This Amendment No. 5 (this “Amendment No. 5”) amends and supplements the Tender Offer Statement on Schedule TO filed on September 2, 2010 (which, together with Amendment No. 1 to the Tender Offer Statement on Schedule TO, filed on September 13, 2010, Amendment No. 2 to the Tender Offer Statement on Schedule TO, filed on September 16, 2010, Amendment No. 3 to the Tender Offer Statement on Schedule TO, filed on September 21, 2010, and Amendment No. 4 to the Tender Offer Statement on Schedule TO, filed on September 24, 2010, collectively constitute the “Schedule TO”) by (i) Spirit Merger Sub, Inc., a Delaware corporation (the “Purchaser”), and a wholly owned subsidiary of Kenexa Corporation, a Pennsylvania corporation (“Kene xa”), and (ii) Kenexa.
The Schedule TO relates to the offer by the Purchaser to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Salary.com, Inc., a Delaware corporation (“Salary.com”), at a purchase price of $4.07 per Share, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 2, 2010 (which, together with any amendments and supplements thereto, collectively constitute the “Offer to Purchase”), and in the related Letter of Transmittal (as it may be amended or supplemented), copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively (and which together constitute the “Offer”).
Except as otherwise set forth below, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference as relevant to items in this Amendment No. 5. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Offer to Purchase.
Items 1-9 and 11.
The Offer to Purchaser is hereby amended and supplemented by adding the following:
“The Offer and withdrawal rights expired at 12:00 midnight, New York City time, at the end of the day on September 30, 2010. The Depositary has advised us that 15,633,332 Shares were validly tendered and not validly withdrawn from the Offer, representing a total of approximately 86.8% of the outstanding Shares (79.3% of the outstanding Shares on a fully diluted basis). Additionally, the Depositary has advised us that an additional 1,003,862 Shares have been validly tendered by notice of guaranteed delivery. All Shares that were validly tendered and not validly withdrawn have been accepted for payment by the Purchaser.
Pursuant to the terms of the Merger Agreement, the Purchaser will exercise the Top-Up Option to purchase 21,067,796 Shares directly from Salary.com at a purchase price of $4.07 per Share. These Shares represent the number of Shares sufficient, when added to the number of Shares purchased by the Purchaser in the Offer, to give the Purchaser ownership of one Share more than 90% of Salary.com’s outstanding Shares on a fully diluted basis.
As promptly as practicable following the exercise of the Top-Up Option, the Purchaser will be merged with and into Salary.com through a short-form merger under Delaware law, without the need for a vote or meeting of Salary.com’s remaining stockholders. Following the Merger, Salary.com will continue as the surviving corporation and a wholly owned subsidiary of Kenexa. By virtue of the Merger, each issued and outstanding Share (other than Shares held by Kenexa or the Purchaser, Shares held by Salary.com and Shares held by stockholders who properly exercise their appraisal rights under applicable Delaware law) will be automatically converted into the right to receive $4.07 per Share, net to the holder in cash, without interest thereon and less any applicable withholding taxes, which is the same amount per Share that was paid in the Offer. Following the Merger, the Shares will cease to be traded on the Nasdaq Capital Market.
On October 1, 2010, Kenexa issued a press release announcing the expiration of the Offer. The full text of the press release is attached hereto as Exhibit (a)(1)(J) and is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of this Schedule TO is hereby amended and supplemented by adding the following exhibit:
