CHROMADEX CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT for LISA BRATKOVICH
Exhibit 10.58
CHROMADEX CORPORATION
for
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
This Executive Employment Agreement (this
“Agreement”) is entered into as of June
1, 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 Chief Marketing Officer, reporting to
the Company’s President and Chief Operating Officer. During
the term of Executive’s employment with the Company and
except as provided in Section 6.1, 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 Chief Marketing
Officer and such other duties, commensurate with her 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 her 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.
2. Compensation.
2.1 Base Salary.
Executive will receive an initial base
salary at the annual rate of $350,000, 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 for 2018.
In addition to base salary, for
2018, Executive will paid any bonus amounts on an annual basis
after the close of the fiscal year (December 31) and after approval
by the Compensation Committee of the Board of Directors
(“Compensation Committee”) based on the level of
achievement of Sales Metrics listed below. The bonus schedule is
based on three tiers as follows:
o
20% of earned
salary in 2018 when achieving $20M in sales of TRU
NIAGEN® in calendar
2018
o
An additional 25%
of earned salary in 2018 when achieving $23M in sales of TRU
NIAGEN® in calendar
2018
o
An additional 25 %
of earned salary in 2018 when achieving $30M in sales of TRU
NIAGEN® in calendar
2018
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2.3 Annual Bonus.
In addition to base salary, beginning
in 2019, Executive will be eligible to earn discretionary annual
incentive compensation (the “Performance
Bonus”),
calculated and paid commensurate with other executive officers of
the Company, subject to the approval of the Compensation Committee.
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),
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.
2.4 Stock Options.
Subject to the approval of the Board,
the Company will grant Executive options (pursuant to the terms of
the Company’s 2017 Equity Incentive Plan, as amended (the
“Plan”), and applicable law) (the
“Options”) to purchase 200,000 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 her
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.
2.5 Additional Stock
Options. Any additional
stock options, stock grants, stock units or equivalents to be
granted to you will be calculated and issued commensurate with
other executive officers of the Company, subject to the approval of
the Compensation Committee.
3. Standard Company Benefits;
Personal Time Off (PTO). 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.
Executive shall receive such number of annual PTO days as does the
other executive officers of the Company.
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.
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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. 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.
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 her role on
the board of non-profit organization, Girls in Tech) and also continue to work no more than a
few hours each week with non-competitive B2B early stage start-up
venture StreamingIQ where Executive is on the board and holds an
equity stake, 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 her 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);
(iv) a material breach of this Agreement; or (v) unlawful
harassment, or discrimination toward Executive. 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 her 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.
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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.
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”).
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 Officer
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EXECUTIVE
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