UNITED
STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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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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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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appropriate box):
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Fee computed on table below per
Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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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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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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(1)
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Amount Previously Paid:
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Form, Schedule or Registration
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Date Filed:
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Asure Software Cautions Stockholders Not to Be Misled by the Deceptive
Tactics and Statements of Red Oak Partners and Pinnacle Fund
AUSTIN,
Texas, June 30, 2009 Asure Software (NASDAQ: ASUR), a leading provider of
workforce management software, today reiterated that stockholders should not be
deceived by the misleading statements, most recently reflected in the release
issued June 29, 2009, by Red Oak Partners and the Pinnacle Fund, a group of
dissident stockholders who are attempting to gain control of the Company by
means of a hostile proxy contest.
We
are deeply concerned and disappointed that Red Oak Partners, Pinnacle Fund and
its portfolio manager, David Sandberg, are again perpetuating misperceptions
and spreading false allegations about a company in this case Asure Software
in an attempt to gain unwarranted support for their effort to take control of
the Company without paying a premium, said Nancy L. Harris, President and
Chief Executive Officer.
We
have in good faith tried numerous times
to meet with Pinnacle/Red Oak and the members of their proposed slate to
learn more about their individual qualifications as potential directors and
managers of your company as well as their plans for improving Asures
profitability and increasing stockholder value, Harris said. The fact that this group has failed to put
forth any plan for taking the company to profitability and increasing
stockholder value should be alarming to all stockholders, especially given
Pinnacle/Red Oaks lack of experience with Asures business and with public
companies in general and their history of contentious litigation in connection
with their earlier hostile takeover attempts.
We can only conclude that they have no plan other than the pursuit of a
self-serving, short-term agenda that is not in the best interests of Asures
shareholders.
In
this vein, on February 17, 2009, CLST Holdings, Inc. announced that it had
filed a lawsuit in the United States District Court for the Northern District
of Texas against Red Oak Fund, L.P, Red Oak Partners, LLC, and David Sandberg,
alleging the defendants violated federal securities laws by making recent
purchases of the common stock of CLST.
Among other things, CLST accused the defendants of falsely stating their
intention to abandon a previously announced tender offer for CLSTs common
stock while proceeding with an illegal tender offer that did not comply with
applicable securities laws. CLST has
also accused the defendants of failing to make timely disclosure of their stock
purchases in light of their undisclosed tender offer.
Our
current Board of Directors and management team are diligently committed to
long-term value creation with a plan to get the Company to break-even this year
and continue our profitable growth in the workforce management market, said
Harris. We have made great headway
since the acquisition of iEmployee in the fall of 2007, and we are in excellent
position to grow that business so that it generates long-term value for
shareholders.
The
Company also will send the following letter, dated July 1, 2009, to all
stockholders:
Dear
Fellow Stockholder:
Red
Oak Partners, a New York-based hedge fund with a reputation for aggressively
attacking companies for short-term gains, has stated its intent through its
affiliate, The Pinnacle Fund, to wage a proxy contest for control of your
company by replacing Asure Softwares existing Board of Directors with its own
slate of six directors of questionable background, experience and
qualifications. This unproductive and
costly proxy contest comes at a time when the company can ill afford to be
distracted from continuing to implement its transformational growth strategy.
The
Board of Directors strongly urges Asure Software stockholders not to take any
action in response to the dissident proxy material and not to sign any proxy
cards you might receive from Pinnacle/Red Oak.
We
believe Pinnacle/Red Oak is attempting to seize control of your company without
paying for it, a deceptive tactic we have seen them use in other proxy
contests.
Since
Pinnacle/Red Oak is using questionable tactics, misleading comments and
unproven assertions, we are writing to ensure you have all the facts with
respect to the following:
Pinnacle/Red
Oaks actions show that it is pursuing a self-serving, short-term agenda that
is not in the best interests of Asures shareholders.
·
Pinnacle/Red Oak has
opportunistically increased its stake in the company by acquiring shares at a
historically low price, with the apparent intent of gaining control of the
Board without paying a premium and at the expense of long-term value creation
for investors. It has provided no
strategic plan that would be superior to the companys ongoing long-term
strategy.
·
We have found Pinnacle/Red
Oak to be disingenuous in its communications with Asure shareholders, publicly
stating several times that it did not desire to have Board representation, and
then proceeding with a proxy contest.
They have also rejected your Boards good-faith efforts to engage them
in discussions that could have led to a compromise to avoid this proxy
fight. Frankly, their inconsistent
communications with the company indicate they lack true understanding of the
business and our rapidly evolving markets.
Asure
Software has reported solid performance in recent quarters and completely
transformed its business in the past six years.
·
Under the current Boards
leadership since 2003, we have successfully integrated two strategic
acquisitions NetSimplicity and iEmployee that serve high-growth,
high-margin markets. We also divested
the legacy businesses that were facing eroding market demand and
relevancy. Since we started this
transformation, we have eliminated 93% of expenses from the company.
·
Despite the recent harsh
macroeconomic environment, we have reported solid financial and operational
results in recent quarters and have outperformed our competitors. For example, iEmployee new customer bookings
grew 59% in the fiscal 2009 third quarter, and we further reduced expenses by
11%, including a 10% pay cut across the company.
·
In the short term, we expect
to get to break-even by the end of our October quarter by further reducing our
operational expenses. In the long term,
we will continue pursuing our vision of being the leading provider of on-demand
workforce management software solutions to small and mid-sized companies. We expect rapid profitable growth when the
economy and our target markets rebound, with our objective to reach $30 million
in revenues and 10% profit exiting fiscal 2013 (top-line CAGR of approximately
30%).
Your
Board has a track record of transparency, strong corporate governance and
listening to all shareholders, not just a chosen few with self-serving agendas.
·
Your Board has done its
prudent due diligence in reviewing all possible strategic alternatives for
long-term value creation, and has acted independently according to best
practices of corporate governance, with the assistance of outside
advisors. The Board and management team
continue to work toward aggressively reducing expenses, growing revenue and
profitability, and creating shareholder value.
·
In June 2009, the Board
implemented a seamless management transition plan by appointing former Chief
Operating Officer Nancy L. Harris to President and Chief Executive Officer, and
naming her to fill the vacancy of a director who had stepped down. Ms. Harris brings exceptional leadership
skills and experience to the position, along with a forward-looking vision
focused on increasing shareholder value by growing revenues through innovative
software and service solutions, optimizing our distinctive
brands, and continuing to
reduce costs and improve operational efficiency. This appointment effectively separates the
positions of Chairman and CEO, with former Chairman and CEO Richard N. Snyder
continuing as Executive Chairman. Ms. Harris
has been integral to the companys progress during the past eight years, as she
led the integration and growth of our two acquired software businesses
NetSimplicity and iEmployee.
Based
on our knowledge of the dissident slate, the Pinnacle/Red Oak nominees appear
to be either conflicted, lack an understanding of the companys business or
have questionable backgrounds.
The
dissidents slate includes:
·
David Sandberg, managing
member and founder of Red Oak, whose minimal public company board experience
consists of his recent appointments to the boards of SMTC and EDCI.
·
Adrian Pertierra, senior
analyst at Red Oak, with no known public company, operational or director
experience.
·
Bob Graham and Pat Goepel,
both former board members of iEmployee prior to its acquisition by Asure.
It
is doubtful that the limited and conflicted perspectives of these individuals
in combination with the two other dissident nominees Cornelius Ferris and
Jeffrey Vogel would be sufficient to make up an effective Board. For example, we have no knowledge that any of
these dissident nominees is qualified to chair an audit committee, or has
firsthand knowledge of securities law and Sarbanes-Oxley requirements. Moreover, earlier this year, CLST Holdings
sued Red Oak Partners, its affiliates and David Sandberg over alleged
violations of securities laws.
Our
Board-recommended slate of directors provides seasoned public company and
relevant tech industry experience and has upheld the highest levels of
corporate governance standards while successfully guiding the company through
its transformation.
In
addition to Ms. Harris, our director nominees are:
·
Chairman Richard N. Snyder,
who has more than 30 years of direct experience in all aspects of the computer
industry. Mr. Snyder was responsible for
launching and managing the inkjet printing business and creating the Deskjet
brand for Hewlett Packard, where he served for 28 years. He also held senior management positions at
Dell and Compaq, and founded a consulting firm for high-technology
businesses. He sits on the Board of
Directors of Symmetricom (SYMM), where he has served on the Audit and
Compensation committees.
·
James H. Wells, a consultant
for Internet start-up companies; former senior vice president of marketing and
business development for Dazel, a Hewlett Packard enterprise software company;
and founding officer of the Internet streaming company RealNetworks, Inc.
·
Lou Mazzucchelli, a partner
with venture capital firm Ridgewood Capital which focuses on the information
technology industry; former investment banker and digital media technology
analyst for Gerard Klauer Mattison; and founder of Cadre Technologies, a
pioneering computer-aided software engineering tools company.
·
Richard J. Agnich, an
advisor to technology start-ups; trustee of Austin College and chair of the
Entrepreneurs Foundation of North Texas; and former Senior Vice President,
General Counsel and Secretary at Texas Instruments.
·
Ray R. Miles, a corporate
strategic consultant for Rajko Associates; former President of Communications
Services with EDS, Inc.; and former manager of software strategy at Texas
Instruments.
Your
independent Board and management team are focused solely on delivering steadily
increasing financial and operational performance and will remain responsible
to all investors
while continuing to
aggressively evaluate growth strategies and value-creating opportunities.
Your Board of Directors unanimously recommends that an
affirmative vote be cast for each of our director nominees and for each of
the other proposals listed on the
white
proxy card. The Board urges you
not
to sign or
return any proxy card sent to you by Pinnacle/Red Oak.
Sincerely,
Nancy
L. Harris
President,
Chief Executive Officer and Director
About Asure Software
Headquartered
in Austin, Texas, Asure Software (ASUR), (a d/b/a of Forgent Networks, Inc.),
empowers small to mid-size organizations and divisions of large enterprises to
operate more efficiently, increase worker productivity and reduce costs through
a comprehensive suite of on-demand workforce management software and services.
Asures market-leading suite includes products that optimize workforce time and
attendance tracking, benefits enrollment and tracking, pay stubs and W2
documentation, expense management, and meeting and event management. With
additional offices in Warwick, Rhode Island, Vancouver, British Columbia, and
Mumbai, India, Asure serves 3,500 customers around the world. For more
information, please visit www.asuresoftware.com.
Safe
Harbor Statement under the Private Securities Litigation Reform Act of 1995:
Statements
in this press release regarding Asures business which are not historical facts
are forward-looking statements that involve risks and uncertainties. Such
risks and uncertainties, which include those associated with continued listing
of the Companys securities on the NASDAQ Capital Market, could cause actual
results to differ from those contained in the forward-looking statements.
Contact
Information:
Jay
Peterson, Asure Software: 512-437-2483
Rob Berick, Dix & Eaton: 216-241-4611
Rajeev Kumar, Georgeson Inc.: 212-440-9812
SUPPLEMENTAL INFORMATION
In connection with its upcoming Annual
Meeting of Stockholders, the Company plans to file a proxy statement with the
Securities and Exchange Commission.
ASURE SOFTWARE STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT WHEN
IT IS AVAILABLE BECAUSE IT CONTAINS IMPORTANT INFORMATION. Investors and security holders may obtain a
free copy of the proxy statement and other material (when available) and any
other documents that may be filed by the Company with the Securities and
Exchange Commission in connection with the annual meeting at the Securities and
Exchange Commissions web site at www.sec.gov.
Stockholders of the Company may also obtain free copies of the proxy
statement and other documents filed by the Company in connection with the
annual meeting by directing a request to:
108 Wild Basin Road South, Austin, Texas 78746, Attention: Secretary.
Under applicable regulations of the
Securities and Exchange Commission, certain of the Company and its directors
and executive officers are deemed to be participants in the solicitation of
proxies from the Companys stockholders in favor of the proposals to be
presented by the Company at the Annual Meeting of Stockholders. These directors and executive officers
include the following:
Name and Director/Executive
Officer
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Beneficial Ownership (1)(2)
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Richard
N. Snyder
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983,655
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(3)(11)
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James
H. Wells
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95,672
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(4)
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Lou
Mazzucchelli
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57,772
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(5)
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Richard
J. Agnich
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97,772
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(6)
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Ray
R. Miles
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51,772
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(7)
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Jay
C. Peterson
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276,877
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(8)(11)
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Nancy
L. Harris
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265,680
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(9)(11)
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(1)
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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.
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(2)
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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.
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(3)
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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.
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(4)
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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.
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(5)
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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.
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(6)
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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.
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(7)
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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.
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(8)
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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.
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(9)
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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.
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(11)
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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.
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SOLICITATION; EXPENSES
In
addition to the use of the mail, proxies may be solicited by personal
interview, telephone and telegram, electronic mail or other means by directors,
officers and other employees of the Company who will not be specially
compensated for these services. The
Company has engaged Georgeson Inc. to serve as a proxy solicitor for the
Company. The entire expense of
preparing, assembling, printing and mailing this proxy solicitation and related
materials and the cost of soliciting proxies will be borne by the Company. The Company will also request that brokers,
nominees, custodians and other fiduciaries forward soliciting materials to the
beneficial owners of shares held of record by such brokers, nominees,
custodians and other fiduciaries. The
Company will reimburse such persons for their reasonable expenses in connection
therewith.
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