As filed with the Securities and Exchange Commission on December 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)

 

 

 

Delaware   04-2621506
(State or other jurisdiction of
incorporation or organization) 		 

(I.R.S. Employer

Identification Number)

 

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. Inducement Award Agreement for Restricted Stock Units

 

(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):

 

Large accelerated filer ☐   Accelerated filer ☐
Non-accelerated filer ☒   Smaller reporting company ☒
      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 7(a)(2)(B) of the Securities Act. ☐

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of
Securities to be Registered 		  Amount to be Registered(1)     Proposed Maximum Offering
Price Per Share(2) 		    Proposed Maximum Aggregate Offering Price    

Amount of

Registration Fee

 
Common Stock, par value $0.01 per share     188,274     $ 1.27     $ 239,109.00     $ 22.17  

 

(1) 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. that become issuable 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 Inducement Award Agreement for Restricted Stock Units (the “Award Agreement”).
(2) Estimated solely for the purposes of calculating the registration fee in accordance with Rule 457 (h) of the Securities Act on the basis of the price at which the inducement award may be exercised, which is the closing price of the Common Stock on December 3, 2021 as reported on the Nasdaq Capital Market.

 

 

 

 

 

 

INTRODUCTION

 

The undersigned registrant, Minim, Inc. (the “Registrant”), hereby files this Registration Statement on Form S-8 (this “Registration Statement”) to register 188,274 shares of Common Stock, of the Registrant to be issued pursuant to an Inducement Award Agreement for Restricted Stock Units (the “Agreement”), by and between the Registrant and Bill Wallace, the Registrant’s Vice President, Hardware Engineering, as a material inducement to Mr. Wallace’s employment with the Registrant. This award evidenced by the Agreement will be issued as “inducement grants” under NASDAQ Listing Rule 5635(c)(4) and, as such, not granted pursuant to any of the Registrant’s employee benefit plans.

 

Part I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I will be sent to the participant 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:

 

  (a) 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;
  (b) Our Definitive Proxy Statement on Schedule 14A filed with the SEC on May 4, 2021;
  (c) Our Definitive Proxy Statement on Schedule 14A filed with the SEC on July 12, 2021;
  (d) 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;
  (e) 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, October 27, 2021, and December 8, 2021 (in each case, except for information contained therein which is furnished rather than filed); and
  (f) 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.

 

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.

 

Item 8. Exhibits.

 

Exhibit No.   Exhibit Description
     
4.1   Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form 10, filed on September 4, 2009).

 

 

 

 

4.2   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 November 18, 2015).
     
4.3   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 July 30, 2019).
     
4.4   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).
     
4.5   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).
     
4.6   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).
     
4.7   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).
     
4.8   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).
4.9   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).
     
5.1 *   Opinion of Nixon Peabody LLP.
     
23.1*   Consent of Marcum LLP.
     
23.2*   Consent of Nixon Peabody LLP (included in Exhibit 5.1).
     
24.1*   Powers of Attorney (included on the signature page of this Registration Statement).
     
99.1*   Form of Inducement Award Agreement for Restricted Stock Units.

 ___________

 

*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 December 16, 2021.

 

  MINIM, INC.
(Registrant)  
     
  By: /s/ Sean Doherty
  Name: Sean Doherty
  Title: Chief Financial Officer

 

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.

 

Signature   Title   Date
       

/s/ Graham Chynoweth

 

Chief Executive Officer and Director

  December 16, 2021
Graham Chynoweth   (Principal Executive Officer)    
       

/s/ Sean Doherty

 

Chief Financial Officer

  December 16, 2021
Sean Doherty   (Principal Financial Officer and Principal Accounting Officer)    
         
/s/ Jeremy Hitchcock   Chairman of the Board   December 16, 2021
Jeremy Hitchcock        
         
/s/ David Aronoff   Director  

December 16, 2021

David Aronoff

       
         
/s/ Dan Artusi   Director   December 16, 2021
Dan Artusi        
         
/s/ Philip Frank   Director   December 16, 2021
Philip Frank        
         
/s/ Elizabeth Hitchcock   Director   December 16, 2021
Elizabeth Hitchcock        
         
/s/ Joshua Horowitz   Director   December 16, 2021
Joshua Horowitz        
         
/s/ Sandra Howe   Director   December 16, 2021
Sandra Howe    

 

 

 

 

Exhibit 5.1

 

Nixon Peabody LLP
55 West 46th Street
New York, NY 10036-4120

212-940-3000

 

December 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 [x] shares of the Company’s Common Stock, par value $0.01 per share (the “Shares”) issuable to Bill Wallace pursuant to the Minim, Inc. Inducement Award Agreement for Restricted Stock Units (the “Agreement”).

 

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 Agreement; (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.

 

 

 

 

Minim, Inc.

December 16, 2021

Page 2

 

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 Agreement, 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 Agreement.

 

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 Agreement, 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.

 

    Very truly yours,
     

 

 

 

 

Exhibit 23.1

 

 

 

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT

 

We consent to the incorporation by reference in this Registration Statement of Minim, Inc. on Form S-8 of our report dated April 13, 2021, with respect to our audits of the consolidated financial statements of Zoom Telephonics, Inc. as of December 31, 2020 and 2019 and for each of the two years in the period ended December 31, 2020, which report is included in the Annual Report on Form 10-K of Zoom Telephonics, Inc. for the year ended December 31, 2020. We were dismissed as auditors on April 14, 2021 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements incorporated by reference for the periods after the date of our dismissal.

 

 

Portland, ME

December 16, 2021

 

 

 

 

 

Exhibit 99.1

 

MINIM, INC.
INDUCEMENT AWARD AGREEMENT FOR RESTRICTED STOCK UNITS

 

This Inducement Award Agreement for Restricted Stock Units (this “Agreement”) is made and entered into as of December 6, 2021 (the “Grant Date”) by and between Minim, Inc., a Delaware corporation (the “Company”), and Mr. Bill Wallace (the “Grantee”).

 

WHEREAS, the Board of Directors of the Company (the “Board”) and its Compensation Committee (the “Committee”) desires to award Restricted Stock Units to the Grantee, pursuant to the terms of this Agreement, as an inducement material to the Grantee’s entering into employment with the Company (within the meaning of Nasdaq Listing Rule 5635(c)(4)); and

 

WHEREAS, the Board and the Committee have determined that it is in the best interests of the Company and its stockholders to grant the award of Restricted Stock Units provided for herein and approved and authorized such grant as of December 1, 2021.

 

NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:

 

1. Grant of Restricted Stock Units.

 

1.1 This award is not made pursuant to any of the Company’s equity incentive compensation plans, including but not limited to the Minim, Inc. Omnibus Incentive Compensation Plan (the “Omnibus Plan”), but is instead an inducement grant pursuant to Nasdaq Listing Rule 5635(c)(4).

 

1.2 The Grantee acknowledges that the award under this Agreement satisfies in full the obligations of the Company to him for an award of a one-time RSU grant of $239,109 pursuant to the letter agreement by and between the Company and the Grantee, dated October 27, 2021 (the “Offer Letter”).

 

1.3 As of the Grant Date, the Company hereby issues to the Grantee an award consisting of, in the aggregate, 188,274 Restricted Stock Units (the “Units”). The Units are granted as an inducement material to the Grantee’s entering into employment with the Company (within the meaning of Nasdaq Listing Rule 5635(c)(4)). Each Unit represents the right to receive one Company’s common stock, par value $.01 per share (each, a “Share”), subject to the terms and conditions set forth in this Agreement. The Units shall be credited to a bookkeeping account maintained for the Grantee on the books and records of the Company and until settled shall continue for all purposes to be part of the general assets of the Company.

 

2. Consideration. The grant of the Units is made in consideration of the services to be rendered by the Grantee to the Company.

 

3. Vesting.

 

3.1 Except as otherwise provided herein, provided that the Grantee remains in Continuous Service through the applicable vesting date, the Units will vest in accordance with the following schedule (the period during which restrictions apply, the “Restricted Period”):

 

 

 

 

Vesting Date Number of Units That Vest
January 1, 2022 62,758
March 1, 2022 62,758
May 1, 2022 62,758

 

Once vested, the Units become “Vested Units.” For purposes of this Agreement, “Continuous Service” means the Grantee’s continued employment with the Company pursuant to the Offer Letter.

 

3.2 The foregoing vesting schedule notwithstanding, if the Grantee’s Continuous Service terminates for any reason at any time before all of his Units have vested, the Grantee’s unvested Units shall be automatically forfeited upon such termination of Continuous Service and neither the Company nor any of its affiliate shall have any further obligations to the Grantee under this Agreement.

 

3.3 The foregoing vesting schedule notwithstanding, upon the occurrence of a Change in Control while in the Continuous Service of the Company, 100% of the unvested Units shall vest as of the date of the Change in Control. For purposes of this Agreement, “Change in Control” means (1) a sale of all or substantially all of the Company’s assets, or (2) any merger, consolidation or other business combination transaction of the Company with or into another corporation, entity or person, other than a transaction in which the holders of at least a majority of the shares of voting capital stock of the Company outstanding immediately prior to such transaction continue to hold (either by such shares remaining outstanding or by their being converted into shares of voting capital stock of the surviving entity) a majority of the total voting power represented by the shares of voting capital stock of the Company (or the surviving entity) outstanding immediately after such transaction, (3) the direct or indirect acquisition (including by way of a tender or exchange offer) by any person, or persons acting as a group, of beneficial ownership or a right to acquire beneficial ownership of shares representing a majority of the voting power of the then outstanding shares of capital stock of the Company or (4) a contested election of directors, as a result of which or in connection with which the persons who were directors before such election or their nominees (the “Incumbent Directors”) cease to constitute a majority of the Board; provided however that if the election or nomination for election by the Company’s stockholders, of any new director was approved by a vote of at least fifty percent (50%) of the Incumbent Directors, such new director shall be considered as an Incumbent Director. With respect to the grant of the Units, the event must also constitute a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended from time to time (the “Code”).

 

4. Restrictions. Subject to Section 11 in the event of the death of the Grantee after vesting of the Units and prior to settlement, during the Restricted Period and until such time as the Units are settled in accordance with Section 6 hereof, the Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Units will be forfeited by the Grantee and all of the Grantee’s rights to such Units shall immediately terminate without any payment or consideration by the Company.

 

5. Rights as Stockholder; Dividend Equivalents.

 

5.1 The Grantee shall not have any rights of a stockholder with respect to the Shares underlying the Units unless and until the Units vest and are settled by the issuance of such Shares. The Units are unfunded, and the Grantee shall have no greater rights in the Units than that of an unsecured creditor of the Company.

 

 

 

 

5.2 Upon and following the settlement of the Units, the Grantee shall be the record owner of the Shares underlying the Units unless and until such Shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a stockholder of the Company (including voting rights).

 

5.3 The Grantee shall not be entitled to any dividend equivalents with respect to the Units to reflect any dividends payable on Shares.

 

6. Settlement of Units.

 

6.1 Subject to Section 9 hereof, promptly following the vesting date, and in any event no later than thirty (30) days following the vesting date, the Company shall (a) issue and deliver to the Grantee the number of Shares equal to the number of Vested Units; and (b) enter the Grantee’s name on the books of the Company as the stockholder of record with respect to the Shares delivered to the Grantee.

 

6.2 Any amounts payable to Grantee under this Agreement are intended to constitute “short-term deferral” described in Treas. Reg. Sec. 1.409A-1(b)(4) so that none of the payments provided hereunder be deemed a deferral of compensation that is subject to the additional tax imposed under Section 409A of the Code.

 

6.3 To the extent that the Grantee does not vest in any Units, all interest in such Units shall be forfeited. The Grantee has no right or interest in any Units that are forfeited.

 

7. Investment and Taxation Representations. In connection with the purchase of the Shares, Grantee represents to the Company the following:

 

7.1 Grantee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Shares. Grantee is acquiring these securities for investment for his own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the U.S. Securities Act of 1933 (the “Securities Act”) or under any applicable provision of state law. Grantee does not have any present intention to transfer the Shares to any other person or entity.

 

7.2 Grantee understands that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Grantee’s investment intent as expressed herein.

 

7.3 Grantee further acknowledges and understands that the securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Grantee further acknowledges and understands that the Company is under no obligation to register the securities. Grantee understands that the certificate(s) evidencing the securities will be imprinted with a legend which prohibits the transfer of the securities unless they are registered or such registration is not required in the opinion of counsel for the Company.

 

7.4 Grantee is familiar with the provisions of Rule 144 promulgated under the Securities Act, which, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer of the securities (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions. Grantee understands that the Company provides no assurances as to whether he will be able to resell any or all of the Shares pursuant to Rule 144, which rule requires, among other things, that the Company be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, that resales of securities take place only after the holder of the Shares has held the Shares for certain specified time periods, and under certain circumstances, that resales of securities be limited in volume and take place only pursuant to brokered transactions. Notwithstanding this paragraph (d), Grantee acknowledges and agrees to the restrictions set forth in paragraph (e) below.

 

 

 

 

7.5 Grantee further understands that in the event all of the applicable requirements of Rule 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rule 144 is not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rule 144 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk.

 

7.6 Grantee understands that Grantee may suffer adverse tax consequences as a result of Grantee’s purchase or disposition of the Shares. Grantee represents that Grantee has consulted any tax consultants Grantee deems advisable in connection with the purchase or disposition of the Shares and that Grantee is not relying on the Company for any tax advice.

 

7.7 The Company shall not be required to deliver any certificate representing the Shares until it has been furnished with such opinions, representations or other documents as it may deem necessary or desirable, in its discretion, to ensure compliance with any law or rules of the Securities and Exchange Commission or any other governmental authority having jurisdiction over the Company, the Grantee or the Shares or any interests granted thereunder. The certificate or certificates representing the Shares shall bear the following legends (as well as any legends required by applicable state and federal corporate and securities laws):

 

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED UNLESS DONE IN COMPLIANCE WITH REGULATIONS OF THE SECURITIES ACT OF 1933, EFFECTED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR UNDER ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT OF 1933 (AS TO WHICH AVAILABILITY THE COMPANY MAY REQUIRE THE SELLER/TRANSFEROR TO PROVIDE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY).

 

THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

 

 

 

 

7.8 Grantee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

 

8. No Impact on Other Benefits; No Employment Rights. The value of the Grantee’s Units is not part of his normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit. Nothing in this Agreement shall affect in any manner whatsoever the right or power of the Company, or an affiliate of the Company, to terminate Grantee’s employment or consulting relationship, for any reason, with or without cause.

 

9. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Units shall be adjusted in any manner as may be determined to be appropriate and equitable by the Committee, in its sole discretion, to prevent dilution or enlargement of rights.

 

10. Tax Liability and Withholding.

 

10.1 Grantee acknowledges that the Units shall be taxable compensation upon settlement. The Company may take any action the Company deems necessary to satisfy any requirements for withholding of all applicable federal, state or local income or employment tax or assessment. The Grantee may satisfy any withholding obligation by any of the following means, or by a combination of such means:

 

(a) tendering a cash payment;

 

(b) authorizing the Company to withhold Shares from the Shares otherwise issuable or deliverable to the Grantee as a result of the vesting of the Units; provided, however, that no Shares shall be withheld with a value exceeding the maximum amount of tax required to be withheld by law; or

 

(c) delivering to the Company previously owned and unencumbered Shares.

 

10.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Units or the subsequent sale of any shares; and (b) does not commit to structure the Units to reduce or eliminate the Grantee’s liability for Tax-Related Items.

 

11. Death of the Grantee. Any distribution or delivery to be made to the Grantee under this Agreement due to Grantee’s death after vesting but before settlement will be made to the administrator or executor of the Grantee’s estate. Any such administrator or executor must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any applicable laws pertaining to said transfer.

 

 

 

 

12. Compliance with Law. The issuance and transfer of Shares shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s Shares may be listed. No Shares shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.

 

13. Specific Enforcement. The Grantee expressly acknowledges that the Company may be irreparably damaged if this Agreement is not specifically enforced. Upon a breach or threatened breach of the terms, covenants or conditions of this Agreement by the Grantee, the Company shall, in addition to all other remedies, be entitled to apply for a temporary or permanent injunction, or a decree for specific performance, in accordance with the provisions hereof.

 

14. Recoupment. The Grantee acknowledges that any incentive-based compensation received by the Grantee from the Company hereunder or otherwise shall be subject to such Company policies or such applicable statutes, rules, or regulations regarding recoupment or clawback as may be in effect from time-to-time, regardless of whether the Grantee is in the service of the Company or an affiliate at the time the events giving rise to the recoupment or clawback occur or are discovered. In particular, and not in limitation of the foregoing, if for any reason the Company’s financial statements must be restated for any part of a performance period to which an award for the Grantee relates or is outstanding as a result of material noncompliance with accounting requirements, then such award will be forfeited, and be repaid to the Company, in such amount or to such extent as the Company shall determine.

 

15. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company at the Company’s principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee’s address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.

 

16. Governing Law. This Agreement will be construed and interpreted in accordance with the internal laws of the State of Delaware without regard to conflict of law principles.

 

17. Administration. The Committee shall have discretion to administer, interpret, and implement this Agreement. The Committee’s decisions and determinations (including determinations of the meaning and reference of terms used in this Agreement) shall be conclusive upon all persons.

 

18. Successors and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee’s beneficiaries, executors, administrators and the person(s) to whom the Units may be transferred by will or the laws of descent or distribution.

 

19. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each provision of this Agreement shall be severable and enforceable to the extent permitted by law.

 

20. Discretionary Nature of Award. The grant of the Units in this Agreement does not create any contractual right or other right to receive any additional Units or other awards in the future. Future awards, if any, will be at the sole discretion of the Company.

 

 

 

 

21. Entire Agreement and Amendments. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by a written agreement signed by the parties hereto. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.

 

22. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.

 

23. Data Protection.

 

23.1 Grantee hereby consents to the Company (or its payroll administrators) collecting, holding and processing Grantee’s personal data and transferring this data to the Company or any other third parties insofar as is reasonably necessary to implement, administer and manage this award. This personal data may include, but is not limited to, Grantee’s name, home address and telephone number, date of birth, tax, social insurance or other identification number, salary, nationality, job title, Shares held, and details of all Shares awarded, canceled, vested, unvested or outstanding in Grantee’s favor

 

23.2 Grantee understands that this data may be transferred to any third parties assisting in the implementation, administration and management of this award, that these recipients may be located in the United States or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the United States.

 

23.3 Grantee understands that Grantee may, at any time, view Grantee’s personal data, require any necessary corrections to it or withdraw the consents herein in writing by contacting the Company, but acknowledges that without the use of such data it may not be practicable for the Company to administer Grantee’s award and this may be detrimental to Grantee.

 

24. Miscellaneous.

 

24.1 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the internal laws of the State of Delaware, without giving effect to principles of conflicts of law.

 

24.2 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.

 

24.3 Acceptance. The Grantee hereby acknowledges receipt of this Agreement. The Grantee has read and understands the terms and provisions hereof, and accepts the Units subject to all of the terms and conditions of this Agreement.

 

[signature page follows]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

  MINIM, INC.
   
  By:  
  Name: Graham Chynoweth
  Title: CEO
     
  GRANTEE:
   
   
  Bill Wallace

 

Signature Page to Inducement RSU Award for Bill Wallace