Attached files
| file | filename |
|---|---|
| 8-K - GVI SECURITY SOLUTIONS INC | v163462_8k.htm |
| EX-2.1 - GVI SECURITY SOLUTIONS INC | v163462_ex2-1.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 |
GENNX360
CAPITAL PARTNERS, L.P.
300 Park
Avenue, 17th Floor
New York,
New York 10022
October
21, 2009
Private and
Confidential
GenNx360
GVI Holding, Inc.
c/o
GenNx360 Capital Partners, L.P.
300 Park
Avenue, 17th
Floor
New York,
New York 10022
GenNx360
GVI Acquisition Corp.
c/o
GenNx360 Capital Partners, L.P.
300 Park
Avenue, 17th
Floor
New York,
New York 10022
GVI
Security Solutions, Inc.
2801
Trade Center Drive, Suite 120
Carrollton,
TX 75007
Ladies
and Gentlemen:
Reference
is hereby made to that Agreement and Plan of Merger, dated as of the date
hereof, by and among GenNx GVI Holding, Inc. (“Parent”), GenNx GVI
Acquisition Corp. (“Merger
Sub”) and GVI Security Solutions, Inc. (the “Company”) (the “Agreement”). It is
contemplated that Merger Sub will conduct a cash tender offer (the “Offer”) for at least a
majority of the issued and outstanding shares of common stock, par value $.001
per share, of the Company, followed by a second-step merger (the “Merger”) of Merger Sub with
and into the Company, with the Company continuing on as the surviving
corporation of the Merger and a wholly-owned subsidiary of Parent (the “Transaction”). Capitalized
terms used and not otherwise defined herein have the meanings ascribed to them
in the Agreement.
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1.
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Capital Commitment for
the Merger Consideration. Subject to the following
sentence, GenNx360 Capital Partners, L.P. (“GenNx360”) agrees that
it (or one or more of its Affiliates) will make an aggregate equity
contribution to Parent of up to $12 million (the “Equity
Amount”), which in turn will capitalize Merger Sub, at the
closing of the Offer, with an aggregate capital contribution in an amount
as may be required to fund the Merger Consideration and expenses related
to the Transaction (the “Proposed Capital
Financing”). The obligation of GenNx360 to provide the
Proposed Capital Financing is subject to (i) confirmation of the
satisfaction in full or waiver of each of the conditions set forth in
Section 7.1 (Conditions
to Each Party’s Obligation to Effect the Merger) and Section 7.2
(Conditions to
Obligations of Parent and Merger Sub) (including those conditions
set forth on Exhibit A to the Agreement) and (ii) there shall have been no
termination of the Agreement pursuant to the terms and subject to the
conditions thereof.
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GenNx360
Capital Partners, L.P.
October
21, 2009
Page
2
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2.
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Guarantee. GenNx360
hereby absolutely, unconditionally and irrevocably guarantees (the “Guarantee”), up to an
amount equal to the Equity Amount, as primary obligor and not merely as
surety, the due and punctual payment, performance and discharge of the
obligations of Parent and Merger Sub to pay any liabilities or damages
incurred or suffered by the Company as a result of the breach by Parent or
Merger Sub of any of their representations, warranties, covenants or other
agreements under the Agreement for which Parent or Merger Sub is liable
pursuant to the terms of the
Agreement.
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3.
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Representations. GenNx360
hereby represents and warrants that it has sufficient cash on hand or
capital commitments to satisfy its obligations under this letter
agreement, including the Guarantee, and will take no action that would
limit its ability or obligation to satisfy such
obligations.
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4.
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Termination of
Obligations. The foregoing obligations will terminate
upon the earlier of (i) the Closing of the transactions contemplated by
the Agreement, (ii) the date on which the Agreement is validly terminated
by mutual consent of the parties pursuant to the terms and
subject to the conditions thereof, or (iii) the first
anniversary of the date hereof, except as to a claim for payment asserted
in writing against GenNx360 prior to such first
anniversary. Upon termination of this letter agreement, any
obligations hereunder will terminate and no party shall have any liability
whatsoever to any other party.
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5.
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Limitations on
Liability. Notwithstanding anything that may be
expressed or implied in this letter agreement, the Agreement or otherwise,
Parent, Merger Sub and the Company, by their acceptance of the benefits
hereof, covenant, agree and acknowledge that, notwithstanding that
GenNx360 and its respective successors and permitted assigns may be a
limited partnership or a limited liability company, (i) 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, partner, affiliate, agent, member, manager,
shareholder, representative or assignee (any such person or entity, a
“Representative”)
of GenNx360 or any Representative of GenNx360 (any such Representative, a
“Secondary
Representative”), whether
by the enforcement of any assessment or by any legal or equitable
proceedings, or by virtue of any statute, regulation or other applicable
law and (ii) no personal liability whatsoever shall attach to, be imposed
on, or otherwise be incurred by any Representative of GenNx360 or any
Secondary Representative, as such for any obligations of GenNx360 under
this letter agreement or any documents or instruments delivered in
connection herewith or for any claim based on, in respect of, or by reason
of, such obligations or their creation. GenNx360 shall only be
liable for willful and material breaches of its obligations
hereunder. The maximum liability of GenNx360 under or with
respect to this letter agreement shall in no event exceed the Equity
Amount, and in no event shall GenNx360 be liable for any special,
incidental, indirect, punitive or consequential damages
hereunder.
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-2-
GenNx360
Capital Partners, L.P.
October
21, 2009
Page
3
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6.
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Third Party
Beneficiary. The Company shall be an express third party
beneficiary to the agreements made in this letter agreement, including the
Guarantee, and shall have the right to enforce such agreements directly
against GenNx360. Except as set forth in the preceding
sentence, nothing herein is intended to, nor shall it, confer, expressly
or by implication, upon any other person or entity (including, without
limitation, any of the Company’s creditors) any right or remedy under or
by reason of this letter agreement, whether as a purported third party
beneficiary or otherwise
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7.
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Assignment. GenNx360
may not assign any of its obligation under this letter
agreement.
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8.
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Miscellaneous. This
letter agreement is delivered to Parent, Merger Sub and the Company with
the understanding and on the condition that neither this letter nor its
substance will be disclosed publicly or privately except (i) with written
permission of GenNx360 and the Company, (ii) to the shareholders,
managers, directors, officers, advisors and representatives of the
Company, to the extent needed to facilitate evaluation of and negotiations
with respect to the Transaction, provided that such parties agree to use
such information solely for such purpose and to keep such information
confidential as provided herein, or (iii) to the extent required or
requested, as appropriate, by law, regulation, judicial or governmental
order, subpoena or other legal process or by any governmental, regulatory
or supervisory authority or stock exchange. This letter
agreement shall be governed by and construed in accordance with the laws
of the State of New York, without giving effect to the principles of
conflicts of law. Each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of the United States District Court for the
Southern District of New York or any court of the State of New York
located in such district in the event any dispute arises out of this
letter agreement or any transactions contemplated by this letter
agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction or venue by motion or other request for leave from
any such court and (c) agrees that it will not bring any action relating
to this letter agreement or any of the transactions contemplated by this
letter agreement in any court other than such courts sitting in the State
of New York. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST
THE OTHER IN THE MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LETTER AGREEMENT. No amendment, waiver or modification of any
provision of this letter agreement shall become effective unless the same
shall be in writing and signed by each of the parties hereto, including
the Company. This letter agreement may be signed in one or more
counterparts.
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[Signature
pages follow]
-3-
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Yours
sincerely,
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| GENNX360 CAPITAL PARTNERS, L.P. | |||
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By:
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/s/ Lloyd G. Trotter
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Name: Lloyd
G. Trotter
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Title: Managing
Partner
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Accepted
and Agreed to
as
of October 21, 2009.
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GENNX360
GVI HOLDING, INC.
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By:
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/s/ Matthew Guenther
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Name: Matthew
Guenther
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Title: Vice
President
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GENNX360
GVI ACQUISITION CORP.
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By:
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/s/ Matthew Guenther
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Name: Matthew
Guenther
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Title: Vice
President
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Accepted
and Agreed to
as
Third Party Beneficiary
as of October 21,
2009.
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GVI
SECURITY SOLUTIONS, INC.
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By:
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/s/ Steven E. Walin
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Name: Steven
E. Walin
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Title: Chief
Executive Officer
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