|
1
|
NAME
OF REPORTING PERSON
Foxhill
Opportunity Master Fund, L.P.
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
WC
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Cayman
Islands
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
PN
|
||
|
1
|
NAME
OF REPORTING PERSON
Foxhill
Opportunity Fund, L.P.
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
AF
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
PN
|
||
|
1
|
NAME
OF REPORTING PERSON
Foxhill
Opportunity Offshore Fund, Ltd.
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
AF
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Cayman
Islands
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
OO
|
||
|
1
|
NAME
OF REPORTING PERSON
Foxhill
Capital (GP), LLC
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
AF
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
OO
|
||
|
1
|
NAME
OF REPORTING PERSON
Foxhill
Capital Partners, LLC
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
AF
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
IA,
OO
|
||
|
1
|
NAME
OF REPORTING PERSON
Neil
Weiner
|
||
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
|
|
3
|
SEC
USE ONLY
|
||
|
4
|
SOURCE
OF FUNDS
AF
|
||
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
|
||
|
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE
VOTING POWER
0
|
|
|
8
|
SHARED
VOTING POWER
4,166,862
|
||
|
9
|
SOLE
DISPOSITIVE POWER
0
|
||
|
10
|
SHARED
DISPOSITIVE POWER
4,166,862
|
||
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,862
|
||
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
o
|
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
|
||
|
14
|
TYPE
OF REPORTING PERSON
IN
|
||
|
Item
2.
|
Identity and
Background
|
|
Item
4.
|
Purpose of the
Transaction
|
|
·
|
The
Board will, subject to certain limitations, return capital to the Issuer’s
stockholders as follows:
|
|
|
o
|
the
Board will seek stockholder approval, at a special meeting called for such
purpose, of an amendment to the Issuer’s outstanding stock options and
other equity awards, and related plans, such that the value of such stock
options and other equity awards, in the good faith determination of the
Board, will not be impaired by the declaration and payment of an
extraordinary dividend or stock repurchase, the proxy statement for the
stockholder vote with respect to such matters to be filed no later than
July 15, 2009;
|
|
|
o
|
if
the Issuer’s stockholders approve the amendments described above, then the
Board will declare a dividend in an aggregate amount of approximately $20
million, such declaration to occur as soon as practicable following
stockholder approval of the amendments described
above;
|
|
|
o
|
following
the payment of such dividend, the Board will use its commercially
reasonable efforts to return an additional $20 million to the Issuer’s
stockholders by the end of 2009, in a form, or combination of forms, to be
determined at the discretion of the Board, to occur on or before such date
as the Board, in its good faith determination, will enable the Issuer to
return the additional $20 million to the Issuer’s stockholders before
December 31, 2009; and
|
|
|
o
|
if
the Board determines that the return of the additional $20 million will be
in the form of a self tender offer, and such self tender offer is not
fully subscribed, then the failure to deliver the full $20 million will
not be a breach of the Settlement Agreement, and the Board will use the
remaining portion of the $20 million for a stock buyback program or a cash
dividend to be completed on or prior to December 31,
2010;
|
|
·
|
The
Board will include, and recommend that the Issuer’s stockholders vote in
favor of, the declassification proposal in the Issuer’s revised definitive
proxy statement for the Annual Meeting. Foxhill strongly
supports and will vote in favor of the declassification
proposal;
|
|
·
|
Mr.
Traub, as the initial Foxhill designee, will be appointed to the Board,
effective June 3, 2009, to fill a vacancy existing on the Board, and will
be appointed to the class of directors the term of which expires at the
Annual Meeting. Mr. Traub will be appointed to the Corporate
Governance and Nominating Committee and Compensation Committee of the
Board. Mr. Traub will be nominated by the Board for election at the Annual
Meeting to the class of directors the term of which expires at the 2012
annual meeting of stockholders;
|
|
·
|
For
so long as Foxhill continues to own not less than 5% of outstanding shares
of the Common Stock, if the Foxhill designee is unwilling or unable to
continue to serve on the Board and a vacancy results, the Board will,
consistent with its fiduciary duties and provided certain conditions are
met, appoint a replacement director that is designated by Foxhill Master
Fund;
|
|
·
|
Evan
Kaplan will be moved to the class of directors the term of which expires
at the 2010 annual meeting of stockholders from his current class the term
of which expires at the Annual
Meeting;
|
|
·
|
One
incumbent director serving in the class of directors the term of which
expires at the 2010 annual meeting of stockholders will resign as of the
Annual Meeting, and Gary Griffith will be appointed to the Board within
fourteen days following the Annual Meeting to such class of
directors;
|
|
·
|
Until
the earlier to occur of (i) December 31, 2010 and (ii) the date no Foxhill
designee is serving as a member of the Board, and Foxhill Master Fund has
advised the Issuer in writing that the Issuer is no longer obligated to
nominate or appoint a replacement director designated by Foxhill Master
Fund to the Board under the Settlement
Agreement,
|
|
|
o
|
Foxhill
will vote all its shares of Common Stock in support of each slate of
directors nominated by the Board (and will not participate in any
“withhold the vote” or similar campaign, or support any other nominees
other than the slate of directors nominated by the
Board);
|
|
|
o
|
Except
for the Foxhill designee, Foxhill will not propose (other than a private
proposal to the Board or committee thereof) any candidates for election as
directors of the Issuer;
|
|
|
o
|
Foxhill
will not (other than through non-public proposals or nominee suggestions)
propose any proxy resolutions or nominees for director for approval by the
Issuer’s stockholders;
|
|
|
o
|
Foxhill
will not support (other than by voting its shares of Common Stock other
than in an election of directors) any proxy resolutions or conduct any
proxy solicitations or seek to advise or influence any person with respect
to the voting of the shares of Common Stock against the recommendation of
the Board on such matters;
|
|
·
|
Subject
to Mr. Traub’s appointment to the Board and the Issuer’s and the Board’s
continued compliance with the terms of the Settlement Agreement, Foxhill
withdrew its previously announced notice of its intent to nominate
directors at the Annual Meeting;
and
|
|
·
|
The
Issuer will reimburse Foxhill for its reasonable and documented
out-of-pocket expenses incurred in the commencement of the proxy contest,
in an amount not to exceed
$150,000.
|
|
Item
5.
|
Interest in Securities of the
Issuer
|
|
Item
6.
|
Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the
Issuer.
|
|
Item
7.
|
Material to be Filed as
Exhibits.
|
|
Exhibit
99.1
|
Settlement
Agreement, dated June 2, 2009, by and among 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 and iPass Inc.
|
|
Exhibit
99.2
|
Press
Release dated June 3, 2009.
|
|
Date:
June 3, 2009
|
FOXHILL
OPPORTUNITY MASTER FUND, L.P.
|
|
|
By:
Foxhill Opportunity Offshore Fund Ltd., its general partner
|
||
|
By:
Foxhill Capital Partners, LLC, its investment manager
|
||
|
By:
|
/s/
Neil Weiner
|
|
|
Name:
|
Neil
Weiner
|
|
|
Title:
|
Managing
Member
|
|
|
FOXHILL
OPPORTUNITY FUND, L.P.
|
||
|
By:
Foxhill Capital (GP), LLC, its general partner
|
||
|
By:
|
/s/
Neil Weiner
|
|
|
Name:
|
Neil
Weiner
|
|
|
Title:
|
Managing
Member
|
|
|
FOXHILL
OPPORTUNITY OFFSHORE FUND, LTD.
|
||
|
By:
|
/s/
Neil Weiner
|
|
|
Name:
|
Neil
Weiner
|
|
|
Title:
|
Director
|
|
|
FOXHILL
CAPITAL (GP), LLC
|
||
|
By:
|
/s/
Neil Weiner
|
|
|
Name:
|
Neil
Weiner
|
|
|
Title:
|
Managing
Member
|
|
|
FOXHILL
CAPITAL PARTNERS, LLC
|
||
|
By:
|
/s/
Neil Weiner
|
|
|
Name:
|
Neil
Weiner
|
|
|
Title:
|
Managing
Member
|
|
|
/s/
Neil Weiner
|
|
|
Neil
Weiner
|