Attached files
file | filename |
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EX-2.1 - GVI SECURITY SOLUTIONS INC | v163462_ex2-1.htm |
EX-2.2 - GVI SECURITY SOLUTIONS INC | v163462_ex2-2.htm |
EX-10.1 - GVI SECURITY SOLUTIONS INC | v163462_ex10-1.htm |
EX-10.3 - GVI SECURITY SOLUTIONS INC | v163462_ex10-3.htm |
EX-10.2 - GVI SECURITY SOLUTIONS INC | v163462_ex10-2.htm |
EX-99.1 - GVI SECURITY SOLUTIONS INC | v163462_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 21,
2009
GVI SECURITY SOLUTIONS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
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000-21295
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77-0436410
|
||
(State
or other jurisdiction
of
incorporation)
|
(Commission
File
Number)
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(I.R.S.
Employer
Identification
Number)
|
2801 Trade Center Drive, Suite 120, Carrollton,
Texas
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75007
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(Address
of principal executive office)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (972)
245-7353
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2.below):
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
¨
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act (17
CFR 240.13c-4(c))
|
Item
1.01. Entry into a Material Definitive Agreement.
Merger
Agreement
On
October 21, 2009, GVI Security Solutions, Inc., a Delaware corporation (“GVI” or
the “Company”), GenNx360 GVI Holding, Inc., a Delaware corporation (“Parent”),
and GenNx360 GVI Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of
Merger (the “Merger Agreement”), pursuant to which, among other things, Merger
Sub will commence a tender offer (the “Tender Offer”) to acquire all of GVI’s
outstanding shares of common stock, par value $0.001 per share (“Common Stock”),
for $0.38 per share payable net to the seller in cash, without interest and
subject to any tax withholding (the “Offer Price”). The Merger Agreement also
provides that following completion of the Tender Offer, Merger Sub will be
merged with and into GVI (the “Merger”) with GVI surviving the Merger as a
wholly-owned subsidiary of Parent. At the effective time of the Merger, all
remaining outstanding shares of Common Stock not tendered in the Tender Offer
(other than shares of Common Stock (i) owned by Parent, Merger Sub, GVI and
its subsidiaries and (ii) for which appraisal has been properly demanded
under Delaware law) will be acquired for cash at the Offer Price and on the
terms and conditions set forth in the Merger Agreement.
This
summary of the principal terms of the Merger Agreement and the copy of the
Merger Agreement filed as an exhibit to this Form 8-K are intended to provide
information regarding the terms of the Merger Agreement and are not intended to
modify or supplement any factual disclosures about GVI in its public reports
filed with the Securities and Exchange Commission (the “SEC”). In particular,
the Merger Agreement and this summary are not intended to be, and should not be
relied upon as, disclosures regarding any facts and circumstances relating to
GVI.
The
Merger Agreement provides that Parent will cause Merger Sub to commence, and
Merger Sub will commence, the Tender Offer no later than ten business days after
the date of the Merger Agreement. In the Tender Offer, each share of Common
Stock accepted by Merger Sub in accordance with the terms of the Tender Offer
will be exchanged for the right to receive the Offer Price. Parent will cause
Merger Sub to accept for payment, and Merger Sub will accept for payment, all
shares of Common Stock validly tendered and not withdrawn, pursuant to the terms
of the Tender Offer, as soon as practicable following the Tender Offer’s
expiration date (in no event sooner than 20 business days after the Tender Offer
has commenced).
Neither
the Tender Offer nor the Merger is subject to a financing condition.
Simultaneously with the execution of the Merger Agreement, GenNx360 Capital
Partners, L.P. (the “Sponsor”), a private equity investment fund which is
affiliated with Parent and Merger Sub and managed by GenNx360 Management
Company, LLC, a Delaware limited liability company (“GenNx360”), provided a
commitment and guarantee letter (the “Commitment Letter”) to Parent, Merger Sub
and GVI obligating the Sponsor to (i) provide funds to Parent and Merger Sub
sufficient to permit Parent and Merger Sub to pay the consideration in the
Tender Offer and the Merger and to pay certain other monetary obligations that
may be owed pursuant to the Merger Agreement and (ii) guarantee the payment of
certain monetary obligations that may be owed pursuant to the Merger Agreement,
including funds related to any damages or liabilities incurred or suffered by
GVI in the event of a breach of the Merger Agreement. A copy of the
Commitment Letter is attached hereto as Exhibit 2.2 and is incorporated by
reference herein. The foregoing description of the Commitment Letter
does not purport to be complete and is qualified in its entirety by reference to
the document as filed as an exhibit hereto.
In
connection with the execution of the Merger Agreement, the Company’s board of
directors and compensation committee have approved certain amended and restated
employment agreements offered by the Company to Steven E. Walin, the Chief
Executive Officer of the Company, and Joseph Restivo, the Chief Financial
Officer and Chief Operating Officer of the Company, which would be effective
upon the consummation of the Merger. After the consummation of the
Merger, Mr. Walin will continue to serve as the Chief Executive Officer of the
Company and Mr. Restivo will continue to serve as the Chief Financial Officer
and Chief Operating Officer of the Company. Copies of each of the
amended and restated employment agreements is attached hereto as Exhibits 10.1
(Walin Amended and Restated Employment Agreement) and 10.2 (Restivo Amended and
Restated Employment Agreement) and are incorporated by reference
herein. The foregoing description of the amended and restated
employment agreements does not purport to be complete and is qualified in its
entirety by reference to those documents as filed as exhibits
hereto.
Merger
Sub’s obligation to accept for payment and pay all shares of Common Stock
validly tendered and not withdrawn pursuant to the Tender Offer is subject to
the satisfaction or waiver of a number of customary closing conditions including
the condition that the number of shares of Common Stock validly tendered and not
withdrawn represents at least a majority of the total number of shares of Common
Stock outstanding, assuming the exercise of all outstanding options (the
“Minimum Tender Condition”). The Company has also granted to Parent an
irrevocable option (the “Top-Up Option”), which Parent may exercise at the time
of or immediately after the acceptance for payment of, and payment by Merger Sub
for, any shares of Common Stock pursuant to the Tender Offer, to purchase from
the Company the number of shares of Common Stock equal to the lesser of (i) that
number of shares of Common Stock that, when added to the number of shares of
Common Stock owned by Merger Sub as of immediately prior to the exercise of the
Top-Up Option, constitutes one share more than 90% of the number of shares of
Common Stock then outstanding on a fully diluted basis (after giving effect to
the issuance of the Top-Up Option shares) or (ii) the aggregate of the number of
shares of Common Stock held as treasury shares by the Company and its
subsidiaries and the number of shares of Common Stock that the Company is
authorized to issue under its certificate of incorporation but that are not
issued and outstanding (and are not reserved for issuance pursuant to the
exercise of options) as of immediately prior to the exercise of the Top-Up
Option. If Parent or Merger Sub acquires more than 90% of the outstanding shares
of Common Stock, including through exercise of the Top-Up Option, it will
complete the Merger through the “short form” procedures available under Delaware
law.
The
Merger Agreement contains certain termination rights by GVI and Parent
including, with respect to GVI, in the event that GVI receives a superior
proposal. In connection with the termination of the Merger Agreement under
specified circumstances, including with respect to the acceptance of a superior
proposal by GVI, GVI may be required to pay Parent a termination fee equal to
$1,000,000. In the event the Merger Agreement is terminated in certain other
circumstances, including as a result of the failure of the Minimum Tender
Condition to be satisfied at the scheduled expiration of the Tender Offer, the
Company’s breach of the Merger Agreement, or the termination of the Tender Offer
by Parent without any purchase of shares of Common Stock, the Company shall pay
all costs and expenses up to $500,000 incurred by Parent and Merger Sub in
connection with the Merger Agreement and the Tender Offer. The Merger Agreement
also provides that GVI may specifically enforce Parent’s and Merger Sub’s
obligations under the Merger Agreement.
The
foregoing description of the Merger Agreement does not purport to be complete
and is qualified in its entirety by reference to the Merger Agreement, which is
filed as Exhibit 2.1 hereto and is incorporated herein by
reference.
The
Merger Agreement has been provided solely to inform investors of its terms. The
representations, warranties and covenants contained in the Merger Agreement were
made only for purposes of such agreement and as of specific dates, were made
solely for the benefit of the parties to the Merger Agreement and may be
intended not as statements of fact, but rather as a way of allocating the risk
to one of the parties if those statements prove to be inaccurate. In addition,
such representations, warranties and covenants may have been qualified by
certain disclosures not reflected in the text of the Merger Agreement, and may
apply standards of materiality in a way that is different from what may be
viewed as material by stockholders of, or other investors in, the Company.
Investors are not third-party beneficiaries under the Merger Agreement and
should not rely on the representations, warranties and covenants or any
descriptions thereof as characterizations of the actual state of facts or
condition of GVI, Parent, Merger Sub, or any of their respective subsidiaries or
affiliates.
Tender
and Support Agreement
As a
condition to the Merger Agreement, certain stockholders of the Company (the
“Signing Stockholders”) entered into a tender and support agreement (the
“Support Agreement”) with Parent, Merger Sub and the Company, concurrently with
the execution and delivery of the Merger Agreement, whereby each Signing
Stockholder has agreed, among other things, (i) to tender or cause to be
tendered in the Tender Offer all “Covered Shares” (as defined in the Support
Agreement) beneficially owned or subsequently acquired by it, him or her, (ii)
not to withdraw the Covered Shares tendered by it, him or her in the Tender
Offer prior to the termination of the Tender Offer or the termination of the
Support Agreement and (iii) to vote in favor of adoption and approval of
the Merger Agreement and the transactions contemplated by the Merger Agreement,
and against any proposal opposing to or in competition with the consummation of
the Merger or the transactions contemplated by the Merger
Agreement.
The
foregoing description of the Support Agreement does not purport to be complete
and is qualified in its entirety by reference to the Support Agreement, the form
of which is filed as Exhibit 10.3 hereto and is incorporated herein by
reference.
Item
8.01. Other Events.
A copy of
the joint press release issued by GVI and GenNx360, dated October 22, 2009,
concerning the foregoing is attached as Exhibit 99.1 hereto.
NOTICES
Important
Information about the Tender Offer
The Tender Offer described herein has
not yet commenced, and this report is neither an offer to purchase nor a
solicitation of an offer to sell securities. At the time the Tender Offer is
commenced, Merger Sub and Parent will file a tender offer statement on Schedule
TO with the SEC, and the Company will file a solicitation/recommendation
statement on Schedule 14D-9, with respect to the Tender Offer. The tender offer
statement (including an offer to purchase, a related letter of transmittal and
other tender offer documents) and the solicitation/recommendation statement will
contain important information that should be read carefully before making any
decision to tender securities in the planned Tender Offer. Those materials will
be made available to the Company’s stockholders at no expense to them. In
addition, all of those materials (and all other Tender Offer documents filed
with the SEC) will be made available at no charge on the SEC’s website: www.sec.gov.
Statement
on Cautionary Factors
Except for the historical information
presented herein, matters discussed herein may constitute forward-looking
statements. Such statements include, but are not limited to, statements about
GVI’s beliefs, plans, objectives, goals, expectations, estimates and intentions
that are subject to significant risks and uncertainties and are subject to
change based on various factors, many of which are beyond our control. The words
“may,” “could,” should,” “would,” “believe,” anticipate,” “estimate,” “expect,”
“intend,” “plan,” “target,” “goal,” and similar expressions are intended to
identify forward-looking statements. Such forward-looking statements are subject
to certain risks and uncertainties that could cause actual results to differ
materially from historical results or from any results expressed or implied by
such forward-looking statements. These risks and uncertainties include, but are
not limited to, the risk that a condition to the closing of the transaction will
not be satisfied, other risks to consummation of the transaction, including the
risk that the transaction will not be consummated within the expected time
period, general and regional economic conditions, electronic security systems
industry trends, customer demands and preferences, competition from other
providers of electronic security systems and uncertainties generally associated
with the electronic security systems industry. A description of these factors,
as well as others that could affect the Company’s business, is set forth in the
Company’s annual report on Form 10-K and quarterly reports on Form 10-Q, filed
with the Securities and Exchange Commission. The Company disclaims any
obligation to update any forward-looking statements to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
Item
9.01. Financial Statements and Exhibits.
(d)
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Exhibits.
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Exhibit
2.1
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Agreement
and Plan of Merger, dated October 21, 2009, by and among GVI Security
Solutions, Inc., GenNx360 GVI Holding, Inc. and GenNx360 GVI Acquisition
Corp.
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Exhibit
2.2
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Commitment
Letter by GenNx360 Capital Partners, L.P. in favor of GVI Security
Solutions, Inc., GenNx360 GVI Holding, Inc. and GenNx360 GVI Acquisition
Corp., dated as of October 21,
2009.
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Exhibit
10.1
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Amended
and Restated Employment Agreement, dated October 21, 2009, between Steven
E. Walin and GVI Security Solutions,
Inc.
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Exhibit10.2
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Amended
and Restated Employment Agreement, dated October 21, 2009, betweenJoseph
Restivo and GVI Security Solutions,
Inc.
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Exhibit10.3
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Form
of Tender and Support Agreement, by and among GenNx360 GVI Holding,
Inc.,GenNx360 GVI Acquisition Corp., GVI Security Solutions, Inc. and
certain stockholders.
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Exhibit
99.1
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Press
Release dated October 22, 2009, relating to the transactions described
above.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: October
22, 2009
GVI SECURITY SOLUTIONS, INC. | ||||
By:
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/s/ Joseph Restivo
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Name:
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Joseph
Restivo
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Title:
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Chief
Operating Officer and
Chief
Financial Officer
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EXHIBIT
INDEX
No.
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Description
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Exhibit
2.1
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Agreement
and Plan of Merger, dated October 21, 2009, by and among GVI Security
Solutions, Inc., GenNx360 GVI Holding, Inc. and GenNx360 GVI Acquisition
Corp.
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Exhibit
2.2
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Commitment
Letter by GenNx360 Capital Partners, L.P. in favor of GVI Security
Solutions, Inc., GenNx360 GVI Holding, Inc. and GenNx360 GVI Acquisition
Corp., dated as of October 21, 2009.
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Exhibit
10.1
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Amended
and Restated Employment Agreement, dated October 21, 2009, between Steven
E. Walin and GVI Security Solutions, Inc.
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Exhibit
10.2
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Amended
and Restated Employment Agreement, dated October 21, 2009, between Joseph
Restivo and GVI Security Solutions, Inc.
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Exhibit
10.3
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Form
of Tender and Support Agreement, by and among GenNx360 GVI Holding, Inc.,
GenNx360 GVI Acquisition Corp., GVI Security Solutions, Inc. and certain
stockholders.
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Exhibit
99.1
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Press
Release dated October 22, 2009, relating to the transactions described
above.
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