Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
(§240.12b-2
of
this chapter).
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
Item 1.01
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Entry into a Material Definitive Agreement.
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On June 20, 2017, Xactly Corporation,
a Delaware Corporation (Xactly or the Company), entered into an Amendment to the Agreement and Plan of Merger (the Amendment), which amended the Agreement and Plan of Merger, dated May 29, 2017 (the
Amended Merger Agreement), by and among Excalibur Parent, LLC, a Delaware limited liability company (Parent), Excalibur Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub)
and the Company. The Amendment provides clarification in order to implement the parties original intent on how outstanding equity awards are treated upon the consummation of the Merger. Capitalized terms used herein but not otherwise defined
have the meaning set forth in the Amended Merger Agreement.
The foregoing description of the Amendment and the transactions contemplated
thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the Amendment, which is attached as Exhibit 2.2 and is incorporated herein by reference.
Item 5.07
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Submission of Matters to a Vote of Security Holders.
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On June 20, 2017, the Company
held its annual meeting of stockholders (the Annual Meeting). Present at the Annual Meeting were holders of 28,393,304 shares of common stock of the Company, representing 88.74% of the outstanding shares entitled to vote as of
April 26, 2017, the record date for the Annual Meeting, and constituting a quorum for the transaction of business. The stockholders of the Company voted on the following proposals at the Annual Meeting, each of which is more fully described in
the Companys definitive proxy statement filed with the Securities and Exchange Commission on May 11, 2017:
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1.
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To elect two Class II directors to serve until the Companys 2020 annual meeting of stockholders and until their successors are duly elected and qualified; and
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2.
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To ratify the appointment of KPMG LLP as the Companys independent registered public accounting firm for the Companys fiscal year ending January 31, 2018.
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The voting results for each of these proposals are detailed below.
1.
Election of Directors
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Nominee
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For
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Withheld
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Broker Non-Votes
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Lauren P. Flaherty
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18,135,174
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3,591,745
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6,666,385
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Carol G. Mills
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17,838,803
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3,888,116
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6,666,385
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Each director nominee was duly elected as a Class II director to serve until the Companys 2020 annual meeting of
stockholders and until her successor is duly elected and qualified.
2.
Ratification of Appointment of Independent Registered Public
Accounting Firm
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For
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Against
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Abstain
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Broker
Non-Votes
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28,256,329
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3
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136,972
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The stockholders of the Company ratified the appointment of KPMG LLP as the Companys independent
registered public accounting firm for the fiscal year ending January 31, 2018.
The consummation of the Merger is conditioned upon, among other things,
the expiration or termination of any waiting periods applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). On June 20, 2017, the U.S. Federal Trade Commission
notified Xactly that early termination of the waiting period under the HSR Act was granted, effective immediately.
The consummation of the Merger remains subject to approval by Xactlys stockholders and the
satisfaction or waiver of customary closing conditions set forth in the Amended Merger Agreement.
Additional Information and Where to Find It
Xactly has filed a preliminary proxy statement on Schedule 14A with the Securities and Exchange Commission (the SEC). Promptly after filing its
definitive proxy statement with the SEC, Xactly will furnish to its stockholders the definitive proxy statement in connection with the proposed Merger. The preliminary proxy statement described above contains important information about the proposed
Merger and related matters. INVESTORS, STOCKHOLDERS AND SECURITY HOLDERS OF XACTLY ARE URGED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE TRANSACTION THAT XACTLY
WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT XACTLY AND THE TRANSACTION. Investors, stockholders and security holders will be able to obtain free copies of these documents and other
documents filed with the SEC by Xactly through the website maintained by the SEC at www.sec.gov. In addition, investors, stockholders and security holders will be able to obtain free copies of these documents from Xactly by contacting Xactlys
Investor Relations at (408)
477-3338,
by
e-mail
at ir@xactlycorp.com, or by going to Xactlys Investor Relations page on its website at investors.xactlycorp.com.
Participants in the Solicitation
The directors and
executive officers of Xactly may be deemed to be participants in the solicitation of proxies from the stockholders of Xactly in connection with the proposed Merger. Information regarding the interests of these directors and executive officers in the
transaction described herein is set forth in Xactlys preliminary proxy statement on Schedule 14A filed with the SEC on June 16, 2017. Additional information regarding Xactlys directors and executive officers is also included in
Xactlys proxy statement for its 2017 Annual Meeting of Stockholders, which was filed with the SEC on May 11, 2017. These documents are available free of charge as described in the preceding paragraph.
Legal Notice Regarding Forward-Looking Statements
This
Form
8-K
contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including, but not limited
to, statements regarding possible or assumed future results of operations of Xactly, the expected completion and timing of the Merger and other information relating to the Merger. Without limiting the foregoing, the words believes,
anticipates, plans, expects, intends, forecasts, should, estimates, contemplate, future, goal, potential,
predict, project, projection, may, will, could, should, would, assuming and other words or expressions of similar meaning or import are
intended to identify forward-looking statements. You should, therefore, carefully read and consider statements that contain these words or expressions, as such forward-looking statements involve certain risks and uncertainties that could cause
actual results to differ materially from those indicated in such forward-looking statements, including, but not limited to, (i) the risk that the proposed Merger may not be completed in a timely manner or at all, which may adversely affect
Xactlys business and the price of the common stock of Xactly, (ii) the failure to satisfy all of the conditions precedent to the consummation of the proposed Merger, including, but not limited to, the required consent of the stockholders
of Xactly and the receipt of certain governmental or regulatory approvals, (iii) the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the merger agreement, (iv) the effect of the
announcement or pendency of the transaction on Xactlys business relationships, operating results and business generally, (v) risks that the proposed transaction disrupts current plans and operations and the potential difficulties in
employee retention as a result of the transaction, (vi) risks related to diverting managements attention from Xactlys ongoing business operations, (vii) the outcome of any legal proceedings that may be instituted against us
related to the merger agreement or the Merger and (viii) such other risks and uncertainties as identified in Xactlys Annual Report on Form
10-K
for the fiscal year ended January 31, 2017 and
Quarterly Report on Form
10-Q
for the fiscal quarter ended April 30, 2017, as filed with the SEC, which contain and identify important factors that could cause the actual results to differ materially from
those contained in the forward-looking statements. Xactly assumes no obligation to update any forward-looking statement contained in this Form
8-K.
Item 9.01.
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Financial Statements and Exhibits
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EXHIBIT INDEX
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Exhibit
Number
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Description
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2.2
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Amendment to Agreement and Plan of Merger, dated as of June 20, 2017, by and among Excalibur Parent, LLC, a Delaware limited liability company, Excalibur Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Excalibur Parent, LLC, and Xactly Corporation, a Delaware corporation.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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XACTLY CORPORATION
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Date: June 20, 2017
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By:
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/s/ Christopher W. Cabrera
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Christopher W. Cabrera
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Chief Executive Officer and Director
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EXHIBIT INDEX
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Exhibit
Number
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Description
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2.2
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Amendment to Agreement and Plan of Merger, dated as of June 20, 2017, by and among Excalibur Parent, LLC, a Delaware limited liability company, Excalibur Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Excalibur Parent, LLC, and Xactly Corporation, a Delaware corporation.
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