Delaware | 001-32224 | 94-3320693 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (I. R. S. Employer Identification No.) |
¨ | 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)) |
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 |
Dated: | December 19, 2014 | salesforce.com, inc. | |
/s/ Mark J. Hawkins | |||
Mark J. Hawkins, Chief Financial Officer |
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 |
To: | salesforce.com, inc. |
Attention: | General Counsel |
From: | Goldman, Sachs & Co. |
Re: | Amendment of the Issuer Warrant Transactions between Goldman, Sachs & Co. and salesforce.com, inc. (this “Amendment”) |
“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 |
“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.” |
“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. |
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.” |
“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 |
Table Amount Limit: | As set forth on Annex B hereto.” |
“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 |
Table Amount Limit: | As set forth on Annex B hereto.” |
“Settlement Date: | For all Components, one Settlement Cycle following the final Expiration Date for the Transaction.” |
“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 <Equity> AQR SEC” (or any successor thereto) or, in the event such price is not so reported on such Valuation for any reason or is manifestly incorrect, as reasonably determined by the Calculation Agent (as defined in the Confirmations) using a volume weighted method.” |
By: | /s/ Daniela A. Rouse__________ |
By: | /s/ Mark Hawkins_________ |
(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 |
(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, michael.voris@gs.com; Bryan Goldstein, (212) 855-9696, Bryan.Goldstein@gs.com; and eq-derivs-notifications@ny.email.gs.com) 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. |
(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 |
(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). |
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 |
By: | /s/ Michael Sanderson | |
Name: | Michael Sanderson | |
Title: | Managing Director | |
By: | /s/ Lars Kestner | |
Name: | Lars Kestner | |
Title: | Managing Director |
SETTLEMENT AGREEMENT dated as of December 17, 2014 |
Between SALESFORCE.COM, INC. and BANK OF AMERICA, N.A. |
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 |