RightNow Technologies, Inc. PURCHASE AGREEMENT
Exhibit 10.1
$150,000,000
RightNow Technologies, Inc.
2.50% Convertible Senior Notes due November 15, 2030
November 16, 2010
Credit Suisse Securities (USA) LLC,
As Representative of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
As Representative of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. RightNow Technologies, Inc., a Delaware corporation (the “Company”), agrees
with the several initial purchasers named in Schedule A hereto (the “Purchasers”) subject to the
terms and conditions stated herein, to issue and sell to the several Purchasers U.S.$150,000,000
principal amount of its 2.50% Convertible Senior Notes due November 15, 2030 (the “Firm
Securities”) and also proposes to grant to the Purchasers an option, exercisable from time to time
by Credit Suisse Securities (USA) LLC (“Credit Suisse”) to purchase an aggregate of up to an
additional U.S.$25,000,000 principal amount (“Optional Securities”) of its 2.50%
Convertible Senior Notes due November 15, 2030, each to be issued under an indenture, to be dated
as of November 22, 2010 (the “Indenture”), between the Company and The Bank of New York Mellon
Trust Company, N.A., as Trustee. The Firm Securities and the Optional Securities which the
Purchasers may elect to purchase pursuant to Section 3 hereof are herein collectively called the
“Offered Securities”.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with, the several Purchasers that:
(a) Offering Circulars; Certain Defined Terms. The Company has prepared or will prepare a
Preliminary Offering Circular and a Final Offering Circular.
For purposes of this Agreement:
“Applicable Time” means 10:00 P.M. (New York time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the United States Securities Exchange Act of 1934.
“Final Offering Circular” means the final offering circular relating to the Offered
Securities to be offered by the Purchasers that discloses the offering price and other final terms
of the Offered Securities and is dated as of the date of this Agreement (even if finalized and
issued subsequent to the date of this
-1-
Agreement). References to the Final Offering Circular shall be deemed to include all
documents and other information incorporated by reference therein.
“Free Writing Communication” means a written communication (as such term is defined in
Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered
Securities and is made by means other than the Preliminary Offering Circular or the Final Offering
Circular.
“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer
Free Writing Communication existing at the Applicable Time and the information in which is intended
for general distribution to prospective investors, as evidenced by its being specified in Schedule
B hereto.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on
behalf of the Company, used or referred to by the Company or containing a description of the final
terms of the Offered Securities or of their offering, in the form retained in the Company’s
records.
“Preliminary Offering Circular” means the preliminary offering circular, dated November 15,
2010, relating to the Offered Securities to be offered by the Purchasers. References to the
Preliminary Offering Circular shall be deemed to include all documents and other information
incorporated by reference therein.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Act” means the United States Securities Act of 1933.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”), the
Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx)
promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the
rules of the New York Stock Exchange and the NASDAQ Stock Market (“Exchange Rules”).
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B hereto. Supplemental Marketing Materials
include, but are not limited to, any Issuer Free Writing Communication listed on Schedule C hereto.
“Underlying Shares” shall mean the shares of the Company’s common stock, par value $0.001 per
share (the “Common Stock”), into which the Offered Securities are convertible.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Securities Act.
(b) Disclosure. As of the date of this Agreement, the Final Offering Circular does not, and
as of each Closing Date, the Final Offering Circular will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. At the Applicable
Time neither (i) the General Disclosure Package, nor (ii) any individual Supplemental Marketing
Material, when considered together with the General Disclosure Package, included any untrue
statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding two sentences do not apply to statements in or omissions from the Preliminary or
Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material
based upon written information furnished to the Company by any Purchaser through Credit Suisse
specifically for use therein, it being understood and agreed that the only such information is that
described as such in Section 8(b) hereof. Except as disclosed in the General Disclosure Package, on
the date of this Agreement, the Company’s Registration Statement on Form 8-A filed on July 27,
2004, the Company’s Annual Report on Form 10-K most recently filed with the Commission (the “Form
10-K”) and all reports subsequent to the end of the reporting period covered by
-2-
such Form 10-K (collectively, the “Exchange Act Reports”) which have been filed (but not
furnished) by the Company with the Commission or sent to stockholders pursuant to the Exchange Act
do not include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading. Such documents, when they were filed with the Commission or became effective, as the
case may be, conformed in all material respects to the requirements of the Exchange Act and the
Rules and Regulations.
(c) Good Standing of the Company. The Company has been duly incorporated and is existing and
in good standing under the laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in the General Disclosure
Package; and the Company is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify would not,
individually or in the aggregate, result in a material adverse effect on the condition (financial
or otherwise), results of operations, business or properties of the Company and its subsidiaries
taken as a whole (“Material Adverse Effect”).
(d) Subsidiaries. Each subsidiary of the Company has been duly incorporated or organized and
is existing and in good standing under the laws of the jurisdiction of its incorporation or
organization (to the extent the concept of good standing is recognized in such jurisdiction), with
power and authority (corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such qualification, except
where the failure to so qualify would not, individually or in the aggregate, result in a Material
Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) Indenture. The Indenture has been duly authorized; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for pursuant to this Agreement
on each Closing Date, the Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and delivered, will conform to the
information in the General Disclosure Package and will conform to the description of such Offered
Securities contained in the Final Offering Circular and the Indenture and such Offered Securities
will constitute valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights and
to general equity principles, and entitled to the benefits provided by the Indenture.
(f) Offered Securities. When the Offered Securities are delivered and paid for pursuant to
this Agreement on each Closing Date, such Offered Securities will be convertible into the
Underlying Shares in accordance with the terms of the Indenture; the Underlying Shares initially
issuable upon conversion of such Offered Securities have been duly authorized and reserved for
issuance upon such conversion, will conform to the information in the General Disclosure
Package and will conform to the description of such Underlying Shares contained in the
Final Offering Circular; the authorized equity capitalization of the Company is as set forth in the
General Disclosure Package; all outstanding shares of capital stock of the Company are, and when
issued upon conversion the Underlying Shares will be, validly issued, fully paid and nonassessable;
the stockholders of the Company have no preemptive rights with respect to the Offered Securities or
the Underlying Shares, and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder. Except as
disclosed in the General Disclosure Package, there are no outstanding (i) securities or obligations
of the Company convertible into or exchangeable for any capital stock of the Company, (ii)
warrants, rights or options to subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations or (iii) obligations of the Company
to issue or
-3-
sell any shares of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(g) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any person that would give rise to
a valid claim against the Company or any Purchaser for a brokerage commission, finder’s fee or
other like payment in connection with any transaction related to the Offered Securities or the
Underlying Shares.
(h) Absence of Further Requirements. No consent, approval, authorization, or order of, or
filing or registration with, any person (including any governmental agency or body or any court) is
required for the consummation of the transactions contemplated by this Agreement and the Indenture
in connection with the offering, issuance and sale of the Offered Securities and Underlying Shares
by the Company.
(i) Title to Real and Personal Property. Except as disclosed in the General Disclosure
Package, the Company and its subsidiaries have good and marketable title to all real and personal
properties and assets owned by them, in each case free from liens, charges, encumbrances and
defects that would materially affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the General Disclosure Package, the Company
and its subsidiaries hold any leased real or personal property under valid and enforceable leases
with no terms or provisions that would materially interfere with the use made or to be made thereof
by them.
(j) Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and
performance of the Indenture and this Agreement, and the issuance and sale of the Offered
Securities and Underlying Shares and compliance with the terms and provisions hereof and of the
Indenture and the Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below)
under, or result in the imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its subsidiaries, (ii) any statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound
or to which any of the properties of the Company or any of its subsidiaries is subject, except, in
the case of clauses (ii) and (iii) above, for any such breach, violation or default that would not,
individually or in the aggregate, result in a Material Adverse Effect; a “Debt Repayment Triggering
Event” means any event or condition that gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(k) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws or in default (or with the giving
of notice or lapse of time would be in default) under any existing obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that would not, individually or in the
aggregate, result in a Material Adverse Effect.
(l) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(m) Possession of Licenses and Permits. The Company and its subsidiaries possess, and are in
compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and
permits (“Licenses”) necessary or material to the conduct of the business now conducted or proposed
in the General Disclosure Package to be conducted by them and have not received any notice of
proceedings
-4-
relating to the revocation or modification of any Licenses that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(n) Absence of Labor Dispute. No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is imminent that could have a Material
Adverse Effect.
(o) Possession of Intellectual Property. The Company and its subsidiaries own, possess or can
acquire on reasonable terms sufficient trademarks, trade names, patent rights, copyrights, domain
names, licenses, approvals, trade secrets, inventions, technology, know-how and other intellectual
property and similar rights, including registrations and applications for registration thereof
(collectively, “Intellectual Property Rights”) necessary or material to the conduct of the business
now conducted or proposed in the General Disclosure Package to be conducted by them, and the
expected expiration of any such Intellectual Property Rights would not, individually or in the
aggregate, have a Material Adverse Effect. Except as disclosed in the General Disclosure Package
(i) there are no rights of third parties to any of the Intellectual Property Rights owned by the
Company or its subsidiaries; (ii) there is no infringement, misappropriation, breach, default or
other violation, or the occurrence of any event that with notice or the passage of time would
constitute any of the foregoing, by the Company, its subsidiaries or, to the Company’s knowledge,
third parties of any of the Intellectual Property Rights of the Company or its subsidiaries;
(iii) there is no pending or threatened action, suit, proceeding or claim by others challenging the
Company’s or any subsidiary’s rights in or to, or the violation of any of the terms of, any of
their Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity, enforceability or scope of any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (v) there is no pending or threatened action, suit, proceeding or claim
by others that the Company or any subsidiary infringes, misappropriates or otherwise violates or
conflicts with any Intellectual Property Rights or other proprietary rights of others and the
Company is unaware of any other fact which would form a reasonable basis for any such claim; and
(vi) none of the Intellectual Property Rights used by the Company or its subsidiaries in their
businesses has been obtained or is being used by the Company or its subsidiaries in violation of
any contractual obligation binding on the Company or any of its subsidiaries or otherwise in
violation of the rights of any persons, except in each case covered by clauses (i) – (vi) such as
would not, if determined adversely to the Company or any of its subsidiaries, individually or in
the aggregate, have a Material Adverse Effect.
(p) Environmental Laws. Except as disclosed in the General Disclosure Package, (a)(i) neither
the Company nor any of its subsidiaries is in violation of, or has any liability under, any
federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other
requirement or rule of law (including common law), or decision or order of any domestic or foreign
governmental agency, governmental body or court, relating to pollution, to the use, handling,
transportation, treatment, storage, discharge, disposal or release of Hazardous Substances, to the
protection or restoration of the environment or natural resources (including biota), to health and
safety including as such relates to exposure to Hazardous Substances, and to natural resource
damages (collectively, “Environmental Laws”), (ii) neither the Company nor any of its subsidiaries
owns, occupies, operates or uses any real property contaminated with Hazardous Substances,
(iii) neither the Company nor any of its subsidiaries is conducting or funding any investigation,
remediation, remedial action or monitoring of actual or suspected Hazardous Substances in the
environment, (iv) neither the Company nor any of its subsidiaries is liable or allegedly liable for
any release or threatened release of Hazardous Substances, including at any off-site treatment,
storage or disposal site, (v) neither the Company nor any of its subsidiaries is subject to any
claim by any governmental agency or governmental body or person relating to Environmental Laws or
Hazardous Substances, and (vi) the Company and its subsidiaries have received and are in compliance
with all, and have no liability under any, permits, licenses, authorizations, identification
numbers or other approvals required under applicable Environmental Laws to conduct their respective
businesses, except in each case covered by clauses (i) – (vi) such as would not individually or in
the aggregate have a Material Adverse Effect; (b) to the knowledge of the Company there are no
facts or circumstances that would reasonably be
-5-
expected to result in a violation of, liability under, or claim pursuant to any Environmental
Law that would have a Material Adverse Effect; and (c) to the knowledge of the Company there are no
requirements proposed for adoption or implementation under any Environmental Law that would
reasonably be expected to have a Material Adverse Effect. For purposes of this subsection
“Hazardous Substances” means (A) petroleum and petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and mold,
and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as
a pollutant, contaminant or waste under Environmental Laws.
(q) Accurate Disclosure. The statements in the General Disclosure Package and the Final
Offering Circular under the headings “Certain U.S. Federal Income Tax Considerations”, “Description
of the Notes”, “Description of Capital Stock”, “Risk Factors – Risks Related to our Business – If
we are unable to protect our intellectual property rights, our competitive position could be harmed
or we could be required to incur significant expenses to enforce our rights” and “Risk Factors –
Risks Related to our Business – Our product development efforts may be constrained by the
intellectual property of others, and we may become subject to claims of intellectual property
infringement, which could be costly and time-consuming”, insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or proceedings. The statements under the
heading “Business – Intellectual Property” contained in the Form 10-K and incorporated by reference
in the Preliminary Offering Circular and the Final Offering Circular, insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, were when made,
and are in all material respects, accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(r) Absence of Manipulation. Neither the Company nor any of its affiliates has, either alone
or with one or more other persons, bid for or purchased for any account in which it or any of its
affiliates had a beneficial interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities.
(s) Statistical and Market-Related Data. Any third-party statistical and market-related data
included in the Preliminary Offering Circular, the Final Offering Circular, or any Issuer Free
Writing Communication are based on or derived from sources that the Company believes to be reliable
and accurate.
(t) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth in the
General Disclosure Package, the Company, its subsidiaries and the Company’s Board of Directors (the
“Board”) are in compliance in all material respects with Xxxxxxxx-Xxxxx and all applicable Exchange
Rules. The Company maintains a system of internal controls, including, but not limited to,
disclosure controls and procedures, internal controls over accounting matters and financial
reporting, an internal audit function, and legal and regulatory compliance controls (collectively,
“Internal Controls”), that comply in all material respects with the Securities Laws and are
sufficient to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting
Principles and to maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Internal Controls are overseen by the Audit Committee
(the “Audit Committee”) of the Board in accordance with Exchange Rules. The Company has not
publicly disclosed or reported to the Audit Committee or the Board, and within the next 90
days the Company does not reasonably expect to publicly disclose or report to the Audit
Committee or the Board, a significant deficiency (except any that has been remediated), material
weakness or fraud involving management or other employees who have a significant role in Internal
Controls, any violation of, or failure to comply with, the Securities Laws, or any matter which, if
determined adversely, would have a Material Adverse Effect. Since the end of the Company’s last
completed fiscal year, there has been no change in its Internal Controls that has materially
affected, or is reasonably likely to materially affect,
-6-
its Internal Controls, and the Company has not implemented and does not reasonably expect to
implement any such change in its current fiscal quarter.
(u) Conduct of Business. The operations of the Company and its subsidiaries are and have been
conducted at all times in material compliance with all applicable financial recordkeeping and
reporting requirements, including, to the extent applicable to the Company, those of the Bank
Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and
the applicable anti-money laundering statutes of jurisdictions where the Company and its
subsidiaries conduct their respective businesses, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(v) Litigation. Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings (including any inquiries or investigations by any court or
governmental agency or body, domestic or foreign) against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform its obligations under
the Indenture or this Agreement, or which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or foreign) are threatened or,
to the Company’s knowledge, contemplated.
(w) Financial Statements. The financial statements included in the General Disclosure Package
present fairly the financial position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the General Disclosure Package provide a
reasonable basis for presenting the significant effects directly attributable to the transactions
or events described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts. The summary and selected financial
and statistical data included in the General Disclosure Package present fairly the information
shown therein and such data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company. The Company does not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet obligations or
any “variable interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the General Disclosure Package. There are no financial
statements that are required to be included in the Exchange Act Reports that are not included as
required.
(x) No Material Adverse Change in Business. Except as disclosed in the General Disclosure
Package, since the end of the period covered by the latest audited financial statements included in
the General Disclosure Package (i) there has been no change, nor any development or event involving
a prospective change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company and its subsidiaries, taken as a whole, that is material and
adverse; (ii) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock; (iii) there has been no material adverse
change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or
net assets of the Company and its subsidiaries; (iv) there has not been any material transaction
entered into or any material transaction that is probable of being entered into by the Company,
other than transactions in the ordinary course of business; and (v) there has not been any
obligation, direct or contingent, which is material to the Company taken as a whole, incurred by
the Company, except obligations incurred in the ordinary course of business.
-7-
(y) Investment Company Act. The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940 (the “Investment Company Act”); and
the Company is not and, after giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the General Disclosure Package, will not be
an “investment company” as defined in the Investment Company Act.
(z) Ratings. No “nationally recognized statistical rating organization” as such term is
defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating
assigned to the Company or any securities of the Company or (ii) has indicated to the Company that
it is considering any of the actions described in Section 7(b)(ii) hereof.
(aa) Class of Securities Not Listed. No securities of the same class (within the meaning of
Rule 144A(d)(3)) as the Offered Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system.
(bb) Rule 144A. The Offered Securities satisfy the requirements set forth in Rule 144A(d)(3).
(cc) No Registration. The offer and sale of the Offered Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements of the Securities Act by reason
of Section 4(2) thereof; and it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
(dd) No General Solicitation; No Directed Selling Efforts. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold the Offered Securities or any security of the same class
or series as the Offered Securities or (ii) has offered or will offer or sell the Offered
Securities by means of any form of general solicitation or general advertising within the meaning
of Rule 502(c). The Company has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for this Agreement.
(ee) Reporting Status. The Company is subject to Section 13 or 15(d) of the Exchange Act.
The Common Stock constitutes “actively traded securities,” as defined in Section 101(c)(1) of
Regulation M promulgated under the Exchange Act, and the Company satisfies the requirements
applicable to an issuer under paragraph (a)(1) and (a)(2) of Rule 139 promulgated under the
Securities Act.
(ff) Trading Plans. As of the date hereof, none of the executive officers or directors of the
Company, or any entities or other persons affiliated or associated with any executive officer or
director of the Company, has in place a written trading plan for trading the Company’s securities
pursuant to Rule 10b5-1 promulgated under the Exchange Act, other than Xxxxx X. Xxxxxx and The
Xxxxxxxxx Family Charitable Trust. True and correct copies of the written trading plans of Xxxxx
X. Xxxxxx and The Xxxxxxxxx Family Charitable Trust have been provided to the Representative.
(gg) Executive Officers and Directors. Each of the executive officers and directors of the
Company are listed on Schedule D hereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.25% of the principal amount
thereof plus accrued interest from November 22, 2010 to the First Closing Date (as hereinafter
defined), the respective principal amounts of Firm Securities set forth opposite the names of the
several Purchasers in Schedule A hereto.
-8-
The Company will deliver against payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder in the form of one or more permanent global securities (the
“Global Securities”) in definitive form without interest coupons deposited with the Trustee as
custodian for The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as
nominee for DTC. Interests in the Global Securities will be held only in book-entry form through
DTC except in the limited circumstances described in the Final Offering Circular.
Payment for the Firm Securities shall be made by the Purchasers in Federal (same day) funds by
wire transfer to an account at a bank acceptable to Credit Suisse drawn to the order of the Company
at the office of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation (“WSGR”), 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 A.M. (New York time), on November 22, 2010, or at such
other time not later than seven full business days thereafter as the Representative and the Company
determine, such time being herein referred to as the “First Closing Date”, against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the Firm Securities. The
Global Securities representing all of the Firm Securities will be made available for checking at
the above office of WSGR at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representative given to the Company from time to
time not more than 13 days subsequent to the date of this Agreement, the Purchasers may purchase
all or less than all of the Optional Securities at the purchase price per principal amount of
Offered Securities (including any accrued interest thereon to the related Optional Closing Date) to
be paid for the Firm Securities. The Company agrees to sell to the Purchasers the principal amount
of Optional Securities specified in such notice and the Purchasers agree, severally and not
jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased from the
Company for the account of each Purchaser in the same proportion as the principal amount of Firm
Securities set forth opposite such Purchaser’s name in Schedule A hereto bears to the total
principal amount of Firm Securities (subject to adjustment by Credit Suisse to eliminate
fractions). No Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice by Credit Suisse to
the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as the “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representative on behalf of the several Purchasers but shall not be later than
seven full business days after written notice of election to purchase Optional Securities is given.
Payment for the Optional Securities being purchased on each Optional Closing Date shall be made by
each Purchaser in Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse drawn to the order of the Company at the office of WSGR, at 10:00 A.M. (New York
time) (or such other time as agreed to by the Representative and the Company) on such Optional
Closing Date, against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Optional Securities being purchased on such Optional Closing Date. The
Global Securities representing all of the Optional Securities to be purchased at each Optional
Closing Date will be made available for checking at the above office of WSGR at least 24 hours
prior to such Optional Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser, severally and not jointly, represents and warrants to the Company that it
is an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser, severally and not jointly, acknowledges that the Offered Securities have
not been registered under the Securities Act and may not be offered or sold within the United
States except pursuant to an exemption from the registration requirements of the Securities Act.
-9-
Each Purchaser, severally and not jointly, represents and agrees that it has offered and sold
the Offered Securities, and will offer and sell the Offered Securities, only in accordance with
Rule 144A.
(c) Each Purchaser, severally and not jointly, agrees that it and each of its affiliates has
not entered and will not enter into any contractual arrangement with respect to the distribution of
the Offered Securities except for any such arrangements with the other Purchasers or affiliates of
the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser, severally and not jointly, agrees that it and each of its affiliates will
not offer or sell the Offered Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c), including, but not limited
to (i) any advertisement, article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general advertising. Each
Purchaser, severally and not jointly, agrees, with respect to resales made in reliance on Rule 144A
of any of the Offered Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the several Purchasers that:
(a) Amendments and Supplements to Offering Circulars. The Company will promptly advise the
Representative of any proposal to amend or supplement the Preliminary or Final Offering Circular
and will not effect such amendment or supplementation without the Representative’s consent. If, at
any time prior to the completion of the resale of the Offered Securities by the Purchasers, there
occurs an event or development as a result of which any document included in the Preliminary or
Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if
republished immediately following such event or development, included or would include an untrue
statement of a material fact or omitted or would omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any such time to amend or supplement the Preliminary or Final
Offering Circular, the General Disclosure Package or any Supplemental Marketing Material to comply
with any applicable law, the Company promptly will notify the Representative of such event and
promptly will prepare and furnish, at its own expense, to the Purchasers and the dealers and to any
other dealers at the request of the Representative, an amendment or supplement which will correct
such statement or omission or effect such compliance. Neither the Representative’s consent to, nor
the Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(b) Furnishing of Offering Circulars. The Company will furnish to the Representative copies
of the Preliminary Offering Circular, each other document comprising a part of the General
Disclosure Package, the Final Offering Circular, all amendments and supplements to such documents
and each item of Supplemental Marketing Material, in each case as soon as available and in such
quantities as the Representative requests. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished
to the Representative (and, upon request, to each of the other Purchasers) and, upon request of
holders and prospective purchasers of the Offered Securities, to such holders and purchasers,
copies of the information required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and distributing to the Purchasers all
such documents.
(c) Blue Sky Qualifications. The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment under the
laws of such
-10-
jurisdictions in the United States and Canada as the Representative designates and will
continue such qualifications in effect so long as required for the resale of the Offered Securities
by the Purchasers, provided that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such state.
(d) Reporting Requirements. Until the first date upon which none of the Offered Securities
remain outstanding, the Company will furnish to the Representative and, upon request, to each of
the other Purchasers, as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will furnish to the Representative
and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders, and (ii) from time to time, such other information concerning the
Company as the Representative may reasonably request. However, so long as the Company is subject
to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval
system (“XXXXX”), it is not required to furnish such reports or statements to the Purchasers.
(e) Transfer Restrictions. During the period of one year after the later of the First Closing
Date and the last Optional Closing Date, the Company will, upon request, furnish to the
Representative, each of the other Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) No Resales by Affiliates. The Company will not, and will not permit any of its affiliates
(as defined in Rule 144) to, resell any of the Offered Securities that have been reacquired or
acquired, as the case may be, by any of them unless such resale is pursuant to an effective
registration statement or, in the case of affiliates, pursuant to a transaction that complies with
all of the applicable conditions of Rule 144 such that, as a result of such transaction, the
purchaser will receive Offered Securities that are no longer restricted securities (as defined in
Rule 144).
(g) Investment Company. During the period of two years after the later of the First Closing
Date and the last Optional Closing Date, the Company will not be or become, an open-end investment
company, unit investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(h) Payment of Expenses. The Company will pay all expenses incidental to the performance of
its obligations under this Agreement and the Indenture, including but not limited to (i) the fees
and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the Offered Securities, the
preparation and printing of this Agreement, the Offered Securities, the Indenture, the Preliminary
Offering Circular, any other documents comprising any part of the General Disclosure Package, the
Final Offering Circular, all amendments and supplements thereto, each item of Supplemental
Marketing Material and any other document relating to the issuance, offer, sale and delivery of the
Offered Securities; (iii) the cost of making the Offered Securities eligible for the DTC book entry
system and any expenses incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) any expenses (including fees
and disbursements of counsel to the Purchasers) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as
the Representative designates and the preparation and printing of memoranda relating thereto; (vi)
any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii)
expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising
any part of the General Disclosure Package, the Final Offering Circular (including any amendments
and supplements thereto) and any Supplemental Marketing Material to the Purchasers. The Company
will also pay or reimburse the Purchasers (to the extent incurred by them) for costs and expenses
of the Purchasers and the Company’s officers and employees relating to investor presentations on
any “road show” in connection with the offering and sale of the Offered Securities including,
without limitation, any travel expenses of the Company’s officers and employees and any other
expenses of the Company including the
-11-
chartering of airplanes. It is understood, however, that except as otherwise provided in this
Agreement, the Purchasers will pay all of their own costs and expenses, including fees and
disbursements of their counsel.
(i) Use of Proceeds. The Company will use the net proceeds received in connection with this
offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package
and, except as disclosed in the General Disclosure Package, the Company does not intend to use any
of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt
owed to any affiliate of any Purchaser.
(j) Absence of Manipulation. In connection with the offering, until Credit Suisse shall have
notified the Company and the other Purchasers of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates will, either alone or with one or more
other persons, bid for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the price of, the Offered
Securities.
(k) Restriction on Sale of Securities. For a period of 90 days after the date hereof, the
Company will not, directly or indirectly, take any of the following actions with respect to any
Offered Securities or Underlying Shares, or any securities convertible into or exchangeable or
exercisable for any Offered Securities or Underlying Shares (“Lock-Up Securities”): (i) offer,
sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell,
issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase
Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in
whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or
increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up
Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a
registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose
the intention to take any such action, without the prior written consent of Credit Suisse, except
in all cases (a) issuances of Lock-Up Securities to be sold hereunder, (b) issuances of Lock-Up
Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the
exercise of warrants or options, in each case outstanding on the date hereof and described in the
General Disclosure Package, and (c) grants of stock options, stock awards or restricted stock
units, or issuances of shares of Common Stock, pursuant to the terms of a stock incentive plan or
employee stock purchase plan in effect on the date hereof and described in the General Disclosure
Package (provided, that such securities, other than shares of our common stock issued pursuant to
our employee stock purchase plan, do not vest or are otherwise non-transferable during the 90-day
period referred to above), or issuances of shares of Common Stock pursuant to the exercise of such
options granted during the 90-day period referred to above (provided, that such shares of Common
Stock are non-transferable during such 90-day period). The Company will not at any time directly or
indirectly, take any action referred to in clauses (i) through (v) above with respect to any
securities under circumstances where such offer, sale, pledge, contract or disposition would cause
the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer
and sale of the Offered Securities.
(l) Underlying Shares. The Company will reserve and keep available at all times, free from
preemptive or similar rights, out of its authorized but unissued shares of Common Stock, for the
purpose of effecting the conversion of the Offered Securities into the Underlying Shares, the full
number of Underlying Shares issuable upon conversion of all outstanding Offered Securities.
(m) NASDAQ. The Company will use its reasonable best efforts to maintain the listing of the
Common Stock on The NASDAQ Stock Market.
6. Free Writing Communications.
(a) Issuer Free Writing Communications. The Company represents and agrees that,
unless it obtains the prior consent of Credit Suisse, and each Purchaser represents and agrees
that, unless it
-12-
obtains the prior consent of the Company and Credit Suisse, it has not made and will not make
any offer relating to the Offered Securities that would constitute an Issuer Free Writing
Communication other than those Issuer Free Writing Communications listed on Schedule B and Schedule
C hereto.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that (i) contains only (A) information describing the preliminary terms of the
Offered Securities or their offering or (B) information that describes the final terms of the
Offered Securities or their offering and that is included in or is subsequently included in the
Final Offering Circular or (ii) does not contain any material information about the Company or its
securities that was provided by or on behalf of the Company, it being understood and agreed that
the Company shall not be responsible to any Purchaser for liability arising from any inaccuracy in
such Free Writing Communications referred to in clause (i) or (ii) as compared with the information
in the Preliminary Offering Circular or the Final Offering Circular or the General Disclosure
Package.
7. Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers
to purchase and pay for the Firm Securities on the First Closing Date and for the Optional
Securities on each Optional Closing Date will be subject to the accuracy of the representations and
warranties of the Company herein (as though made on the Closing Date), to the accuracy of the
statements of officers of the Company made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Purchasers shall have received letters, dated,
respectively, the date hereof and the Closing Date, of KPMG LLP confirming that they are an
independent registered public accounting firm within the meaning of the Securities Laws and
substantially in the form of Schedule E hereto (except that, in any letter dated a Closing Date,
the specified date referred to in Schedule E hereto shall be a date no more than three days prior
to such Closing Date).
(b) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event involving a prospective
change, in the condition (financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole which, in the judgment of
the Representative, is material and adverse and makes it impractical or inadvisable to market the
Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of
the Company by any “nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g)), or any public announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls the effect of which is such as to make it, in the
judgment of the Representative, impractical to market or to enforce contracts for the sale of the
Offered Securities, whether in the primary market or in respect of dealings in the secondary
market; (iv) any suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v)
any suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York
authorities; (vii) any major disruption of settlements of securities, payment, or clearance
services in the United States or any other country where securities of the Company are listed; or
(viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the
United States, any declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency is such as to make it in the judgment of the
Representative impractical or inadvisable to market the Offered Securities or to enforce contracts
for the sale of the Offered Securities.
(c) Opinion of Counsel for Company. The Purchasers shall have received an opinion, dated such
Closing Date, of (i) Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, in the
-13-
form of Exhibit A hereto, (b) Xxxxxx & Whitney (Europe) LLP, outside counsel for the Company,
in form and substance reasonably satisfactory to the Representative, and (iii) Xxxx X. Xxxxxxx,
General Counsel for the Company, in the form of Exhibit B hereto.
(d) Opinion of Counsel for Purchasers. The Purchasers shall have received from WSGR, counsel
for the Purchasers, such opinion or opinions, dated such Closing Date, with respect to such matters
as the Representative may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(e) Officers’ Certificate. The Purchasers shall have received a certificate, dated such
Closing Date, of an executive officer of the Company and a principal financial or accounting
officer of the Company in which such officers shall state that the representations and warranties
of the Company in this Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date, and that, subsequent to the date of the most recent financial
statements in the General Disclosure Package there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the condition (financial
or otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described
in such certificate.
(f) Lockup Letters. On or prior to the date hereof, the Purchasers shall have received lockup
letters (i) from each of the executive officers and directors of the Company, other than Xxxx X.
Xxxxxxxxx, in the form of Exhibit C hereto, and (ii) from Xxxx X. Xxxxxxxxx, Xxxxx Xxxxxxxxx and
from The Xxxxxxxxx Family Charitable Trust, in the form of Exhibit D hereto.
The Company will furnish the Purchasers with such conformed copies of such opinions,
certificates, letters and documents as the Purchasers reasonably request. Credit Suisse may in its
sole discretion waive on behalf of the Purchasers compliance with any conditions to the obligations
of the Purchasers hereunder, whether in respect of an Optional Closing Date or otherwise.
8. Indemnification and Contribution.
(a) Indemnification of Purchasers. The Company will indemnify and hold harmless each
Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and
each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses,
claims, damages or liabilities, joint or several, to which such Indemnified Party may become
subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in
each case as amended or supplemented, or any Issuer Free Writing Communication, or arise out of or
are based upon the omission or alleged omission of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating, preparing or defending against any loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Indemnified Party is a party thereto) whether threatened or commenced and in connection
with the enforcement of this provision with respect to any of the above as such expenses are
incurred; provided, however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the Company by any Purchaser
through Credit Suisse specifically for use therein, it being understood and agreed that the only
such information consists of the information described as such in subsection (b) below.
-14-
(b) Indemnification of Company. Each Purchaser will severally and not jointly indemnify and
hold harmless the Company, each of its directors and each of its officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (each, a “Purchaser Indemnified Party”), against any losses, claims, damages or
liabilities to which such Purchaser Indemnified Party may become subject, under the Securities Act,
the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in the
Preliminary Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication or arise out of or are based upon
the omission or the alleged omission of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through Credit Suisse specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by such Purchaser Indemnified Party
in connection with investigating, preparing or defending against any such loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Purchaser Indemnified Party is a party thereto) whether threatened or commenced based upon any such
untrue statement or omission, or any such alleged untrue statement or omission as such expenses are
incurred, it being understood and agreed that the only such information furnished by any Purchaser
consists of the following information in the Preliminary and Final Offering Circular furnished on
behalf of each Purchaser: under the caption “Plan of Distribution”, paragraphs 3, 10 and 11 and the
second sentence of paragraph 9; provided, however, that the Purchasers shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon the Company’s failure to
perform its obligations under Section 5(a) of this Agreement.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Purchasers on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
-15-
benefits referred to in clause (i) above but also the relative fault of the Company on the one
hand and the Purchasers on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts and commissions
received by the Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were resold exceeds the
amount of any damages which such Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The Purchasers’ obligations in
this subsection (d) to contribute are several in proportion to their respective purchase
obligations and not joint. The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation
(even if the Purchasers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
8(d).
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing Date
and the aggregate principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities that the Purchasers are obligated to purchase on such Closing Date, Credit
Suisse may make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Purchasers, but if no such arrangements are made
by such Closing Date, the non-defaulting Purchasers shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Offered Securities that such defaulting
Purchasers agreed but failed to purchase on such Closing Date. If any Purchaser or Purchasers so
default and the aggregate principal amount of Offered Securities with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Offered Securities that the
Purchasers are obligated to purchase on such Closing Date and arrangements satisfactory to Credit
Suisse and the Company for the purchase of such Offered Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Purchaser or the Company, except as provided in Section 10 (provided that if
such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement shall not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Purchaser” includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Purchasers set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of any Purchaser, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Offered Securities by the Purchasers is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Purchasers pursuant to Section 8 shall remain in
effect and if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any reason other than
-16-
solely because of the termination of this Agreement pursuant to Section 9, the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers, c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at RightNow
Technologies, Inc., RightNow Technologies, Inc., 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxxxxx; provided, however, that any notice to a Purchaser pursuant to Section 8
will be mailed, delivered or telegraphed and confirmed to such Purchaser.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.
13. Representation of Purchasers. You will act for the several Purchasers in connection with
this purchase, and any action under this Agreement taken by you will be binding upon all the
Purchasers.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representative has been retained solely to act as an initial
purchaser in connection with the initial purchase, offering and resale of the Offered Securities
and that no fiduciary, advisory or agency relationship between the Company and the Representative
has been created in respect of any of the transactions contemplated by this Agreement or the
Preliminary or Final Offering Circular, irrespective of whether the Representative has advised or
is advising the Company on other matters;
(b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms-length negotiations with
the Representative and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representative
and its affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Representative has no obligation to disclose such
interests and transactions to Company by virtue of any fiduciary, advisory or agency relationship;
and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may
have against the Representative for breach of fiduciary duty or alleged breach of fiduciary duty
and agrees that the Representative shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, employees or creditors of the
Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
-17-
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
[Signature page follows]
-18-
If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Purchasers in accordance with its terms.
| Very truly yours, RightNow Technologies, Inc. |
||||
| By | /s/ XXXX XXXXXXXXX | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | CEO | |||
| The foregoing Purchase Agreement is hereby confirmed and accepted as of the date first above written. Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ XXXXXX XXXXXXX | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director |
|||
|
Acting on behalf of itself and as the Representative of the several Purchasers |
||||
-19-
