UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 12, 2014
hopTo Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware |
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0-21683 |
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13-3899021 |
(State or Other Jurisdiction of Incorporation) |
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Commission File Number |
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(IRS Employer Identification No.) |
1919 S. Bascom Avenue, Suite 600 |
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95008 |
Campbell, CA |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant's telephone number, including area code: (800) 472-7466
1901 S. Bascom Avenue, Suite 660, Campbell, CA 95008
(Former Address)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b) and (e)
Steven Ledger
On March 17, 2014, director Steven Ledger resigned from the Board of Directors of hopTo Inc. (the “Company”), and on March 17, 2014 the Company entered into an exclusive consulting agreement with Mr. Ledger whereby he will provide the Company’s Board of Directors consulting services for a term commencing upon his resignation and ending August 15, 2014.
Mr. Ledger’s consulting agreement provides for Mr. Ledger’s currently unvested options to purchase the Company’s common stock granted during his term as a director to continue to vest during the term of the agreement in accordance with their original terms. In addition, the agreement provides that the period in which to exercise such options will be extended through the end of 2014. Mr. Ledger will also be reimbursed for his reasonable expenses incurred in rendering services to the Board in accordance with the Company’s policies. The agreement also contains confidentiality, mutual non-disparagement and independent contractor-related provisions.
A press release regarding Mr. Ledger’s resignation issued on March 18, 2014, a copy of which is contained in Exhibit 99.1 hereto, is incorporated herein by this reference.
Christoph Berlin
On March 12, 2014, chief operating officer Christoph Berlin resigned from the Company. On that date Mr. Berlin and the Company entered into a Separation Agreement defining the terms of his separation and providing for confidentiality and mutual non-disparagement provisions.
These summaries are qualified by the terms of the respective agreements, copies of which are contained in Exhibits 10.1 and 10.2 hereto and incorporated herein by this reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
10.1 |
Consulting Agreement, dated March 17, 2014 between hopTo Inc. and Steven Ledger. |
10.2 |
Separation Agreement, dated March 12, 2014 between hopTo Inc. and Christoph Berlin. |
99.1 |
Press Release issued by hopTo Inc. concerning Mr. Ledger’s resignation, issued March 18, 2014. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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hopTo Inc. | |
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Dated: March 18, 2014 |
By: |
/s/ Robert L. Dixon |
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Robert L. Dixon |
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Vice President of Finance, Secretary |
Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (“Agreement”) is entered into as of March 17, 2014 by and between Steven Ledger (“Consultant”) and HopTo Inc (the “Company”), with reference to the following recitals:
A. Consultant possess significant experience and skills in the Company’s line of business, including as a result of extensive service on the Company’s Board of Directors (the “Board”); and
B. The Board wishes to retain the services of Consultant on the terms set forth herein, commencing on his resignation from the Board on March 17, 2014 (the “Commencement Date”).
IT IS THEREFORE AGREED THAT:
1. Resignation; Exclusive Services. Consultant resigned from the Board of Directors of the Company pursuant to the resignation letter attached as Exhibit A. From the Commencement Date until August 15, 2014, (such period, the “Term”), Consultant shall make himself reasonably available, during normal business hours, to consult with the Board regarding implementation of the actions taken and policies set by the Board from time to time (the “Services”). The Services may also include advice on strategic or operational matters, reasonable cooperation on any litigation involving third parties, transition services to the Board’s committees, and other services as the parties may reasonably agree. Because the Services are defined primarily by the experience and skill possessed by the Consultant rather than the amount of time spent by the Consultant, there is no minimum number of hours of Services to be provided hereunder.
Consultant will not, during the Term, provide strategic consulting services to any company that is a direct competitor with the Company’s current business focus as publicly disclosed.
2. Compensation. The sole compensation for the Services shall be as follows:
(a) Consultant acknowledges that he currently has a total of 700,000 options to purchase the Company’s common stock, of which 260,607 options are currently unvested (the “Unvested Equity”). The Unvested Equity shall continue to vest during (but not beyond) the Term so long as Consultant continues to provide the Services during the Term (and for clarity, Consultant’s change in status from director to consultant is intended not to interrupt his continuous status for vesting purposes). All of Consultant’s options shall remain subject to their currently existing terms and conditions, including the rate of vesting, the terms governing forfeiture and the time period to exercise options after the end of the Term; provided, however, the Company hereby agrees that the time period to exercise Consultant’s options that have vested as of the end of the Term shall be extended through December 31, 2014 (immediately after which point such time period shall expire) notwithstanding any earlier exercise period provided for in such options (the “Option Exercise Extension”). For clarity, any Unvested Equity that would otherwise have vested after the Term shall be forfeited except to the extent the Term is extended by mutual written agreement.
(b) To the extent Services are requested, the Company will repay or reimburse Consultant for ordinary and necessary business expenses to the extent compatible with, and subject to the verification and substantiation documentation and procedures applicable under, the Company’s policies.
3. Confidentiality and Non-Disparagement.
(a) While Consultant was/is a director of the Company, as part of his fiduciary duties, he was/is subject to duties of confidentiality with respect to the Company’s confidential or proprietary information (the “Information”). Consultant agrees, during and after the Term, to continue to abide by such duties with respect to the Information to the same extent as when he was a director. If he learns additional Information during the Term, it shall be subject to the same limitation. Without limiting the rights and remedies otherwise available to it, each party agrees that the other would be irreparably harmed by any breach or threatened breach of this Section 3 and accordingly that the other party shall be entitled to equitable relief by way of injunction. Nothing in this Section 3(a) displaces any existing confidentiality agreement Consultant or his affiliated companies may have with the Company.
It is acknowledged by both parties that as a public Company that Company is entitled to disclose and file this Agreement with the SEC to the extent necessary to comply with its legal obligations.
(b) Consultant agrees that he will not make any negative, disparaging, detrimental or derogatory comments to any third party concerning the Company or its current and former officers, directors, employees, agents, representatives, affiliates or subsidiaries. The Company agrees that no person authorized to speak for it (i.e., the members of its Board of Directors and its executive officers), nor the Company itself in any statement by the Company, will make any negative, disparaging, detrimental or derogatory comments to any third party concerning Consultant. Nothing in this Section 3(b) shall prevent either Consultant or the Company from (i) making truthful statements regarding the other where compelled by legal process in the form of a court order, order from a regulatory agency or similar legal process or where required by the rules and regulations of the Securities and Exchange Commission or (ii) responding truthfully to a breach by the other party of this Section 3(b). Consultant and the Company will mutually agree upon the content and form of any staff or public announcement regarding his employment with, and departure from, the Company; provided, the Company may in its discretion file a Current Report on Form 8-K (and in any other SEC filing) announcing the resignation of Consultant and the terms (and providing a copy) of this Agreement.
4. Past Services. Consultant agrees he is not entitled to any additional compensation (cash, equity or otherwise) for any services he previously rendered to the Company as a director or otherwise. Consultant claims no ownership interest in any of the Company’s assets, properties, patents or technologies, whether as an inventor, owner, developer, contributor or otherwise, or any right to receive additional equity, profits or the like.
5. Term. This Agreement will expire at the end of the Term, except (a) if terminated earlier by the parties, acting mutually in writing, or (b) by any party at any time after the date hereof, if the other party materially breaches its obligations hereunder and does not cure such breach after a 15 day written notice reasonably describing such breach. Sections 3 through 7, and the Option Exercise Extension will survive the expiration or termination of this Agreement in accordance with their terms.
6. Independent Contractor. Consultant is being retained hereunder only for the purposes and to the extent set forth in this Agreement, and Consultant’s relationship to the Company will be that of an independent contractor. Consultant will not be considered under this Agreement as having employee status. Consultant acknowledges that no federal or state withholding taxes, FICA, SDI, or other employee payroll taxes or deductions will be made with respect to compensation paid to Consultant pursuant to this Agreement. Consultant is responsible for all such taxes, and agrees to report for federal and state income and any other tax purposes all such compensation, and to pay all taxes due thereon. Consultant shall not be entitled to any benefits provided to employees of the Company or any of its affiliates, whether consisting of participation in an employee retirement, pension, supplemental compensation, defined contribution or similar plan; workers’ compensation; disability, termination or severance pay or other similar benefits; unemployment or other similar insurance or otherwise.
7. Miscellaneous. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject mater hereof, and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof and is not intended to confer upon any other person any rights or remedies hereunder; provided, nothing in this Agreement affects Consultant’s Directors and Officers Indemnity Agreement or rights to indemnification under the Company’s charter or bylaws, which remains in full force and effect. There have been no representations or statements, oral or written, that have been relied on by any party hereto, except those expressly set forth in this Agreement. This Agreement may not be amended, altered or modified except by a writing signed by the parties. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement shall be governed by the law of California, without regard to any conflicts of law provisions. Any action to enforce this Agreement may be brought, and each party consents to the personal jurisdiction of, the federal or state courts in Santa Clara County, California. The prevailing party in any dispute hereunder shall be entitled to its reasonable attorneys fee and costs. Any party shall be entitled to seek an injunction or other equitable remedy to prevent breaches or future breaches of this Agreement, in addition to other remedies or damages available at law.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date first written above.
HopTo Inc.
By: /s/ Eldad Eilam
Eldad Eilam, CEO
Consultant
/s/ Steven Ledger
Steven Ledger
EXHIBIT A
March 17, 2014
To the Board of Directors of HopTo Inc.
Dear Fellow Board Members:
I hereby resign, effective immediately, from the Board of Directors of Hopto Inc. and any of its subsidiaries on which I was a board member, and any other position I held with Hopto or such subsidiaries. I confirm that my resignation was not due to any disagreement with Hopto on any matter relating to its operations, policies or practices.
Sincerely,
/S/ Steven Ledger
Steven Ledger
Exhibit 10.2
SEPARATION AGREEMENT
This Agreement is entered into by and between Christoph Berlin and hopTo Inc. (the “Company”). The purpose of this Agreement is to confirm the terms of Mr. Berlin’s departure from the Company.
1. Voluntary Resignation. Specifically, Mr. Berlin and the Company agree that Mr. Berlin has voluntarily resigned from all positions at the Company and its subsidiaries effective March 12, 2014 and both parties will characterize Mr. Berlin’s departure accordingly. As a voluntary resignation, Mr. Berlin and the Company agree that there will neither be any acceleration of the vesting of Mr. Berlin’s stock options or restricted stock under the applicable stock option or restricted stock agreement, nor any shortening of the otherwise applicable time period for exercise of stock options. Mr. Berlin and the Company agree that other than (i) this Agreement, (ii) the Notice of Grant and Restricted Stock Agreement grant date August 15, 2012 between Mr. Berlin and the Company (the “Restricted Stock Agreement”), (iii) the Stock Option Agreement dated February 1, 2012 between Mr. Berlin and the Company (the “Option Agreement”) and (iv) the Proprietary Information and Inventions Agreement dated January 30, 2012 between Mr. Berlin and the Company (the “NDA”), (v) the Insider Trading Policy agreement dated March 19, 2012, there are no contracts, agreements or understandings between him and the Company and no other commitments by either party to the other, whether in regard to equity, compensation or inventions, or otherwise. Mr. Berlin agrees that no compensation (other than his final check, which he has received), bonus (cash or otherwise), benefits, additional equity grants or any other amount are/is or will be due to him from the Company on account of all services rendered by Mr. Berlin to the Company or its subsidiaries and affiliates.
2. Non-Disparagement. Mr. Berlin agrees that he will not make any negative, disparaging, detrimental or derogatory comments to any third party concerning the Company or its current and former officers, directors, employees, agents, representatives, affiliates or subsidiaries. The Company agrees that no person authorized to speak for it (i.e., the members of its Board of Directors and its executive officers), nor the Company itself in any statement by the Company, will make any negative, disparaging, detrimental or derogatory comments to any third party concerning Mr. Berlin. Nothing in this Paragraph shall prevent either Mr. Berlin or the Company from (i) making truthful statements regarding the other where compelled by legal process in the form of a court order, order from a regulatory agency or similar legal process or where required by the rules and regulations of the Securities and Exchange Commission or (ii) responding truthfully to a breach by the other party of this Paragraph. Mr. Berlin and the Company will mutually agree upon the content and form of any staff or public announcement regarding his employment with, and departure from, the Company; provided, the Company may in its discretion file a Current Report on Form 8-K (and in any other SEC filing) announcing the voluntary resignation of Mr. Berlin and the terms (and providing a copy) of this Agreement.
3. No Admission of Liability. This Agreement does not constitute an admission of any kind by either Mr. Berlin or the Company.
1919 S Bascom Avenue, Suite 600, Campbell, CA 95008
4. Return of Company Property and Confidentiality. Mr. Berlin has confirmed that he has returned all Company property in his possession, whether in physical or electronic form, including all originals and copies of confidential and proprietary information, office keys, parking card, computer equipment and software, databases, files, records, client lists, personnel information, correspondence, work papers and any other materials he may have in his possession or under his control that relate to the business of the Company. This Paragraph is in addition to any similar obligations in the NDA.
5. Entire Agreement/Integration/Governing Law/Jurisdiction/Miscellaneous. This constitutes the entire agreement between Mr. Berlin and the Company concerning the terms of Mr. Berlin’s separation from the Company. All prior discussions have been and are merged an integrated into, and are superseded by, this Agreement. For avoidance of doubt, the Restricted Stock Agreement, the Stock Option Agreement and the NDA remain in effect in accordance with their respective terms. This Agreement shall be governed by California law without giving effect to such state’s choice of law provisions. Any action to enforce this Agreement may be brought, and each party consents to the personal jurisdiction of, the federal or state courts in Santa Clara County, California. The prevailing party in any dispute hereunder shall be entitled to its reasonable attorneys fee and costs. Any party shall be entitled to seek an injunction or other equitable remedy to prevent breaches or future breaches of this Agreement, in addition to other remedies or damages available at law. This Agreement may be signed in counterparts. The addresses of the parties listed below may be used for any notification or purpose needed under this Agreement unless changed in a written notice to the other party providing a new address for such purposes.
Agreed:
Dated: March 12, 2014 |
/s/ Christoph Berlin | |
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Christoph Berlin | |
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Address__________________________ | |
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Dated: March 12, 2014 | hopTo Inc. | |
By: | /S/ Eldad Eilam | |
Its: | CEO & President | |
Address 1919 S Bascom Ave., Ste 600 | ||
Campbell, CA 95008 |
1919 S Bascom Avenue, Suite 600, Campbell, CA 95008
Exhibit 99.1
hopTo Announces Resignation of Chairman Steven Ledger
from the Board of Directors
CAMPBELL, CA — March 18, 2014 – hopTo (OTCQB/OTCBB: HPTO), developer of the most comprehensive mobile workspace, announced today the resignation of director Steven Ledger.
“On behalf of the entire company, I want to thank Steve for his many contributions over the past two years as Chairman of hopTo. He provided important guidance at critical junctures as we positioned hopTo in a new strategic direction,” commented Chief Executive Officer Eldad Eilam.
“Eldad and the Board of Directors have accomplished a great deal in less than two years,” Mr. Ledger stated. “The development and launch of the hopTo platform has positioned the Company to aggressively compete in the large and rapidly growing mobile productivity market. I want to thank each and every hopTo shareholder for their support during the Company’s development stage, and as the Company strategically moves into the marketplace. As my role shifts, I plan to continue to be a supportive investor and look forward to participating in the future success of the hopTo platform.”
The hopTo mobile productivity app can be found on the Apple App Store and the company recently announced hopTo Work, a secure mobile productivity platform for small and medium sized business (SMB) and enterprise level companies, which will be released later this year.
About hopTo:
Founded in its current form in 2012, hopTo Inc. is an innovator of a unique mobile productivity workspace application. hopTo delivers a mobile experience that changes the way you work and live — empowering you to fully embrace a mobile lifestyle – without any compromises or boundaries. Search, Access, Aggregate, Create, Edit and Share your content from your mobile device, efficiently and effectively, by leveraging the power of your own “personal cloud.” The company is based in Campbell, CA.
For more information on hopTo, please visit: hopTo.com or facebook.com/hopTo.
FORWARD LOOKING STATEMENTS: This press release contains statements that are forward looking as that term is defined by the United States Private Securities Litigation Reform Act of 1995. These statements include statements regarding future growth and the expected impact of our products on the marketplace. These statements are based on management’s current expectations and are subject to a number of uncertainties and risks that could cause actual results to differ significantly from those described in the forward looking statements. Factors that may cause such a difference include the following: the success of our new products depends on a number of factors including market acceptance and our ability to manage the risks associated with new product introduction and developing and marketing new versions of the product; and other factors, including those set forth under Item 1A, “Risk Factors” in our Annual Report on Form 10-K/A for the year ended December 31, 2012, and in other documents we have filed with the SEC.
Media:
Troy Mickle
press@hopto.com
408.688.2674 x5086
Anne Donohoe
adonohoe@kcsa.com
732.620.0033
Investors:
Julie Silber
jsilber@kcsa.com
310.766.9760