As filed with the Securities and Exchange Commission on
September 14, 2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
DIGITALGLOBE, INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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31-1420852
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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1601 Dry Creek Drive, Suite 260
Longmont, Colorado 80503
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
J. Alison Alfers
General Counsel
DigitalGlobe, Inc.
1601 Dry Creek Drive, Suite 260
Longmont, Colorado 80503
(303) 684-4000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With a copy to:
Richard B. Aftanas, Esq.
Stacy J. Kanter, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Telephone:
(212) 735-3000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement as determined by the
Registrant
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
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If this Form is a post-effective amendment to a registration to
a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b)
under the Securities Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated
filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered(1)(2)
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Price per Unit(1)(2)
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Offering Price(1)(2)
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Fee(3)
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Common Stock, par value $0.001 per share
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(1)
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Not applicable pursuant to
Form S-3
General Instruction II.E.
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(2)
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We are registering an indeterminate
number of shares of common stock, which may be offered from time
to time in unspecified numbers and at indeterminate prices, and
as may be issued upon conversion, redemption, repurchase or
exchange thereof.
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(3)
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In accordance with
Rules 456(b) and 457(r) under the Securities Act, the
registrant is deferring payment of the entire registration fee.
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PROSPECTUS
COMMON STOCK
We, or any selling stockholder, may offer and sell shares of our
common stock from time to time in amounts, at prices and on
terms that will be determined at the time of any such offering.
This prospectus describes some of the general terms that may
apply to our common stock. Each time any common stock is offered
pursuant to this prospectus, we or any selling stockholder will
provide a prospectus supplement and attach it to this
prospectus. The prospectus supplement will contain more specific
information about the offering, including the number of shares
of our common stock to be sold by us or any selling stockholder.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this
prospectus and the accompanying prospectus supplement carefully
before you make your investment decision.
This prospectus may not be used to offer and sell shares of our
common stock unless accompanied by a prospectus supplement or a
free writing prospectus.
The shares of our common stock may be sold at fixed prices,
prevailing market prices at the times of sale, prices related to
the prevailing market prices, varying prices determined at the
times of sale or negotiated prices. The shares of our common
stock offered by this prospectus and the accompanying prospectus
supplement may be offered by us or any selling stockholder
directly to investors or to or through underwriters, dealers or
other agents. The prospectus supplement for each offering will
describe in detail the plan of distribution for that offering
and will set forth the names of any underwriters, dealers or
agents involved in the offering and any applicable fees,
commissions or discount arrangements.
Our common stock is listed for trading on the New York Stock
Exchange under the symbol DGI.
Investing in our securities involves a high degree of risk.
See Risk Factors on page 2 before you make your
investment decision.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus or the accompanying
prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is September 14, 2010.
ABOUT
THIS PROSPECTUS
This prospectus is part of an automatic shelf registration
statement that we filed with the Securities and Exchange
Commission, or SEC, as a well-known seasoned issuer
as defined in Rule 405 under the Securities Act of 1933,
which we refer to as the Securities Act. Under the automatic
shelf process, we or any selling stockholder to be named in a
prospectus supplement may offer and sell, from time to time,
shares of our common stock. We or any selling stockholder will
also be required to provide a prospectus supplement containing
specific information about us or such selling stockholder and
the terms on which our common stock is being offered and sold.
We may also add, update or change in a prospectus supplement
information contained in this prospectus.
You should rely only on the information contained in this
prospectus and the accompanying prospectus supplement, including
the information incorporated by reference herein as described
under Where You Can Find More Information, and any
free writing prospectus that we prepare and distribute. Neither
we nor any selling stockholder have authorized anyone to provide
you with information different from that contained in or
incorporated by reference into this prospectus, the accompanying
prospectus supplement or any such free writing prospectus.
We and any selling stockholder may only offer to sell, and seek
offers to buy, shares of our common stock in jurisdictions where
offers and sales are permitted.
This prospectus and any accompanying prospectus supplement or
other offering materials do not contain all of the information
included in the registration statement as permitted by the rules
and regulations of the SEC. For further information, we refer
you to the registration statement on
Form S-3,
including its exhibits. We are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(Exchange Act), and, therefore, file reports and
other information with the SEC. Statements contained in this
prospectus and any accompanying prospectus supplement or other
offering materials about the provisions or contents of any
agreement or other document are only summaries. If SEC rules
require that any agreement or document be filed as an exhibit to
the registration statement, you should refer to that agreement
or document for its complete contents.
You should not assume that the information in this prospectus,
any prospectus supplement or any other offering materials is
accurate as of any date other than the date on the front of each
document. Our business, financial condition, results of
operations and prospects may have changed since then.
Unless the context indicates otherwise, the terms
DigitalGlobe, Company, we
and our in this prospectus refer to DigitalGlobe,
Inc. and its consolidated subsidiaries.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, prospectus and
other information with the SEC. You may read and copy any
document we file at the SECs Public Reference Room at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
The SEC maintains an Internet site that contains our reports,
proxy and other information regarding us at
http://www.sec.gov
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Our SEC filings are also available free of charge at our website
(www.digitalglobe.com). The information on our website is not
incorporated by reference into this prospectus.
Our common stock is listed on the New York Stock Exchange
(NYSE) under the symbol DGI. You may
read and copy reports and other information we file at the
office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
The SEC allows incorporation by reference into this
prospectus of information that we file with the SEC. This
permits us to disclose important information to you by
referencing these filed documents. Any information referenced
this way is considered to be a part of this prospectus and any
information filed by us with the SEC subsequent to the date of
this prospectus automatically will be deemed to update and
supersede this information. We incorporate by reference the
following documents which we have filed with the SEC
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(excluding any portions of such documents that have been
furnished but not filed for purposes of
the Exchange Act):
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our Annual Report on
Form 10-K
for the year ended December 31, 2009, which we filed with
the SEC on February 24, 2010;
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the information specifically incorporated by reference into our
Annual Report on
Form 10-K
for the year ended December 31, 2009 from our Definitive
Proxy Statement on Schedule 14A, which we filed with the
SEC on April 7, 2010, and the Definitive Additional
Materials on Schedule 14A, which we filed with the SEC on
April 12, 2010;
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our Quarterly Report on
Form 10-Q
for the period ended March 31, 2010, which we filed with
the SEC on May 4, 2010;
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our Quarterly Report on
Form 10-Q
for the period ended June 30, 2010, which we filed with the
SEC on August 3, 2010;
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our Current Reports on
Form 8-K,
which we filed with the SEC on February 10, 2010,
March 8, 2010, April 1, 2010 (two reports),
May 24, 2010, June 11, 2010, July 13, 2010,
August 9, 2010, August 30, 2010, and September 1,
2010; and
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the description of the common stock set forth in our
registration statement on Form
8-A
filed on
May 6, 2009.
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We incorporate by reference any filings made with the SEC in
accordance with Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act on or after the date of this prospectus and the
date all of the securities offered hereby are sold or the
offering is otherwise terminated, with the exception of any
information furnished under Item 2.02 and Item 7.01 of
Form 8-K,
which is not deemed filed and which is not incorporated by
reference herein. Any such filings shall be deemed to be
incorporated by reference and to be a part of this prospectus
from the respective dates of filing of those documents.
We will provide to each person, including any beneficial owner,
to whom a prospectus is delivered, without charge, upon written
or oral request, a copy of any or all of the documents that are
incorporated by reference into this prospectus, excluding any
exhibits to those documents unless the exhibit is specifically
incorporated by reference as an exhibit in this prospectus. You
should direct requests for documents to:
Investor
Relations
DigitalGlobe, Inc.
1601 Dry Creek Drive Suite 260
Longmont, CO 80503
(303) 684-4000
FORWARD-LOOKING
STATEMENTS
This prospectus contains forward-looking statements.
Forward-looking statements relate to future events or our future
financial performance. We generally identify forward-looking
statements by terminology such as may,
will, should, expects,
plans, anticipates, could,
intends, target, projects,
contemplates, believes,
estimates, predicts,
potential or continue or the negative of
these terms or other similar words, although not all
forward-looking statements contain these words. These statements
are only predictions. Such statements are made in reliance on
the safe harbor provisions of the Private Litigation Reform Act
of 1995.
Any forward-looking statements are based upon our historical
performance and on our current plans, estimates and
expectations. The inclusion of this forward-looking information
should not be regarded as a representation by us that the future
plans, estimates or expectations will be achieved. Such
forward-looking statements are subject to various risks and
uncertainties and assumptions. A number of important factors
could cause our actual results or performance to differ
materially from those indicated by such forward looking
statements, including: the loss or reduction of any of our
primary contracts; the loss or impairment of our
iii
satellites; loss or damage to the content contained in our
ImageLibrary; interruption or failure of our ground system and
other infrastructure; decrease in demand for our imagery
products and services; increased competition that may reduce our
market share or cause us to lower our prices; our failure to
obtain or maintain required regulatory approvals and licenses;
changes in U.S. or foreign law or regulation that may limit
our ability to distribute our imagery products and services; the
costs associated with being a public company; and other
important factors, all as described more fully in our filings
with the SEC, including this prospectus.
We undertake no obligation to update any forward-looking
statement to reflect events or circumstances after the date on
which the statement is made or to reflect the occurrence of
unanticipated events. Readers are cautioned not to place undue
reliance on any of these forward looking statements.
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THE
COMPANY
We are a leading global provider of commercial, high-resolution
earth imagery products and services. Our products and services
support a wide variety of uses, including defense, intelligence
and homeland security applications, mapping and analysis,
environmental monitoring, oil and gas exploration, and
infrastructure management. Our principal customers include
U.S. and foreign defense and intelligence agencies and a
wide variety of commercial customers, such as internet portals,
companies in the energy, telecommunications, utility and
agricultural industries, and U.S. and foreign civil
government agencies. The imagery that forms the foundation of
our products and services is collected daily via our three
high-resolution imagery satellites and managed in our content
archive, which we refer to as our ImageLibrary.
Corporate
Information
Our principal executive offices are located at 1601 Dry Creek
Drive, Suite 260, Longmont, Colorado 80503. Our telephone
number is
(303) 684-4000.
Our internet address is www.digitalglobe.com. Information on our
website is not incorporated into this prospectus.
1
RISK
FACTORS
You should consider the specific risks described in our
Annual Report on
Form 10-K
for the year ended December 31, 2009, the risk factors
described under the caption Risk Factors in any
applicable prospectus supplement and any risk factors set forth
in our other filings with the SEC, pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
before making an investment decision. Based on the information
currently known to us, we believe that the information
incorporated by reference in this prospectus identifies the most
significant risk factors affecting our company. Each of risks
described in these documents could materially and adversely
affect our business, financial condition, results of operations
and prospects, and could result in a partial or complete loss of
your investment. The risks and uncertainties are not limited to
those set forth in the risk factors described in these
documents. Additional risks and uncertainties not presently
known to us or that we currently believe to be less significant
than the following risk factors may also adversely affect our
business. In addition, past financial performance may not be a
reliable indicator of future performance and historical trends
should not be used to anticipate results or trends in future
periods.
USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the common
stock as set forth in the applicable prospectus supplement.
Unless otherwise set forth in a prospectus supplement, we will
not receive any proceeds in the event that the common stock is
sold by a selling stockholder.
DESCRIPTION
OF CAPITAL STOCK
For a full description of our common stock please see the
documents identified in the section Where You Can Find
More Information in this prospectus.
SELLING
STOCKHOLDERS
Information regarding the beneficial ownership of our common
stock by a selling stockholder, the number of shares being
offered by a selling stockholder and the number of shares
beneficially owned by a selling stockholder after the applicable
offering, where applicable, will be set forth in a prospectus
supplement, in a post-effective amendment, or in filings we make
with the SEC under the Exchange Act which are incorporated by
reference.
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PLAN OF
DISTRIBUTION
We or any selling stockholder may sell the securities offered by
this prospectus from time to time in one or more transactions,
including without limitation:
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directly to one or more purchasers;
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through agents;
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to or through underwriters, brokers or dealers; or
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through a combination of any of these methods.
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A distribution of the securities offered by this prospectus may
also be effected through the issuance of derivative securities,
including without limitation, warrants, subscriptions,
exchangeable securities, forward delivery contracts and the
writing of options.
In addition, the manner in which we or any selling stockholder
may sell some or all of the securities covered by this
prospectus includes, without limitation, through:
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a block trade in which a broker-dealer will attempt to sell as
agent, but may position or resell a portion of the block, as
principal, in order to facilitate the transaction;
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purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
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ordinary brokerage transactions and transactions in which a
broker solicits purchasers; or
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privately negotiated transactions.
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We or any selling stockholder may also enter into hedging
transactions. For example, we or any selling stockholder may:
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enter into transactions with a broker-dealer or affiliate
thereof in connection with which such broker-dealer or affiliate
will engage in short sales of the common stock pursuant to this
prospectus, in which case such broker-dealer or affiliate may
use shares of common stock received from us to close out its
short positions;
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sell securities short and redeliver such shares to close out the
short positions;
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enter into option or other types of transactions that require us
or any selling stockholder to deliver common stock to a
broker-dealer or an affiliate thereof, who will then resell or
transfer the common stock under this prospectus; or
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loan or pledge the common stock to a broker-dealer or an
affiliate thereof, who may sell the loaned shares or, in an
event of default in the case of a pledge, sell the pledged
shares pursuant to this prospectus.
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In addition, we or any selling stockholder may enter into
derivative or hedging transactions with third parties, or sell
securities not covered by this prospectus to third parties in
privately negotiated transactions. In connection with such a
transaction, the third parties may sell securities covered by
and pursuant to this prospectus and an applicable prospectus
supplement or pricing supplement, as the case may be. If so, the
third party may use securities borrowed from us or any selling
stockholder or others to settle such sales and may use
securities received from us or any selling stockholder to close
out any related short positions. We or any selling stockholder
may also loan or pledge securities covered by this prospectus
and an applicable prospectus supplement to third parties, who
may sell the loaned securities or, in an event of default in the
case of a pledge, sell the pledged securities pursuant to this
prospectus and the applicable prospectus supplement or pricing
supplement, as the case may be.
3
A prospectus supplement with respect to each offering of
securities will state the terms of the offering of the
securities, including:
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the name or names of any underwriters or agents and the amounts
of securities underwritten or purchased by each of them, if any;
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the public offering price or purchase price of the securities
and the net proceeds to be received by us from the sale;
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any delayed delivery arrangements;
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any underwriting discounts or agency fees and other items
constituting underwriters or agents compensation;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchange or markets on which the securities may
be listed.
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The offer and sale of the securities described in this
prospectus by us, any selling stockholder, the underwriters or
the third parties described above may be effected from time to
time in one or more transactions, including privately negotiated
transactions, either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to the prevailing market prices; or
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at negotiated prices.
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General
Any public offering price and any discounts, commissions,
concessions or other items constituting compensation allowed or
reallowed or paid to underwriters, dealers, agents or
remarketing firms may be changed from time to time. Any selling
stockholders, underwriters, dealers, agents and remarketing
firms that participate in the distribution of the offered
securities may be underwriters as defined in the
Securities Act. Any discounts or commissions they receive from
us or any selling stockholders and any profits they receive on
the resale of the offered securities may be treated as
underwriting discounts and commissions under the Securities Act.
We or any selling stockholders will identify any underwriters,
agents or dealers and describe their commissions, fees or
discounts in the applicable prospectus supplement or pricing
supplement, as the case may be.
We and any selling stockholder and other persons participating
in the sale or distribution of the securities will be subject to
applicable prospectus of the Securities Act, and the rules and
regulations thereunder, including Regulation M. This
regulation may limit the timing of purchases and sales of any of
the securities by us, any selling stockholder or any other
person. The anti-manipulation rules under the Securities Act may
apply to sales of securities in the market and to the activities
of us or any selling stockholder and any affiliates of us or any
selling stockholder. Furthermore, Regulation M may restrict
the ability of any person engaged in the distribution for a
period of up to five business days before the distribution.
These restrictions may affect the marketability of the
securities and the ability of any person or entity to engage in
market-making activities with respect to the securities.
We or any selling stockholder are not restricted as to the price
or prices at which they may sell the securities. Sales of such
securities may have an adverse effect on the market price of the
securities. Moreover, it is possible that a significant number
of shares of common stock could be sold at the same time, which
may have an adverse effect on the market price of the securities.
We cannot assure you that we or any selling stockholder will
sell all or any portion of the securities offered hererby.
4
Underwriters
and Agents
If underwriters are used in a sale, they will acquire the
offered securities for their own account. The underwriters may
resell the offered securities in one or more transactions,
including negotiated transactions. These sales may be made at a
fixed public offering price or prices, which may be changed, at
market prices prevailing at the time of the sale, at prices
related to such prevailing market price or at negotiated prices.
We or any selling stockholder may offer the securities to the
public through an underwriting syndicate or through a single
underwriter. The underwriters in any particular offering will be
mentioned in the applicable prospectus supplement or pricing
supplement, as the case may be.
Unless otherwise specified in connection with any particular
offering of securities, the obligations of the underwriters to
purchase the offered securities will be subject to certain
conditions contained in an underwriting agreement that we will
enter into with the underwriters at the time of the sale to
them. The underwriters will be obligated to purchase all of the
securities of the series offered if any of the securities are
purchased, unless otherwise specified in connection with any
particular offering of securities. Any initial offering price
and any discounts or concessions allowed, reallowed or paid to
dealers may be changed from time to time.
We or any selling stockholder may designate agents to sell the
offered securities. Unless otherwise specified in connection
with any particular offering of securities, the agents will
agree to use their best efforts to solicit purchases for the
period of their appointment. We or any selling stockholder may
also sell the offered securities to one or more remarketing
firms, acting as principals for their own accounts or as agents
for us or any selling stockholders. These firms will remarket
the offered securities upon purchasing them in accordance with a
redemption or repayment pursuant to the terms of the offered
securities. A prospectus supplement or pricing supplement, as
the case may be will identify any remarketing firm and will
describe the terms of its agreement, if any, with us or any
selling stockholder and its compensation.
In connection with offerings made through underwriters or
agents, we or any selling stockholder may enter into agreements
with such underwriters or agents pursuant to which we receive
our outstanding securities in consideration for the securities
being offered to the public for cash. In connection with these
arrangements, the underwriters or agents may also sell
securities covered by this prospectus to hedge their positions
in these outstanding securities, including in short sale
transactions. If so, the underwriters or agents may use the
securities received from us or any selling stockholder under
these arrangements to close out any related open borrowings of
securities.
Dealers
We or any selling stockholder may sell the offered securities to
dealers as principals. We or any selling stockholder may
negotiate and pay dealers commissions, discounts or
concessions for their services. The dealer may then resell such
securities to the public either at varying prices to be
determined by the dealer or at a fixed offering price agreed to
with us or any selling stockholder at the time of resale.
Dealers engaged by us or any selling stockholder may allow other
dealers to participate in resales.
Direct
Sales
We or any selling stockholder may choose to sell the offered
securities directly. In this case, no underwriters or agents
would be involved.
Institutional
Purchasers
We or any selling stockholder may authorize agents, dealers or
underwriters to solicit certain institutional investors to
purchase offered securities on a delayed delivery basis pursuant
to delayed delivery contracts providing for payment and delivery
on a specified future date. The applicable prospectus supplement
or pricing supplement, as the case may be will provide the
details of any such arrangement, including the offering price
and commissions payable on the solicitations.
5
We or any selling stockholder will enter into such delayed
contracts only with institutional purchasers that we or any
selling stockholder approve. These institutions may include
commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable
institutions.
Indemnification;
Other Relationships
We or any selling stockholder may have agreements with agents,
underwriters, dealers and remarketing firms to indemnify them
against certain civil liabilities, including liabilities under
the Securities Act. Agents, underwriters, dealers and
remarketing firms, and their affiliates, may engage in
transactions with, or perform services for, us or any selling
stockholder in the ordinary course of business. This includes
commercial banking and investment banking transactions.
Market-Making,
Stabilization and Other Transactions
In connection with any offering of common stock, the
underwriters may purchase and sell shares of common stock in the
open market. These transactions may include short sales,
syndicate covering transactions and stabilizing transactions.
Short sales involve syndicate sales of common stock in excess of
the number of shares to be purchased by the underwriters in the
offering, which creates a syndicate short position.
Covered short sales are sales of shares made in an
amount up to the number of shares represented by the
underwriters over-allotment option. In determining the
source of shares to close out the covered syndicate short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase shares through
the over-allotment option. Transactions to close out the covered
syndicate short involve either purchases of the common stock in
the open market after the distribution has been completed or the
exercise of the over-allotment option. The underwriters may also
make naked short sales of shares in excess of the
over-allotment option. The underwriters must close out any naked
short position by purchasing shares of common stock in the open
market. A naked short position is more likely to be created if
the underwriters are concerned that there may be downward
pressure on the price of the shares in the open market after
pricing that could adversely affect investors who purchase in
the offering. Stabilizing transactions consist of bids for or
purchases of shares in the open market while the offering is in
progress for the purpose of pegging, fixing or maintaining the
price of the securities.
In connection with any offering, the underwriters may also
engage in penalty bids. Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the
securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short
positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the
securities to be higher than it would be in the absence of the
transactions. The underwriters may, if they commence these
transactions, discontinue them at any time.
Fees and
Commissions
In compliance with the guidelines of the Financial Industry
Regulatory Authority (the FINRA), the aggregate
maximum discount, commission or agency fees or other items
constituting underwriting compensation to be received by any
FINRA member or independent broker-dealer will not exceed 8% of
any offering pursuant to this prospectus and any applicable
prospectus supplement or pricing supplement, as the case may be;
however, it is anticipated that the maximum commission or
discount to be received in any particular offering of securities
will be significantly less than this amount.
6
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, Skadden, Arps, Slate, Meagher & Flom LLP,
New York, New York will provide opinions regarding the
authorization and validity of the securities. Skadden, Arps,
Slate, Meagher & Flom LLP may also provide opinions
regarding certain other matters. Any underwriters will also be
advised about legal matters by their own counsel, which will be
named in the prospectus supplement.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2009 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
7
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The expenses relating to the registration of the securities will
be borne by the registrant. Such expenses are estimated to be as
follows:
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Amount to
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be Paid*
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SEC Registration Fee
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**
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Accounting Fees and Expenses
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$
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75,000
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|
Legal Fees and Expenses
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$
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100,000
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Printing Expenses
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|
$
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25,000
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Transfer Agent, Registrar and Trustee Fees
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|
$
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10,000
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Stock Exchange Listing Fee
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$
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10,000
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Miscellaneous Expenses
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$
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25,000
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|
|
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Total
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$
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235,000
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*
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Since an indeterminate amount of securities is covered by this
registration statement, the expenses in connection with the
issuance and distribution of the securities are not currently
determinable. The amounts shown are estimates of expenses
payable by us in connection with the filing of this registration
statement and one offering of securities hereunder, but do not
limit the amount of securities that may be offered.
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**
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Deferred in accordance with Rule 456(b) and
Rule 457(r) of the Securities Act.
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Item 15.
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Indemnification
of Directors and Officers.
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Our amended and restated certificate of incorporation and
amended and restated bylaws provide that we will indemnify our
directors and officers, and may indemnify our employees and
other agents, to the fullest extent permitted by the Delaware
General Corporation Law. In addition, as permitted by the
Delaware General Corporation Law, a certificate of incorporation
limits or eliminates the personal liability of directors for a
breach of their fiduciary duties of care as a director. The duty
of care generally requires that, when acting on behalf of a
company, directors exercise an informed business judgment based
on all material information available to them. Consequently, a
director will not be personally liable to us or our stockholders
for monetary damages for breach of fiduciary duty as a director,
except for liability for:
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any breach of the directors duty of loyalty to us or to
our stockholders;
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acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
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unlawful payment of dividends or unlawful stock repurchases or
redemptions; and
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any transaction from which the director derived an improper
personal benefit.
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If Delaware law is amended to authorize corporate action further
eliminating or limiting the personal liability of a director,
then the liability of our directors will be eliminated or
limited to the fullest extent permitted by Delaware law, as so
amended. Our amended and restated certificate of incorporation
does not eliminate a directors duty of care and, in
appropriate circumstances, equitable remedies, such as
injunctive or other forms of non-monetary relief, remain
available under Delaware law. This provision also does not
affect a directors responsibilities under any other laws,
such as the federal securities laws or other state or federal
laws.
Under our amended and restated certificate of incorporation and
amended and restated bylaws, we are also able to provide similar
rights to indemnification and advancement of expenses to
employees and agents.
II-1
We may purchase and maintain insurance covering our directors
and officers against any liability asserted against any of them
and incurred by any of them, whether or not we would have the
power to indemnify them against such liability under the bylaws.
In addition, we are required to advance expenses (including
attorneys fees) incurred by a director or officer
defending an action if that person undertakes to repay us if he
or she is ultimately determined not to be entitled to be
indemnified by us. The indemnification provided by our amended
and restated certificate of incorporation is not exclusive of
any rights to which those seeking indemnification may be
entitled under the amended and restated certificate of
incorporation, the bylaws, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
We believe that these bylaw provisions and indemnification
agreements are necessary to attract and retain qualified persons
as directors and officers. We also maintain directors and
officers liability insurance.
The Exhibits to this registration statement are listed in the
Index to Exhibits on
page II-7
and are incorporated by reference herein.
The undersigned registrant hereby undertakes:
(A)(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate
offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however
, that paragraphs (A)(1)(i), (A)(1)(ii)
and (A)(1)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was
declared effective.
(3) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(4) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
II-2
(5) That, for the purpose of determining liability under
the Securities Act to any purchaser:
A. Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
B. Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or
(6) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(B) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(C) The limitation of liability and indemnification
provisions in our amended and restated certificate of
incorporation and amended and restated bylaws may discourage
stockholders from bringing a lawsuit against directors for
breach of their fiduciary duties. They may also reduce the
likelihood of derivative litigation against directors and
officers, even though an action, if successful, might benefit us
and our stockholders. A stockholders investment may be
harmed to the extent we pay the costs of settlement and damage
awards against directors and officers pursuant to these
indemnification provisions. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to
our directors, officers and controlling persons pursuant to the
foregoing provisions, or otherwise, we have been advised that,
in the opinion of the Securities
II-3
and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue. There
is no pending litigation or proceeding naming any of our
directors or officers as to which indemnification is being
sought, nor are we aware of any pending or threatened litigation
that may result in claims for indemnification by any director or
officer.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Longmont, State of Colorado, on the 14th day of
September, 2010.
DigitalGlobe, Inc.
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By:
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/s/
Yancey
L. Spruill
Name: Yancey
L. Spruill
Title: Executive Vice President,
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Chief Financial Officer and Treasurer
II-5
SIGNATURES
AND POWER OF ATTORNEY
In accordance with the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by
the following persons in the capacities and on the dates stated.
Each person whose signature appears below constitutes and
appoints J. Alison Alfers and Yancey L. Spruill and each of them
severally, as his or her true and lawful attorney-in-fact and
agent, each acting along with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) and exhibits to the
Registration Statement on
Form S-3,
and to any registration statement filed under SEC Rule 462,
and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the SEC, granting unto
said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents
and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on
September 14, 2010, by the following persons in the
capacities and on the dates indicated.
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Signature
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|
Title
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By:
|
|
/s/
Jill
D. Smith
Jill
D. Smith
|
|
President, Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
|
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By:
|
|
/s/
Yancey
L. Spruill
Yancey
L. Spruill
|
|
Executive Vice President, Chief Financial Officer
and Treasurer
(Principal Financial and Accounting Officer)
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By:
|
|
/s/
Paul
M. Albert, Jr.
Paul
M. Albert, Jr.
|
|
Director
|
|
|
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|
By:
|
|
/s/
Nick
S. Cyprus
Nick
S. Cyprus
|
|
Director
|
|
|
|
|
|
By:
|
|
/s/
General
Howell M. Estes III
General
Howell M. Estes III
|
|
Director
|
|
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By:
|
|
/s/
Warren
C. Jenson
Warren
C. Jenson
|
|
Director
|
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By:
|
|
/s/
Alden
Munson Jr.
Alden
Munson Jr.
|
|
Director
|
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By:
|
|
/s/
James
M. Whitehurst
James
M. Whitehurst
|
|
Director
|
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By:
|
|
/s/
Eddy
Zervigon
Eddy
Zervigon
|
|
Director
|
II-6
EXHIBIT INDEX
|
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Exhibit
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|
|
Number
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|
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|
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1
|
.1*
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|
Form of Underwriting Agreement.
|
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3
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.1*
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|
Amended and Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 on the Companys Annual Report
on Form 10-K, filed with the SEC on February 22, 2010).
|
|
3
|
.2*
|
|
Amended and Restated By-laws (incorporated by reference to
Exhibit 3.2 on the Companys Quarterly Report on Form 10-Q,
filed with the SEC on August 12, 2009).
|
|
4
|
.1*
|
|
Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 on the Companys Registration Statement on Form
S-1, filed with the SEC on May 13, 2009).
|
|
5
|
.1
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Opinion of J. Alison Alfers, general counsel, DigitalGlobe, Inc.
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5
|
.2
|
|
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
|
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23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm.
|
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23
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.2
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Consent of J. Alison Alfers (included in Exhibit 5.2).
|
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23
|
.3
|
|
Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.2).
|
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24
|
.1
|
|
Power of Attorney (included on signature page hereto).
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*
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To be filed by amendment to the Registration Statement or
incorporated by reference from documents filed or to be filed
with the SEC under the Securities Exchange Act of 1934, as
amended.
|
II-7
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