MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.1
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
“Agreement”)
is made as of March 12, 2017, by and among (i) Xxxxxx X. Xxxxx, an
individual (“R.
Fried”), (ii) Dr. Xxxxxxx
Xxxxxxx, an individual (“Xx.
Xxxxxxx”), (iii) Xxxxxxx
Xxxxx, an individual (“X.
Xxxxx”; each of R. Fried,
Xx. Xxxxxxx, and X. Xxxxx, a “Seller”,
and collectively the “Sellers”),
and ChromaDex Corporation, a Delaware corporation
(“Buyer”).
Sellers and Buyer are collectively referred to herein as the
“Parties”
and each individually as a “Party.”
WHEREAS, Sellers own beneficially and of record
91.74% of the outstanding membership interests (the
“Membership
Interests”) of Healthspan
Research, LLC, a Delaware limited liability company (the
“Company”);
and
WHEREAS,
Buyer desires to acquire from Sellers, and Sellers desire to sell
to Buyer, 100% of the membership interests of the Company owned
beneficially and of record by the Sellers, which membership
interests constitute 100% of the membership interests of the
Company not already owned by Buyer.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase
and Sale of Membership Interests of the Company. On and
subject to the terms and conditions set forth in this
Agreement:
(a) Buyer hereby
purchases from each Seller, and each Seller hereby sells, assigns,
conveys and transfers to Buyer, the respective amount of the
Membership Interests as set forth on Exhibit A, free and clear of
any liens, pledges, security interests, mortgages, restrictions on
transfer (other than any restrictions on transfer under the
Securities Act of 1933, as amended (the “Act”), applicable state
securities laws, and the Company’s Limited Liability Company
Agreement, dated as of August 28, 2015 (the “Operating Agreement”),
which restrictions on transfer included in the Operating Agreement
the Sellers have complied with in connection with the transactions
contemplated by this Agreement), and any options, warrants, calls,
commitments, proxies or other contract rights (the
“Purchased
Interests”).
(b) In consideration of
the sale of the Purchased Interests and the covenants and
agreements of Sellers contained in this Agreement, (i) at the
Closing (as defined below), Buyer shall issue to each Seller the
number of shares of Buyer’s common stock, par value $0.001
per share, as set forth on Exhibit A (collectively, the
“Consideration
Shares”) and shall pay R. Fried $32,500 by wire
transfer of immediately available funds to an account designated by
R. Fried to Buyer prior to Closing and (ii) on the one-year
anniversary of the Closing Date (as defined below), Buyer shall pay
R. Fried $100,000 by wire transfer of immediately available funds
to an account designated by R. Fried to Buyer prior to such
one-year anniversary date.
(c) The Consideration
Shares issued pursuant to the terms of this Agreement shall be
issued in a transaction exempt from registration under the Act by
reason of Section 4(a)(2) thereof and/or Regulation D promulgated
under the Act and may not be re-offered or resold other than in
conformity with the registration requirements of the Securities Act
and such other applicable rules and regulations or pursuant to an
exemption therefrom. Until the resale by a Seller of his or her
Consideration Shares has become registered under the Act, or
otherwise transferable pursuant to an exemption from such
registration otherwise required thereunder, the Consideration
Shares issued to each Seller shall be characterized as
“restricted securities” under the Act and, if
certificated, shall bear the following legend (or if held in book
entry form, will be noted with a similar restriction):
-1-
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE OR BOOK ENTRY
POSITION HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE
RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933.
SUCH
SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES
ACT.”
1.2 Closing.
(a) Closing. The closing of the
transactions contemplated by this Agreement (the
“Closing”)
shall take place at the offices of Xxxxxx LLP, 0000 Xxxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxxxxxx, commencing at 5:00 p.m. on the date hereof,
or at such other place or on such other date or time as may be
mutually agreeable to the Parties. The date of the Closing is
herein referred to as the “Closing
Date”.
(b) Closing Actions. As a condition
to consummation of the transactions contemplated by this Agreement,
prior to, or contemporaneously with the execution and delivery of
this Agreement:
(i) Sellers shall have
delivered, or caused to be delivered, to Buyer:
(A) a duly executed
assignment of membership interests pursuant to which such Seller
sells, assigns, transfers and conveys the Purchased Interests to
Buyer;
(B) a schedule setting
forth the estimated working capital of the Company as of the
Closing Date, or as of the last business day before the Closing
Date if the Closing Date is not a business day, certified by an
officer of the Company;
(C) a certified copy of
the Articles of Organization of the Company and a true and correct
copy of the Operating Agreement in effect immediately prior to the
Closing Date;
(D) a certificate of
the secretary of state of the jurisdiction in which the Company is
organized stating that the Company is in good standing;
and
(E) a certificate from
each Seller certifying that such Seller is not a “foreign
person” for purposes of Section 1445 of the Internal Revenue
Code of 1986, as amended (the “Code”), in form and
substance required under Section 1.1445-2(b)(2) of the Treasury
Regulations.
(ii) Buyer
shall have issued to each Seller the Consideration Shares in
accordance with Section
1.1(b).
(iii) Buyer
shall have paid R. Fried $32,500 as set forth in Section 1.1(b).
(iv) Buyer
and R. Fried shall have executed the form of Executive Employment Agreement attached hereto as
Exhibit
B, the form of Stock Option
Agreement attached hereto as Exhibit
C, and the form of Restricted
Stock Award Agreement attached hereto as Exhibit
D.
(v) R.
Fried shall deliver to the Company, with a copy to Buyer, that
certain Promissory Note, dated as of September 10, 2015, by the
Company marked as paid off, satisfied in full, and
canceled.
-2-
(vi) Any
outstanding options, warrants, calls,
commitments, proxies or other contract rights providing for
the acquisition of Membership Interests, including any such options
owned by Dr. Xxxxxxx Xxxxxxx, shall have become fully vested and
exercised for Membership Interests, and shall be included in the
Purchased Interests as set forth on Exhibit A, or shall have been
canceled and extinguished pursuant to arrangements that are
reasonably satisfactory to Buyer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY
As a material inducement to Buyer to enter into
this Agreement, R. Fried hereby represents and warrants that,
except as set forth on any disclosure schedule attached hereto
as Exhibit E
(the “Disclosure
Schedules”), the
statements contained in this Article II
are true and correct on the date
hereof:
2.1 Organization and
Company Power. The Company is a Delaware limited liability
company duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company is qualified to do business in every
jurisdiction in which such qualification is necessary, except where
the failure to so qualify has not had or would not reasonably be
expected to have a Material Adverse Effect. The Company has full
power and authority necessary to own and operate its properties and
to carry on its business as now conducted and presently proposed to
be conducted. For purposes of this Agreement, “Material
Adverse Effect” shall mean any event, occurrence, fact,
condition, change or effect that is materially adverse to the
business, properties, condition (financial or otherwise), or
results of operations of the Company as a
whole.
2.2 Capitalization.
Sellers own 100% of the equity interests of the Company not already
owned by Buyer, of which R. Fried owns
84.74%, Xx. Xxxxxxx owns 4.0%, and X. Xxxxx owns 3.0%. All of the
outstanding membership interests of the Company have been duly
authorized, are validly issued, fully paid and nonassessable, are
not subject to, nor were they issued in violation of, any
preemptive rights, rights of first refusal, or similar rights, and
are owned of record and beneficially by Sellers and Buyer, free and
clear of (in the case of the membership interests of the Sellers)
all liens, pledges, security interests, mortgages, restrictions on
transfer (other than any restrictions under the Act and applicable
state securities laws), options, warrants, calls, commitments,
proxies or other contract rights. None of the membership interests
are subject to vesting that will not be fully accelerated in
connection with the transactions contemplated by this Agreement,
and, as of the Closing, Buyer will own, beneficially and of record,
100% of the equity interests of the Company, free and clear of all
liens, pledges, security interests, mortgages, restrictions on
transfer (other than any restrictions under the Act and applicable
state securities laws), options, warrants, calls, commitments,
proxies or other contract rights (other than, in each case, created
by Buyer). Except for this Agreement and the Operating Agreement,
there are no outstanding or authorized options, warrants, calls,
puts, rights to subscribe, conversion rights or other agreements or
commitments to which the Company is a party or which are binding
upon the Company providing for the issuance, disposition or
acquisition of any of its equity interests or any rights or
interests exercisable therefor. There are no outstanding or
authorized equity appreciation, phantom equity or similar rights
with respect to the Company. There are no voting trusts, proxies or
any other agreements or understandings with respect to the voting
of the Membership Interests. The Company is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any of its equity interests.
2.3 Subsidiaries;
Investments. The Company does not have, and has not had, any
subsidiaries. The Company does not own
or control or have any right to acquire (directly or indirectly)
any stock, partnership interest, joint venture interest, equity
participation or other security or interest in any other
person.
-3-
2.4 Absence of
Conflicts. Except as set forth on Schedule 2.4, the execution,
delivery and performance of this Agreement and the consummation of the transactions contemplated
hereby by the Company and/or each Seller do not and shall not (a)
conflict with or result in any breach of any of the terms,
conditions or provisions of, (b) constitute a default under, (c)
result in a violation of, (d) give any third party the right to
modify, terminate or accelerate or cause the modification,
termination or acceleration of, any obligation under, (e) result in
the creation of any lien or claim upon any of the Membership
Interests or the assets of the Company, or (f) require any
authorization, consent, approval, exemption or other action by or
notice or declaration to, or filing with, any governmental
authority, under (i) the provisions of the organizational documents
of the Company (including the Operating Agreement), (ii) any
material contract to which the Company is bound, (iii) any
judgment, order or decree to which the Company is subject, or (iv)
any law, statute, rule or regulation to which the Company is
subject.
2.5 Financial
Statements. The Company has delivered to Buyer the unaudited
balance sheet of the Company as of
November 30, 2016 (the “Latest Balance
Sheet”) and the related
unaudited statements of operations and cash flows for the 11-month
period then ended. The foregoing financial statements (including in
all cases the notes thereto, if any) (the
“Financial
Statements”) were
prepared from the books and records of the Company and present
fairly in all material respects the financial condition and results
of operations and cash flows of the Company as of and for the
periods referred to therein. The Financial Statements have been
prepared on a consistent basis in accordance with the
Company’s historical accounting
practices.
2.6 Absence of
Undisclosed Liabilities. Except as set forth on Schedule 2.6, the Company has
no liability (or liabilities based on
the same or similar set of facts) in excess of $1,000 arising out
of transactions entered into at or prior to the Closing, or any
action or inaction at or prior to the Closing, or any state of
facts existing at or prior to the Closing, including Taxes with
respect to or based upon transactions or events occurring on or
before the Closing, except (a) liabilities reflected on the face of
the Latest Balance Sheet, and (b) liabilities which have arisen
after the date of the Latest Balance Sheet in the ordinary course
of business (none of which is a liability for breach of contract,
breach of warranty, tort or infringement or a claim or lawsuit or
an environmental liability).
2.7 Absence of Certain
Developments. Since December 31, 2015, there has not been
any event, transaction, condition or
change which has had a Material Adverse Effect.
2.8 Title
to Properties; Sufficiency of Assets.
(a) The Company does
not own, and has never owned, any real property.
(b) The Company is not
a party to any real property leases or subleases.
(c) The personal
properties and other tangible assets of the Company are operated in
conformity in all material respects with all applicable laws and
regulations, are in good condition and repair, except for
reasonable wear and tear not caused by neglect, and are usable in
the ordinary course of business.
(d) Other
than liens incurred in the ordinary course of business
(i.e., machine financings,
liens for taxes not yet due or payable or contested in good faith,
or statutory or common law liens in favor of materialmen to secure
claims for labor, materials, or supplies), the Company owns good
and marketable title to, or a valid leasehold interest in, free and
clear of all liens, security interests, mortgages and pledges, all
of the personal property and assets which are shown on the Latest Balance Sheet or acquired
by the Company thereafter. The assets and properties (whether real
or personal or tangible) owned or leased by the Company constitute
all of the assets and properties necessary in all material respects
to conduct the business of the Company as currently
conducted.
-4-
2.9 Taxes.
(a) (i) The Company has
timely filed all Tax Returns which are required to be filed on or
before the Closing Date, and all such Tax Returns are true,
complete and accurate in all material respects, (ii) all taxes due
and payable by the Company before the Closing Date, whether or not
shown on a Tax Return, have been paid by the Company or Sellers on
or before the Closing Date, and all taxes accrued but not yet due
are shown on the Latest Balance Sheet, and no taxes are delinquent,
(iii) with respect to any periods for which Tax Returns have
not yet been required to be filed or for which taxes are not yet
due and payable, the Company has only incurred liabilities for
taxes in the ordinary course of business and in a manner and at a
level consistent with prior periods; (iv) no deficiency for any
amount of Tax has been asserted or assessed by a taxing authority
against the Company and the Company does not reasonably expect that
any such assertion or assessment of Tax liability will be made and
the Company does not have any outstanding claims for any Tax
refunds, (v) there is no action, suit, proceeding or audit or any
notice of inquiry of any of the foregoing pending against or with
respect to the Company regarding taxes and, to the knowledge of
Sellers and the Company, no action, suit, proceeding or audit has
been threatened against or with respect to the Company regarding
taxes, (vi) the Company has not consented to extend the time in
which any Tax may be assessed or collected by any taxing authority,
(vii) no claim has ever been made by a taxing authority in a
jurisdiction where the Company does not file Tax Returns that the
Company is or may be subject to taxes assessed by such
jurisdiction, (viii) the Company does not have liability for
taxes of any other person under Treasury Regulations
Section 1.1502-6 (or any similar provision or state, local or
foreign Tax law), as a transferee, by contract, or otherwise, (ix)
the Company has withheld or collected and paid all taxes required
to have been withheld
or collected and paid in connection with amounts
paid or owing to any employee, independent contractor, customer,
creditor, equity holder or other third party, (x) the Company is
not a party to or bound by any Tax allocation or Tax sharing
agreement with any person, and does not have any current or
potential contractual obligation to indemnify any other person with
respect to taxes, (xi) each contract, arrangement, or plan of the
Company that is a “nonqualified deferred compensation
plan” (as defined for purposes of Code
Section 409A(d)(1)) is in documentary and operational
compliance with Code Section 409A and the applicable guidance
issued thereunder in all material respects, and the Company does
not have any indemnity obligation for any taxes imposed under
Section 4999 or 409A of the Code, (xii) all Membership
Interests issued in connection with the performance of services and
subject to vesting qualify as “profits interests”
within the meaning of Revenue Procedure 93-27, 1993-2 C.B. 343, as
clarified by Revenue Procedure 2001-43, 2001-2 C.B. 191, and the
allocation of Consideration Shares among Sellers in Exhibit A is
consistent with the qualification of such Membership Interests as
profits interests, and (xiii) the Company has at all times been
classified as a partnership within the meaning of Treasury
Regulation Section 301.7701-2(a) and has not made an election
to be treated as an association within the meaning of Treasury
Regulation Section 301.7701-3. Other than within the State of
California, there is no state, territory or jurisdiction (whether
foreign or domestic) in which the Company is required to file Tax
Returns.
(b) For purposes of
this Agreement:
(i) “Tax”
or “Taxes” means (a) any
federal, state, local or foreign income, gross receipts,
alternative or add-on minimum, sales, use, customs duty, property,
transfer, occupation, service, license, payroll, franchise, excise,
escheat or unclaimed property, withholding, ad valorem, severance,
stamp, premium, windfall profit or employment tax or other like
assessment or charge of any kind whatsoever, together with any
interest, fine or penalty thereon, addition to tax, additional
amount, deficiency, assessment or governmental charge, and
(b) any liability for the payment of
any amount of the types described in clause (a) immediately above
(i) as a result of the Company’s being party to any agreement
to indemnify any person, (ii) as a result of the Company’s
being a successor of any other person or the transferee of assets
or property of any other person or (iii) under Treasury Regulation
Section 1.1502-6 or other similar provision of any state, local or
federal law.
(ii) “Tax
Return” means any report, statement, form, return,
election, schedule or other document
or information supplied or required to be supplied to a taxing
authority in connection with Taxes, including any schedule,
attachment, amendment or supplement thereto.
-5-
2.10 Contracts
and Commitments. The contracts to which the Company is
bound, whether oral or in writing, involving payments by or to the
Company in excess of $5,000 are referred to herein as the
“Company
Contracts” and are listed on Schedule 2.10. The
Company has delivered to Buyer true and correct copies of each
Company Contract, together with all amendments, waivers and other
changes thereto. (i) No Company Contract has been canceled or, to
Sellers’ knowledge, breached in any material respect by the
other party, and to Sellers’ knowledge the Company has not
received notice of any planned breach by any other party to any
Company Contract, (ii) the Company is not in default under or in
breach, in any material respect, of any Company Contract, and, to
the knowledge of Sellers, no event or condition has occurred or
arisen which with the passage of time or the giving of notice or
both would result in a default or breach thereunder, (iii) the
Company has no present expectation or intention of not fully
performing any obligation pursuant to any Company Contract and (iv)
each Company Contract is legal, valid, binding, enforceable and in
full force and effect and will continue as such following the
consummation of the transactions contemplated hereby, subject to
applicable bankruptcy, insolvency, reorganization, or moratorium or
other similar laws relating to creditors’ rights generally
and to general principles of equity.
2.11 Litigation;
Proceedings. There are no legal claims, actions, suits,
proceedings, orders, judgments,
decrees, arbitrations or investigations pending or, to
Sellers’ knowledge, threatened against or affecting the
Company at law or in equity, or before or by any governmental
authority or arbitration authority, and to the knowledge of
Sellers, there is no basis known for any of the foregoing. The
Company is not subject to any outstanding order, judgment or decree
issued by any court or quasi-judicial or administrative agency of
any federal, state, local or foreign jurisdiction or any
arbitrator.
2.12 Brokerage.
There are no claims for brokerage commissions, finders’ fees
or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Company.
2.13 Governmental
Licenses and Permits. The Company has and maintains all
material permits, licenses, franchises, certificates, consents,
certificates of authorization, registrations and other
authorizations of federal, state and local governments or
regulatory authorities (collectively, the “Licenses”) necessary in
the conduct of its business as presently conducted. The Company is
in compliance with the terms and conditions of such Licenses,
except to the extent any failure(s) to comply would not result in a
Material Adverse Effect. No loss or
expiration of any License is pending or, to Sellers’
knowledge, threatened (including, without limitation, as a result
of the transactions contemplated hereby) other than expiration in
accordance with the terms thereof, which terms do not expire as a
result of the consummation of the transactions contemplated
hereby.
2.14 Employees.
The Company does not employ any employees. To the Sellers’
knowledge, no independent contractors of the Company have any plans
to terminate his or her relationship as an independent contractor
with the Company. The Company has complied with in all material
respects and is in compliance in all material respects with all
applicable laws relating to the employment of personnel and labor,
including provisions thereof relating to wages, hours, vacation,
overtime, notice, pay in lieu of notice, termination and severance
pay, human rights, occupational health and safety, equal
opportunity, collective bargaining and the payment of social
security and other Taxes, the Worker Adjustment and Retraining
Notification Act, and the Immigration Reform and Control Act of
1986. The Company is not party to or bound by any collective
bargaining agreement, nor has it experienced any strikes,
grievances, unfair labor practices claims or other material
employee or labor disputes. The Company has not engaged in any
unfair labor practice. Neither the Company, and to the knowledge of
Sellers, no independent contractor of the Company, is subject to
any noncompete, nondisclosure, confidentiality, employment,
consulting or similar contract relating to, affecting or in
conflict with the present business activities of the Company,
provided that Xx. Xxxxxxx is an employee of the University of Iowa
and has non-disclosure and confidentiality obligations in
connection with his employment and obligations not to use
University of Iowa resources in connection with his consulting
services to the Company.
-6-
2.15 Insurance.
The Company maintains insurance policies in amount and scope
reasonably necessary to protect it against loss and similar to
policies maintained by companies of similar size and business of
the Company. All of such insurance policies are in full force and
effect, and the Company has never been (i) in default with respect
to its liabilities under any such insurance policies or (ii) denied
insurance coverage.
2.16 Affiliate
Transactions. Except for the Exclusive Supply Agreement by
and between the Company and Buyer, a letter agreement by and
between the Company and Xx. Xxxxxxx (the “Xxxxxxx Letter
Agreement”), and a letter agreement by and between the
Company and X. Xxxxx (the “Xxxxx Letter Agreement”),
no director, officer, employee, equity holder or other affiliate of
the Company or any individual related by marriage or adoption to
any such person or any entity in which any such person owns any
beneficial interest, is a party to any contract or transaction with
the Company or which pertains to the business of the Company or has
any interest in any property, real or personal or mixed, tangible
or intangible, used in or pertaining to the business of the
Company.
2.17 Compliance
with Laws. The Company is in compliance in all material
respects with all applicable laws, regulations and ordinances of
foreign, federal, state and local governmental authorities which
are applicable to the Company and to which the Company is subject,
and no claims have been filed against the Company alleging a
violation of any such laws or regulations, and the Company has not
received oral or written notice of any such violations, and to the
Sellers’ knowledge, no such claims are
threatened.
2.18 Environmental
Matters. The Company has complied with and is currently in
compliance in all material respects with all environmental
requirements, and the Company has no liabilities, including,
without limitation, corrective, investigatory or remedial
obligations arising under environmental requirements, and the
Company has not received any oral or written notice, report or
information regarding any environmental liabilities.
2.19 Powers
of Attorney; Guarantees. There are no outstanding powers of
attorney executed on behalf of the Company. The Company is not a
guarantor or otherwise liable for any indebtedness of any other
person.
2.20 Effect
of Investigation. The knowledge or investigation of Buyer
shall in no event affect the representations and warranties made
under this Article II or Article III.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO SELLERS
As a material inducement to Buyer to enter into
this Agreement, each Seller severally represents and warrants to
Buyer that the statements contained in this Article III
are true and correct on the date
hereof:
3.1 Authorization of
Transactions. Such Seller has the requisite legal capacity
to enter into this Agreement and to
perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Seller and, assuming this Agreement
constitutes the valid and binding agreement of the other parties
hereto, constitutes the valid and binding agreement of such Seller,
enforceable in accordance with its terms, except as such
enforcement may be limited by (a) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws now or hereinafter in effect relating to or
affecting creditors’ rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at
law).
-7-
3.2 Absence of
Conflicts. Neither the execution and the delivery of this
Agreement nor the consummation of the
transactions contemplated hereby by such Seller, shall (a) conflict
with or result in any breach of any of the terms, conditions or
provisions of, (b) constitute a default under, (c) result in a
violation of, (d) give any third party the right to modify,
terminate or accelerate or cause the modification, termination or
acceleration of, any obligation under, (e) result in the creation
of any lien or claim upon any of the Membership Interests owned by
such Seller, or (f) require any authorization, consent, approval,
exemption or other action by or notice or declaration to, or filing
with, any governmental authority, under (i) the provisions of the
organizational documents of the Company (including the Operating
Agreement), (ii) any contract to which such Seller is bound, (iii)
any judgment, order or decree to which such Seller is subject, or
(iv) any law, statute, rule or regulation to which such Seller is
subject.
3.3 Brokerage.
There are no claims for brokerage commissions, finders’ fees
or similar compensation in connection
with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of such
Seller.
3.4 Membership
Interests. Such Seller holds of record and owns beneficially
the Membership Interests set forth opposite such Seller’s
name on Exhibit A, in each case free and clear of any liens, pledges,
security interests, mortgages, restrictions on transfer (other than
any restrictions on transfer under the Act and applicable state
securities laws and restrictions on transfer included in the
Operating Agreement, which restrictions on transfer included in the
Operating Agreement such Seller has complied with in connection
with the transactions contemplated by this Agreement), options,
warrants, calls, commitments, proxies or other contract rights.
Except for the Xxxxxxx Letter Agreement, with respect to Xx.
Xxxxxxx, and the Xxxxx Letter Agreement, with respect to X. Xxxxx,
such Seller is not a party to any option, warrant, contract, call,
put or other agreement or commitment providing for the disposition
or acquisition of any Membership Interests of the Company (other
than this Agreement). Such Seller is not a party to any voting
trust, proxy or other agreement or understanding with respect to
the voting of any Membership Interests of the
Company.
3.5 Litigation.
There are no actions, suits, proceedings or orders pending or, to
such Seller’s knowledge,
threatened against or affecting such Seller at law or in equity, or
before or by any arbitration authority, federal, state, municipal
or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which would adversely
affect such Seller’s performance under this Agreement or the
consummation of the transactions contemplated
hereby.
3.6 Accredited
Investor. Such Seller is an “accredited
investor” as defined in Rule 501(a) of Regulation D promulgated under the Act. Such
Seller acknowledges that Buyer is a public reporting company, and
has reviewed such information as such Seller considers advisable,
and has otherwise taken such actions (including, if such Seller
considers it advisable, hiring his or her own advisors and
attorneys) as such Seller considers advisable, to enter into the
transactions contemplated by this Agreement.
3.7 Purchase for
Investment. Such Seller is acquiring the Consideration
Shares solely for investment for his
or her own account and not with the view to, or for resale in
connection with, any “distribution” (as such term is
used in Section 2(11) of the Act) thereof. Such Seller understands
that the Consideration Shares have not been registered under the
Act or any state or foreign securities laws by reason of specified
exemptions therefrom that depend upon, among other things, the bona
fide nature of its investment intent as expressed herein and as
explicitly acknowledged hereby and that under such laws and
applicable regulations such securities may not be resold without
registration under the Act or under applicable state or foreign law
unless an applicable exemption from registration is
available.
-8-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Sellers to enter into
this Agreement, Buyer hereby represents and warrants to Sellers
that the statements contained in this Article IV
are true and correct on the date of
this Agreement:
4.1 Organization and
Corporate Power. Buyer is a corporation duly organized,
validly existing and in good standing
under the laws of the State of Delaware, with full corporate power
and authority to enter into this Agreement and perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
4.2 Authorization of
Transaction. The execution, delivery and performance of this
Agreement have been duly and validly
authorized by all requisite corporate action on the part of Buyer,
and no other proceedings on its part are necessary to authorize the
execution, delivery or performance of this Agreement. This
Agreement has been duly and validly executed and delivered by Buyer
and constitutes a valid and binding obligation of Buyer,
enforceable in accordance with its terms.
4.3 No
Violation; Consents or Approvals. Assuming the accuracy of
the Sellers’ representations and warranties in Article II and
Article III, Buyer is not subject or party to any applicable law,
or rule or regulation of any governmental authority, or any
contract, or any license, franchise or permit, or subject to any
order, writ, injunction or decree, which would be breached or
violated by its execution, delivery or performance of this
Agreement or which would adversely affect the ability of Buyer to
consummate the transactions contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby by the Buyer does not and shall not (a) conflict with or
result in any breach of any of the terms, conditions or provisions
of, (b) constitute a default under, (c) result in a violation of,
(d) give any third party the right to modify, terminate or
accelerate or cause the modification, termination or acceleration
of, any obligation under, or (e) require any authorization,
consent, approval, exemption or other action by or notice or
declaration to, or filing with, any governmental authority, under
(i) the provisions of the organizational documents of Buyer, (ii)
any material contract to which Buyer is bound, (iii) any judgment,
order or decree to which Buyer is subject, or (iv) any law,
statute, rule or regulation to which Buyer is subject (other than
the filings required under applicable federal and state securities
laws).
4.4 Purchase for
Investment. Buyer is acquiring the Purchased Interests
solely for investment for its own
account and not with the view
to, or for resale in connection with, any
“distribution” (as such term is used in Section 2(11)
of the Act) thereof. Buyer understands that the Membership
Interests have not been registered under the Act or any state or
foreign securities laws by reason of specified exemptions therefrom
that depend upon, among other things, the bona fide nature of its
investment intent as expressed herein and as explicitly
acknowledged hereby and that under such laws and applicable
regulations such securities may not be resold without registration
under the Act or under applicable state or foreign law unless an
applicable exemption from registration is
available.
4.5 SEC
Reporting. Since January 1,
2014, Buyer has filed or furnished all forms, reports,
schedules, statements, exemptions, certifications and other
documents (including all exhibits, amendments and supplements
thereto, the “SEC
Reports”) required to be filed or furnished by it with
the United States Securities and Exchange Commission
(“SEC”)
pursuant to the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder or
other applicable United States federal securities laws. As of their
respective dates, after giving effect to any amendments or
supplements thereto, the SEC Reports complied as to form in all
material respects with the requirements of the Securities Act of
1933, as amended, and the rules and regulations of the SEC
promulgated thereunder (the “Securities Act”) and the
Exchange Act, if applicable, as the case may be, and, to the extent
applicable, the Xxxxxxxx-Xxxxx Act of 2002. The financial
statements of Buyer contained in such SEC Reports (the
“Buyer Financial
Statements”) complied as to form in all material
respects with the published rules and regulations of the SEC with
respect thereto in effect at the time of filing or furnishing the
applicable SEC Report. To Buyer’s knowledge, no investigation
by the SEC with respect to Buyer or any of their respective
officers or directors is pending or threatened.
-9-
4.6 Litigation.
There are no actions, suits, proceedings or orders pending or, to
Buyer’s knowledge, threatened
against or affecting Buyer at law or in equity, or before or by any
arbitration authority, federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which would prohibit
Buyer’s performance under this Agreement or the consummation
of the transactions contemplated hereby.
4.7 Brokerage.
There are no claims for brokerage commissions, finders’ fees
or similar compensation in connection
with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of
Buyer.
4.8 Investigation
by Buyer; No Other Representations or Warranties. Buyer has conducted its own independent review
and analysis of the Company and has relied solely on its own review
and analysis in determining to proceed with the transaction
contemplated by this Agreement. Except as set forth in
Article
II and Article
III, neither the Sellers nor
any of their affiliates or any of their respective representatives
makes any representation or warranty of any kind, either express or
implied, with respect to the Company or the subject matter of this
Agreement. Buyer acknowledges that, except as expressly set forth
in the representations and warranties in Article II
and Article
III, there are no, and Buyer
has not relied on any, representations or warranties by the Sellers
or any of their affiliates or representatives of any kind, express
or implied, with respect to the Company, the Sellers, or the
subject matter of this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Tax
Matters.
(a) Certain Taxes and Fees. Sellers
shall be responsible for, as and when due, all transfer, sales,
use, registration and other such Taxes and fees (including any
penalties and interest thereon) incurred in connection with this
Agreement (“Transfer
Taxes”). The Parties shall cooperate in timely making
all filings, returns, reports and forms as necessary or appropriate
to comply with the provisions of all applicable laws in connection
with the payment of such Transfer Taxes, and shall cooperate in
good faith to minimize the amount of any such Transfer Taxes
payable in connection therewith.
(b) Cooperation on Tax Matters.
Buyer and Sellers shall cooperate fully as and to the extent
reasonably requested by the other Party, in connection with the
filing of Tax Returns of the Company and any audit, litigation or
other proceeding with respect to Taxes of the Company. Such
cooperation shall include the retention and (upon the other
Party’s request) the provision of records and information
which are reasonably relevant to any such audit, litigation or
other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation
of any material provided hereunder.
(c) Withholding. Notwithstanding
any other provision in this Agreement, Buyer shall have the right
to deduct and withhold any required Taxes from any payments to be
made hereunder. To the extent that amounts are so withheld and paid
to the appropriate taxing authority, such withheld amounts shall be
treated for all purposes of this Agreement as having been delivered
and paid to Sellers or any other recipient of payment in respect of
which such deduction and withholding was made.
(d) Preparation of Income Tax
Returns. The Representative shall prepare, or cause to be
prepared, all income Tax Returns of the Company for any taxable
period that ends on or before the Closing Date that are due after
the Closing Date, and shall submit a copy of any such income Tax
Return to Buyer for Buyer’s review and comment at least 30
days before the due date for filing such Tax Return. The Sellers
shall accept all reasonable written comments made by Buyer to any
such Tax Returns and shall revise such Tax Returns accordingly. The
Parties agree that all such Tax Returns of the Company shall be
prepared consistently with Section 5.1(e), applicable law,
and except to the extent inconsistent with the foregoing, past
practice. Buyer shall cooperate with the Representative to cause
the Tax Returns subject to this Section 5.1(d) to be filed as
finally prepared after incorporating Buyer’s reasonable
comments.
-10-
(e) Certain Income Tax
Consequences.
(i) Buyer,
the Sellers, and the Company acknowledge and agree that the
purchase and sale of the Purchased Interests pursuant to this
Agreement shall be treated for U.S. federal income Tax purposes as
(i) with respect to the Sellers, a taxable sale of their
partnership interests in the Company, and (ii) with respect to
Buyer, as a purchase of the assets of the Company deemed
distributed to the Sellers in a deemed liquidation of the Company,
as provided in Situation #1 of Revenue
Ruling 99-6, 1999-1 C.B. 432. Buyer, the Company and the Sellers
will file all Tax Returns in a manner consistent with such
treatment, and will take no position inconsistent with such
characterization for federal, state or local income Tax purposes,
including in any audit, judicial or administrative proceeding,
unless otherwise required by applicable Tax
law.
(ii) Buyer
will prepare an allocation of the aggregate value of the
Consideration Shares, assumed
liabilities, and any other relevant items among the assets deemed
acquired by Buyer in pursuant to this Agreement in accordance with
Section 1060 of the Code and the Treasury Regulations thereunder
(the “Purchase Price
Allocation”). The Parties
agree that the Purchase Price Allocation will value inventory at
cost. Buyer will send the Representative a draft of the Purchase
Price Allocation for the Representative’s review. Within
thirty (30) days of the Representative’s receipt of the
Purchase Price Allocation, the Representative will notify Buyer in
writing of the existence of any objection the Representative may
have to the Purchase Price Allocation. Buyer and the Representative
will work together in good faith to resolve any such objection. All
Parties shall use the Purchase Price Allocation, as agreed by Buyer
and the Representative, for purposes of filing all Tax Returns and
will not take a position contrary to such allocation on any Tax
Return, except as required by a final determination by an
applicable governmental authority.
(f) Indemnified
Taxes. “Indemnified Taxes” means
(i) any and all Taxes of the Sellers
for any taxable period, (ii) any and all Taxes of the Company
attributable to or with respect to any taxable period ending on or
before the Closing Date and the portion through the end of the
Closing Date for any taxable period that includes (but does not end
on) the Closing Date limited, with respect to each Seller, to an
amount equal to the product of (A) such Taxes multiplied by (B) the
percentage ownership interest of the Company immediately prior to
the consummation of the transactions contemplated by this Agreement
(expressed as a decimal) of such Seller, (iii) any and all Taxes of
any person imposed on the Company as a transferee or successor, by
contract or pursuant to any law, which Taxes relate to an event or
transaction occurring before the Closing limited, with respect to
each Seller, to an amount equal to the product of (A) such Taxes
multiplied by (B) the percentage ownership interest of the Company
immediately prior to the consummation of the transactions
contemplated by this Agreement (expressed as a decimal) of such
Seller, and (iv) any Transfer Taxes. In the case of any taxable
period that includes (but does not end on) the Closing Date
described in clause (ii), Taxes shall be treated as attributable to
the portion of such period through the Closing Date (a) in the case
of Taxes measured by income, receipts or payroll, based on an
interim closing of the books as of the close of business on the
Closing Date, and (b) in the case of other Taxes, based on the
proportion of the Taxes for the entire such period that equals the
ratio of the number of days from the start of such period through
the Closing Date to the entire number of days in such
period.
5.2 Further
Assurances. Each Party shall execute and deliver such
further documents, agreements or instruments of conveyance and transfer and take such additional
action as any other Party may reasonably request to effect,
consummate, confirm or evidence the transfer to Buyer of the
Purchased Interests and any other transactions contemplated
hereby.
5.3 Specific
Performance. Each Party acknowledges that the
Company’s business is unique and
recognizes and affirms that in the event of a breach of this
Agreement following the Closing by any other Party, money damages
may be inadequate and such Party may have no adequate remedy at
law. Accordingly, each Party agrees that each other Party shall
have the right, in addition to any other rights and remedies
existing in its favor, to seek to enforce its rights and such
Party’s obligations hereunder not only by an action or
actions for damages but also by an action or actions for specific
performance, injunctive and/or other equitable
relief.
-11-
5.4 Non-Competition,
Non-Solicitation and Confidentiality.
(a) Non-Competition. During the
period beginning on the Closing Date and ending on the second
anniversary of the Closing Date (the “Restricted Period”), R.
Fried shall not, and shall not allow any of his respective
affiliates to, engage (whether as an owner, operator, manager,
employee, officer, director, consultant, advisor, representative or
otherwise), directly or indirectly anywhere in any business that
the Buyer conducts or has publicly announced that it proposes to
conduct, each as of the Closing Date; provided, that ownership of
less than three percent (3%) of the outstanding stock of any
publicly-traded corporation shall not be deemed to be engaging
solely by reason thereof in any of the Company’s business and
provided further that sale of products with nicotinamide riboside
as a lead ingredient (“Products”) shall not be
deemed to be engaging in the Company’s business so long as
the nicotinamide riboside in such Products is purchased exclusively
from Buyer or the Company or its affiliates. R. Fried expressly
acknowledges and agrees that each and every restriction imposed by
this Section 5.4(a)
is reasonable with respect to subject matter, time period and
geographical area. Notwithstanding the foregoing, if any Seller
works as an employee of Buyer, it shall not be deemed a violation
of this Section
5.4(a). Notwithstanding the foregoing or anything herein to
the contrary, nothing in this Section 5.4 shall prohibit Xx.
Xxxxxxx from continued employment with the University of Iowa or
any other educational or scientific institution or any research or
publication regarding nicotinamide riboside.
(b) Non-Solicitation. R. Fried
agrees that, during the Restricted Period, R. Fried shall not, and
shall not cause any of its affiliates to, directly or indirectly,
(i) contact, approach or solicit for the purpose of offering
employment to or hiring (whether as an employee, consultant, agent
or independent contractor) or actually hire any person who is
employed by the Company or Buyer as of the Closing Date or during
the Restricted Period, without the prior written consent of Buyer;
or (ii) interfere with or solicit any customers or vendors of the
Company or Buyer in a manner that would materially adversely affect
the business of the Company or Buyer.
(c) Confidentiality. Each Seller
shall treat and hold as confidential any information concerning the
business and affairs of the Company that is not already generally
available to the public (the “Confidential
Information”), refrain from using any of the
Confidential Information except in connection with this Agreement
or such Seller’s ongoing employment with the Company, and
deliver promptly to Buyer, at the request and option of Buyer, all
tangible embodiments (and all copies) of the Confidential
Information which are in his or her possession or under his or her
control. In the event that any Seller is requested or required (by
oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or
similar process) to disclose any Confidential Information, such
Seller shall notify Buyer promptly of the request or requirement so
that Buyer may seek, at Buyer’s sole cost, an appropriate
protective order or waive compliance with the provisions of this
Section 5.4(b). If,
in the absence of a protective order or the receipt of a waiver
hereunder, any Seller is, on the advice of counsel, compelled to
disclose any Confidential Information to any tribunal or else stand
liable for contempt, such Seller may disclose the Confidential
Information to the tribunal; provided that such disclosing
Seller shall use his or her commercially reasonable efforts, at
Buyer’s expense, to obtain, at the request and expense of
Buyer, an order or other assurance that confidential treatment
shall be accorded to such portion of the Confidential Information
required to be disclosed as Buyer shall designate.
(d) Remedy for Breach. Each Seller
acknowledges and agrees that in the event of a breach by any Seller
(or any of such Seller’s affiliates) of any of the provisions
of this Section 5.4
monetary damages shall not constitute a sufficient remedy.
Consequently, in the event of any such breach, the Company, Buyer
and/or their respective successors or assigns, in addition to other
rights and remedies existing in their favor, shall be entitled to
seek specific performance and/or injunctive or other equitable
relief from a court of competent jurisdiction in order to enforce
or prevent any violations of the provisions of this Section 5.4, in each case
without the requirement of proving actual damages.
(e) Enforcement. If the final
judgment of a court of competent jurisdiction declares that any
term or provision of this Section 5.4 is invalid or
unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the
power to reduce the scope, duration, or area of the term or
provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so modified to cover the
duration, scope, or area permitted by applicable law.
-12-
(f) Acknowledgment. Each Seller
acknowledges and agrees that (i) the restrictions contained in this
Section 5.4 are reasonable in all respects (including, without
limitation, with respect to the subject matter, time period and
geographical area) and are necessary to protect Buyer’s
interest in, and value of, the Purchased Interests (including,
without limitation, the goodwill inherent therein), (ii) Sellers
have been primarily responsible for the creation of such value up
until the date of this Agreement, and (iii) Buyer would not have
consummated the transactions contemplated hereby without the
restrictions contained in this Section 5.4.
5.5 Appointment
of Representative.
(a) Powers of Attorney. Each Seller
irrevocably constitutes and appoints R. Fried (the
“Representative”) as such
Seller’s true and lawful agent, proxy and attorney-in-fact
and agent and authorizes the Representative acting for such Seller
and in such Seller’s name, place and stead, in any and all
capacities to do and perform every act and thing required or
permitted to be done by such Seller or the Representative hereunder
or otherwise in connection with the agreements and transactions
contemplated by this Agreement, as fully to all intents and
purposes as such person might or could do in person, including,
without limitation:
(i) deliver all notices
required to be delivered by such Seller under this
Agreement;
(ii) receive
all notices required to be delivered to such Seller under this
Agreement (including under Article VI of this
Agreement);
(iii) take
any and all action on behalf of such Seller from time to time as
the Representative may deem necessary or desirable to defend,
pursue, resolve and/or settle disputes or claims under this
Agreement (including under Article VI of this Agreement);
and
(iv) to
engage and employ agents and representatives (including
accountants, legal counsel and other professionals) and to incur
such other expenses as he deems necessary or prudent in connection
with the administration of the foregoing.
Each Seller grants unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing
necessary or desirable to be done in connection with the
transactions contemplated by this Agreement, as fully to all
intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that the Representative
may lawfully do or cause to be done by virtue hereof. Each Seller
will, by executing this Agreement agree that such agency, proxy and
power of attorney are coupled with an interest, and are therefore
irrevocable without the consent of the Representative and Buyer and
shall survive the death, incapacity, or bankruptcy of such Seller.
Each Seller acknowledges and agrees that upon execution of this
Agreement, any delivery by the Representative of any waiver,
amendment, agreement, opinion, certificate or other documents
executed by the Representative or any decisions made by the
Representative pursuant to this Section
5.5, such Seller shall be bound
by such documents or decision as fully as if such Seller had
executed and delivered such documents or made such decisions. Buyer
shall be entitled to rely on any action taken by the
Representative, on behalf of Sellers, and each such action shall be
binding on each Seller as fully as if such Seller had taken such
action.
Neither
the Representative nor any agent employed by the Representative
shall be liable to any Seller relating solely to the performance of
the Representative’s
duties under this Agreement in his capacity as Representative for
any errors in judgment, negligence, oversight, breach of duty or
otherwise except to the extent it is finally determined in a court
of competent jurisdiction that the actions taken or not taken by
the Representative in such capacity constituted fraud or were taken
or not taken in bad faith. The Representative shall be indemnified
and held harmless by each Seller against all losses paid or
incurred in connection with any action to which the Representative
is made a party solely by reason of the fact that the
Representative was acting solely as the Representative pursuant to
this Agreement; provided, however, that the
Representative shall not be entitled to indemnification hereunder
to the extent it is finally determined in a court of competent
jurisdiction that the actions taken or not taken by the
Representative constituted actual fraud or were taken or not taken
in bad faith.
-13-
5.6 General
Release.
(a) As
of the Closing, each of the Sellers, on behalf of themselves and
each of their respective predecessors, successors, heirs, personal
representatives and assigns, hereby irrevocably releases and
forever discharges the Company and Buyer, and each of their
respective officers, directors, shareholders, equity holders, employees,
subsidiaries, predecessors, successors and assigns (each a
“Released
Party” and collectively,
the “Released
Parties”), for and from
any and all manners of actions, causes, causes of action, suits,
debts, dues, compensation, wages, bonuses, liabilities, rights,
costs, expenses (including, without limitation attorneys’
fees and costs), bonds, bills, covenants, contracts, controversies,
executions, claims and demands, of whatever kind or nature, in law
or in equity, known or unknown, foreseen or unforeseen, vested or
contingent, matured or unmatured, suspected or unsuspected, and
whether or not concealed or hidden, whichever have or may have
existed, or which do exist, that may now or hereafter at any time
be made or brought against any Released Party by such Seller by
reason of or in connection with any matter, cause, thing, action or
omission whatsoever, arising, occurring, relating to or in respect
of any time up through and including the date hereof (collectively,
the “Released
Matters”);
provided
that nothing in this
Section
5.6 will release any Released
Party from any of the foregoing to the extent set forth in or
arising out of (i) this Agreement or in any other agreement
or document executed in connection with the transactions contemplated hereby, or (ii) any
obligation of the Company to indemnify its past or present managers
or officers to the extent required by the Company’s
organizational documents or applicable law. From and after the date
hereof, each Seller agrees on behalf of himself or herself to not,
directly or indirectly (including, without limitation, in a
derivative proceeding), assert any claim or demand or commence,
institute or maintain, or cause to be commenced, instituted, or
maintained, or knowingly facilitate or assist any other party in
commencing, instituting or maintaining, any claim or proceeding of
any kind against any of the Released Parties based upon or with
respect to any Released Matter(s).
(b) Each Seller
acknowledges that the release in Section 5.6(a) includes
releases of claims of which such Seller is presently unaware of or
which such Seller does not presently suspect to exist. Each Seller
agrees, represents and warrants that such Seller realizes and
acknowledges that factual matters now unknown to it may have given
or may hereafter give rise to causes of action, claims, demands,
debts, controversies, damages, costs, losses and expenses which are
presently unknown and unsuspected, and such Seller further agrees,
represents and warrants that the waivers and releases herein have
been negotiated and agreed upon in light of that realization and
that such Seller nevertheless hereby intends to release, discharge
and acquit the Released Parties from any such unknown causes of
action, claims, demands, debts, controversies, damages, costs,
losses and expenses arising out of or with respect to the claims
described in Section
5.6(a). Each Seller acknowledges that the inclusion of
unknown and unsuspected claims was separately bargained for and was
a key element of this Agreement. In releasing the claims unknown to
you at present, you are waiving all rights and benefits under
Section 1542 of the California Civil Code, and any law or legal
principle of similar effect in any jurisdiction, which provides:
“A general release does not
extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or
her settlement with the debtor.”
ARTICLE VI
INDEMNIFICATION, ETC.
6.1 Survival
of Representations and Covenants.
(a) All
representations, warranties, covenants and obligations in this
Agreement will remain in full force and effect and will survive for
a period of twelve (12) months following the Closing Date (with
respect to the representations and warranties) and for the periods
specified in this Agreement (with respect to the covenants and
obligations); provided, however, that if a claim notice relating to
any representation, warranty, covenant or obligation set forth in
this Agreement is given timely and properly by the Party seeking
indemnification on or prior to the applicable termination date,
then, notwithstanding anything to the contrary contained in this
Section 6.1(a),
such representation, warranty, covenant or obligation will not so
expire, but rather will remain in full force and effect solely to
the extent of the matters in such claim notice until such
time as each and every claim has been
fully and finally resolved, by means of a written settlement
agreement executed on behalf of the Sellers or the Representative
(on behalf of the Sellers) on the one hand and Buyer on the other
hand, or a final, non-appealable judgment issued by a court of
competent jurisdiction, or as otherwise agreed to by Buyer and the
Representative.
-14-
(b) The
representations, warranties, covenants and obligations of the
Sellers, and the rights and remedies that may be exercised by the
Buyer Indemnitees, will not be limited or otherwise affected by or
as a result of any information furnished to, or any investigation
made by or knowledge of, any of the Buyer Indemnitees or any of
their representatives. “Buyer Indemnitees” means
Buyer, Buyer’s affiliates (including the Company), and their
respective officers, directors, employees, and advisors, and
successors and assigns of the foregoing, provided, however, that
(i) the Company will not be entitled to exercise any rights as an
Indemnitee prior to the Closing, and (ii) for the avoidance of
doubt, the Sellers will not be deemed to be “Buyer
Indemnitees.”
(c) “Seller Indemnitees” means
each Seller and his respective affiliates, representatives, heirs,
advisors and successors and assigns of the foregoing. Buyer
Indemnitees and Seller Indemnitees are referred to herein as
“Indemnitees.”
6.2 Indemnification.
(a) Indemnification
of Buyer. The
Sellers, severally but not jointly, shall hold harmless and
indemnify the Buyer Indemnitees from and against, and shall
compensate and reimburse the Buyer Indemnitees for, any losses
(including costs, expenses (including reasonable attorneys’
fees and disbursements) fees, penalties, claims, charges and other
liabilities, but excluding punitive, incidental, consequential, or
special damages or lost profits) (“Losses”) which are
suffered or incurred by any of the Buyer Indemnitees or to which
any of the Buyer Indemnitees may otherwise become subject and which
arise from or as a result of, or are connected with: (i) any breach
of any representation or warranty contained in Article II or Article III of this Agreement
(but subject to the disclosures set out in the Disclosure
Schedules); (ii) any breach of any covenant or obligation of the
Sellers in this Agreement; (iii) any Indemnified Taxes and (iv) any
transaction-related fees and expenses, legal, accounting,
consulting, and other fees, costs and expenses, incurred by any
Seller in connection with the transactions contemplated by this
Agreement.
(b) Indemnification
of Sellers. The Buyer
shall hold harmless and indemnify the Seller Indemnitees from and
against, and shall compensate and reimburse the Seller Indemnitees
for, any Losses which are suffered or incurred by any of the Seller
Indemnitees or to which any of the Seller Indemnitees may otherwise
become subject and which arise from or as a result of, or are
connected with: (i) any breach of any representation or warranty of
Buyer contained in Article
IV of this Agreement; (ii) any breach of any covenant or
obligation of Buyer in this Agreement; and (iii) any
transaction-related fees and expenses, legal, accounting,
consulting, and other fees, costs and expenses, incurred by Buyer
in connection with the transactions contemplated by this
Agreement.
6.3 No
Contribution. Each Seller waives, and acknowledges and
agrees that he or she shall not have
and shall not exercise or assert (or attempt to exercise or
assert), any right of contribution, right of indemnity or other
right or remedy against the Company or its representatives in
connection with any indemnification obligation or any other
liability to which it may become subject under or in connection
with this Agreement.
6.4 Limitations
on Indemnification.
Notwithstanding anything herein to the contrary, the
indemnification rights and obligations provided for in Section 6.2 are subject to
the following:
(a) Sellers shall not
have any liability for Losses pursuant to Section 6.2(a)(i) unless and
until the aggregate dollar amount of all Losses related thereto for
which the Sellers would otherwise be required to provide
indemnification exceeds an amount equal to $10,000 (the
“Basket”), at which point,
subject to the other provisions in this Article VI, the Buyer
Indemnitees shall be entitled to indemnification for all such
Losses from dollar one (and not only the Losses that exceed the
Basket), and the maximum aggregate amount of indemnifiable Losses
which may be recovered by the Buyer Indemnitees for Losses pursuant
to Section
6.2(a)(i) shall be an amount equal to $500,000 (the
“Cap”),
except in cases of Fraud. In addition, the obligation of
Sellers to indemnify the Buyer Indemnitees against any Losses
pursuant to Section
6.2(a)(ii) shall in no event exceed on a cumulative basis an
amount equal to the “Aggregate Value of Consideration
Shares” as set forth on Exhibit A.
-15-
(b) Notwithstanding
anything set forth in this Agreement to the contrary, but subject
to the lower limitations on indemnification herein, (i) each
Seller’s aggregate liability for any and all Losses under
this Agreement will not exceed an amount equal to the
“Aggregate Value of Consideration Shares” as set forth
on Exhibit A for such Seller except in the case of Fraud, and (ii)
no Seller will be liable for the breach of any representation made
in Article III by
another Seller or the breach of any covenant or agreement by
another Seller.
(c) Buyer shall not
have any liability for Losses pursuant to Section 6.2(b)(i) unless and
until the aggregate dollar amount of all Losses related thereto for
which Buyer would otherwise be required to provide indemnification
exceeds an amount equal to the Basket, at which point, subject to
the other provisions in this Article VI, the Seller
Indemnitees shall be entitled to indemnification for all such
Losses from dollar one (and not only the Losses that exceed the
Basket) and the maximum aggregate amount of indemnifiable Losses
which may be recovered by Seller Indemnitees for Losses pursuant to
Section 6.2(b)(i)
shall be an amount equal to the Cap, except in cases of Fraud. In
addition, the obligation of Buyer to indemnify the Seller
Indemnitees against any Losses pursuant to Section 6.2(b)(ii) shall in no
event exceed on a cumulative basis an amount equal to the
“Aggregate Value of Consideration Shares” as set forth
on Exhibit A.
(d) Notwithstanding
anything set forth in this Agreement to the contrary, but subject
to the lower limitations on indemnification herein, Buyer’s
aggregate liability for any and all Losses under this Agreement
will not exceed an amount equal the “Aggregate Value of
Consideration Shares” as set forth on Exhibit A, except in
the case of Fraud.
(e) Notwithstanding
anything in this Agreement to the contrary, in no event shall any
limit or restriction on any rights or remedies set forth in this
Agreement limit or restrict the rights or remedies of Sellers or
Buyer for Fraud. For purposes of
this Article
VI, “Fraud”
means common law fraud perpetrated in connection with this
Agreement.
6.5 Mitigation.
Each of the Indemnitees shall use its commercially reasonable
efforts to pursue payment or recovery under or from any insurer or
third party in respect of any Losses for which such Indemnitee is
entitled to indemnification under this Article VI. Payments by an
Indemnifying Party (as defined below) in respect of any Loss shall
be limited to the amount of any liability or damage that remains
after deducting therefrom any insurance proceeds actually received
by an Indemnitee (or the Company) in respect of any Loss (net of
any costs of investigation, collection, and co-payments related to
the underlying claim). To the extent required under applicable law,
each Indemnitee shall use its commercially reasonable efforts to
mitigate any Losses for which it is entitled to indemnification
under this Article
VI.
6.6 Defense
of Third Party Claims. In the event of the assertion or
commencement by any person of any claim or legal proceeding
(whether against the Company, against Buyer or against Seller or
any other person) with respect to which the Indemnifying Party (as
defined below) may become obligated to hold harmless, indemnify,
compensate or reimburse any Indemnitee pursuant to this Article VI
(a “Third-Party
Claim”), the Indemnifying Party shall have the right,
at its election within twenty (20) days of receipt of notice of the
Third-Party Claim, to proceed with the defense of such Third-Party
Claim on its own with counsel reasonably satisfactory to the
Indemnitee, provided that, in circumstances where the Indemnitee is
a Buyer Indemnitee, Buyer shall have the right to assume control of
such defense (at its election by providing notice to the Sellers of
such election concurrently with providing notice to the
Indemnifying Party of such Third-Party Claim) if such Third-Party
Claim and its possible litigation and resolution is reasonably
likely to have a material adverse effect on the reputation, brand,
market perception of its products, or customer or supplier
relations of the Buyer. If the Indemnifying Party so proceeds with
the defense of any such Third-Party Claim: (a) subject to the other
provisions of Article
VI, all reasonable expenses relating to the defense of such
Third-Party Claim shall be considered “Losses”
hereunder and shall be borne and paid exclusively by the
Indemnifying Party; (b) the Indemnitee shall make available to the
Indemnifying Party any documents and materials in their possession
or control that may be necessary to the defense of such Third-Party
Claim; and (c) the Indemnifying Party shall have the right to
settle, adjust or compromise such Third-Party Claim with the prior
written consent of the Indemnitee. If the Indemnifying Party
assumes control of the Third-Party Claim, the Indemnitee shall have
the right to be informed and consulted with respect to the
negotiation, settlement or defenses of such Third-Party Claim and
may participate in such defense at their expense.
-16-
The
Indemnitee shall give the Indemnifying Party prompt notice of the
commencement of any Third-Party Claim for which Indemnitee may be
entitled to indemnification, compensation or reimbursement under
this Article VI;
provided, however, that any failure on the part of Indemnitee to so
notify the Indemnifying Party shall not limit any of the
obligations of the Indemnifying Party under this Article VI (except to the
extent such failure actually and materially prejudices the defense
of such Third-Party Claim by the Party controlling the defense
thereof).
6.7 Indemnification
Claim Procedure.
(a) Delivery
of Claim Notice. If any Indemnitee has or claims to have
incurred or suffered Losses for which it is or may be entitled to
indemnification, compensation or reimbursement under this
Article VI of this
Agreement, such Indemnitee is required to deliver a claim notice (a
“Claim
Notice”) to the Buyer or Representative (on behalf of
Sellers), as applicable (the “Indemnifying Party”).
Each Claim Notice shall state that such Indemnitee believes that
there is or has been a breach of a representation, warranty,
covenant or obligation contained in this Agreement or that such
Indemnitee is otherwise entitled to indemnification, compensation
or reimbursement under Article VI of this Agreement,
and contain a description of the circumstances supporting such
Indemnitee’s belief that there is or has been such a breach
or that such Indemnitee is so entitled to indemnification,
compensation or reimbursement and shall, to the extent possible,
contain a good faith, non-binding, preliminary estimate of the
amount of damages such Indemnitee claims to have so incurred or
suffered (the “Claimed Amount”), which
estimate shall include a reasonable amount of detail showing how
the Claimed Amount was determined.
(b) Response
Notice; Uncontested Claims. Within 15 days after receipt by
the Indemnifying Party of a Claim Notice, the Indemnifying Party
may deliver to the Indemnitee who delivered the Claim Notice a
written response (the “Response Notice”) in
which the Indemnifying Party: (i) agrees that the Indemnitee is
entitled to the full Claimed Amount (the “Uncontested Amount”);
(ii) agrees that the Indemnitee is entitled to part, but not all,
of the Claimed Amount (the “Agreed Amount”); or (iii)
indicates that the Indemnifying Party disputes the entire Claimed
Amount. Any part of the Claimed Amount that is not agreed to
pursuant to the Response Notice shall be the “Contested Amount.” If a
Response Notice is not received by the Indemnitee within such
15-day period, then the Indemnifying Party shall be conclusively
deemed to have agreed that the Indemnitee is entitled to the full
Claimed Amount (also, the “Uncontested Amount”). If
the Indemnifying Party and the Indemnitee are unable to resolve the dispute relating to any
Contested Amount within 30 days after the delivery of the Claim
Notice, then the Indemnitee and Indemnifying Party
may resolve the claim described in the
Claim Notice in accordance with Section 7.7
of this Agreement. To the extent that
Indemnitee and the Indemnifying Party resolve the claim described in the Claim Notice in
accordance with Section 7.7
of this Agreement and the Sellers are
found liable for all or any portion of the Contested Amount or any
other damages, such portion of the Contested Amount and such other
damages shall also be deemed an “Uncontested
Amount” for purposes of
this Agreement. The Indemnifying Party shall pay the Indemnitee for any Uncontested
Amount within 15 days of the applicable amount being determined to
be an Uncontested Amount in accordance with this
Section
6.7.
6.8 Exclusivity of
Indemnification Remedies. Except for claims with respect to
Fraud or international misrepresentation under this Article VI and except as
provided in Section
5.3 and Section
5.4(d), the indemnification remedies and other remedies provided in this Article VI
are deemed to be the sole and
exclusive remedy of each Party with respect to any and all claims
relating to the subject matter of this Agreement, including claims
for each of any representation, warranty, covenant or
agreement contained in this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment and
Waiver. This Agreement may be amended and any provision of
this Agreement may be waived,
provided
that any such amendment or waiver
shall be binding upon a Party only if such amendment or waiver is
set forth in a writing executed by Buyer and the Representative. No
course of dealing between or among any persons having any interest
in this Agreement shall be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations
of any Party under or by reason of this Agreement. No failure on
the part of any Party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any Party
in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or
further exercise thereof or of any other power, right, privilege or
remedy.
-17-
7.2 Notices.
All notices, demands and other communications given or delivered
under this Agreement shall be in
writing and shall be deemed to have been given (i) when personally
delivered, (ii) 3 business days after being mailed by first class
mail, return receipt requested, (iii) when delivered by express
courier service (i.e., FedEx), or (iv) when sent by email, if (a)
sent during the normal business hours of recipient, and if not,
then on the next business day and (b) such email is confirmed by
the recipient. Notices, demands and communications to each Seller
(and the Representative) and Buyer shall, unless another address is
specified in writing, be sent to the address indicated on the
signature pages hereto.
7.3 Binding Agreement;
Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the
benefit of the Parties and their respective successors and
permitted assigns; provided
that neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by
any Seller or Buyer without the prior written consent of the
Representative and Buyer, except that Buyer may assign this
Agreement to any affiliate or in connection with any merger,
consolidation, corporate reorganization or similar transaction
involving Buyer or to any third party that acquires all or
substantially all of the assets of Buyer or the business of Buyer
to which this Agreement relates, in each case without the prior
written consent of Representative. Notwithstanding the immediately
preceding sentence, without the prior written consent of Sellers,
each of Buyer and its permitted assigns may at any time, in its
sole discretion, assign, in whole or in part, its rights and
obligations pursuant to this Agreement to one or more of its
affiliates (including but not limited to the Company
post-Closing).
7.4 Severability.
Whenever possible, each provision of this Agreement shall 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 prohibited by or invalid under
applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this
Agreement.
7.5 Construction.
The language used in this Agreement shall be deemed to be the
language chosen by the Parties to
express their mutual intent, and no rule of strict construction
shall be applied against any person. The word
“including” shall mean “including without
limitation” regardless of whether such words are included in
some contexts but not others. The word “knowledge”
shall mean actual knowledge after reasonable due inquiry. The
“knowledge” of the Sellers is limited to R.
Fried’s actual knowledge after reasonable due inquiry. The
word “person” shall include, as applicable, an
individual, a partnership (including a limited liability
partnership), a corporation, an association, a joint stock company,
a limited liability company, a trust, a joint venture, a legal
person, an unincorporated organization and a governmental
authority.
7.6 Captions.
The captions used in this Agreement are for convenience of
reference only and do not constitute a
part of this Agreement and shall not be deemed to limit,
characterize or in any way affect any provision of this Agreement,
and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this
Agreement.
7.7 Disputes.
In the event of any litigation to enforce or interpret any terms or
conditions of this Agreement, the Parties agree that such action
will be brought in the Superior Court of the City of Irvine,
California (or, if the federal courts have exclusive jurisdiction
over the subject matter of the dispute, in the U.S. District Court
for the Central District of California), and the Parties hereby
submit to the exclusive jurisdiction of said court. In any action in litigation to enforce or
interpret any of the terms or conditions of this Agreement, the
prevailing party shall be entitled to recover from the unsuccessful
party all costs, expenses (including expert testimony) and
reasonable attorneys’ fees incurred therein by the prevailing
party. Each Party hereby irrevocably waives any objection,
including any objection to the laying of venue or based on the
grounds of forum non conveniens, which it may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions. Each Party irrevocably consents to the service of
process in any such action or proceeding by the sending of copies
thereof by express courier service (i.e., FedEx) to such Party at
its address specified by Section
7.2, such service to become
effective upon delivery by such courier service to such
address.
-18-
7.8 Entire
Agreement. This Agreement and the documents referred to
herein contain the entire agreement between the Parties and
supersede any prior understandings, agreements or representations
by or between the Parties, written or oral, which may have related
to the subject matter hereof in any way.
7.9 Counterparts.
This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but
all of which taken together shall constitute one and the same
instrument. Delivery of an executed counterpart by facsimile or
..pdf shall be deemed delivery of an originally executed counterpart
in all cases.
7.10 Governing
Law; Attorneys’ Fees; WAIVER OF JURY TRIAL. All
questions concerning the construction, validity and interpretation
of this Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision (whether
of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than
the State of Delaware. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER
DOCUMENT EXECUTED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
7.11 Disclosure
Schedules. All schedules attached hereto (including the
Disclosure Schedule) are incorporated herein and expressly made a
part of this Agreement as though completely set forth herein. A
disclosure in any particular schedule or section of the Disclosure
Schedule or otherwise in this Agreement shall constitute disclosure
of such information in any and all other schedules or sections of
the Disclosure Schedule in which the same information may be
required to be included in accordance with the terms of this
Agreement and shall limit and qualify all representations and
warranties of the disclosing party to which such information may
apply so long as, in each case, the applicability of the
disclosures to such other schedule or sections of the Disclosure
Schedule or representations and warranties is reasonably apparent
on its face from the information set forth therein. The information
set forth in the schedules attached hereto (including the
Disclosure Schedule) is disclosed solely for the purposes of this
Agreement, and no information set forth therein shall be deemed to
be an admission by any Party hereto to any third party of any
matter whatsoever, including of any violation of applicable law or
breach of any agreement. The specification of any dollar amount or
the inclusion of any item in the representations and warranties
contained in this Agreement, any schedule or the Disclosure
Schedule or exhibits is not intended to imply that the amounts, or
higher or lower amounts, or the items so included, or other items,
are or are not required to be disclosed (including whether such
amounts or items are required to be disclosed as material or
threatened) or are within or outside of the ordinary course of
business, and no Party shall use the fact of the setting of the
amounts or the fact of the inclusion of any item in this Agreement,
any schedule or the Disclosure Schedules, or exhibits in any
dispute or controversy between the Parties hereto as to whether any
obligation, item or matter not set forth or included in this
Agreement, any schedule or the Disclosure Schedules, or exhibits is
or is not required to be disclosed (including whether the amount or
items are required to be disclosed as material or threatened) or is
within or outside of the ordinary course of business for purposes
of this Agreement. In addition, matters reflected in any schedule
or the Disclosure Schedules are not necessarily limited to matters
required by this Agreement to be reflected therein. Such additional
matters are set forth for informational purposes only and do not
necessarily include other matters of a similar nature. Nothing in
any schedule or the Disclosure Schedules is intended to broaden the
scope of any representation or warranty contained in this
Agreement. Such information and the dollar thresholds set forth
herein shall not be used as a basis for interpreting the terms
“material” or “Material Adverse Effect” or
other similar terms in this Agreement.
-19-
7.12 Arm’s
Length Negotiations. Each Party hereto expressly represents
and warrants to all other Parties hereto that (a) before executing
this Agreement, such Party has read this Agreement and each
document to be executed by such Party in connection therewith
(collectively, the “Transaction Agreements”)
and has fully informed itself or himself of the terms, contents,
conditions and effects of the Transaction Agreements; (b) such
Party has relied solely and completely upon its or his own judgment
in executing the Transaction Agreements; (c) such Party has had the
opportunity to seek and, if he or it deemed it necessary, has
obtained the advice of legal, tax, financial, accounting or other
counsel and advisors before executing in executing the Transaction
Agreements; (d) such Party has acted voluntarily and of its or his
own free will in executing in executing the Transaction Agreements;
(e) such Party is not acting under duress, whether economic or
physical, in executing in executing the Transaction Agreements; and
(f) the Transaction Agreements are the result of arm’s length
negotiations conducted by and among the Parties and their
respective counsel.
7.13 Expenses.
Except as otherwise provided herein or in any other document
executed in connection herewith, each Party hereto shall pay its
own expenses incident to preparing, entering into and carrying out
this Agreement and the consummation of the transaction contemplated
hereby.
7.14 Time
of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the
essence.
[Signature
Page Follows]
-20-
IN WITNESS WHEREOF, the Parties have
executed this Agreement as of the date first written
above.
|
|
SELLERS:
/s/ Xxxxxx X.
Xxxxx
XXXXXX
X. XXXXX
/s/ Dr. Xxxxxxx
Xxxxxxx
Dr.
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
|
[Signature
Continued on Next Page]
-21-
IN WITNESS WHEREOF, the Parties have
executed this Agreement as of the date first written
above.
|
|
BUYER:
CHROMADEX
CORPORATION
By:
/s/ Xxxxx X. Xxxxxx
Xx.
Name:
Xxxxx X. Xxxxxx Xx.
Title:
Chief Executive Officer
Address:
00000
Xxxxxxxxx Xxxx. Xxxxx X
Xxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxx Xx.
Email:
xxxxx.xxxxxx@xxxxxxxxx.xxx
|
-22-
EXHIBIT A
PURCHASED INTERESTS AND CONSIDERATION SHARES
|
Seller
|
Membership Interests
|
Aggregate Value of Consideration Shares
|
Number of Consideration Shares
|
|
Xxxxxx X. Xxxxx
|
84.74%
|
$923,697.41
|
*
|
|
Dr. Xxxxxxx Xxxxxxx
|
4.00%
|
$43,601.48
|
*
|
|
Xx. Xxxxxxx Xxxxx
|
3.00%
|
$32,701.11
|
*
|
Total:
91.74%
$1,000,000
* Each Seller shall receive the number of
Consideration Shares equal to his or her Aggregate Value of
Consideration Shares divided by the closing bid price per share of
Buyer’s common stock on the NASDAQ Capital Market on
the last trading day before the date hereof, rounded up to the nearest
share.
-23-
