SITO MOBILE, LTD. (NASDAQ:SITO) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 5.02
|
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
Removal of Former Directors
As a result of the Enacted Proposals, each of the Former
Directors Betsy J. Bernard, Joseph A. Beatty, Lowell W. Robinson,
Richard J. OConnell, Jr., and Jonathan E. Sandelman was removed
from the Board, effective June 1, 2017.
Appointment of Incoming Directors
As a result of the Enacted Proposals, each of the Incoming
Directors Michael Durden, Itzhak Fisher, Thomas J. Pallack,
Matthew Stecker and Thomas Thekkethala was elected as a member of
the Board, effective June 1, 2017. In addition, Mr. Brent
Rosenthal, who served as a member of the Board prior to the
effectiveness of the Enacted Proposals and was not removed as a
director of the Company, will continue to serve as a member of
the Board.
The Company expects to announce committee appointments for each
of the Incoming Directors in the coming days. To the extent that
any information called for by Item 5.02(c)(3) is not determined
or is unavailable, the Company will provide such information, if
required, in an amendment to this Form 8-K within four (4)
business days after the information is determined or becomes
available.
None of the Incoming Directors has reportable transactions under
Item404(a) of Regulation S-K. There are no understandings or
arrangements between any of the Incoming Directors and any other
persons to which any of them were appointed as a member of the
Board. There are no family relationships between any of the
Incoming Directors and any other director or any executive
officer of the Company. Each of the Incoming Directors except Mr.
Pallack, who will serve as the Companys Interim Chief Executive
Officer, qualifies as an independent director under the
requirements of NASDAQ.
The newly-constituted Board expects to determine compensation of
non-employee directors in the near future.
Biographical information for each of the Incoming Directors is
included on Exhibit 99.1 hereto and incorporated herein by
reference.
Removal of Executive Officers
On June 1, 2017, immediately following the effectiveness of the
Enacted Proposals, the Board removed Richard OConnell, Jr. as
Interim Chief Executive Officer and Secretary of the Company, and
Lawrence Firestone as Interim Chief Financial Officer of the
Company.
Appointment of Interim Chief Executive Officer and Interim
Chief Financial Officer
On June 1, 2017, immediately following the effectiveness of the
Enacted Proposals, the Board appointed Thomas J. Pallack as the
Interim Chief Executive Officer of the Company and Mark Del
Priore as Interim Chief Financial Officer and Secretary of the
Company.
As of the date hereof, there are no material plans, contracts or
arrangements relating to the compensation of Mr. Pallack or Mr.
Del Priore as officers of the Company. There is no arrangement or
understanding between Mr. Pallack or Mr. Del Priore and any other
person to which either of them was selected as an officer of the
Company. There are no family relationships between Mr. Pallack or
Mr. Del Priore and any director or executive officer of the
Company, and neither Mr. Pallack nor Mr. Del Priore is party to a
related party transaction within the meaning of Item 404(a) of
Regulation S-K.
Biographical information for each of Messrs. Pallack and Del
Priore is included on Exhibit 99.1 hereto and incorporated herein
by reference.
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As a result of the Enacted Proposals, the Companys Bylaws have
been amended and restated effective June 1, 2017. A summary of
the material changes to the March Amended Bylaws, as now
reflected in the New Bylaws, is set forth below:
|
The New Bylaws remove certain procedural matters relating to the requirements for any business to be brought before an annual meeting of stockholders, including, but not limited to, the prerequisites for a stockholder to bring any proposal at an annual meeting of stockholders; |
|
The New Bylaws remove certain provisions related to the advance notice of stockholder proposals required to be submitted to the Company in connection with business intended to be brought at an annual meeting of stockholders; |
|
The New Bylaws remove certain procedural matters relating to the requirements for any director nominations to be brought before a stockholders meeting, including, but not limited to, the prerequisites for a stockholder to bring a proposed director nomination at a stockholders meeting; |
|
The New Bylaws remove certain provisions related to the advance notice of proposed director nominations; |
|
The New Bylaws limit the flexibility and discretion to the chairman of a meeting of the Companys stockholders to set rules for the conduct of any such meeting; |
|
The New Bylaws remove certain procedural provisions with respect to stockholders meetings including, but not limited to, the organization and conduct of the meeting, meeting protocol, the retention of inspectors of |
election for such meetings, proxies for such meetings, the
appointment of a presiding officer for such meetings and the
appointment of a secretary for such meetings;
|
The New Bylaws remove certain provisions that specified that for business to be properly brought before a special meeting of stockholders, it must be (i) specified in the Companys notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (ii) if not specified in the notice of meeting (or any supplement thereto) provided by or at the direction of the Board (or any duly authorized committee thereof), otherwise properly brought before the special meeting by or at the direction of the Board (or any duly authorized committee of the Board) or the Chairman of the Board (if any), or (iii) with respect to the election of directors, provided that the Board has called a special meeting of stockholders for the purpose of electing one or more directors to the Board, by any stockholder of the Company who complied in all respects with the requirements of the advance notice provisions of the New Bylaws; |
|
The New Bylaws remove certain procedures for actions taken by stockholders by written consent, including procedures for stockholders to request that the Board set a record date for determining stockholders entitled to take action by written consent; |
|
The New Bylaws remove certain procedures that require that any stockholder-proposed bylaw amendments must be specifically identified in a notice of stockholder meetings provided in the notice of the stockholders meeting, along with the text of any such proposed amendment and/or any resolution calling for any such amendment; |
|
The New Bylaws remove certain provisions relating to electronic transmissions and communications, including permitting the participation by directors and stockholders in meetings by means of remote communications; |
|
The New Bylaws remove the express ability of the Board to postpone or cancel any previously scheduled annual or special meeting of the stockholders by resolution of the Board upon public notice given prior to the time previously scheduled for such meeting of stockholders; |
|
The New Bylaws remove the revised section of the March Amended Bylaws regarding the indemnification that the Corporation provides to its directors, officers and other agents that clarified the type of proceedings that are indemnified, the expenses that are reimbursable, the persons who are indemnifiable, the capacity that the person needs to be acting in to be indemnified and the process that needs to be followed in determining whether indemnification is proper in a particular circumstance. Additional provisions were removed that were meant to expressly avoid duplicate payments to indemnified persons, provide that the Company shall be subrogated to all rights of recovery of any person entitled to indemnification and provide that the conduct of one indemnified person would not be imputed to another; |
|
The New Bylaws modify the section of the March Amended Bylaws that provides that the number of directors of the Company shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board, and includes a provision that states that the number of directors may be fixed from time to time by action of the stockholders or of the directors, or, if the number of directors is not fixed, to provide that the number shall be one (1); |
|
The New Bylaws added a provision that permits any vacancy in the Board in the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors to be filled by a vote of the holders of a majority of the shares of each class or series of voting stock, present in person or by proxy, or acting by written consent in lieu of a meeting, then entitled to vote at an election of directors. |
The foregoing summary of the New Bylaws is qualified in its
entirety by reference to the New Bylaws, a copy of which is
attached hereto as Exhibit 3.2 and incorporated herein by
reference.
| Item 5.07 |
Submission of Matters to a Vote of Security Holders. |
On June 1, 2017, an independent inspector of elections appointed
by the Company certified the Written Consents, representing more
than 57% of the Companys outstanding shares of Common Stock, that
were delivered to the Company on May 23, 2017, to and in
accordance with Section 228 of the DGCL. Upon such certification,
each of the Enacted Proposals became effective, as discussed
below.
Brokers did not have discretionary authority with respect to
voting on any of the Enacted Proposals and, as a result, there
could be no broker non-votes.
|
Proposal 1: Repeal the March Amended Bylaws to return the Bylaws to the form in effect immediately prior to such amendment and restatement other than to include a provision that permits any vacancy on the Board occurring between annual meetings of stockholders or of special meetings of stockholders called for the election of directors, resulting from the removal of one or more directors, for cause or without cause, or from newly created directorships, to be filled by the vote of the holders of a majority of the shares of each class or series of voting stock, present in person or by proxy, or acting by written consent in lieu of a meeting, then entitled to vote at an election of directors. |
| Consent | Withhold Consent | Abstain | ||||||||
| 11,963,654 | 13,806 | 21,018 | ||||||||
|
Proposal 2: Set the size of the Board at six (6) directors notwithstanding any additions or subtractions of directors to or from the Board between April 12, 2017 and the effectiveness of the adoption of the Enacted Proposals. |
| Consent | Withhold Consent | Abstain | ||||||||
| 11,963,679 | 13,806 | 20,993 | ||||||||
|
Proposal 3: Remove the following members of the Board: Betsy Bernard, Richard OConnell, Jonathan E. Sandelman, Lowell W. Robinson and Joseph Beatty. |
| Consent | Withhold Consent | Abstain | ||||||||
| 11,963,654 | 13,806 | 21,018 | ||||||||
|
Proposal 4: Elect the following directors to fill the vacancies on the Board resulting from the removal of the Former Directors to Proposal 3, each to serve, if elected, until the Companys annual meeting of stockholders in 2018. |
| Consent | WithholdConsent | |||||||
| Michael Durden | 11,964,247 | 34,231 | ||||||
| Itzhak Fisher | 11,963,759 | 34,719 | ||||||
| Thomas J. Pallack | 11,963,759 | 34,719 | ||||||
| Matthew Stecker | 11,963,759 | 34,719 | ||||||
| Thomas Thekkethala | 11,963,759 | 34,719 | ||||||
| Item 8.01 | Other Events. |
Postponement of Annual Meeting of Stockholders
On June 5, 2017, the Company announced that, in light of the
election of directors resulting from the Enacted Proposals, the
2017 Annual Meeting of Stockholders previously scheduled to take
place on June 27, 2017 has been postponed until a date in 2018 to
be established by the Board.
Delivery of Stockholder Notice to Section 228(e) of the
DGCL
On June 5, 2017, the Company transmitted a copy of a notice to
Section 228(e) of the DGCL to all stockholders of record (the
Stockholder Notice). A copy of the Stockholder Notice is
attached hereto as Exhibit 99.2.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit Number | ||
| 3.2 | Amended and Restated Bylaws of SITO Mobile, Ltd. | |
| 99.1 |
Biographical Information for Incoming Directors and New Executive Officers |
|
| 99.2 |
Notice to Stockholders of SITO Mobile, Ltd. dated June 5, 2017 |
|
| 99.3 | Press Release dated June 5, 2017 | |
About SITO MOBILE, LTD. (NASDAQ:SITO)
SITO Mobile, Ltd. operates a mobile location-based advertising platform serving businesses, advertisers and brands. The Company’s offerings include SITO Location-Based Advertising and SITO Mobile Messaging. SITO Location-Based Advertising delivers display advertisements and videos on behalf of advertisers, including various features, such as Geo-fencing, Verified walk-in, Behavioral Targeting, and Analytics and Optimization. Geo-fencing targets customers within a certain radius of location and uses technology to push coupons, advertisements and promotions to mobile applications. Verified Walk-in tracks foot-traffic to locations and which advertisements drive action. Behavioral Targeting tracks past behaviors over 30 to 90 day increments allowing for real-time campaign management. Analytics and Optimization is a culling and building measurement system. SITO Mobile Messaging is a platform for building and controlling programs, including messaging and customer incentive programs.
