DIGITALGLOBE,INC. (NYSE:DGI) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01. Entry into a Material Definitive Agreement.
On February24, 2017, DigitalGlobe,Inc., a Delaware corporation
(the Company or DigitalGlobe), entered into an
Agreement and Plan of Merger (the Merger Agreement) with
MacDonald, Dettwiler and Associates Ltd., a corporation organized
under the laws of British Columbia (Parent), SSL MDA
Holdings,Inc., a Delaware corporation and wholly owned subsidiary
of Parent (SSL MDA Holdings) and Merlin Merger Sub,Inc., a
Delaware corporation and wholly owned subsidiary of SSL MDA
Holdings (Merger Sub), to which, among other things,
Merger Sub will be merged with and into the Company (the
Merger), with the Company surviving the Merger as an
indirect wholly owned subsidiary of Parent. At the time the
Merger becomes effective (the Effective Time), each
outstanding share of common stock, par value $0.001 per share, of
the Company (Company Common Stock), (other than shares of
Company Common Stock held directly or indirectly by Parent, the
Company or any of their respective subsidiaries or shares of
Company Common Stock owned by stockholders who properly exercise
their appraisal rights under the General Corporation Law of the
State of Delaware (the DGCL) outstanding immediately prior
to the Effective Time will automatically be cancelled and
converted into the right to receive an amount equal to (a)U.S.
$17.50 in cash (the Cash Consideration) and (b)0.3132 of a
validly issued, fully paid and non-assessable common share of
Parent (Parent Common Shares) (the Stock
Consideration and, together with the Cash Consideration, the
Merger Consideration), without interest and subject to any
required withholding for taxes. At the Effective Time, each
outstanding share of SeriesA Convertible Preferred Stock, par
value $0.001 per share, of the Company (Company Convertible
Preferred Stock), (other than shares of Company Convertible
Preferred Stock held directly or indirectly by Parent, the
Company or any of their respective subsidiaries or shares of
Company Convertible Preferred Stock owned by stockholders who
properly exercise their appraisal rights under the DGCL) will
automatically be converted into the right to receive the Merger
Consideration that the holder thereof would have been entitled to
receive had such holder, immediately prior to the Effective Time,
converted such share of Company Convertible Preferred Stock into
Company Common Stock to the Certificate of Designations,
Preferences and Rights of Company Convertible Preferred Stock of
the Company.
to the Merger Agreement, as of the Effective Time, the
outstanding equity awards of the Company will be treated as
follows:
(a)Each option to purchase shares of Company Common Stock (each a
Company Option) that is outstanding and unexercised
immediately prior to the Effective Time, whether vested or
unvested, will be cancelled in exchange for the right to receive
a combination of cash and a number of Parent Common Shares that
together, have a value equal to the positive difference, if any,
between the number of shares of Company Common Stock subject to
such Company Option less the total exercise price under the
Company Option for those shares of Company Common Stock. For
purposes of these payments with respect to the Company Options,
the Parent Common Shares and the Company Common Stock will be
valued using an average of the closing prices for such a share
for the period of five trading days immediately preceding the
date on which the Effective Time occurs;
(b)Each restricted stock unit denominated in shares of Company
Common Stock (each a Company RSU) subject to unsatisfied
performance conditions for a performance period that includes the
date on which the closing of the Merger occurs (each a Company
Performance-Based RSU) that is outstanding immediately before
the Effective Time, whether vested or unvested, and each Company
RSU that is not a Company Performance-Based RSU and that is,
immediately prior to the Effective Time and after giving effect
to any accelerated vesting in connection with the transactions
contemplated by the Merger Agreement, vested (each a Company
Vested Time-Based RSU), will be cancelled in exchange for the
right to receive at the Effective Time (subject to applicable tax
withholding or other amounts required by applicable law to be
withheld) the Merger Consideration for each share of Company
Common Stock subject to such Company RSU. For this purpose, the
number of shares of Company Common Stock subject to Company
Performance-Based RSUs that, at the Effective Time, remain
subject to unsatisfied performance conditions for a performance
period that includes the date on which the Effective Time occurs,
will be determined as though such performance conditions were
satisfied at the applicable target level (except as to any such
performance condition based on a relative total stockholder
return measure) and, as to any applicable unsatisfied performance
condition based on a relative total stockholder return measure
for a performance period that includes the date on which the
closing of the Merger occurs, as though the applicable
performance period ended with the trading day immediately
preceding the date on which the Effective Time occurs and using
an average of the closing prices for a share of Company Common
Stock for the period of five trading days immediately preceding
the date on which the Effective Time occurs as the value of the
Company Common Stock at the end of such performance period for
purposes of such performance determination; and
(c)Each Company RSU that is not a Company Performance-Based RSU
and that is not, immediately prior to the Effective Time and
after giving effect to any accelerated vesting in connection with
the transactions contemplated by the Merger Agreement, vested
(each a Company Unvested Time-Based RSU) that is
outstanding immediately before the Effective Time will
automatically and without any required action on the part of any
holder or beneficiary thereof, be assumed by Parent (each, a
Converted RSU). Each Converted RSU will continue to have
and be subject to substantially the same terms and conditions as
were applicable to such Company RSU immediately before the
Effective Time (including vesting conditions and dividend
equivalent rights), except that: (i)the Converted RSU will
represent the right to receive (subject to applicable tax
withholding or other amounts required by applicable law to be
withheld) (A)an amount in cash equal to the
product of (1)the Cash Consideration multiplied by (2)the total
number of shares of Company Common Stock subject to such
Company RSU (the Converted RSU Cash Consideration), and
(B)a number of Parent Common Shares equal to the product of
(1)the Stock Consideration multiplied by (2)the total number of
shares of Company Common Stock subject to such Company RSU, and
(ii)each Converted RSU will be deemed fully vested upon the
Effective Time as to the Converted RSU Cash Consideration.
Closing Conditions
The closing of the Merger is subject to the adoption of the
Merger Agreement by the holders of a majority in voting power
of the outstanding shares of Company Common Stock and Company
Convertible Preferred Stock, voting together as a single class
(the Company Stockholder Approval), and the approval of
the issuance of Parent Common Shares in connection with the
Merger by a majority of the votes cast on such matter at a
meeting of the shareholders of Parent (the Parent
Shareholder Approval). The closing of the Merger is also
subject to various customary conditions, including the
expiration or termination of the applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the Competition Act (Canada), as applicable;
receipt of clearance from the Committee on Foreign Investment
in the United States (CFIUS); receipt of other specified
regulatory approvals; the absence of any temporary restraining
order, preliminary or permanent injunction or other judgment
issued by any court of competent jurisdiction enjoining or
otherwise prohibiting the consummation of the Merger; the U.S.
Securities and Exchange Commission (the SEC) having
declared effective a registration statement on FormF-4 under
the Securities Act of 1933, as amended, with respect to, and
the authorization for listing on the Toronto Stock Exchange and
New York Stock Exchange (or Nasdaq) of, the shares of Parent
Common Shares issuable in connection with the Merger; receipt
by each party of a customary tax opinion; the accuracy of the
representations and warranties contained in the Merger
Agreement (generally subject to a material adverse effect
qualification); compliance with the covenants and agreements in
the Merger Agreement in all material respects; and no material
adverse effect on either the Company or Parent. The closing of
the Merger is not subject to a financing condition.
Representations and Warranties; Covenants
Each of the Company, Parent, SSL MDA Holdings and Merger Sub
has made customary representations and warranties and covenants
in the Merger Agreement, including covenants to use their
respective reasonable best efforts to secure required
regulatory approvals, subject to certain exceptions. In
addition, the Company has agreed to other customary covenants,
including, among others, covenants (a)to conduct its business
in the ordinary course during the period between the execution
of the Merger Agreement and the closing of the Merger, (b)not
to engage in specified types of transactions during this period
unless agreed to in writing by Parent, (c)to convene and hold a
meeting of its stockholders for the purpose of obtaining the
Company Stockholder Approval, and (d)subject to certain
exceptions, not to change, withdraw, withhold or qualify in a
manner adverse to Parent the recommendation of the Board of
Directors of the Company (the Board) that the Companys
stockholders adopt the Merger Agreement. Parent, SSL MDA
Holdings and Merger Sub have agreed to other customary
covenants, including, among others, covenants to use their
reasonable best efforts to consummate the committed debt
financing.
Termination and Termination Fees
The Merger Agreement contains certain termination rights,
including the right of the Company to terminate the Merger
Agreement under specified circumstances to accept an
unsolicited superior proposal from a third party. The Merger
Agreement provides that, upon termination of the Merger
Agreement by the Company or Parent under specified
circumstances (including termination by the Company to accept a
superior proposal), a termination fee of U.S. $85 million (the
Termination Fee) will be payable by the Company or
Parent to the other party.
The Merger Agreement also provides that Parent will be required
to pay the Company a reverse termination fee of U.S. $150
million (the Regulatory Termination Fee) under specified
circumstances, including where the Merger Agreement is
terminated (a)by Parent or the Company because (1)CFIUS
notifies Parent and the Company in writing that CFIUS intends
to send a report to the President of the United States
recommending that the President act to suspend or to prohibit
the Merger, (2)a governmental entity has issued a permanent
injunction or other judgment enjoining or otherwise prohibiting
the consummation of the Merger or making the Merger illegal and
such injunction or other judgment has become final and
non-appealable; or (3)the Merger has not been consummated by
the End Date (as defined below) and the required regulatory
approvals have not been obtained (but the Company has satisfied
certain of its closing conditions and obtained the Company
Stockholder Approval); or (b)by Parent due to failure to obtain
the Parent Shareholder Approval and at the time of termination
the regulatory approvals have not been obtained (but the
Company has satisfied its closing conditions and obtained the
Company Stockholder Approval); provided, however, that if the
Parent Shareholder Approval is not obtained at the Parent
Shareholder Meeting and prior to such Parent Shareholder
Meeting, the Board of Directors of Parent has withdrawn,
withheld or qualified in a manner adverse to the Company the
recommendation of the Board of Directors of the Parent as a
result of a
superior proposal (which proposal has not been withdrawn prior
to such Parent Shareholder Meeting), then Parent will be
required to pay the Company the Termination Fee instead of the
Reverse Termination Fee.
The Merger Agreement also provides that each party to the
Merger Agreement may compel the other party or parties thereto
to specifically perform its or their obligations under the
Merger Agreement. Subject to certain exceptions and
limitations, either party may terminate the Merger Agreement if
the Merger is not consummated by December7, 2017 (such date,
the End Date).
The foregoing description of the Merger Agreement and the
transactions contemplated thereby does not purport to be
complete and is subject to, and qualified in its entirety by,
the full text of the Merger Agreement, which is filed as
Exhibit2.1 to this Current Report on Form8-K and incorporated
herein by reference.
The Merger Agreement has been included with this Current Report
on Form8-K to provide investors and security holders with
information regarding its terms. It is not intended to provide
any other factual information about the Company. The
representations, warranties, covenants and agreements contained
in the Merger Agreement, which were made only for purposes of
that agreement and as of the specific dates therein, were
solely for the benefit of the parties to the Merger Agreement,
may be subject to limitations agreed upon by the contracting
parties (including being qualified by confidential disclosures
made for the purposes of allocating contractual risk among the
parties to the Merger Agreement instead of establishing these
matters as facts) and may be subject to standards of
materiality applicable to the contracting parties that differ
from those applicable to investors. Moreover, information
concerning the subject matter of the representations and
warranties may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected
in the Companys public disclosures. The Merger Agreement should
not be read alone, but should instead be read in conjunction
with the other information regarding the Company that is or
will be contained in, or incorporated by reference into, the
Forms 10-K, Forms 10-Q and Forms 8-K and other documents that
the Company files or has filed with the SEC.
Item 5.03. Amendments to Articles of Incorporation or
Bylaws; Change to Fiscal Year.
On February23, 2017, the Board approved and adopted an
amendment to the Companys Amended and Restated By-Laws (the
Bylaw Amendment). The Bylaw Amendment became effective
on February23, 2017.
The Bylaw Amendment provides that, unless the Company consents
in writing to the selection of an alternative forum, the sole
and exclusive forum for (i)any derivative action or proceeding
brought on behalf of the Company, (ii)any action asserting a
claim of breach of a fiduciary duty owed by any current or
former director, officer, other employee or stockholder of the
Company to the Company or the Companys stockholders, (iii)any
action asserting a claim arising to any provision of the
General Corporation Law of the State of Delaware, the Companys
Certificate of Incorporation or Bylaws (as may be amended from
time to time) or as to which the General Corporation Law of the
State of Delaware confers jurisdiction on the Court of Chancery
of the State of Delaware, or (iv)any action asserting a claim
governed by the internal affairs doctrine shall be the Court of
Chancery of the State of Delaware (or, if the Court of Chancery
of the State of Delaware does not have jurisdiction, any state
court located within the State of Delaware or the federal
district court for the District of Delaware). Any person or
entity purchasing or otherwise acquiring or holding any
interest in shares of capital stock of the Company is deemed to
have notice of and consented to the provisions of the Bylaw
Amendment.
The foregoing description of the Bylaw Amendment does not
purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Bylaw Amendment, which is
filed as Exhibit3.1 to this Current Report on Form8-K and is
incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.
On February24, 2017, DigitalGlobe and Parent issued a joint
press release announcing the entry into the Merger Agreement.
The full text of the press release is attached hereto as
Exhibit99.1 and is incorporated herein by reference.
The information under this Item 7.01 of this Current Report on
Form8-K, including Exhibit99.1, is being furnished under Item
7.01 and shall not be deemed to be filed for purposes of
Section18 of the Securities Exchange Act of 1934, as amended
(the Exchange Act), or otherwise subject to liability of
that section, nor shall such information be deemed incorporated
by reference in any filing under the Securities Act of 1933, as
amended, or the Exchange Act, regardless of any general
incorporation language in such filing, except as shall be
expressly set forth by specific reference in such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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ExhibitNo. |
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Exhibit |
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2.1 |
Agreement and Plan of Merger, dated as of February24, |
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3.1 |
Amendment, dated February23, 2017, to the Amended and |
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99.1 |
Joint press release issued by DigitalGlobe,Inc. and |
* All schedules and exhibits to the Agreement and Plan of
Merger have been omitted to Item 601(b)(2)of Regulation S-K.
The Company will furnish copies of any such schedules and
exhibits to the SEC upon request.
Additional Information About the Merger and Where to
Find It
This communication does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a
solicitation of any vote or approval. This communication may be
deemed to be solicitation material in respect of the proposed
merger of the Company with a wholly owned subsidiary of Parent.
In connection with the proposed merger, Parent intends to file
a registration statement on FormF-4 with the SEC, which will
include a preliminary proxy statement of the Company that also
constitutes a preliminary prospectus of Parent. After the
registration statement is declared effective, Parent and the
Company will mail the definitive proxy statement/prospectus to
the Companys stockholders. The definitive proxy
statement/prospectus will contain important information about
the proposed merger and related matters. STOCKHOLDERS OF THE
COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE
SEC,INCLUDING THE DEFINITIVE PROXY STATEMENT/PROSPECTUS
(INCLUDING ALL AMENDMENTS AND SUPPLEMENTS), CAREFULLY AND IN
THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE MERGER.
Stockholders will be able to obtain copies of the proxy
statement/prospectus and other relevant materials (when they
become available) and any other documents filed with the SEC by
the Company or Parent for no charge at the SECs website at
www.sec.gov. Copies of the documents filed with the SEC by
Parent also can be obtained free of charge on Parents corporate
website at www.mdacorporation.com or by contacting Parents
Investor Relations Department by telephone at (604) 331-2044 or
by mail to MacDonald, Dettwiler Associates Ltd., Attention:
Investor Relations Department, 13800 Commerce Parkway,
Richmond, BC V6V 2J3. Copies of the documents filed with the
SEC by the Company also can be obtained free of charge on the
Companys corporate website at www.digitalglobe.com or by
contacting the Companys Investor Relations Department by
telephone at (303) 684-4000 or by mail to DigitalGlobe,
Attention: Investor Relations Department, 1300 W. 120th Ave.,
Westminster, CO 80234.
Participants in the Solicitation
This communication is not a solicitation of proxies in
connection with the proposed merger. However, the Company,
Parent, and their respective directors and executive officers
and certain other employees may be deemed to be participants in
the solicitation of proxies from the Companys stockholders in
respect of the proposed Merger. Information concerning the
ownership of Company securities by the Companys directors and
executive officers is included in their SEC filings on Forms 3,
4, and 5, and additional information about the Companys
directors and executive officers is also available in the
Companys proxy statement for its 2016 annual meeting of
stockholders filed with the SEC on April14, 2016. Information
about the directors and executive officers of Parent is set
forth in the Management Proxy Circular for Parents 2016 annual
meeting of shareholders, which was filed with SEDAR on April11,
2016 and which is available at sedar.com. Other information
regarding persons who may be deemed participants in the proxy
solicitation, including their respective interests by security
holdings or otherwise, will be set forth in the proxy
statement/prospectus relating to the proposed Merger when it
becomes available and is filed with the SEC. These documents
can be obtained free of charge from the sources indicated
above.
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.
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DIGITALGLOBE,INC. |
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Dated: February24, 2017 |
By: |
/s/ Daniel L. Jablonsky |
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Name: |
Daniel L. Jablonsky |
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Title: |
Senior Vice President, General Counsel and Corporate |
ExhibitIndex
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ExhibitNo. |
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Exhibit |
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2.1 |
Agreement and Plan of Merger, dated as of February24, |
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3.1 |
Amendment, dated February23, 2017, to the Amended and |
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99.1 |
Joint press release issued by DigitalGlobe,Inc. and |
* All schedules and exhibits to the Agreement and Plan of
Merger have been omitted
About DIGITALGLOBE, INC. (NYSE:DGI)
DigitalGlobe, Inc. is a provider of high-resolution Earth-imagery products and services. The Company’s imagery solutions support a range of users in defense and intelligence, civil agencies, mapping and analysis, environmental monitoring, oil and gas exploration, infrastructure management, Internet portals and navigation technology. It operates through collecting, processing and distributing imagery products and services to customers around the world segment. It sells its products and services through a combination of direct and indirect channels, consisting of a global network of resellers, strategic partners, direct enterprise sales and Web services to its United States Government and Diversified Commercial customer groups. It offers Earth-imagery products, including imagery from its constellation of high-resolution satellites and provides geospatial products and services in which it combines its Earth imagery, analytic expertise and technology to deliver integrated solutions. DIGITALGLOBE, INC. (NYSE:DGI) Recent Trading Information
DIGITALGLOBE, INC. (NYSE:DGI) closed its last trading session up +0.05 at 34.05 with 754,607 shares trading hands.
