UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): | August 23, 2018 |
HOPTO INC.
(Exact name of registrant as specified in its charter)
| Delaware | 0-21683 | 13-3899021 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
6 Loudon Road, Suite 200, Concord, NH 03301
(Address, including zip code, of principal executive offices)
| Registrant’s telephone number, including area code | (800) 472-7466 |
(Former name or former address, if changed since last report.)
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):
| [ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 27, 2018, hopTo Inc. (the “Company” or “our”) filed a certificate of amendment with the Secretary of State of the State of Delaware amending our amended and restated certificate of incorporation, as amended (“Certificate of Incorporation”) to effect the declassification of our board of directors (the “Board”). The declassify amendment (the “Declassify Amendment”) was described in detail in proposal 1 of our definitive proxy statement filed with the Securities and Exchange Commission. At our annual meeting of stockholders held on August 23, 2018, the stockholders approved the Declassify Amendment as described below. The certificate of amendment of our Certificate of Incorporation is filed herewith as Exhibit 3.1.
As a result, the conforming amendment to our second amended and restated bylaws, as amended (“Bylaws”), which was described in detail in our Proxy Statement, has been effected. The amendment of our Bylaws is filed herewith as Exhibit 3.2.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The Company held its 2018 Annual Meeting of Stockholders (the “Annual Meeting”) on August 23, 2018. The following items of business were considered at the Annual Meeting:
(1) amendment of the Company’s Certificate of Incorporation to declassify the board of directors;
(2) the election of four directors;
(3) amendment of our Certificate of Incorporation to repeal the provisions therein prohibiting stockholder action without a meeting;
(4) amendment of our Certificate of Incorporation to change the super-majority vote requirement to a majority vote requirement in the Certificate of Incorporation relating to the amendment of our Bylaws;
(5) amendment of our Certificate of Incorporation to add a new article requiring that any related party transaction be approved by either the unanimous affirmative vote of disinterested directors or affirmative vote of a majority of outstanding shares of stock held by disinterested stockholders;
(6) grant of 60,000 shares of common stock to each of our outgoing directors Michael Brochu and John Cronin;
(7) approval, in a non-binding, advisory vote, of the compensation of our named executive officers, commonly known as “say-on-pay”;
(8) ratification of the selection of Marcum LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2018; and
(9) the transaction of such other business as may properly have come before the Annual Meeting or any adjournment thereof.
The number of shares of common stock entitled to vote at the Annual Meeting was 9,804,400 shares. The number of shares of common stock present or represented by valid proxy at the annual meeting was 6,773,544 shares. The number of votes cast for and against, and the number of abstentions and broker non-votes with respect to the matters voted upon at the Annual Meeting are set forth below:
Proposal 1: Amendment to Declassify the Board of Directors.
The stockholders approved amendment of our Certificate of Incorporation to declassify the board of directors as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 6,821,379 | 12,123 | 10,557 | - |
Proposal 2: Election of Directors.
The stockholders elected four directors to serve until the annual meeting of stockholders in 2019 as follows:
| Director | Votes For | Votes Withheld | Broker Non-Votes | |||
| Jonathon R. Skeels | 6,689,567 | 154,460 | - | |||
| Richard S. Chernicoff | 6,689,567 | 154,460 | - | |||
| Thomas R. Stewart | 6,689,567 | 154,460 | - | |||
| Jean-Louis Casabonne | 6,225,411 | 618,616 | - |
Proposal 3: Amendment to Permit Stockholder Action by Written Consent.
The stockholders did not approve amendment of our Certificate of Incorporation to repeal the provision in the Certificate of Incorporation prohibiting stockholder action by written consent without a meeting as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 5,845,275 | 995,903 | 2,881 | - |
Proposal 4: Amendment Changing Super-majority Vote Requirement to Majority Vote Requirement.
The stockholders did not approve amendment of our Certificate of Incorporation to change the super-majority vote requirement to a majority vote requirement relating to amendment of our Bylaws as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 6,470,129 | 361,384 | 12,546 | - |
Proposal 5: Amendment Regarding Related Party Transactions.
The stockholders did not approve the related party transaction amendment of our Certificate of Incorporation as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 4,579,494 | 2,260,809 | 2,090 | - |
Proposal 6: Grant of Stock.
The stockholders did not approve the grant of common stock as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 1,875,173 | 4,966,897 | 323 | - |
Proposal 7: Advisory Vote on Executive Compensation.
In a non-binding, advisory vote, the stockholders approved the compensation of our executive officers as follows :
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 6,657,363 | 175,145 | 11,551 | - |
Proposal 8: Ratification of Auditors.
The stockholders ratified the appointment of Marcum LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2018 as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 6,827,272 | 263 | 16,524 | - |
Item 9.01 Financial Statements and Exhibits
| (d) | Exhibits | |
| 3.1 Certificate of Amendment of Certificate of Incorporation, filed August 27, 2018 with the Secretary of State of the State of Delaware. | ||
| 3.2 Certificate of Amendment of Bylaws. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| hopTo Inc. | ||
| Dated: August 28, 2018 | By: | /s/ Jean-Louis Casabonne |
Jean-Louis Casabonne | ||
| Interim Chief Executive Officer, Chief Financial Officer, Secretary | ||
Exhibit 3.1
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HOPTO INC.
hopTo Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), hereby certifies as follows:
1. That ARTICLE VI of the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), hereby is amended and restated in full as follows:
“ARTICLE VI
“The number of directors of the Corporation shall be determined by resolution of the Board of Directors.
Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide. Advance notice of stockholder nominations for the election of directors and of any other business to be brought before any meeting of the stockholders shall be given in the manner provided in the Bylaws of this Corporation.
At each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the next annual meeting of stockholder or until their successors have been duly elected and qualified or until his or her earlier death, resignation or removal; except that, if any such election shall not be so held, such election shall take place at a stockholders’ meeting called and held in accordance with the GCL.
Vacancies occurring on the Board of Directors for any reason may be filled by vote of a majority of the remaining members of the Board of Directors, even if less than a quorum, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been duly elected and qualified. A director may be removed from office, with or without cause, by the affirmative vote of the holders of at least a majority of the outstanding shares of voting stock of the Corporation entitled to vote at an election of directors.”
2. That the foregoing amendment has been duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law (“DGCL”), by approval of the board of directors of the Company and, in accordance with the provisions of Section 228 of the DGCL, by the affirmative vote of the holders of at least 66-2/3% of outstanding shares of common stock entitled to vote thereon at the Company’s 2018 annual meeting of stockholders held on August 23, 2018. There are no shares of the Company’s preferred stock outstanding and no other classes of stock outstanding entitled to vote on this amendment.
3. The foregoing amendment of the Company’s Certificate of Incorporation shall be effective as of the date and time of filing with the Secretary of State of the State of Delaware.
[ signature page follows ]
IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment of Certificate of Incorporation to be duly executed by its authorized officer this 23rd day of August, 2018.
| HOPTO INC. | ||
| By: | /s/ Jean-Louis Casabonne | |
| Jean-Louis Casabonne | ||
| Interim Chief Executive Officer, Chief Financial Officer and Secretary | ||
Exhibit 3.2
Certificate of Adoption of Bylaw Amendment
hopTo Inc.
BYLAW AMENDMENT
I, Jean-Louis Casabonne hereby certify that:
1. I am the duly elected, qualified and acting Interim Chief Executive Officer, Chief Financial Officer and Secretary of hopTo Inc., a Delaware corporation (the “Company”).
2. On August 3, 2018, the board of directors of the Company conditionally approved, subject to stockholder approval, amendment of Sections 1, 3 and 4 of Article III of the Company’s second amended and restated bylaws, as amended (“Bylaws”), to eliminate the provisions in the Bylaws for classes of directors and to permit directors to be removed from office with or without cause.
2. On August 23, 2018, at the Company’s annual meeting of stockholders (the “Annual Meeting”), the stockholders approved amendment of the Company’s amended and restated certificate of incorporation, as amended (the “Certificate of Incorporation”) to eliminate the provisions in the Certificate of Incorporation for a classified board of directors and to provide that directors can be removed from office with or without cause by the affirmative vote of the holders of a majority of the outstanding shares of voting stock of the Company entitled to vote at an election of director.
4. Upon the effectiveness of the amendment of the Certificate of Incorporation as approved at the Annual Meeting, Sections 1, 3 and 4 of Article III of the Bylaws are amended and restated in full as follows:
“ARTICLE III
DIRECTORS
“Section 1. Number, Tenure and Qualifications. The number of directors that shall constitute the whole board shall be determined by the board of directors. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 4 of this Article, and each director elected shall hold office until (a) his or her successor is elected and qualified, (b) the next annual meeting of stockholders, or (c) his or her earlier resignation or removal, except that if any such election shall not be so held, such election shall take place at a stockholders’ meeting called and held in accordance with the DGCL. Directors need not be stockholders.
“Section 3. [Reserved.]
“Section 4. Vacancies. Except as otherwise provided by law, any vacancy on the board of directors (whether because of death, resignation, removal, an increase in the number of directors, or any other cause) may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next annual election at which directors are scheduled to be elected and until his or her successor is duly elected and qualified, or until his or her earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent (10%) of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. A director may be removed from office, with or without cause, by the affirmative vote of the holders of a majority of the outstanding voting stock of the corporation entitled to vote at an election of directors.”
3. The foregoing amendment of the Bylaws, duly adopted in accordance with the provisions of the Company’s Bylaws and the Delaware General Corporation Law by approval of the board of directors of the Company, has not been modified, rescinded, repealed or otherwise amended in any way and is in full force and effect in the form adopted and set forth above as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of August, 2018.
| HOPTO INC. | ||
| By: | /s/ Jean-Louis Casabonne | |
| Jean-Louis Casabonne | ||
| Interim Chief Executive Officer, Chief Financial Officer and Secretary | ||