UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

March 27, 2018

Date of Report

(Date of earliest event reported)

 

 

 

LOGO

GENWORTH FINANCIAL, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-32195   80-0873306

(State or other jurisdiction

of incorporation or organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

6620 West Broad Street, Richmond, VA   23230
(Address of principal executive offices)   (Zip Code)

(804) 281-6000

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

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)

 

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐ 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 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

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.

On March 27, 2018, the Company, Parent and Merger Sub entered into a Fourth Waiver and Agreement (the “ Waiver Agreement ”) pursuant to which the Company and Parent each agreed to waive until July 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 April 1, 2018.

In addition, under the Waiver Agreement, the Company and Parent acknowledged that the Merger Agreement may be terminated, and the Merger abandoned, at any time prior to July 1, 2018 by the board of directors of either the Company or Parent, if the Committee on Foreign Investment in the United States (“ CFIUS ”) notifies the Company, Parent and Merger Sub that it has completed its review of the Merger and the mitigation proposals presented by the parties, and intends to recommend that the President of the United States act to suspend or prohibit the Merger or any of the other transactions contemplated by the Merger Agreement.

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 March 27, 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 March 27, 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.

 

Item 8.01 Other Events.

On March 27, 2018, the Company issued a press release (the “ Press Release ”) announcing the execution of the Waiver Agreement. The Press Release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

  2.1    Fourth Waiver and Agreement, dated as of March 27, 2018, among the Company, Parent and Merger Sub
99.1    Press Release issued by the Company, dated March 27, 2018

Cautionary Note Regarding Forward-Looking Statements

This communication includes certain statements that may constitute “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements may be identified by words such as “expects,” “intends,” “anticipates,” “plans,” “believes,” “seeks,” “estimates,” “will” or words of similar meaning and include, but are not limited to, statements regarding the outlook for the company’s future business and financial performance. Forward-looking statements are based on management’s current expectations and assumptions, which are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Actual outcomes and results may differ materially from those in the forward-looking

statements and factors that may cause such a difference include, but are not limited to, risks and uncertainties related to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect Genworth’s business and the price of Genworth’s common stock; (ii) the parties’ inability to find suitable mitigation options to address CFIUS’s interest and obtain regulatory approvals, or the possibility that regulatory approvals may further delay the transaction or will not be received prior to July 1, 2018 (and either or both of the parties may not be willing to further waive their End Date termination rights beyond July 1, 2018) or that materially burdensome or adverse regulatory conditions may be imposed in connection with any such regulatory approvals, including any mitigation approaches that may be necessary to obtain CFIUS approval (including those conditions that either or both of the parties may be unwilling to accept); (iii) the risk that a condition to closing of the transaction may not be satisfied; (iv) potential legal proceedings that may be instituted against Genworth following announcement of the transaction; (v) the risk that the proposed transaction disrupts Genworth’s current plans and operations as a result of the announcement and consummation of the transaction; (vi) potential adverse reactions or changes to Genworth’s business relationships with clients, employees, suppliers or other parties or other business uncertainties resulting from the announcement of the transaction or during the pendency of the transaction, including but not limited to such changes that could affect Genworth’s financial performance; (vii) certain restrictions during the pendency of the transaction that may impact Genworth’s ability to pursue certain business opportunities or strategic transactions; (viii) continued availability of capital and financing to Genworth before the consummation of the transaction; (ix) further rating agency actions and downgrades in Genworth’s financial strength ratings; (x) changes in applicable laws or regulations; (xi) Genworth’s ability to recognize the anticipated benefits of the transaction; (xii) the amount of the costs, fees, expenses and other charges related to the transaction; (xiii) the risks related to diverting management’s attention from Genworth’s ongoing business operations; (xiv) the impact of changes in interest rates and political instability; and (xv) other risks and uncertainties described in the Definitive Proxy Statement, filed with the SEC on January 25, 2017, and Genworth’s Annual Report on Form 10-K, filed with the SEC on February 28, 2018. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Genworth’s consolidated financial condition, results of operations, credit rating or liquidity. Accordingly, forward-looking statements should not be relied upon as representing Genworth’s views as of any subsequent date, and Genworth does not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

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: March 27, 2018     GENWORTH FINANCIAL, INC.
    By:  

/s/ Ward E. Bobitz

      Ward E. Bobitz
      Executive Vice President and General Counsel

Exhibit 2.1

EXECUTION COPY

CONFIDENTIAL

FOURTH WAIVER AND AGREEMENT

This FOURTH WAIVER AND AGREEMENT, dated as of March 27, 2018 (this “ Waiver ”), is by and among Genworth Financial, Inc., a Delaware corporation (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 (“ Merger Sub ”) (each of the Company, Parent and Merger Sub, a “ Party ” and collectively, the “ Parties ”). Any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Merger Agreement (as defined below).

WHEREAS, the Company, Parent and Merger Sub have entered into that certain (i) Agreement and Plan of Merger, dated as of October 21, 2016 (the “ Merger Agreement ”), (ii) Waiver and Agreement, dated as of August 21, 2017, (iii) Second Waiver and Agreement, dated as of November 29, 2017 (the “ Second Waiver ”) and (iv) Third Waiver and Agreement, dated as of February 23, 2018;

WHEREAS, pursuant to Section  7.1(b) of the Merger Agreement it is a condition to the obligations of each of the Parties to effect the Merger that, prior to the Effective Time, the Parties shall have obtained the required non-PRC Regulatory Approvals including the Parent Approvals referred to in Section  7.1(b) of the Parent Disclosure Letter, the Company Approvals referred to in Section  7.1(b) of the Company Disclosure Letter and any other approvals from any Governmental Entity with competent jurisdiction for which the failure to obtain such approval would subject the Company, Parent, or their respective Affiliates, or any of their respective directors, officers, other employees or Representatives to any criminal liability;

WHEREAS, Section  8.2(a) of the Merger Agreement provides that the Merger Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time by action of the board of directors of either Parent or the Company if the Merger shall not have been consummated by the August 31, 2017 (the “ End Date ”), whether such date is before or after the date of adoption of the Merger Agreement by the stockholders of the Company referred to in Section  7.1(a) of the Merger Agreement; provided , that the right to terminate the Merger Agreement under Section  8.2(a) of the Merger Agreement shall not be available to any Party if such failure of the Closing to occur on or prior to the End Date is principally caused by or is the result of a material breach of the Merger Agreement by such Party;

WHEREAS, pursuant to Section  1(a) of the Second Waiver, each of the Parties waived its right to terminate the Merger Agreement and abandon the Merger pursuant to Section  8.2(a) of the Merger Agreement prior to April 1, 2018;

WHEREAS, as of the date hereof, certain approvals required under Section  7.1(b) of the Merger Agreement have not been obtained (the “ Outstanding Approvals ”) and the Parties have reasonably determined that certain of such Outstanding Approvals will not be obtained by April 1, 2018;

WHEREAS, in light of the above-referenced Outstanding Approvals, the Parties acknowledge that it is reasonably expected that each Party will have the right to terminate the Merger Agreement pursuant to Section  8.2(a) of the Merger Agreement on April 2, 2018;

WHEREAS, as of the date hereof, each of the Parties has reasonably determined and therefore acknowledges that (i) each of the other Parties has performed its obligations under the Merger Agreement in all material respects including the obligation to use its reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under the Merger Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by the Merger Agreement, as soon as practicable, and (ii) there has been no breach of any representation, warranty, covenant or agreement under the Merger Agreement on the part of any of the Parties; and

WHEREAS, in light of the above-referenced Outstanding Approvals, the board of directors of each of the Parties has determined that it is in such Party’s best interests and the best interests of its stockholder or stockholders (as applicable) for the Parties to continue to be bound by the Merger Agreement and each of the Parties desires to waive certain of its rights and obligations under the Merger Agreement, as set forth in Section  1 of this Waiver.

NOW, THEREFORE, in consideration of the mutual covenants, agreements and undertakings contained herein, and other good and valuable consideration, and subject to and on the terms and conditions set forth in this Waiver, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:

SECTION 1. Waiver and Agreement .

 

  (a) Each of the Company and Parent hereby waives its right to terminate the Merger Agreement and abandon the Merger pursuant to Section  8.2(a) of the Merger Agreement prior to July 1, 2018.

 

  (b) Each of the Company and Parent hereby acknowledges that the Merger Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of either Parent or the Company pursuant to Section  8.2(c) of the Merger Agreement if CFIUS notifies Parent, Merger Sub and the Company that CFIUS has completed its review of the Merger and the mitigation proposals presented by the Parties, and intends to send a report to the President of the United States recommending that the President act to suspend or prohibit the Merger or any of the other transactions contemplated by the Merger Agreement.

 

  (c)

(i) The Company hereby (x) acknowledges that, as of the date hereof, there has been no breach of the Merger Agreement on the part of Parent or Merger Sub and (y) irrevocably waives any claim against each of Parent and Merger Sub 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

 

- 2 -

  occurring on or prior to the date hereof; and (ii) Parent hereby (x) acknowledges that, as of the date hereof, there has been no breach of the Merger Agreement on the part of the Company and (y) irrevocably waives any claim against the Company 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 the date hereof and in each of the foregoing clauses (i) and (ii), for all purposes under the Merger Agreement including Section  8.3(a) , Section  8.4(b) and Section  8.5 (as applicable).

SECTION 2. General Provisions .

 

  (a) Except as expressly provided herein, nothing in this Waiver shall be deemed to constitute a waiver of compliance by any Party with respect to any other term, provision or condition of the Merger Agreement or shall be deemed or construed to amend, supplement or modify the Merger Agreement or otherwise affect the rights and obligations of any Party thereto, all of which remain in full force and effect.

 

  (b) The following provisions from the Merger Agreement shall be incorporated into, and be effective with respect to, this Waiver as if set forth herein in their entirety: Section  9.2 (Modification or Amendment), Section  9.4 (Counterparts), Section  9.5 (Governing Law; Arbitration; Specific Performance; Sovereign Immunity), Section  9.6 (Notices), Section  9.9 (Obligations of Parent and of the Company), Section  9.11 (Severability) and Section  9.13 (Assignment).

[Signature page follows]

 

- 3 -

IN WITNESS WHEREOF, the Parties have duly executed this Waiver as of the date first written above.

 

GENWORTH FINANCIAL, INC.
By:   /s/ Thomas J. McInerney
  Name:   Thomas J. McInerney
  Title:   President and Chief Executive Officer

 

ASIA PACIFIC GLOBAL CAPITAL CO., LTD.
By:   /s/ Xiaoxia Zhao
  Name:   Xiaoxia Zhao
  Title:   Director and General Manager

 

ASIA PACIFIC GLOBAL CAPITAL USA CORPORATION
By:   /s/ Xiaoxia Zhao
  Name:   Xiaoxia Zhao
  Title:   President

 

- 4 -

Exhibit 99.1

 

LOGO

Genworth and Oceanwide Extend Merger Agreement

Transaction approved by Australia regulator

Richmond, VA (March 27, 2018) – Genworth Financial, Inc. (NYSE: GNW) and China Oceanwide Holdings Group Co., Ltd. (Oceanwide) today announced they have agreed to a fourth waiver and agreement of each party’s right to terminate the previously announced merger agreement. The fourth waiver and agreement extends the previous deadline of April 1, 2018 to July 1, 2018, and allows additional time for regulatory reviews of the transaction.

In addition, each party acknowledged that the merger agreement may be terminated at any time prior to July 1, 2018 by directors of either company if the Committee on Foreign Investment in the United States (CFIUS) notifies the parties that it has completed its review of the merger and the mitigation proposals presented by the parties, and intends to recommend that the President of the United States suspend or prohibit the merger from taking place.

“We recently refiled our joint voluntary notice with CFIUS and this merger extension will provide time for that review process, as well as other pending regulatory reviews, to continue,” said Tom McInerney, president and CEO of Genworth. “Our CFIUS refiling includes meaningful additions to our mitigation approach to further protect the personal data of Genworth policyholders. We are fully committed to developing a risk mitigation plan that is acceptable to all parties.”

In addition to clearance by CFIUS, the closing of the proposed transaction remains subject to the receipt of required regulatory approvals in the U.S., China and other international jurisdictions in which Genworth does business and other closing conditions.

In the event the transaction with Oceanwide does not close by the maturity of its 6.515% senior unsecured notes due May 22, 2018, Genworth will use a combination of the recently completed term loan proceeds plus some level of holding company cash to fully retire such senior unsecured notes. Genworth and Oceanwide are also discussing other options for reducing debt, subject to consummation of the merger, to improve Genworth’s financial flexibility and ratings over time.

In the meantime, Oceanwide and Genworth have received approval from regulators in Australia for the proposed transaction as contemplated under the merger agreement.

In addition to this approval, the closing of the proposed transaction remains subject to the receipt of required regulatory approvals in the U.S., China and other international jurisdictions in which Genworth does business and other closing conditions.

“Approval by Australia is an important step in the process of completing the merger with Oceanwide,” McInerney said. “Genworth and Oceanwide continue to be actively engaged with regulators who are reviewing our transaction in the remaining jurisdictions that must approve the transaction.”

Added LU Zhiqiang, chairman of Oceanwide: “We are pleased that our transaction has been approved by Australia and are committed to diligently working with Genworth to obtain the remaining regulatory approvals and satisfy other conditions necessary to close the transaction.”

The transaction also has been approved by regulators in Virginia, North Carolina, South Carolina and Vermont.

About Genworth Financial

Genworth Financial, Inc. (NYSE: GNW) is a Fortune 500 insurance holding company committed to helping families achieve the dream of homeownership and address the financial challenges of aging through its leadership positions in mortgage insurance and long term care insurance. Headquartered in Richmond, Virginia, Genworth traces its roots back to 1871 and became a public company in 2004. For more information, visit genworth.com.

From time to time, Genworth releases important information via postings on its corporate website. Accordingly, investors and other interested parties are encouraged to enroll to receive automatic email alerts and Really Simple Syndication (RSS) feeds regarding new postings. Enrollment information is found under the “Investors” section of genworth.com. From time to time, Genworth’s publicly traded subsidiaries, Genworth MI Canada Inc. and Genworth Mortgage Insurance Australia Limited, separately release financial and other information about their operations. This information can be found at http://genworth.ca and http://www.genworth.com.au.

About Oceanwide

Oceanwide is a privately held, family owned international financial holding group founded by LU Zhiqiang. Headquartered in Beijing, China, Oceanwide’s well-established and diversified businesses include operations in financial services, energy, culture and media, and real estate assets globally, including in the United States.

Oceanwide is the controlling shareholder of the Shenzhen-listed Oceanwide Holdings Co., Ltd. and Minsheng Holdings Co. Ltd.; the Hong Kong-listed China Oceanwide Holdings Limited and China Oceanwide International Financial Limited, (formerly known as Quam Limited); the privately-held Minsheng Securities, Minsheng Trust, and Asia Pacific Property & Casualty Insurance; and it is the single largest shareholder of Australia-listed CuDECO Ltd. China Oceanwide also is a minority investor in Shanghai-listed China Minsheng Bank and Hong Kong-listed Legend Holdings. In the United States, Oceanwide has real estate investments in New York, California, and Hawaii. Businesses controlled by Oceanwide have more than 10,000 employees globally.

Cautionary Note Regarding Forward-Looking Statements

This communication includes certain statements that may constitute “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements may be identified by words such as “expects,” “intends,” “anticipates,” “plans,” “believes,” “seeks,” “estimates,” “will” or words of similar meaning and include, but are not limited to, statements regarding the outlook for the company’s future business and financial performance. Forward-looking statements are based on management’s current expectations and assumptions, which are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Actual outcomes and results may differ materially from those in the forward-looking statements and factors that may cause such a difference include, but are not limited to, risks and uncertainties related to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect Genworth’s business and the price of Genworth’s common stock; (ii) the parties’ inability to find suitable mitigation options to address CFIUS’s interest and obtain regulatory approvals, or the possibility that regulatory approvals may further delay the transaction or will not be received prior to July 1, 2018 (and either or both of the parties may not be willing to further waive their End Date termination rights beyond July 1, 2018) or that materially burdensome or adverse regulatory conditions may be imposed in connection with any such regulatory approvals, including any mitigation approaches that may be necessary to obtain CFIUS approval (including those conditions that either or both of the parties may be unwilling to accept); (iii) the risk that a condition to closing of the transaction may not be satisfied; (iv) potential legal proceedings that may be instituted against Genworth following announcement of the transaction; (v) the risk that the proposed transaction disrupts Genworth’s current plans and operations as a result of the announcement and consummation of the transaction; (vi) potential adverse reactions

or changes to Genworth’s business relationships with clients, employees, suppliers or other parties or other business uncertainties resulting from the announcement of the transaction or during the pendency of the transaction, including but not limited to such changes that could affect Genworth’s financial performance; (vii) certain restrictions during the pendency of the transaction that may impact Genworth’s ability to pursue certain business opportunities or strategic transactions; (viii) continued availability of capital and financing to Genworth before the consummation of the transaction; (ix) further rating agency actions and downgrades in Genworth’s financial strength ratings; (x) changes in applicable laws or regulations; (xi) Genworth’s ability to recognize the anticipated benefits of the transaction; (xii) the amount of the costs, fees, expenses and other charges related to the transaction; (xiii) the risks related to diverting management’s attention from Genworth’s ongoing business operations; (xiv) the impact of changes in interest rates and political instability; and (xv) other risks and uncertainties described in the Definitive Proxy Statement, filed with the SEC on January 25, 2017, and Genworth’s Annual Report on Form 10-K, filed with the SEC on February 28, 2018. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Genworth’s consolidated financial condition, results of operations, credit rating or liquidity. Accordingly, forward-looking statements should not be relied upon as representing Genworth’s views as of any subsequent date, and Genworth does not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

# # #

For further information:

Investors: investorinfo@genworth.com

Media: Julie Westermann, 804 662.2423, julie.westermann@genworth.com