Item 1.01
|
Entry into a Material Definitive Agreement.
|
As previously reported, on October 21, 2016, Genworth
Financial, Inc. (the
Company
or
Genworth
), Asia Pacific Global Capital Co., Ltd., a limited liability company incorporated in the Peoples Republic of China (
Parent
), and Asia Pacific
Global Capital USA Corporation, a Delaware corporation and an indirect, wholly owned subsidiary of Parent (
Merger Sub
), entered into an Agreement and Plan of Merger (the
Merger Agreement
), pursuant to which,
subject to the terms and conditions set forth therein, the Company will be acquired by Parent through a merger effected under Delaware law. The Merger Agreement provides that, subject to the satisfaction or waiver of certain conditions, Merger Sub
will merge with and into the Company (the
Merger
). As a result of the Merger, Merger Sub will cease to exist and the Company will survive as an indirect, wholly owned subsidiary of Parent. Capitalized terms used but not defined in
the Current Report on Form 8-K have the meanings ascribed to such terms under the Merger Agreement.
On August 21, 2017, the Company, Parent and
Merger Sub entered into a Waiver and Agreement (the
Waiver Agreement
) pursuant to which the Company and Parent each agreed to waive until November 30, 2017 its right to terminate the Merger Agreement and abandon the Merger in
accordance with the terms of the Merger Agreement due to a failure of the Merger to have been consummated on or before August 31, 2017. The Waiver Agreement states that (i) as of August 21, 2017, certain regulatory approvals required for
consummation of the transactions contemplated by the Merger Agreement have not yet been obtained by the parties, (ii) it is unlikely that they would be obtained on or prior to August 31, 2017 and (iii) consequently, as of August 21, 2017, the
parties expected that beginning on September 1, 2017, each of Genworth and Parent would have had the right to terminate the Merger Agreement without the Companys right to receive payment from Parent of a termination fee of $210,000,000 (the
Parent Termination Fee
).
In addition, pursuant to the Waiver Agreement, the Company irrevocably waived any right it otherwise would
have had to receive the Parent Termination Fee upon the following circumstances: (a) if the Merger Agreement is terminated by the Company or Parent due to the Merger not being consummated prior to the End Date if, at the time of such termination,
all of the conditions to Parents and Merger Subs obligations to consummate the Merger shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the closing, provided that each of such
conditions is capable of being satisfied at the closing), except for one or more of the conditions relating to (x) Parents receipt of all requisite filings, confirmations and approvals with or by the National Development and Reform Commission
of the Peoples Republic of China (the
PRC
), Ministry of Commerce of the PRC, the State Administration of Foreign Exchange of the PRC, or their respective competent local counterparts, as applicable (collectively, the
PRC regulatory approvals
), (y) the absence of law or orders that restrain, enjoin or otherwise prohibit the consummation of the Merger (solely with the respect to an applicable law or order from a PRC governmental entity or any
other governmental entity in the PRC, Hong Kong, Macau or Taiwan); or (z) the receipt by Parent of the PRC regulatory approvals without the imposition of any burdensome condition and (b) the Merger Agreement is terminated by the Company or Parent
because a governmental entity of competent jurisdiction enacted, issued, promulgated, enforced or entered any law or order that is in effect, or has taken any other action, in each case that is final and non-appealable and has the effect of
permanently restraining, enjoining or otherwise prohibiting consummation by such party of the merger (but solely with respect to a law or order from a PRC governmental entity or any governmental entity in the PRC, Hong Kong, Macau or Taiwan). As a
result of the waiver, the only circumstance under which the Parent Termination Fee would be payable is if the Merger Agreement were terminated by the Company upon the following circumstance: (i) the Company is not then in material breach of its
covenants under the Merger Agreement and (ii) there has been a breach of any representation, warranty, covenant or agreement by Parent or Merger Sub under the Merger Agreement, or any such representation and warranty shall have become inaccurate
after the date of the Merger Agreement, which breach or inaccuracy would give rise to the failure of the Companys closing conditions and such breach or inaccuracy is not curable or is not cured prior to the End Date (or 30 days after notice of
such breach or inaccuracy is given by the Company to Parent, if earlier).
Further, pursuant to the Waiver Agreement, each of Parent and Merger Sub, on
the one hand, and the Company, on the other hand, acknowledges that as of August 21, 2017, there has been no breach of the Merger Agreement on the part of the other party and irrevocably waives any claim against such other party based upon or
arising out of any actual or alleged breach of any representation, warranty, covenant or agreement set forth in the Merger Agreement based upon the facts or circumstances existing or occurring on or prior to August 21, 2017.
The foregoing description of the Waiver Agreement is qualified in its entirety by reference to the Waiver Agreement, a copy of which is filed as Exhibit 2.1
hereto and incorporated herein by reference.
2