CHROMADEX CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT for MARK FRIEDMAN
Exhibit 10.72
CHROMADEX CORPORATION
EXECUTIVE EMPLOYMENT
AGREEMENT
for
▇▇▇▇ ▇▇▇▇▇▇▇▇
This
Executive Employment Agreement (this “Agreement”) is entered into as of
January 22, 2018 (the “Effective Date”), by and between
▇▇▇▇ ▇▇▇▇▇▇▇▇ (“Executive”) and ChromaDex
Corporation, a Delaware corporation (the “Company”).
1. Employment
by the Company.
1.1 Position.
Commencing on the Effective Date, Executive shall serve as the
Company’s General Counsel and Corporate Secretary, reporting
to the Company’s President and Chief Operating Officer.
During the term of Executive’s employment with the Company,
Executive will devote Executive’s commercially reasonable
efforts and substantially all of Executive’s business time
and attention to the business of the Company, except for approved
paid time off and reasonable periods of illness or other
incapacities permitted by the Company’s general employment
policies and applicable law.
1.2 Duties
and Location. Executive shall perform such duties as are
customarily associated with the position of General Counsel and
Secretary and such other duties, commensurate with his position, as
are assigned to Executive by the President and Chief Operating
Officer, or the Company’s Board of Directors (the
“Board”).
Executive’s primary office location shall be in the Los
Angeles, California area. The Company reserves the right to
reasonably require Executive to perform Executive’s duties at
the Company’s offices in Irvine, California as required for
the performance of his duties and for business meetings with
Company employees or representatives of third parties, and to
require reasonable business travel.
1.3 Policies
and Procedures. The employment relationship between the
parties shall be governed by the general employment policies and
practices of the Company, except that when the terms of this
Agreement differ from or are in conflict with the Company’s
general employment policies or practices, this Agreement shall
control.
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2. Compensation.
2.1 Base
Salary. Executive will receive an initial base salary at the
annual rate of $300,000, less standard payroll deductions and
withholdings and payable in accordance with the Company’s
regular payroll schedule. The base salary may be increased from
time to time. The base salary may not be decreased, other than a
decrease of less than ten percent (10%) of Executive’s
highest base salary pursuant to a salary reduction program
applicable generally to the Company’s senior executives. The
initial base salary, as increased or decreased, shall be referred
to as “Base
Salary.”
2.2 Annual
Bonus. In addition to base salary, Executive will be
eligible to earn discretionary annual incentive compensation (the
“Performance
Bonus”), based on the achievement of individual and
corporate performance targets and metrics to be determined and
approved by the Board or the Compensation Committee thereof. The
Performance Bonus, if earned, will be paid on an annual basis, less
standard payroll deductions and withholdings, after the close of
the fiscal year and after determination by the Board (or the
Compensation Committee thereof) of the level of achievement of the
applicable performance targets and metrics and the level of the
bonus amount, but not later than March 15 of the following calendar
year. No Performance Bonus amount is guaranteed and, in addition to
the other conditions for earning such Performance Bonus, Executive
must remain an employee in good standing of the Company on the
scheduled annual Performance Bonus payment date in order to earn
any Performance Bonus, except as otherwise provided
herein.
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2.3 Stock
Options. Subject to the approval of the Board, the Company
will grant Executive options (pursuant to the “inducement
exception” provided under NASDAQ Listing Rule 5635(c)(4) and
the terms of the Company’s 2017 Equity Incentive Plan (the
“Plan”) and
applicable law) (the “Options”) to purchase 500,000
shares of the Company’s common stock for an exercise price
equal to the fair market value on the date of the grant. One-third
of the shares subject to the Option shall vest on the one year
anniversary of the vesting commencement date of the Option, and the
remaining shares subject to the Option shall vest in a series of 24
equal monthly installments thereafter, subject to Executive’s
Continuous Service (as defined in the Plan) on each such vesting
date. Notwithstanding anything to the contrary set forth in the
Plan or any award agreement, if the Company consummates a Change in
Control (as that term is defined in the Plan) and subject to (i)
Executive’s Continuous Service through the date of the
consummation of the Change in Control or (ii) termination of the
Executive’s Continuous Service by the Company without Cause
or by the Executive for Good Reason within 90 days prior to the
consummation of a Change in Control, Executive shall vest
immediately prior to such Change in Control as to 100% of his
otherwise unvested time-based equity awards (the
“Single Trigger
Acceleration”), provided, however, that in exchange
for the Single Trigger Acceleration, the Company may require
Executive to execute and deliver to the Company a signed and dated
general release of all known and unknown claims in substantially
the form attached hereto as Exhibit A
(the “Release”)
within the applicable deadline set forth therein. The Company will
register the shares subject to the Option on a Registration
Statement on Form S-8 as soon as reasonably practicable after the
Effective Date.
3. Standard
Company Benefits. Executive shall, in accordance with
Company policy and the terms and conditions of the applicable
Company benefit plan documents, be eligible to participate in the
benefit and fringe benefit programs provided by the Company to its
senior executive officers from time to time. Any such benefits
shall be subject to the terms and conditions of the governing
benefit plans and policies and may be changed by the Company in its
discretion.
4. Expenses.
The Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in
furtherance or in connection with the performance of
Executive’s duties hereunder, in accordance with the
Company’s expense reimbursement policy as in effect from time
to time.
5. Proprietary
Information Obligations.
5.1 Proprietary
Information Agreement. As a condition of employment, and in
consideration for the benefits provided for in this Agreement,
Executive shall sign and comply with the Company’s Employee
Confidential Information and Invention Assignment Agreement (the
“Proprietary Information
Agreement”) attached hereto as Exhibit B.
In
addition, Executive agrees to abide by the Company’s
internally published policies and procedures, as may be modified
and internally published from time to time within the
Company’s discretion.
5.2 Third-Party
Agreements and Information. Executive represents and
warrants that Executive’s employment by the Company does not
conflict with any prior employment or consulting agreement or other
agreement with any third party, and that Executive will perform
Executive’s duties to the Company without violating any such
agreement. The Company acknowledges and agrees that Executive will
remain subject to the attorney client privilege with respect to his
prior employment. Executive represents and warrants that Executive
does not possess confidential information arising out of prior
employment, consulting, or other third party relationships, that
would be used in connection with Executive’s employment by
the Company, except as expressly authorized by that third party.
During Executive’s employment by the Company, Executive will
use in the performance of Executive’s duties only information
that is generally known and used by persons with training and
experience comparable to Executive’s own, common knowledge in
the industry, otherwise legally in the public domain, or obtained
or developed by the Company or by Executive in the course of
Executive’s work for the Company.
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6. Outside
Activities and Non-Competition During
Employment.
6.1 Outside
Activities. Throughout Executive’s employment with the
Company, Executive may engage in civic and not-for-profit
activities (including continuing his role as a member of the Board
of Directors of Bet Tzedek Legal Services) and manage his and his
family’s passive investments, so long as such activities do
not materially interfere with the performance of Executive’s
duties hereunder or present a conflict of interest with the Company
or its affiliates. Subject to the restrictions set forth herein,
and only with prior written disclosure to and consent of the Board,
Executive may engage in other types of business or public
activities. The Board may rescind such consent, if the Board
determines, in its sole discretion, that such activities compromise
or threaten to compromise the Company’s or its
affiliates’ business interests or conflict or compete with
Executive’s duties to the Company or its
affiliates.
6.2 Non-Competition
During Employment. Except as otherwise provided in this
Agreement, during Executive’s employment with the Company,
Executive will not, without the prior written consent of the Board,
directly or indirectly serve as an officer, director, stockholder,
employee, partner, proprietor, investor, joint venturer, associate,
representative or consultant of any person or entity engaged in, or
planning or preparing to engage in, business activity competitive
with any line of business engaged in (or planned to be engaged in)
by the Company; provided, however, that Executive may purchase or
otherwise acquire up to (but not more than) one percent (1%) of any
class of securities of any enterprise (without participating in the
activities of such enterprise) if such securities are listed on any
national or regional securities exchange.
7. Termination
of Employment; Severance.
7.1 At-Will
Employment. Executive’s employment relationship is
at-will. Either Executive or the Company may terminate the
employment relationship at any time, with or without Cause (as
defined below) or advance notice (other than the notice
requirements expressly set forth in Section 12).
7.2 Termination
Without Cause or Resignation for Good Reason. In the event
Executive’s employment with the Company is terminated by the
Company without Cause (and other than as a result of
Executive’s death or Disability (as defined below)) or
Executive resigns his employment for Good Reason, then provided
such termination or resignation constitutes a “separation
from service” (as defined under Treasury Regulation Section
1.409A-1(h), without regard to any alternative definition
thereunder, a “Separation
from Service”), and provided that Executive satisfies
the Release Requirement in Section 8 below, the Company shall
provide Executive with the following “Severance Benefits”:
7.2.1 Severance
Payments. Severance pay in the form of continuation of
Executive’s Base Salary for a period of twelve (12) months
following termination, subject to required payroll deductions and
tax withholdings (the “Severance Payments”). Subject to
Section 8 below, the Severance Payments shall be made on the
Company’s regular payroll schedule in effect following
Executive’s termination date; provided, however that any such
payments that are otherwise scheduled to be made prior to the
Release Effective Date (as defined below) shall instead accrue and
be made on the first administratively practicable payroll date
following the Release Effective Date. For such purposes,
Executive’s final Base Salary will be calculated prior to
giving effect to any reduction in Base Salary that would give rise
to Executive’s right to resign for Good Reason.
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7.2.2 Health
Care Continuation Coverage Payments.
(i) COBRA
Premiums. If Executive timely elects continued coverage
under COBRA, the Company will pay Executive’s COBRA premiums
to continue Executive’s coverage (including coverage for
Executive’s eligible dependents, if applicable)
(“COBRA
Premiums”) through the period starting on the
termination date and ending twelve (12) months after the
termination date (the “COBRA
Premium Period”); provided, however, that the
Company’s provision of such COBRA Premium benefits will
immediately cease if during the COBRA Premium Period Executive
becomes eligible for group health insurance coverage through a new
employer or Executive ceases to be eligible for COBRA continuation
coverage for any reason, including plan termination. In the event
Executive becomes covered under another employer’s group
health plan or otherwise ceases to be eligible for COBRA during the
COBRA Premium Period, Executive must immediately notify the Company
of such event.
(ii) Special
Cash Payments in Lieu of COBRA Premiums. Notwithstanding the
foregoing, if the Company determines, in its sole discretion, that
it cannot pay the COBRA Premiums without potentially incurring
financial costs or penalties under applicable law (including,
without limitation, Section 2716 of the Public Health Service Act),
regardless of whether Executive or Executive’s dependents
elect or are eligible for COBRA coverage, the Company instead shall
pay to Executive, on the first day of each calendar month following
the termination date, a fully taxable cash payment equal to the
applicable COBRA premiums for that month (including the amount of
COBRA premiums for Executive’s eligible dependents), subject
to applicable tax withholdings (such amount, the
“Special Cash
Payment”), for the remainder of the COBRA Premium
Period. Executive may, but is not obligated to, use such Special
Cash Payments toward the cost of COBRA premiums.
7.2.3 Equity
Acceleration upon Termination. Notwithstanding anything to the contrary set forth
in the Plan or any award agreement, effective as of
Executive’s employment termination date, the vesting and
exercisability of the then unvested time-based vesting equity
awards that would have otherwise become vested had Executive
performed Continuous Service through the one year anniversary of
Executive’s employment termination date then held by
Executive shall accelerate and become immediately vested and
exercisable, if applicable, by Executive upon such termination and
shall remain exercisable, if applicable, following
Executive’s termination as set forth in the applicable equity
award documents. With respect to any performance-based vesting
equity award, such award shall continue to be governed in all
respects by the terms of the applicable equity award documents.
Upon any such termination, Executive shall have three (3) years to
exercise any options or stock appreciation rights, but no later
than ten (10) years from the date of grant or the date when the
options or stock appreciation rights would otherwise terminate
under the Plan other than as a result of termination of employment
(e.g., if all of the Company’s options are accelerated and
terminate if not exercised in connection with a Change in Control
(as that term is defined in the Plan), then Executive’s
options will also terminate if not exercised in connection with the
Change in Control).
7.2.4
Pro Rata Bonus. Executive shall be
eligible to receive, based on the good faith determination of the
Board or the Compensation Committee thereof, a pro rata Performance
Bonus based on actual results and Executive’s period of
employment during the fiscal year in which termination occurred
(the “Pro Rata
Bonus”), on the date when other bonuses are paid for
the fiscal year.
7.2.5
No Mitigation or Offset. The Executive
shall have no obligation to mitigate the obligations hereunder, and
the amounts due hereunder shall not be offset by any amounts
otherwise earned by Executive.
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7.3 Termination
for Cause; Resignation Without Good Reason; Death or
Disability. Executive will not be eligible for, or entitled
to any severance benefits, including (without limitation) the
Severance Benefits listed in Section 7.2 above, if the Company
terminates Executive’s employment for Cause, Executive
resigns Executive’s employment without Good Reason, or
Executive’s employment terminates due to Executive’s
death or Disability, provided that the Executive, in the case of
death or Disability termination, shall be eligible to receive a Pro
Rata Bonus.
8. Conditions
to Receipt of Severance Benefits. To be eligible for any of
the Severance Benefits pursuant to Section 7.2 above, Executive
must satisfy the following release requirement (the
“Release
Requirement”): return to the Company a signed and
dated Release within the applicable deadline set forth therein, but
in no event later than forty-five (45) calendar days following
Executive’s termination date, and permit the Release to
become effective and irrevocable in accordance with its terms (such
effective date of the Release, the “Release Effective Date”). No
Severance Benefits will be provided hereunder prior to the Release
Effective Date. Accordingly, if Executive refuses to sign and
deliver to the Company an executed Release or signs and delivers to
the Company the Release but exercises Executive’s right, if
any, under applicable law to revoke the Release (or any portion
thereof), then Executive will not be entitled to any severance,
payment or benefit under this Agreement.
9. Accrued
Amounts. On any termination, the Executive shall promptly
receive earned but unpaid Base Salary, accrued but unused vacations
and unreimbursed expenses (in accordance with the Company’s
applicable expense reimbursement policies), and shall be entitled
to any amounts due under any benefit or fringe plan or program in
accordance with the provisions of the plan or program.
10. Section
409A. It is intended that all of the severance benefits and
other payments payable under this Agreement satisfy, to the
greatest extent possible, the exemptions from the application of
Code Section 409A provided under Treasury Regulations
1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this
Agreement will be construed to the greatest extent possible as
consistent with those provisions, and to the extent not so exempt,
this Agreement (and any definitions hereunder) will be construed in
a manner that complies with Section 409A. For purposes of Code
Section 409A (including, without limitation, for purposes of
Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s
right to receive any installment payments under this Agreement
(whether severance payments, reimbursements or otherwise) shall be
treated as a right to receive a series of separate payments and,
accordingly, each installment payment hereunder shall at all times
be considered a separate and distinct payment. Any reference to
termination or similar words shall mean a separation from service
under the meaning of Code Section 409A. Notwithstanding any
provision to the contrary in this Agreement, if Executive is deemed
by the Company at the time of Executive’s Separation from
Service to be a “specified employee” for purposes of
Code Section 409A(a)(2)(B)(i), and if any of the payments upon
Separation from Service set forth herein and/or under any other
agreement with the Company are deemed to be “deferred
compensation”, then to the extent delayed commencement of any
portion of such payments is required in order to avoid a prohibited
distribution under Code Section 409A(a)(2)(B)(i) and the related
adverse taxation under Section 409A, such payments shall not be
provided to Executive prior to the earliest of (i) the expiration
of the six-month and one day period measured from the date of
Executive’s Separation from Service with the Company, (ii)
the date of Executive’s death or (iii) such earlier date as
permitted under Section 409A without the imposition of adverse
taxation. Upon the first business day following the expiration of
such applicable Code Section 409A(a)(2)(B)(i) period, all payments
deferred pursuant to this Section 10 shall be paid in a lump sum to
Executive, and any remaining payments due shall be paid as
otherwise provided herein or in the applicable agreement. No
interest shall be due on any amounts so deferred. If any severance
benefits provided under this Agreement constitutes “deferred
compensation” under Section 409A, for purposes of determining
the schedule for payment of the severance benefits, the effective
date of the Release will be the sixtieth (60th) date following the
Separation From Service, regardless of when the Release actually
becomes effective. To the extent required to avoid accelerated
taxation and/or tax penalties under Code Section 409A, amounts
reimbursable to Executive under this Agreement shall be paid to
Executive on or before the last day of the year following the year
in which the expense was incurred, amounts shall not be subject to
liquidation or exchange for another benefit, and the amount of
expenses eligible for reimbursement (and in-kind benefits provided
to Executive) during any one year may not effect amounts
reimbursable or provided in any subsequent year. The Company makes
no representation that any or all of the payments described in this
Agreement will be exempt from or comply with Code Section
409A.
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11. Section
280G; Limitations on Payment.
11.1 If
any payment or benefit Executive will or may receive from the
Company or otherwise (a “280G
Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and
(ii) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G
Payment provided pursuant to this Agreement (a “Payment”) shall be equal to the
Reduced Amount. The “Reduced
Amount” shall be either (x) the largest portion
of the Payment that would result in no portion of the Payment
(after reduction) being subject to the Excise Tax or (y) the
largest portion, up to and including the total, of the Payment,
whichever amount (i.e., the amount determined by clause (x) or by
clause (y)), after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax
(all computed at the highest applicable marginal rate), results in
Executive’s receipt, on an after-tax basis, of the greater
economic benefit notwithstanding that all or some portion of the
Payment may be subject to the Excise Tax. If a reduction in a
Payment is required pursuant to the preceding sentence, the
reduction shall occur in the manner (the “Reduction Method”) that results in
the greatest after tax economic benefit for Executive. If more than
one method of reduction will result in the same after tax economic
benefit, the items so reduced will be reduced pro rata (the
“Pro Rata Reduction
Method”).
11.2 Notwithstanding
any provision of Section 11.1 to the contrary, if the
Reduction Method or the Pro Rata Reduction Method would result in
any portion of the Payment being subject to taxes pursuant to
Section 409A that would not otherwise be subject to taxes pursuant
to Section 409A, then the Reduction Method and/or the Pro Rata
Reduction Method, as the case may be, shall be modified so as to
avoid the imposition of taxes pursuant to Section 409A as follows:
(A) as a first priority, the modification shall preserve to
the greatest extent possible, the greatest after tax economic
benefit for Executive as determined on an after-tax basis;
(B) as a second priority, Payments that are contingent on
future events (e.g., being
terminated without Cause), shall be reduced (or eliminated) before
Payments that are not contingent on future events; and (C) as
a third priority, Payments that are “deferred
compensation” within the meaning of Section 409A shall be
reduced (or eliminated) before Payments that are not deferred
compensation within the meaning of Section 409A.
11.3 Unless Executive
and the Company agree on an alternative accounting firm or law
firm, the accounting firm engaged by the Company for general tax
compliance purposes as of the day prior to the effective date of
the Change in Control transaction shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or
group effecting the Change in Control transaction, the Company
shall appoint a nationally recognized accounting or law firm to
make the determinations required by this Section 11. The Company
shall bear all expenses with respect to the determinations by such
accounting or law firm required to be made hereunder. The Company shall use commercially reasonable
efforts to cause the accounting or law firm engaged to make the
determinations hereunder to provide its calculations, together with
detailed supporting documentation, to Executive and the Company within fifteen (15) calendar days
after the date on which Executive’s right to a 280G Payment becomes reasonably likely
to occur (if requested at that time by Executive
or the Company) or such other time as
requested by Executive or the
Company.
11.4 If
Executive receives a Payment for which the Reduced Amount was
determined pursuant to clause (x) of Section 11.1 and the Internal
Revenue Service determines thereafter that some portion of the
Payment is subject to the Excise Tax, Executive agrees, to the
extent not in violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, to promptly
return to the Company a sufficient amount of the Payment (after
reduction pursuant to clause (x) of Section 11.1) so that no
portion of the remaining Payment is subject to the Excise Tax. For
the avoidance of doubt, if the Reduced Amount was determined
pursuant to clause (y) of Section 11.1, Executive shall have no
obligation to return any portion of the Payment pursuant to the
preceding sentence.
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12. Definitions.
12.1 Cause.
For the purposes of this Agreement, “Cause” means the occurrence of any
one or more of the following: (i) Executive’s
conviction of or plea of guilty or nolo contendere to any felony;
(ii)
Executive’s willful and continued failure or refusal to
follow lawful and reasonable instructions of the Company or the
Board or lawful, reasonable, material and internally published
policies and regulations of the Company;
(iii) Executive’s willful and continued failure to
faithfully and diligently perform the assigned duties of
Executive’s employment with the Company (other than on
account of illness or excused absence); (iv) unethical or
fraudulent conduct by Executive that materially discredits the
Company or is materially detrimental to the reputation, character
and standing of the Company; or (v) Executive’s material
breach of this Agreement or the Proprietary Information Agreement.
An event described in Section 12.1(ii) through Section 12.1(v)
herein shall not be treated as “Cause” until after
Executive has been given written notice of such event, failure,
conduct or breach and Executive fails to cure such event, failure,
conduct or breach within 30 calendar days from such written notice;
provided, however, that such 30 calendar day cure period shall not
be required if the event, failure, conduct or breach is incapable
of being cured.
12.2 Good
Reason. For purposes of this Agreement, Executive shall have
“Good Reason”
for resignation from employment with the Company if any of the
following actions are taken by the Company without
Executive’s prior written consent: (i) a reduction in
Executive’s Base Salary, other than a reduction by less than
ten percent (10%) of the Executive’s highest Base Salary
pursuant to a salary reduction program applicable generally to the
Company’s senior executives; (ii) a material reduction
in Executive’s duties (including responsibilities and/or
authorities) or reporting lines; (iii) a relocation of
Executive’s principal place of employment to a place that
increases Executive’s one-way commute by more than thirty
(30) miles as compared to Executive’s then-current principal
place of employment immediately prior to such relocation (excluding
any relocation to the Company’s Irvine, California office);
or (iv) a material breach of this Agreement. In order for
Executive to resign for Good Reason, each of the following
requirements must be met: (w) Executive must provide written
notice to the Company’s Board within 30 days after the first
occurrence of the event giving rise to Good Reason setting forth
the basis for Executive’s resignation, (x) Executive must
allow the Company at least calendar 30 days from receipt of such
written notice to cure such event, (y) such event is not reasonably
cured by the Company within such 30 calendar day period (the
“Cure Period”),
and (z) Executive must resign from all positions Executive
then holds with the Company not later than calendar 30 days after
the expiration of the Cure Period.
12.3 Disability.
For purposes of this Agreement, “Disability” means that Executive
is unable to perform the essential functions of his position
(notwithstanding the provision of any reasonable accommodation) by
reason of any medically determinable physical or mental impairment
which has lasted for a period of one hundred and twenty (120) days
during any consecutive six (6) month period.
13. Dispute
Resolution. To ensure the rapid and economical resolution of
disputes that may arise in connection with Executive’s
employment with the Company, Executive and the Company agree that
any and all disputes, claims, or causes of action, in law or
equity, including but not limited to statutory claims, arising from
or relating to the enforcement, breach, performance, or
interpretation of this Agreement, Executive’s employment with
the Company, or the termination of Executive’s employment
with the Company, will be resolved pursuant to the Federal
Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent
permitted by law, by final, binding and confidential arbitration
conducted in Irvine, California by JAMS, Inc. (“JAMS”) or its successors by a
single arbitrator. Both Executive and the
Company acknowledge that by agreeing to this arbitration procedure,
they each waive the right to resolve any such dispute through a
trial by jury or judge or administrative
proceeding. Any
such arbitration proceeding will be governed by JAMS’ then
applicable rules and procedures for employment disputes, which will
be provided to Executive upon request. In any such proceeding, the
arbitrator shall: (i) have the authority to compel adequate
discovery for the resolution of the dispute and to award such
relief as would otherwise be permitted by law; and (ii) issue a
written arbitration decision including the arbitrator’s
essential findings and conclusions and a statement of the award.
Executive and the Company each shall be entitled to all rights and
remedies that either would be entitled to pursue in a court of law.
Nothing in this Agreement is intended to prevent either the Company
or Executive from obtaining injunctive relief in court to prevent
irreparable harm pending the conclusion of any such arbitration
pursuant to applicable law. The Company shall pay all filing fees
in excess of those which would be required if the dispute were
decided in a court of law, and shall pay the arbitrator’s
fees and any other fees or costs unique to arbitration. The parties
shall pay their own legal fees. Any awards or orders in such
arbitrations may be entered and enforced as judgments in the
federal and state courts of any competent
jurisdiction.
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14. General
Provisions.
14.1 Notices.
Any notices provided must be in writing and will be deemed
effective upon the earlier of personal delivery (including personal
delivery by fax) or the next day after sending by overnight
carrier, to the Company at its primary office location and to
Executive at the address as listed on the Company
payroll.
14.2 Severability.
Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction to the extent possible
in keeping with the intent of the parties.
14.3 Waiver.
Any waiver of any breach of any provisions of this Agreement must
be in writing to be effective, and it shall not thereby be deemed
to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
14.4 Complete
Agreement. This Agreement, together with the Proprietary
Information Agreement, the Indemnity Agreement (as defined below)
and to the extent referenced in this Agreement, the Plan and
applicable award agreement, constitutes the entire agreement
between Executive and the Company with regard to the subject matter
hereof and is the complete, final, and exclusive embodiment of the
Company’s and Executive’s agreement with regard to this
subject matter. This Agreement is entered into without reliance on
any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes and replaces any
other agreements or promises made to Executive by anyone concerning
Executive’s employment terms, compensation or benefits,
whether oral or written (including but not limited any agreements
or promises with or from the Company or any of its affiliates or
predecessors). It cannot be modified or amended except in a writing
signed by a duly authorized officer of the Company, with the
exception of those changes expressly reserved to the
Company’s discretion in this Agreement.
14.5 Counterparts.
This Agreement may be executed in separate counterparts, any one of
which need not contain signatures of more than one party, but both
of which taken together will constitute one and the same
Agreement.
14.6 Headings.
The headings of the sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
14.7 Successors
and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and
administrators, except that Executive may not assign any of
Executive’s duties hereunder, Executive may not assign any of
Executive’s rights hereunder without the written consent of
the Company, which shall not be withheld unreasonably, and the
Company may not assign this Agreement, except to an Affiliate (as
defined in the Plan) or to a successor in connection with a Change
in Control.
14.8 Tax
Withholding. All payments and awards contemplated or made
pursuant to this Agreement will be subject to withholdings of
applicable taxes in compliance with all relevant laws and
regulations of all appropriate government authorities. Executive
acknowledges and agrees that the Company has neither made any
assurances nor any guarantees concerning the tax treatment of any
payments or awards contemplated by or made pursuant to this
Agreement. Executive has had the opportunity to retain a tax and
financial advisor and fully understands the tax and economic
consequences of all payments and awards made pursuant to this
Agreement.
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14.9 Choice
of Law. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the laws
of the State of California.
14.10 Indemnification Agreement. Executive
will become a party to the Company’s standard form of
indemnity agreement for directors and officers as filed as an
exhibit to the Company’s most recent Annual Report on Form
10-K (the “Indemnity
Agreement”).
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In Witness
Whereof, this Agreement shall be effective as of the
Effective Date.
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ChromaDex Corporation
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President and Chief Operating
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Executive
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