| Item 1.01 | Entry into a Material Definitive Agreement. |
As previously reported, on October 21, 2016, Genworth Financial, Inc. (the “Company”), Asia Pacific Global Capital Co., Ltd., a limited liability company incorporated in the People’s 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. In addition to the Merger Agreement, the Company, Parent and Merger Sub have entered into that certain (i) Waiver and Agreement, dated as of August 21, 2017, (ii) Second Waiver and Agreement, dated as of November 29, 2017, (iii) Third Waiver and Agreement, dated as of February 23, 2018; (iv) Fourth Waiver and Agreement, dated as of March 27, 2018, and (v) Fifth Waiver and Agreement, dated as of June 28, 2018. Capitalized terms used but not defined in the Current Report on Form8-K have the meanings ascribed to such terms under the Merger Agreement.
On August 14, 2018, the Company, Parent and Merger Sub entered into a Sixth Waiver and Agreement (the “Waiver Agreement”) pursuant to which the Company and Parent each agreed to extend the End Date (as defined under the Merger Agreement) to December 1, 2018, and accordingly waive until December 1, 2018 its right to terminate the Merger Agreement and abandon the Merger due to a failure of the Merger to have been consummated on or before August 15, 2018.
Under the terms of the Waiver Agreement, the Company, Parent and Merger Sub, as applicable, waived (i) the unstacking condition under Section 7.2(d) of the Merger Agreement (“Unstacking Condition”); (ii) compliance by the other party or parties with Section 6.5 of the Merger Agreement to the extent relating to approvals of the Unstacking Condition (“Unstacking Approvals”); and (iii) any claim that it may have against the other party or other parties under the Merger Agreement or otherwise, including any claim that the other party or parties has or have failed to comply with Section 6.5 of the Merger Agreement, resulting from, arising out of or relating to obtaining or failing to obtain any of the Unstacking Approvals.
In addition, the Company waived (i) Parent’s obligation to contribute $525,000,000 to the Company to facilitate the Unstacking Condition (“Unstacking Capital Commitment”); (ii) Parent’s obligation to contribute $600,000,000 to the Company for the repayment of the Company’s 6.515% senior unsecured notes due May 2018 (“2018 Debt Capital Commitment” and together with the Unstacking Capital Commitment, the “Capital Commitments”); (iii) compliance with the terms of the Equity Commitment Letter (as defined under the Merger Agreement) to the extent relating to the Capital Commitments, and (iv) any claim that the Company may have against Parent, Merger Sub or their respective Affiliates under the Merger Agreement, the Equity Commitment Letter or otherwise, resulting from, arising out of or relating to the failure of Parent to contribute the Capital Commitments, including any such claim that Parent has failed to comply with Section 6.16 or Section 6.17 of the Merger Agreement, and any such claim of the Company under Section 7 of the Equity Commitment Letter.
The Waiver Agreement recites that Parent has agreed to make or cause certain of its Affiliates to make capital contributions of approximately $1,500,000,000 in aggregate to the Company between the consummation of the Merger and March 31, 2020, subject to (i) the occurrence of the closing the merger, and (ii) any notice or filing required to be made, or approval, consent or authorization required to be obtained, from any Governmental Entity with respect to such capital contributions.
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 14, 2018, 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 14, 2018.
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.
