Insider filing report for Changes in Beneficial Ownership
- Schedule 13G & 13D forms are used to report a party's ownership of stock which exceeds 5% of a company's total stock issue.
- Schedule 13G is a shorter version of Schedule 13D with fewer reporting requirements.
"Insiders might sell their shares for any number of reasons, but they buy them for only one: they think the price will rise"
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- Peter Lynch
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
SCHEDULE
13D
Under the
Securities Exchange Act of 1934
Amendment
No. 5(*)
KANA
SOFTWARE, INC.
(Name of
Issuer)
COMMON
STOCK, $.001 PAR VALUE
(Title of
Class of Securities)
483600102
(CUSIP
Number)
JOHN F.
NEMELKA
NIGHTWATCH
CAPITAL MANAGEMENT, LLC
5314
RIVER RUN DRIVE, SUITE 350
PROVO,
UTAH 84604
TELEPHONE: (801)
805-1300
(Name,
address and telephone number of person
authorized
to receive notices and communications)
October
26, 2009
(Date of
event which requires filing of this statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box £.
NOTE: Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See Rule 13d-7(b) for other parties
to whom copies are to be sent.
*
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The
information required in the remainder of this cover page shall not be deemed to
be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
13D
CUSIP No.
483600102
|
(1)
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NAME
OF REPORTING PERSON
S.S.
OR I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON
|
||
|
NightWatch
Capital Management, LLC
|
|||
|
(2)
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
|
||
|
(a) o
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|||
|
(b) x
|
|||
|
(3)
|
SEC
USE ONLY
|
||
|
(4)
|
SOURCE
OF FUNDS **
|
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WC
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|||
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(5)
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
or 2(e)
|
o
|
|
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(6)
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CITIZENSHIP
OR PLACE OF ORGANIZATION
|
||
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Delaware
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|||
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(7)
|
SOLE
VOTING POWER
|
||
|
1,595,452
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|||
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NUMBER
OF
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|||
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SHARES
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(8)
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SHARED
VOTING POWER
|
|
|
BENEFICIALLY
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0
|
||
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OWNED
BY
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|||
|
EACH
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(9)
|
SOLE
DISPOSITIVE POWER
|
|
|
REPORTING
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1,595,452
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||
|
PERSON
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|||
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WITH
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(10)
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SHARED
DISPOSITIVE POWER
|
|
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0
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|||
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(11)
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
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1,595,452
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|||
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(12)
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
**
|
o
|
|
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(13)
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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3.9%
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|||
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(14)
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TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS)
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|
OO
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** SEE
INSTRUCTIONS BEFORE FILLING OUT!
This
Amendment No. 5 (this “Amendment”) amends the statement on Schedule 13D filed on
April 29, 2005, as amended by Amendment No. 1 filed on July 11, 2005, Amendment
No. 2 filed on October 11, 2005, Amendment No. 3 filed on January 27, 2006 and
Amendment No. 4 filed on May 22, 2007 (as so amended, the “Schedule 13D”), with
respect to shares of common stock, par value $.001 per share (the “Common
Stock”) of Kana Software, Inc., a Delaware corporation (the
“Company”). Capitalized terms used and not otherwise defined in this
Amendment have the meanings set forth in the Schedule 13D. This
Amendment amends the Schedule 13D as specifically set forth herein.
This is a
final amendment to the Schedule 13D and an exit filing for the Reporting
Person.
ITEM
3. SOURCE AND AMOUNT OF
FUNDS OR OTHER CONSIDERATION
Item 3 is
hereby amended and restated in its entirety as follows:
The NW
Funds purchased an aggregate of 1,519,847 shares of Common Stock in a series of
transactions between July 8, 2004, and April 22, 2005. The aggregate purchase
price for such shares of Common Stock was approximately $2.4 million. On June
30, 2005 (the “June 30 Transaction”), the NW Funds purchased in the aggregate
(i) an additional 1,359,618 shares of Common Stock, bringing their total
holdings to 2,879,465 shares of Common Stock and (ii) warrants (as amended),
which may be exercised during the period commencing on March 28, 2006 and
expiring on September 29, 2010, to purchase an additional 679,808 shares of
Common Stock. The aggregate purchase price paid in the June 30 Transaction for
such shares of Common Stock and such warrants was $2 million. On September 29,
2005 (the “September 29 Transaction”), the NW Funds purchased in the aggregate
(i) an additional 2,189,006 shares of Common Stock, bringing their total
holdings to 5,068,471 shares of Common Stock and (ii) warrants, which may be
exercised during the period commencing on March 28, 2006, and expiring on
September 29, 2010, to purchase an additional 788,042 shares of Common Stock.
The aggregate purchase price paid in the September 29 Transaction for such
shares of Common Stock and such warrants was $3,333,200. On October
25, 2005 (the “October 25 Transaction”), the NW Funds acquired in the aggregate
(i) 354,451 shares of Common Stock, bringing their total holdings to 5,422,922
shares of Common Stock and (ii) warrants, which may be exercised during the
period commencing April 24, 2006, and expiring on October 25, 2010, to purchase
an additional 127,603 shares of Common Stock. The warrants and Common
Stock to which the October 25 Transaction relates were originally purchased as
part of units, pursuant to a Stock Purchase Agreement (the “Agreement”), for
$1.5227 per unit. Pursuant to the terms of the Agreement, the
shares of Common Stock and warrants acquired on October 25, 2005, were issued in
order to bring the units purchased pursuant to the Agreement to an adjusted
price of $1.3105 per unit. On May 8, 2006 (the “May 8 Transaction”),
the NW Funds acquired in the aggregate 494,866 shares of Common Stock, bringing
their total holdings to 5,917,788 shares of Common Stock. The shares
of Common Stock to which the May 8 Transaction relates were issued in connection
with, and as compensation for, certain amendments to the
Agreement. On October 9, 2006 (the “October 9 Transaction”), the NW
Funds acquired in the aggregate 49,485 shares of Common Stock, bringing their
total holdings to 5,967,273 shares of Common Stock. The shares of
Common Stock to which the October 9 Transaction relates were issued in
connection with, and as compensation for, certain amendments to the
Agreement. In December 2006, in connection with an internal
restructuring, NWCP transferred to NWCP II 100% of its holdings of shares of
Common Stock and warrants. In a series of transactions between May
11, 2007, and May 16, 2007 (the “May 11 Transaction”), a separate account
managed by NWCA (the “Account”) purchased 350,000 shares of Common Stock,
bringing the total number of shares of Common Stock associated with the Item 2
Persons to 6,317,273 shares of Common Stock and warrants to purchase an
additional 1,595,452 shares of Common Stock. The aggregate purchase
price paid in the May 11 Transaction for such shares of Common Stock was
$1,128,771.
On
October 26, 2009, the Company and the NW Funds entered into an agreement to
amend the warrants issued to the NW Funds on September 29, 2005 and
October 25, 2005. In consideration of the NW Funds waiving their
right to cause the warrants to become exercisable for shares of common stock of
the purchaser of the Company’s assets (instead of shares of Common Stock) in
connection with the transaction described in the Issuer Agreement (as defined
below), the agreement extended the exercise period for such warrants by an
additional two years, such that the warrants dated September 29, 2005 will
expire on September 29, 2012 and the warrants dated October 25, 2005
will expire on October 25, 2012. In addition, such warrants were amended to
change their treatment in the event of an all-cash asset sale or merger of the
Company, such that if substantially all of the Company’s assets are sold for
cash, the warrants will remain outstanding on the same terms and conditions and
will not be assumed by the purchaser of the Company’s assets, and if the Company
is acquired by means of an all-cash merger, the warrants will become exercisable
for the merger consideration upon consummation of the merger
transaction. As noted above, all such warrants are currently held by
NWCP II.
The
source of funds for all of the above-described purchase transactions was working
capital of the NW Funds and the Account. The shares of Common Stock were held in
prime brokerage accounts of the NW Funds and the Account, which may from time to
time have debit balances. Because other securities are held in such accounts, it
is not possible to determine the amounts, if any, of financing used at any time
with respect to the shares of Common Stock.
ITEM
4. PURPOSE OF
TRANSACTION
Item 4 is
hereby amended by inserting the following paragraph at the end
thereof:
On
October 26, 2009 (the “October 26 Transaction”), NWCP II entered into a Stock
Purchase Agreement (the “Stock Purchase Agreement”) by and among NWCP II, Black
Diamond Offshore Ltd. (“BDO”) and Double Black Diamond Offshore Ltd. (“DBDO,”
and, together with BDO, the “Purchasers”) whereby NWCP II agreed to sell
5,705,814 shares of Common Stock to the Purchasers for a purchase price equal to
(a) $0.75 per share, to be paid upon execution of the Stock Purchase Agreement
(the “Initial Payment”), (b) within two business days following the consummation
of transactions contemplated by an Asset Purchase Agreement entered into by and
among the Company and Kay Technology Corp, Inc. on October 26, 2009 (the “Issuer
Agreement”), an additional amount per share based on the net cash per share of
the Company as of the closing of the Issuer Agreement less $0.79 per share and
(iii) within 160 days following the closing of the Issuer Agreement, an
additional amount of net cash per share representing the favorable resolution of
escrow agreements under the Issuer Agreement. A copy of the Stock
Purchase Agreement is attached hereto as Exhibit 99.1 and incorporated herein by
reference.
On
October 28, 2009 (the “October 28 Transaction”), NWCP II distributed 611,459
shares of Common Stock to a limited partner of NWCP II (the “NWCP II LP”) as a
distribution in-kind. In connection with such distribution in-kind,
NWCP II expects to distribute on or about November 4, 2009, approximately
163,484 warrants to the NWCP II LP, following which distribution the total
number of warrants to purchase shares of Common Stock associated with Item 2
Persons will be approximately 1,431,968.
Following
the October 26 Transaction and the October 28 Transaction, all 6,317,273 shares
of Common Stock associated with Item 2 Persons have been sold or
distributed.
ITEM
5. INTEREST IN
SECURITIES OF THE ISSUER.
The first
paragraph of Item 5 is hereby amended and restated in its entirety as
follows:
(a)-(b) The
securities referenced in this statement (the “Securities”) consist
of warrants to acquire 1,595,452 shares of Common Stock exercisable
as of March 28, 2006 and April 24, 2006, representing in the aggregate
beneficial ownership of 1,595,452 Common Shares or approximately 3.9% of the
41,215,661 shares of Common Stock represented by the Company to be outstanding
as of October 26, 2009.1
1The
calculation of total shares of Common Stock of the Company outstanding is based
upon the Company’s most recent filing on Form 8-K, filed October 27,
2009.
Item 5(e)
is hereby amended and restated in its entirety as follows:
(e) October
28, 2009
ANNEX
A:
Annex A
is hereby amended and restated in its entirety as attached hereto.
ITEM 6.
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Item 6 is
hereby amended and restated in its entirety as follows:
The
disclosure in Item 4 above is incorporated herein by reference.
ITEM 7.
Material to be Filed as Exhibits.
Item 7 is
hereby amended and restated in its entirety as follows:
99.1 Stock
Purchase Agreement by and among NightWatch Capital Partners II, L.P., Black
Diamond Offshore Ltd. and Double Black Diamond Offshore Ltd.
SIGNATURES
After
reasonable inquiry and to the best of my knowledge and belief, I hereby certify
that the information set forth in this Schedule 13D is true, complete and
correct.
Dated: November
2, 2009
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NIGHTWATCH
CAPITAL MANAGEMENT, LLC
|
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By:
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/s/ Paul V. Burgon
|
|
|
|
Name:
|
Paul
V. Burgon
|
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|
Title:
|
Principal
|
||
Annex
A
|
Item
2 Person
|
Buy/Sell
|
Date
|
Number
of Shares
|
Price
per Share
|
||||
|
NightWatch
Capital Management, LLC
|
sell
|
10/26/2009
|
5,705,814
|
See
Item 4
|
||||
|
NightWatch
Capital Management, LLC
|
In-kind
distribution
|
10/28/2009
|
611,459
|
See
Item 4
|
||||
|
Total
|
6,317,273
|