As
filed with the Securities and Exchange Commission on November 16, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Minim,
Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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04-2621506
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification
Number)
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Minim,
Inc.
848
Elm Street
Manchester,
New Hampshire, 03101
(833)
966-4646
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Minim,
Inc. Omnibus Incentive Compensation Plan
Minim,
Inc. Non-Employee Directors Compensation Plan
(Full
title of the plans)
Sean
Doherty
Chief
Financial Officer
Minim,
Inc.
848
Elm Street
Manchester,
New Hampshire, 03101
(833)
966-4646
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Richard
F. Langan, Jr., Esq.
Pierce
Haesung Han, Esq.
Nixon
Peabody LLP
55 West 46th Street
New
York, NY 10036-4120
(212)
940-3000
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☒
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Smaller
reporting company
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☒
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Emerging
growth company
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☐
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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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share:
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To be issued pursuant to the Minim, Inc. Omnibus Incentive Compensation Plan
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3,000,000
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$
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1.51
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$
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4,530,000
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$
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419.93
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To be issued pursuant to the Minim, Inc. Non-Employee Directors Compensation Plan
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1,250,000
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$
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1.51
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$
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1,887,500
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$
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174.97
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall
also cover any additional shares of Common Stock, par value $0.01 per share (the “Common Stock”), of Minim, Inc. (the
“Company”) that become issuable under the Minim, Inc. Omnibus Incentive Compensation Plan and the Minim, Inc. Non-Employee
Directors Compensation Plan, as applicable (collectively, the “Plans”) by reason of any stock dividend, stock split,
reverse stock split, extraordinary cash dividend, reorganization, recapitalization, split-up, spin-off or similar transaction effected
without consideration which would increase the number of outstanding shares of common stock and other anti-dilution provisions of
the Plans.
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(2)
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Estimated
solely for the purposes of calculating the registration fee in accordance with Rules 457(c) and (h) of the Securities Act. The price
per share and aggregate offering prices for the shares of Common Stock registered hereby are calculated on the basis of $1.51
per share, which was the average of the high and low prices reported by the Nasdaq Capital Market on November 15, 2021.
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Part
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I will be sent or given to employees, consultants, and employee directors participating
in the Minim, Inc. Omnibus Incentive Compensation Plan, and to non-employee directors participating in the Minim, Inc. Non-Employee Directors
Compensation Plan, each in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not,
filed with the Securities and Exchange Commission, either as part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this registration statement
pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Part
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
undersigned registrant hereby incorporates by reference into this Registration Statement the following documents filed with the SEC:
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(a)
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Our
Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on April 13, 2021, as amended by Amendment No.
1 to Form 10-K filed with the SEC on April 30, 2021;
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(b)
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Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on May 4, 2021;
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(c)
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Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on July 12, 2021;
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(d)
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 filed with the SEC on May 17, 2021, Quarterly Report on Form 10-Q
for the quarter ended June 30, 2021 filed with the SEC on August 16, 2021; and Quarterly Report on Form 10-Q for the quarter ended
September 30, 2021 filed with the SEC on November 2, 2021;
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(e)
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Our
Current Reports on Form 8-K filed with the SEC on February 8, 2021, March 15, 2021, April 15, 2021, April 27, 2021, June 4, 2021,
June 30, 2021, July 12, 2021, July 23, 2021, July 29, 2021, August 2, 2021, August 16, 2021, August 20, 2021, October 4, 2021, October
26, 2021, November 2, 2021, and November 16, 2021, and our amended Current Reports on Form 8-K/A filed with the SEC on February
17, 2021, May 3, 2021, June 30, 2021, August 2, 2021, and October 27, 2021 (in each case, except for information contained therein
which is furnished rather than filed); and
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(f)
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The
description of the registrant’s securities filed as Exhibit 4.1 to our Amendment No. 1 to Form S-1, filed by the registrant
with the SEC on July 26, 2021.
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All
documents that the registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered have been
sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of the filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration statement.
Under
no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless
such Form 8-K expressly provides to the contrary.
Item
4. Description of Securities.
Not
applicable. The Common Stock of the Company is registered under Section 12 of the Exchange Act.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Company’s Amended and Restated Certificate of Incorporation, as amended (the “Charter”) and the Amended and Restated
Bylaws, as amended (the “Bylaws”) authorize it to indemnify directors, officers, employees and agents of the Company against
expenses (including attorneys’ fees), liabilities and other matters incurred in connection with any action, suit or proceeding,
to the fullest extent permitted by Section 145 of Delaware General Corporation Law. In addition, the Company’s Charter provides
that its directors shall not be personally liable to the Company or its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director. Notwithstanding the foregoing, a director shall be liable to the extent provided by applicable law
(i) for breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the director derived an improper personal benefit.
The
Company may also advance all reasonable expenses which were incurred by or on behalf of a present director or officer in connection with
any proceeding to the fullest extent permitted by applicable law.
The
Bylaws also permit the Company to enter into indemnity agreements with individual directors, officers, employees, and other agents. Any
such agreements, together with the Charter and the Bylaws, may require the Company, among other things, to indemnify directors or officers
against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities resulting
from willful misconduct of a culpable nature), to advance expenses to them as they are incurred, and to obtain and maintain directors’
and officers’ insurance if available on reasonable terms.
The
Company maintains director and officer liability insurance policies providing for the insurance on behalf of any person who is or was
a director or officer of the Company or a subsidiary for any claim made during the policy period against the person in any such capacity
or arising out of the person’s status as such.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors and officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item
7. Exemption from Registration Claimed.
Not
applicable.
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4.4
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Certificate of Designation of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed by the Company on November 18, 2015).
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4.5
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed by the Company on June 4, 2021).
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4.6
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed by the Company on June 4, 2021).
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4.7
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Certificate of Correction of Minim, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K/A filed by the Company on June 30, 2021).
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4.8
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Company on July 23, 2021).
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4.9
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Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Company on June 30, 2021).
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5.1
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Opinion of Nixon Peabody LLP.
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23.1*
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Consent of Marcum LLP.
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23.2*
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Consent of Nixon Peabody LLP (included in Exhibit 5.1).
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24.1*
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Powers of Attorney (included on the signature page of this Registration Statement).
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99.1
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Minim, Inc. Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on November 16, 2021).
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99.2
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Minim, Inc. Non-Employee Directors Compensation Plan (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by the Company on November 16, 2021).
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99.3
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Form of Executive Officer Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by the Company on November 16, 2021).
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99.4
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Form of Director Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed by the Company on November 16, 2021).
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*Filed
herewith.
Item
9. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in city of Manchester, New Hampshire, on November 16, 2021.
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MINIM, INC.
(Registrant)
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By:
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/s/
Sean Doherty
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Name:
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Sean
Doherty
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Title:
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Chief
Financial Officer
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Graham Chynoweth and Sean Doherty
and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement
and filed pursuant to Rule 462 under the Securities Act, and to file the same, with exhibits thereto and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may
lawfully so or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, the following persons have signed this Registration Statement in the capacities and on the
date(s) indicated.
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Signature
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Title
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Date
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Graham
Chynoweth
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Chief
Executive Officer and Director (Principal Executive Officer)
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November
16, 2021
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/s/
Sean Doherty
Sean
Doherty
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Chief
Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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November
16, 2021
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*
Jeremy
Hitchcock
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Chairman
of the Board
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November
16, 2021
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*
David
Aronoff
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Director
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November
16, 2021
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*
Dan
Artusi
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Director
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November
16, 2021
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*
Philip
Frank
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Director
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November
16, 2021
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*
Elizabeth
Hitchcock
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Director
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November
16, 2021
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*
Joshua
Horowitz
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Director
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November
16, 2021
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*
Sandra
Howe
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Director
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November
16, 2021
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*By:
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/s/
Sean Doherty
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Name:
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Sean
Doherty
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Title:
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Attorney-in-Fact
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Exhibit
5.1
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Nixon Peabody LLP
55 West 46th Street
New York, NY 10036-4120
212-940-3000
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November
16, 2021
Minim,
Inc.
848
Elm Street
Manchester,
New Hampshire 03101
Ladies
and Gentlemen:
We
have acted as counsel to Minim, Inc., a Delaware corporation (the “Company”), in connection with the registration statement
on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), filed with
the Securities and Exchange Commission (the “Commission”) on the date hereof relating to a total of (i) up to 3,000,000 shares
of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), issuable under the Minim, Inc. Omnibus
Incentive Compensation Plan (the “Omnibus Plan”), and (ii) up to 1,250,000 shares of the Company’s Common Stock (such
shares of Common Stock, together with the shares of Common Stock issuable under the Omnibus Plan, the “Shares”) issuable
under the Minim, Inc. Non-Employee Directors Compensation Plan (the “Directors Plan”, and together with the Omnibus Plan,
the “Plans”), as applicable.
This
opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed
herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein.
In
connection with the foregoing, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the
Plans; (ii) the Registration Statement; (iii) the Amended and Restated Certificate of Incorporation of the Company, as amended; and (iv)
the Amended and Restated Bylaws of the Company, as amended. We also have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, certificates and other documents and have made such investigations of law as we have
deemed necessary or appropriate as a basis for the opinion expressed below.
As
to questions of fact material to our opinion expressed herein, we have, when relevant facts were not independently established, relied
upon certificates of, and information received from, the Company and/or representatives of the Company. We have made no independent investigation
of the facts stated in such certificates or as to any information received from the Company and/or representatives of the Company and
do not opine as to the accuracy of such factual matters. We also have relied, without investigation, upon certificates and other documents
from, and conversations with, public officials.
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Minim,
Inc.
November
16, 2021
Page
2
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In
rendering the following opinion, we have assumed, without investigation, the authenticity of any document or other instrument submitted
to us as an original, the conformity to the originals of any document or other instrument submitted to us as a copy, the genuineness
of all signatures on such originals or copies, and the legal capacity of natural persons who executed any such document or instrument
at the time of execution thereof. We also have assumed that the Registration Statement will remain effective pursuant to the Securities
Act at the time of issuance of the Shares under the Plans, and the Company will have received the required consideration for the issuance
of the Shares having a value at least equal to the par value thereof at or prior to the issuance thereof under the Plans.
Based
upon and subject to the foregoing and the other qualifications and limitations contained herein, we are of the opinion that, upon issuance
and delivery pursuant to the terms and conditions set forth in the Registration Statement and the Plans, the Shares will be validly issued,
fully paid and non-assessable.
Members
of our firm involved in the preparation of this opinion are licensed to practice law in the State of New York and we do not purport to
be experts on, or to express any opinion herein concerning, the laws of any jurisdiction other than the General Corporation Law of the
State of Delaware. We express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction
or state blue sky securities law matters.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that
any member of this firm is an “expert” within the meaning of the Act or the rules and regulations of the Commission thereunder.
This
opinion is limited to the matters stated herein, and no opinion or belief is implied or may be inferred beyond the matters expressly
stated herein. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any
obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect
any matters or the opinion set forth herein.
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Very
truly yours,
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/s/
Nixon Peabody LLP
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