaction or (ii) sell or transfer any such
excess Shares to the purchaser in such transaction on the same terms and
conditions as all other shareholders of the Issuer. Newbridge at all
times would be permitted to vote or dispose of the 6,392,550 Shares it currently
owns in its sole discretion.
Information
set forth in response to this Item 4 is qualified in its entirety by reference
to the Acquisition Agreement, the Equity Commitment Letter, the Support
Agreement, the Investor Agreement, the Limited Guarantee and the Standstill
Agreement, each of which is filed as an exhibit hereto and is incorporated
herein by reference.
Other than
as described above, the Reporting Person does not have any current plans or
proposals that relate to or would result in any of the actions set forth in
items (a) through (j) of Item 4 of the instructions of Schedule 13D, although
the Reporting Person reserves the right to develop such plans or
proposals.
Item 5. Interest in
Securities of the Issuer
Item 5 is
amended and restated by adding the following:
(a) Ayala
Corporation, through the investment vehicles mentioned in Item 2 above, and for
the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns
6,392,550 Shares, representing approximately 21.58% of the outstanding Shares of
the Issuer as of September 19, 2008 as represented and warranted by the Issuer
in the Acquisition Agreement.
Except as
set forth in this Item 5(a), none of Newbridge, and, to the best of its
knowledge, any persons named in Schedule A hereto, owns beneficially any Shares,
except for Alfredo I. Ayala, who, in his personal capacity, beneficially owns
428,750 options to acquire Shares and 11,360 RSUs. The options were awarded to
Mr. Ayala in 2004-2006 as part of his compensation for serving as the Issuer’s
Chief Executive Officer and the RSUs were awarded to him for his services as a
director of the Issuer. Ayala Corporation affirmatively disclaims any
beneficial ownership interest in the options to acquire Shares or RSUs held by
Mr. Ayala in his personal capacity.
(b) Ayala
Corporation, through the investment vehicles mentioned in Item 2 above, has sole
power to vote and to dispose of the 6,392,550 Shares.
(c) Not
applicable.
(d) Not
applicable.
(e) Not
applicable.
Item 6 is
amended and restated by the following:
Each of
the Acquisition Agreement, the Equity Commitment Letter, the Support Agreement,
the Investors Agreement, the Limited Guarantee and the Standstill Agreement
(each of which is defined and described in Item 4, which definitions and
descriptions are incorporated herein by reference) are filed as exhibits hereto
and are incorporated by reference in their entirety into this Item
6.
Except as
described in this Item 6, to the best knowledge of Ayala Corporation, Azalea
International Venture Partners Ltd., LiveIt Investments Limited and Newbridge,
there are no contracts, arrangements, understandings or relationships (legal or
otherwise), including, but not limited to, transfer or voting of any of the
securities, finder’s fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies, between the persons enumerated in Item 2, and any other
person, with respect to any securities of the Issuer, including any securities
pledged or otherwise subject to a contingency the occurrence of which would give
another person voting power or investment power over such securities other than
standard default and similar provisions contained in loan
agreements.
Item
7. Material to be Filed as Exhibits
Exhibit
7.01: Acquisition Agreement by and between eTelecare Global Solutions, Inc. and
EGS Acquisition Co LLC, dated September 19, 2008.
Exhibit
7.02: Equity Commitment Letter of Newbridge International Investment Ltd., dated
September 19, 2008.
Exhibit
7.03: Support Agreement between EGS Acquisition Co LLC and Newbridge
International Investment Ltd., dated September 19, 2008.
Exhibit
7.04: Interim Investors Agreement between Newbridge International Investment
Ltd. and Providence Equity Partners VI International L.P., dated September 19,
2008.
Exhibit
7.05: Limited Guarantee by Newbridge International Investment Ltd. in favor of
eTelecare Global Solutions, Inc, dated September 19, 2008.
Exhibit
7.06: Standstill Agreement between eTelecare Global Solutions, Inc. and
Newbridge International Investment Ltd., dated September 19, 2008.
SIGNATURE
After
reasonable inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and
correct.
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Date
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/s/
Solomon M. Hermosura
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Signature
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Solomon
M. Hermosura
Managing
Director
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(Name/Title)
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SCHEDULE
A
DIRECTORS AND EXECUTIVE
OFFICERS OF
AYALA CORPORATION
The name,
business address, title, present principal occupation or employment of each of
the directors and executive officers of Ayala Corporation (“Reporting Person”)
are set forth below.
|
Name
|
Employer
& Business Address
|
Occupation/Position
|
Citizenship
|
|
Jaime
Augusto Zobel de Ayala II
|
Ayala
Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Chairman and CEO of Ayala Corporation
|
Filipino
|
|
Fernando
Zobel de Ayala
|
Ayala
Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
President and COO of Ayala Corporation
|
Filipino
|
|
Mercedita
S. Nolledo
|
Ayala
Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Senior Managing Director; Senior Counsel & Corporate Secretary of
Ayala Corporation
|
Filipino
|
|
Delfin
L. Lazaro
|
Ayala
Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director
of Ayala Corporation; Chief Executive Officer of AC
Capital
|
Filipino
|
|
Xavier
P. Loinaz
|
c/o
Bank of the Philippine Islands
19/F
BPI Head Office
Ayala
Avenue corner Paseo de Roxas, Makati City, Philippines
1226
|
Director
of Ayala Corporation; Director of Bank of the Philippine Islands; Director
of Globe Telecom Inc.
|
Filipino
|
|
Meneleo
J. Carlos, Jr.
|
c/o
RI Chemical Corporation
E.
Rodriguez Ave.,
Bgy.
Bagong Ilog, Pasig City, Philippines
|
Director;
Chairman and President of RI Chemical Corporation; President of Resins,
Inc.; President of Riverbanks Development Corporation; Director of
Integrated Micro-electronics, Inc.
|
Filipino
|
|
Toshifumi
Inami
|
c/o
Mitsubishi Corporation
52/F
PBCom Tower
VA
Rufino St., Makati City, Philippines
|
Director;
General Manager of Mitsubishi Corporation-Manila Branch; Senior Vice
President of Mitsubishi Corporation-Tokyo, Japan
|
Japanese
|
|
Rufino
Luis T. Manotok
|
Ayala
Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Senior
Managing Director; Corporate Information Officer; Chief Finance Officer of
Ayala Corporation
|
Filipino
|
|
Ramon
G. Opulencia
|
Ayala
Corporation
33/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Managing
Director; Treasurer of Ayala Corporation
|
Filipino
|
|
Renato
O. Marzan
|
Ayala
Corporation 33/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Managing
Director; General Counsel; Asst. Corporate Secretary; Compliance Officer
of Ayala Corporation
|
Filipino
|
|
John
Philip S. Orbeta
|
Ayala
Corporation
32/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Managing
Director of Ayala Corporation
|
Filipino
|
DIRECTORS
AND EXECUTIVE OFFICERS OF
AZALEA
INTERNATIONAL VENTURE PARTNERS LTD.
The name,
business address, title, present principal occupation or employment of each of
the directors and executive officers of Azalea International Venture Partners
Ltd. (“Azalea”) are set forth below.
|
Name
|
Employer &
Business Address
|
Occupation/
Position
|
Citizenship
|
|
Delfin
L. Lazaro
|
c/o
Ayala Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Chief Executive Officer of AC Capital
|
Filipino
|
|
Ricardo
N. Jacinto
|
c/o
Ayala Corporation
32/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Managing Director of Ayala Corporation
|
Filipino
|
|
Gerardo
C. Ablaza, Jr.
|
c/o
Globe Telecom
5/F
Globe Telecom Plaza Pioneer cor Madison Sts.
Mandaluyong
City, Philippines
|
Director;
President of Globe Telecom Inc.; Senior Managing Director of Ayala
Corporation
|
Filipino
|
|
Rufino
Luis T. Manotok
|
c/o
Ayala Corporation
34/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Senior Managing Director Corporate Information Officer; Chief Finance
Officer of Ayala Corporation
|
Filipino
|
|
Charles
C. Cosgrove
|
c/o
Ayala International
Raffles
City Tower
#320-03
A Singapore
|
Director;
Senior Managing Director of Ayala Corporation; CEO of AG Holdings,
Ltd
|
American
|
DIRECTORS
AND EXECUTIVE OFFICERS OF
LIVEIT
INVESTMENTS LIMITED
The name,
business address, title, present principal occupation or employment of each of
the directors and executive officers of LiveIt Investments Limited
(“LiveIt”) are set
forth below.
|
Name
|
Employer & Business
Address
|
Occupation/ Position
|
Citizenship
|
|
Alfredo
I. Ayala
|
c/o
Ayala Corporation
32/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Managing Director of Ayala Corporation
|
Filipino
|
|
Renato
O. Marzan
|
c/o
Ayala Corporation
33/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Managing Director, General Counsel, Asst. Corporate Secretary &
Compliance Officer of Ayala Corporation
|
Filipino
|
DIRECTORS
AND EXECUTIVE OFFICERS OF
NEWBRIDGE
INTERNATIONAL INVESTMENT LTD.
The name,
business address, title, present principal occupation or employment of each of
the directors and executive officers of Newbridge International Investment Ltd.
are set forth below.
|
Name
|
Employer & Business
Address
|
Occupation/ Position
|
Citizenship
|
|
Alfredo
I. Ayala
|
c/o
Ayala Corporation
32/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Managing Director of Ayala Corporation
|
Filipino
|
|
Renato
O. Marzan
|
c/o
Ayala Corporation
33/F
Tower One Exchange Plaza, Ayala Avenue, Makati City, Philippines
1226
|
Director;
Managing Director, General Counsel, Asst. Corporate Secretary &
Compliance Officer of Ayala Corporation
|
Filipino
|
