UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Compensatory Arrangements of Certain Officers
On March 2, 2022 (the “Effective Date”), Minim, Inc. (the “Company”) entered into an amended employment agreement with John Lauten, the Company’s Chief Operating Officer, in an effort to standardize his employment agreement to be consistent with other executives of the Company (the “New Employment Agreement”). Any prior agreements or understandings with respect to Mr. Lauten’s employment by the Company are cancelled as of the Effective Date; however, except as otherwise provided in the New Employment Agreement, all restricted stock units and other long-term incentive awards granted to Mr. Lauten prior to the Effective Date, benefit plans in which Mr. Lauten is eligible for participation, the severance agreement, dated October 21, 2021 and any Company policies to which Mr. Lauten is subject shall continue in effect in accordance with their respective terms and shall not be modified, amended or cancelled by the New Employment Agreement. Except for the items set forth below, the New Employment Agreement is essentially identical in terms to Mr. Lauten’s previous employment agreement, dated November 1, 2019: (1) Mr. Lauten’s base compensation shall be increased to $218,000 from $201,240, effective January 1, 2022, (2) Consistent with other Company executives, Mr. Lauten will no longer be entitled to a stipend for living expenses or reimbursement of expenses for personal trips as contemplated in his previous employment agreement, (3) Mr. Lauten shall be eligible to receive an annual incentive bonus of up to $75,000 based on work product and attainment of specific goals as reflected by overall Company financial performance weighted as follows: 20% for the first fiscal quarter performance, 20% for the second fiscal quarter performance, 20% for the third fiscal quarter performance and 40% for annual fiscal year performance and (4) Mr. Lauten shall be eligible to be considered for an annual restricted stock award grant subject to the discretion of the compensation committee of the Board of Directors of the Company.
On March 2, 2022, the Company entered into an amendment of the Company’s employment agreement with Graham Chynoweth, the Company’s Chief Executive Officer (the “CEO”), in an effort to standardize and align the CEO’s employment agreement to be consistent with other executives of the Company (the “EA Amendment,” and together with the previous employment agreement, dated May 22, 2019 and the subsequent amendment thereto dated December 4, 2020, the “Amended Employment Agreement”). This alignment included adding certain terms contained in the standard form of employment agreement for executives to the Amended Employment Agreement, including a non-disparagement clause and aligning the definition of good reason. The Amended Employment Agreement also contemplates that the CEO will enter into and be entitled to receive the rights, obligations and benefits of the Company’s standard severance agreement for executive-level employees. All other terms of the CEO’s Amended Employment Agreement will remain in effect.
On March 2, 2022, as contemplated by the Amended Employment Agreement, the Company entered into the Company’s standard severance agreement for executive-level employees with the CEO that supplements his existing Amended Employment Agreement. The severance agreement provides the CEO the right to receive certain compensatory benefits upon specified circumstances in the event of a separation of employment from the Company. The severance agreement provides that the CEO will receive six months’ of continued base salary and certain insurance premiums to be paid upon any termination of employment without Good Cause or for Good Reason (as defined therein). If the CEO’s employment is terminated without Good Cause or for Good Reason within three months prior to or twelve months after a Change of Control (as defined therein), the CEO will receive a lump sum of twelve months’ base salary and certain insurance premiums, and a pro-rated annual bonus. Mr. Chynoweth’s current annual base compensation is $250,000. The agreement further provides that the CEO’s outstanding and unvested equity subject to time-based vesting will be accelerated and deemed fully vested.
The foregoing descriptions of the New Employment Agreement and EA Amendment are qualified in their entirety by reference to the full text of the agreements, which are included as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K. The foregoing description of the severance agreement is qualified in its entirety by reference to the severance agreement form, which is included as Exhibit 10.1 to the Form 8-K/A filed with the Securities and Exchange Commission on November 27, 2021.
Bonus Payments
On March 1, 2022, the Board of Directors (the “Board”) of Minim, Inc. (the “Company”) approved a $12,500 cash bonus payment and a grant of 14,583 restricted stock units to John Lauten for the Company’s annual performance in 2021. The number of Restricted Stock Units granted was determined based upon a closing price of $1.20, which was the closing price of the Company’s common stock on March 1, 2022.
Item 9.01(d) Exhibits.
The following exhibits are filed herewith:
| 10.1 | Employment Agreement, dated as of March 2, 2022 between the Company and John Lauten. | |
| 10.2 | Amendment to Employment Agreement, dated as of March 2, 2022 between the Company and Graham Chynoweth. | |
| 10.3 | Form of Severance Agreement (incorporated by reference to Exhibit 10.1 to the Form 8-K/A filed by the Company on October 27, 2021). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: | March 4, 2022 | MINIM, INC. | |
| By: | /s/ Graham Chynoweth | ||
| Name: | Graham Chynoweth | ||
| Title: | Chief Executive Officer | ||
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”) is made as of the 2nd day of March 2022, by and between Minim, Inc. (the “Company”) and John Lauten (the “Executive”).
WHEREAS, the Company and the Executive entered into an employment agreement dated on or about November 1, 2019 (the “2019 Employment Agreement”); and
WHEREAS, the Company and Executive wish to terminate the 2019 Employment Agreement and enter into this Employment Agreement.
In consideration of the Executive’s employment with the Company, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Executive agree as follows:
1. Employment. The Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, on the terms and conditions set forth below. The Executive shall be employed under this Agreement on an at-will basis for an indefinite period of time, and the Executive or the Company may terminate the employment relationship with or without notice at any time and for any or no reason or cause in accordance with the terms of Section 5 hereof. The Company is not bound to follow any policy, procedure, or process in connection with employee discipline, employment termination or otherwise.
2. Duties. The Executive shall serve the Company as Chief Operations Officer. In such capacity, the Executive shall be subject to the direction of the Company’s Chief Executive Officer. The Executive shall perform the duties outlined on Exhibit A hereto and such other services and duties in connection with the Company as may be assigned or delegated to the Executive from time to time by or under the authority of the Company’s Chief Executive Officer.
3. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive under this Agreement, the Company shall pay the Executive a base salary at the annualized rate of Two Hundred Eighteen Thousand Dollars ($218,000.00) (“Base Salary”) per year effective January 1, 2022, pro-rated for any partial year in which this Agreement is in effect. The Executive’s performance may be reviewed by the Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) from time to time, and the Company may adjust the Executive’s salary pursuant to such performance reviews or for other reasons; provided, that, in no case shall Executive’s Base Salary be decreased below the amount set forth herein without the prior written consent of Executive. The Executive’s salary shall be payable in equal installments in connection with the Company’s regular payroll dates and payroll procedures.
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(b) Bonus Opportunity. The Executive shall be eligible to receive a performance based variable compensation bonus of up to Seventy-Five Thousand Dollars ($75,000) (the “Initial Performance Based Variable Bonus”), based on your achievement of specific work product, attainment of specific goals, and elements of overall Company financial performance, determined and paid quarterly in the second month after the close of each fiscal quarter in which it is earned according to the Company’s fiscal year. Executive’s Initial Performance Based Variable Bonus shall be reviewed on not less than an annual basis by the Compensation Committee. Initial Performance Based Variable Bonus will be weighted as follows: (i) 20% for first fiscal quarter performance, (ii) 20% for second fiscal quarter performance, (iii) 20% for third fiscal quarter performance and (iv) 40% for annual fiscal year. Executive must be employed with the Company to be eligible for and to receive any variable compensation pursuant to this section. Executive’s Initial Performance Based Variable Bonus shall be reviewed on not less than an annual basis by the Compensation Committee. Executive’s eligibility for up to an annual bonus target of the Initial Performance Based Variable Bonus may not be decreased below the Initial Performance Based Variable Bonus target without the prior written consent of Executive but nothing herein guarantees payment of the Initial Performance Based Variable Bonus.
(c) RSU Grants. Executive shall be eligible to be considered for an annual restricted stock award grant subject to the discretion of the Compensation Committee and in accordance with the Company’s long-term incentive program. The Executive was granted $50,000 of RSU’s for fiscal year 2021.
(d) Benefits. The Executive shall be eligible to participate in all employee benefit, health and welfare, 401(k), profit sharing and other plans, policies and programs which the Company may, from time to time, have in effect for all or most employees of the Company. Executive shall also be entitled to participate in the Company’s life insurance policy benefit applicable to executives. Such participation shall be subject to the terms of the applicable plan documents, generally applicable policies of the Company, applicable law, and the discretion of the Company or any administrative or other committee provided for in, or contemplated by, any such plan. Nothing contained in this Agreement shall be construed to create any obligation on the part of the Company to establish any such plan or to maintain the effectiveness of any such plan which may be in effect from time to time. To the extent there is any conflict between the terms of this Agreement and the applicable benefit plan documents, the terms of the plan documents shall govern. Executive shall also be entitled to upgrade their smart phone and computer to the most recent generation available from Apple once every two years.
(e) Vacation. The Company will be adopting an unlimited vacation policy, pursuant to which covered employees do not accrue any paid vacation time, but rather, will be able to take vacation time in their reasonable discretion, subject to Company approval and meeting the Company’s performance expectations. Once the Company adopts and implements that policy, the Executive will be covered by it and subject to its terms. Until that policy is adopted, the Executive will not accrue any vacation time, but rather will be permitted (with Company approval) to take vacation time in the Executive’s reasonable discretion. Because vacation time does not accrue for the Executive (either before adoption of the unlimited vacation time policy or after adoption of that policy), there is no payout of vacation time upon the termination of the Executive’s employment.
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(f) Expense Reimbursement. The Company will reimburse the Executive on a monthly basis for all normal and reasonable business expenses incurred by the Executive in the course of performing the Executive’s duties for the Company hereunder, provided the Executive timely and properly completes and submits an expense report and any other appropriate documentation to the Company, as may be required in accordance with the policies in effect from time to time for Company employees. Domestic and international travel will be in accordance with the Company’s travel policy and/or normal business travel for other executives. For any international non-stop airline flight greater than six (6) hours, Executive is entitled to Business Class accommodations.
4. Extent of Service. During the Executive’s employment hereunder, the Executive shall devote the Executive’s full business time, best efforts and business judgment, skill and knowledge to the advancement of the Company’s interests and to the discharge of the Executive’s duties and responsibilities hereunder. Notwithstanding the foregoing, the Executive may engage in any outside business activities in which the Executive is engaged as of the date hereof, and the Executive may engage in other business activities in the future provided: (i) such activities are not for or with a competitor of the Company; (ii) such activities do not create a conflict of interest with respect to the Executive’s employment with the Company; (iii) such activities do not interfere with the Executive’s performance of the Executive’s job duties for the Company; (iv) the Executive notifies the Company in writing in advance of engaging in such activities; and (v) the Company’s Chief Executive Officer authorizes the Executive to engage in such activities (which such authorization will not be unreasonably withheld).
5. Termination and Termination Benefits. The Executive’s employment hereunder shall terminate under the following circumstances:
(a) Termination by the Company. The Executive’s employment hereunder may be terminated by the Company for Cause without further liability on the part of the Company, effective immediately, upon written notice to the Executive. Cause shall have the meaning assigned to it in the Severance Agreement.
(b) Termination by the Executive. The Executive’s employment hereunder may be terminated by written notice to the Chief Executive Officer at least thirty (30) days prior to such termination.
(c) Disability. If due to physical or mental illness or disability, the Executive shall be disabled so as to be unable to perform substantially the Executive’s essential duties and responsibilities hereunder with reasonable accommodation by the Company to the Executive’s known physical or mental disability, solely in accordance with, and to the extent required by law (provided such accommodation would not impose an undue hardship on the operation of the Company’s business or a direct threat to the Executive or others) for a period of one hundred eighty (180) consecutive days, the Company may terminate the Executive’s employment, effective immediately, upon written notice to the Executive.
(d) Death. The Executive’s employment with the Company shall terminate immediately upon the death of the Executive.
(e) Severance in the Event of Termination. Executive shall be entitled to the rights, obligations and benefits of the Company’s standard Severance Agreement for executive-level employees that Executive executed on October 21, 2021 (the “Severance Agreement”). In the event of Executive’s Death or Disability, Company shall pay Executive, or Executive’s heirs or estates, if appliable, the severance amounts as set forth in the Severance Agreement.
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6. Litigation and Regulatory Cooperation. The Executive shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive is employed by the Company. The Executive’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. The Executive shall also cooperate fully with the Company in connection with any examination or review of any federal, state or local regulatory authority as any such examination or review relates to events or occurrences that transpired while the Executive was employed by the Company. The Company will reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection with such cooperation. Executive will be protected under the Company’s Director’s and Officers (D&O) liability insurance.
7. Proprietary Information, Intellectual Property, Non-Solicitation, and Non- Disparagement.
(a) Definitions.
(i) Proprietary Information. During the course of the Executive’s employment with the Company, the Executive will be given unique and specialized training and will have access to the trade secrets and other confidential information on which the Company’s business is based. As used in this Agreement, “Proprietary Information” means (1) the information referred to in the preceding sentence, (2) information regarding products and/or service the Company may subsequently sell or manufacture, have under development, active consideration or planning, (3) Inventions and Developments (as defined below), (4) the confidential information of others with which the Company has a business relationship, and (5) any other information which the Company possesses or to which the Company has rights which have value to the Company, including (by way of example and without limitation) trade secrets, product ideas, designs, configurations, processes, techniques, formulas, software, improvements, data, know-how, copyrightable materials, marketing plans and strategies, including but not limited to social media plans and strategies, production plans and strategies, costs, pricing, vendor lists contact lists, and customer lists. Proprietary Information includes information developed by the Executive in the course of the Executive’s employment by the Company or otherwise relating to Inventions which belong to the Company under Section 7(e) below, as well as other information to which the Executive may have access in connection with the Executive’s employment.
(ii) Company. For purposes of this Section 7, all references to the “Company” will be deemed to include the Company and its Affiliates.
(iii) For purposes of this Section 7, the term “Non-Solicitation Period” shall mean the period of time during which the Executive is employed by the Company and for the twelve (12) consecutive months following the termination of the Executive’s employment with the Company for any reason.
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(b) Goodwill. The Executive acknowledges and agrees that: (i) during and as a result of the Executive’s employment by the Company, the Executive will acquire experience, skills and knowledge related to the Company’s business; and (ii) the Company depends upon its goodwill which it will entrust to the Executive during the term of the Executive’s employment by the Company by affording the Executive the opportunity to become acquainted with the clients, customers, accounts, prospects, suppliers, and licensees of the Company, to establish business relationships with them and to have access to records detailing their business activities with the Company.
(c) Confidentiality. The Executive understands and agrees that the Executive’s employment creates a relationship of confidence and trust between the Executive and the Company with respect to all Proprietary Information. At all times, both during the Executive’s employment with the Company and after its termination, the Executive will keep in confidence and trust all such Proprietary Information, and will not use or disclose any such Proprietary Information without the written consent of the Company, except as may be necessary in the ordinary course of performing the Executive’s duties to the Company. The Executive understands that the restrictions contained in this paragraph extend to and expressly prohibit disclosure of Proprietary Information through social media. The restrictions set forth in this Section 7(c) will not apply to information which is generally known to the public or in the trade, unless such knowledge results from an unauthorized disclosure by the Executive, but this exception will not affect the application of any other provision of this Agreement to such information in accordance with the terms of such provision.
(d) Documents, Records, Etc. All documents, records, apparatus, equipment, photography and other physical property, whether or not pertaining to Proprietary Information, which are furnished to the Executive by the Company or are produced by the Executive in connection with the Executive’s employment will be and remain the sole property of the Company. Upon termination of the Executive’s employment, or at any earlier time upon the Company’s request, the Executive will immediately return to the Company all Company property, documents (including without limitation all written and graphic notes of any kind and description, including customer and contact lists, letters, correspondence, memoranda, notes, reports, computer or data processing results, computer software or data processing tapes, photography, disks or other material in machine readable form) and any Confidential Information. Further, upon termination of employment, the Executive shall remove from the Executive’s personal social media any designation or indication that he or she is a current employee of the Company.
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(e) Intellectual Property. The Executive agrees to disclose promptly, completely and in writing to the Company any original works of authorship (including all copyrights with respect thereto), any discovery, process, design, improvement, innovation, development, improvement or invention, whether or not patentable and whether reduced to writing or practice or not, which the Executive discovers, conceives and/or develops, in whole or in part, either individually or jointly with others (whether on or off the Company’s premises or during or after working hours) during the period the Executive is employed with the Company, and which was or is directly or indirectly related to the business or proposed business of the Company, or which resulted or results from or was suggested by any work performed by any employee or agent thereof during such period of employment or for one year thereafter (“Inventions”). The term Inventions does not include developments, productions, or creations generated by the Executive for third parties, provided that such developments, productions, or creations occur outside the scope of the Executive’s employment with the Company and do not relate to the Company’s business. The Executive hereby assigns and agrees to assign to the Company without any separate or additional remuneration the Executive’s entire right, title and interest in all Inventions, together with any and all United States and foreign rights thereto. The Executive agrees that all Inventions and all works of authorship, literary works (including computer programs), audiovisual works, translations, compilations, and any other written materials, including but not limited to, copyrightable works (the “Works”) which are originated or produced by the Executive (solely or jointly with others), in whole or in part, within the scope of, or in connection with, the Executive’s employment will be considered “works made for hire” as defined by the U.S. Copyright Act (17 USC §101, as amended) and further acknowledges that the Executive is an employee as defined under that Act. All such works made for hire are and will be the exclusive property of the Company, and the Executive agrees to treat any such works as Proprietary Information. In the event that any Works are not deemed to be “works made for hire,” the Executive hereby assigns all of his right, title, and interest in and to such Works, including but not limited to, the copyrights therein, to the Company. The Executive agrees to cooperate with the Company, both during and subsequent to the Executive’s employment, to execute all instruments including patent and copyright applications and assignments therefor, and to do all other things reasonably necessary to fully vest, and perfect, in the Company the ownership rights contemplated herein. In the event the Company is unable, after reasonable effort, to secure the Executive’s signature on any document or instrument necessary to secure trademarks, letters patent, copyrights or other analogous protection relating to any Works, whether because of the Executive’s physical or mental capacity or for any other reason whatsoever, the Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as his agent and attorney-in-fact, to act for and in his behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts.
(f) Non-Solicitation. During Non-Solicitation Period, and regardless of the reasons for the termination of the Executive’s employment with the Company, the Executive will not, in any form or manner, directly or indirectly: (1) hire, employ, engage, solicit, entice, encourage, accept or cause to terminate his/her relationship with the Company or attempt to hire, employ, engage, solicit, entice, encourage, accept or cause to terminate his/her relationship with the Company, any Company employee, consultant or other service provider; or (2) hire, employ, engage or otherwise become involved in a business association or attempt to hire, employ, engage or otherwise become involved in a business association with any person who at any time during the one (1) year prior to the termination of the Executive’s employment with the Company was employed by the Company or engaged as a consultant to the Company; or (3) contact, solicit, divert, take away, or attempt to contact, solicit, divert or take away, any clients, customers, suppliers, vendors or accounts, or prospective clients, customers, suppliers, vendors, or accounts, of the Company, or any of the Company’s business with such clients, customers, suppliers, vendors or accounts. The Executive acknowledges that the restrictions contained in this Section extend to and expressly prohibit conduct via social media that would violate this Section.
(g) Third-Party Agreements and Rights. The Executive hereby confirms that the Executive is not bound by the terms of any agreement with any previous employer or other party which restricts in any way the Executive’s use or disclosure of information or the Executive’s engagement in any business. The Executive represents to the Company that the Executive’s execution of this Agreement, the Executive’s employment with the Company, and the performance of the Executive’s proposed duties for the Company will not violate any obligations the Executive may have to any such previous employer or other party. In the Executive’s work for the Company, the Executive will not disclose or make use of any information in violation of any agreements with or rights of any such previous employer or other party, and the Executive will not bring to the premises of the Company any copies or other tangible embodiments of non-public information belonging to or obtained from any such previous employment or other party.
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(h) Non-Disparagement. The Executive agrees that the Executive will not, during the Executive’s employment with the Company or at any time thereafter, make any statements that are disparaging about or adverse to the business interests of the Company (including its officers, directors and employees) or which are intended to harm the reputation of the Company including, but not limited to, any statements that disparage any product, service, capability or any other aspect of the business of the Company, including via social media.
(i) Injunctive Relief/Attorneys’ Fees. The Executive understands and acknowledges that the Company’s Proprietary Information, Inventions, and goodwill are of a special, unique, unusual, character which gives them a peculiar value, the loss of which cannot be reasonably compensated in damages in an action at law. The Executive understands and acknowledges that, in addition to any and all other rights or remedies that the Company may possess, the Company shall be entitled to injunctive and other equitable relief, without posting a bond, if the Executive breaches any portion of this Agreement or in order to prevent a breach or threatened breach of this Agreement (and/or any provision thereof and in particular, the provisions contained in this Section 7 regarding, non-solicitation, confidentiality, and non- disparagement) by the Executive. Further, to the extent permitted by law, the Executive agrees that the Executive shall be responsible for payment of the Company’s reasonable attorneys’ fees and costs in the event the Company prevails in any action against the Executive to enforce this Agreement or, to defend against any and all claims the Executive brings against the Company or its shareholders, employees, or agents.
8. Withholding. All payments made by the Company under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law.
9. Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to such subject matter.
10. Assignment; Successors and Assigns, etc. Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that the Company may assign its rights under this Agreement without the consent of the Executive in the event that either the Company or its Affiliates, if any, shall hereafter effect a reorganization, consolidate with or merge into any other corporation, partnership, organization or other entity, or transfer all or substantially all of its properties or assets to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their respective successors, executors, administrators, heirs and permitted assigns.
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11. Enforceability. The provisions of this Agreement are severable. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provisions in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any obligation of the Executive’s under Section 7 of this Agreement is held to be unenforceable because of the duration of such obligation or the geographic area covered, the court making such determination shall have the power to reduce the duration and/or geographic area of such provision, and in its modified form such provision shall be enforceable.
12. Forwarding of Agreement. The Executive hereby acknowledges and agrees that the Company may, in order to protect its interests, send a copy of this Agreement to any future employer of the Executive, and that the Executive shall have no claim against the Company in the event it does so.
13. Advice of Counsel/Construction. The Executive acknowledges that the Executive has been advised by the Company to review the terms of this Agreement with legal counsel of the Executive’s choice and that the Executive has been given a reasonable opportunity to seek such legal advice.
14. Executive Acknowledgement. The Executive acknowledges and agrees that the Executive’s responsibilities, duties, position, compensation, title and/or other terms and conditions of employment may change from time to time or the Executive may have a break in service or employment with the Company and, notwithstanding any change in any terms and conditions of employment or a break in service or employment, this Agreement shall remain in full force and effect.
15. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
16. Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by registered or certified mail, postage prepaid, to the Executive at the last address the Executive has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Chief Executive Officer.
17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and the Company’s Chief Executive Officer.
18. Affiliates. For purposes of this Agreement, “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by either management authority or equity interest.
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19. Governing Law/Forum/Dispute Resolution. The laws of New Hampshire shall govern the interpretation, validity and effect of this Agreement without regard to the place of performance thereof or principles of choice of law. The Parties shall attempt in good faith to resolve any dispute arising under this Agreement promptly by negotiation. Either may give the other written notice of any dispute not resolved in the normal course of business, stating that party’s position and proceed with negotiations. Within five (5) business days after delivery of the disputing party’s notice, the Parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. If any issues arising under this Agreement in dispute are not resolved by such negotiation (or if any party fails to participate in such negotiation), any party may, by written notice to the other, demand that the dispute be resolved by binding arbitration in Boston, MA, before a single arbitrator pursuant to the national rules for the resolution of employment disputes of the American Arbitration Association (“AAA”). The arbitrator shall be instructed, and the parties shall cooperate, with completing the arbitration with a ruling, if possible, in writing on each issue in dispute within 60 days of the arbitrator’s appointment by the AAA. The arbitrator shall have: the power to award damages, equitable relief, reasonable attorney’s fees and expenses, and the fees and expenses of 1the arbitrator and of the AAA, to any party. The arbitrator’s rulings and awards shall be final and binding upon the Parties and judgment thereon may be entered in any court having competent jurisdiction. Unless otherwise ordered by the arbitrator, the Company and Executive shall each pay an equal share of the fees and expenses; of the arbitrator and of the AAA.
20. Section 409A. The provisions of this Agreement are intended not to result in the imposition of additional tax or interest under Section 409A of the Internal Revenue Code, and such provisions shall be interpreted and administered in accordance with such intent. Without limiting the foregoing, this Agreement shall not be amended or terminated in a manner so as to result in the imposition of such tax or interest, any reference to “termination of employment” or similar term shall mean an event that constitutes a “separation from service” or “involuntary separation from service” (as the case may be) within the meaning of Section 409A, any reimbursement of expenses shall occur no later than the end of the calendar year following the calendar year in which the expense is incurred (or such earlier date as applies under the Company’s business expense reimbursement policy) and reimbursements in one year shall not affect the amount of reimbursement available in any subsequent year. The foregoing notwithstanding, the Company shall not be liable to any person for the tax consequences of any failure to comply with the requirements of Section 409A.
21. Survival of Obligations. The provisions of Section 7 of this Agreement shall survive the expiration of this Agreement or the earlier termination of the Executive’s employment. Other provisions of this Agreement shall survive the expiration of this Agreement or the earlier termination of the Executive’s employment to the extent necessary to the intended preservation of each party’s respective rights and obligations.
22. Counterparts. This Agreement may be executed in one or more counterparts, none of which need contain the signature of more than one party hereto, and each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. The facsimile or PDF signatures of the parties shall be deemed to constitute original signatures, and facsimile or PDF copies hereof shall be deemed to constitute duplicate originals.
23. Captions and Headings. Captions and paragraph headings used herein are for convenience and ready reference only and are not a part of this Agreement and shall not be used in the construction or interpretation thereof.
| -9- |
IN WITNESS WHEREOF, this Employment Agreement is entered into to be effective as of the date defined herein.
| Minim, Inc. | John Lauten | ||
| By: | /s/ Gray Chynoweth | /s/ John Lauten | |
| Name: | Gray Chynoweth | ||
| Title: | Chief Executive Officer | ||
| -10- |
Exhibit A
| 1. | Supply chain forecasting, production planning, logistics and other miscellaneous supply chain activities. |
| 2. | Mexico production, shipping and warehousing that includes North America Profit Sharing (NAPS), inventory management, and obsolete & excess inventory |
| 3. | Customer service returns (RMA’s) that include wholesale, end user, and service provider returns. |
| 4. | Amazon inventory levels, returns, and payments. |
| 5. | Financial functions such as A/R, A/P, Bank loans, status reports, and finance tasks needed for auditing. |
| 6. | Sales operation functions such as EDI processing, account price matrix, order processing, and sales reporting. |
| 7. | New product introduction and change orders. |
| 8. | Manufacturing partners and key component suppliers. |
| 9. | Participation in all Executive Level activity including Company financial planning, strategic planning, staff meetings, customer interfacing, etc. |
| 10. | Ensuring all Company Operation goals and objectives are met. |
| -11- |
Exhibit 10.2
Minim, inc.
amendment of employment agreement
March 2, 2022
Reference is hereby made to that certain Employment Agreement between Minim, Inc. (the “Company”) and Graham Chynoweth (“Executive”), dated May 22, 2019 and subsequently amended on December 4, 2020 (as amended, the “Employment Agreement”). This Amendment to the Employment Agreement (the “Amendment”), is entered into on the date first written above, by and between you and the Company. The Company and the Executive are each a “Party” and together, the “Parties.” In consideration of the agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
| 1. | In an effort to align Executive’s Employment Agreement with the Company’s standard employment agreement executed by other executives of the Company (the “Standard EA”), the Company and the Employee agree, pursuant to Section 16 of the Employment Agreement, to the amendments outlined in this Amendment. | |
| 2. | Section 4 of the Employment Agreement is deleted in its entirety and is replaced with the following from the Standard EA with the exception that the Board (and not the Executive) will approve any activities pursuant to clause (v): |
| During the Executive’s employment hereunder, the Executive shall devote the Executive’s full business time, best efforts and business judgment, skill and knowledge to the advancement of the Company’s interests and to the discharge of the Executive’s duties and responsibilities hereunder. Notwithstanding the foregoing, the Executive may engage in any outside business activities in which the Executive is engaged as of the date hereof, and the Executive may engage in other business activities in the future provided: (i) such activities are not for or with a competitor of the Company; (ii) such activities do not create a conflict of interest with respect to the Executive’s employment with the Company; (iii) such activities do not interfere with the Executive’s performance of the Executive’s job duties for the Company; (iv) the Executive notifies the Company in writing in advance of engaging in such activities; and (v) the Board authorizes the Executive to engage in such activities (which such authorization will not be unreasonably withheld). |
| 3. | The Parties agree that, notwithstanding the amended Section 4, the following outside activities are permitted pursuant to the Employment Agreement: (i) 10x Venture Partners, (ii) Strawberry Creek Venture Partners, (iii) Mill Works Fund, (iv) New Hampshire Public Radio, (v) PT United and (vi) US Navy Reserve. | |
| 4. | Section 5(d)(iii) of the Employment Agreement is deleted in its entirety and is replaced with “Reserved.” |
| 5. | The Employment Agreement will be amended to add the following new clause (h) to Section 5: |
| (h) Severance in the Event of Termination. Executive shall execute and be entitled to the rights, obligations and benefits of the Company’s standard Severance Agreement for executive-level employees (the “Severance Agreement”). If any conflict arises between the terms of the Employment Agreement and the terms of the Severance Agreement, the Severance Agreement will control. |
| 6. | The Employment Agreement will be amended to add the following new clause (i) to Section 7: |
| (i) Non-Disparagement. The Executive agrees that the Executive will not, during the Executive’s employment with the Company or at any time thereafter, make any statements that are disparaging about or adverse to the business interests of the Company (including its officers, directors and employees) or which are intended to harm the reputation of the Company including, but not limited to, any statements that disparage any product, service, capability or any other aspect of the business of the Company, including via social media. |
All other terms of Executive’s Employment Agreement will remain in effect and Executive will continue to provide services to the Company pursuant to the Employment Agreement.
This Amendment may be executed in one or more counterparts, none of which need to contain the signature of more than one party, each of which will be deemed to be an original, and all of which taken together shall constitute one and the same instrument. The facsimile or PDF signatures of the Parties shall be deemed to constitute original signatures, and facsimile or PDF copies of this Amendment shall be deemed to constitute duplicate originals.
[Signature page follows.]
In witness whereof, the parties have executed this Amendment as of the date hereof.
| minim, inc. | ||
| By: | /s/ Sara Bishop | |
| Name: | Sara Bishop | |
| Title: | Head of Talent and Culture | |
| executive | ||
| By: | /s/ Graham Chynoweth | |
| Name: | Graham Chynoweth | |
Cover |
Mar. 02, 2022 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Mar. 02, 2022 |
| Entity File Number | 001-37649 |
| Entity Registrant Name | MINIM, INC. |
| Entity Central Index Key | 0001467761 |
| Entity Tax Identification Number | 04-2621506 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 848 Elm Street |
| Entity Address, City or Town | Manchester |
| Entity Address, State or Province | NH |
| Entity Address, Postal Zip Code | 03101 |
| City Area Code | (833) |
| Local Phone Number | 966-4646 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common Stock, $.01 par value per share |
| Trading Symbol | MINM |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |