UNITED 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
Date of Report (Date of Earliest Event Reported): November 20, 2012
Kenexa Corporation
(Exact Name of Issuer as Specified in Charter)
| Pennsylvania | 001-35336 | 23-3024013 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) | ||
| 650 East Swedesford Road, Wayne, Pennsylvania |
19087 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(610) 971-9171
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| x | 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 8.01 | Other Information. |
As previously disclosed, Kenexa Corporation (“Kenexa”) entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 25, 2012, with International Business Machines Corporation (“IBM”) and Jasmine Acquisition Corp. (“Sub”), a wholly owned subsidiary of IBM. Pursuant to the terms of the Merger Agreement, and subject to the conditions thereof, Sub will merge with and into Kenexa, and Kenexa will become a wholly owned subsidiary of IBM (the “Merger”).
On October, 31, 2012, an alleged shareholder filed a derivative action and purported class action complaint (the “Complaint”) in the Court of Common Pleas of Chester County, Pennsylvania, naming Kenexa, the members of our board of directors, IBM, and Sub as defendants (collectively, the “Defendants”). The Complaint generally alleged that, in connection with approving the Merger, Kenexa’s directors breached their fiduciary duties owed to Kenexa, and that IBM knowingly acted in concert with our directors in their breaches of their fiduciary duties.
On November 20, 2012, a Memorandum of Understanding (the “MOU”) was reached relating to the Complaint, pursuant to which the parties agreed that Kenexa will grant to its shareholders dissenters rights under Pennsylvania law in connection with the Merger. The settlement of the litigation contemplated by the MOU is subject to definitive documentation and court approval. Kenexa and the other Defendants have vigorously denied, and continue to vigorously deny, any wrongdoing or liability with respect to the facts and claims asserted, or which could have been asserted, in the litigation referenced above. The settlement contemplated by the MOU is not, and should not be construed as, an admission of wrongdoing or liability by any Defendant. The Defendants considered it desirable that these actions be settled to avoid the substantial burden, expense, risk, inconvenience and distraction of continued litigation.
In connection with the MOU, on November 21, 2012, our board of directors adopted a resolution granting all Kenexa shareholders dissenters rights under Pennsylvania law in connection with the Merger and, Kenexa, IBM and Sub entered into an amendment to the Merger Agreement providing for such dissenters rights and postponing the date of the special meeting of Kenexa’s shareholder to adopt the Merger Agreement (the “Merger Agreement Amendment”). The special meeting of Kenexa’s shareholders originally scheduled for November 29, 2012 will be held on December 3, 2012.
Other than as provided in the Merger Agreement Amendment, the Merger Agreement, as filed with the Securities and Exchange Commission (“SEC”) on August 27, 2012 as Exhibit 2.1 to Kenexa’s Current Report on Form 8-K, remains in full force and effect as originally executed on August 25, 2012. The foregoing description of the Merger Agreement Amendment and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement Amendment, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Kenexa has filed a proxy supplement advising shareholders of the details of the MOU, the Merger Agreement Amendment and the postponement of the special meeting. On November 23, 2012, Kenexa issued a press release regarding the MOU, the Merger Agreement Amendment and the postponement of the special meeting. A copy of such press release is filed as Exhibit 99.1 hereto and is incorporated by reference.
| Item 9.01 | Exhibits. |
| Exhibit |
Description | |
| 2.1 | Amendment, dated November 21, 2012, to the Agreement and Plan of Merger, dated as of August 25, 2012, by and among International Business Machines Corporation, Jasmine Acquisition Corp. and Kenexa Corporation. | |
| 99.1 | Press release dated November 23, 2012. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Kenexa Corporation | ||||||
| November 23, 2012 | ||||||
| By: | /s/ Donald F. Volk | |||||
| Donald F. Volk | ||||||
| Chief Financial Officer | ||||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 2.1 | Amendment, dated November 21, 2012, to the Agreement and Plan of Merger, dated as of August 25, 2012, by and among International Business Machines Corporation, Jasmine Acquisition Corp. and Kenexa Corporation. | |
| 99.1 | Press release dated November 23, 2012. | |
Exhibit 2.1
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
This Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of August 25, 2012 (the “Agreement”) among International Business Machines Corporation, a New York corporation (“Parent”), Jasmine Acquisition Corp., a Pennsylvania corporation (“Sub”), and Kenexa Corporation, a Pennsylvania corporation (the “Company”), is entered into as of November 21, 2012 among Parent, Sub and the Company. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement.
RECITALS
WHEREAS, Parent, Sub and the Company desire to amend the Agreement as provided in this Amendment;
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Amendment, Parent, Sub and the Company hereby agree as follows:
Section 1. Amendments.
(a) Amendment to Section 2.01(c). The first sentence of Section 2.01(c) shall be deleted in its entirety and replaced with the following: “Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares to be canceled in accordance with Section 2.01(b) and (ii) except as provided in Section 2.03, the Dissenters’ Shares) shall be converted into the right to receive $46.00 in cash, without interest (the “Merger Consideration”).”
(b) Addition of New Section 2.03. A new Section 2.03 shall be added to the Agreement and provide as follows: “SECTION 2.03. Optional Dissenters’ Rights. Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time that are held by any holder who duly complies with all provisions of the PBCL concerning the right of holders of Company Common Stock to dissent from the Merger and seek dissenters’ rights for their shares (the “Dissenters’ Shares”) shall not be converted into the right to receive the Merger Consideration as provided in Section 2.01(c), but instead such holder shall be entitled to receive such consideration as may be determined to be due to such holder pursuant to the PBCL. At the Effective Time, the Dissenters’ Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate or evidence of shares of Company Common Stock in book-entry form that immediately prior to the Effective Time represented Dissenters’ Shares shall cease to have any rights with respect thereto, except the right to receive such consideration as may be determined to be due to such holder pursuant to the PBCL. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to dissent under the PBCL or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by the PBCL, then the right of such holder to be paid such consideration as may be determined to be due to such holder pursuant to the PBCL shall cease and such Dissenters’ Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.01(c). The Company shall serve prompt notice to Parent of any demands for dissenters’ rights of any shares of Company Common Stock, withdrawals of any such demands and any other related instruments served pursuant to the PBCL received by the Company, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. The Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do or commit to do any of the foregoing.”
(c) Amendment to Section 3.01(aa). The first sentence of Section 3.01(aa) shall be deleted in its entirety and replaced with the following: “Other than the Optional Dissenters’ Rights, no holder of any class or series of the Company’s capital stock will be entitled to exercise appraisal or dissenters’ rights under the PBCL, other applicable Laws, the Company Articles, or the Company Bylaws in connection with the Merger or the other transactions contemplated by this Agreement.”
(d) Addition of New Section 5.11. A new Section 5.11 shall be added to the Agreement and provide as follows: “SECTION 5.11. Optional Dissenters’ Rights. The Company shall take, or cause to be taken, all actions
that are necessary, proper or advisable to, pursuant to Section 1571(c) of the PBCL, direct that the shareholders of the Company shall have dissenters’ rights in connection with the Merger, with such rights to be the same as those as set forth in Subchapter D, Chapter 15 of the PBCL (the “Optional Dissenters’ Rights”). Following the Closing, Parent shall cause the Surviving Corporation to, abide by any obligations of the Surviving Corporation under Subchapter D, Chapter 15 of the PBCL with respect to the Optional Dissenters’ Rights of any shareholder of the Company that has properly exercised his, her or its Optional Dissenters’ Rights in accordance with the PBCL.”
(e) All references in the Agreement to the “Agreement” shall be deemed to refer to the Agreement, as amended by this Amendment.
Section 2. Date of Shareholders Meeting; Closing. (a) Each of the Company, Parent and Sub hereby agree that, notwithstanding anything to the contrary in the Agreement, the Shareholders Meeting shall be held on December 3, 2012; provided, however, that (i) if the Company is unable to obtain a quorum of its shareholders at such time, the Company may extend the date of the Shareholders Meeting to the extent (and only to the extent) necessary in order to obtain a quorum of its shareholders and the Company shall use its commercially reasonable efforts to obtain such a quorum as promptly as practicable, (ii) the Company may delay the Shareholders Meeting to the extent (and only to the extent) the Company reasonably determines that such delay is required by applicable Law to comply with comments made by the SEC with respect to the Proxy Statement and (iii) the Company may delay the Shareholders Meeting to the extent (and only to the extent) required by a court of competent jurisdiction in connection with any proceedings in connection with the Agreement, the Merger or the other transactions contemplated by the Agreement.
(b) Each of the Company, Parent and Sub hereby agree that, notwithstanding anything to the contrary in Section 1.02 of the Agreement, subject to the satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in Article VI of the Agreement (other than those that by their terms are to be satisfied or waived at the Closing, it being understood that the occurrence of the Closing shall remain subject to the satisfaction or waiver of such conditions at the Closing), the Closing will take place as promptly as possible following the Shareholders Meeting.
Section 3. Memorandum of Understanding. Parent hereby consents to the Company entering into that certain Memorandum of Understanding setting forth the terms and conditions of settlement of the derivative action and purported class action filed in the Court of Common Pleas of Chester County, Pennsylvania, by an alleged shareholder of the Company against Parent, Sub, the Company and each member of the Company’s board of directors.
Section 4. The Agreement. Except as specifically amended hereby, the Agreement shall continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. After the date hereof, any reference to the Agreement shall mean the Agreement as amended or modified hereby.
Section 5. Governing Law. This Amendment shall be governed by, and construed in accordance with, the Laws of the State of New York, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof, except to the extent the Laws of the Commonwealth of Pennsylvania are mandatorily applicable to the Agreement, this Amendment, the Merger or the Articles of Merger.
Section 6. Counterparts. This Amendment may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other parties.
Section 7. Headings. The headings contained in this Amendment are for reference purposes only and shall not affect the meaning or interpretation of this Amendment.
[Signature page follows]
2
Parent, Sub and the Company have caused this Amendment to be signed by their respective officers thereunto duly authorized, all as of the date first written above.
| INTERNATIONAL BUSINESS MACHINES CORPORATION | ||
| By: | /s/ Kevin J. Reardon | |
| Name: Kevin J. Reardon | ||
| Title: Vice President, Corporate Development | ||
[Signature Page to Merger Agreement Amendment]
| JASMINE ACQUISITION CORP. | ||
| By: | /s/ Gregory C. Bomberger | |
| Name: Gregory C. Bomberger | ||
| Title: Secretary | ||
[Signature Page to Merger Agreement Amendment]
| KENEXA CORPORATION | ||
| By: | /s/ Donald F. Volk | |
| Name: Donald F. Volk | ||
| Title: Chief Financial Officer | ||
[Signature Page to Merger Agreement Amendment]
Exhibit 99.1
FOR IMMEDIATE RELEASE
November 23, 2012
Kenexa Enters into Memorandum of Understanding;
Reschedules Special Meeting to December 3, 2012
WAYNE, PA, November 23, 2012 — Kenexa Corporation (NYSE:KNXA), a leading provider of recruiting and talent management solutions, today announced the entering into of a Memorandum of Understanding to settle a derivative action and purported class action complaint that was filed in the Court of Common Pleas of Chester County, Pennsylvania, in connection with the proposed acquisition of Kenexa by International Business Machines Corporation (NYSE:IBM). The settlement of the lawsuit is subject to definitive documentation and court approval.
As previously announced on August 27, 2012, Kenexa entered into an Agreement and Plan of Merger (the “Merger Agreement”) with IBM and Jasmine Acquisition Corp., a wholly-owned subsidiary of IBM (“Merger Sub”), pursuant to which Merger Sub will merge with and into Kenexa, with Kenexa being the surviving corporation and a wholly-owned subsidiary of IBM.
In connection with the Memorandum of Understanding, Kenexa’s board of directors adopted a resolution granting all Kenexa shareholders dissenters rights in connection with the merger, and Kenexa, IBM and Sub entered into an amendment to the merger agreement providing for such dissenters rights. Accordingly, Kenexa shareholders have dissenters rights as provided by Pennsylvania law in connection with the merger.
In order to provide Kenexa’s shareholders with time to consider the amendment to the Merger Agreement and to evaluate, and provide timely notice of their intention to exercise, their dissenters rights with respect to the merger, Kenexa has agreed to postpone its previously scheduled special shareholder meeting in connection with the merger. The special shareholder meeting for Kenexa originally scheduled for November 29, 2012 will be held on December 3, 2012 starting at 10:00 a.m., local time, at 3000 Two Logan Square, Philadelphia, Pennsylvania 19103, or at any further postponement or adjournment of this meeting.
Any proxies or votes already submitted by shareholders in connection with the special meeting will remain valid and will be unaffected by the delay in holding the special meeting or the amendment of the Merger Agreement. If you have voted in favor of the Merger Agreement and wish to exercise your dissenters rights, there are actions you will need to take that are described in supplemental proxy materials being mailed to Kenexa’s shareholders on November 23, 2012.
About Kenexa
Kenexa Corporation (NYSE:KNXA) helps drive HR and business outcomes through its unique combination of technology, content and services. Enabling organizations to optimize their workforces since 1987, Kenexa’s integrated talent acquisition and talent management solutions have touched the lives of more than 110 million people. Additional information about Kenexa and its global products and services can be accessed at www.kenexa.com. Follow Kenexa on Twitter: @kenexa.
Important Notice
This press release is not, and is not intended to be, a solicitation of proxies or an offer of securities. In connection with the proposed transaction, Kenexa has filed a definitive proxy statement and other materials with the SEC and will file a Current Report on Form 8-K. Investors and security holders are advised to read the Form 8-K in conjunction with the proxy statement and these other materials when they become available because they will contain important information about Kenexa and the proposed transaction. Investors and security holders may obtain a free copy of the definitive proxy statement, the current report on Form 8-K (when available) and other documents
filed by Kenexa with the SEC at the SEC’s web site at www.sec.gov. Copies of the definitive proxy statement, the Current Report on Form 8-K (when available) and other filings made by Kenexa with the SEC can also be obtained, free of charge, by directing a request to Kenexa Corporation, 650 East Swedesford Road, Wayne, PA 19087, Attention: Investor Relations. The definitive proxy statement and other filings are also available for free on Kenexa’s website at www.kenexa.com under “Investor Relations.”
Forward-Looking Statements
This press release includes certain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, plans, objectives, expectations and intentions and other statements contained in this press release that are not historical facts and statements identified by words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” or words of similar meaning. These statements may contain, among other things, guidance as to future revenue and earnings, operations, expected benefits from acquisitions, prospects of the business generally, intellectual property and the development of products. These statements are based on our current beliefs or expectations and are inherently subject to various risks and uncertainties, including the risk that the settlement is not approved by the court as well as those set forth under the caption “Risk Factors” in Kenexa’s most recent Annual Report on Form 10-K as filed with the Securities and Exchange Commission and as revised or supplemented by Kenexa’s quarterly reports on Form 10-Q. Actual results may differ materially from these expectations due to changes in global political, economic, business, competitive, market and regulatory factors, Kenexa’s ability to implement business and acquisition strategies or to complete or integrate acquisitions. Kenexa does not undertake any obligation to update any forward-looking statements contained in this document as a result of new information, future events or otherwise.
| Kenexa Contact: |
| Mark Derowitsch |
| Kenexa |
| (402) 419-5216 mark.derowitsch@kenexa.com |
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