STOCKHOLDER TENDER AND SUPPORT
AGREEMENT
This Stockholder Tender and Support Agreement
( this “Agreement”) is dated as of
October 21, 2009 between GenNx360 GVI Holding, Inc., a
Delaware corporation (“Parent”), GenNx360 GVI
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), GVI Security
Solutions, Inc., a Delaware corporation (the
“Company”), and the parties listed on Annex I
(each, a “Stockholder”), each in the capacity as an
owner of common stock, par value $.001 per share (“Common
Stock”), options to purchase Common Stock
(“Options”), and/or warrants to purchase Common Stock
(“Warrants”) of the Company.
WHEREAS, as of the date hereof, each Stockholder is the
holder of the number of shares of Common Stock, Options and
Warrants set forth opposite such Stockholder’s name on Annex
I, which, together with any Shares that are hereafter issued to or
otherwise acquired or owned by any Stockholder prior to the
termination of this Agreement, including pursuant to any exercise
of Options or Warrants, acquisition by purchase, or stock dividend,
distribution, split-up, recapitalization, combination or similar
transaction are collectively referred to herein as, the
“Covered Shares”;
WHEREAS, as a condition to the willingness of Parent and
Merger Sub to enter into the Agreement and Plan of Merger (the
“Merger Agreement”) dated as of the date hereof among
Parent, Merger Sub and the Company, Parent and Merger Sub have
required that each Stockholder enter into this Agreement, and in
order to induce Parent and Merger Sub to enter into the Merger
Agreement each Stockholder has agreed to enter into this Agreement;
and
WHEREAS, capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in
the Merger Agreement, and the other interpretative provisions set
forth in Section 9.4 of the Merger Agreement shall apply
hereto as if such provisions were set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, Parent, Merger Sub, the Company and each
Stockholder hereto agree as follows:
ARTICLE 1
AGREEMENT TO
TENDER
Section 1.01Agreement to Tender
. (a) Each Stockholder,
solely in such Stockholder’s capacity as a holder of the
Covered Shares, agrees to validly tender or cause to be tendered in
the Offer all of such Stockholder’s Covered Shares pursuant
to and in accordance with the terms of the Offer. As
promptly as practicable, but in any event no later than three
Business Days after receipt by such Stockholder of the letter of
transmittal and related materials pursuant to the terms of the
Offer, each Stockholder shall: (i) deliver to the
depositary designated in the Offer (the “Depositary”) a
letter of transmittal with respect to its Covered Shares complying
with the terms of the Offer, all certificates representing such
Covered Shares, or such other evidence of transfer as the
Depositary may reasonably request in the case of a book-entry
transfer of any uncertificated Covered Shares, and all other
documents or instruments required to be delivered by other
stockholders of the Company pursuant to the terms of the Offer,
and/or (ii) instruct the Stockholder’s broker or such other
Person that is the holder of record of any Covered Shares
beneficially owned by such Stockholder to tender such Covered
Shares pursuant to and in accordance with the terms of the
Offer. Each Stockholder agrees that once its Covered
Shares are tendered by such Stockholder that such Stockholder will
not withdraw any of such Covered Shares from the Offer unless and
until the Offer shall have been terminated by Merger Sub in
accordance with the terms of the Merger Agreement or this Agreement
shall have been terminated in accordance with
Section 4.03.
Section 1.02Merger Consideration
. Parent agrees to pay
any amount of Merger Consideration paid for each Share in excess of
the Offer Price, promptly after the Effective Time to each
Stockholder in respect of such Stockholder’s Covered
Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
EACH STOCKHOLDER
Each Stockholder represents and warrants to
Parent and Merger Sub as to itself, severally and not jointly,
that:
Section 2.01Authorization; Binding
Agreement . As
to each Stockholder who is a natural Person: he or she has full
legal capacity; the execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the
transactions contemplated hereby are within his or her powers and
authority; no other Person has any legal or equitable rights with
respect to the Covered Shares; and, if this Agreement is being
executed in a representative or fiduciary capacity, the Person
signing this Agreement has full power and authority to execute,
deliver and perform this Agreement. If such Stockholder
is not a natural Person: such Stockholder is a business entity duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization, and the execution, delivery and
performance by such Stockholder of this Agreement and the
consummation of the transactions contemplated hereby are within
such Stockholder’s corporate or organizational powers and
have been duly authorized by all necessary corporate or
organizational actions on the part of such
Stockholder. This Agreement constitutes a valid and
binding agreement of each such Stockholder enforceable against such
Stockholder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium
and other similar applicable Law affecting creditors’ rights
generally and by general principles of equity.
Section 2.02Non-Contravention
. The execution, delivery
and performance by such Stockholder of this Agreement and the
consummation of the transactions contemplated hereby do not and
will not: (i) violate any certificate of incorporation,
bylaws or other organizational documents of such Stockholder which
is an entity, (ii) violate any Law applicable to such Stockholder,
(iii) require any consent or other action by any Person under,
constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any
benefit to which such Stockholder is entitled under any provision
of any agreement or other instrument binding on such Stockholder,
or (iv) result in the imposition of any Lien on any asset of such
Stockholder which, in the case of each of clauses (ii) through
(iv), would impair or adversely affect such Stockholder’s
ability to perform its obligations hereunder. No
governmental licenses, authorizations, permits, consents or
approvals are required in connection with the execution and
delivery of this Agreement by such Stockholder or the consummation
by such Stockholder of the transactions contemplated hereby, except
for applicable requirements, if any, under the Exchange Act and any
other applicable U.S. state or federal securities laws.
Section 2.03Ownership of Covered Shares; Total
Shares . As
of the date of this Agreement, such Stockholder is the record or
beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of the number of Covered Shares set forth opposite such
Stockholder’s name on Annex I hereto, and, as of the
Acceptance Date, all of such Stockholder’s Covered Shares
will be free and clear of any Lien and any other limitation or
restriction, including any restriction on the right to vote or
otherwise transfer such Covered Shares, except as provided
hereunder or pursuant to any applicable restrictions on transfer
under the Securities Act. As of the date hereof, such
Stockholder does not own, beneficially or otherwise, any equity
securities, or securities convertible into or exercisable for any
equity securities of the Company other than as set forth opposite
such Stockholder’s name in Annex I.
Section 2.04Voting Power . Such Stockholder has full voting
power with respect to its Covered Shares, and full power of
disposition, full power to issue instructions with respect to the
matters set forth herein, and full power to agree to all of the
matters set forth in this Agreement, in each case with respect to
all of such Stockholder’s Covered Shares. None of
such Stockholder’s Covered Shares are subject to any voting
trust or other agreement or arrangement with respect to the voting
of such shares, except as provided hereunder.
Section 2.05Broker’s Fees
. Except as provided in
the Merger Agreement, no investment banker, broker, finder or other
intermediary is entitled to a fee or commission from the Company or
any of its Subsidiaries in connection with the transactions
contemplated by the Merger Agreement or this Agreement based upon
any arrangement or agreement made by or on behalf of such
Stockholder.
Section 2.06Reliance by Parent and Merger
Sub . Such
Stockholder understands and acknowledges that Parent and Merger Sub
are entering into the Merger Agreement in reliance upon such
Stockholder’s execution and delivery of this
Agreement.
ARTICLE 3
ADDITIONAL COVENANTS OF THE
STOCKHOLDERS
Each Stockholder hereby covenants and agrees,
severally and not jointly, that:
Section 3.01Voting of Covered Shares
. (a) At every meeting of
the stockholders of the Company, and at every adjournment or
postponement thereof, such Stockholder shall, or shall cause the
holder of record on any applicable record date to, vote such
Stockholder’s Covered Shares (to the extent that any of such
Stockholder’s Covered Shares have not been purchased in the
Offer): (i) in favor of the adoption of the Merger
Agreement and the transactions contemplated thereby;
(ii) against any agreement or arrangement related to any
Takeover Proposal, any liquidation, dissolution, recapitalization,
extraordinary dividend or other significant corporate
reorganization of the Company or any of its Subsidiaries, or any
other transaction the consummation of which would reasonably be
expected to impede, interfere with, prevent or materially delay the
Offer or the Merger, that would reasonably be expected to cause the
Company to be in a breach of its representations, warranties or
covenants set forth in the Merger Agreement, or that would
reasonably be expected to dilute materially the benefits to Parent
of the transactions contemplated by the Merger Agreement; and (iii)
in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement, which is
considered at any such meeting of stockholders, and in connection
therewith to execute
