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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
December 18, 2019
Patrick Goepel
Chief Executive Officer
Asure Software, Inc.
3700 N. Capital of Texas Highway, Suite 350
Austin, Texas 78746
RE: Asure Software, Inc,
Schedule TO-I filed December 16, 2019
Filed by Asure Software, Inc.
File No. 005-43608
Dear Mr. Goepel:
We have reviewed the above-captioned filing, and have the following
comments. Where
indicated, the Schedule TO should be amended in response to these comments. If
you disagree,
we will consider the explanation as to why a comment is inapplicable or a
revision is not
necessary. In some of our comments, we may ask for information so we may better
understand
your disclosure. After reviewing this information, we may raise additional
comments.
Please understand that the purpose of our review process is to assist
you in your
compliance with the applicable disclosure requirements and to enhance the
overall disclosure in
your filing. We look forward to working with you in these respects. We welcome
any questions
you may have about our comments or any other aspect of our review.
Offer to Purchase for Cash | Exhibit (a)(1)(i) to Schedule TO
1. Rule 14d-1(g)(3) defines the term "business day" to mean "any day, other
than Saturday,
Sunday or a federal holiday, and shall consist of the time period from 12:01
a.m. through
12:00 midnight Eastern time." The codified text does not state that a
business day promptly
ends at 12:00 midnight, only runs "to" or "until" midnight, or otherwise
concede that a gap
was intended to exist between 12:00 midnight and 12:01 a.m. This offer,
however, expires at
11:00 p.m. Central Time on January 14, 2020. Please revise to conform with
Rule 14e-1(a),
2. Rule 13e-4(e) requires dissemination to security holders of the information
the issuer is
obligated to provide under Rule 13e-4(d)(1). At present, it appears that
some of the required
disclosures were only filed on EDGAR and not affirmatively disseminated to
security
holders. Please advise us, with a view toward revised disclosure within the
Offer to
Exchange, whether or not the information under Items 2 and 3 of Schedule TO
has been
included within the Offer to Exchange.
Patrick Goepel
Asure Software, Inc.
December 18, 2019
Page 2
3. The invitation to exchange options for restricted stock units has been
described in the title
and otherwise as a singular "offer to exchange." Please provide us with a
summary of the
legal analysis upon which the issuer relied to ostensibly conclude that the
offer complies with
Rule 13e-4(f)(8)(i) given that certain option holders appear to have been
excluded.
4. Please revise the disclosure to specify the exact number of options being
sought. See Item 4
of Schedule TO and corresponding Item 1004(a)(1)(i) of Regulation M-A, as
well as Rule
14e-1(b) of Regulation 14E (which provision assumes a fixed amount of
securities is sought).
5. Notwithstanding the disclosure in Exhibit (a)(1)(ii), please advise us how
the issuer fulfilled
its obligation to disseminate the tender offer under Rule 13e-4(e)(1).
Who is eligible to participate in this offer?, page 3
6. Please refer to the following statement: "If we withdraw the Offer to
Exchange in a
particular jurisdiction, the Offer to Exchange will not be made to, nor will
surrenders of
eligible stock options be accepted from [ ] employees in that jurisdiction.
Please revise to
remove the implication that holders of preferred stock could not otherwise
participate in the
issuer tender offer if holders of stock options residing in a jurisdiction
where the offer is
prohibited participated from a jurisdiction where the offer is permitted.
Refer to Rule 13e-
4(f)(8)(i). Alternatively, please revise to limit the restriction to only
U.S. "states" instead
of all jurisdictions for conformity with regulatory text within Rule
13e-4(f)(9)(ii).
Schedule B | Summary of Financial Information
7. Item 10 of the Schedule TO filed by the issuer indicates a determination has
been made to
incorporate the required financial information by reference. Notwithstanding
the decision to
also Summary Financial information in the Offer to Exchange, not all of the
financial
information required by Instruction 6 to Item 10 of Schedule TO and
corresponding Item
1010(c) of Regulation M-A appears to have been provided. Please revise or
advise.
Item 12. Exhibits | Schedule TO
8. Information has been incorporated by reference in response to Item 10 of
Schedule TO that
has not been identified within the exhibit index. In order to comply with
General Instruction
F of Schedule TO, and ensure liability under the applicable tender offer
regulatory provisions
of the information so incorporated, please revise the exhibit index to
identify any periodic
reports (or the discrete content of such reports so incorporated) upon which
the issuer has
relied to satisfy its disclosure obligations. The reference made in
Instruction F to
"submitted" relates to the actual filing or refiling of the periodic
report or other filing
as distinguished from the separate obligation to identify an informational
source as an
exhibit. Refer also to corresponding Item 1016(a)(5) of Regulation M-A.
Patrick Goepel
Asure Software, Inc.
December 18, 2019
Page 3
We urge all persons who are responsible for the accuracy and adequacy of
the disclosure
in the filing reviewed by the staff to be certain that they have provided
all information
investors require for an informed decision. Since the issuer is in
possession of all facts
relating to its disclosure, it is responsible for the accuracy and adequacy
of the disclosures it
has made notwithstanding any review, comments, action or absence of action
by the staff.
Please direct any questions to me at (202) 551-3266.
Sincerely,
/s/ Nicholas P. Panos
Nicholas P. Panos
Senior Special Counsel
Office of Mergers &
Acquisitions
cc: Patrick Pohlen, Esq.
Katheryn A. Gettman, Esq.