Form 8-K SALESFORCE COM INC For: Dec 17
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549�
________________________________________________________�
FORM 8-K
________________________________________________________
CURRENT REPORT
Pursuant to Section�13 or 15(d) of the
Securities Exchange Act of 1934
December 17, 2014
Date of Report (date of earliest event reported)
�
__________________________________________________________
salesforce.com, inc.
(Exact name of registrant as specified in its charter)�
__________________________________________________________�
�
Delaware | 001-32224 | 94-3320693 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (I. R. S. Employer Identification No.) | ||
The Landmark @ One Market, Suite 300
San Francisco, CA 94105
(Address of principal executive offices)
Registrants telephone number, including area code: (415)�901-7000
N/A
(Former name or former address, if changed since last report)
�________________________________________________
�
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
�
� | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
� | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
� | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
� | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item�1.01. Entry into a Material Definitive Agreement.
On December 17, 2014, salesforce.com, inc. (the Company ) entered into agreements (the Warrant Agreements ) with each of Goldman, Sachs & Co., Deutsche Bank AG and Bank of America, N.A. (collectively, the Counterparties ) to amend and settle early those certain warrant transactions (the Warrants ) that the Company entered into with the Counterparties on January 12, 2010 and January 15, 2010, whereby the Company sold to the Counterparties Warrants to acquire, in the aggregate, up to approximately 26.9 million shares of the Companys common stock at a strike price of $29.88 per share, subject to anti-dilution adjustments. In connection with the Warrant Agreements, the Company expects to issue, in the aggregate, approximately 13.5 million shares to the Counterparties to settle, via a net share settlement, the entirety of the Warrants prior to their scheduled expiration beginning in April 2015. The Company expects to complete the issuances of the shares to the Counterparties in the first quarter of its fiscal 2016.
The description of the Warrant Agreements contained herein is qualified in its entirety by reference to the Warrant Agreements attached as Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 above is incorporated by reference into this Item 3.02. The shares of common stock to be issued under the Warrant Agreements are expected to be issued pursuant to the exemption from the registration requirements of the Securities Act of 1933, as amended (the Securities Act ), afforded by Section 3(a)(9) of the Securities Act.
Item�9.01. Financial Statements and Exhibits.
(d)�Exhibits
Exhibit No. | Description | ||
10.1 | Letter Agreement between salesforce.com, inc. and Goldman, Sachs & Co., dated December 17, 2014 | ||
10.2 | Letter Agreement between salesforce.com, inc. and Deutsche Bank AG, London Branch, dated December 17, 2014 | ||
10.3 | Settlement Agreement between salesforce.com, inc. and Bank of America, N.A., dated December 17, 2014 | ||
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
�
Dated: | December 19, 2014 | salesforce.com, inc. | |
/s/ Mark J. Hawkins | |||
Mark J. Hawkins, Chief Financial Officer | |||
EXHIBIT INDEX
Exhibit No. | Description | ||
10.1 | Letter Agreement between salesforce.com, inc. and Goldman, Sachs & Co., dated December 17, 2014 | ||
10.2 | Letter Agreement between salesforce.com, inc. and Deutsche Bank AG, London Branch, dated December 17, 2014 | ||
10.3 | Settlement Agreement between salesforce.com, inc. and Bank of America, N.A., dated December 17, 2014 | ||
Exhibit 10.1
Execution Version
Date:��������December 17, 2014
To: | salesforce.com, inc. |
The Landmark @ One Market, Suite 300
San Francisco, CA 94105
����
Attention: | General Counsel |
Telephone:����415-901-7000
Facsimile:����415-901-7040
��������
From: | Goldman, Sachs & Co. |
200 West Street
New York, NY 10282-2198
Re: | Amendment of the Issuer Warrant Transactions between Goldman, Sachs & Co. and salesforce.com, inc. (this Amendment ) |
Dear Sir/Madam:
Goldman, Sachs & Co. ( GS&Co. ) and salesforce.com, inc. ( Issuer ) are parties to warrant transactions evidenced by the Base Issuer Warrant Transaction Confirmation dated as of January 12, 2010 (the Base Warrant Confirmation ) and Additional Issuer Warrant Transaction Confirmation dated as of January 15, 2010 (the Additional Warrant Confirmation and, together with the Base Warrant Confirmation, the Confirmations ), in each case between GS&Co. and Issuer. Terms used herein but are not otherwise defined shall have meanings assigned to them in the Confirmations.
1.����Amendments. Effective upon execution hereof by the parties hereto, each Confirmation is hereby amended as follows:
(a)����Deleting the definition of Expiration Date set forth in Section 2 of each Confirmation and replacing it with the following:
Expiration Date: | Each of the 10 consecutive Valid Days commencing on, and including, the later to occur of the second Scheduled Trading Day and the first Valid Day on which the Table Amount is less than the Table Amount Limit (such day, the First Expiration Date ) following delivery of the Settlement Period Commencement Notice, in which case the Expiration Date for each Component shall be the sequential Valid Day corresponding to the number assigned to such Component in Annex A hereto, commencing on, and including, the First Expiration Date (and for the avoidance of doubt, the period starting on the first such Expiration Date and ending on the last such Expiration Date shall be the Settlement Period hereunder); provided that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first |
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succeeding Valid Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and provided further that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, Dealer may elect in its reasonable discretion that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date in respect of any other Component for the Transaction) and, notwithstanding anything to the contrary in this Confirmation or the Definitions, the Relevant Price for such Expiration Date shall be the prevailing market value per Share determined by the Calculation Agent in a commercially reasonable manner. Settlement Period Commencement Notice means written notice by Issuer to GS&Co. that Issuer has received notice from Deutsche Bank AG, London Branch, that the final expiration date under the similar warrant transactions entered into between Issuer and Deutsche Bank AG, London Branch has occurred (the Prior Unwind Notice ), which Settlement Period Commencement Notice shall be delivered by the Issuer on the first Scheduled Trading Day immediately following the day on which the Prior Unwind Notice was received. Final Disruption Date means July 23, 2015. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may reasonably determine that such Expiration Date is a Disrupted Day only in part, in which case (i) the Calculation Agent shall make reasonable adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date and shall designate the Valid Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component, and (ii) the VWAP Price for such Disrupted Day shall be reasonably determined by the Calculation Agent based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event on such day. Any day on which the Exchange is scheduled to close prior to its normal closing time shall be considered a Disrupted Day in whole. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.
(b)����Inserting the following definition immediately following the definition of Expiration Date in Section 2 of each Confirmation:
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Valid Day: | Prior to April 17, 2015, any Scheduled Trading Day on which the VWAP Price is less than the Limit Price; on and following April 17, 2015, any Scheduled Trading Day shall be a Valid Day. |
Limit Price: | As set forth on Annex B hereto. |
(c)����Deleting the column entitled Expiration Date in Annex A of each Confirmation.
(d)����Deleting the definition of Number of Shares to be Delivered set forth in Section 2 of each Confirmation and replacing it with the following:
Number of Shares to be Delivered: | In respect of any Exercise Date, a number of Shares equal to the sum of: |
(1) | the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess, if any, of the VWAP Price on the Valuation Date occurring on such Exercise Date over the Strike Price (or if there is no such excess, zero) divided by (B) such VWAP Price; and |
(2) | the Supplemental Share Amount for such Exercise Date. |
The Number of Shares to be Delivered shall be delivered by Issuer to Dealer no later than 12:00 noon (local time in New York City) on the Settlement Date.
Fractional Shares: | Notwithstanding the last sentence of Section 9.5 of the Equity Definitions, in the event the sum of the Number of Shares to be Delivered for all Components comprises any fractional Share, the number of Shares delivered on the Settlement will include only whole Shares and a fractional share amount in USD equal to the product of such fractional Share and the VWAP Price on the final Expiration Date. |
(e)����Inserting the following definitions immediately following the definition of Number of Shares to be Delivered in Section 2 of the Base Warrant Confirmation:
Supplemental Share Amount: | In respect of any Exercise Date, a number of Shares equal to (i)(A) the Table Amount divided by (B) the scheduled number of Expiration Dates divided by (ii) the VWAP Price on the Valuation Date occurring on such Exercise Date. |
Table Amount: | An amount determined by the Calculation Agent as of the First Expiration Date by reference to the date on which such First Expiration Date occurs and the VWAP Price on the First Expiration Date and derived from the table (the Table ) set forth as Annex B hereto; provided that the Table Amount shall never be less than zero. The figures |
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appearing in the Table are the Table Amounts for those First Expiration Dates and VWAP Prices that appear exactly in the relevant column or row, as applicable, of the Table. For First Expiration Dates or VWAP Prices falling between the dates or amounts, as applicable appearing in such column or row, as applicable, the Table Amount will be calculated by the Calculation Agent using linear interpolation (and, in the case of the First Expiration Dates, by reference to the actual number of days elapsed). If a Table Amount is otherwise not determinable pursuant to the foregoing because the VWAP Price is less than the lowest VWAP Price appearing in the Table, the Table Amount will be determined by the Calculation Agent by linear extrapolation based on the two lowest VWAP Prices appearing in the Table and subject to the proviso in the first sentence above. If a Table Amount is otherwise not determinable pursuant to the foregoing because the VWAP Price is greater than the highest VWAP Price appearing in the Table, the Table Amount will be determined by the Calculation Agent by linear extrapolation based on the two highest VWAP Prices appearing in the Table and subject to the proviso in the first sentence above.
Table Amount Limit: | As set forth on Annex B hereto. |
(f)����Inserting the following definition immediately following the definition of Number of Shares to be Delivered in Section 2 of the Additional Warrant Confirmation:
Supplemental Share Amount: | In respect of any Exercise Date, a number of Shares equal to (i)(A) the Table Amount divided by (B) the scheduled number of Expiration Dates divided by (ii) the VWAP Price on the Valuation Date occurring on such Exercise Date. |
Table Amount: | An amount determined by the Calculation Agent as of the First Expiration Date by reference to the date on which such First Expiration Date occurs and the VWAP Price on the First Expiration Date and derived from the table (the Table ) set forth as Annex B hereto; provided that the Table Amount shall never be less than zero. The figures appearing in the Table are the Table Amounts for those First Expiration Dates and VWAP Prices that appear exactly in the relevant column or row, as applicable, of the Table. For First Expiration Dates or VWAP Prices falling between the dates or amounts, as applicable appearing in such column or row, as applicable, the Table Amount will be calculated by the Calculation Agent using linear interpolation (and, in the case of the First Expiration Dates, by reference to the actual number of days elapsed). If a Table Amount is otherwise not determinable pursuant to the foregoing |
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because the VWAP Price is less than the lowest VWAP Price appearing in the Table, the Table Amount will be determined by the Calculation Agent by linear extrapolation based on the two lowest VWAP Prices appearing in the Table and subject to the proviso in the first sentence above. If a Table Amount is otherwise not determinable pursuant to the foregoing because the VWAP Price is greater than the highest VWAP Price appearing in the Table, the Table Amount will be determined by the Calculation Agent by linear extrapolation based on the two highest VWAP Prices appearing in the Table and subject to the proviso in the first sentence above.
Table Amount Limit: | As set forth on Annex B hereto. |
(g)����Deleting the definition of Settlement Date set forth in Section 2 of each Confirmation and replacing it with the following:
Settlement Date: | For all Components, one Settlement Cycle following the final Expiration Date for the Transaction. |
(h)����Deleting the definition of VWAP Price set forth in Section 2 of each Confirmation and replacing it with the following:
VWAP Price: | For any Valuation Date, the Rule 10b-18 dollar volume-weighted average price per Share for such Valuation Date based on transactions executed during such Valuation Date, as reported on Bloomberg page CRM.N |
(h)����Section 7(a)(xi) of each Confirmation is amended by deleting the words Bank of America, N.A., Deutsche Bank AG, London Branch in the second line thereof.
(i)����The Base Warrant Confirmation is amended by adding the table set forth on Schedule I to this Amendment as a new Annex B thereto.
(j)����The Additional Warrant Confirmation is amended by adding the table set forth on Schedule II to this Amendment as a new Annex B thereto.
2. ����Election of Net Share Settlement. Effective upon execution hereof by the parties hereto, Issuer shall be deemed to have irrevocably elected Net Share Settlement as the Settlement Method Election under each Confirmation, and shall have no further right to make a Settlement Method Election under either Confirmation.
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3.����Agreement to Notify. Promptly following the occurrence of the final Expiration Date for the Transaction, GS&Co. shall notify Issuer as promptly as practicable that such final Expiration Date in respect of the Transaction has occurred.
4.����Representations and Warranties.
(a)�����Each party represents to the other party that:
(i)����It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.
(ii)����It has the power to execute this Amendment and any other documentation relating to this Amendment to which it is a party, to deliver this Amendment and any other documentation relating to this Amendment that it is required by this Amendment to deliver and to perform its obligations under this Amendment and has taken all necessary action to authorize such execution, delivery and performance.
(iii)����Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets.
(iv)����All governmental and other consents that are required to have been obtained by it with respect to this Amendment have been obtained and are in full force and effect and all conditions of any such consents have been complied with.
(v)����Its obligations under this Amendment constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
(b)�����Issuer represents and warrants to and for the benefit of, and agrees with, GS&Co., as follows:
(i)����(A)�On the date hereof, Issuer is not aware of any material non-public information regarding Issuer or the Shares and (B)�its most recent Annual Report on Form 10-K, taken together with all reports and other documents subsequently filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.
(ii)����On the date hereof (A)�the assets of Issuer at their fair valuation exceed the liabilities of Issuer, including contingent liabilities, (B)�the capital of Issuer is adequate to conduct the business of Issuer and (C)�Issuer has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature.
(iii)����Issuers entry into this Amendment constitutes a written plan satisfying the requirements of Rule 10b5-1 of the Exchange Act relating to the delivery of the Settlement Period
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Commencement Notice. Issuer may not amend or modify its obligation to deliver the Settlement Period Commencement Notice except in compliance with Rule 10b5-1 of the Exchange Act.
5.����Acknowledgements. The parties hereto agree that Non-Reliance , under Section 13.1 of the Equity Definitions, and Additional Acknowledgments , under Section 13.4 of the Equity Definitions, are applicable to this Amendment, and such sections of the Equity Definitions are hereby incorporated herein by reference and made a part of this Amendment to the same extent as if such provisions were set forth in full herein, provided that references therein to Transaction shall be deemed to be references to this Amendment.
6. ����No Additional Amendments or Waivers. Except as amended hereby, all the terms of the Transaction and provisions in each Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.
7. ����Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
8. ����Governing Law. The provisions of this Amendment shall be governed by the New York law (without reference to choice of law doctrine).
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it in the manner indicated in the attached cover letter.
GOLDMAN, SACHS & CO.
By: | /s/ Daniela A. Rouse__________ |
Name: Daniela A. Rouse
Title: Vice President
Title: Vice President
��������������������������������
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Agreed and Accepted By:
SALESFORCE.COM, INC.
SALESFORCE.COM, INC.
By: | /s/ Mark Hawkins_________ |
Name: Mark Hawkins
Title: EVP, Chief Financial Officer
Title: EVP, Chief Financial Officer
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Exhibit 10.2
EXECUTION COPY
LETTER AGREEMENT
BETWEEN
SALESFORCE.COM, INC.
AND
DEUTSCHE BANK AG, LONDON BRANCH
�
THIS LETTER AGREEMENT (the Letter Agreement ) is made as of December 17, 2014, between salesforce.com, inc. ( Counterparty ), and Deutsche Bank AG, London Branch ( Bank ).
DEUTSCHE BANK AG, LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DEUTSCHE BANK SECURITIES INC. ( DBSI ) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THIS LETTER AGREEMENT AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE THIS LETTER AGREEMENT. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THIS LETTER AGREEMENT BETWEEN DEUTSCHE BANK AG, LONDON BRANCH, AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).
WITNESSETH:
WHEREAS, Counterparty entered into (i) a base issuer warrant transaction with Bank pursuant to an ISDA confirmation dated as of January 12, 2010 (reference number 364745 and as amended from time to time, the Base Warrant Confirmation ) and (ii) an additional issuer warrant transaction with Bank pursuant to an ISDA confirmation dated as of January 15, 2010 (reference number 365487 and as amended from time to time, the Additional Warrant Confirmation , and together with the Base Warrant Confirmation, the Warrant Confirmations ), pursuant to which the Bank purchased from the Counterparty Warrants;
WHEREAS, Bank and Counterparty desire to effect a termination (the Termination ) of the Warrant Confirmations in an amount equal to the Number of Unwound Warrants (as defined below), on the terms hereof and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, Counterparty and Bank, intending to be legally bound, mutually covenant and agree as follows:
Section 1. ����Definitions. Capitalized terms used herein but not otherwise defined shall have the meanings assigned to them in the Warrant Confirmations.
Section 2.����Termination.
(i) | On each Unwind Settlement Date (as defined below), the aggregate Number of Warrants for all Components in the Base Warrant Confirmation shall be reduced by the Number of Unwound Warrants (as defined below) in respect of the Relevant Week corresponding to such Unwind Settlement Date; provided that in the event that the Number of Unwound Warrants for the Relevant Week corresponding to such Unwind Settlement Date is greater than the aggregate Number of Warrants that remain outstanding under the Base Warrant Confirmation (such excess, the Excess Warrants ), then the Number of Warrants that remain outstanding under the Additional Warrant Confirmation shall be reduced by the number of Excess Warrants; provided, further that following such reductions neither the aggregate Number of Warrants that remain outstanding under the Base Warrant Confirmation nor the aggregate Number of Warrants that remain outstanding under the Additional Warrant Confirmation shall be less than zero; provided, further that the amount by which the Number of Warrants for each |
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Component under each Warrant Confirmation is reduced shall be the same for all Components under each Warrant Confirmation other than differences due to rounding.
(ii) | On the Unwind End Date, (a) Bank shall send to Counterparty (x) if the aggregate Number of Warrants that remain outstanding under each of the Warrant Confirmations equals zero, a notice that Bank has completed the unwind of its Hedge Positions with respect to the aggregate Number of Warrants outstanding under each of the Warrant Confirmations as of the date hereof (the Outstanding Warrants ) and (y) if the aggregate Number of Warrants that remain outstanding under either Warrant Confirmation is greater than zero, a notice containing the Number of Warrants that remain outstanding under each Warrant Confirmation with respect to each Component thereunder, including a schedule of such reduced Number of Warrants for each Component that will replace the Number of Warrants referenced in Annex A of each Warrant Confirmation and (b) Bank shall send to Goldman, Sachs & Co. (with a copy to: Michael Voris, (212)�902-4895, [email protected]; Bryan Goldstein, (212) 855-9696, [email protected]; and [email protected]) a notice indicating that Bank is no longer unwinding its Hedge Positions with respect to the Outstanding Warrants. The parties further agree that in the case of clause (a)(y) above, the Capped Number set forth in the Limitations on Settlement by Issuer section of each Warrant Confirmation will be amended to reflect the Termination. |
Section 3.����Settlement in Respect of Termination. On each Unwind Settlement Date, Counterparty shall deliver to Bank a number of Shares equal to the product of (i) the Number of Unwound Warrants in respect of the Relevant Week corresponding to such Unwind Settlement Date multiplied by (ii)�the Number of Shares per Warrant in respect of the Relevant Week corresponding to such Unwind Settlement Date. Such Shares shall be delivered to Bank in book-entry format through the facilities of the Depository Trust Company and shall be free of any transfer restrictions, whether under securities laws or otherwise.
Unwind Settlement Date means the date one Settlement Cycle following the last Scheduled Trading Day of each calendar week during the Unwind Period (each such week, a Relevant Week ), provided that the Unwind Settlement Date for the final Relevant Week shall occur one Settlement Cycle following the Unwind End Date (the Final Unwind Settlement Date ).
Unwind Period means the period of consecutive Scheduled Trading Days commencing on and including the Unwind Start Date and ending on and including the Unwind End Date, subject to the last paragraph in Exhibit A.
Unwind Start Date means the Scheduled Trading Day immediately following the date hereof.
Unwind End Date means the earlier of (i) February 27, 2015 and (ii) the date on which Bank completes the unwind of its Hedge Positions with respect to the Outstanding Warrants.
Number of Shares per Warrant with respect to any Relevant Week means an amount determined based on the grid attached as Exhibit A to this Letter Agreement.
Number of Unwound Warrants with respect to any Relevant Week means the number of Warrants with respect to which Bank has completed the unwind of its Hedge Positions during such Relevant Week.
Section 4. ����Representations. Counterparty hereby represents and warrants to Bank that:
(i) | this agreement has been duly authorized, executed and delivered by Counterparty and constitutes its valid and binding agreement, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally; |
(ii) | it is not entering into this Letter Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to manipulate the price of the |
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Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Securities Exchange Act of 1934, as amended (the Exchange Act );
(iii) | Counterparty is not, and after giving effect to the transactions contemplated hereby, will not be, an investment company as such term is defined in the Investment Company Act; |
(iv) | Counterparty is not as of the date hereof, and shall not be after giving effect to the transactions contemplated hereby, insolvent (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code); |
(v) | the Shares or securities that are convertible into, or exchangeable or exercisable for, Shares will not be subject to a restricted period as such term is defined in Regulation M under the Exchange Act during the Unwind Period; |
(vi) | (a) the Shares to be delivered to Bank pursuant to Section 3 have been duly authorized and, when delivered pursuant to the terms hereof, shall be validly issued, fully-paid and non-assessable, and such issuance of Shares shall not be subject to any preemptive or similar rights and (b) such number of Shares have been accepted for listing or quotation on the Exchange, subject to notice of issuance; and |
(vii) | Counterparty has not made any purchase of blocks by or for itself or any of its affiliated purchasers (as such term is defined in Rule 10b-18 under the Exchange Act) pursuant to the one block purchase per week exception in Rule 10b-18(b)(4) under the Exchange Act during each of the four calendar weeks preceding, and during the week of, the date hereof, and Counterparty agrees and acknowledges that it shall not, and shall cause its affiliates and affiliated purchasers not to, directly or indirectly (including by means of a derivative instrument) enter into any transaction to purchase any Shares during the period beginning on and including the date hereof and ending on and including the last day of the Unwind Period. For the avoidance of doubt, this clause (vi) shall not prohibit any purchase of Shares effected by or for an issuer plan by an agent independent of the issuer (as such terms are defined in Rule 10b-18 under the Exchange Act). |
Section 5.����No Reliance, etc. Each party represents that (i) it is entering into this Letter Agreement as principal (and not as agent or in any other capacity); (ii) neither the other party nor any of its agents are acting as a fiduciary for it; (iii) it is not relying upon any representations except those expressly set forth in this Letter Agreement; (iv) it has not relied on the other party for any legal, regulatory, tax, business, investment, financial, and accounting advice, and it has made its own investment, hedging, and trading decisions based upon its own judgment and upon any view expressed by the other party or any of its agents; (v) it is entering into this Letter Agreement with a full understanding of the terms, conditions and risks thereof and it is capable of and willing to assume those risks. Counterparty represents that (vi) on the date hereof, (A) none of Issuer and its officers and directors is aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and other documents filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.
Section 6.����Account for Delivery of Shares to Bank:
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DEUTSCHE BANK SECURITIES INC
Sub Agent BIC: NWSCUS33
Inst/Broker ID: 00000573
Agent ID: 00000573
DTC Participant ID: 00000573
�
Section 7.����No Other Changes. Except as expressly set forth herein, all of the terms and conditions of the Warrant Confirmations shall remain in full force and effect and are hereby confirmed in all respects.
Section 8.����Acknowledgments and Agreements. Counterparty acknowledges and agrees that (i) Counterparty does not have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases of the Shares by Bank (or its agent or affiliate) in connection with this Letter Agreement and (ii) Counterparty is entering into this Letter Agreement and, if applicable, will deliver any notice hereunder in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act, and that it has not entered into or altered and will not enter into or alter any corresponding or hedging transaction or position with respect to the Shares. Counterparty and Bank each acknowledges that it is the intent of the parties that this Letter Agreement comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 under the Exchange Act and this Letter Agreement shall be interpreted to comply with the requirements of Rule 10b5-1(c) under the Exchange Act. Counterparty acknowledges and agrees that any amendment, modification or waiver of the terms set forth herein must be effected in accordance with the requirements for the amendment of a plan as defined in Rule 10b5-1(c) under the Exchange Act. For the avoidance of doubt, Counterparty agrees that Section 13.2 of the Equity Definitions remains applicable with respect to the unwinds of any Hedge Positions and Hedging Activities of Bank in respect of the Transaction subject to each Warrant Confirmation. Bank acknowledges and agrees that it will use good faith efforts to effect purchases of the Shares in connection with this Letter Agreement in a manner that Bank reasonably believes, based on the representations, warranties and agreements of Counterparty set forth herein, that if such purchases were made by Counterparty, they would meet the requirements of Rule 10b-18(b)(2), (3) and (4) under the Exchange Act, subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Banks control.
Section 9.����Unwound Warrants. Except for the deliveries pursuant to this Letter Agreement, the parties agree that no payments or deliveries shall become due or payable and no exercises shall occur, with respect to the Warrants unwound hereunder; provided, however, that until the Final Unwind Settlement Date, the unwound Warrants shall remain subject to adjustment pursuant to the terms of the Warrant Confirmations, except that the sole terms that may be adjusted with respect thereto shall be the terms Unwind Price and Number of Shares per Warrant on Exhibit A and the Number of Unwound Warrants, in each case, in respect of each Unwind Settlement Date, and any such adjustments shall be made in order to account for the economic effect of such adjustment event on the unwind contemplated by this Letter Agreement, as determined in good faith and in a commercially reasonable manner by Bank. For the avoidance of doubt, Bank may make such an adjustment to the Unwind Price , the Number of Shares per Warrant and the Number of Unwound Warrants regardless of whether the relevant adjustment event occurred prior to the start of the Unwind Period.
Section 10.����Method of Delivery. Whenever delivery of funds, Shares or other assets is required hereunder by or to Counterparty, such delivery shall be effected through DBSI. In addition, all notices, demands and communications of any kind relating to this Letter Agreement between Bank and Counterparty shall be transmitted exclusively through DBSI.
Section 11.����Governing Law. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
Section 12.����Counterparts. This Letter Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Letter Agreement to be executed as of the date first above written.
DEUTSCHE BANK AG, LONDON BRANCH | ||
By: | /s/ Michael Sanderson | |
Name: | Michael Sanderson | |
Title: | Attorney in Fact | |
By: | /s/ Lars Kestner | |
Name: | Lars Kestner | |
Title: | Attorney in Fact | |
DEUTSCHE BANK SECURITIES INC.,
acting solely as Agent in connection with this Letter Agreement
By: | /s/ Michael Sanderson | |
Name: | Michael Sanderson | |
Title: | Managing Director | |
By: | /s/ Lars Kestner | |
Name: | Lars Kestner | |
Title: | Managing Director | |
SALESFORCE.COM, INC.
By:__/s/ Mark Hawkins_________________
Authorized Signatory
Name: Mark Hawkins
Title: EVP, Chief Financial Officer
Name: Mark Hawkins
Title: EVP, Chief Financial Officer
�
Exhibit 10.3
SETTLEMENT AGREEMENT dated as of December 17, 2014 |
Between SALESFORCE.COM, INC. and BANK OF AMERICA, N.A. |
THIS SETTLEMENT AGREEMENT (this Agreement ) with respect to the Warrants Confirmations (as defined below) is made as of December 17, 2014, between salesforce.com, inc. ( Company ) and Bank of America, N.A. ( Dealer ).
WHEREAS, Dealer and Company entered into a Base Warrants Transaction (the Base Warrants Transaction ) pursuant to an ISDA confirmation dated as of January 12, 2010, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Dealer purchased from Company 2,635,807 warrants (as amended, modified, terminated or unwound from time to time, the Base Warrants Confirmation );
WHEREAS, Dealer and Company entered into an Additional Warrants Transaction (the Additional Warrants Transaction and, together with the Base Warrants Transaction, the Warrants Transactions ) pursuant to an ISDA confirmation dated as of January 15, 2010, which supplements, forms a part of, and is subject to an agreement in the form of the 2002 ISDA Master Agreement, pursuant to which Dealer purchased from Company 395,372 warrants (as amended, modified, terminated or unwound from time to time, the Additional Warrants Confirmation and, together with the Base Warrants Confirmation, the Warrants Confirmations ); and
WHEREAS, the Company has requested full settlement of the Warrants Transactions.
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1.����Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Warrants Confirmations, as applicable. In the event of any inconsistency between the definitions set forth in the Warrant Confirmations and this Agreement, this Agreement shall govern.
2.����Settlement. Notwithstanding anything to the contrary in the Warrants Confirmations, Company and Dealer agree that the Warrants Transactions shall be settled in accordance with this Agreement in lieu of the settlement provisions set forth in the Warrants Confirmations, and that following such settlement, all of the respective rights and obligations of the parties under the Warrants Confirmations shall be settled in full, subject to paragraph 4 below.
3.����Deliveries. On the third Scheduled Trading Day following the final Averaging Date or, if such day is not a Clearance System Business Day, on the next Clearance System Business Day immediately following such day (the Unwind Settlement Date ), Company shall deliver to Dealer the Warrant Settlement Amount. The Warrant Settlement Amount shall mean a number of Shares determined by the Calculation Agent by reference to the Average VWAP using the table set forth in Schedule A attached hereto (using linear interpolation or commercially reasonable extrapolation by Dealer, as applicable, to determine the Warrant Settlement Amount for any Average VWAP not specifically appearing in Schedule A).
4.����Valuation. Averaging Date means the First Averaging Date and each of the 14 Exchange Business Days thereafter. First Averaging Date means the first Scheduled Trading Day immediately following the day that Company delivers the Averaging Period Commencement Notice. The Averaging Period Commencement Notice means written notice by the Company to Dealer that the Company has received notice from Goldman, Sachs & Co. that the final averaging date under the substantially similar warrant settlement agreement entered into between Issuer and Goldman, Sachs & Co. has occurred (the Prior Unwind Notice ), which Averaging Period Commencement Notice shall be delivered by the Company prior to 4:00 P.M. (New York City time) on the first Scheduled Trading Day immediately following the day on which the Prior Unwind Notice was received; provided that such notice shall not include any other information about the nature of such postponement or its applicability to Company or otherwise communicate any material nonpublic information about Company or the Shares to Dealer. Average VWAP means the arithmetic average of the VWAP Prices for all Averaging Dates. VWAP Price for any Averaging Date means the Rule 10b-18 dollar volume weighted average price per Share for such day based on transactions executed during such day, as reported on Bloomberg page CRM AQR SEC (or any successor thereto) or, in the event such price is not so reported on such day for any reason or is manifestly incorrect, as reasonably determined by Dealer using a volume weighted method. Notwithstanding the foregoing, if any Averaging Date is a Disrupted Day, then the consequence shall be Modified Postponement as if this Agreement were a Transaction under the Equity Definitions; provided that notwithstanding anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Averaging Date, Dealer may, if appropriate in light of market conditions, regulatory considerations or otherwise, take any or all of the following actions: (i) postpone the
final Averaging Date in accordance with Modified Postponement (as modified herein) and/or (ii) determine that such Averaging Date is a Disrupted Day only in part, in which case Dealer may (x) determine the VWAP Price for such Disrupted Day based on Rule 10b-18 eligible transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event and (y) determine the Average VWAP based on an appropriately weighted average instead of the arithmetic average described in the definition of Average VWAP above. Dealer shall promptly (but in no event later than 5:00 P.M. (New York City time) on such Disrupted Day) notify Company if any Exchange Business Day scheduled to be an Averaging Date is a Disrupted Day, which notice shall specify the manner in which such scheduled Averaging Date and any other scheduled Averaging Dates will be postponed, if applicable. Any Exchange Business Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be an Exchange Business Day; if a closure of the Exchange prior to its normal close of trading on any Exchange Business Day is scheduled following the date hereof, then such Exchange Business Day shall be deemed to be a Disrupted Day in full. Section 6.3(a) of the Equity Definitions is hereby amended (A) by deleting the words during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be, in clause (ii) thereof and (B) by replacing the words or (iii) an Early Closure. therein with (iii) an Early Closure, (iv) a Regulatory Disruption or (v) a Limit Price Event. Limit Price Event shall have the meaning set forth on Schedule A to this Agreement. Section 6.6(a) of the Equity Definitions is hereby amended by replacing the word shall in the fifth line thereof with the word may, deleting and (ii) in the fifth line thereof, and by deleting clause (i) thereof, and Section 6.7(c)(iii)(A) of the Equity Definitions is hereby amended by replacing the word shall in the sixth and eighth line thereof with the word may. Notwithstanding the foregoing, if the final Averaging Date has not otherwise occurred prior to April 17, 2015, such date shall be the final Averaging Date and this Agreement shall govern the settlement of only a portion of the Warrants Transactions (the Early Settled Warrants Transactions ) representing the proportion of the number of originally scheduled Averaging Dates that have actually occurred on or prior to such final Averaging Date to the total number of originally scheduled Averaging Dates, as determined by the Calculation Agent (making appropriate adjustment for any partially Disrupted Days). In such event, (i) the Warrant Settlement Amount shall be reduced proportionally by the Calculation Agent and (ii) the Number of Warrants for each Component of the Warrants Transactions shall be proportionally reduced by the Calculation Agent (with the Calculation Agent determining any commercially reasonable rounding of the Number of Warrants for individual Components to achieve the appropriate proportional reduction in the aggregate Number of Warrants) to reflect the portion of the Warrants Transactions that are Early Settled Warrants Transactions, and the Warrants Transactions will otherwise remain in full force and effect and shall be settled in accordance with their terms. For the avoidance of doubt, if the Averaging Period Commencement Notice has not been delivered prior to the Scheduled Trading Day prior to April 17, 2015, there will be no Averaging Dates under this Agreement and all of the Warrant Transaction will remain in full force and effect and will be settled in accordance with their terms.
5.����Representations and Warranties of Company. Company represents and warrants to Dealer (and agrees with Dealer in the case of Section 5(g) and 5(k)) on the date hereof that:
(a) it has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance;
(b) such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any material contractual restriction binding on or affecting it or any of its assets;
(c) all governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
(d) its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(e) each of it and its affiliates is not in possession of any material nonpublic information regarding Company or the Shares;
(f) it is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Securities Exchange Act of 1934, as amended (the Exchange Act );
(g) neither Company nor any of its Affiliates or agents shall take any action that would cause Regulation M under the Exchange Act ( Regulation M ) to be applicable to any purchases of Shares, or any security for which the Shares are a reference security (as defined in Regulation M), by Company or any of its affiliated purchasers (as defined in Regulation M) on any Averaging Date;
(h) Company shall, at least one day prior to the first Averaging Date, notify Dealer of the total number of Shares purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Company or any of its affiliated purchasers during each of the four calendar weeks preceding the first Averaging Date and during the calendar week in which the first Averaging Date occurs ( Rule 10b-18 purchase , blocks and affiliated purchaser each being used as defined in Rule 10b-18);
(i) Company shall (i) notify Dealer prior to the opening of trading in the Shares on any Averaging Date on which Company makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the Securities Act ) of any merger, acquisition, or similar transaction involving a recapitalization relating to Company (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify Dealer following any such announcement that such announcement has been made, and (iii) promptly deliver to Dealer following the making of any such announcement a certificate indicating (A) Companys average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Companys block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction, and Company shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders; Company acknowledges that any such public announcement may result in a Regulatory Disruption; accordingly, Company acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section 12;
(j) without the prior written consent of Dealer, Company shall not, and shall cause its Affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares during the Relevant Period, and no Other Dealer Warrant Settlement Agreement shall have averaging dates that are Averaging Dates under this Agreement;
(k) the provisions of Sections 9.8, 9.9, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that Company is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable as if this Agreement were a Transaction under the Equity Definitions and Physical Settlement were applicable; and
(l) on the date hereof, and on each day during the Relevant Period, Company is not, or will not be, insolvent (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) and Company would be able to purchase a number of Shares equal to the aggregate Number of Shares under the Warrants Transactions in compliance with the corporate laws of the jurisdiction of its incorporation.
6.����Representations and Warranties of Dealer. Dealer represents and warrants to Company on the date hereof that:
(a) it has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance;
(b) such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any material contractual restriction binding on or affecting it or any of its assets;
(c) all governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and
(d) its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������
7.����Account for Delivery to Dealer:
Bank of America NA
New York, NY
SWIFT: BOFAUS3N
Bank Routing: 026-009-593
Account Name: Bank of America
Account No. : 0012334-61892
DTC #0161
�
8. ����Governing Law. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
����
9. ����Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
10.����No Reliance, etc. Company confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
11.����Designation by Dealer. The provisions of Section 8(l) of the Warrants Confirmations shall apply to the settlement contemplated hereby.
12.����Additional Acknowledgements and Agreements. Company acknowledges and agrees that Dealer may, during the period from the First Averaging Date to the final Averaging Date (the Relevant Period ), purchase Shares in connection with this Agreement. Such purchases will be conducted independently of Company. The timing of such purchases by Dealer, the number of Shares purchased by Dealer on any day, the price paid per Share pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of Dealer. It is the intent of the parties that this Agreement comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act, and the parties agree that this Agreement shall be interpreted to comply with the requirements of Rule 10b5-1(c), and Company shall not take any action that results in this Agreement not so complying with such requirements. Without limiting the generality of the preceding sentence, Company acknowledges and agrees that (A) Company does not have, and shall not attempt to exercise, any influence over how, when or whether Dealer effects any purchases of Shares in connection with this Agreement, (B) during the period beginning on (but excluding) the date hereof and ending on (and including) the last day of the Relevant Period, neither Company nor its officers or employees shall, directly or indirectly, communicate any information regarding Company or the Shares to any employee of Dealer or its Affiliates responsible for trading the Shares in connection with the transactions contemplated hereby other than the delivery of the Averaging Period Commencement Notice as provided above, (C) Company is entering into this Agreement in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b5 promulgated under the Exchange Act and (D) Company will not alter or deviate from this Agreement or enter into or alter a corresponding hedging transaction with respect to the Shares other than the entry, on or about the date hereof, into similar warrant unwind agreements with the counterparties thereto. Company also acknowledges and agrees that any amendment, modification, waiver or termination of this Agreement must be effected in accordance with the requirements for the amendment or termination of a plan as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made at any time
at which Company or any officer or director of Company is aware of any material nonpublic information regarding Company or the Shares.
13.����Agreements and Acknowledgements Regarding Hedging. Company acknowledges and agrees that:
(a) during the Relevant Period, Dealer and its Affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Warrant Confirmations and this Agreement;
(b) Dealer and its Affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Warrant Confirmations and this Agreement;
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(c) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in Companys securities shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Average VWAP and/or the VWAP Price; and
(d) any market activities of Dealer and its Affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Average VWAP and/or the VWAP Price, each in a manner that may be adverse to Company.
14.����Address for Notices to Dealer:
Any notices required to be delivered by the Company to Dealer hereunder shall be delivered to:
Bank of America, N.A.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Bank of America Tower at One Bryant Park
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Bank of America Tower at One Bryant Park
New York, NY 10036
Attn: Christopher Hutmaker, Managing Director
Telephone: 646-855-8907
Email: [email protected]
Attn: Emanuel Freemark
Telephone: 646-855-6770
Email: [email protected]
With a copy to:
Bank of America, N.A.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Bank of America Tower at One Bryant Park
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Bank of America Tower at One Bryant Park
New York, NY 10036
Attn: Peter Tucker, Assistant General Counsel
Telephone: 646-855-5821
Email: [email protected]
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
Bank of America, N.A. | |||
By: | /s/ Christopher A. Hutmaker | ||
Name: Christopher A. Hutmaker Title: Managing Director | |||
salesforce.com, inc. | |||
By: | /s/ Mark Hawkins | ||
Name: Mark Hawkins Title: EVP, Chief Financial Officer | |||
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