Exhibit 10.28
GetronicsWang Co. LLC
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
February 28, 2003
DigitalNet Holdings, Inc.
DigitalNet,Inc.
DigitalNet Government Solutions LLC
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX. 00000
Gentlemen:
The purpose of this letter is to set forth certain understandings we
have reached regarding the Purchase Agreement, dated as of September 27, 2002
(the "Agreement"), by and among the undersigned and you, and capitalized
terms used and not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.
1. ADJUSTMENT OF THE PURCHASE PRICE. Simultaneously with the
execution of this letter, in full satisfaction of the respective rights and
obligations of Parent, the Company, Holdings and Purchaser under
Sections 2.5(a), (b), (c) and (d) of the Agreement, and in lieu of the process
regarding the Closing Statements (including the Closing Balance Sheet)
contemplated by Section 2.5(b) of the Agreement, the Company is paying Parent
$8,262,000 (the "ADJUSTMENT PAYMENT"). The amount of the Adjustment Payment
is the aggregate amount to be paid to Parent pursuant to Section 2.5(c) of
the Purchase Agreement, and in no event shall Parent, the Company, Holdings
or Purchaser at any time be required to make any further payments, or
otherwise satisfy any other obligations, pursuant to Sections 2.5(a), (b),
(c) or (d) of the Agreement. The Closing Statements (including the Closing
Balance Sheet) attached as Exhibit A hereto shall be deemed to be the Final
Closing Statements (and Final Closing Balance Sheet) for purposes of
Sections 5.10, 8.2 and 8.3 of the Agreement.
2. CSOC CUSTOMER CONTRACT.
(a) CLOSING CSOC SPREADSHEET. Attached as Exhibit B hereto is
the Closing CSOC Spreadsheet reflecting Undisputed Closing CSOC Accounts
Receivable of $7,950,000, Undisputed Post-Closing CSOC Accounts Receivable of
$8,503,000, Disputed Closing CSOC Accounts Receivable of $5,847,000 and
Disputed Post-Closing CSOC Accounts Receivable of $2,062,000.
(b) POST-CLOSING CSOC SPREADSHEETS. Attached as Exhibit C
hereto is the Post-Closing CSOC Spreadsheet for the month ending January 31,
2003 (the "January CSOC Spreadsheet") which (i) reflects (w) the actual
receipt by the Company
and the payment over to Parent of an amount equal to the Undisputed Closing
CSOC Accounts Receivable pursuant to Section 5.14(e)(ii)(aa) of the Agreement
and Section 2(c) of this letter, (x) the actual and projected receipt and
retention by the Company of an amount equal to the Undisputed Post-Closing CSOC
Accounts Receivable pursuant to Section 5.14(e)(ii)(bb) of the Agreement, (y)
the projected receipt by the Company and the projected payment over to Parent
of an amount equal to the Disputed Closing CSOC Accounts Receivable pursuant
to Section 5.14(e)(ii)(cc) of the Agreement and (z) the projected receipt and
retention by the Company of an amount equal to the Disputed Post-Closing CSOC
Accounts Receivable pursuant to Section 5.14(e)(ii)(dd) of the Agreement, in
each case, based on the settlement of the CSOC Action pursuant to the
Settlement Agreement between the Company and the CSOC Customer, dated
December 31, 2002, the two amendments to the CSOC Customer Contract, dated
January 31, 2003 made in connection with such settlement and the proposed
first amendment subsequent to such settlement and amendments described to
Parent in connection with this letter which proposed first amendment may be
presented to Parent for Parent's consent pursuant to Section 5.14(f) of the
Agreement, and (ii) contains certain supplementary information related to
this letter. The Post-Closing CSOC Spreadsheets delivered by the Company to
Parent pursuant to Section 5.14(d) of the Agreement after the date hereof
shall include the supplementary information included in the January CSOC
Spreadsheet.
(c) PAYMENT OF UNDISPUTED CLOSING CSOC ACCOUNTS RECEIVABLE.
Simultaneously with the execution and delivery of this letter, the Company
is paying over to Parent an amount equal to the Undisputed Closing CSOC
Accounts Receivable of $7,950,000 pursuant to Section 5.14(e)(ii)(aa) of the
Agreement. Parent shall not at any time xxx or otherwise assert any claim
(whether pursuant to the Agreement or otherwise) against any of Purchaser,
Holdings or the Company relating to, in connection with or as a result of the
late payment of such amount to Parent in accordance with the Agreement.
(d) PAYMENT OF DISPUTED CLOSING CSOC ACCOUNTS RECEIVABLE. The
Company shall, and Holdings and Purchaser shall cause the Company to, pay
over to Parent the Disputed Closing CSOC Accounts Receivable of $5,847,000
pursuant to Sections 5.14(e)(ii)(cc) of the Agreement, except that if
Holdings consummates a Public Offering (as defined in the Amended and
Restated Certificate of Incorporation) before the Company has so paid such
amount over to Parent, then not later that the fifth business day after the
consummation thereof, the Company shall, and Holdings and Purchaser shall
cause the Company to, pay over to Parent an amount equal to the difference
between $5,847,000 and the amount paid over to Parent pursuant to
Section 5.14(e)(ii)(cc) of the Agreement prior to such consummation.
Following the making of such payment, in no event shall Purchaser, Holdings
or the Company at any time be required to make any further payments, or
otherwise satisfy any other obligations, pursuant to Section 5.14(e)(ii)(cc)
of the Agreement.
(e) RELEASES FROM ESCROW. Simultaneously with the execution
and delivery of this letter, Parent and Purchaser are giving the Agent (as
defined in the Escrow Agreement) Mutual Notices of Instruction (as defined in
the Escrow Agreement) in the form of Exhibits D and E hereto instructing the
Agent to release to Parent
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$8,873,000 of the Undisputed Post-Closing CSOC Accounts Receivable Escrow Fund
and $725,000 of the Disputed Post-Closing CSOC Accounts Receivable Escrow Fund,
leaving $0 in the Undisputed Post-Closing CSOC Accounts Receivable Escrow Fund
and $1,028,000 in the Disputed Post-Closing CSOC Accounts Receivable Escrow
Fund (such amounts remaining in the Disputed Post-Closing CSOC Accounts
Receivable Escrow Fund being hereinafter collectively referred to as the
"Remaining Escrow Fund"). If the CSOC Customer continues to pay the Company
substantially as projected in the January CSOC Spreadsheet, then, in lieu of
instructing the Agent pursuant to Section 1.3(b)(iv) of the Escrow Agreement
to make the releases of the Remaining Escrow Fund that would but for this
sentence be required pursuant to Section 1.3(a)(iv) of the Escrow Agreement
on January 7, 2004, Parent and Purchaser shall give the Agent a Mutual
Notice of Instruction in the form of Exhibit F hereto instructing the Agent
to release to Parent all amounts in the Remaining Escrow Fund; provided,
however, from and after any such date such a Mutual Notice of Instruction is
not so given, Parent and Purchaser shall resume instructing the Agent
pursuant to Section 1.3(b)(iv) of the Escrow Agreement to the make the
releases of the Remaining Escrow Fund required pursuant to Section 1.3(a)(iv)
of the Escrow Agreement.
3. RIGHT TO PURCHASE SERIES B PREFERRED STOCK. If Holdings
consummates a Public Offering on or prior to August 26, 2003, Holdings may
purchase all or any portion of the shares of Series B Preferred Stock then
owned by Parent or its Affiliates by paying each holder thereof an amount
equal to the Liquidation Value (as defined in the Amended and Restated
Certificate of Incorporation) of each share of Series B Preferred Stock so
purchased plus all accrued and unpaid dividends on each such share (and any
such shares so purchased will not be automatically converted in connection
with such Public Offering in accordance with the Amended and Restated
Certificate of Incorporation and any such shares not so purchased will be
automatically converted in connection with such Public Offering in accordance
with the Amended and Restated Certificate of Incorporation). If any Affiliate
of Parent owns any shares of Series B Preferred Stock, Parent shall cause such
Affiliate(s) to sell all or any portion of such shares to Holdings in
accordance with this Section 3. Payment for such shares of Series B Preferred
Stock shall be made immediately prior to consummation of the Public Offering
by delivery by Holdings to Parent or any such Affiliate of a promissory note
or notes in the form of Exhibit G hereto and in an aggregate principal amount
equal to the aggregate Liquidation Value of such shares of Series B Preferred
Stock plus all accrued and unpaid dividends on such shares, which promissory
note or notes shall be due and payable in immediately available funds
immediately upon consummation of the Public Offering. In connection with the
consummation of its Public Offering, Holdings intends to amend its Amended
and Restated Certificate of Incorporation, which amendment is presently
intended to be substantially in the form attached hereto as Annex 1, and
Parent agrees to vote, and cause its affiliates to vote, all shares of
Series B Preferred Stock owned by Parent in favor of such amendment or
otherwise provide its consent to such amendment.
4. CERTAIN AGREEMENTS. Simultaneously with the execution of this
letter, (a) in full satisfaction of the respective rights and obligations of
Parent, the Company,
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Holdings and Purchaser under Section 5.7(e)(iii) of the Agreement, Parent is
paying the Company $87,500 and (b) in full satisfaction of the respective
rights and obligations of Parent, the Company, Holdings and Purchaser under
Section 5.7(e)(v) of the Agreement, Parent is paying the Company $250,000.
5. NETTING OF PAYMENT OBLIGATIONS. The Company is making payments to
Parent pursuant to Sections 1 and 2(c) hereof in an aggregate amount equal to
$16,212,000 ($8,262,000 PLUS $7,950,000), and Parent is making payments to
the Company pursuant to Sections 4(a) and 4(b) hereof in an aggregate amount
equal to $337,500 ($250,000, PLUS $87,500). For the convenience of the parties
and in full satisfaction of all of the payment obligations of the parties under
such Sections, simultaneously with the execution and delivery of this letter
the Company is paying Parent $15,874,500 ($16,212,000 LESS $337,500) by wire
transfer of immediately available funds.
6. FULL FORCE AND EFFECT. The Agreement and Escrow Agreement, as in
effect on the date hereof, except for the relief from, satisfaction of and
alternative ways to satisfy certain rights and obligations thereunder set
forth in this letter, shall remain in full force and effect. The right given
to Holdings to purchase shares of Series B Preferred Stock in Section 3 shall
not effect the terms of, or the rights and obligations with respect to, the
Series B Preferred Stock in the Amended and Restated Certificate of
Incorporation, the Stockholders Agreement or otherwise.
7. MISCELLANEOUS. For the convenience of the parties hereto, this
letter may be executed in any number of counterparts (including by facsimile
signature), each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute one agreement. This
letter shall be governed by, and construed in accordance with, the Laws of
the State of Delaware, without regard to the conflict of law provisions
thereof. The parties hereto agree and acknowledge that money damages would not
be an adequate remedy for any breach of this letter and that the parties may
apply to any court of law or equity of competent jurisdiction for specific
performance and injunctive relief (without posing a bond or other security) in
order to enforce or prevent any breach of this letter.
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If this letter reflects our understandings with respect to the
foregoing, please sign this letter which will then constitute our agreement
with respect thereto.
Very truly yours,
GETRONICSWANG CO. LLC
By /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
Agreed and accepted
as of February 28, 2003
DIGITALNET HOLDINGS, INC.
By: /s/ XXX X. XXXXX
-------------------------------
Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
DIGITALNET, INC.
By: /s/ XXX X. XXXXX
-------------------------------
Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
DIGITALNET GOVERNMENT SOLUTIONS, LLC
By: Its Sole Member
DIGITALNET, INC.
By: /s/ XXX X. XXXXX
-------------------------------
Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
