DIRECTOR RESIGNATION AGREEMENT
Exhibit 99.2
This Agreement (this “Agreement”) is hereby made as of April 7, 2023 by and among Minim, Inc. (the “Company”), Xxxxxx X. Xxxxx (the “Director”) and the other parties hereto on the signature page
hereof (collectively, the “Other Parties”). The Company, the Director and the Other Parties are referred to herein as the “Parties.”
WITNESSETH
WHEREAS, the Director is presently a member of the Company’s Board of Directors; and
WHEREAS, the Director has informed the Company that he is resigning from the Board of Directors effective on the
date hereof.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. Director Resignation. On the date hereof, the Director has executed the resignation letter attached hereto as Exhibit A.
2. Outstanding Director Compensation. Beginning July 1, 2022 and continuing currently and until further notice, at the Company’s request the Director agreed and continues to agree to defer his rights (the
“Deferral”) to receive cash compensation for services rendered to the Company as a director, as provided on Exhibit B hereto (the “Deferred Cash Compensation”), based on the Company’s representation to the Director that the Company has been
since such date, and continues to be, unable to pay any cash compensation to the Director as such payments would jeopardize the ability of the Company to continue as a going concern in accordance with U.S. Internal Revenue Code Section
409A-1(b)(4)(ii), and such payments will continue to be delayed until such payment would no longer jeopardize the ability of the Company to continue as a going concern in accordance with U.S. Internal Revenue Code Section 409A-1(b)(4)(ii). All
outstanding stock options, restricted stock units (RSUs) and other equity awards held by the Director, as provided on Exhibit C hereto, shall be immediately accelerated by the Company and shall be immediately vested as of the date hereof.
The Director shall have one year after the date of this Agreement to exercise any outstanding stock options.
3. Tax Indemnification. The Company agrees to fully exonerate, indemnify, and hold the Director free and harmless from and against any and all costs associated with the Deferral including, but not
limited to any federal or state tax audit, penalties, interest, and damages with respect to any deficiency assessed or tax liens arising from the Deferral. In addition, the Company shall assume and pay any fees and expenses, including but not
limited to accounting and legal fees, incurred by the Director to defend himself against any audit or assessment as a result of claims made relating to the Deferral.
4. D&O Liability Insurance. The Company confirms that the policy period for the Company’s current policy (the “Policy”) for its D&O liability insurance program is effective through December 31,
2023 and a copy of such Policy has been provided to the Director. The Company confirms that the premiums owed for the Policy have been paid in full as of the date of this Agreement. The Company will maintain its D&O liability insurance program
for a period of 6 years from the date hereof, on terms which are at least as favorable to the Director in all material respects as the terms of such insurance in effect for the Company on the date hereof and from an insurer or insurers having credit
ratings no lower than the Company’s current insurer(s). In connection with any change of control of the Company, the Company shall purchase a 6-year pre-paid “tail policy” on terms and conditions (in both amount and scope) providing substantially
equivalent benefits to the Director as the policy for the Company’s D&O liability insurance program in effect as of the date of the change of control with respect to matters arising on or prior to the date the Director ceased serving as a
director.
5. Non Disparagement. Each of the Parties agrees that such Party shall not, following the date hereof, in public or private, make any critical or negative statements in writing, orally, electronically or
otherwise regarding any of the other Parties unless compelled to do so by law and then, only after giving the other Party prompt notice that it has been compelled to do so by law, including details sufficient to allow the Party to timely object to
such disclosure. Nothing in this paragraph shall prohibit the Parties from providing truthful testimony in any legal proceeding, and making truthful disclosures to any government agency, government representative or as otherwise required by law.
6. Release. The Director, for and on behalf of himself and his heirs, executors, administrators, assigns, agents, representatives and affiliates (collectively, the “Director Parties”, hereby waives
and releases any and all complaints, claims, suits, controversies, actions, cross-claims, counter-claims, demands, causes of action, obligations, charges, judgments, rights, fees, compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, debts, obligations, liabilities, expenses and claims for costs and attorneys’ fees, of any kind whatsoever, in law or in equity, whether known or unknown, suspected or claimed (collectively, “Claims or Losses”), which
the Director or any of the Director Parties ever had, now has or may have against the Company and its predecessors, successors, past or present parents or subsidiaries, affiliates, officers, directors, limited and general partners, managers, joint
venturers, members, employees or agents, including the Other Parties (collectively, the “Company Parties”) in their respective capacities as such by reason of acts or omissions which have occurred on or prior to the date that the Director
executes this Release; provided that notwithstanding the foregoing, the Director Parties do not release the Company Parties for any Claims or Losses arising out of or relating to or in connection with the enforcement of any of their rights under this
Agreement.
Each of the Company, for and on behalf of itself and the Company Parties, and the Other Parties, hereby waives and releases any and all Claims or Losses which the Company, the Company Parties, or the Other Parties ever
had, now has or may have against any of the Director Parties by reason of acts or omissions which have occurred on or prior to the date that the Company and the Other Parties Director executes this Release; provided that notwithstanding the
foregoing, each of the Company, the Company Parties, and the Other Parties, do not release the Director Parties for any Claims or Losses arising out of or relating to or in connection with the enforcement of any of their rights under this Agreement.
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7. Remedies. Each of the Company and the Other Parties acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of Section 5 or Section 6 of this Agreement would
be inadequate and, therefore, agree that the Director shall be entitled to injunctive relief (without necessity of a bond), in addition to any other available rights and remedies in case of any such breach or threatened breach by the Company or one
of the Other Parties, provided, however, that nothing contained in this Agreement shall be construed as prohibiting the Director from pursuing any other rights and remedies available for any such breach or threatened breach.
8. Survival. Each of the Parties hereby expressly agrees that his, her or its under Section 5 and Section 6 of this Agreement shall (i) survive the termination of Director’s position on the Board and (ii)
be binding upon each Party’s heirs, successors, permitted assigns and legal representatives.
9. Entire Agreement/Amendment. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof.
10. Third Party Beneficiaries. Each of the members of the Board of Directors of the Company shall be express third-party beneficiaries of Section 2 and Section 4 of this Agreement.
11. Governing Law. This Agreement, the rights and obligations of the parties hereto and any claims or disputes relating thereto shall be governed by and construed in accordance with the internal law of the
State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdictions other than the State of
Delaware.
12. Counterparts and Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and together any counterparts shall constitute one and the same
instrument. Additionally, the Parties agree that electronic reproductions of signatures (e.g., scanned PDF versions of original signatures) shall be treated as original signatures for purposes for execution of
this Agreement.
13. Remedy. Each of the Company and the Other Parties acknowledges and agrees that the Director will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the
Parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that the Director shall be entitled to an injunction to prevent breaches of this Agreement, and to specific enforcement of this Agreement and its
terms and provisions in any action instituted in any court of the United States or any state having subject matter jurisdiction (without the necessity of posting bond or other security).
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14. Amendment. This Agreement may not be altered or amended except by an instrument in writing executed by each of the Parties hereto. Neither the Company nor the Other Parties may not assign any rights
or delegate any obligations under this Agreement without the Director’s prior written consent.
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IN WITNESS WHEREOF, the parties hereby execute this Agreement through their duly authorized representatives.
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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Minim, Inc.
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Chief Financial Officer
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/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
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/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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/s/ Xxxxxxxxx Xxxx Xxxxxxxxx
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Xxxxxxxxx Cash Xxxxxxxxx
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Orbit Group LLC
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By:
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/s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Manager
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Xxxxxxxxx Capital Partners, LLC
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By: Orbit Group LLC, its Manager
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By:
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/s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Manager
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Zulu Holdings LLC
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By: Orbit Group LLC, its Manager
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By:
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/s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Manager
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Exhibit A
LETTER OF RESIGNATION
April 7, 2023
TO: The Board of Directors of Minim, Inc., a Delaware corporation (the “Company”)
The undersigned hereby voluntarily resigns from any and all positions as Director, member of any Board equivalent, member of any committee of any Board of Directors or Board equivalent, in each case, of the Company, and
any of its subsidiaries, effective as of the date hereof, without any requirement of further action or acceptance by the Company or any other person or entity.
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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