Exhibit
10.1


 


September
30, 2020


 


Mr.
Jonathon R. Skeels


620
Newport Center Drive, 11th Fl


Newport
Beach, CA 92660


 


Dear
Mr. Skeels:


 


This
letter agreement confirms the terms of your employment with HopTo, Inc. (the “Company”), which terms shall be retroactive
to July 1, 2020.


 


		1.	Position.
                                         You will serve as the Company’s Chief Executive Officer and interim Chief Financial
                                         Officer and report directly to the Company’s board of directors. In such position,
                                         you shall have such duties, authority, and responsibilities as shall be determined from
                                         time to time by the Company’s board of directors, which duties, authority, and
                                         responsibilities are consistent with your position. By signing this letter agreement,
                                         you confirm that you have no contractual commitments or other legal obligations that
                                         would prohibit you from performing your duties for the Company. You shall be permitted
                                         to perform your duties and conduct your business principally in California. You agree
                                         that work involves travel and other United States locations in order to fulfill the responsibilities
                                         of the position.



 


		2.	Cash
                                         Compensation. The Company will pay you a salary at the rate of $200,000, less applicable
                                         taxes and withholdings, per year, payable in accordance with the Company’s standard
                                         payroll schedule, as in effect from time to time.



 


		3.	Cash
                                         Bonus. In the sole discretion of the Company’s board of directors, you may
                                         receive an annual bonus.



 


		4.	Equity
                                         Compensation. You shall not be entitled to any award of stock options or other equity-based
                                         compensation, but the Company’s board of directors may make award you equity-based
                                         compensation in its sole discretion.



 


		5.	Employee
                                         Benefits. You will be eligible to participate in Company-sponsored benefits offered
                                         to Company employees from time to time, subject to the terms and conditions of the applicable
                                         plans and policies of the Company as in effect from time to time.



 


		6.	Expenses.
                                         The Company will reimburse your reasonable and documented out-of-pocket expenses
                                         incurred in connection with your service to the Company and pursuit of new opportunities
                                         on the Company’s behalf, provided you comply with the Company’s expense reimbursement
                                         policy.



 


		7.	Employment
                                         Relationship. Your employment with the Company shall not be for any specific period
                                         of time. Your employment with the Company will be “at will,” meaning that
                                         either you or the Company may terminate your employment at any time and for any reason,
                                         with or without cause or advance notice. Any representations contrary thereto that may
                                         have been made to you are superseded by this letter agreement. This is the full and complete
                                         agreement between you and the Company with respect to the term of your employment by
                                         the Company. Although your job duties, title, work location, compensation and benefits,
                                         as well as the Company’s personnel policies and procedures (which you are expected
                                         to abide by), may change from time to time, the “at will” nature of your
                                         employment may only be changed in an express written agreement signed by you and a duly
                                         authorized officer of the Company (other than you).



 


		8.	Conflict
                                         of Interest. You must refrain from engaging in any activity or having a personal
                                         interest that presents a conflict of interest and should seek to avoid even the appearance
                                         of a conflict of interest. A conflict of interest occurs when your personal interest
                                         interferes with the business interests of the Company. A conflict of interest can arise
                                         whenever you take action or have an interest that prevents you from performing your Company
                                         duties and responsibilities honestly, objectively and effectively. The Company acknowledges
                                         that you are a managing partner of Novelty Capital, LLC and affiliated entities (“Novelty
                                         Capital”). If any opportunity that is within the Company’s line of business
                                         comes to you, including, but not limited to, in your role with Novelty Capital, you will
                                         discuss such opportunity with the Company’s board of directors before pursuing
                                         or facilitating such opportunity with any other party. It is your responsibility to disclose
                                         any material transaction or relationship that reasonably could be expected to give rise
                                         to a conflict of interest to the board of directors, who shall be responsible for determining
                                         whether such transaction or relationship constitutes a conflict of interest.



 




    	 



     


    

 


		9.	Taxes.
                                         All forms of compensation referred to in this letter agreement are subject to reduction
                                         to reflect applicable withholding and payroll taxes and other employment related deductions.
                                         You agree that the Company does not have a duty to design its compensation policies in
                                         a manner that minimizes your tax liabilities, and you will not make any claim against
                                         the Company or its board of directors related to tax liabilities arising from your compensation
                                         by the Company.



 


		10.	Section
                                         409A. It is intended that all of the benefits and other payments payable under this
                                         letter agreement satisfy, to the greatest extent possible, an exemption from the application
                                         of Section 409A of the Internal Revenue Code of 1986, as amended and the treasury regulations
                                         thereunder and any state law of similar effect (collectively, “Section 409A”),
                                         and this letter agreement will be construed to the greatest extent possible as consistent
                                         with those provisions, and to the extent not so exempt, this letter agreement (and any
                                         definitions hereunder) will be construed in a manner that complies with Section 409A,
                                         and any ambiguities herein shall be interpreted accordingly. Specifically, the severance
                                         benefits under this letter agreement are intended to satisfy the exemptions from application
                                         of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5)
                                         and 1.409A-1(b)(9) and each installment of severance benefits, if any, is a separate
                                         “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i).
                                         However, if such exemptions are not available and you are, upon separation from the Company,
                                         a “specified employee” for purposes of Section 409A, then, solely to the
                                         extent necessary to avoid adverse personal tax consequences under Section 409A, the timing
                                         of the severance benefits payments shall be delayed until the earlier of (a) six months
                                         and one day after your separation, or (b) your death. Severance benefits shall not commence
                                         until you have separated from the Company. If severance benefits are not covered by one
                                         or more exemptions from the application of Section 409A and a release by you of the Company
                                         could become effective in the calendar year following the calendar year in which your
                                         separation from the Company occurs, such release will not be deemed effective, for purposes
                                         of payment of severance benefits, any earlier than the first day of the second calendar
                                         year. Except to the minimum extent that payments must be delayed because you are a “specified
                                         employee” or until the effectiveness of a release by you of the Company, all severance
                                         amounts will be paid as soon as practicable in accordance with this letter agreement
                                         and the Company’s normal payroll practices.



 


		11.	Termination.
                                         If your employment with the Company is terminated by the Company without Cause (as
                                         defined in the Graphon 2008 Equity Incentive Plan, as amended), the Company will, against
                                         receipt of a mutual release (in a reasonable form prepared by the Company), (a) pay you,
                                         in equal installments over the course of twelve months, twelve months of your salary
                                         in effect as of the date of such termination and (b) pay the premiums for continuation
                                         of your and your family’s health insurance for twelve months following termination
                                         (or until an earlier date at which time you and your family are covered by a subsequent
                                         employer’s health insurance). Any obligation of the Company to make any payment
                                         pursuant to this Section is conditioned upon you first executing and delivering to the
                                         Company an effective release, in a reasonable form prepared by the Company, within 21
                                         days after the date of termination of employment and not revoking such Release.



 


		12.	Interpretation,
                                         Amendment and Enforcement. This letter agreement, together with the proprietary information
                                         and inventions agreement, attached as Exhibit A, constitutes the complete and exclusive
                                         statement of your employment agreement with the Company, and supersedes any prior agreements,
                                         representations or understandings (whether written, oral or implied) between you and
                                         the Company regarding these subject matters. Modifications or amendments to this letter
                                         agreement, other than those changes expressly reserved to the Company’s discretion
                                         in this letter, must be made in a written agreement signed by you and a duly authorized
                                         officer of the Company (other than you). If any provision of this letter agreement is
                                         determined to be invalid or unenforceable, in whole or in part, this determination shall
                                         not affect any other provision of this letter agreement and the provision in question
                                         shall be modified so as to be rendered enforceable in a manner consistent with the intent
                                         of the parties insofar as possible under applicable law.



 




    	 



     


    

 


		13.	Governing
                                         Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed
                                         in accordance with the laws of California without regard to conflicts of law principles.
                                         Any action or proceeding by either of the parties to enforce this Agreement shall be
                                         brought only in a state or federal court located in the state of California, county of
                                         Orange. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts
                                         and waive the defense of inconvenient forum to the maintenance of any such action or
                                         proceeding in such venue. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY UNCONDITIONALLY
                                         AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUCH MATTER.



 


This
letter agreement shall be binding upon any entity or person who is a successor by merger, acquisition, consolidation or otherwise
to the business formerly carried on by the Company without regard to whether or not such entity or person actively assumes the
obligations hereunder and without regard to whether or not a change of control occurs. This letter agreement and your rights and
obligations hereunder shall not be assignable by you.


 


Please
sign and return a copy of this letter agreement, whereupon it will become a binding agreement between you and the Company.


 


Very
truly yours,


 





	/s/
    Richard S. Chernicoff	 
	Richard
    S. Chernicoff	 
	Director	 
	HopTo,
    Inc.	 





 


Accepted
and agreed as of the date first written above:






 





	/s/
    Jonathon R. Skeels	 
	Jonathon
    R. Skeels