Contract
Exhibit 10.24
This PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of January 26, 2004, is
between DigitalGlobe, Inc., a Delaware corporation (the “Company”), Post Advisory Group,
LLC (“Post”), and those certain funds and accounts managed or advised by Post listed on Schedule A
hereto (the “Purchasers”).
WHEREAS, the Company desires to issue and sell to the Purchasers, and the Purchasers desire to
purchase from the Company, 8,000,000 shares (the “Shares”) of the Company’s common stock,
par value $0.001 per share (the “Common Stock”), at a purchase price of $2.50 per share;
and
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this
Agreement, the parties agree as follows:
SECTION 1. Issuance, Sale and Delivery; Closing.
(a) Issuance and Sale. In reliance upon the representations and warranties made herein the
Company agrees, at the Closing (as defined below) to issue and sell to each Purchaser, and each
Purchaser agrees to purchase from the Company, the amount of the Shares listed next to such
Purchaser’s name on Schedule A hereto at a purchase price of $2.50 per share for a total purchase
price of Twenty Million Dollars ($20,000,000) (the “Purchase Price”).
(b) Closing. The closing shall take place at the offices of DigitalGlobe, Inc. on January 23,
2004 upon the execution and delivery of this Agreement, or at such other time not later than ten
business days after such date as may be agreed upon between each of the Purchasers and the Company
(such closing being called the “Closing” and such date and time being called the
“Closing Date”). At the Closing, the Company shall issue and deliver to each Purchaser the
amount of the Shares listed next to such Purchaser’s name on Schedule A hereto registered in the
name of such Purchaser. Payment of the Purchase Price shall be made by each Purchaser in the
amount set forth next to such Purchaser’s name on Schedule A hereto on the Closing Date to the
Company by wire transfer of immediately available funds to a bank account designated by the Company
against delivery to the Purchaser of the Shares listed next to such Purchaser’s name on Schedule A
hereto.
SECTION 2. Representations and Warranties of the Company. The Company represents and
warrants to the Purchasers, as of the date hereof, and agrees with the Purchasers, as follows:
(a) Incorporation and Authority of the Company. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to conduct its business as it is now being conducted,
to own or use the properties and assets that it purports to own or use, to enter into this
Agreement, and to carry out its obligations hereunder to consummate the transactions contemplated
hereby. The Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each state or other jurisdiction in which either the ownership or use of
the properties owned or used by it, or the nature of the activities conducted by it, requires such
qualification, except for such failures which, when taken together
with all other such failures, would not result in any change in, or effect on, the Company,
its subsidiaries or their business that is materially adverse to the business, properties, results
of operations, prospects or financial condition of the Company and its subsidiaries, taken as a
whole (a “Material Adverse Effect”). The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder, and the consummation by the
Company of the transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of the Company. This Agreement has been duly executed and delivered
by the Company and (assuming due authorization, execution and delivery of this Agreement by the
Purchasers) constitutes a legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors’ rights generally and subject to general
equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(b) Capital Stock. The Company has issued and has outstanding (i) 180,928,264 shares of
Common Stock (the “Common Stock”) (250,000,000 shares authorized) and (ii) 10 shares of
Series C Preferred Stock (50,000,000 shares authorized) (the “Preferred Stock”), which
constitute all the issued and outstanding shares of capital stock of the Company. Except as set
forth in Schedule I hereto (the “Disclosure Schedule”), there are no voting trusts,
stockholders’ agreements, proxies or other agreements or understandings in effect with respect to
the voting or transfer of any of the Common Stock or the Preferred Stock. The Shares, when issued
and delivered in accordance with the terms hereof (and in consideration for the Purchaser Price),
will have been duly and validly authorized and will be fully paid and nonassessable and will not
have been issued in violation of any preemptive rights.
(c) No Violation. The execution, delivery and performance of this Agreement by the Company
does not and will not (i) violate the Company’s Certificate of Incorporation or Bylaws, (ii)
violate any law, rule, regulation order, writ, judgment, injunction, decree, determination or award
or threaten any governmental authorization applicable to the Company, or (iii) result in any breach
of, constitute a default under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien or other encumbrance on any
of the assets or properties of the Company pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument relating to such assets
or properties to which the Company is a party or by which any of such assets or properties is bound
or affected, except, in the case of clause (ii) , as would not, in the aggregate, have a Material
Adverse Effect.
(d) Consents and Approvals. The execution, delivery and performance of this Agreement by the
Company does not and will not require any consent, approval, authorization or other order of,
action by, filing with or notification to, any Governmental Authority. “Governmental
Authority” means any United States federal, State or local or any foreign or multinational
government (or any subdivision thereof), governmental, regulatory or administrative authority,
agency or commission or any court, tribunal, or judicial or arbitral body having jurisdiction or
authority with respect to the particular matter at issue in its context.
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(e) Financial Statements. The Company has delivered to the Purchaser true, correct and complete
copies of the audited consolidated balance sheets of the Company and its subsidiaries as of
December 31, 2001 and December 31, 2002 and the related audited consolidated statements of income
and cash flows, and of the unaudited consolidated balance sheet of the Company and its subsidiaries
as of September 30, 2003 and the related unaudited consolidated statements of income and cash flows
(all such financial statements referred to as the “Financial Statements”). The Financial
Statements present fairly and accurately the consolidated financial condition and results of
operations of the Company and its subsidiaries as of such dates or for the periods covered thereby
and have been prepared in accordance with U.S. generally accepted accounting principles
(“GAAP”) applied on a basis consistent with the past practices of the Company with only
such deviations from GAAP as are referred to in the notes thereto.
(f) Absence of Certain Changes or Events. Since September 30, 2003, the Company has conducted
its business in the ordinary course consistent with past practice, and, except as set forth in the
Disclosure Schedule, there have not been any circumstances, developments or events which have had
or would have, in the aggregate, a Material Adverse Effect.
(g) No Solicitation; Exemption from Registration. The Company has not and will not solicit
any offer for, or offer or sell the Shares by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act of 1933, as amended
(the “Securities Act”) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act and Rule 506 thereunder.
(h) Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of the Company or any of its subsidiaries.
SECTION 3. Post’s and Purchaser’s Representations and Warranties. Post and each
Purchaser represent and warrant to the Company as follows:
(a) Purchase for Own Account. Such Purchaser is acquiring the Shares for its own account
solely for the purpose of investment and not with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act.
(b) Investment Experience. Such Purchaser, for itself and/or through Post, has such
knowledge and experience in financial and business matters that it is capable of evaluating the
merits and risks of its investment in the Company as contemplated by this Agreement, and is able to
bear the economic risk of such investment for an indefinite period of time. Such Purchaser,
through Post, has been furnished access to such information and documents as it has requested and
has been afforded an opportunity to ask questions of and receive answers from representatives of
the Company concerning the terms and conditions of this Agreement and the transactions contemplated
thereby.
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(c) Restricted Securities. Such Purchaser understands that the Shares have not been
registered under the Securities Act, and that such Purchaser may have to hold the Shares, and bear
the economic risk of such investment, indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or exempt from registration. Such Purchaser agrees that it
will not offer, sell, transfer or dispose of the Shares except (i) pursuant to an effective
registration statement under the Securities Act and any applicable state securities laws or (ii)
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act and such applicable state securities laws. Such Purchaser understands that,
until such time as the Shares are registered under the Securities Act, the certificates
representing Shares will bear a legend stamped, typed or otherwise legibly placed on the face or
reverse side thereof substantially in the form set forth below:
NOTICE IS HEREBY GIVEN THAT THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY NON-U.S. JURISDICTION. THE SECURITIES
CANNOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (I) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT OR AMENDMENT THERETO UNDER SUCH ACT AND ANY
APPLICABLE LAWS OR (II) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH OTHER APPLICABLE
LAWS. THE SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND CERTAIN OTHER RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS
CERTIFICATE ARE ALSO SUBJECT TO ARTICLE III OF THE STOCKHOLDERS’ AGREEMENT, DATED AS
OF JULY 9, 2003, BY AND AMONG DIGITALGLOBE, INC., (THE “COMPANY”), AND THE
OTHER PARTIES THERETO (COPIES OF WHICH ARE AVAILABLE FOR REVIEW AT THE PRINCIPAL
OFFICE OF THE COMPANY), AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF
SUCH SECURITIES UNTIL ALL TERMS AND CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO
SUCH TRANSFER AS SET FORTH IN SUCH AGREEMENT.
(d) Accredited Investor. Such Purchaser is an “accredited investor” as that term is defined
in Rule 501(a) of Regulation D promulgated under the Securities Act.
(e) No Solicitation. Such Purchaser has not and will not solicit any offer for, or offer or
sell the Shares by any form of general solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act and Rule 506 thereunder.
(f) Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of such Purchaser.
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(g) Authority of Purchaser. Such Purchaser has all necessary organizational power and
authority to enter into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and delivered by such
Purchaser and (assuming due authorization, execution and delivery of this Agreement by the Company)
constitutes a legal, valid and binding obligation of such Purchaser enforceable against the
Purchaser in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors’ rights generally and subject to general
equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(h) Incorporation and Authority of Post. Post is a limited liability company duly
incorporated, validly existing and in good standing under the laws of the State of Delaware. Post
is a registered investment advisor under the Investment Advisors Act of 1940. Post has been
appointed as the investment manager, investment adviser, investment subadviser or the like by each
of the Purchasers and has the authority to enter into this Agreement, to carry out the Purchasers’
obligations hereunder, and to consummate the transactions contemplated hereby, all on behalf of the
Purchasers as their authorized agent.
(i) No Violation. The execution, delivery and performance of this Agreement by such Purchaser
does not and will not (i) violate any law, rule, regulation order, writ, judgment, injunction,
decree, determination or award or threaten any governmental authorization applicable to such
Purchaser, or (ii) to its knowledge, result in any breach of, constitute a default under, or give
to others any rights of termination, amendment, acceleration or cancellation of, or result in the
creation of any lien or other encumbrance on any of the assets or properties of such Purchaser
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument relating to such assets or properties to which such Purchaser is a
party or by which any of such assets or properties is bound or affected, except, in the case of
clause (ii) , as would not materially impair such Purchaser’s ability to perform its obligations
under this Agreement or to consummate the transactions contemplated hereby.
SECTION 4. Transfer Restrictions and Observer Rights.
(a) Transfer Restrictions. Each Purchaser acknowledges and agrees that the Shares shall be
subject in all respects to the restrictions on transfers contained in Article III of the
Stockholders’ Agreement, dated as of July 9, 2003, by and among the Company (the “Stockholders’
Agreement”) applicable to New Common Stock (as defined therein), and Article III of the
Stockholders’ Agreement shall hereby be incorporated herein by reference.
(b) Observer Rights. So long as accounts and funds managed or advised by Post own at least
10% of the number of outstanding shares of the Company, the Company shall allow one observer
designated by Post who will be a U.S. Person as defined in 22 CFR Section 120.15 of the
International Traffic in Arms Regulations (“ITAR”) (“U.S Person”) and who will be reasonably
satisfactory to the Company’s Board of Directors, to attend all meetings of the Company’s Board of
Directors in a nonvoting and non-participatory capacity, and in connection therewith, the Company
shall give such observer such notices, minutes, consents and other materials, financial or
otherwise provided to the Directors; provided, however, that any such
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materials that contain ITAR restricted information or other highly sensitive information (as
indicated on such materials) may only be shared with a U.S Person.
(c) Survival. This Section 4 shall survive the termination of this Agreement and the
consummation of the transactions contemplated hereby.
SECTION 5. Indemnification.
(a) Survival of Representations and Warranties. Subject to the limitations and other
provisions of this Agreement, the representations and warranties of the parties hereto contained in
this Agreement shall survive the Closing and shall remain in full force and effect for a period of
six months after the Closing Date.
(b) Indemnification by Purchasers. Post and the Purchasers agree to indemnify the Company and
its subsidiaries, officers, directors, employees, agents, successors and assigns against and hold
them harmless from all liabilities, losses, damages, claims, costs, and expenses (including without
limitation reasonable attorney’s fees) (collectively, “Losses”) actually incurred by them
arising out of the breach of any representation or warranty of such Purchaser contained herein.
Anything in Section 5 (a) to the contrary notwithstanding, no claim may be asserted nor may any
action be commenced against Post or such Purchaser for breach of any representation or warranty
contained herein, unless written notice of such claim or action is received by Post or such
Purchaser describing in reasonable detail the facts and circumstances with respect to the subject
matter of such claim or action on or prior to the date on which the representation or warranty on
which such claim or action is based ceases to survive as set forth in Section 5(a), regardless of
whether the subject matter of such claim or action shall have occurred before or after such date.
The Company hereby acknowledges and agrees that its sole and exclusive remedy with respect to
any and all claims relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Section 5 and hereby waives, to the fullest extent
permitted under applicable law, any and all rights, claims and causes of action it may have against
Post or any Purchaser arising under or based upon any federal, state, local or foreign statute,
law, ordinance, rule or regulation (including without limitation any such rights, claims or causes
of action arising under or based upon common law or otherwise); provided, however,
that the preceding clause shall not apply to claims for fraud. Except as expressly set forth in
this Agreement, neither Post nor any Purchaser is making any representation, warranty, covenant or
agreement with respect to the matters contained herein.
(c) Indemnification by the Company. The Company agrees to indemnify Post and the Purchasers
and their respective subsidiaries, officers, directors, employees, members, agents, successors and
assigns against and hold them harmless from all Losses actually incurred by them arising out of the
breach of any representation or warranty of the Company contained herein. Anything in Section 5(a)
to the contrary notwithstanding, no claim may be asserted nor may any action be commenced against
the Company for breach of any representation or warranty contained herein, unless written notice of
such claim or action is received by the Company describing in reasonable detail the facts and
circumstances with respect to the subject matter of such claim or action on or prior to the date on
which the representation or warranty on which
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such claim or action is based ceases to survive as set forth in Section 5, regardless of
whether the subject matter of such claim or action shall have occurred before or after such date.
Each Purchaser hereby acknowledges and agrees that its sole and exclusive remedy with respect to
any and all claims relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Section 5 and hereby waives, to the fullest extent
permitted under applicable law, any and all rights, claims and causes of action it may have against
the Company arising under or based upon any federal, state, local or foreign statute, law,
ordinance, rule or regulation (including without limitation any such rights, claims or causes of
action arising under or based upon common law or otherwise); provided, however,
that the preceding clause shall not apply to claims for fraud. Except as expressly set forth in
this Agreement, the Company is not making any representation, warranty, covenant or agreement with
respect to the matters contained herein.
SECTION 6. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address for a party as shall
be specified in a notice given in accordance with this Section 6):
if to the Company :
DigitalGlobe, Inc.
0000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
0000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
With a copy to:
Xxxxx and XxXxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxx Xx.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxx Xx.
if to any Purchaser:
c/o Post Advisory Group, LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
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SECTION 7. Governing Law. This Agreement shall be governed by and construed under the laws of
the State of Delaware. All actions and proceedings arising out of or relating to this Agreement
shall be heard and determined in any Delaware state or federal court sitting in Delaware, and the
parties hereto hereby consent to the jurisdiction of such courts in any such action or proceeding.
Nothing in this Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement in the courts of any jurisdiction.
SECTION 8. Assignment. Neither party may assign its rights hereunder without the
prior written consent of the other party. This Agreement shall be binding on the Company and each
Purchaser and their respective permitted successors and assigns.
SECTION 9. No Third Party Beneficiaries. This Agreement shall be binding upon and
inure solely to the benefit of the parties hereto, their successors and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any other person any legal
or equitable right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 10. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 11. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
SECTION 12. Amendments. This Agreement may not be amended or modified, and no
provisions hereof may be waived, without the prior written consent of the Company and each
Purchaser.
SECTION 13. Severability. If any provision of this Agreement shall be declared void
or unenforceable by any judicial or administrative authority, the validity of any other provision
and of the entire Agreement shall not be affected thereby.
SECTION 14. Expenses. The Company will pay or cause to be paid all expenses incident
to the performance of the Company’s obligations under this Agreement, including but not limited to
(i) the preparation, issuance and delivery of the certificates for the Shares to the Purchaser and
(ii) the fees and disbursements of the Company’s counsel, accountants and other advisors. Each
Purchaser will pay or cause to be paid all expenses incident to the performance of the Purchasers’
obligations under this Agreement, including but not limited to the fees and disbursements of the
Purchasers’ counsel, accountants and other advisors.
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IN WITNESS WHEREOF, the Company and the Purchasers have executed this Agreement as of the day
and year first above written.
| DIGITALGLOBE, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | President | |||
| POST ADVISORY GROUP, LLC, on its own behalf
and as authorized agent of the accounts and
funds listed on Schedule A hereto |
||||
| By: | /s/ Xxxxxxxx X. Post | |||
| Name: | Xxxxxxxx X. Post | |||
| Title: | CEO | |||
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SCHEDULE
A TO PURCHASE AND SALE AGREEMENT
| PURCHASER | PURCHASE PRICE | SHARES | ||||||||||
Post High Yield Fund, L.P.
|
$ | 500,000 | 200,000 | |||||||||
Post Total Return Fund, L.P.
|
$ | 800,000 | 320,000 | |||||||||
DB Distressed Opportunities Fund, Ltd.
|
$ | 1,800,000 | 720,000 | |||||||||
DB Distressed Opportunities Fund L.P.
|
$ | 100,000 | 40,000 | |||||||||
Sphinx Distressed Fund SPC
|
$ | 400,000 | 160,000 | |||||||||
South Dakota Investment Council
|
$ | 1,000,000 | 400,000 | |||||||||
Post Special Situation Fund II, L.P.
|
$ | 13,075,000 | 5,230,000 | |||||||||
MW Post Opportunity Offshore Fund, Ltd.
|
$ | 525,000 | 210,000 | |||||||||
Post Opportunity Fund, L.P.
|
$ | 500,000 | 200,000 | |||||||||
MW Post Long/Short Opportunity Fund, L.P.
|
$ | 1,300,000 | 520,000 | |||||||||
Total
|
$ | 20,000,000 | 8,000,000 | |||||||||
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