UNITED
STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A INFORMATION
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Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the
Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for
Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to
§240.14a-12
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Forgent
Networks, Inc.
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(Name
of Registrant as Specified In Its Charter)
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Not
Applicable
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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the
appropriate box):
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x
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No fee required.
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Fee computed on table below per
Exchange Act Rules 14a-6(i)(1) and 0-11.
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Title of each class of securities to
which transaction applies:
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Aggregate number of securities to
which transaction applies:
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(3)
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Per unit price or other underlying
value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth
the amount on which the filing fee is calculated and state how it was
determined):
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Proposed maximum aggregate value of
transaction:
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(5)
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Total fee paid:
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* Set forth the amount on which the filing fee is calculated and
state how it was determined.
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Fee paid previously with preliminary
materials.
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Check box if any part of the fee is
offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing
for which the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the Form or Schedule and the date
of its filing.
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Amount Previously Paid:
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Form, Schedule or Registration
Statement No.:
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Date Filed:
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PRELIMINARY COPY
FORGENT
NETWORKS, INC.
d/b/a
Asure Software
108
Wild Basin Road
Austin,
TX 78746
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD JULY 30, 2009
Dear Stockholder:
You are cordially invited
to attend the annual meeting of stockholders for fiscal 2008 (the Annual
Meeting) of Forgent Networks, Inc. d/b/a Asure Software (NASDAQ: ASUR), a
Delaware corporation (the Company), to be held at 108 Wild Basin
Road, Austin, Texas 78746, on Thursday, July 30, 2009 at 1:00 p.m.
local time.
At the Annual Meeting,
you will be asked to act on the following matters:
1.
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To elect six directors
to the board of directors to hold office until the next annual meeting of
stockholders or until their respective successors are duly elected and
qualified;
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2.
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To ratify the Audit
Committees appointment of Ernst & Young LLP, independent
accountants, as our independent auditors for the year ending July 31,
2009; and
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3.
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To transact such other
business as may properly come before the Annual Meeting or any adjournment
thereof.
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YOUR
BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED AND RECOMMENDS THAT AN AFFIRMATIVE
VOTE BE CAST FOR EACH OF OUR DIRECTOR NOMINEES AND FOR EACH OF THE OTHER
PROPOSALS LISTED IN THE ENCLOSED
WHITE
PROXY CARD.
All record holders of the
Companys common stock, par value $.01 per share (the Common Stock) at the
close of business on July 10, 2009 are eligible to vote at the Annual
Meeting or any adjournment thereof.
Stockholders are urged to
review carefully the information contained in the Proxy Statement attached
hereto prior to deciding how to vote their shares at the Annual Meeting. Your
participation in the Annual Meeting, in person or by proxy, is important. We
hope you will be able to attend the Annual Meeting. WHETHER OR NOT YOU PLAN TO
ATTEND THE ANNUAL MEETING, PLEASE COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED
WHITE
PROXY CARD PROMPTLY. If you attend the Annual Meeting, you may revoke your
proxy and vote in person if you wish, even if you have previously returned the
enclosed
WHITE
proxy card. Simply attending the Annual Meeting, however,
will not revoke your proxy; you must vote at the Annual Meeting. If you do not
attend the Annual Meeting, you may still revoke your proxy at any time prior to
the Annual Meeting by providing a later dated proxy or by providing written
notice of your revocation to the Secretary of the Company.
Please note that Pinnacle
Fund, LLLP, a dissident stockholder group controlled by Pinnacle Partners, LLC
which is partly controlled by Red Oak Partners, LLC (Pinnacle), has given
notice of its intention to nominate individuals for election to the board of
directors to replace our nominees. You
may receive proxy solicitation materials from Pinnacle.
OUR BOARD DOES NOT BELIEVE
THIS IN YOUR BEST INTERESTS AND URGES YOU
NOT
TO SIGN OR RETURN ANY
PROXY CARD SENT TO YOU BY PINNACLE.
If you have previously
signed a proxy card sent to you by Pinnacle, you can change your vote and vote
for our nominees by using the enclosed
WHITE
proxy card to vote by telephone,
by internet, or by signing, dating and returning the enclosed
WHITE
proxy card in the postage-paid envelope provided. Only the latest dated proxy you submit will
be counted.
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Sincerely,
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JAY C. PETERSON
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Secretary
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This
Proxy Statement is dated
,
2009 and is first being mailed to stockholders on or about
,
2009.
PRELIMINARY COPY
FORGENT
NETWORKS, INC.
d/b/a
Asure Software
108
Wild Basin Road
Austin,
TX 78746
PROXY
STATEMENT
ANNUAL
MEETING OF STOCKHOLDERS FOR FISCAL 2008
July 30, 2009
This Proxy Statement and
the enclosed
WHITE
proxy card are furnished in connection with the
solicitation of proxies on behalf of the Board of Directors (the Board of
Directors or the Board) of Forgent Networks, Inc. d/b/a Asure
Software (NASDAQ: ASUR), a Delaware corporation (the Company), for use at the
Companys annual meeting of stockholders for fiscal 2008 (the Annual Meeting),
to be held at 1:00 p.m. local time on Thursday, July 30, 2009 at the
Companys executive offices located at 108 Wild Basin Road, Austin, Texas
78746, and at any and all adjournments of such Annual Meeting.
We will bear the entire
cost of solicitation of proxies on behalf of the Company, including
preparation, assembly, printing and mailing of this Proxy Statement, the
enclosed
WHITE
proxy card, the enclosed annual report for fiscal 2008,
and any additional information furnished to you by the Company. Copies of
solicitation materials will be furnished to banks, brokerage houses, fiduciaries
and custodians holding in their names shares of our Common Stock beneficially
owned by others to forward to such beneficial owners. We may reimburse persons
representing beneficial owners of Common Stock for their costs of forwarding
solicitation materials to such beneficial owners. Original solicitation of
proxies by mail may be supplemented by telephone, facsimile, internet, or
personal solicitation by our directors, officers or other regular employees. No
additional compensation will be paid to directors, officers or other regular
employees for such services. The Company
also plans to engage the services of independent proxy consultants in
connection with this solicitation.
Some banks, brokers and
other record holders have begun the practice of householding proxy statements
and annual reports. Householding is the term used to describe the practice of
delivering a single set of proxy statements and annual reports to any household
at which two or more stockholders reside if a company reasonably believes the
stockholders are members of the same family. This procedure reduces the volume
of duplicate information stockholders receive and also reduces a companys
printing and mailing costs. We will promptly deliver an additional copy of
either document to any stockholder who writes or calls us at the following
address or phone number: Investor Relations, Forgent Networks, Inc., 108
Wild Basin Road, Austin, Texas 78746, (512) 437-2678.
VOTING
SECURITIES OUTSTANDING; QUORUM
The Board of Directors
has determined that stockholders of record at the close of business on July 10,
2008 will be entitled to vote at the Annual Meeting or any adjournment thereof.
At the close of business on June
,
2009, the most recent date practicable prior to the filing of this
Proxy Statement, there were
shares of our Common Stock issued and outstanding, each entitled to one vote on
all matters properly brought before the Annual Meeting. There are no cumulative
voting rights.
The presence in person or
by proxy of the holders of a majority of the issued and outstanding shares of
Common Stock entitled to vote as of the record date is necessary to constitute
a quorum at the Annual Meeting. Abstentions and broker non-votes are treated as
present at the Annual Meeting and are therefore counted to determine a quorum.
If a quorum is not present, the stockholders entitled to vote who are present
in person or represented by proxy at the Annual Meeting have the power to
adjourn the Annual Meeting from time to time, without notice other than an
adjournment at the Annual Meeting, until a quorum is present or represented. At
any adjourned meeting at which a quorum is present, any business may be
transacted that might have been transacted at the Annual Meeting as originally
notified.
Directors are elected by
a plurality of the votes of the shares present in person or represented by
proxy at the Annual Meeting and entitled to vote on the election of directors.
If more than six nominees are properly presented to the stockholders at the
Annual Meeting, the six nominees receiving the highest number of
affirmative votes of the shares which are present or represented by proxy at
the Annual Meeting and entitled to vote for the election of directors will
be elected to our Board. Ratification of
the Audit Committees appointment of Ernst & Young LLP as our
independent auditors will be approved by the affirmative vote of a majority of
the shares present in person or represented by proxy at the Annual Meeting and
entitled to vote on such matter. Abstentions may be specified on all proposals
except the election of directors. Abstentions, with respect to any proposal
other than the election of directors, will have the same effect as a vote
against such proposal. Broker non-votes will have no effect on the outcome of
the election of directors or the ratification of independent auditors, as they
will not be deemed to count for or against such proposals. With regard to the
election of directors, votes may be cast in favor of or withheld from each
nominee; votes that are withheld will be excluded entirely from the vote and
will have no effect.
THE
ANNUAL MEETING OF STOCKHOLDERS
This Proxy Statement is
provided in connection with the Annual Meeting and any adjournment thereof. The
accompanying
WHITE
proxy card is solicited by our Company and its Board
of Directors. This Proxy Statement and the accompanying form of proxy and
annual report for fiscal 2008 are first being sent or given to stockholders
beginning on or about , 2009.
Time and
Place
The Annual Meeting will
be held at 108 Wild Basin Road, Austin, Texas, on Thursday, July 30, 2009
at 1:00 p.m. local time.
Purposes
At the Annual Meeting,
you will be asked:
1.
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To elect six directors
to the board of directors to hold office until the next Annual Meeting of
stockholders or until their respective successors are duly elected and
qualified;
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2.
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To ratify the Audit
Committees appointment of Ernst & Young LLP, independent
accountants, as our independent auditors for the year ending July 31,
2009; and
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3.
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To transact such other
business as may properly come before the Annual Meeting or any adjournment
thereof.
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The Board knows of no
other matters to be presented for action at the Annual Meeting. If any other
matters properly come before the Annual Meeting, however, the persons named in
the proxy will vote on such other matters in accordance with their best
judgment.
Record
Date; Stockholders Entitled to Vote
Only holders of record of
our shares of Common Stock at the close of business on July 10, 2009 will
be entitled to vote at the Annual Meeting or any adjournment thereof. Each
share of Common Stock will be entitled to one vote. On June ,
2009, the most recent date practicable prior to the filing of this Proxy
Statement, a total of
shares of Common Stock were outstanding.
Quorum
A majority of the voting
power of the outstanding shares of Common Stock entitled to vote, represented
in person or by proxy, will be required to constitute a quorum for the Annual
Meeting.
Vote
Required
Directors are elected by
a plurality of the votes of the shares present in person or represented by
proxy at the Annual Meeting and entitled to vote on the election of directors.
If more than six nominees are properly presented to the stockholders at the
Annual Meeting, the six nominees receiving the highest number of affirmative
votes of the shares which are present or represented by proxy at the
Annual Meeting and entitled to vote for the election of directors will be
elected to our Board. The ratification
of the appointment of independent auditors will be approved by a majority of
the votes of the shares of Common Stock present in person or represented by
proxy at the Annual Meeting and entitled to vote thereon.
Board
Recommendation
THE BOARD OF DIRECTORS
UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR ITS DIRECTOR NOMINEES AND FOR EACH
OF THE OTHER PROPOSALS LISTED IN THE ENCLOSED
WHITE
PROXY CARD.
Voting
Your Shares
The Board of Directors is
soliciting proxies from our stockholders. By completing and returning the
enclosed
WHITE
proxy card or by completing the telephone or internet
voting procedures, you will be authorizing Jay C. Peterson and Richard N.
Snyder to vote your shares. If the enclosed
WHITE
proxy card is properly
signed and dated, it will be voted as you direct. If you attend the Annual Meeting
in person, you may vote your shares by completing a ballot at the Annual
Meeting. If you receive more than one
proxy statement from the Company, your shares are probably registered in names
that are not identical or are held in more than one account. Please vote each
WHITE
proxy card you
receive.
You may also receive
proxy solicitation materials from Pinnacle Group, LLLP, a dissident stockholder
group controlled by Pinnacle Partners, LLC which is partly controlled by Red
Oak Partners, LLC (Pinnacle).
THE BOARD OF DIRECTORS DOES NOT BELIEVE THIS IS IN YOUR BEST INTERESTS
AND STRONGLY URGES YOU
NOT
TO SIGN OR RETURN ANY PROXY CARD SENT TO YOU
BY PINNACLE.
We are not
responsible for the accuracy of any information provided by or relating to
Pinnacle and its director nominees contained in any proxy solicitation
materials filed or disseminated by, or on behalf of, Pinnacle or any other
statements that Pinnacle or its affiliates may otherwise make.
Changing Your Vote by Revoking Your
Proxy
Your proxy may be revoked at any time before it is voted at the Annual
Meeting by giving notice of revocation to the Secretary of the Company, in
writing, by execution of a later dated proxy or by attending and voting by
ballot at the Annual Meeting. Simply attending the Annual Meeting, however,
will not revoke your proxy; you must vote at the Annual Meeting.
If you have previously
signed a proxy card sent to you by Pinnacle, you can change your vote and vote
for our director nominees by used the enclosed
WHITE
proxy card to vote
by telephone, by internet, or by signing, dating and returning the enclosed
WHITE
proxy card in the postage-paid envelope provided. Only the latest dated proxy you submit will
be counted.
How
Proxies are Counted
If you return a signed
and dated the enclosed
WHITE
proxy card but do not indicate how your
shares are to be voted, those shares will be voted FOR each of the listed
proposals. Votes cast by proxy or in person at the Annual Meeting will be
tabulated by the election inspectors appointed for the Annual Meeting. Only the latest dated proxy you submit will
be counted.
Shares voted as
abstentions on any matter will be counted for purposes of determining the presence
of a quorum at the Annual Meeting and treated as unvoted, although present and
entitled to vote, for purposes of determining the approval of each matter as to
which a stockholder has abstained. As a result, abstentions with respect to any
proposal, other than the election of directors, will have the same effect as a
vote against such proposal. If a broker submits a proxy that indicates the
broker does not have discretionary authority as to certain shares to vote on
one or more matters, those shares will be counted for purposes of determining
the presence of a quorum at the Annual Meeting, but will not be considered as
present and entitled to vote with respect to such matters.
Persons
Making the Solicitation
We will pay all expenses
in connection with this solicitation. Our officers, directors and other regular
employees, who will receive no extra compensation for their services, may
solicit proxies by telephone or personal solicitation.
The Board of Directors has
also authorized the Companys executive officers to engage the services of
independent proxy consultants to assist the Company in making
solicitations to its stockholders in connection with the proposals to be voted
upon at the Annual Meeting.
Annual Report on Form 10-K/A
Our Annual Report on Form 10-K/A
for the fiscal year ended July 31, 2008 is enclosed with this Proxy
Statement. We will provide copies of the
exhibits to our Form 10-K/A upon request, but we may charge a reasonable
fee for providing such exhibits. You may
obtain the exhibits by mailing a written request to Jay C. Peterson, Secretary,
at the address appearing on the first page of this
Proxy Statement. Our Form 10-K/A,
including exhibits, is also available free of charge on the SECs website at
www.sec.gov.
ELECTION
OF DIRECTORS
(ITEM
1)
The first proposal to be
voted on at the Annual Meeting is the election of directors. Directors are
elected annually and serve a one-year term. The Board has submitted six
nominees for election this year.
Our Board has nominated each of
Richard N. Snyder, Nancy L. Harris, James H. Wells, Lou Mazzucchelli, Richard
J. Agnich, and Ray R. Miles for re-election to service until the next annual
stockholder meeting or until each of their respective successors is elected and
qualified.
Director nominees are
recommended for selection to the Board by a majority of Companys directors who
meet the independence standards of the NASDAQ Stock Market. The full Board then
selects and recommends candidates for nomination as directors for stockholders
to consider and vote upon at the Annual Meeting. The Board reviews and
considers any candidates submitted by a stockholder or stockholder group in the
same manner as all other candidates. Each nominee has consented to serve until
the next annual stockholder meeting, if elected, or until his or her successor
is elected and qualified. The newly-appointed Nominating Committee, comprised
of the Companys four independent directors, will assume these nomination
functions going forward.
If any director is unable
to stand for re-election after distribution of this Proxy Statement, the Board
may reduce its size or designate a substitute. If the Board designates a
substitute, proxies voting on the original director candidate will be cast for the
substituted candidate. Proxies cannot be voted for a greater number of persons
than the number of nominees named on the enclosed form of proxy. A plurality of
the votes cast in person or by proxy by the holders of Common Stock represented
at the Annual Meeting is required to elect a director. If more than six nominees are properly
presented to the stockholders at the Annual Meeting, the six nominees receiving
the highest number of affirmative votes of the shares which are present or
represented by proxy at the Annual Meeting and entitled to vote for the
election of director will be elected to our Board.
Biographical Information
Regarding Our Nominees
You will find detailed
information on each of our director nominees below, and certain additional
information about our directors and executive officers who are participants
in this solicitation is provided in Appendix A.
Nominee
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Age
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Present Office(s) Held In Our Company
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Director
Since
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Richard
N. Snyder
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64
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Chairman of the Board,
President and Chief Executive Officer
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1997
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Nancy
L. Harris
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46
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Senior Vice President
of Operations and Chief Operating Officer
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2009
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James
H. Wells (1)(2)(3)(4)
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62
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None
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1999
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Lou
Mazzucchelli (1)(2)(3)(4)
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53
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None
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2002
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Richard
J. AgnichI (1)(4)
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65
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None
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2003
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Ray
R. Miles (1)(2)(4)
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57
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None
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2003
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(1) Independent board member as determined by the
Board of Directors of the Company
(2) Audit Committee Member
(3) Compensation Committee Member
(4) Nominating Committee Member
The following information
regarding the principal occupations and other employment of the nominees during
the past five years and their directorships in certain companies is as reported
by the respective nominees.
Richard
N. Snyder
has
served as a director of the Company since December 1997 and was elected
Chairman of the Board in March 2000. In June 2001, Mr. Snyder
was elected President and Chief Executive Officer of the Company. From September 1997
until assuming the positions of President and Chief Executive Officer of our
Company, Mr. Snyder served as founder and chief executive officer of Corum
Cove Consulting, LLC, a consulting firm specializing in providing strategic
guidance to high technology businesses. From 1996 until 1997, Mr. Snyder
was the senior vice president of World Wide Sales, Marketing, Service and
Support of Compaq Computer Corp., a worldwide computer company. From 1995 until
1996, Mr. Snyder was the senior vice president and general manager of Dell
Americas, a computer manufacturer and marketer. Prior to 1995, Mr. Snyder
served as group general manager of the Deskjet Products Group of Hewlett
Packard. He also serves as a director of Symmetricom, Inc., based in San
Jose, California.
Nancy L. Harris
has served as a director of the Company
since June 2009, when she was elected by the Board to fill the vacancy created
by Kathleen A. Cote's resignation from the Board. Ms. Harris joined the Company in October 2001
as Vice-President of Marketing. She currently serves as the Companys Chief
Operating Officer and Senior Vice-President of Operations and is responsible
for the daily operations of the Company's software segment. Ms. Harris has 23
years experience in the software industry, serving in both marketing and
development capacities. Prior to joining the Company, Ms. Harris was the
Director of Marketing and Product Management at Clear Commerce, an Internet
transaction-processing software company (2000 to 2001). Prior to that, Ms.
Harris spent eight years with BMC Software in various positions including
Director of Field Marketing, Director of Product Marketing and Development
Manager. Ms. Harris also spent several years with Andersen Consulting in
various capacities. Ms. Harris holds a Masters of Science in Marketing degree
and a Bachelor of Science in Journalism degree from Northwestern University.
James H.
Wells
has served
as a director of the Company since December 1999. He currently consults
with early stage internet start-up companies. Mr. Wells was the senior
vice president of marketing and business development of Dazel, a Hewlett
Packard enterprise software company, from January 1999 through February 2000.
From April 1995 to March 1998, Mr. Wells served as vice
president of sales and was a founding officer in the internet streaming
company, RealNetworks, Inc.
Lou Mazzucchelli
has served as a
director of the Company since February 2002. He is currently a venture
partner at Ridgewood Capital, a venture capital firm focusing its investments
in the information technology industry. Prior to joining Ridgewood Capital in
2001, Mr. Mazzucchelli was an investment banker at Gerard Klauer Mattison
in New York, which he joined in 1996 as their PC and digital media technology
analyst. Previously, Mr. Mazzucchelli spent 13 years leading Cadre
Technologies, a pioneering computer-aided software engineering tools company
that he founded in 1982 and grew to become one of the top 50 U.S. independent
software vendors before its sale in 1986.
Richard J. Agnich
has served as a director of the Company since March
2003. He is currently an advisor to technology start-ups, is a trustee of
Austin College and chair of the Entrepreneurs Foundation of North Texas. Prior
to his retirement in 2000, Mr. Agnich served as Senior Vice President, General
Counsel and Secretary and various other positions at Texas Instruments
Incorporated since 1973.
Ray R. Miles
has served as a director of the Company since March
2003. He is currently working with Rajko Associates, a company that provides
consulting services on corporate strategy. From 2001 to 2002, Mr. Miles served
as the President of Communications Services, a service line of the Operations
Solutions business of EDS, Inc. Prior to joining Communications Services, Mr.
Miles was a business manager and manager of software strategy at Texas
Instruments from 1999 to 2001. From 1996 to 1999, Mr. Miles served as a branch
manager and then Chief Operating Officer of Deutsche Telekom Alliance, a
strategic alliance between Texas Instruments Incorporated and Deutsche Telekom.
THE
BOARD OF DIRECTORS RECOMMENDS VOTING FOR EACH OF OUR SIX NOMINEES.
TO
VOTE FOR THESE NOMINEES, PLEASE COMPLETE, DATE AND SIGN
THE
ENCLOSED
WHITE
PROXY CARD, TO ENSURE YOUR VOTE IS REPRESENTED.
Please note that Pinnacle
Fund, LLLP, a dissident stockholder group controlled by Pinnacle Partners, LLC
which is partly controlled by Red Oak Partners, LLC (Pinnacle), has given
notice of its intention to nominate individuals for election to the Board to
replace our nominees. You may receive
proxy solicitation materials from Pinnacle.
OUR BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE
ELECTION OF ALL OF OUR NOMINEES NAMED IN THE ENCLOSED
WHITE
PROXY CARD
AND URGES YOU
NOT
TO SIGN OR RETUN ANY PROXY CARD SENT TO YOU BY
PINNACLE.
If you sign and return a
proxy card sent by Pinnacle, you will not be supporting our nominees. The only way to support the qualified
individuals nominated by our Board is to vote FOR our nominees using the
enclosed
WHITE
proxy card. If you
have previously signed a proxy card sent to you by Pinnacle, you can change
your vote and vote for our nominees by using the enclosed
WHITE
proxy
card to vote by telephone, by internet, or by signing, dating and returning the
enclosed
WHITE
proxy card in the postage-paid envelope provided. Only the latest dated proxy card you submit
will be counted.
CORPORATE
GOVERNANCE INFORMATION
Director
Independence
The Board of Directors
consists of a majority of independent directors as such term is defined under
the rules of the NASDAQ Stock Market. The Board of Directors has determined
that Ms. Cote and Messrs. Wells, Mazzucchelli, Agnich and Miles are
independent. The Board of Directors has determined that all of the members of
the boards working committees are independent as defined under the rules of
the NASDAQ Stock Market, including, in the case of all members of the Audit
Committee, the independence requirements contemplated by Rule 10A-3 under the
Securities Exchange Act of 1934.
Kathleen A. Cote, who served as director for the entire fiscal year
ended July 31, 2008, resigned from the Board effective as of June 1, 2009.
Board Meetings and Attendance
The Board of Directors
held three in-person meetings and eight telephonic meetings during the fiscal
year ended July 31, 2008. No
director attended fewer than 75% of the aggregate of (i) the total number
of meetings of the Board of Directors and (ii) the total number of
meetings held by all committees of the Board of Directors on which such
director served. The Board of Directors requires that directors make a
reasonable effort to attend the companys annual stockholder meeting. One board
member attended the annual meeting of stockholders held for fiscal 2008.
Committees
The Board of Directors
uses working committees with functional responsibility in the more complex
recurring areas where disinterested oversight is required. Working committees
of the Board of Directors include the Audit Committee and the Compensation
Committee, each of which operates under a charter that has been approved by the
Board of Directors. Current copies of each of these charters are posted on our
website, www.asuresoftware.com. Our committees will continue to monitor and
review legislative, regulatory and NASDAQ Stock Market actions in connection
with corporate governance, and our committees will adopt policies and
procedures in response to such actions.
Compensation
Committee
The Compensation
Committee is responsible for approving the compensation arrangements of senior
management and recommending approval by the Board of Directors of amendments to
our benefit plans. The Compensation Committee held one meeting during the
fiscal year ended July 31, 2008. The Compensation Committee was composed of Mr.
Mazzucchelli (Chairperson) and Mr. Wells for the fiscal year ended July 31,
2008. Following Ms. Cote's resignation
from the Board, effective June 1, 2009, Mr. Wells has been appointed to succeed
Mr. Mazzucchelli as Chairperson of the Compensation Committee.
Nominating
Committee
The Nominating Committee
was unanimously appointed by the Board of Directors in June 2009 and is
comprised of the Company's four independent directors (as such term is defined
under the rules of the NASDAQ Stock market: Messrs. Wells, Mazzucchelli, Agnich
and Miles. Prior to such appointment,
the full Board of Directors (consisting of Chairman Snyder and the Company's
independent directors) administered the Companys director nomination
functions, including the review and consideration of candidates submitted by a
stockholder or stockholder group.
Following the appointment of Nancy L. Harris to fill the vacant board
seat created by Kathleen A. Cote's resignation, the Board of Directors
unanimously determined that it would be in the best interests of the Company
and its stockholders for the Company to have a separate Nominating Committee
consisting of independent directors only.
The newly-appointed Nominating Committee is currently in the process of
adopting a charter that is consistent with the bylaws of the Company and the
standards of the NASDAQ Stock Market and of developing a policy with regard to
the consideration of any director candidates recommended by stockholders
Audit
Committee
The Audit Committee is
composed of three outside directors and operates under a charter adopted by the
Board of Directors according to the rules and regulations of the
Securities and Exchange Commission (SEC) and the NASDAQ Stock Market. The
Audit Committee members during the fiscal year ended July 31, 2008 were Ms. Cote
(Chairperson), Mr. Wells, and Mr. Miles. Following Ms. Cotes resignation from
the Board effective June 1, 2009, Mr. Mazzucchelli has been appointed
to succeed Ms. Cote as Chairperson of the Audit Committee. The Board of Directors believes that all of
these directors are independent as defined under the rules of the NASDAQ
Stock Market. The Board of Directors has
determined that Ms. Cote and Mr. Mazzucchelli have the qualifications
and experience necessary to serve as an audit committee financial expert, as
defined by the SEC.
The Audit Committee is
the communication link between the Board of Directors and our independent
auditors. In addition to recommending the appointment of the independent
auditors to the Board of Directors, the Audit Committee reviews the scope of
the audit, the accounting policies and reporting practices, internal auditing
and internal control, compliance with our policies regarding business conduct
and other matters as deemed appropriate. The Audit Committee held four meetings
in fiscal 2008 with the independent auditors and/or our management.
The following is the Report
of the Audit Committee with respect to our audited financial statements for
fiscal 2008 which include our consolidated balance sheets as of July 31,
2008 and 2007, and the related consolidated statements of operations,
stockholders equity (deficit) and cash flows for each of the two years in the
period ended July 31, 2008 and the notes thereto. The information
contained in this report shall not be deemed to be soliciting material or to
be filed with the SEC, nor shall such information be incorporated by
reference into any future filing under the Securities Act of 1933, as amended,
or the Securities Exchange Act of 1934, as amended, except to the extent that
we specifically incorporate it by reference in such filing.
1. The Audit Committee has reviewed and
discussed the above-referenced audited financial statements with management.
2. The Audit Committee has discussed with Ernst &
Young LLP, our independent accountants, the matters required to be discussed by
SAS 61 (Codification of Statements on Accounting Standards) that includes,
among other items, matters related to the conduct of the audit of our
above-referenced financial statements.
3. The Audit Committee has received the letter
from Ernst & Young LLP required by Independent Standards Board
Standard No. 1, that relates to the accountants independence from our
Company and its related entities, and has discussed with Ernst & Young
LLP their independence from the Company.
4. Based on the review and discussions referred
to above, the Audit Committee recommended to the Board of Directors that our
above-referenced audited financial statements be included in our annual report
on Form 10-K/A for fiscal 2008.
Code of
Business Conduct and Ethics
The Company has adopted a
Code of Business Conduct and Ethics that applies to all of its directors,
officers and employees, including the Chief Executive Officer, Chief Financial
Officer and Principal Accounting Officer. These individuals are required to
abide by the Code of Business Conduct and Ethics to insure that its business is
conducted in a consistently legal and ethical manner. The Companys Code of
Business Conduct and Ethics covers all areas of professional conduct, including
employment policies, conflicts of interest, intellectual property and the
protection of confidential information, as well as strict adherence to all laws
and regulations applicable to the conduct of its business. Any waivers of the
Code of Business Conduct and Ethics for directors or executive officers must be
approved by the board of directors. The
full text of the Companys Code of Business Conduct and Ethics is published on
its website, www.asuresoftware.com, under the Company-Corporate Governance
link. The Company intends to disclose future amendments to, or waivers from,
provisions of its Code of Business Conduct and Ethics on its website within
four business days following the date of such amendment or waiver.
Stockholder
Communication with the Board of Directors
A stockholder who wishes
to communicate with the Board of Directors, or specific individual directors,
may do so by directing a written request addressed to such directors or
director in care of Jay C. Peterson, Secretary of the Company, at the address
appearing on the first page of this Proxy Statement.
Communications directed to members of the Board of Directors will be
relayed to the intended board member(s).
EXECUTIVE
COMPENSATION
Summary
Compensation Table (2008 Fiscal Year)
The following table
summarizes the compensation of the named executive officers listed below during
the Companys last completed fiscal year:
Name and Principal
Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Stock
Awards
($)
|
|
Option
Awards
($)
|
|
Non-Equity
Incentive Plan
Compensation ($)
|
|
Change
in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings ($)
|
|
All
Other
Compensation ($)
|
|
Total
($)
|
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
Richard
N. Snyder
Chief
Executive Officer and President
|
|
2008
2007
|
|
300,000
300,000
|
|
2,719
102,970
|
|
25,480
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
4,540
4,674
|
|
332,739
407.644
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay
C. Petersen
Chief
Financial Officer and Vice President, Finance
|
|
2008
2007
|
|
216,300
214,725
|
|
2,719
116,979
|
|
11,270
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
4,352
8,313
|
|
234,641
336,700
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nancy
L. Harris
Vice
President, Software
|
|
2008
2007
|
|
215,000
212,500
|
|
2,719
2,970
|
|
49,320
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
-0-
-0-
|
|
4,322
6,480
|
|
271,361
219,412
|
|
(b)
Fiscal year covered.
(c)
Dollar value of base salary (cash and
non-cash) earned by the named executive officer during the fiscal year covered.
(d)
Dollar value of bonus (cash and non-cash)
earned by the named executive officer during the fiscal year covered. The bonus
paid to Richard N. Snyder and Jay C. Peterson for fiscal 2007 were based on the
success of the Companys intellectual property licensing business.
(e)
Dollar value of restricted stock awarded
to the named executive officer during the fiscal year covered.
(i)
Represents the dollar value of any
insurance premiums paid by the Company during the fiscal year covered with
respect to term life insurance and long term disability insurance for the benefit
of the named executive officer. Also represents the dollar value of any
matching contributions made by the Company to the 401(k) account of the
named executive officer during the fiscal year covered.
|
|
Insurance Premiums
|
|
401(k) Matching
|
|
Richard
N. Snyder
|
|
$
|
4,540
|
|
$
|
0
|
|
Jay
C. Peterson
|
|
$
|
1,767
|
|
$
|
2,585
|
|
Nancy
L. Harris
|
|
$
|
1,391
|
|
$
|
2,931
|
|
Outstanding
Equity Awards at Fiscal Year-End Table (2008 Fiscal Year)
The following table sets
forth information concerning unexercised options, stock that has not vested,
and equity incentive plan awards for each of the named executive officers
listed in the Summary Compensation Table, outstanding as of the end of the
Companys last completed fiscal year:
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
Market or
|
|
|
|
Option Awards
|
|
|
|
Market
|
|
Awards:
|
|
Payout
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
Number
|
|
Value of
|
|
Number of
|
|
Value of
|
|
|
|
|
|
|
|
Incentive Plan
|
|
|
|
|
|
of Shares
|
|
Shares
|
|
Unearned
|
|
Unearned
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
or Units
|
|
or Units
|
|
Shares,
|
|
Shares,
|
|
|
|
Number of
|
|
Number of
|
|
Number of
|
|
|
|
|
|
of Stock
|
|
of Stock
|
|
Units or
|
|
Units or
|
|
|
|
Securities
|
|
Securities
|
|
Securities
|
|
|
|
|
|
That
|
|
That
|
|
Other
|
|
Other
|
|
|
|
Underlying
|
|
Underlying
|
|
Underlying
|
|
|
|
|
|
Have
|
|
Have
|
|
Rights
That
|
|
Rights That
|
|
|
|
Unexercised
|
|
Unexercised
|
|
Unexercised
|
|
Option
|
|
Option
|
|
Not
|
|
Not
|
|
Have
Not
|
|
Have
|
|
|
|
Options (#)
|
|
Options (#)
|
|
Unearned
|
|
Exercise
|
|
Expiration
|
|
Vested
|
|
Vested
|
|
Vested
|
|
Not
Vested
|
|
Name
|
|
Exercisable
|
|
Unexercisable
|
|
Options (#)
|
|
Price ($)
|
|
Date
|
|
(#)
|
|
($)
|
|
(#)
|
|
($)
|
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
Richard
N. Snyder
|
|
|
|
|
|
|
|
|
|
|
|
52,000
|
|
15,600
|
|
-0-
|
|
-0-
|
|
|
|
216,045
|
|
-0-
|
|
-0-
|
|
0.385
|
|
10/17/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
33,955
|
|
-0-
|
|
-0-
|
|
0.385
|
|
05/24/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
186,335
|
|
-0-
|
|
-0-
|
|
0.385
|
|
05/24/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay
C. Petersen
|
|
|
|
|
|
|
|
|
|
|
|
23,000
|
|
6,900
|
|
-0-
|
|
-0-
|
|
|
|
28,000
|
|
-0-
|
|
-0-
|
|
0.385
|
|
10/16/2011
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
25,000
|
|
-0-
|
|
-0-
|
|
0.385
|
|
7/11/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
27,606
|
|
-0-
|
|
-0-
|
|
0.385
|
|
7/19/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
22,993
|
|
-0-
|
|
-0-
|
|
0.385
|
|
7/19/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
90,776
|
|
-0-
|
|
-0-
|
|
0.385
|
|
10/17/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
8,125
|
|
-0-
|
|
-0-
|
|
0.385
|
|
11/3/2013
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
21,875
|
|
-0-
|
|
-0-
|
|
0.385
|
|
11/3/2013
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nancy
L. Harris
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
15,000
|
|
-0-
|
|
-0-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31,000
|
|
9,300
|
|
-0-
|
|
-0-
|
|
|
|
50,000
|
|
-0-
|
|
-0-
|
|
0.385
|
|
10/11/2011
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
80,168
|
|
-0-
|
|
-0-
|
|
0.385
|
|
10/17/2012
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
20,000
|
|
-0-
|
|
-0-
|
|
0.385
|
|
11/3/2013
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
(b)
The Companys option awards vest on a
monthly basis, normally over a 48-month period. All option awards listed above
are fully vested.
(e)
Option awards were re-priced to $0.385
per share during fiscal 2007.
(f)
Options expire ten years from relevant
grant date.
(g)
Unvested restricted shares vest one year
from the date of award, with the exception of the 50,000 restricted shares
awarded to Nancy Harris on 4/1/08, which vest over two years from the date of
award.
(h)
Unvested restricted shares valued at the
7/31/08 common share price of $0.30.
Potential
Payments Upon Termination or Change-in-Control
The Company has not
entered into any employment agreements with its senior management, but it has
entered into parachute agreements with each of its named executive officers.
Under the parachute agreements, the Company will pay the named executive
officer a severance payment equal to his or her then current annual salary if
the officer is terminated within a specified amount of time after a sale of the
Companys business (as defined in the agreement). To qualify for such severance
payment, the termination must be effected by the officer other than for good
reason or by the Company or the purchaser of the business for cause or due to
the officers death, retirement or disability. In addition to the
severance payment, all stock options held by the officer shall immediately and
automatically become fully vested and all restrictions on stock awards held by
the officer shall immediately and automatically be deemed lapsed and satisfied.
Director
Compensation Table (2008 Fiscal Year)
The following table sets
forth information concerning the compensation of the directors for the Companys
last completed fiscal year:
Name
|
|
Fees
Earned
or Paid
in Cash
($)
|
|
Stock
Awards
($)
|
|
Option
Awards
($)
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
Change in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings ($)
|
|
All Other
Compensation
($)
|
|
Total ($)
|
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
Richard
Agnich
|
|
17,000
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
17,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kathleen
Cote
|
|
18,000
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
18,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Louis
J. Mazzucchelli
|
|
17,250
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
34,667
|
|
51,917
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ray
R. Miles
|
|
18,000
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
18,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James
Wells
|
|
18,250
|
|
-0-
|
|
-0-
|
|
-0-
|
|
-0-
|
|
|
|
18,250
|
|
(b)
During fiscal 2008, each non-employee
director was paid a retainer of $3,000 for each quarter. Additionally, each
non-employee director was paid $1,000 for the in-person meetings of the Board
of Directors that he or she attended and $250 for participation in each
telephonic meeting. Total director fees earned in fiscal 2008 were $88,500.
(d)
The aggregate number of option awards
outstanding at fiscal year end for each director is as follows:
Richard Agnich (35,000)
Kathleen A. Cote (45,000)
Louis J. Mazzucchelli
(45,000)
Ray R. Miles (35,000)
James Wells (45,000)
All non-employee
directors participate in the Companys 1992 Director Stock Option Plan.
Non-employee directors receive, upon their initial election or appointment to
the Board, stock options to purchase 25,000 shares of our Common Stock, having
an exercise price equal to the market price of our Common Stock on the date of
grant. Thereafter, each non-employee director will receive options to purchase
10,000 shares of our Common Stock on the anniversary date of his or her
election or appointment to the Board. All of these options vest in equal
amounts monthly over a three-year period but cease vesting at the time the
director ceases to be a director. Currently the 1992 Director Stock Option Plan
does not have sufficient options available for the granting of additional
options to non-employee directors. In July 2006 each non-employee director
was granted 12,772 shares of restricted stock.
(g)
This includes consulting fees paid to Mr. Mazzucchelli
during fiscal 2008 in connection with analysis and due diligence on the Companys
acquisition of iEmployee.
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
Policy
on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of
Independent Auditor
Consistent with SEC
policies regarding auditor independence, the Audit Committee has responsibility
for appointing, setting compensation and overseeing the work of the independent
auditor. In recognition of this responsibility, the Audit Committee has established
a policy to pre-approve all audit and permissible non-audit services provided
by the independent auditor.
Prior to engagement of
the independent auditor for the next years audit, management will submit an
aggregate of services expected to be rendered during that year for each of four
categories of services to the Audit Committee for approval. The first category (Audit Services) includes
audit work performed in the preparation of financial statements, as well as
work that generally only the independent auditor can reasonably be expected to
provide, including comfort letters, statutory audits, and attest services and
consultation regarding financial accounting and/or reporting standards. The second category (Audit-related Services)
includes assurance and related services that are traditionally performed by the
independent auditor, including due diligence related to mergers and
acquisitions, employee benefit plan audits, and special procedures required to
meet certain regulatory requirements.
The third category (Tax Services) includes all services performed by the
independent auditors tax personnel, except those services specifically related
to the audit of the financial statements, and includes fees in the areas of tax
compliance, tax planning, and tax advice.
The fourth category (All Other Fees) includes items associated with
services not captured in the other categories. We generally do not request such
services from the independent auditor.
Prior to engagement, the
Audit Committee pre-approves these services by category of service. The fees
are budgeted and the Audit Committee requires the independent auditor and
management to report actual fees versus the budget periodically throughout the
year by category of service. During the year, circumstances may arise when it
may become necessary to engage the independent auditor for additional services
not contemplated in the original pre-approval. In those instances, the Audit
Committee requires specific pre-approval before engaging the independent auditor.
The Audit Committee may
delegate pre-approval authority to one or more of its members. The member to
whom such authority is delegated must report, for informational purposes only,
any pre-approval decisions to the Audit Committee at its next scheduled meeting.
Audit
Fees
The Company incurred
aggregate fees in the amount of $349,400 and $210,000 for professional audit
services rendered by Ernst & Young LLP for the audit of the
Companys annual financial statements and the reviews of the financial statements
included in the Companys 10-Qs, for the fiscal years ended July 31,
2008 and 2007, respectively. The services included work generally only the
independent registered public accounting firm can reasonably be expected to
provide, such as those in connection with statutory and regulatory filings.
Audit
Related Fees
The Company incurred
aggregate fees in the amount of $73,454 and $30,000 for assurance and related
services rendered by Ernst & Young LLP that are reasonably
related to the performance of the audit or review of the Companys financial
statements and not reported under Audit Fees above. These services related principally to the
audits of employee benefit plans, Sarbanes-Oxley compliance and merger and
acquisition due diligence, for the fiscal years ended July 31, 2008 and
2007, respectively.
Tax Fees
The Company incurred $0
and $0 for professional services rendered by Ernst & Young LLP for tax
compliance, tax advice, and tax planning during the fiscal years ended July 31,
2008 and 2007, respectively.
All
Other Fees
All fees paid to Ernst &
Young LLP by the Company are reported under the fee categories listed above.
There were no other products or services provided by Ernst & Young LLP
during the fiscal years ended July 31, 2008 and 2007.
The Audit Committee has
determined that the provision of services covered by the four preceding
paragraphs is compatible with maintaining the independent auditors
independence from the Company.
RATIFICATION
OF APPOINTMENT OF AUDITORS
(ITEM
2)
The Audit Committee has
appointed Ernst & Young LLP, independent accountants, to audit the
Companys consolidated financial statements for the fiscal year ending July 31,
2009. We are advised that no member of Ernst & Young LLP has any
direct financial interest or material indirect financial interest in the
Company or any of its subsidiaries or, during the past three years, has had any
connection with the Company or any of its subsidiaries in the capacity of
promoter, underwriter, voting trustee, director, officer or employee.
Stockholder ratification
is not required for the selection of Ernst & Young LLP, since the
Audit Committee has the responsibility for the selection of the Companys
independent auditors. Nonetheless, the selection is being submitted for ratification
at the Annual Meeting solely with a view toward soliciting the
stockholders opinion thereon, which opinion will be taken into consideration
in future deliberations.
A representative of Ernst &
Young LLP will be attending the Annual Meeting and will be available for
questions.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR
RATIFICATION BY THE STOCKHOLDERS OF THE APPOINTMENT OF ERNST & YOUNG
LLP.
OTHER
MATTERS
As of the date of this
Proxy Statement, the Board of Directors does not know of any business to be
brought before the Annual Meeting other than as specified above. However, if
any matters properly come before the Annual Meeting, it is the intention of the
persons named in the enclosed proxy to vote such proxy in accordance with their
judgment on such matters.
SECTION 16(a) BENEFICIAL
OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of
the Securities Exchange Act of 1934, as amended, requires the Companys
officers, directors, and persons who beneficially own more than 10% of the
Companys Common Stock (10% Stockholders) to file reports of ownership and
changes in ownership with the SEC and NASDAQ. Such officers, directors and 10%
Stockholders are also required by SEC rules to furnish the Company with
copies of all Section 16(a) forms that they file. Based solely upon
information provided to the Company by individual officers, directors and 10%
Stockholders, Forgent believes that all of these filing requirements were
satisfied by the Companys officers, directors, and 10% Stockholders in fiscal
2008.
STOCKHOLDER
PROPOSALS
Pursuant to various rules promulgated
by the SEC, a stockholder seeking to include a proposal in our proxy statement
and form of proxy card for our annual stockholder meeting for fiscal 2009 must
timely submit such proposal in accordance with SEC Rule 14a-8 to Forgent
Networks, Inc., addressed to Jay C. Peterson, Secretary, 108 Wild Basin
Road, Austin, Texas 78746. Pursuant to SEC Rule 14a-8, a stockholder
proposal for the annual stockholder meeting for fiscal 2009 must be received in
writing by the Company at its executive offices no later than
,
2010. Further, a stockholder may not
present a proposal for inclusion in our proxy statement and form of proxy card
related to the Annual Meeting for fiscal 2009 and may not submit a matter for
consideration at the Annual Meeting to be held for fiscal 2009, regardless of
whether presented for inclusion in our proxy statement and form of proxy card,
unless the stockholder has timely complied with our bylaw requirements. A
stockholders notice to the Secretary must set forth as to each matter the
stockholder proposes to bring before the meeting a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting; the name and address, as they appear on our
books, of the stockholder proposing such business and the name and address of
the beneficial owner, if any, on whose behalf the proposal is made; the class
and number of our shares of our Common Stock which are owned beneficially and
of record by such stockholder and by the beneficial owner, if any, on whose
behalf the proposal is being made; and any material interest of such
stockholder of record and beneficial owner, if any, on whose behalf the
proposal is made in such business.
YOU SHOULD RELY ONLY ON
THE INFORMATION CONTAINED IN THIS PROXY STATEMENT OR ANNEXED HERETO TO VOTE ON
THE MATTERS SET FORTH ABOVE. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT FROM WHAT IS CONTAINED IN THIS PROXY STATEMENT.
THIS PROXY STATEMENT IS DATED JUNE
, 2009. YOU SHOULD NOT ASSUME
THAT THE INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY
DATE OTHER THAN THAT DATE AND THE MAILING OF THIS PROXY STATEMENT TO
STOCKHOLDERS SHALL NOT CREATE ANY IMPLICATION TO THE CONTRARY.
By Order of the Board
of Directors
|
|
|
|
|
|
JAY C. PETERSON
|
|
Secretary
|
|
Austin, Texas
|
|
Appendix A
INFORMATION CONCERNING PARTICIPANTS IN THE COMPANYS SOLICITATION OF
PROXIES
Information
Regarding Ownership of Our Companys Securities by Participants, Certain
Beneficial Owners and Management
The following table sets
forth certain information with respect to beneficial ownership of our Common
Stock by our director nominees as of June 12, 2009, the most recent date
practicable prior to the filing of this Proxy Statement. None of the participants owns any shares of
our Common Stock of record that such participant does not also own beneficially. As of June 12, 2009, 31,114,915 shares
of our Common Stock were issued and outstanding.
The following table sets
forth certain information with respect to beneficial ownership of our Common
Stock as of June 12, 2009 by:
·
each person who is known by us to beneficially own
more than five percent of our common stock;
·
each of our directors at that date and nominees and
named executive officers; and
·
all directors and officers as a group.
|
|
Shares Beneficially
Owned(1) (2)
|
|
Name and Address of Beneficial Owner
|
|
Number
|
|
Percent
|
|
Red
Oak Partners, LLC, New York, NY
|
|
2,285,796
|
|
7.35
|
%
|
Renaissance
Technologies, Inc. LLC, New York, NY
|
|
1,578,500
|
|
5.29
|
%
|
Richard
N. Snyder
|
|
983,655
|
(3)
|
3.12
|
%
|
Kathleen
A. Cote
|
|
68,772
|
(4)
|
*
|
|
James
H. Wells
|
|
95,672
|
(5)
|
*
|
|
Lou
Mazzucchelli
|
|
57,772
|
(6)
|
*
|
|
Richard
J. Agnich
|
|
97,772
|
(7)
|
*
|
|
Ray
R. Miles
|
|
51,772
|
(8)
|
*
|
|
Jay
C. Peterson
|
|
276,877
|
(9)
|
*
|
|
Nancy
Harris
|
|
265,680
|
(10)
|
*
|
|
All
Directors and officers as a group (8 persons) (3)(4)(5)(6)(7)(8)(9)(10)
|
|
1,897,972
|
(11)
|
5.91
|
%
|
*
Indicates ownership of less than 1% of
our common stock
(1)
Beneficial ownership as reported in the
above table has been determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended. The persons and entities named in
the table have sole voting and investment power with respect to all shares
shown as beneficially owned by them, except as noted below. Amounts shown
include shares of our common stock issuable upon exercise of certain
outstanding options within 60 days after June 12, 2009.
(2)
Except for the percentages of certain
parties that are based on presently exercisable options which are indicated in
the following footnotes to the table, the percentages indicated are based on
31,114,915 shares of our common stock issued and outstanding on June 12,
2009. In the case of parties holding presently exercisable options, the
percentage ownership is calculated on the assumption that the shares presently
held or purchasable within the next 60 days underlying such options are
outstanding.
(3)
Consists of 540,772 shares held by
Mr. Snyder directly and 442.933 shares which Mr. Snyder may acquire
upon the exercise of options within 60 days after June 12, 2009.
(4)
Consists of 23,772 shares held by
Ms. Cote directly and 45,000 shares which Ms. Cote may acquire upon
the exercise of options within 60 days after June 12, 2009. Ms. Cote
resigned from the Companys Board of Directors on June 1, 2009.
(5)
Consists of 50,672 shares held by
Mr. Wells directly and 45,000 shares which Mr. Wells may acquire upon
the exercise of options within 60 days after June 12, 2009.
(6)
Consists of 12,772 shares held directly
by Mr. Mazzucchelli and 45,000 shares which Mr. Mazzucchelli may
acquire upon the exercise of options within 60 days after June 12, 2009.
(7)
Consists of 62,772 shares held directly
by Mr. Agnich and 35,000 shares which Mr. Agnich may acquire upon the
exercise of options within 60 days after June 12, 2009.
(8)
Consists of 16,772 shares held by
Mr. Miles directly and 35,000 shares which Mr. Miles may acquire upon
the exercise of options within 60 days after June 12, 2009.
(9)
Consists of 52,502 shares held by
Mr. Peterson directly and 224,375 shares which Mr. Peterson may
acquire upon the exercise of options within 60 days after June 12, 2009.
(10)
Consists of 115,512 shares held by
Ms. Harris directly and 150,168 shares which Ms. Harris may acquire
upon the exercise of options within 60 days after June 12, 2009.
(11)
All options held by the Companys named
executive officers were granted under the 1989 Stock Option Plan or the 1996
Stock Option Plan. Pursuant to these stock option plans, all options granted
thereunder are immediately exercisable; however, shares issued upon exercise
are subject to repurchase by the Company, at the exercise price, to the extent
of the number of shares that have not vested in the event that the optionees
employment terminates prior to all such optionees options becoming vested.
Information Regarding
Transactions in Our Companys Securities by Participants.
The following table sets forth all
transactions that are deemed purchases and sales of shares of our Common Stock
by our director nominees between June ,
2007 and June , 2009. Unless otherwise indicated, all transaction
were in open market or pursuant to our equity compensation plans and none of
the purchase price or market value of those shares is represented by funds
borrowed or otherwise obtained for the purpose of acquiring or holding such
securities.
Name of
Participant
|
|
Date
|
|
Number of Shares
|
|
Transaction Type
|
|
Richard J. Agnich
|
|
12/27/2007
|
|
50,000
|
|
Open
Market Purchase
|
|
Miscellaneous
Information Regarding Participants.
Except as
described in this Appendix A or the Proxy Statement:
·
none of the participants
(1) beneficially owns, directly or indirectly, any shares or other
securities of our Company or any of our subsidiaries, (2) has purchased or
sold any of such securities within the past two years or (3) is, or within
the past year was, a party to any contract, arrangement or understanding with
any person with respect to any such securities, including, but not limited to,
joint ventures, loan or option agreements, puts or calls, guarantees against
loss or guarantees of profit, division of losses or profits or the giving or
withholding of proxies.
·
none of the participants associates
beneficially owns, directly or indirectly, any of our securities.
·
none of the participants has any
substantial interest, direct or indirect, by security holdings or otherwise, in
any matter to be acted upon at the annual meeting.
·
none of the participants or any of their
associates has had or will have a direct or indirect material interest in any
transaction or series of similar transactions since the beginning of fiscal 2008
or any currently proposed transactions, or series of similar transactions, to
which we or any of our subsidiaries was or is to be a party for which
disclosure is required pursuant to Item 404(a) of Regulation S-K.
·
none of the participants or any of their
associates has any arrangements or understandings with any person with respect
to any future employment by us or our affiliates or with respect to any future
transactions to which we or any of our affiliates will or may be a party.
·
during the past ten years, none of the participants
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
FORGENT
NETWORKS, INC.
ANNUAL MEETING OF STOCKHOLDERS FOR FISCAL 2008
JULY
30, 2009
|
|
PROXY
NO.
|
|
SHARES
IN YOUR NAME
|
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby
appoints Jay C. Peterson and Richard N. Snyder as proxy, each with the power to
appoint his substitute, and hereby authorizes either of them to represent and
vote, as designated on the reverse side of this
WHITE
proxy card, all of
the shares of the Common Stock of Forgent Networks, Inc. held of record by
the undersigned at the close of business on the record date, July 10, 2009,
at the annual meeting of stockholders for fiscal 2008 to be held on Thursday, July 30,
2009 and any adjournment(s) thereof.
Dated
,
2009
|
|
|
Signature
|
|
|
|
|
|
Signature (If Held
Jointly)
|
Please execute this proxy
as your name appears hereon. When shares are held by joint tenants, both should
sign. When signing as attorney, executor, administrator, trustee or guardian,
please give full title as such. If a corporation, please sign in full corporate
name by the president or other authorized officer. If a partnership, please
sign in partnership name by an authorized person.
PLEASE
MARK, SIGN, DATE AND RETURN THIS
WHITE
PROXY CARD PROMPTLY USING THE
ENCLOSED
ENVELOPE.
Dear Stockholder:
Forgent Networks, Inc.
encourages you to take advantage of new and convenient ways by which you can
vote your shares. You can vote your shares electronically through the Internet
or by telephone up until 11:59 P.M. Central Standard Time the day before
the Annual Meeting date. This eliminates the need to return the enclosed
WHITE
proxy card.
1.
To vote by Internet:
·
Log on to the Internet and go to the web
site http://www.proxyvote.com
·
Have the enclosed
WHITE
proxy card
on hand when you access the web site and you will be prompted to enter your
12-digit Control Number, which is located below, to obtain your records and to
create an electronic voting instruction form.
2.
To vote by telephone:
·
Use any touch-tone telephone to dial
1-800-690-6903.
·
Have the enclosed
WHITE
proxy card
in hand when you call, and you will be prompted to enter your 12-digit Control
Number, which is located below, to vote. Follow the instructions that the Vote
Voice provides you.
If you choose to vote
your shares electronically, there is no need to mail back the enclosed
WHITE
proxy card. Your vote is important. Thank you for voting.
FORGENT
NETWORKS, INC.
ANNUAL
MEETING OF STOCKHOLDERS FOR FISCAL 2008
CONTINUED
FROM OTHER SIDE
JULY
30, 2009
THIS
PROXY, WHEN PROPERLY EXECUTED AND DATED, WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED STOCKHOLDER(S). IF NO DIRECTION IS MADE, THIS PROXY
WILL BE VOTED FOR PROPOSALS 1 AND 2 AND AT THE DISCRETION OF THE PROXIES WITH
RESPECT TO ANY MATTERS REFERRED TO IN PROPOSAL 3.
1.
|
Proposal to elect as
directors of Forgent Networks, Inc. the following persons to hold office
until the next annual stockholder meeting or until their respective
successors are duly elected and qualified.
|
|
|
|
|
o
|
FOR
all nominees listed below
(except as marked to the contrary below)
|
o
|
WITHHOLD
AUTHORITY
to
vote for all nominees listed below
|
|
|
|
Richard N. Snyder
|
|
|
|
Nancy L. Harris
|
|
|
|
James H. Wells
|
|
|
|
Lou Mazzucchelli
|
|
|
|
Richard J. Agnich
|
|
|
|
Ray R. Miles
|
|
|
|
|
|
|
|
|
(
INSTRUCTION:
To withhold authority to vote
for any individual nominee, write that nominees name on the space provided
below.)
2.
|
The ratification of the
Audit Committees appointment of Ernst & Young LLP, independent
accountants, as Forgent Networks, Inc.s independent auditors for
the year ending July 31, 2009.
|
|
|
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|
|
|
3.
|
In their discretion,
the proxies are authorized to vote upon such other business as may properly
come before the meeting or any adjournment(s) thereof.
|
|
|
|
|
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
PLEASE
MARK, SIGN, DATE AND RETURN THIS
WHITE
PROXY CARD PROMPTLY USING THE
ENCLOSED
ENVELOPE.
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