ChromaDex, Inc. Restricted Stock Purchase Agreement under the 2007 Equity Incentive Plan
Exhibit 10.4
ChromaDex, Inc.
Restricted Stock Purchase Agreement
under the 2007 Equity Incentive Plan
under the 2007 Equity Incentive Plan
This Agreement is made by and between ChromaDex, Inc., a California
corporation (the “Company”), and _____
(“Purchaser”).
R E C I T A L S
A Purchaser holds a notice of grant of right to purchase stock dated _____ (the “Notice of Grant”) to purchase shares of Common Stock (“Common Stock”) of the
Company (the “Purchase Right”) pursuant to the Company’s 2007 Equity Incentive Plan (the
“Plan”); and
B. The Purchase Right consists of the Notice and a Restricted Stock Purchase
Agreement.
C. Purchaser desires to exercise the Purchase right on the terms and conditions
contained herein.
A G R E E M E N T
In consideration of the foregoing recitals and the mutual covenants and conditions contained
herein, the parties, intending to be legally bound, agree as follows:
1. Incorporation of Plan by Reference. This Agreement is subject to all of the terms
and conditions as set forth in the Plan. If there is a conflict between the terms of this
Agreement and the Plan, the terms of the Plan shall control. Defined terms not explicitly defined
in this Agreement but defined in the Plan shall have the same definitions as in the Plan.
2. Purchase and Sale of Common Stock.
(a) Agreement to Purchase and Sell Common Stock. Purchaser hereby agrees to purchase
from the Company, and the Company hereby agrees to sell to Purchaser, shares of the Common Stock of
the Company in accordance with the Notice of Grant duly executed by Purchaser and attached hereto
as Exhibit A. In accordance with the terms of the Option, the purchase price for the
shares of Common Stock are payable by a Promissory Note substantially in the form set forth in
Exhibit D, subject to a Pledge Agreement substantially in the form set forth in Exhibit
E.
(b) Closing. The closing hereunder, including payment for and delivery of the Common
Stock, shall occur at the offices of the Company immediately following the execution of this
Agreement, or at such other time and place as the parties may mutually agree; provided, however,
that if shareholder approval of the Plan is required before this Agreement may be executed, then
the Notice of Grant may not be exercised, and the closing shall be delayed, until such shareholder
approval is obtained. If such shareholder approval is not obtained within the time limit specified
in the Plan, then this Agreement shall be null and void.
3. Repurchase Option. Upon the earlier of (i) the termination of Purchaser’s
Continuous Service, or (ii) the occurrence of a Corporate Transaction and the Company opts to
terminate the Plan pursuant to Section 10(c)(i) of the Plan, then the Company shall have an
irrevocable option (the “Unvested Share Repurchase Option”) for a period of ninety (90)
days after said termination or Corporate Transaction, or such longer period as may be agreed to by
the Company and the Purchaser, to repurchase from Purchaser or Purchaser’s personal representative,
as the case may be, those shares that Purchaser received pursuant to the exercise of the Notice of
Grant. Pursuant to its repurchase option, the Company may repurchase all or any of the shares that
Purchaser received pursuant to the exercise of the Notice of Grant that (a) have not as yet vested
as of such termination or Corporate Transaction date in accordance with the Vesting Schedule
indicated on Purchaser’s Notice of Grant (the “Unvested Shares”) at a price (“Option
Price”) equal to the Purchaser’s Purchase Price for such shares as indicated on Purchaser’s
Notice of Grant, and (b) have vested as of such termination or Corporate Transaction date in
accordance with the Vesting Schedule indicated on Purchaser’s Notice of Grant (the “Vested
Shares”) at a price equal to the Fair Market Value for such shares.
4. Exercise of Repurchase Option. The Repurchase Option shall be exercised by
written notice signed by an Officer of the Company and delivered or mailed as provided herein.
Such notice shall identify the number of shares of Common Stock to be purchased and shall notify
Purchaser of the time, place and date for settlement of such purchase, which shall be scheduled by
the Company within the term of the Repurchase Option set forth above. The Company shall be
entitled to pay for any shares of Common Stock purchased pursuant to its Repurchase Option at the
Company’s option in cash or by offset against any indebtedness owing to the Company by Purchaser
(including without limitation any Note given in payment for the Common Stock), or by a combination
of both. Upon delivery of such notice and payment of the purchase price in any of the ways
described above, the Company shall become the legal and beneficial owner of the Common Stock being
repurchased and all rights and interest therein or related thereto, and the Company shall have the
right to transfer to its own name the Common Stock being repurchased by the Company, without
further action by Purchaser.
5. Capitalization Adjustments to Common Stock. In the event of a “Capitalization
Adjustment” affecting the Company’s outstanding Common Stock as a class as designated in the Plan,
then any and all new, substituted or additional securities or other property to which Purchaser is
entitled by reason of Purchaser’s ownership of Common Stock shall be immediately subject to the
Repurchase Option and be included in the word “Common Stock” for all purposes of the Repurchase
Option with the same force and effect as the shares of the Common Stock presently subject to the
Repurchase Option, but only to the extent the Common Stock is, at the time, covered by such
Repurchase Option. While the total Option Price shall remain the same after each such event, the
Option Price per share of Common Stock upon exercise of the Repurchase Option shall be
appropriately adjusted.
6. Corporate Transactions. In the event of a Corporate Transaction described in the
Plan, then the Repurchase Option may be assigned by the Company to the successor of the Company (or
such successor’s parent company), if any, in connection with such Corporate Transaction. To the
extent the Repurchase Option remains in effect following such Corporate Transaction, it shall apply
to the new capital stock or other property received in exchange for the Common Stock in
consummation of the Corporate Transaction, but only to the extent the Common Stock was at the time
covered by such right. Appropriate adjustments shall be made to
the price per share payable upon exercise of the Repurchase Option to reflect the Corporate
Transaction upon the Company’s capital structure; provided, however, that the aggregate Option
Price shall remain the same.
2
7. Escrow of Unvested Common Stock. As security for Purchaser’s faithful performance
of the terms of this Agreement and to insure the availability for delivery of Purchaser’s Common
Stock upon exercise of the Repurchase Option herein provided for, Purchaser agrees, at the closing
hereunder, to deliver to and deposit with the Secretary of the Company or the Secretary’s designee
(“Escrow Agent”), as Escrow Agent in this transaction, three (3) stock assignments duly
endorsed (with date and number of shares blank) in the form attached hereto as Exhibit B,
together with a certificate or certificates evidencing all of the Common Stock subject to the
Repurchase Option; said documents are to be held by the Escrow Agent and delivered by said Escrow
Agent pursuant to the Joint Escrow Instructions of the Company and Purchaser set forth in
Exhibit C, attached hereto and incorporated by this reference, which instructions shall
also be delivered to the Escrow Agent at the closing hereunder.
8. Rights of Purchaser. Subject to the provisions of this Agreement, Purchaser shall
exercise all rights and privileges of a shareholder of the Company with respect to the shares
deposited in escrow. Purchaser shall be deemed to be the holder of the shares for purposes of
receiving any dividends that may be paid with respect to such shares and for purposes of exercising
any voting rights relating to such shares, even if some or all of such shares have not yet vested
and been released from the Company’s Repurchase Option.
9. Limitations on Transfer. In addition to any other limitation on transfer created
by applicable securities laws, Purchaser shall not sell, assign, hypothecate, donate, encumber or
otherwise dispose of any interest in the Common Stock while the Common Stock is subject to the
Repurchase Option. After any Common Stock has been released from the Repurchase Option, Purchaser
shall not sell, assign, hypothecate, donate, encumber or otherwise dispose of any interest in the
Common Stock except in compliance with the provisions herein and applicable securities laws.
Furthermore, the Common Stock shall be subject to any right of first refusal in favor of the
Company or its assignees that may be contained in the Company’s Bylaws.
10. Restrictive Legends. All certificates representing the Common Stock shall have
endorsed thereon legends in substantially the following forms (in addition to any other legend
which may be required by other agreements between the parties hereto):
(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR SUCH HOLDER’S PREDECESSOR IN INTEREST,
A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THIS COMPANY. ANY TRANSFER OR ATTEMPTED
TRANSFER OF ANY SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF
THE COMPANY.”
(b) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
(c) Any legend required by appropriate blue sky officials.
3
11. Investment Representations. In connection with the purchase of the Common Stock,
Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Common Stock. Purchaser is acquiring the Common Stock for investment for
Purchaser’s own account only and not with a view to, or for resale in connection with, any
“distribution” thereof within the meaning of the Securities Act.
(b) Purchaser understands that the Common Stock has not been registered under the Securities
Act by reason of a specific exemption therefrom, which exemption depends upon, among other things,
the bona fide nature of Purchaser’s investment intent as expressed herein.
(c) Purchaser further acknowledges and understands that the Common Stock must be held
indefinitely unless the Common Stock is subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser further acknowledges and understands that
the Company is under no obligation to register the Common Stock. Purchaser understands that the
certificate evidencing the Common Stock will be imprinted with a legend that prohibits the transfer
of the Common Stock unless the Common Stock is registered or such registration is not required in
the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules 144 and 701, under the Securities Act,
as in effect from time to time, which, in substance, permit limited public resale of “restricted
securities” acquired, directly or indirectly, from the issuer thereof (or from an affiliate of such
issuer), in a non-public offering subject to the satisfaction of certain conditions. Rule 701
provides that if the issuer qualifies under Rule 701 at the time of issuance of the securities,
such issuance will be exempt from registration under the Securities Act. In the event the Company
becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, the securities exempt under Rule 701 may be sold by Purchaser ninety (90) days thereafter,
subject to the satisfaction of certain of the conditions specified by Rule 144.
(e) In the event that the sale of the Common Stock does not qualify under Rule 701 at the time
of purchase, then the Common Stock may be resold by Purchaser in certain limited circumstances
subject to the provisions of Rule 144, which requires, among other things: (i) the availability of
certain public information about the Company and (ii) the resale occurring following the required
holding period under Rule 144 after the Purchaser has purchased, and made full payment of (within
the meaning of Rule 144), the securities to be sold.
(f) Purchaser further understands that at the time Purchaser wishes to sell the Common Stock
there may be no public market upon which to make such a sale, and that, even if such a public
market then exists, the Company may not be satisfying the current public current
information requirements of Rule 144 or 701, and that, in such event, Purchaser would be
precluded from selling the Common Stock under Rule 144 or 701 even if the minimum holding period
requirement had been satisfied.
4
12. Section 83(b) Election. Purchaser understands that Section 83(a) of
the Code, taxes as ordinary income the difference between the amount paid for the Common Stock and
the fair market value of the Common Stock as of the date any restrictions on the Common Stock
lapse. In this context, “restriction” includes the right of the Company to buy back the Unvested
Shares pursuant to the Repurchase Option set forth above. Purchaser understands that Purchaser may
elect to be taxed at the time the Common Stock is purchased, rather than when and as the Repurchase
Option expires, by filing an election under Section 83(b) (an “83(b) Election”) of the Code
with the Internal Revenue Service within thirty (30) days from the date of purchase. Even if the
fair market value of the Common Stock at the time of the execution of this Agreement equals the
amount paid for the Common Stock, the 83(b) Election must be made to avoid income under Section
83(a) in the future. Purchaser understands that failure to file such an 83(b) Election in a timely
manner may result in adverse tax consequences for Purchaser. Purchaser further understands that
Purchaser must file an additional copy of such 83(b) Election with his or her federal income tax
return for the calendar year in which the date of this Agreement falls. Purchaser acknowledges
that the foregoing is only a summary of the effect of United States federal income taxation with
respect to purchase of the Common Stock hereunder, and does not purport to be complete. Purchaser
further acknowledges that the Company has directed Purchaser to seek independent advice regarding
the applicable provisions of the Code, the income tax laws of any municipality, state or foreign
country in which Purchaser may reside, and the tax consequences of Purchaser’s death. Purchaser
assumes all responsibility for filing an 83(b) Election and paying all taxes resulting from such
election or the lapse of the restrictions on the Common Stock.
13. Refusal to Transfer. The Company shall not be required (a) to transfer on its
books any shares of Common Stock of the Company which shall have been transferred in violation of
any of the provisions set forth in this Agreement or (b) to treat as owner of such shares or to
accord the right to vote as such owner or to pay dividends to any transferee to whom such shares
shall have been so transferred.
14. No Employment Rights. This Agreement is not an employment contract and nothing
in this Agreement shall affect in any manner whatsoever the right or power of the Company (or a
parent or subsidiary of the Company) to terminate Purchaser’s employment for any reason at any
time, with or without cause and with or without notice.
5
15. Miscellaneous.
(a) Notices. Any notice required or permitted hereunder shall be given in writing and shall
be deemed effectively given upon personal delivery or sent by telegram or fax or upon deposit in
the United States Post Office, by registered or certified mail with postage and fees prepaid,
addressed to the other party hereto at such party’s address hereinafter shown below its signature
or at such other address as such party may designate by ten (10) days’ advance written notice to
the other party hereto.
(b) Successors and Assigns. This Agreement shall inure to the benefit of the successors and
assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding
upon Purchaser, Purchaser’s successors, and assigns. The Company may assign the Repurchase Option
hereunder at any time or from time to time, in whole or in part.
(c) Attorneys’ Fees; Specific Performance. Purchaser shall reimburse the Company for all
costs incurred by the Company in enforcing the performance of, or protecting its rights under, any
part of this Agreement, including reasonable costs of investigation and attorneys’ fees. It is the
intention of the parties that the Company, upon exercise of the Repurchase Option and payment of
the Option Price, pursuant to the terms of this Agreement, shall be entitled to receive the Common
Stock, in specie, in order to have such Common Stock available for future issuance without dilution
of the holdings of other shareholders. Furthermore, it is expressly agreed between the parties
that money damages are inadequate to compensate the Company for the Common Stock and that the
Company shall, upon proper exercise of the Repurchase Option, be entitled to specific enforcement
of its rights to purchase and receive said Common Stock.
(d) Governing Law; Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. The parties agree that any action brought by either
party to interpret or enforce any provision of this Agreement shall be brought in, and each party
agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company’s principal place of business.
(e) Further Execution. The parties agree to take all such further action(s) as may reasonably
be necessary to carry out and consummate this Agreement as soon as practicable, and to take
whatever steps may be necessary to obtain any governmental approval in connection with or otherwise
qualify the issuance of the securities that are the subject of this Agreement.
(f) Independent Counsel. Purchaser acknowledges that this Agreement has been prepared on
behalf of the Company by Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel to the Company and that Manatt,
Xxxxxx & Xxxxxxxx, LLP does not represent, and is not acting on behalf of, Purchaser. Purchaser
has been provided with an opportunity to consult with Purchaser’s own counsel with respect to this
Agreement.
(g) Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes and merges all prior agreements or
understandings, whether written or oral. This Agreement may not be amended, modified or revoked,
in whole or in part, except by an agreement in writing signed by each of the parties hereto.
(h) Severability. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good faith. In the event
that the parties cannot reach a mutually agreeable and enforceable replacement for such provision,
then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement
shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its terms.
6
(i) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one instrument.
In witness whereof, the parties hereto have executed this Agreement as of this _____ day of _____ 200 _____ .
| ChromaDex, Inc. | ||||||||
| By | ||||||||
| Title | ||||||||
| Address: | 00000 Xxxxxxxxx Xxxxxxxxx | |||||||
| Xxxxx X, 0xx Xxxxx | ||||||||
| Xxxxxx, XX 00000 | ||||||||
| Purchaser | ||||||||
| Address: | ||||||||
Attachments: |
||
Exhibit A
|
Notice of Grant | |
Exhibit B
|
Assignment Separate from Certificate | |
Exhibit C
|
Joint Escrow Instructions | |
Exhibit D
|
Promissory Note | |
Exhibit E
|
Pledge Agreement |
7
Exhibit A
NOTICE OF GRANT
[ see attached]
Exhibit B
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For
Value Received, _____ hereby sells, assigns and transfers unto
ChromaDex, Inc., a California corporation (the “Company”), pursuant to the Repurchase
Option under that certain Restricted Stock Purchase Agreement,
dated _____ by and between the undersigned and the Company (the “Agreement”), _____ ( _____ ) shares
of Common Stock of the Company standing in the undersigned’s name on the books of the Company
represented by Certificate No(s). _____ and does hereby irrevocably constitute and
appoint the Company’s Secretary attorney to transfer said Common Stock on the books of the Company
with full power of substitution in the premises. This Assignment may be used only in accordance
with and subject to the terms and conditions of the Agreement, in connection with the repurchase of
shares of Common Stock issued to the undersigned pursuant to the Agreement, and only to the extent
that such shares remain subject to the Company’s Repurchase Option under the Agreement.
Dated:
(Instruction: Please do not fill in any blanks other than the “Signature” line and the
“Print Name” line.)
Exhibit C
JOINT ESCROW INSTRUCTIONS
Secretary
ChromaDex, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx X, 0xx Xxxxx
Xxxxxx, XX 00000
ChromaDex, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx X, 0xx Xxxxx
Xxxxxx, XX 00000
Dear Sir or Madam:
As Escrow Agent for both ChromaDex, Inc., a California corporation
(“Company”), and the undersigned purchaser of Common Stock of the Company
(“Purchaser”), you are hereby authorized and directed to hold the documents delivered to
you pursuant to the terms of that certain Restricted Stock Purchase Agreement
(“Agreement”), dated _____ to which a copy of these Joint Escrow Instructions is
attached as Exhibit C, in accordance with the following instructions:
1. In the event the Company or an assignee shall elect to exercise the Repurchase Option set
forth in the Agreement, the Company or its assignee will give to Purchaser and you a written notice
specifying the number of shares of Common Stock to be purchased, the purchase price, and the time
for a closing hereunder at the principal office of the Company. Purchaser and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing you are directed (a) to date any stock assignments necessary for the
transfer in question, (b) to fill in the number of shares being transferred, and (c) to deliver
same, together with the certificate evidencing the shares of Common Stock to be transferred, to the
Company against the simultaneous delivery to you of the purchase price (which may include suitable
acknowledgment of cancellation of indebtedness) of the number of shares of Common Stock being
purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any certificates
evidencing shares of Common Stock to be held by you hereunder and any additions and substitutions
to said shares as specified in the Agreement. Purchaser does hereby irrevocably constitute and
appoint you as the Purchaser’s attorney-in-fact and agent for the term of this escrow to execute
with respect to such securities and other property all documents of assignment and/or transfer and
all stock certificates necessary or appropriate to make all securities negotiable and complete any
transaction herein contemplated.
4. This escrow shall terminate upon expiration or exercise in full of the Repurchase Option,
whichever occurs first.
5. If at the time of termination of this escrow you should have in your possession any
documents, securities, or other property belonging to Purchaser, you shall deliver all of same to
Purchaser and shall be discharged of all further obligations hereunder; provided, however, that if
at the time of termination of this escrow you are advised by the Company that the property subject
to this escrow is the subject of a pledge or other security agreement, you shall deliver all such
property to the pledgeholder or other person designated by the Company.
6. Except as otherwise provided in these Joint Escrow Instructions, your duties hereunder may
be altered, amended, modified or revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties or their assignees. You shall not be personally liable for any act you may
do or omit to do hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith and any act done or omitted by you pursuant to the advice of your own attorneys shall be
conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or corporation, excepting only orders or process of courts of
law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of
any court. In case you obey or comply with any such order, judgment or decree of any court, you
shall not be liable to any of the parties hereto or to any other person, firm or corporation by
reason of such compliance, notwithstanding any such order, judgment or decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been entered without
jurisdiction.
9. You shall not be liable in any respect on account of the identity, authority or rights of
the parties executing or delivering or purporting to execute or deliver the Agreement or any
documents or papers deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under any statute of limitations
with respect to these Joint Escrow Instructions or any documents deposited with you.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be
Secretary of the Company or if you shall resign by written notice to each party. In the event of
any such termination, the Company may appoint any officer or assistant officer of the Company as
successor Escrow Agent and Purchaser hereby confirms the appointment of such successor or
successors as the Purchaser’s attorney-in-fact and agent to the full extent of your appointment.
12. If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities, you are authorized and directed to
retain in your possession without liability to anyone all or any part of said securities until such
dispute shall have been settled either by mutual written agreement of the parties concerned or by a
final order, decree or judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty whatsoever to institute or
defend any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery, including delivery by express courier or five days after
deposit in the United States Post Office, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties hereunto entitled at the following addresses, or at
such other addresses as a party may designate by ten days’ advance written notice to each of the
other parties hereto:
| Company: | ChromaDex, Inc. | |||||
| 00000 Xxxxxxxxx Xxxxxxxxx | ||||||
| Xxxxx X, 0xx Xxxxx | ||||||
| Xxxxxx, XX 00000 | ||||||
| Purchaser: | ||||||
| Escrow Agent: | Secretary | |||||
| ChromaDex, Inc. | ||||||
| 00000 Xxxxxxxxx Xxxxxxxxx | ||||||
| Xxxxx X, 0xx Xxxxx | ||||||
| Xxxxxx, XX 00000 |
15. By signing these Joint Escrow Instructions you become a party hereto only for the purpose
of said Joint Escrow Instructions; you do not become a party to the Agreement.
16. You shall be entitled to employ such legal counsel and other experts (including without
limitation the firm of Manatt, Xxxxxx & Xxxxxxxx, LLP) as you may deem necessary properly to advise
you in connection with your obligations hereunder. You may rely upon the advice of such counsel,
and may pay such counsel reasonable compensation therefor. The Company shall be responsible for
all fees generated by such legal counsel in connection with your obligations hereunder.
17. This instrument shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. It is understood and agreed that references to
“you” or “your” herein refer to the original Escrow Agent and to any and all successor Escrow
Agents. It is understood and agreed that the Company may at any time or from time to time assign
its rights under the Agreement and these Joint Escrow Instructions in whole or in part.
18. This Agreement shall be governed by and interpreted and determined in accordance with the
laws of the State of California, as such laws are applied by California courts to contracts made
and to be performed entirely in California by residents of that state.
| Very truly yours, | ||||||
| ChromaDex, Inc. | ||||||
| By | ||||||
| Title | ||||||
| Purchaser: | ||||||
Escrow Agent: |
||||||
Exhibit D
PROMISSORY NOTE
| $ _____ | Irvine, California | |
| [Date] |
For Value Received, the undersigned hereby unconditionally promises to pay to the
order of ChromaDex, Inc., a California corporation (the “Company”), at 00000
Xxxxxxxxx Xxxxxxxxx, Xxxxx X, 0xx Xxxxx, Xxxxxx, XX 00000, or at such other place as the holder
hereof may designate in writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of _____ Dollars ($ _____ ) together with
interest accrued from the date hereof on the unpaid principal at the rate of _____ % per annum, or
the maximum rate permissible by law (which under the laws of the State of California shall be
deemed to be the laws relating to permissible rates of interest on commercial loans), whichever is
less, as follows:
Principal Repayment. The outstanding principal amount
hereunder shall be [due and payable in full on _____ ] [Alternative text: subject to
scheduled amortized repayments on the dates and in the
amounts listed below.
| Principal Repayment Date | Repayment Amount]; and |
Interest Payments. Interest shall be compounded annually and shall be payable [monthly /
quarterly / annually in arrears] [in arrears on each Principal Repayment Date] and shall be
calculated on the basis of a 360-day year for the actual number of days elapsed;
provided, however, that in the event that the undersigned’s employment by or association with the
Company or its Affiliate is terminated for any reason prior to payment in full of this Note, this
Note shall be accelerated and all remaining unpaid principal and interest shall become due and
payable immediately after such termination.
If the undersigned fails to pay any of the principal and accrued interest when due, the
Company, at its sole option, shall have the right to accelerate this Note, in which event the
entire principal balance and all accrued interest shall become immediately due and payable, and
immediately collectible by the Company pursuant to applicable law.
This Note may be prepaid at any time without penalty. All money paid toward the satisfaction
of this Note shall be applied first to the payment of interest as required hereunder and then to
the retirement of the principal.
The full amount of this Note is secured by a pledge of shares of Common Stock of the Company,
and is subject to all of the terms and provisions of the Restricted Stock Purchase Agreement and
Stock Pledge Agreement of even date herewith between the undersigned and the Company.
The undersigned hereby represents and agrees that the amounts due under this Note are not
consumer debt, and are not incurred primarily for personal, family or household purposes, but are
for business and commercial purposes only.
The undersigned hereby waives presentment, protest and notice of protest, demand for payment,
notice of dishonor and all other notices or demands in connection with the delivery, acceptance,
performance, default or endorsement of this Note.
The holder hereof shall be entitled to recover, and the undersigned agrees to pay when
incurred, all costs and expenses of collection of this Note, including without limitation,
reasonable attorneys’ fees.
This Note shall be governed by, and construed, enforced and interpreted in accordance with,
the laws of the State of California, excluding conflict of laws principles that would cause the
application of laws of any other jurisdiction.
| Signed | ||||||
Exhibit E
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (“Pledge Agreement”) is made by _____ (“Pledgor”), in favor of ChromaDex, Inc.., a California
corporation with its principal place of business at ChromaDex, Inc., 00000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx X, 0xx Xxxxx, Xxxxxx, XX 00000 (“Pledgee”).
Whereas, Pledgor has concurrently herewith executed that certain Promissory Note (the
“Note”) in favor of Pledgee in the amount of _____ Dollars ($ _____ ) in payment of the purchase price of _____ ( _____ ) shares of the Common Stock of
Pledgee; and
Whereas, Pledgee is willing to accept the Note from Pledgor, but only upon the
condition, among others, that Pledgor shall have executed and delivered to Pledgee this Pledge
Agreement and the Collateral (as defined below):
Now, Therefore, in consideration of the foregoing recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to
be legally bound, Pledgor hereby agrees as follows:
1. As security for the full, prompt and complete payment and performance when due (whether by
stated maturity, by acceleration or otherwise) of all indebtedness of Pledgor to Pledgee created
under the Note (all such indebtedness being the “Liabilities”), together with, without
limitation, the prompt payment of all expenses, including, without limitation, reasonable
attorneys’ fees and legal expenses, incidental to the collection of the Liabilities and the
enforcement or protection of Pledgee’s lien in and to the collateral pledged hereunder, Pledgor
hereby pledges to Pledgee, and grants to Pledgee, a first priority security interest in all of the
following (collectively, the “Pledged Collateral”):
(a) _____ ( _____ ) shares of Common Stock of Pledgee represented by
Certificates numbered _____ (the “Pledged Shares”), and all dividends, cash,
instruments, and other property or proceeds from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing the right to vote any Pledged
Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from time to time acquired by Pledgor
in any manner (which additional shares shall be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares, and all dividends, cash, instruments, and other
property or proceeds from time to time received, receivable, or otherwise distributed in respect of
or in exchange for any or all of such shares.
The term “indebtedness” is used herein in its most comprehensive sense and includes any and
all advances, debts, obligations and Liabilities heretofore, now or hereafter made, incurred or
created, whether voluntary or involuntary and whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether recovery upon such indebtedness
may be or hereafter becomes unenforceable.
2. At any time, without notice, and at the expense of Pledgor, Pledgee in its name or in the
name of its nominee or of Pledgor may, but shall not be obligated to: (1) collect by legal
proceedings or otherwise all dividends (except cash dividends other than liquidating dividends),
interest, principal payments and other sums now or hereafter payable upon or on account of said
Pledged Collateral; (2) enter into any extension, reorganization, deposit, merger or consolidation
agreement, or any agreement in any way relating to or affecting the Pledged Collateral, and in
connection therewith may deposit or surrender control of such Pledged Collateral thereunder, accept
other property in exchange for such Pledged Collateral and do and perform such acts and things as
it may deem proper, and any money or property received in exchange for such Pledged Collateral
shall be applied to the indebtedness or thereafter held by it pursuant to the provisions hereof;
(3) insure, process and preserve the Pledged Collateral; (4) cause the Pledged Collateral to be
transferred to its name or to the name of its nominee; (5) exercise as to such Pledged Collateral
all the rights, powers and remedies of an owner, except that so long as no default exists under the
Note or hereunder Pledgor shall retain all voting rights as to the Pledged Shares.
3. Pledgor agrees to pay prior to delinquency all taxes, charges, liens and assessments
against the Pledged Collateral, and upon the failure of Pledgor to do so, Pledgee at its option may
pay any of them and shall be the sole judge of the legality or validity thereof and the amount
necessary to discharge the same.
4. At the option of Pledgee and without necessity of demand or notice, all or any part of the
indebtedness of Pledgor shall immediately become due and payable irrespective of any agreed
maturity, upon the happening of any of the following events: (1) failure to keep or perform any of
the terms or provisions of this Pledge Agreement; (2) failure to pay any installment of principal
or interest on the Note when due; (3) the levy of any attachment, execution or other process
against the Pledged Collateral; or (4) the insolvency, commission of an act of bankruptcy, general
assignment for the benefit of creditors, filing of any petition in bankruptcy or for relief under
the provisions of Title 11 of the United States Code of, by, or against Pledgor.
5. In the event of the nonpayment of any indebtedness when due, whether by acceleration or
otherwise, or upon the happening of any of the events specified in the last preceding section,
Pledgee may then, or at any time thereafter, at its election, apply, set off, collect or sell in
one or more sales, or take such steps as may be necessary to liquidate and reduce to cash in the
hands of Pledgee in whole or in part, with or without any previous demands or demand of performance
or notice or advertisement, the whole or any part of the Pledged Collateral in such order as
Pledgee may elect, and any such sale may be made either at public or private sale at its place of
business or elsewhere, or at any broker’s board or securities exchange, either for cash or upon
credit or for future delivery; provided, however, that if such disposition is
at private sale,
then the purchase price of the Pledged Collateral shall be equal to the
public market price then in effect, or, if at the time of sale no public market for the Pledged
Collateral exists, then, in recognition of the fact that the sale of the Pledged Collateral would
have to be registered under the Securities Act of 1933 and that the expenses of such registration
are commercially unreasonable for the type and amount of collateral pledged hereunder, Pledgee and
Pledgor hereby agree that such private sale shall be at a purchase price mutually agreed to by
Pledgee and Pledgor or, if the parties cannot agree upon a purchase price, then at a purchase price
established by a majority of three independent appraisers knowledgeable of the value of such
collateral, one named by Pledgor within ten (10) days after written request by the Pledgee to do
so, one named by Pledgee within such 10-day period, and the third named by the two appraisers so
selected, with the appraisal to be rendered by such body within thirty (30) days of the appointment
of the third appraiser. The cost of such appraisal, including all appraiser’s fees, shall be
charged against the proceeds of sale as an expense of such sale. Pledgee may be the purchaser of
any or all Pledged Collateral so sold and hold the same thereafter in its own right free from any
claim of Pledgor or right of redemption. Demands of performance, notices of sale, advertisements
and presence of property at sale are hereby waived, and Pledgee is hereby authorized to sell
hereunder any evidence of debt pledged to it. Any officer or agent of Pledgee may conduct any sale
hereunder.
6. The proceeds of the sale of any of the Pledged Collateral and all sums received or
collected by Pledgee from or on account of such Pledged Collateral shall be applied by Pledgee to
the payment of expenses incurred or paid by Pledgee in connection with any sale, transfer or
delivery of the Pledged Collateral, to the payment of any other costs, charges, attorneys’ fees or
expenses mentioned herein, and to the payment of the indebtedness or any part hereof, all in such
order and manner as Pledgee in its discretion may determine. Pledgee shall then pay any balance to
Pledgor.
7. Upon the transfer of all or any part of the indebtedness Pledgee may transfer all or any
part of the Pledged Collateral and shall be fully discharged thereafter from all liability and
responsibility with respect to such Pledged Collateral so transferred, and the transferee shall be
vested with all the rights and powers of Pledgee hereunder with respect to such Pledged Collateral
so transferred; but with respect to any Pledged Collateral not so transferred Pledgee shall retain
all rights and powers hereby given.
8. Until all indebtedness shall have been paid in full the power of sale and all other rights,
powers and remedies granted to Pledgee hereunder shall continue to exist and may be exercised by
Pledgee at any time and from time to time irrespective of the fact that the indebtedness or any
part thereof may have become barred by any statute of limitations, or that the personal liability
of Pledgor may have ceased.
9. Pledgee agrees that so long as no default exists under the Note or hereunder, the Pledged
Shares shall, upon the request of Pledgor, be released from pledge as the indebtedness is paid.
Such releases shall be at the rate of one share for each _____ ($ _____ ) of
principal amount of indebtedness paid. Release from pledge, however, shall not result in release
from the provisions of those certain Joint Escrow Instructions, if any, of
even date herewith among the parties to this Pledge Agreement and the Escrow Agent named
therein.
10. Pledgee may at any time deliver the Pledged Collateral or any part thereof to Pledgor and
the receipt of Pledgor shall be a complete and full acquittance for the Pledged Collateral so
delivered, and Pledgee shall thereafter be discharged from any liability or responsibility
therefor.
11. The rights, powers and remedies given to Pledgee by this Pledge Agreement shall be in
addition to all rights, powers and remedies given to Pledgee by virtue of any statute or rule of
law. Any forbearance or failure or delay by Pledgee in exercising any right, power or remedy
hereunder shall not be deemed to be a waiver of such right, power or remedy, and any single or
partial exercise of any right, power or remedy hereunder shall not preclude the further exercise
thereof; and every right, power and remedy of Pledgee shall continue in full force and effect until
such right, power or remedy is specifically waived by an instrument in writing executed by Pledgee.
12. If any provision of this Pledge Agreement is held to be unenforceable for any reason, it
shall be adjusted, if possible, rather than voided in order to achieve the intent of the parties to
the extent possible. In any event, all other provisions of this Pledge Agreement shall be deemed
valid and enforceable to the full extent possible.
13. This Pledge Agreement shall be governed by, and construed in accordance with, the laws of
the State of California as applied to contracts made and performed entirely within the State of
California by residents of such State.
| Dated: _______________ | Pledgor | |||||
| Printed Name: | ||||||
