UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
(Amendment
No. )
Filed by
the Registrant ¨
Filed by
a Party other than the Registrant x
Check the
appropriate box:
x Preliminary
Proxy Statement
¨ Confidential,
for Use of the Commission Only (as permitted by Rule14a-6(e)(2))
¨ Definitive
Proxy Statement
¨ Definitive
Additional Materials
o Soliciting
Material Under Rule 14a-12
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iPASS
INC.
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(Name
of Registrant as Specified in Its Charter)
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FOXHILL
OPPORTUNITY MASTER FUND, L.P.
FOXHILL
OPPORTUNITY FUND, L.P.
FOXHILL
OPPORTUNITY OFFSHORE FUND, LTD.
FOXHILL
CAPITAL (GP), LLC
FOXHILL
CAPITAL PARTNERS, LLC
NEIL
WEINER
RANDALL
C. BASSETT
KENNETH
H. TRAUB
PAUL
A. GALLEBERG
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(Name
of Persons(s) Filing Proxy Statement, if Other Than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
x No
fee required.
¨ Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title
of each class of securities to which transaction applies:
(2) 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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(4) Proposed
maximum aggregate value of transaction:
(5) Total
fee paid:
¨ Fee
paid previously with preliminary materials:
¨ 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.
(1) Amount
previously paid:
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Schedule or Registration Statement No.:
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Filed:
2
PRELIMINARY
COPY - SUBJECT TO COMPLETION, DATED APRIL 9, 2009
FOXHILL
OPPORTUNITY MASTER FUND, L.P.
________,
2009
Dear
Fellow Stockholder:
Foxhill
Opportunity Master Fund, L.P., together with the other participants in this
solicitation (“Foxhill” or “we”), is the beneficial owner of an aggregate of
4,355,162 shares of Common Stock of iPass Inc. (“iPass” or the “Company”),
representing approximately 7.1% of the outstanding Common Stock of the
Company. For the reasons set forth in the attached Proxy Statement,
we do not believe the Board of Directors of the Company (the “Board”) is acting
in the best interests of its stockholders. We are therefore seeking
your support at the annual meeting of stockholders, or any other meeting of
stockholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the “Annual Meeting”) scheduled to be
held at ______________ located at ___ ________, ________, _________ _______ on
_______, ________ __, 2009 at __:__ _.m., local time, for the
following:
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1.
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To
elect Foxhill’s slate of three director nominees to the Board in
opposition to three of the Company’s incumbent
directors;
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2.
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To
adopt a non-binding resolution previously submitted to the Company by
Foxhill recommending that the Board take those steps necessary, in
accordance with applicable law, to remove the classification of the Board
so that all of the directors are elected annually rather than serving for
three-year staggered terms as is presently the case, to be effected in a
manner that does not disqualify directors previously elected from
completing their terms on the
Board;
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3.
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To
ratify the appointment of KPMG LLP as the independent registered public
accounting firm of the Company for the fiscal year ending December 31,
2009; and
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4.
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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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We are
not seeking control of the Board. Rather, we are seeking three out of
the nine seats on the Board to ensure that the interests of the stockholders,
the true owners of iPass, are vigorously represented in the Board
room. The election of our nominees will also send a strong message to
the remaining incumbent directors that stockholders are not satisfied with the
Company’s corporate governance and management. We urge you to
carefully consider the information contained in the attached Proxy Statement and
then support our efforts by signing, dating and returning the enclosed GOLD proxy card
today. The attached Proxy Statement and the enclosed GOLD proxy card are first
being furnished to the stockholders on or about __________, 2009.
If you
have already voted a proxy card furnished by the Company’s management, you have
every right to change your votes by signing, dating and returning a later dated
proxy.
If you
have any questions or require any assistance with your vote, please contact
Innisfree M&A Incorporated, which is assisting us, at their address and
toll-free number listed on the following page.
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Thank
you for your support,
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Neil
Weiner
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Foxhill
Opportunity Master Fund,
L.P.
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3
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If
you have any questions, require assistance in voting your GOLD proxy
card,
or
need additional copies of Foxhill’s proxy materials, please
contact
Innisfree
M&A Incorporated at the address or phone numbers listed
below.
Innisfree
M&A Incorporated
501
Madison Avenue, 20th Floor
New
York, NY 10022
Stockholders
Call Toll-Free at: (877) 456-3510
Banks
and Brokers Call Collect at: (212) 750-5833
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4
ANNUAL
MEETING OF STOCKHOLDERS
OF
iPASS
INC.
_________________________
PROXY
STATEMENT
OF
FOXHILL
OPPORTUNITY MASTER FUND, L.P.
_________________________
PLEASE
SIGN, DATE AND MAIL THE ENCLOSED GOLD PROXY CARD TODAY
Foxhill
Opportunity Master Fund, L.P., a Cayman Islands exempted limited partnership,
together with the other participants in this solicitation (“Foxhill” or “we”),
is a significant stockholder of iPass Inc., a Delaware corporation (“iPass” or
the “Company”). We do not believe the Board of Directors of the
Company (the “Board”) is acting in the best interests of its
stockholders. We are therefore seeking your support at the annual
meeting of stockholders, or any other meeting of stockholders held in lieu
thereof, and any adjournments, postponements, reschedulings or continuations
thereof (the “Annual Meeting”) scheduled to be held at ______________ located at
___ ________, ________, _________ _______ on _______, ________ __, 2009 at __:__
_.m., local time, for the following:
1. To
elect Foxhill’s slate of three director nominees, Randall C. Bassett, Kenneth H.
Traub and Paul A. Galleberg (the “Nominees”) to the Board in opposition to three
of the Company’s incumbent directors;
2. To
adopt a non-binding resolution previously submitted to the Company by Foxhill
recommending that the Board take those steps necessary, in accordance with
applicable law, to remove the classification of the Board so that all of the
directors are elected annually rather than serving for three-year staggered
terms as is presently the case, to be effected in a manner that does not
disqualify directors previously elected from completing their terms on the Board
(the “Declassification Proposal”);
3. To
ratify the appointment of KPMG LLP as the independent registered public
accounting firm of the Company for the fiscal year ending December 31, 2009;
and
4. To
transact such other business as may properly come before the Annual Meeting, or
any adjournment thereof.
This
Proxy Statement and the enclosed GOLD proxy card are first
being mailed to stockholders on or about __________, 2009.
Foxhill,
Foxhill Opportunity Fund, L.P. (“Foxhill Opportunity”), Foxhill Opportunity
Offshore Fund, Ltd. (“Foxhill Offshore”), Foxhill Capital (GP), LLC (“Foxhill
GP”), Foxhill Capital Partners, LLC (“Foxhill Capital”), Neil Weiner (together
with Foxhill, Foxhill Opportunity, Foxhill Offshore, Foxhill GP and Foxhill
Capital, the “Foxhill Parties”), Randall C. Bassett, Kenneth H. Traub, and Paul
A. Galleberg are members of a group formed in connection with this proxy
solicitation and are deemed participants in this proxy
solicitation.
iPass has
set the record date for determining stockholders entitled to notice of and to
vote at the Annual Meeting as _________, 2009 (the “Record
Date”). The mailing address of the principal executive offices of
iPass is 3800 Bridge Parkway, Redwood Shores, California
94065. Stockholders of record at the close of business on the Record
Date will be entitled to vote at the Annual Meeting. According to
iPass, as of the Record Date, there were ___________ shares of common stock,
$0.001 par value per share (the “Shares”) outstanding and entitled to vote at
the Annual Meeting. As of the Record Date, Foxhill, together with the
other participants in this solicitation, were the beneficial owners of an
aggregate of 4,355,162 Shares, which represents approximately 7.1% of the Shares
outstanding (based on the Company’s proxy statement). The
participants in this solicitation intend to vote such Shares (1) FOR the
election of the Nominees, (2) FOR the approval of the Declassification Proposal,
and (3) FOR the ratification of the appointment of KPMG LLP as described
herein.
THIS
SOLICITATION IS BEING MADE BY FOXHILL AND NOT ON BEHALF OF THE BOARD OF
DIRECTORS OR MANAGEMENT OF iPASS. FOXHILL IS NOT AWARE OF ANY OTHER
MATTERS TO BE BROUGHT BEFORE THE ANNUAL MEETING. SHOULD OTHER
MATTERS, WHICH FOXHILL IS NOT AWARE OF A REASONABLE TIME BEFORE THIS
SOLICITATION, BE BROUGHT BEFORE THE ANNUAL MEETING, THE PERSONS NAMED AS PROXIES
IN THE ENCLOSED GOLD
PROXY CARD WILL VOTE ON SUCH MATTERS IN THEIR DISCRETION.
FOXHILL
URGES YOU TO SIGN, DATE AND RETURN THE GOLD PROXY CARD IN FAVOR OF
THE ELECTION OF ITS NOMINEES AND THE APPROVAL OF THE DECLASSIFICATION
PROPOSAL.
IF YOU
HAVE ALREADY SENT A PROXY CARD FURNISHED BY iPASS’ MANAGEMENT TO THE COMPANY,
YOU MAY REVOKE THAT PROXY AND VOTE FOR THE ELECTION OF FOXHILL’S NOMINEES BY
SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY
CARD. THE LATEST DATED PROXY IS THE ONLY ONE THAT
COUNTS. ANY PROXY MAY BE REVOKED AT ANY TIME PRIOR TO THE ANNUAL
MEETING BY DELIVERING A WRITTEN NOTICE OF REVOCATION OR A LATER DATED PROXY FOR
THE ANNUAL MEETING TO FOXHILL, C/O INNISFREE M&A INCORPORATED WHICH IS
ASSISTING IN THIS SOLICITATION, OR TO THE SECRETARY OF iPASS, OR BY VOTING IN
PERSON AT THE ANNUAL MEETING.
Important
Notice Regarding the Availability of Proxy Materials for the Annual
Meeting
This
Proxy Statement and our GOLD proxy card are available at
_______________.
2
IMPORTANT
Your vote
is important, no matter how many or how few Shares you own. We urge
you to sign, date, and return the enclosed GOLD proxy card today to vote FOR the
election of our Nominees and FOR the approval of the Declassification
Proposal.
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If
your Shares are registered in your own name, please sign and date the
enclosed GOLD
proxy card and return it to Foxhill, c/o Innisfree M&A Incorporated,
in the enclosed envelope today.
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If
your Shares are held in a brokerage account or bank, you are considered
the beneficial owner of the Shares, and these proxy materials, together
with a GOLD voting
form, are being forwarded to you by your broker or bank. As a
beneficial owner, you must instruct your broker, trustee or other
representative how to vote. Your broker cannot vote your Shares
on your behalf without your
instructions.
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Depending
upon your broker or custodian, you may be able to vote either by toll-free
telephone or by the Internet. Please refer to the enclosed
voting form for instructions on how to vote electronically. You
may also vote by signing, dating and returning the enclosed voting
form.
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Since
only your latest dated proxy card will count, we urge you not to return any
proxy card you receive from the Company. Even if you return the management proxy card marked
“withhold” as a protest against the incumbent directors, it will revoke any
proxy card you may have previously sent to Foxhill. Remember, you can
vote for our three independent nominees only on our GOLD proxy
card. So please make certain that the latest dated proxy card
you return is the GOLD
proxy card.
If you
have any questions regarding your proxy,
or need
assistance in voting your Shares, please call:
Innisfree
M&A Incorporated
501
Madison Avenue, 20th Floor
New
York, NY 10022
Stockholders
Call Toll-Free at: (877) 456-3510
Banks
and Brokers Call Collect at: (212) 750-5833
3
BACKGROUND
TO SOLICITATION
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We
are a long-term stockholder of Shares of iPass, making our first
investment in Shares of iPass in June
2006.
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On
March 13, 2008, we sent a letter to Kenneth Denman, who at the time served
as the President, Chief Executive Officer and Chairman of the Board,
urging the Board to commence a sale process and to set up an independent
committee to review the process.
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On
June 2, 2008, Mr. Weiner participated in a teleconference with three
members of the Board, Allen R. Spies, iPass’ lead independent director,
Peter Clapman and Michael McConnell, who resigned from his position as a
member of the Board, effective October 31,
2008.
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On
June 25, 2008, Mr. Weiner sent a letter to Mr. Spies, summarizing the
issues that Mr. Weiner raised during the June 2, 2008 teleconference call,
including Mr. Weiner’s request that the Company engage an outside
consultant to review management’s business plan, the need for enhancing
performance accountability for management and reviewing and changing
benchmarks for management compensation, and Mr. Weiner’s request that the
Board commence a process to initiate the sale of the Company and establish
an independent committee to review the
process.
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On
July 21, 2008, the Foxhill Parties filed a Schedule 13D with the
Securities and Exchange Commission (the “SEC”), disclosing that the
Foxhill Parties had acquired in excess of 5% of the
Shares.
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On
September 18, 2008, Mr. Weiner sent a letter to Mr. Spies, describing
stockholder displeasure with the Company’s Board, as evidenced by the
significant number of stockholders that withheld their vote for two of the
Company’s independent directors, John D. Beletic, the current Chairman of
the Board, and A. Gary Ames, at the Company’s 2008 annual meeting of
stockholders. In the letter, Mr. Weiner also reiterated his request that
the Company commence a sale process
immediately.
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On
November 3, 2008, the Company announced, for the first time, that it had
engaged an investment-banking firm to explore strategic alternatives in
June 2008. Without disclosing the name of the firm or the
details of the alternatives considered, the Board unanimously determined
to continue to focus on a stand-alone
strategy.
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On
December 9, 2008, Mr. Weiner met with Evan Kaplan, the Company’s recently
appointed President and Chief Executive Officer, Frank E. Verdecanna,
the Company’s Vice President and Chief Financial Officer, and Mr.
Beletic. During the meeting, Mr. Weiner reiterated his concerns
about the Company’s operating performance, lack of profitability and the
Board’s lack of transparency during its consideration of strategic
alternatives.
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On
December 30, 2008, we delivered a letter to the Company, pursuant to Rule
14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), submitting a non-binding proposal and supporting statement
recommending that the Board declassify the
Board.
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We
received a reply letter, dated January 12, 2009, from iPass requesting
that we make certain corrections to our proposal and supporting
statement.
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On
January 23, 2009, we submitted a revised non-binding proposal and
supporting statement to iPass, for inclusion in the Company’s proxy
statement.
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On
February 27, 2009, we delivered a letter to the Company providing notice
to iPass, in accordance with its Bylaws, as to our nomination of the
Nominees for election to the Board, and our submission of the
Declassification Proposal for consideration at the Annual
Meeting.
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On
March 3, 2009, we issued a press release in which we announced our
nomination of the Nominees and submission of the Declassification
Proposal, and in which we reiterated our concerns with the Board’s
business strategies, including its poor capital allocation decisions,
consistent failure to deliver on Company forecasts and its lack of
transparency in exploring all strategic
alternatives.
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On
March 4, 2009, Mr. Weiner met with Messrs. Kaplan and
Verdecanna. During this meeting, Messrs. Weiner, Kaplan and
Verdecanna discussed, among other things, the Company’s inability to
achieve profitability. Mr. Weiner requested quantitative data
with respect to return on investment, but was not provided with any such
information. Messrs. Kaplan and Verdecanna also raised
the possibility of Mr. Weiner serving as a director on the Board in lieu
of our slate of Nominees. We did not believe the appointment of
one new director would ensure that the interests of all stockholders would
be vigorously represented in the Board room. The Board refused
to consider the appointment of any of our Nominees and as a result, we
decided to proceed with this
solicitation.
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On April 7, 2009,
we delivered a letter to the Board expressing our view that recent actions
taken by the Board including with respect to executive incentive
compensation fail to align management incentives with the objective of
achieving profitability and enhancing stockholder value and demonstrate
poor corporate governance practices. We also reiterated our
belief that our three independent director Nominees would provide
meaningful change to the Board and suggested that the Board avoid the
expense of a proxy contest by immediately appointing our three Nominees to
the Board.
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* * * *
5
REASONS
FOR OUR SOLICITATION
We have
been long-term stockholders of iPass, beneficially owning, together with the
other participants in this solicitation, 4,355,162, or approximately 7.1% of the
issued and outstanding voting securities. As long-term stockholders,
we are deeply concerned with the Company’s poor operating performance and the
adverse impact it has had on stockholder value.
Specifically,
our concerns include the following:
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iPass’
stock performance lags behind indices and its
peers;
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iPass’ stock price
trades below its enterprise value;
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iPass’
poor track record of overseeing acquisitions has eroded stockholder
value;
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iPass’
operating performance has significantly deteriorated under senior
management and the Board;
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The
Board has lacked transparency and failed to announce any viable strategic
alternatives to maximize stockholder value;
and
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iPass
has maintained poor corporate governance
practices.
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We are
therefore seeking your support for the election of the Nominees. We
believe the election of the Nominees represents the best means for maximizing
stockholder value. If elected to the Board, the Nominees will
endeavor to use their experience to oversee the Company with a goal of
implementing strategic and operational changes, as well as exploring all viable
alternatives to maximize stockholder value.
We
are concerned with the Company’s poor stock performance, which lags behind
indices and peers.
Under the
current Board, iPass’ stock price has declined by approximately 75% since
January 1, 2008 and approximately 87% over the last three years. In
our opinion, this decline cannot be excused by the recent turmoil in global
financial markets because the Company has underperformed both the broad stock
market as well as other industrial peers.
The
following table, which appears in the Company’s Annual Report on Form 10-K filed
with the SEC on March 16, 2009, highlights iPass’ poor stock performance
relative to the cumulative total returns of the Russell 2000 Index and the
Nasdaq Composite Index. All values assume reinvestment of the full
amount of all dividends and are calculated as of December 31, 2008.
6
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12/31/03
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12/31/04
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12/31/05
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12/31/06
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12/31/07
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12/31/08
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iPass
Inc.
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100.00 | 46.22 | 40.97 | 36.73 | 25.36 | 7.62 | ||||||||||||||||||
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Russell
2000 Index
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100.00 | 117.49 | 121.40 | 142.12 | 135.10 | 88.09 | ||||||||||||||||||
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Nasdaq
Market Index
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100.00 | 108.41 | 110.79 | 122.16 | 134.29 | 79.25 | ||||||||||||||||||
iPass’
stock price trades below its enterprise value.
Despite
undertaking a share buy back program in 2008, a process that can often yield
higher stock prices and improve stockholder value, the Company’s market value is
now worth less than the Company’s remaining cash, resulting in a negative
enterprise value. The Company closing stock price as of April 6, 2009
was $1.02, while its enterprise value as of the same date was negative $5
million. We believe the Board must be reconstituted with members
whose interests are aligned with stockholders and who are committed to taking
all appropriate action to restore value to all stockholders.
The current Board
has a disappointing track record of overseeing acquisitions that, we believe,
has resulted in significant erosion in stockholder value.
The Board
has authorized the spending of approximately $106.5 million on three separate
acquisitions, including the most recent acquisition of GoRemote in February 2006
for $78 million. The Company has had to write down the value of each
of these acquisitions to zero. Clearly, these acquisitions have been
failures. We believe the current Board should be held accountable for
a misguided acquisition strategy that has led to management overpaying for
acquisitions and failing to integrate them effectively. The Board’s
failure to effectively oversee management’s acquisition strategy, in our
opinion, is responsible for significant erosion in stockholder
value.
7
We
believe the Company’s poor operating performance indicates that management’s
business strategy has been flawed.
We have
concerns with the Company’s operating performance, particularly over the past
three fiscal years. The Company’s net income has declined from
approximately $12.9 million in 2005 to a loss of approximately $91.7 million in
2008, gross margin has declined from 62% in 2005 to 39.5% in 2008 and total
stockholder equity has declined from approximately $226.3 million in 2005 to
approximately $90.1 million in 2008.
In our
opinion, iPass’ poor operating results are a direct result of the Company’s
misguided corporate strategy. We believe the existing Board has
failed to hold senior management accountable and to adequately address the
Company’s severe operating performance issues. We further believe the
Company’s recently announced restructuring plan does not set forth a clear path
to profitability in the foreseeable future.
The
current Board lacks transparency and has failed to announce any viable strategic
alternatives to maximize stockholder value.
Stockholders
of iPass, including Foxhill, have repeatedly expressed concerns to the Board and
management, both publicly and privately, regarding the strategic direction of
the Company. In June 2008, the Company announced the retention of an
investment-banking firm to explore all strategic
alternatives. However, in November 2008, the Board asserted that,
“…after consideration of alternatives, the board unanimously determined to
continue to focus on a stand-alone strategy as it strives to maximize
stockholder value.” In addition, in its most recent letter to
stockholders dated March 3, 2009, Mr. Kaplan disclosed that the Board had
conducted discussions with a number of potential strategic partners but
determined “…there were no partners who could provide sufficient value [to the
Company].” Instead, Mr. Kaplan noted that the Company would pursue a
strategy focusing on future growth and would “… de-prioritize all
else.”
Foxhill
questions whether the Board has fully vetted all strategic alternatives, given
the fact that the Board has failed to disclose what alternatives were considered
by the investment banking firm or to describe the discussions it had with
potential strategic partners. Foxhill believes it should be a top
priority to explore all viable strategic alternatives while at the same time
working to improve operating performance and achieve profitability.
We
believe iPass has maintained poor corporate governance practices and there is an
urgent need to improve Board accountability.
Foxhill
believes that iPass has maintained poor corporate governance practices that
inhibit the accountability of management and directors to
stockholders. The following are examples of what we believe to be the
sub-standard corporate governance practices of iPass:
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Under
the Company’s Amended and Restated Certificate of Incorporation, all
vacancies on the Board, including those resulting from removal or an
enlargement of the Board, are to be filled by
directors. Stockholders may fill vacancies or newly created
directorships only if the Board adopts a resolution granting such
authority.
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Stockholders
do not have an express right to call a special meeting under the Company’s
Bylaws.
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Stockholders
may not act by written consent.
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Under
the Company’s Amended and Restated Certificate of Incorporation, the
affirmative vote of at least 66⅔% of stockholders entitled to vote is
required in order to amend the Company’s Bylaws, including rescinding the
classified Board. However, the Board is authorized to adopt,
amend or repeal the Company’s Bylaws without stockholder
vote.
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We
believe governance provisions such as these are contrary to the guidelines for
corporate governance best practices and serve to entrench the
Board.
If
elected, the Nominees will, subject to their fiduciary duties, lobby the Board
to eliminate the Company’s anti-takeover provisions and use their best efforts
to cause the Board to adopt our resolution to declassify the Board, to allow
stockholders to call a special meeting, to act by written consent in lieu of a
stockholder meeting and thereafter, to seek stockholder approval of appropriate
charter amendments, in order to ensure the maximization of stockholder
value.
Without
change to the existing Board, we fear that the Company’s intrinsic value will
continue to erode. The Nominees, if elected, will comprise a minority
of the Board and will work constructively with other elected members of the
Board to pursue the options that they believe are in the best interests of the
stockholders in order to maximize stockholder value. Although the
Nominees will not be able to adopt any measures without the support of at least
some members of the current Board, we believe that the election of the Nominees
will send a strong message to the Board regarding the meaningful change desired
by iPass stockholders. We are committed to safeguarding stockholder
interests and ensuring that all efforts are undertaken to maximize the value of
the Shares for all stockholders. There can be no assurance that these
goals will be achieved if the Nominees are elected.
9
PROPOSAL
NO. 1
ELECTION
OF DIRECTORS
Foxhill
is seeking your support at the Annual Meeting to elect the Nominees in
opposition to the Company’s director nominees. The Board is currently
composed of nine directors divided into three classes. Foxhill
believes that three directors’ terms expire at the Annual Meeting. We
are seeking your support at the Annual Meeting to elect the Nominees in
opposition to the three iPass director nominees. We are not seeking
control of the Board. Your vote to elect the Nominees will have the
legal effect of replacing three incumbent directors of iPass with the
Nominees. If elected, the Nominees will represent a minority of the
members of the Board.
THE
NOMINEES
We have
nominated a slate of highly qualified nominees who we believe possess the
expertise necessary to work with the other members of the Board to restore and
enhance stockholder value. The following information sets forth the
name, age, business address, present principal occupation, and employment and
material occupations, positions, offices, or employments for the past five years
of each of the Nominees. This information has been furnished to
Foxhill by the Nominees. Each of the Nominees is a citizen of the
United States of America.
Randall C. Bassett (Age 64)
currently serves as Managing Member of Value Investments, LLC, a merchant bank
(“Value Investments”). Prior to becoming Managing Member of Value
Investments in 2003, Mr. Bassett was a partner at Latham & Watkins LLP, an
international law firm, from 1977 to 2003. During this period, Mr.
Bassett served two terms as an elected member of the firm’s five person
Executive Committee, following which he served as Chairman of the firm’s Finance
Department. Mr. Bassett also served as the acting Chief Financial
Officer of the firm for more than five years. Mr. Bassett served on
the board of directors and as Chairman of the Strategic Advisory Committee of
American Bank Note Holographics, Inc., a producer and marketer of optical
security devices (“ABNH”), from May 2007 until February 2008, at which time ABNH
was acquired by JDS Uniphase Corporation (“JDSU”). The
principal business address of Mr. Bassett is c/o Value Investments, LLC, 2601
Ocean Park Boulevard, Suite 320, Santa Monica, California 90405.
Kenneth H. Traub (Age 47) is
currently a private investor and strategic management consultant. Mr. Traub
served as Vice President and Corporate Advisor of JDSU, a provider of optical
products and test and measurement solutions for the communications industry,
from February 2008 to September 2008. Previously, Mr. Traub was President, Chief
Executive Officer and a member of the board of directors of ABNH from April 1999
to February 2008, at which time ABNH was acquired by JDSU. Mr. Traub managed an
extensive turnaround of ABNH, and under his leadership, ABNH’s stockholders
enjoyed a gain of over 1000% from 2001 to 2008. The principal
business address of Mr. Traub is 2 Applegate Drive, Robbinsville, New Jersey
08691.
Paul A. Galleberg (Age 48)
serves as Chief Operating Officer and General Counsel to iCrete, LLC, a provider
of technology and quality assurance and quality control systems to the concrete
industry (“iCrete”); Mr. Galleberg joined iCrete in August 2008. From
January 2007 to August 2008, Mr. Galleberg was Managing Principal of PV Asset
Management LLC, a private investment and advisory company. From 2000
to June 2006, Mr. Galleberg served as Senior Vice President, Chief Legal Officer
and Secretary of Infonet Services Corporation, a publicly-traded provider of
cross-border managed data services (“Infonet”). While at Infonet, Mr.
Galleberg had a wide variety of strategic and operational responsibilities,
including managing Infonet’s worldwide network security
operations. From 1994 to 2000, Mr. Galleberg was a partner at Latham
& Watkins LLP. The principal business address of Mr. Galleberg is 2721 Via
Elevado, Palos Verdes Estates, California 90274.
10
The
Nominees will not receive any compensation from Foxhill for their services as
directors of iPass. Foxhill has signed letter agreements pursuant to
which it agreed to indemnify Messrs. Bassett, Traub and Galleberg against any
and all claims of any nature arising from the solicitation of proxies from
iPass’ stockholders in connection with the Annual Meeting and any related
transactions. Other than as stated herein, there are no arrangements
or understandings between Foxhill and any of the Nominees or any other person or
persons pursuant to which the nomination described herein is to be made, other
than the consent by each of the Nominees to be named in this Proxy Statement and
to serve as a director of iPass if elected as such at the Annual
Meeting. None of the Nominees is a party adverse to iPass or any of
its subsidiaries or has a material interest adverse to iPass or any of its
subsidiaries in any material pending legal proceedings.
Foxhill
does not expect that the Nominees will be unable to stand for election, but, in
the event that such persons are unable to serve or for good cause will not
serve, the Shares represented by the enclosed GOLD proxy card will be voted
for substitute nominees. In addition, Foxhill reserves the right to
nominate substitute persons if iPass makes or announces any changes to its
Bylaws or takes or announces any other action that has, or if consummated would
have, the effect of disqualifying the Nominees. In any such case,
Shares represented by the enclosed GOLD proxy card will be voted
for such substitute nominees. Foxhill reserves the right to nominate
additional persons.
YOU
ARE URGED TO VOTE FOR THE ELECTION OF THE NOMINEES ON THE ENCLOSED GOLD PROXY
CARD.
11
PROPOSAL
NO. 2
DECLASSIFICATION
OF THE BOARD
On
December 30, 2008, we delivered a letter to iPass submitting the
Declassification Proposal for inclusion in the Company’s proxy statement at the
Annual Meeting pursuant to Rule 14a-8 of the Exchange
Act. Subsequently, we decided to nominate three directors to the
Board and include our proposal in this Proxy Statement.
We
believe that good corporate governance practices, and the level of
accountability they impose, are closely related to financial performance and
stockholder value. As a result, we believe that it is vital to iPass
and its stockholders that the Board takes steps toward declassifying the Board,
including approving amendments to the Company’s Amended and Restated Certificate
of Incorporation and Bylaws to eliminate the classified Board of Directors
provisions included therein and submission of such amendments for stockholder
approval, to the extent required.
The Board
of the Company is currently divided into three classes, such that each year the
Company’s stockholders are entitled to elect only a portion of the
Board. Furthermore, iPass’ directors are each currently elected to
serve three-year terms on the Board. As a result of this structure,
the Company’s stockholders are generally unable to elect a majority of the Board
at any annual meeting.
The
Declassification Proposal, if enacted, would result in directors standing for
election at future annual meetings for one-year terms. Following
declassification of the Board, each incumbent director (after his then-current
three-year term expires), and any new directors to be elected, would stand for
election for one-year terms. We believe that each member of the Board
should be accountable on an annual basis to the true owners of the Company, its
stockholders.
Classified
boards have been shown in various studies to be negatively correlated with
company performance. The stockholders’ inability to elect directors on an annual
basis helps insulate directors, and the senior managers they appoint, from the
consequences of poor performance. Moreover, we believe that
classified boards may, among other things, inhibit the ability of the Company to
be sold, which could prevent the Company from creating value for its
stockholders. As a result, we see that classified boards are rapidly
becoming a thing of the past as more companies demonstrate a greater commitment
to the principles of corporate democracy, adhering to policies that maximize
accountability and value to stockholders. We believe that is why a majority of
S&P 500 companies now elect their entire board annually.
We
believe the Corporate Governance Policies of the Council of Institutional
Investors (“CII”) sum it up best:
“All
directors should be elected annually (no classified boards).”
We
whole-heartedly agree with CII’s policy and urge you to join us in voting to
call upon the Company to declassify its Board, as a powerful tool for management
incentive, accountability and improving stockholder value for all of the
Company’s stockholders.
The
Declassification Proposal is as follows:
RESOLVED,
that the stockholders of iPass Inc. (the “Company”) recommend that the Board of
Directors (the “Board”) take those steps necessary, in accordance with
applicable law, to remove the classification of the Board of the Company, so
that all directors are elected annually at future meetings, to be effected in a
manner that does not disqualify directors previously elected from completing
their terms on the Board.
YOU
ARE URGED TO VOTE FOR THE DECLASSIFICATION PROPOSAL ON THE ENCLOSED GOLD PROXY
CARD.
12
PROPOSAL
NO. 3
iPASS
PROPOSAL TO RATIFY APPOINTMENT OF INDEPENDENT
REGISTERED
PUBLIC ACCOUNTING FIRM
As
discussed in further detail in iPass’ proxy statement, the Company’s Audit
Committee has selected KPMG LLP as the independent registered public accounting
firm for the Company for the fiscal year ending December 31,
2009. The Audit Committee and the Board each recommends that
stockholders ratify such selection.
WE
DO NOT OBJECT TO THE RATIFICATION OF THE APPOINTMENT OF KPMG LLP AS iPASS’
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR FISCAL YEAR ENDING DECEMBER
31, 2009.
13
VOTING
AND PROXY PROCEDURES
Only
stockholders of record on the Record Date will be entitled to notice of and to
vote at the Annual Meeting. Each Share is entitled to one
vote. Stockholders who sell Shares before the Record Date (or acquire
them without voting rights after the Record Date) may not vote such
Shares. Stockholders of record on the Record Date will retain their
voting rights in connection with the Annual Meeting even if they sell such
Shares after the Record Date. Based on publicly available
information, we believe that the only outstanding classes of securities of iPass
entitled to vote at the Annual Meeting are the Shares.
Shares
represented by properly executed GOLD proxy cards will be voted
at the Annual Meeting as marked and, in the absence of specific instructions,
will be voted FOR the election of the Nominees, FOR the approval of the
Declassification Proposal, FOR the ratification of the appointment of KPMG LLP
to serve as the Company’s independent registered public accounting firm for the
fiscal year ending December 31, 2009, and in the discretion of the persons named
as proxies on all other matters as may properly come before the Annual
Meeting.
QUORUM
The
presence, in person, by remote communication, if applicable, or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock
entitled to vote will constitute a quorum for the transaction of business at the
Annual Meeting. In accordance with Delaware law, abstentions are
counted for purposes of determining the presence or absence of a quorum for the
transaction of business.
VOTES
REQUIRED FOR APPROVAL
Election of
Directors. Since this is a contested election of directors
(i.e. an election in which there are more nominees for director than there are
open positions for directors), directors will be elected by a plurality of the
votes of the shares present in person, by remote communication, if applicable,
or represented by proxy at the Annual Meeting and entitled to vote generally on
the election of directors. Broker non-votes and proxies marked
“withhold authority” will not be counted toward the election of directors or
toward the election of individual Nominees specified in the form of proxy and,
thus, will have no effect in the election of directors.
Approval of the Declassification
Proposal. The affirmative vote of the majority of shares
present in person, by remote communication, if applicable, or represented by
proxy at the Annual Meeting and entitled to vote generally on the subject matter
is required to approve the Declassification Proposal. Votes on the
approval of the Declassification Proposal marked “abstain” will have the same
effect as votes cast against the Declassification Proposal. Broker
non-votes will have no effect.
Consistent
with applicable law, the Declassification Proposal is merely a recommendation to
the Board and its passage cannot compel action, unless approved first by a
resolution of the Board and subsequently approved by a vote of stockholders at a
special meeting or annual meeting. However, a substantial stockholder
vote in favor should, in our opinion, be regarded as a persuasive instruction to
the Board to declassify the Board in accordance with good corporate governance
practices. Given the insulation provided to the Board by iPass’
governance structure, one of the few avenues available to stockholders
dissatisfied with the status quo is the stockholder proposal
process.
14
Ratification of Appointment of KPMG
LLP. The affirmative vote of the majority of shares present in
person, by remote communication, if applicable, or represented by proxy at the
Annual Meeting and entitled to vote generally on the subject matter is required
to approve the appointment of KPMG LLP as the Company’s registered public
accounting firm for the fiscal year ending December 31, 2009. Votes
on the ratification of the appointment of KPMG LLP marked “abstain” will have
the same effect as votes cast against the proposal. Broker non-votes
will have no effect.
DISCRETIONARY
VOTING
Shares
held in “street name” and held of record by banks, brokers or nominees may not
be voted by such banks, brokers or nominees unless the beneficial owners of such
Shares provide them with instructions on how to vote.
REVOCATION
OF PROXIES
Stockholders
of iPass may revoke their proxies at any time prior to exercise by attending the
Annual Meeting and voting in person (although attendance at the Annual Meeting
will not in and of itself constitute revocation of a proxy) or by delivering a
written notice of revocation. The delivery of a subsequently dated
proxy which is properly completed will constitute a revocation of any earlier
proxy. The revocation may be delivered either to Foxhill in care of Innisfree
M&A Incorporated at the address set forth on the back cover of this Proxy
Statement or to the Corporate Secretary of iPass at iPass Inc., 3800 Bridge
Parkway, Redwood Shores, California 94065, or any other address provided by
iPass. Although a revocation is effective if delivered to iPass,
Foxhill requests that either the original or photostatic copies of all
revocations be mailed to Foxhill in care of Innisfree M&A Incorporated at
the address set forth on the back cover of this Proxy Statement so that Foxhill
will be aware of all revocations and can more accurately determine if and when
proxies have been received from the holders of record on the Record Date of a
majority of the outstanding Shares. Additionally, Innisfree M&A
Incorporated may use this information to contact stockholders who have revoked
their proxies in order to solicit later dated proxies for the election of the
Nominees.
IF
YOU WISH TO VOTE FOR THE ELECTION OF THE NOMINEES TO THE BOARD, FOR THE APPROVAL
OF THE DECLASSIFICATION PROPOSAL OR FOR THE RATIFICATION OF THE APPOINTMENT OF
KPMG LLP, PLEASE SIGN, DATE AND RETURN PROMPTLY THE ENCLOSED GOLD PROXY CARD IN
THE POSTAGE-PAID ENVELOPE PROVIDED.
SOLICITATION
OF PROXIES
The
solicitation of proxies pursuant to this Proxy Statement is being made by
Foxhill. Proxies may be solicited by mail, facsimile, telephone,
telegraph, Internet, in person and by advertisements.
Foxhill
has entered into an agreement with Innisfree M&A Incorporated for
solicitation and advisory services in connection with this solicitation, for
which Innisfree M&A Incorporated will receive a fee not to exceed $___,
together with reimbursement for its reasonable out-of-pocket expenses, and will
be indemnified against certain liabilities and expenses, including certain
liabilities under the federal securities laws. Innisfree M&A Incorporated
will solicit proxies from individuals, brokers, banks, bank nominees and other
institutional holders. Foxhill has requested banks, brokerage houses
and other custodians, nominees and fiduciaries to forward all solicitation
materials to the beneficial owners of the Shares they hold of
record. Foxhill will reimburse these record holders for their
reasonable out-of-pocket expenses in so doing. It is anticipated that
Innisfree M&A Incorporated will employ approximately __ persons to solicit
iPass’ stockholders for the Annual Meeting.
15
Pursuant
to the terms of the Joint Filing and Solicitation Agreement (as defined below),
Foxhill, Mr. Bassett and Mr. Traub have each agreed to be responsible for all
expenses incurred in connection with the Foxhill Parties’ and the Nominees’
activities on a pro rata basis among them, based on the number of Shares in the
aggregate beneficially owned by each of them. Costs of this
solicitation of proxies are currently estimated to be approximately
$___. Foxhill, Mr. Bassett and Mr. Traub estimate that through the
date hereof, their expenses in connection with this solicitation are
approximately $___. Foxhill, Mr. Bassett and Mr. Traub intend to seek
reimbursement from iPass of all expenses that they incur in connection with the
solicitation of proxies for the election of the Nominees to the Board and the
approval of the Declassification Proposal at the Annual
Meeting. Foxhill, Mr. Bassett and Mr. Traub do not intend to submit
the question of such reimbursement to a vote of security holders of the
Company.
OTHER
PARTICIPANT INFORMATION
The
participants in this solicitation are Foxhill, Foxhill Opportunity, Foxhill
Offshore, Foxhill GP, Foxhill Capital, Neil Weiner, Randall C. Bassett, Kenneth
H. Traub and Paul A. Galleberg. The principal business of Foxhill is acting as a
collective investment vehicle. The principal business of each of
Foxhill Opportunity and Foxhill Offshore is serving as the general partner of,
and investing in, Foxhill. The principal business of Foxhill GP is
serving as the general partner of Foxhill Opportunity. The principal
business of Foxhill Capital is providing investment management
services. Foxhill Capital is the investment manager of each of
Foxhill, Foxhill Opportunity and Foxhill Offshore. The principal
occupation of Mr. Weiner is serving as managing member of Foxhill Capital and
Foxhill GP. The principal occupation of Mr. Bassett is serving as
Managing Member of Value Investments. The principal occupation of Mr.
Traub is as a private investor and strategic management
consultant. The principal occupation of Mr. Galleberg is serving as
Chief Operating Officer and General Counsel to iCrete.
The
principal business address of each of Foxhill and Foxhill Offshore is c/o
Goldman Sachs (Cayman) Trust Ltd., Harbour Center, 2nd Floor, N. Church St, PO
Box 896, Georgetown, Grand Cayman, Cayman Islands, BWI. The principal
business address of each of Foxhill Opportunity, Foxhill GP and Foxhill Capital
is 502 Carnegie Center, Suite 104, Princeton, New Jersey 08540. The
business address of Mr. Weiner is c/o Foxhill Capital Partners, LLC, 502
Carnegie Center, Suite 104, Princeton, New Jersey 08540. The
principal business address of Mr. Bassett is c/o Value Investments, LLC, 2601
Ocean Park Boulevard, Suite 320, Santa Monica, California 90405. The
principal business address of Mr. Traub is 2 Applegate Drive, Robbinsville, New
Jersey 08691. The principal business address of Mr. Galleberg is 2721
Via Elevado, Palos Verdes Estates, California 90274.
As of the
date hereof, Foxhill beneficially owned 4,166,862 Shares. As general
partners of Foxhill, Foxhill Opportunity and Foxhill Offshore may each be deemed
to beneficially own the 4,166,862 Shares owned by Foxhill. As the
general partner of Foxhill Opportunity, Foxhill GP may be deemed to beneficially
own the 4,166,862 Shares owned by Foxhill. As the investment manager
of Foxhill Opportunity, Foxhill Offshore, and Foxhill, Foxhill Capital may be
deemed to beneficially own the 4,166,862 Shares owned by Foxhill. As
the managing member of Foxhill GP and Foxhill Capital, Mr. Weiner may be deemed
to beneficially own the 4,166,862 Shares owned by Foxhill. As of the
date hereof, Mr. Bassett beneficially owned 83,000 Shares, Mr. Traub
beneficially owned 95,300 Shares and Mr. Galleberg beneficially owned 10,000
Shares.
Mr.
Bassett has effected purchases of iPass Shares through margin accounts
maintained for him with prime brokers, which have extended margin credit to him
as and when required to open or carry positions in the margin accounts, subject
to applicable federal margin regulations, stock exchange rules and the prime
brokers’ credit policies. In such instances, the positions held in
the margin accounts were pledged as collateral security for the repayment of
debit balances in the accounts.
Each of
the participants in this solicitation, as members of a “group” for the purposes
of Rule 13d-5(b)(1) of Exchange Act, may be deemed to beneficially own the
Shares owned in the aggregate by the other participants in this
solicitation. Each participant in this solicitation disclaims
beneficial ownership of the Shares he/it does not directly own. For
information regarding purchases and sales of securities of iPass during the past
two years by the participants in this solicitation, see Schedule
I.
16
On
February 26, 2009, the Foxhill Parties and the Nominees entered into a Joint
Filing and Solicitation Agreement (the “Joint Filing and Solicitation
Agreement”) in which, among other things, (a) the Foxhill Parties and the
Nominees agreed to the joint filing on behalf of each of them of statements on
Schedule 13D with respect to the securities of iPass, (b) the Foxhill Parties
and the Nominees agreed to solicit proxies or written consents for the election
of the Nominees, or any other person(s) nominated by Foxhill, to the Board at
the Annual Meeting (the “Solicitation”), and (c) Foxhill, Mr. Bassett and Mr.
Traub each agreed to be responsible for all expenses incurred in connection with
the Foxhill Parties’ and the Nominees’ activities on a pro rata basis among
them, based on the number of Shares in the aggregate beneficially owned by each
of them.
Except as
set forth in this Proxy Statement (including the Schedules attached hereto), (i)
during the past 10 years, no participant in this solicitation has been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors);
(ii) no participant in this solicitation directly or indirectly beneficially
owns any securities of iPass; (iii) no participant in this solicitation owns any
securities of iPass which are owned of record but not beneficially; (iv) no
participant in this solicitation has purchased or sold any securities of iPass
during the past two years; (v) no part of the purchase price or market value of
the securities of iPass owned by any participant in this solicitation is
represented by funds borrowed or otherwise obtained for the purpose of acquiring
or holding such securities; (vi) no participant in this solicitation is, or
within the past year was, a party to any contract, arrangements or
understandings with any person with respect to any securities of iPass,
including, but not limited to, joint ventures, loan or option arrangements, puts
or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies; (vii) no associate of any
participant in this solicitation owns beneficially, directly or indirectly, any
securities of iPass; (viii) no participant in this solicitation owns
beneficially, directly or indirectly, any securities of any parent or subsidiary
of iPass; (ix) no participant in this solicitation or any of his/its associates
was a party to any transaction, or series of similar transactions, since the
beginning of iPass’ last fiscal year, or is a party to any currently proposed
transaction, or series of similar transactions, to which iPass or any of its
subsidiaries was or is to be a party, in which the amount involved exceeds
$120,000; (x) no participant in this solicitation or any of his/its associates
has any arrangement or understanding with any person with respect to any future
employment by iPass or its affiliates, or with respect to any future
transactions to which iPass or any of its affiliates will or may be a party; and
(xi) no person, including any of the participants in this solicitation, who is a
party to an arrangement or understanding pursuant to which the Nominees are
proposed to be elected has a substantial interest, direct or indirect, by
security holdings or otherwise in any matter to be acted on at the Annual
Meeting. There are no material proceedings to which any participant
in this solicitation or any of his/its associates is a party adverse to iPass or
any of its subsidiaries or has a material interest adverse to iPass or any of
its subsidiaries. With respect to each of the participants in this
solicitation, none of the events enumerated in Item 401(f)(1)-(6) of Regulation
S-K of the Exchange Act, occurred during the past five years.
OTHER
MATTERS AND ADDITIONAL INFORMATION
Other
Matters
Other
than those discussed above, Foxhill is unaware of any other matters to be
considered at the Annual Meeting. However, should other matters,
which Foxhill is not aware of a reasonable time before this solicitation, be
brought before the Annual Meeting, the persons named as proxies on the enclosed
GOLD proxy card will
vote on such matters in their discretion.
17
Stockholder
Proposals
Proposals
of stockholders intended to be presented at iPass’ next annual meeting of
stockholders must be received by iPass for inclusion in its 2010 proxy statement
and form of proxy on or prior to _____.
In
accordance with iPass’ Bylaws, for a proposal to be properly brought before the
2010 annual meeting of stockholders, the stockholder must deliver written notice
of the business the stockholder would like to present, or the person or persons
the stockholder would like to nominate as a director, to the secretary of iPass
at its principal executive offices not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
anniversary date of this year’s meeting date. Therefore, any notice
given by the stockholder pursuant to these provisions of iPass’ Bylaws must be
received no earlier than _____ and no later than _____, unless the date of the
2010 annual meeting of stockholders is more than 30 days before or more than 30
days after the anniversary date, _____. If the 2010 annual meeting of
stockholders is not held within 30 days before or 30 days after the anniversary
of this year’s meeting date, then notice must be received by iPass not earlier
than the close of business on the 120th day prior to the 2010 annual meeting and
not later than the close of business on the later of the 90th day prior to the
2010 annual meeting or the 10th day following the day on which notice of the
date of the meeting or public disclosure of the date of the meeting was given or
made. Notices of intention to present proposals at the 2010 annual
meeting of stockholders should be addressed to Corporate Secretary, iPass Inc.,
3800 Bridge Parkway, Redwood Shores, California 94065.
The
information set forth above regarding the procedures for submitting stockholder
nominations and other business proposals for consideration at iPass’ 2010 Annual
Meeting of Stockholders is based on information contained in the Company’s
public filings. The incorporation of this information in this Proxy
Statement should not be construed as an admission by us that such procedures are
legal, valid or binding.
Incorporation
by Reference
FOXHILL
HAS OMITTED FROM THIS PROXY STATEMENT CERTAIN DISCLOSURE REQUIRED BY APPLICABLE
LAW THAT IS EXPECTED TO BE INCLUDED IN THE COMPANY’S PROXY STATEMENT RELATING TO
THE ANNUAL MEETING. THIS DISCLOSURE IS EXPECTED TO INCLUDE, AMONG
OTHER THINGS, CURRENT BIOGRAPHICAL INFORMATION ON iPASS’ CURRENT DIRECTORS,
INFORMATION CONCERNING EXECUTIVE COMPENSATION, AND OTHER IMPORTANT
INFORMATION. ALTHOUGH WE DO NOT HAVE ANY KNOWLEDGE INDICATING THAT
ANY STATEMENT MADE BY FOXHILL HEREIN IS UNTRUE, WE DO NOT TAKE ANY
RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF STATEMENTS TAKEN FROM PUBLIC
DOCUMENTS AND RECORDS THAT WERE NOT PREPARED BY OR ON OUR BEHALF, OR FOR ANY
FAILURE BY iPASS TO DISCLOSE EVENTS THAT MAY AFFECT THE SIGNIFICANCE OR ACCURACY
OF SUCH INFORMATION. SEE SCHEDULE II FOR
INFORMATION REGARDING PERSONS WHO BENEFICIALLY OWN MORE THAN 5% OF THE SHARES
AND THE OWNERSHIP OF THE SHARES BY THE DIRECTORS AND MANAGEMENT OF
iPASS.
The
information concerning iPass contained in this Proxy Statement and the Schedules
attached hereto has been taken from, or is based upon, publicly available
information.
Foxhill
Opportunity Master Fund, L.P.
________,
2009
18
SCHEDULE
I
TRANSACTIONS
IN SECURITIES OF iPASS DURING THE PAST TWO YEARS
|
Shares
of Common Stock
Purchased / (Sold)
|
Price
Per
Share($)
|
Date
of
Purchase /
Sale
|
FOXHILL
OPPORTUNITY MASTER FUND, L.P.
|
3,000
|
5.6927
|
01/08/07
|
|
|
15,000
|
5.4383
|
01/17/07
|
|
|
10,000
|
5.4250
|
01/17/07
|
|
|
10,000
|
5.1300
|
01/18/07
|
|
|
17,195
|
5.1090
|
01/18/07
|
|
|
10,000
|
5.1139
|
01/18/07
|
|
|
10,000
|
5.1478
|
01/18/07
|
|
|
10,000
|
5.1465
|
01/23/07
|
|
|
10,000
|
5.1855
|
01/23/07
|
|
|
10,000
|
5.1541
|
01/25/07
|
|
|
10,000
|
5.1908
|
01/25/07
|
|
|
20,000
|
5.1073
|
01/26/07
|
|
|
5,262
|
5.2500
|
01/31/07
|
|
|
(2,500)
|
4.8263
|
02/02/07
|
|
|
(5,000)
|
4.8386
|
02/15/07
|
|
|
3,000
|
5.0000
|
03/02/07
|
|
|
5,000
|
4.9078
|
03/13/07
|
|
|
(8,000)
|
4.8505
|
04/20/07
|
|
|
(5,000)
|
4.8650
|
04/23/07
|
|
|
(5,000)
|
4.7726
|
04/25/07
|
|
|
10,000
|
5.3660
|
05/04/07
|
|
|
10,000
|
5.1466
|
05/14/07
|
|
|
10,000
|
5.0696
|
05/16/07
|
|
|
10,000
|
5.0935
|
05/18/07
|
|
|
10,000
|
5.2240
|
05/21/07
|
|
|
3,000
|
5.2900
|
05/25/07
|
|
|
10,000
|
5.3550
|
06/05/07
|
|
|
5,000
|
5.3317
|
06/05/07
|
|
|
5,000
|
5.3632
|
06/11/07
|
|
|
(700)
|
4.7366
|
06/13/07
|
|
|
5,000
|
5.3834
|
06/14/07
|
|
|
5,000
|
5.5300
|
06/15/07
|
|
|
(156,300)
|
4.6738
|
06/15/07
|
|
|
10,000
|
5.6814
|
06/28/07
|
|
|
5,000
|
5.4909
|
06/29/07
|
|
|
10,000
|
5.4860
|
06/29/07
|
|
|
5,000
|
5.4632
|
07/05/07
|
|
|
5,000
|
5.5766
|
07/12/07
|
I-1
|
3,000
|
5.5800
|
07/17/07
|
|
|
5,000
|
5.5900
|
07/17/07
|
|
|
5,000
|
5.2886
|
07/24/07
|
|
|
10,000
|
5.2697
|
07/25/07
|
|
|
5,000
|
5.1087
|
07/26/07
|
|
|
30,000
|
5.1170
|
07/26/07
|
|
|
20,000
|
5.0769
|
07/27/07
|
|
|
5,000
|
4.7964
|
07/30/07
|
|
|
10,000
|
4.7393
|
08/01/07
|
|
|
5,000
|
4.4448
|
08/06/07
|
|
|
4,886
|
4.5202
|
08/09/07
|
|
|
7,206
|
4.5346
|
08/10/07
|
|
|
25,000
|
4.4635
|
08/13/07
|
|
|
25,000
|
4.5500
|
08/13/07
|
|
|
10,000
|
4.3700
|
08/14/07
|
|
|
15,000
|
4.4393
|
08/23/07
|
|
|
35,000
|
4.2997
|
08/24/07
|
|
|
5,000
|
4.2691
|
08/28/07
|
|
|
15,000
|
4.2846
|
08/29/07
|
|
|
5,000
|
4.1881
|
08/29/07
|
|
|
1,000
|
4.2200
|
08/30/07
|
|
|
5,050
|
4.4230
|
08/31/07
|
|
|
5,000
|
4.4200
|
09/06/07
|
|
|
5,000
|
4.3000
|
09/07/07
|
|
|
5,000
|
4.2918
|
09/07/07
|
|
|
10,000
|
4.2185
|
09/10/07
|
|
|
5,000
|
4.2584
|
09/10/07
|
|
|
5,000
|
4.2496
|
09/11/07
|
|
|
10,000
|
4.1484
|
09/12/07
|
|
|
20,000
|
4.0963
|
09/14/07
|
|
|
5,000
|
4.0500
|
09/17/07
|
|
|
10,000
|
4.0667
|
09/18/07
|
|
|
60,000
|
4.7033
|
09/21/07
|
|
|
5,000
|
4.2000
|
09/25/07
|
|
|
15,000
|
4.2000
|
09/25/07
|
|
|
10,000
|
4.2245
|
09/26/07
|
|
|
25,000
|
4.1872
|
10/01/07
|
|
|
5,000
|
4.1500
|
10/02/07
|
|
|
15,000
|
4.2093
|
10/04/07
|
|
|
5,000
|
4.2311
|
10/04/07
|
|
|
10,000
|
4.2796
|
10/10/07
|
|
|
5,000
|
4.5410
|
10/11/07
|
|
|
875
|
4.2900
|
10/19/07
|
|
|
22,700
|
4.2441
|
10/22/07
|
|
|
5,000
|
4.2800
|
10/24/07
|
I-2
|
8,000
|
4.2369
|
11/06/07
|
|
|
50,000
|
4.1143
|
11/07/07
|
|
|
10,000
|
4.1026
|
11/09/07
|
|
|
15,000
|
4.1276
|
11/12/07
|
|
|
(5,380)
|
5.2765
|
11/14/07
|
|
|
20,000
|
4.1544
|
11/19/07
|
|
|
5,000
|
4.1700
|
11/20/07
|
|
|
55,000
|
4.0795
|
11/26/07
|
|
|
(25,000)
|
5.4962
|
11/28/07
|
|
|
10,000
|
4.0500
|
12/04/07
|
|
|
5,000
|
4.1328
|
12/07/07
|
|
|
1,000
|
4.6400
|
12/07/07
|
|
|
50,000
|
4.0772
|
12/10/07
|
|
|
10,000
|
4.0949
|
12/12/07
|
|
|
25,600
|
4.1409
|
12/13/07
|
|
|
20,000
|
4.1187
|
12/14/07
|
|
|
25,000
|
4.0510
|
12/17/07
|
|
|
5,000
|
4.0500
|
12/18/07
|
|
|
337,000
|
4.0527
|
12/19/07
|
|
|
3,200
|
4.0700
|
12/20/07
|
|
|
54,000
|
4.6307
|
12/21/07
|
|
|
(20,000)
|
5.5920
|
12/21/07
|
|
|
125,000
|
4.0473
|
12/28/07
|
|
|
20,000
|
4.0813
|
12/31/07
|
|
|
10,000
|
3.8200
|
01/04/08
|
|
|
15,000
|
3.7337
|
01/07/08
|
|
|
20,000
|
3.6385
|
01/09/08
|
|
|
20,000
|
3.8258
|
01/10/08
|
|
|
5,000
|
3.7804
|
01/11/08
|
|
|
10,000
|
3.4471
|
01/18/08
|
|
|
15,000
|
3.4717
|
01/18/08
|
|
|
10,000
|
3.6000
|
01/18/08
|
|
|
15,000
|
3.1256
|
01/22/08
|
|
|
10,000
|
3.3490
|
01/23/08
|
|
|
10,000
|
3.1392
|
01/30/08
|
|
|
30,000
|
3.1441
|
01/31/08
|
|
|
20,000
|
3.1240
|
02/01/08
|
|
|
5,000
|
3.1100
|
02/05/08
|
|
|
5,100
|
3.0298
|
02/07/08
|
|
|
25,100
|
3.0231
|
02/08/08
|
|
|
10,000
|
3.0100
|
02/14/08
|
|
|
10,000
|
2.8900
|
02/15/08
|
|
|
5,000
|
2.8479
|
02/29/08
|
|
|
10,000
|
2.7806
|
03/03/08
|
|
|
10,000
|
2.8300
|
03/03/08
|
I-3
|
5,000
|
2.7334
|
03/04/08
|
|
|
5,000
|
2.7200
|
03/06/08
|
|
|
30,000
|
2.6214
|
03/07/08
|
|
|
10,000
|
2.5400
|
03/10/08
|
|
|
500
|
3.8900
|
03/11/08
|
|
|
(10,000)
|
5.4581
|
03/17/08
|
|
|
(20,000)
|
5.3666
|
03/18/08
|
|
|
(5,000)
|
5.1300
|
03/19/08
|
|
|
(20,000)
|
5.1103
|
03/19/08
|
|
|
(10,000)
|
5.1208
|
03/19/08
|
|
|
19,500
|
3.8900
|
03/20/08
|
|
|
(40,000)
|
5.1607
|
03/20/08
|
|
|
(20,000)
|
5.0912
|
03/24/08
|
|
|
(20,000)
|
5.1406
|
03/24/08
|
|
|
(20,000)
|
5.2416
|
03/25/08
|
|
|
100,000
|
3.0474
|
03/31/08
|
|
|
25,000
|
3.0851
|
04/01/08
|
|
|
10,000
|
3.0416
|
04/07/08
|
|
|
5,000
|
2.9088
|
04/08/08
|
|
|
5,000
|
2.7800
|
04/10/08
|
|
|
10,000
|
2.6838
|
04/11/08
|
|
|
5,000
|
2.6183
|
04/14/08
|
|
|
5,000
|
2.6100
|
04/15/08
|
|
|
200,000
|
2.1773
|
05/09/08
|
|
|
10,000
|
2.2285
|
05/19/08
|
|
|
10,000
|
2.2074
|
05/20/08
|
|
|
34,764
|
2.1055
|
05/21/08
|
|
|
39,101
|
2.0537
|
05/22/08
|
|
|
23,300
|
2.1151
|
05/23/08
|
|
|
25,000
|
2.1321
|
05/27/08
|
|
|
10,000
|
2.1973
|
05/28/08
|
|
|
25,000
|
2.1769
|
05/29/08
|
|
|
200,000
|
2.1547
|
05/30/08
|
|
|
20,000
|
2.1333
|
06/02/08
|
|
|
5,000
|
2.2657
|
06/09/08
|
|
|
50,000
|
2.1232
|
06/11/08
|
|
|
25,000
|
2.1193
|
06/12/08
|
|
|
17,600
|
2.1080
|
06/18/08
|
|
|
10,000
|
2.1100
|
06/19/08
|
|
|
20,000
|
2.0794
|
06/20/08
|
|
|
10,000
|
2.0584
|
06/23/08
|
|
|
10,000
|
2.0600
|
06/23/08
|
|
|
20,000
|
2.0587
|
06/24/08
|
|
|
50,000
|
2.0494
|
06/25/08
|
|
|
20,000
|
2.0270
|
06/26/08
|
I-4
|
51,400
|
2.0311
|
06/27/08
|
|
|
50,000
|
2.1214
|
06/30/08
|
|
|
10,000
|
2.0100
|
07/01/08
|
|
|
2,600
|
2.0000
|
07/01/08
|
|
|
10,000
|
2.0000
|
07/03/08
|
|
|
70,300
|
1.9298
|
07/07/08
|
|
|
30,000
|
1.8620
|
07/08/08
|
|
|
102,732
|
1.8527
|
07/09/08
|
|
|
300,000
|
1.7322
|
07/10/08
|
|
|
50,000
|
1.6850
|
07/11/08
|
|
|
20,000
|
1.7298
|
07/14/08
|
|
|
50,000
|
1.6324
|
07/14/08
|
|
|
17,300
|
1.6300
|
07/15/08
|
|
|
100,000
|
1.9150
|
07/23/08
|
|
|
10,000
|
1.9004
|
07/29/08
|
|
|
20,000
|
1.9426
|
07/31/08
|
|
|
10,000
|
1.9740
|
08/08/08
|
|
|
10,000
|
1.5524
|
10/07/08
|
|
|
(23,870)
|
5.1006
|
10/16/08
|
|
|
(30,000)
|
5.3137
|
10/30/08
|
|
|
(20,100)
|
5.5638
|
10/31/08
|
|
|
(10,000)
|
5.4936
|
11/03/08
|
|
|
(300)
|
5.4860
|
11/04/08
|
|
|
29,750
|
1.3537
|
12/01/08
|
|
|
4,250
|
1.2500
|
12/02/08
|
|
|
127,500
|
1.2100
|
12/02/08
|
|
|
14,875
|
1.0582
|
12/04/08
|
|
|
17,000
|
1.1025
|
12/05/08
|
|
|
5,950
|
1.2543
|
01/28/09
|
|
|
425
|
1.2320
|
01/29/09
|
|
|
850
|
1.2560
|
01/30/09
|
|
|
5,610
|
1.1700
|
02/04/09
|
|
|
16,320
|
1.1897
|
02/05/09
|
|
|
4,930
|
1.1991
|
02/11/09
|
|
|
59,500
|
1.0600
|
02/12/09
|
|
|
10,000
|
1.1800
|
02/12/09
|
|
|
10,000
|
1.0800
|
02/13/09
|
|
|
6,841
|
1.0700
|
02/18/09
|
|
|
215,283*
|
0.9300
|
02/26/09
|
*
Represents Shares acquired through a cross-trade with a third-party managed
account, the investment manager of which is Foxhill
Capital.
I-5
RANDALL
C. BASSETT
|
10,000
|
1.231
|
12/08/08
|
|
|
50
|
1.225
|
12/09/08
|
|
|
3,950
|
1.186
|
12/10/08
|
|
|
10,000
|
1.127
|
12/11/08
|
|
|
100
|
1.457
|
12/15/08
|
|
|
9,900
|
1.112
|
12/16/08
|
|
|
11,000
|
1.128
|
02/12/09
|
|
|
4,204
|
1.071
|
02/13/09
|
|
|
5,796
|
1.071
|
02/17/09
|
|
|
8,000**
|
0.986
|
02/24/09
|
|
|
10,000
|
0.941
|
03/05/09
|
|
|
10,000
|
0.961
|
03/05/09
|
KENNETH
H. TRAUB
|
1,700
|
2.045
|
08/11/08
|
|
|
109
|
2.619
|
08/14/08
|
|
|
4,891
|
2.211
|
08/15/08
|
|
|
5,000
|
2.191
|
08/21/08
|
|
|
3,175
|
1.783
|
11/04/08
|
|
|
100
|
1.760
|
11/05/08
|
|
|
1,725
|
1.770
|
11/05/08
|
|
|
10,000
|
1.731
|
11/05/08
|
|
|
6,100
|
1.508
|
11/06/08
|
|
|
1,700
|
1.530
|
11/06/08
|
|
|
2,200
|
1.510
|
11/06/08
|
|
|
5,000
|
1.630
|
11/06/08
|
|
|
5,000
|
1.682
|
11/06/08
|
|
|
1,200
|
1.258
|
12/02/08
|
|
|
3,800
|
1.250
|
12/02/08
|
|
|
5,000
|
1.130
|
12/03/08
|
|
|
5,000
|
1.182
|
12/03/08
|
|
|
3,600
|
1.046
|
12/04/08
|
|
|
5,000
|
1.082
|
12/04/08
|
|
|
5,000
|
1.136
|
12/11/08
|
|
|
5,000
|
1.101
|
02/23/09
|
|
|
5,000
|
0.968
|
02/24/09
|
|
|
7,100
|
0.979
|
02/25/09
|
|
|
2,900
|
0.952
|
02/26/09
|
PAUL
A. GALLEBERG
|
10,000***
|
0.9452
|
03/04/09
|
***
Represents Shares held in The Galleberg Trust, dated December 13, 2000, the
beneficiaries of which are Mr. Galleberg and his wife.
I-6
SCHEDULE
II
The
following table is reprinted from iPass’ proxy statement filed with the
Securities and Exchange Commission on April 28, 2008.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS
AND MANAGEMENT
The
following table provides information as to each person who is known to the
Company to be the beneficial owner of more than 5% of the Company’s voting
securities and of the Company’s directors and executive officers and all
directors and executive officers as a group as of March 31, 2008 (unless
otherwise indicated):
|
|
Beneficially
Owned (Including the Number of Shares Shown in the First
Column)
|
|||||||||||
|
Name
and Address of Beneficial Owner
|
Shares
Issuable
Pursuant
to Options
Exercisable
Within
60
Days of
March
31, 2008
|
Shares
|
Percent
|
|||||||||
|
Kenneth
D. Denman(1)
|
454,000
|
3,027,300
|
4.8
|
%
|
||||||||
|
Anurag
Lal(2)
|
136,667
|
137,167
|
*
|
|||||||||
|
John
Charters
|
285,000
|
386,200
|
*
|
|||||||||
|
Bruce
K. Posey
|
221,930
|
472,171
|
*
|
|||||||||
|
Frank
Verdecanna
|
150,625
|
249,650
|
*
|
|||||||||
|
Arthur
C. Patterson(3)
|
210,000
|
480,480
|
*
|
|||||||||
|
Peter
G. Bodine(4)
|
210,000
|
246,523
|
*
|
|||||||||
|
A.
Gary Ames
|
210,000
|
220,000
|
*
|
|||||||||
|
John
D. Beletic(5)
|
153,000
|
217,000
|
*
|
|||||||||
|
Allan
R. Spies
|
210,000
|
221,667
|
*
|
|||||||||
|
Olof
Pripp
|
60,000
|
80,000
|
*
|
|||||||||
|
Peter
C. Clapman
|
45,000
|
60,000
|
*
|
|||||||||
|
Stanley
P. Gold(6)
|
0
|
9,127,950
|
14.5
|
%
|
||||||||
|
Michael
J. McConnell(7)
|
45,000
|
9,187,950
|
14.6
|
%
|
||||||||
|
Royce &
Associates LLC(8)
|
—
|
5,603,999
|
8.9
|
%
|
||||||||
|
Entities
affiliated with Shamrock Partners Activist Value Fund,
L.L.C.(9)
|
—
|
9,127,950
|
14.5
|
%
|
||||||||
|
All
directors and executive officers as a group
(15 persons)
|
2,658,722
|
15,352,008
|
23.4
|
%
|
||||||||
____________________
|
*
|
Less
than one percent (1%).
|
|
(1)
|
Includes
2,375,300 shares held by the Kenneth D. Denman Revocable
Trust.
|
|
(2)
|
Mr.
Lal resigned as an iPass employee and officer effective February 29,
2008.
|
|
(3)
|
Includes
185,439 shares held by Ellmore C. Patterson Partners. ECPP Managers, LLC
is the General Partner of Ellmore C. Patterson Partners, and Mr. Patterson
is a member of the board of managers of ECPP Managers,
LLC. Does not include 187,667 shares held by the ACP Family
Partnership, in which members of Mr. Patterson’s immediate family hold a
pecuniary interest but over which Mr. Patterson holds no voting or
investment power. Mr. Patterson disclaims beneficial ownership of all of
these shares except to the extent of his pecuniary interest
therein.
|
|
(4)
|
South
Fork Ventures holds 18,327 shares. Mr. Bodine is a Managing Member of
South Fork Ventures. Mr. Bodine disclaims beneficial ownership of these
shares except to the extent of his pecuniary interest
therein.
|
II-1
|
(5)
|
Includes
54,000 shares held in the name of John and Anne Partnership,
Ltd.
|
|
(6)
|
Funds
affiliated with Shamrock Partners Activist Value Fund, L.L.C., a Delaware
limited liability company (“Shamrock Partners”) hold 9,127,950 shares. Mr.
Gold is the President and Chief Executive Officer of Shamrock Partners.
Mr. Gold disclaims beneficial ownership of the shares held by Shamrock
Partners except to the extent of his pecuniary interest
therein.
|
|
(7)
|
Funds
affiliated with Shamrock Partners Activist Value Fund, L.L.C., a Delaware
limited liability company (“Shamrock Partners”) hold 9,127,950 shares. Mr.
McConnell is the Vice President of Shamrock Partners. Mr. McConnell
disclaims beneficial ownership of the shares held by Shamrock Partners
except to the extent of his pecuniary interest
therein.
|
|
(8)
|
The
address for Royce & Associates, LLC is 1414 Avenue of the Americas,
New York, NY 10019. The data regarding the stock ownership of Royce &
Associates, LLC is as of December 31, 2007 from the Schedule 13G/A filed
by Royce & Associates, LLC on January 30, 2008. Includes 3,526,917
shares held by Royce Low Priced Stock Fund, an investment company
registered under the Investment Company Act of 1940 and managed by Royce
& Associates, LLC.
|
|
(9)
|
Shamrock
Partners is the managing member of Shamrock Activist Value Fund GP,
L.L.C., a Delaware limited liability company (the “General Partner”),
which is the general partner of three funds which collectively own the
shares reported. Shamrock Partners has sole voting and investment power
with respect to all of such shares, the General Partner has shared voting
and investment power with respect to all of these shares, and each of the
funds has shared voting and investment power with respect to the shares
held by the respective funds. The address for each of these Shamrock
entities is 4444 Lakeside Drive, Burbank, California
91505.
|
II-2
IMPORTANT
Tell your
Board what you think! Your vote is important. No matter
how many Shares you own, please give Foxhill your proxy FOR the election of
Foxhill’s Nominees and FOR the approval of the Declassification Proposal by
taking three steps:
| ● | SIGNING the enclosed GOLD proxy card, | |
| ● | DATING the enclosed GOLD proxy card, and | |
|
|
●
|
MAILING
the enclosed GOLD
proxy card TODAY in the envelope provided (no postage is required if
mailed in the United States).
|
If any of
your Shares are held in the name of a brokerage firm, bank, bank nominee or
other institution, only it can vote such Shares and only upon receipt of your
specific instructions. Depending upon your broker or custodian, you
may be able to vote either by toll-free telephone or by the
Internet. Please refer to the enclosed voting form for instructions
on how to vote electronically. You may also vote by signing, dating
and returning the enclosed GOLD voting form.
If you
have any questions or require any additional information concerning this Proxy
Statement, please contact Innisfree M&A Incorporated at the address set
forth below.
Innisfree
M&A Incorporated
501
Madison Avenue, 20th Floor
New
York, NY 10022
Stockholders
Call Toll-Free at: (877) 456-3510
Banks and Brokers Call Collect at:
(212) 750-5833
PRELIMINARY
COPY - SUBJECT TO COMPLETION, DATED APRIL 9, 2009
GOLD
PROXY CARD
iPASS
INC.
2009
ANNUAL MEETING OF STOCKHOLDERS
THIS
PROXY IS SOLICITED ON BEHALF OF
FOXHILL
OPPORTUNITY MASTER FUND, L.P.
THE
BOARD OF DIRECTORS OF iPASS INC.
IS
NOT SOLICITING THIS PROXY
P R O X Y
The
undersigned appoints _________ and _________, and each of them, attorneys and
agents with full power of substitution to vote all shares of common stock of
iPass Inc. (the “Company”) which the undersigned would be entitled to vote if
personally present at the 2009 Annual Meeting of Stockholders of the Company
scheduled to be held at ______________ located at ___ ________, ________,
_________ _______ on _______, ________ __, 2009 at __:__ _.m., local time, or
any other meeting of stockholders held in lieu thereof, and any adjournments,
postponements, reschedulings or continuations thereof (the “Annual
Meeting”).
The
undersigned hereby revokes any other proxy or proxies heretofore given to vote
or act with respect to the shares of common stock of the Company held by the
undersigned, and hereby ratifies and confirms all action the herein named
attorneys and proxies, their substitutes, or any of them may lawfully take by
virtue hereof. If properly executed, this Proxy will be voted as
directed on the reverse and in the discretion of the herein named attorneys and
proxies or their substitutes with respect to any other matters as may properly
come before the Annual Meeting that are unknown to Foxhill Opportunity Master
Fund, L.P. (“Foxhill”) a reasonable time before this solicitation.
IF
NO DIRECTION IS INDICATED WITH RESPECT TO THE PROPOSALS ON THE REVERSE, THIS
PROXY WILL BE VOTED “FOR” PROPOSAL NOS. 1, 2 and 3.
This
Proxy will be valid until the sooner of one year from the date indicated on the
reverse side and the completion of the Annual Meeting.
IMPORTANT:
PLEASE SIGN, DATE AND MAIL THIS PROXY CARD PROMPTLY!
CONTINUED
AND TO BE SIGNED ON REVERSE SIDE
GOLD
PROXY CARD
[X]
Please mark vote as in this example
FOXHILL
RECOMMENDS A VOTE “FOR” EACH OF ITS NOMINEES LISTED BELOW IN PROPOSAL NO.
1.
|
PROPOSAL
NO. 1
|
FOXHILL’S
PROPOSAL TO ELECT AS DIRECTORS RANDALL C. BASSETT, KENNETH H. TRAUB AND
PAUL A. GALLEBERG:
|
|
FOR
ALL NOMINEES
|
WITHHOLD
AUTHORITY TO VOTE FOR ALL NOMINEES
|
FOR
ALL EXCEPT NOMINEE(S) WRITTEN BELOW
|
|
|
Nominees:
Randall C. Bassett
Kenneth
H. Traub
Paul
A. Galleberg
|
[ ]
|
[ ]
|
[ ]
______________
______________
|
|
PROPOSAL
NO. 2
|
FOXHILL’S
PROPOSAL TO ADOPT A NON-BINDING RESOLUTION PREVIOUSLY SUBMITTED TO THE
COMPANY BY FOXHILL RECOMMENDING THAT THE BOARD OF DIRECTORS TAKE THOSE
STEPS NECESSARY, IN ACCORDANCE WITH APPLICABLE LAW, TO REMOVE THE
CLASSIFICATION OF THE BOARD OF DIRECTORS SO THAT ALL OF THE DIRECTORS ARE
ELECTED ANNUALLY RATHER THAN SERVING FOR THREE-YEAR STAGGERED TERMS AS IS
PRESENTLY THE CASE, TO BE EFFECTED IN A MANNER THAT DOES NOT DISQUALIFY
DIRECTORS PREVIOUSLY ELECTED FROM COMPLETING THEIR TERMS ON THE BOARD OF
DIRECTORS:
|
|
FOR
|
AGAINST
|
ABSTAIN
|
||
|
[ ]
|
[ ]
|
[ ]
|
|
PROPOSAL NO.
3
|
THE COMPANY’S PROPOSAL TO RATIFY
THE APPOINTMENT OF KPMG LLP AS THE INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM OF THE COMPANY FOR THE FISCAL YEAR ENDING DECEMBER 31,
2009:
|
|
FOR
|
AGAINST
|
ABSTAIN
|
||
|
[ ]
|
[ ]
|
[ ]
|
IN THEIR DISCRETION, THE PROXIES ARE
AUTHORIZED TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE
ANNUAL MEETING.
|
DATE:
|
||
|
(Signature)
|
||
|
(Signature,
if held jointly)
|
||
|
(Title
of Authority)
|
||
WHEN
SHARES ARE HELD JOINTLY, JOINT OWNERS SHOULD EACH SIGN. EXECUTORS,
ADMINISTRATORS, TRUSTEES, ETC., SHOULD INDICATE THE CAPACITY IN WHICH
SIGNING. PLEASE SIGN EXACTLY AS NAME APPEARS ON THIS
PROXY.