INDEMNITY AGREEMENT
Exhibit 10.1
INDEMNITY
AGREEMENT
This Indemnity
Agreement (this “Agreement”)
dated as of ___________ _____, 20__, is made by and between
ChromaDex
Corporation, a Delaware corporation (the “Company”), and
_________________
(“Indemnitee”).
Recitals
A. The
Company desires to attract and retain the services of highly
qualified individuals as directors, officers, employees and
agents.
B. The
Company’s Amended and Restated Bylaws, as amended (the
“Bylaws”),
require that the Company indemnify its directors and officers, and
empowers the Company to indemnify its employees and other agents, as
authorized by the Delaware General Corporation Law, as amended (the
“Code”), under
which the Company is organized and such Bylaws expressly provide
that the indemnification provided therein is not exclusive and
contemplates that the Company may enter into separate agreements
with its directors, officers and other persons to set forth
specific indemnification provisions.
C. Indemnitee
does not regard the protection currently provided by applicable
law, the Bylaws, the Company’s other governing documents, and
available insurance as adequate under the present circumstances,
and the Company has determined that Indemnitee and other directors,
officers, employees and agents of the Company may not be willing to
serve or continue to serve in such capacities without additional
protection.
D. The
Company desires and has requested Indemnitee to serve or continue
to serve as a director, officer, employee or agent of the Company,
as the case may be, and has proffered this Agreement to Indemnitee
as an additional inducement to serve in such capacity.
E. Indemnitee
is willing to serve, or to continue to serve, as a director,
officer, employee or agent of the Company, as the case may be, if
Indemnitee is furnished the indemnity provided for herein by the
Company.
Agreement
Now Therefore,
in consideration of the mutual covenants and agreements set forth
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions.
(a) Agent.
For purposes of this Agreement, the term “Agent” of the
Company means any person who: (i) is or was a
director, officer, employee,
agent, or other fiduciary of the Company or a subsidiary of the
Company; or (ii) is or was serving at the request or for the
convenience of, or representing the interests of, the Company or a
subsidiary of the Company, as a director, officer, employee, agent,
or other fiduciary of a foreign or domestic corporation,
partnership, joint venture, trust or other enterprise.
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(b) Change
in Control. For purposes of this Agreement, a
“Change
in Control” shall be deemed to have occurred if (i)
any “person” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
20% or more of the total voting power represented by the
Company’s then outstanding Voting Securities, (ii)
individuals who on the date of this Agreement are members of the
Board (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the members of the Board (provided, however, that if the
appointment or election (or nomination for election) of any new
Board member was approved or recommended by a majority vote of the
members of the Incumbent Board then still in office, such new
member shall be considered as a member of the Incumbent Board), or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of (in one transaction or a series of transactions) all or
substantially all of the Company’s assets.
(c) Expenses.
For purposes of this Agreement, the term “Expenses”
shall be broadly construed and shall include, without limitation,
all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’, witness, or
other professional fees and related disbursements, and other
out-of-pocket costs of whatever nature, actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, the Code or
otherwise. The term “Expenses”
shall also include reasonable compensation for time spent by
Indemnitee for which he or she is not compensated by the Company or
any subsidiary or third party: (i) for any period during which
Indemnitee is not an Agent, in the employment of, or providing
services for compensation to, the Company or any subsidiary; and
(ii) if the rate of compensation and estimated time involved is
approved by the directors of the Company who are not parties to any
action with respect to which Expenses are incurred, for Indemnitee
while an Agent of, employed by, or providing services for
compensation to, the Company or any subsidiary.
(d) Independent
Counsel. For purposes of this Agreement, the term
“Independent
Counsel” means a law firm, or a partner (or, if
applicable, member) of such a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the
past five (5) years has
been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party to
the proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term
“Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement. The Company will pay the reasonable fees and
expenses of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(e) Liabilities.
For purposes of this Agreement, the term “Liabilities”
shall be broadly construed and shall include, without limitation,
judgments, damages, deficiencies, liabilities, losses, penalties,
excise taxes, fines, assessments and amounts paid in settlement,
including any interest and any federal, state, local or foreign
taxes imposed as a result of the actual or deemed receipt of any
payment under this Agreement.
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(f) Proceedings.
For purposes of this Agreement, the term “proceeding”
shall be broadly construed and shall include, without limitation,
any threatened, pending, or completed action, suit, claim,
counterclaim, cross claim, arbitration, mediation, alternate
dispute resolution mechanism, investigation, inquiry,
administrative hearing, or any other actual, threatened or
completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or
investigative nature, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party,
potential party, non-party witness, or otherwise by reason of: (i)
the fact that Indemnitee is or was a director or officer of the
Company; (ii) the fact that any action was taken by Indemnitee (or
a failure to take action by Indemnitee) or of any action (or
failure to act) on Indemnitee’s part while acting as an
Agent; or (iii) the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, and in any such case described
above, whether or not serving in any such capacity at the time any
liability or Expense is incurred for which indemnification,
reimbursement, or advancement of Expenses may be provided under
this Agreement. If the Indemnitee believes in good faith that a
given situation may lead to or culminate in the institution of a
proceeding, this shall be considered a proceeding under this
paragraph.
(g) Subsidiary.
For purposes of this Agreement, the term “subsidiary”
means any corporation, limited liability company, or other entity,
of which more than 50% of the outstanding voting securities or
equity interests are owned, directly or indirectly, by the Company
and one or more of its subsidiaries, and any other corporation,
limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as an Agent.
(h) Voting
Securities. For purposes of this Agreement,
“Voting
Securities” shall mean any securities of the Company
that vote generally in the election of directors.
2. Agreement
to Serve. Indemnitee will serve, or continue to serve, as
the case may be, as an Agent, faithfully and to the best of his or
her ability, at the will of such entity designated by the Company
and at the request of the Company (or under separate agreement, if
such agreement exists), in the capacity Indemnitee currently serves
such entity, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the
governance documents of such entity, or until such time as
Indemnitee tenders his or her resignation in writing; provided,
however, that nothing contained in this Agreement is intended as an
employment agreement between Indemnitee and the Company or any of
its subsidiaries or to create any right to continued employment of
Indemnitee with the Company or any of its subsidiaries in any
capacity.
The
Company acknowledges that it has entered into this Agreement and
assumes the obligations imposed on it hereby, in addition to and
separate from its obligations to Indemnitee under the Bylaws, to
induce Indemnitee to serve, or continue to serve, as an Agent, and
the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as an Agent.
3. Indemnification.
(a) Indemnification
in Third Party Proceedings. Subject to Section 10
below, the Company shall indemnify Indemnitee to the fullest extent
permitted by the Code, as the same may be amended from time to time
(but, to the fullest extent of the law, only to the extent that
such amendment permits Indemnitee to broader indemnification rights
than the Code permitted prior to adoption of such amendment), if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any proceeding, other than a proceeding by or
in the right of the Company to procure a judgment in its favor, for
any and all Expenses and Liabilities (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses and Liabilities) incurred by Indemnitee
in connection with the investigation, defense, settlement or appeal
of such proceeding, if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company and, in the case of a criminal proceeding had no
reasonable cause to believe that Indemnitee's conduct was unlawful.
The parties hereto intend that this Agreement shall provide to the
fullest extent permitted by law for indemnification in excess of
that expressly permitted by statute, including, without limitation,
any indemnification provided by the Certificate of Incorporation of
the Company, the Bylaws, vote of its stockholders or disinterested
directors, or applicable law.
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(b) Indemnification
in Derivative Actions and Direct Actions by the Company.
Subject to Section 10 below, the Company shall indemnify Indemnitee
to the fullest extent permitted by the Code, as the same may be
amended from time to time (but, fullest extent permitted by
applicable law, only to the extent that such amendment permits
Indemnitee to broader indemnification rights than the Code
permitted prior to adoption of such amendment), if Indemnitee is a
party to or threatened to be made a party to or otherwise involved
in any proceeding by or in the right of the Company to procure a
judgment in its favor, against any and all Expenses actually and
reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement, or appeal of such proceedings,
if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company. No indemnification for Expenses shall be made under
this Section 3(b) in respect of any claim, issue or matter as to
which Indemnitee shall have been finally adjudged by a court
competent jurisdiction to be liable to the Company, unless and only
to the extent that the Chancery Court of the State of Delaware or
any court in which the proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnification.
4. Indemnification
of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, in circumstances where indemnification
is not available under Section 3(a) or 3(b), as the case may be, to
the fullest extent permitted by law and to the extent that
Indemnitee is a party to (or a participant in) any proceeding and
has been successful on the merits or otherwise in defense of any
proceeding or in defense of any claim, issue or matter therein, in
whole or part, including the dismissal of any action without
prejudice, the Company shall indemnify Indemnitee against all
Expenses and Liabilities in connection with the investigation,
defense or appeal of such proceeding. If Indemnitee is not wholly
successful in such proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or
matters in such proceeding, the Company shall indemnify Indemnitee
against all Expenses and Liabilities incurred by Indemnitee or on
Indemnitee’s behalf in connection with or related to each
successfully resolved claim, issue or matter to the fullest extent
permitted by law.
5. Partial
Indemnification; Witness Indemnification. If Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses and
Liabilities incurred by Indemnitee in the investigation, defense,
settlement or appeal of a proceeding, but is precluded by
applicable law or the specific terms of this Agreement to
indemnification for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to
the extent that Indemnitee is, by reason of Indemnitee’s
acting as an Agent, a witness or otherwise asked to participate in
any proceeding to which Indemnitee is not a party, Indemnitee shall
be indemnified against all Expenses incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
6. Advancement
of Expenses. To the extent not prohibited by law, the
Company shall advance the Expenses incurred by Indemnitee in
connection with any proceeding, and such advancement shall be made
within twenty (20) days after the receipt by the Company of a
statement or statements requesting such advances (which shall
include invoices received by Indemnitee in connection with such
Expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditures
made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice) and upon
request of the Company, an undertaking to repay the advancement of
Expenses if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to
appeal, that Indemnitee is not entitled to be indemnified by the
Company. Advances shall be unsecured, interest free and without
regard to Indemnitee’s ability to repay the Expenses.
Advances shall include any and all Expenses incurred by Indemnitee
pursuing an action to enforce Indemnitee’s right to
indemnification under this Agreement or otherwise and this right of
advancement, including expenses incurred preparing and forwarding
statements to the Company to support the advances claimed.
Indemnitee acknowledges that the execution and delivery of this
Agreement shall constitute an undertaking providing that Indemnitee
shall, to the fullest extent required by law, repay the advance
(without interest) if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, that Indemnitee is not entitled to
be indemnified by the Company. The right to advances under this
Section shall continue until final disposition of any proceeding,
including any appeal therein. This Section 6 shall not apply to any
claim made by Indemnitee for which indemnity is excluded pursuant
to Section 10(b).
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7. Notice
and Other Indemnification Procedures.
(a) Notification
of Proceeding. Indemnitee will notify the Company in writing
promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to
any proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The written notification
to the Company shall include a description of the nature of the
proceeding and the facts underlying the proceeding. The failure of
Indemnitee to so notify the Company shall not relieve the Company
of any obligation which it may have to Indemnitee under this
Agreement or otherwise and any delay in so notifying the Company
shall not constitute a waiver by Indemnitee of any rights under
this Agreement.
(b) Request
for Indemnification Payments. To obtain indemnification
under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification under the terms of this
Agreement, and shall request payment thereof by the
Company.
(c) Determination
of Right to Indemnification Payments. Upon written request
by Indemnitee for indemnification pursuant to Section 7(b) hereof,
a determination with respect to Indemnitee’s entitlement
thereto shall be made in the specific case by one of the following
four methods, which shall be at the election of the Board of
Directors: (1) by a majority vote of the disinterested directors,
even though less than a quorum, (2) by a committee of disinterested
directors designated by a majority vote of the disinterested
directors, even though less than a quorum, (3) if there are no
disinterested directors or if the disinterested directors so
direct, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to the Indemnitee, or
(4) if so directed by the Board of Directors, by the stockholders
of the Company; provided,
however, that if there has been a Change in Control, then
such determination shall be made by Independent Counsel selected by
Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld). For purposes hereof, disinterested
directors are those members of the board of directors of the
Company who are not parties to the action, suit or proceeding in
respect of which indemnification is sought by Indemnitee.
Indemnification payments requested by Indemnitee under
Section 3 hereof shall be made by the Company no later than
sixty (60) days after receipt of the written request of Indemnitee.
Claims for advancement of Expenses shall be made under the
provisions of Section 6 herein.
(d) Application
for Enforcement. In the event the Company fails to make
timely payments as set forth in Sections 6 or 7(c) above,
Indemnitee shall have the right to apply to any court of competent
jurisdiction for the purpose of enforcing Indemnitee’s right
to indemnification or advancement of Expenses pursuant to this
Agreement. In such an enforcement hearing or proceeding, the burden
of proof shall be on the Company to prove that indemnification or
advancement of Expenses to Indemnitee is not required under this
Agreement or permitted by applicable law. Any determination by the
Company (including its Board of Directors, a committee thereof,
Independent Counsel) or stockholders of the Company, that
Indemnitee is not entitled to indemnification hereunder, shall not
be a defense by the Company to the action nor create any
presumption that Indemnitee is not entitled to indemnification or
advancement of Expenses hereunder.
(e) Indemnification
of Certain Expenses. The Company shall indemnify Indemnitee
against all Expenses incurred in connection with any hearing or
proceeding under this Section 7 unless the Company prevails in
such hearing or proceeding on the merits in all material
respects.
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8. Assumption
of Defense. In the event the Company shall be requested by
Indemnitee to pay the Expenses of any proceeding, the Company, if
appropriate, shall be entitled to assume the defense of such
proceeding, or to participate to the extent permissible in such
proceeding, with counsel reasonably acceptable to Indemnitee. Upon
assumption of the defense by the Company and the retention of such
counsel by the Company, the Company shall not be liable to
Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
proceeding, provided that Indemnitee shall have the right to employ
separate counsel in such proceeding at Indemnitee’s sole cost
and expense. Notwithstanding the foregoing, if Indemnitee’s
counsel delivers a written notice to the Company stating that such
counsel has reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any
such defense or the Company shall not, in fact, have employed
counsel or otherwise actively pursued the defense of such
proceeding within a reasonable time, then in any such event the
fees and Expenses of Indemnitee’s counsel to defend such
proceeding shall be subject to the indemnification and advancement
of Expenses provisions of this Agreement.
9. Insurance.
To the extent that the Company maintains an insurance policy or
policies providing liability insurance for Agents
(“D&O
Insurance”),
Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the
coverage available for any such Agent under such policy or
policies. If, at the time of the receipt of a notice of a
claim pursuant to the terms hereof, the Company has D&O
Insurance in effect or otherwise potentially available, the Company
shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such
policies.
In the
event of a change of control of the Company or the Company
dissolving or liquidating (including being placed into receivership
or entering the federal bankruptcy process and the like), the
Company shall maintain in force any and all insurance policies then
maintained by the Company in providing insurance in respect of
Indemnitee (directors’ and officers’ liability,
fiduciary, employment practices or otherwise) for a period of at
least six years thereafter (a “Tail Policy”).
If such coverage is not placed with the incumbent insurance
carriers using the policies that were in place at the time of the
change of control or insolvency event, the Tail Policy shall be
substantially comparable in scope and amount as the expiring
policies, and the insurance carriers for the Tail Policy shall have
an AM Best rating that is the same or better than the AM Best
ratings of the expiring policies.
10. Exceptions.
(a) Certain
Matters. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee on account of any
proceeding with respect to: (i) remuneration paid to
Indemnitee if it is determined by final judgment or other final
adjudication that such remuneration was in violation of law (and,
in this respect, both the Company and Indemnitee have been advised
that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication, as indicated in
Section 10(d) below); (ii) a final judgment rendered against
Indemnitee for an accounting, disgorgement or repayment of profits
made from the purchase or sale by Indemnitee of securities of the
Company against Indemnitee or in connection with a settlement by or
on behalf of Indemnitee to the extent it is acknowledged by
Indemnitee and the Company that such amount paid in settlement
resulted from Indemnitee's conduct from which Indemnitee received
monetary personal profit, pursuant to the provisions of
Section 16(b) of the Exchange Act or other provisions of any
federal, state or local statute or rules and regulations
thereunder; (iii) a final judgment or other final adjudication
that Indemnitee’s conduct was in bad faith, knowingly
fraudulent or deliberately dishonest or constituted willful
misconduct (but only to the extent of such specific determination);
or (iv) on account of conduct that is established by a final
judgment as constituting a breach of Indemnitee’s duty of
loyalty to the Company or resulting in any personal profit or
advantage to which Indemnitee is not legally entitled. For purposes
of the foregoing sentence, a final judgment or other adjudication
may be reached in either the underlying proceeding or action in
connection with which indemnification is sought or a separate
proceeding or action to establish rights and liabilities under this
Agreement.
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(b) Claims
Initiated by Indemnitee. Any provision herein to the
contrary notwithstanding, the Company shall not be obligated to
indemnify or advance Expenses to Indemnitee with respect to
proceedings or claims initiated or brought by Indemnitee against
the Company or its Agents and not by way of defense, except (i)
with respect to proceedings brought to establish or enforce a right
to indemnification or advancement under this Agreement or under any
other agreement, provision in the Bylaws or the Certificate of
Incorporation or applicable law, or (ii) with respect to any other
proceeding initiated by Indemnitee that is either approved by the
Board of Directors or Indemnitee’s participation is required
by applicable law. However, indemnification or advancement of
Expenses may be provided by the Company in specific cases if the
Board of Directors determines it to be appropriate.
(c) Unauthorized
Settlements. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of a proceeding
effected without the Company’s written consent. Neither the
Company nor Indemnitee shall unreasonably withhold consent to any
proposed settlement; provided, however, that the Company may in any
event decline to consent to (or to otherwise admit or agree to any
liability for indemnification hereunder in respect of) any proposed
settlement if the Company is also a party in such proceeding and
determines in good faith that such settlement is not in the best
interests of the Company and its stockholders.
(d) Securities
Act Liabilities. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee or otherwise act in
violation of any undertaking appearing in and required by the rules
and regulations promulgated under the Securities Act of 1933, as
amended (the “Securities
Act”), or in
any registration statement filed with the SEC under the Securities
Act. Indemnitee acknowledges that paragraph (h) of Item 512 of
Regulation S-K currently generally requires the Company to
undertake in connection with any registration statement filed under
the Securities Act to submit the issue of the enforceability of
Indemnitee’s rights under this Agreement in connection with
any liability under the Securities Act on public policy grounds to
a court of appropriate jurisdiction and to be governed by any final
adjudication of such issue. Indemnitee specifically agrees that any
such undertaking shall supersede the provisions of this Agreement
and to be bound by any such undertaking.
(e) Prior
Payments Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify or advance Expenses to
Indemnitee under this Agreement for which payment has actually been
made to or on behalf of Indemnitee under any insurance policy or
other indemnity provision, expect with respect to any excess beyond
the amount paid under any insurance policy or indemnity
policy.
11. Nonexclusivity
and Survival of Rights. The provisions for indemnification
and advancement of Expenses set forth in this Agreement shall not
be deemed exclusive of any other rights which Indemnitee may at any
time be entitled under any provision of applicable law, the
Company’s Certificate of Incorporation, the Bylaws or other
agreements, both as to action in Indemnitee’s official
capacity and Indemnitee’s action as an Agent, in any court in
which a proceeding is brought, and Indemnitee’s rights
hereunder shall continue after Indemnitee has ceased acting as an
Agent and shall inure to the benefit of the heirs, executors,
administrators and assigns of Indemnitee. The obligations and
duties of the Company to Indemnitee under this Agreement shall be
binding on the Company and its successors and assigns until
terminated in accordance with its terms. The Company shall require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business or assets of the Company, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession
had taken place.
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No
amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee
under this Agreement in respect of any action taken or omitted by
such Indemnitee in his or her corporate status prior to such
amendment, alteration or repeal. To the extent that a change in the
Code, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded
currently under the Company’s Certificate of Incorporation,
the Bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other right or remedy,
and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, by
Indemnitee shall not prevent the concurrent assertion or employment
of any other right or remedy by Indemnitee.
12. Term.
This Agreement shall continue until and terminate upon the later
of: (a) five (5) years after the date that Indemnitee shall have
ceased to serve as an Agent; or (b) one (1) year after the final
termination of any proceeding, including any appeal then pending,
in respect to which Indemnitee was granted rights of
indemnification or advancement of Expenses hereunder.
No
legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against an Indemnitee or
an Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of five (5) years from
the date of accrual of such cause of action, and any claim or cause
of action of the Company shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such
five-year period; provided, however, that if any shorter period of
limitations is otherwise applicable to such cause of action, such
shorter period shall govern.
13. Subrogation.
In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who, at the request and expense of the
Company, shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights, including
the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
14. Interpretation
of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to
provide indemnification and advancement of Expenses to Indemnitee
to the fullest extent now or hereafter permitted by
law.
15. Severability.
If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions
of the Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation,
all portions of any paragraph of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that are
not themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable and to give effect
to Section 14 hereof.
16. Amendment
and Waiver. No supplement, modification, amendment, or
cancellation of this Agreement shall be binding unless executed in
writing by the parties hereto. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver. The observance of any term
of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively),
only with the written consent of the waiving party.
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17. Notice.
Except as otherwise provided herein, any notice or demand which, by
the provisions hereof, is required or which may be given to or
served upon the parties hereto shall be in writing and, if by
electronic transmission, shall be deemed to have been validly
served, given or delivered when sent, if by overnight delivery,
courier or personal delivery, shall be deemed to have been validly
served, given or delivered upon actual delivery and, if mailed,
shall be deemed to have been validly served, given or delivered
three (3) business days after deposit in the United States mail, as
registered or certified mail, with proper postage prepaid and
addressed to the party or parties to be notified at the addresses
set forth on the signature page of this Agreement (or such other
address(es) as a party may designate for itself by like notice). If
to the Company, notices and demands shall be delivered to the
attention of the Secretary of the Company.
18. Governing
Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Delaware, as
applied to contracts between Delaware residents entered into and to
be performed entirely within Delaware.
19. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of
which together shall constitute but one and the same Agreement.
Only one such counterpart need be produced to evidence the
existence of this Agreement.
20. Headings.
The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
21. Entire
Agreement. Subject to Section 11 hereof, this Agreement
constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior agreements,
including any previously executed written indemnification
agreement, understandings and negotiations, written and oral,
between the parties with respect to the subject matter of this
Agreement; provided, however, that this Agreement is a supplement
to and in furtherance of the Company’s Certificate of
Incorporation, the Bylaws, the Code and any other applicable law,
and shall not be deemed a substitute therefor, and does not
diminish or abrogate any
rights of Indemnitee thereunder.
22. Contribution.
To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in
connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable
in light of all of the circumstances of such proceeding in order to
reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such proceeding; and/or (ii) the relative fault of the
Company and Indemnitee in connection with such event(s) and/or
transaction(s).
23. Consent
to Jurisdiction. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of
Delaware (the “Delaware
Court”), and not in any other state or federal court
in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out
of or in connection with this Agreement, (iii) agree to appoint, to
the extent such party is not otherwise subject to service of
process in the State of Delaware, an agent in the State of Delaware
as such party's agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same
legal force and validity as if served upon such party personally
within the State of Delaware, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware
Court, and (v) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
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In Witness
Whereof, the parties hereto have entered into this Agreement
effective as of the date first above written.
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CHROMADEX CORPORATION
By:
___________________________________
Name: _____________________________
Title: ______________________________
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INDEMNITEE
_______________________________________
Signature
of Indemnitee
_______________________________________
Print
or Type Name of Indemnitee
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