SC 13D/A 1 a09-16423_1sc13da.htm SC 13D/A

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934
(Amendment No. 7)

 

Kana Software, Inc.

(Name of Issuer)

 

Common Stock, $0.001 par value per share

(Title of Class of Securities)

 

483600300

(CUSIP Number)

 

Robert B. Ashton

KVO Capital Management, LLC

44 S. Main Street, Box 17

Hanover, NH 03755

(603) 643-0500

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

June 22, 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 that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. o

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose 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).

 


 

CUSIP No. 483600300

 

 

(1)

Names of Reporting Persons:
KVO Capital Management, LLC

 

 

(2)

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

(3)

SEC Use Only

 

 

(4)

Source of Funds (See Instructions):
OO

 

 

(5)

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o

 

 

(6)

Citizenship or Place of Organization:
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:

(7)

Sole Voting Power:
3,354,343

 

(8)

Shared Voting Power:
0 (see Item 5)

 

(9)

Sole Dispositive Power:
3,354,343

 

(10)

Shared Dispositive Power:
0 (see Item 5)

 

 

(11)

Aggregate Amount Beneficially Owned by Each Reporting Person:
3,354,343 (see Item 5)

 

 

(12)

Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions)  

 

 

(13)

Percent of Class Represented by Amount in Row 11:
8.14%

 

 

(14)

Type of Reporting Person (See Instructions):
IA

 

2


 

CUSIP No. 483600300

 

 

(1)

Names of Reporting Persons:
Kernan V. Oberting

 

 

(2)

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

(3)

SEC Use Only

 

 

(4)

Source of Funds (See Instructions):
OO

 

 

(5)

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o

 

 

(6)

Citizenship or Place of Organization:
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:

(7)

Sole Voting Power:
0

 

(8)

Shared Voting Power:
3,354,343 (See Item 5)

 

(9)

Sole Dispositive Power:
0

 

(10)

Shared Dispositive Power:
3,354,343 (See Item 5)

 

 

(11)

Aggregate Amount Beneficially Owned by Each Reporting Person:
3,354,343 (See Item 5)

 

 

(12)

Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions)  

 

 

(13)

Percent of Class Represented by Amount in Row 11:
8.14%

 

 

(14)

Type of Reporting Person (See Instructions):
IN

 

3


 

CUSIP No. 483600300

 

 

(1)

Names of Reporting Persons:
Robert B. Ashton

 

 

(2)

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

(3)

SEC Use Only

 

 

(4)

Source of Funds (See Instructions):
PF

 

 

(5)

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o

 

 

(6)

Citizenship or Place of Organization:
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With:

(7)

Sole Voting Power:
0

 

(8)

Shared Voting Power:
354,675 (see Item 5)

 

(9)

Sole Dispositive Power:
0

 

(10)

Shared Dispositive Power:
354,675 (see Item 5)

 

 

(11)

Aggregate Amount Beneficially Owned by Each Reporting Person:
354,675 (see Item 5)

 

 

(12)

Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions)   x

 

 

(13)

Percent of Class Represented by Amount in Row 11:
0.9%

 

 

(14)

Type of Reporting Person (See Instructions):
IN

 

4


 

Item 1.

Security and Issuer

This Amendment No. 7 to Schedule 13D (“Amendment No. 7”) relates to the Common Stock, $0.001 par value per share, of Kana Software, Inc. (“Kana”), which has its principal offices at 181 Constitution Drive, Menlo Park, California 94025.  This Amendment No. 7 amends and supplements, as set forth below, the information contained in Item 4 and 7 of the Schedule 13D filed by the Reporting Persons with respect to Kana on November 21, 2008, as previously amended (the “Schedule 13D”).  Except as amended by this Amendment No. 7, all information contained in the Schedule 13D is, after reasonable inquiry and to the best of the Reporting Persons’ knowledge and belief, true, complete and correct as of the date of this Amendment No. 7.

 

 

Item 4.

Purpose of Transaction

Item 4 to Schedule 13D is amended by adding the following:

 

As previously disclosed, on June 18, 2009, KVO sent a letter to the Secretary of Kana nominating Melvin L. Keating to serve as a member of Kana’s Board of Directors at the Annual Meeting of Stockholders of Kana currently scheduled to be held on July 15, 2009.  On July 19, 2009, KVO filed with the Securities and Exchange Commission (the “SEC”) a letter to Kana stockholders urging them not to respond to any solicitation made by Kana, and not to submit a proxy card until they have had a chance to review proxy materials that KVO plans to file with the SEC.

 

On the evening of Friday, June 19, 2009, KVO was faxed a letter from Kana’s Vice President and General Counsel rejecting its nomination and stating that the nomination would be disregarded at the annual meeting because KVO’s notification fell outside the advance notice requirement contained in Kana’s Bylaws.

 

On Monday, June 22, 2009, KVO filed in the Court of Chancery of the State of Delaware a Verified Complaint for Injunctive Relief (the “Complaint”) requesting that, among other things, the Court enjoin Kana from proceeding with the 2009 annual meeting of stockholders on July 15, 2009 and permit stockholders to nominate individuals for election to Kana’s board of directors at this year’s annual meeting.  A copy of the Complaint is attached hereto as Exhibit 99.7 and incorporated herein by reference.

 

Also on June 22, 2009, KVO filed with the SEC a letter to Kana stockholders noting both Kana’s rejection of KVO’s nomination and the filing of the Complaint, and urging stockholders not to respond to any solicitation made by Kana and not to submit a proxy card until the Delaware court rules on the matter.  A copy of the letter is attached hereto as Exhibit 99.8 and incorporated herein by reference.

 

IMPORTANT ADDITIONAL INFORMATION:

 

KVO plans to file with the Securities and Exchange Commission (the “SEC”) and, upon favorable action of the Delaware court, mail to Kana’s stockholders a proxy statement in connection with KVO’s proposed nomination and nominee and may file other proxy solicitation materials regarding this election contest. The proxy statement will contain important information about KVO’s proposed nominee and nomination and about KVO.  Security holders are urged to read the proxy statement regarding KVO’s proposed nomination and nominee when it becomes available and any other relevant document filed with the SEC, as well as any amendment or supplement to those documents, because they will contain important information about KVO’s proposed nomination and nominee.

 

Security holders will be able to obtain free copies of the proxy statement and other relevant documents, when filed with the SEC, through the SEC’s web site maintained at www.sec.gov.   In addition, the proxy statement and any other related documents KVO files with the SEC, including filings that may be incorporated by reference in the proxy statement, can be obtained, without charge, upon request to KVO’s proxy solicitor, The Altman Group, toll free at: (866) 796-1270. Alternatively, you can email KVO at change@kanaproxy.com.

 

KVO and members of KVO’s management, including Kernan V. Oberting and Robert B. Ashton, may be deemed to be participants in the solicitation of proxies in respect of KVO’s proposed nomination, as may KVO’s proposed nominee, Melvin L. Keating. KVO is currently the beneficial owner of 3,354,343 shares of Kana’s common stock, or approximately 8.14% of the total shares of common stock outstanding as of June 11, 2009 (as reported by Kana).  Mr. Keating does not own, beneficially or otherwise, any shares of Kana stock.

 

 

Item 7.

Material to be Filed as Exhibits.

 

99.1         Joint Filing Agreement*

 

99.2         Letter Agreement with Kana Software, Inc. and KVO Capital Management, LLC dated as of November 10, 2008*

 

99.3         Letter to Kana Software, Inc. requesting its stockholder list and related materials dated as of January 12, 2009*

 

99.4         Letter to Kana Software, Inc. dated as of January 30, 2009*

 

99.5         Letter to Kana Software, Inc. dated as of June 18, 2009*

 

99.6         Letter to Stockholders of Kana Software, Inc. dated as of June 19, 2009*

 

99.7         Complaint filed by KVO Capital Management, LLC on June 22, 2009

 

99.8         Letter to Stockholders of Kana Software, Inc. dated as of June 22, 2009

 

* Previously filed.

 

5


 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

KVO CAPITAL MANAGEMENT, LLC

 

 

 

 

Date: June 22, 2009

By:

/s/ Kernan V. Oberting

 

Name: Kernan V. Oberting

 

Its: Managing Member

 

 

 

 

Date: June 22, 2009

/s/ Kernan V. Oberting

 

Kernan V. Oberting

 

 

 

 

Date: June 22, 2009

/s/ Robert B. Ashton

 

Robert B. Ashton

 

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