SEPARATION AND RELEASE AGREEMENT
Exhibit 10.59
THIS
SEPARATION AND RELEASE AGREEMENT (the “Agreement”), by and between Xxxx
Xxxxxxxx (the “Employee”) and ChromaDex, Inc. and
any parents, subsidiaries, or affiliates of the Company
(collectively referred to herein as the “Company”).
WHEREAS, Employee is an at-will employee
of the Company;
WHEREAS, Employee’s employment
with the Company will terminate on November 20, 2018;
WHEREAS, the Agreement governs the terms
of Employee’s separation from the Company.
WHEREAS, the parties desire to fully and
expeditiously settle any and all potential claims, charges or
issues of law or fact that have been raised or could have been
raised by the Employee against the Company arising out of or in any
way related to the Employee’s employment with the Company
and/or the separation of his employment, and without the Company
acknowledging any liability whatsoever;
NOW, THEREFORE, in consideration of the
monies, mutual promises, and mutual covenants contained herein, the
parties agree as follows:
1. Termination.
Employee’s employment with the Company has been terminated.
If a prospective future employer of Employee wishes to verify
employment, the employer should contact the Company’s human
resources department and will be provided a neutral reference
including only Employee’s dates of employment and last
position held. Employee recognizes that for purposes of the
continuation coverage requirement of group health plans under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as
amended, a “qualifying event” and “applicable
change in status” occurs as of November 20, 2018. Company
agrees to give Employee all notices and information required under
such laws.
2. Separation
Benefits.
a. In
exchange for the promises of Employee contained in this Agreement,
the Company agrees to extend an offer to Employee to act as a
non-employee consultant to the Company for a period of fourteen
(14) months, beginning immediately upon conclusion of his
employment to insure continuous services, with compensation for
such consultancy to be indicated in a consulting agreement.
Employee understands and acknowledges that he would not otherwise
be entitled to receive such an offer for consultancy services, or
any payments from the Company after November 20, 2018. Such
Consulting Agreement is provided to Employee simultaneously with
this Agreement.
b. Employee
acknowledges and agrees
that he/she is not entitled to any other payments, salary, commissions, compensation
or benefits from the Company aside from what is set forth within
this paragraph. By signing this agreement, Employee acknowledges
that all owed wages have been paid. Employee acknowledges that
he/she is responsible for all taxes due and owing on such amount,
except for payroll taxes and other normal withholding accomplished
by the Employer.
3. Treatment
of Options. For purposes of the Equity Incentive Plan of
ChromaDex Corp., Employee shall be deemed to have voluntarily
resigned his/her employment with the Company. Notwithstanding any
provision of the Plan or any other agreement between Employee and
the Company or any other party to the contrary, the Company agrees
that Employee shall have the unqualified right to exercise any of
the vested options for a period of thirty (30) days from the last
date of employment.
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4. Employee
Release.
a. In
exchange for the consideration made by the Company in this
Agreement, Employee understands that he/she is agreeing not to xxx,
or file any claim against the Company, and thereby irrevocably and
unconditionally discharges the Company, its predecessors, parents,
subsidiaries, affiliates, and past, present and future officers,
directors, agents, consultants, employees, representatives, and
insurers, as applicable, together with all successors and assigns
of any of the foregoing (collectively, the “Releasees”), of and from all
claims, demands, actions, causes of action, rights of action,
contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies,
reckonings, extents, responsibilities, liabilities, suits, and
proceedings of whatsoever kind, nature, or description, direct or
indirect, vested or contingent, known or unknown, suspected or
unsuspected, in contract, tort, law, equity, or otherwise, under
the laws of any jurisdiction, that the Employee or his
predecessors, legal representatives, successors or assigns, ever
had, now has, or hereafter can, shall, or may have, against the
Releasees, as set forth above, jointly or severally, for, upon, or
by reason of any matter, cause, or thing whatsoever from the
beginning of the world through, and including, the date of the
Agreement.
b. Such
release includes, but is not limited to, claims, causes of action,
or liabilities including but not limited to: compensatory claims of
back wages, front wages, or any other monetary claims arising under
the California Constitution, Title VII of the Civil Rights Act, (42
U.S.C. §2000e), the Americans with Disabilities Act (42 U.S.C.
§12100 et seq.), the Employee Retirement Income Security Act,
as amended, Equal Pay Act, Age Discrimination in Employment Act
(“ADEA”) (29 U.S.C. § 621-634), the Older
Workers’ Benefit Protection Act, the Rehabilitation Act of
1973, the National Labor Relations Act, the California Fair
Employment and Housing Act (Cal. Govt. Code §129300 et seq.),
the Fair Labor Standards Act, California Labor Code Sections 201,
202, 203, 22, 510, 1194, 1197 and 1198, or any other California or
federal statute or common law principle of similar effect,
including (without limitation) laws providing recourse for claims
based on age, sex, transgender status, gender identity and
expression, sexual orientation, sexual harassment, attainment of
benefit plan rights, race, color, genetic information, genetic
testing, religion, religious creed, national origin, ancestry
disability, physical disability, marital status, civil union
status, military status, veteran status, workplace hazards to
reproductive systems, or any legally protected status; including,
but not limited to harassment and/or retaliation on any basis, any
claims for compensation, leaves of absence, overtime pay, vacation
or other paid time off, incentives, bonus including any claims
pursuant to ERISA, the Fair Labor Standards Act, the Family Medical
Leave Act, and any law of the State of California and/or any local
ordinance, including but not limited to any claims for
attorneys’ fees and costs on any basis (“Claim”
or “Claims”); and/or
c.
Claims, actions, or causes of action whatsoever which Employee now
has, owns, or holds, or claims to have, own, or hold, or which
Employee at any time heretofore had, owned, or held, or claimed to
have, own, or hold, or which Employee at any time hereinafter may
have, own, or hold, or claim to have, own, or hold, against each or
any of the Releasees. In the event that Employee, his heirs,
executors, administrators, successors, or assigns attempts to
challenge, modify, reform, set aside, nullify or cancel this
Agreement for any reason, then the prevailing party in any such
litigation shall be entitled to reimbursement of all reasonable
attorneys’ fees and costs incurred in connection with
defending such claims.
d.
The Parties agree that to the extent, if any, Employee may have a
right to file or participate in a claim or charge against the
Company, which cannot be waived, this Agreement shall not be
intended to waive such a right. However, even if Employee has a
right to file or participate in a claim or charge against the
Company, he agrees that he/she shall not obtain, and hereby waives
his/her right to, any relief (legal, equitable, or other) from such
a claim or charge.
e. Employee
acknowledges, understands, and expressly consents that this
Agreement constitutes a full and final release of any person or
entity named in this Agreement, with respect to all claims,
demands, indemnity claims, actions, suits, liens, debts, damages,
warranty claims, and liabilities against the Company, arising from
or relating to Employee’s employment with the Company,
including those which are unknown and unanticipated as well as
those which are known and disclosed. In that respect, and with
regard to the Release contained herein, Employee expressly waives
all rights under Section 1542 of the Civil Code of California and any
similar law of any state or territory of the United States, 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.”
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f.
Employee understands and acknowledges that he/she was presented
with this Agreement on 11/20/18, and:
i.
Has been offered a period of twenty-one (21) days from the receipt
of this Agreement within which to consider acceptance of this
Agreement before executing it;
ii. Has
carefully read this Agreement and fully understands all of the
provisions of this Agreement and has agreed to accept all of the
terms contained therein without any pressure of coercion by the
Employer;
iii. By
this Agreement, Employee understands that he/she is releasing the
Releasees as defined in paragraph 4 of this Agreement from any and
all claims he/she may have against the Releasees;
iv. Knowingly
and voluntarily agrees to all of the terms set forth in this
Agreement;
v. Knowingly
and voluntarily intends to be legally bound by this
Agreement;
vi. Has
been advised to consult with an attorney of his/her choice prior to
executing this Agreement;
vii. Has
a full seven (7) calendar days following the execution of this
Agreement to revoke this Agreement and has been and is hereby
advised in writing that this Agreement shall not become effective
or enforceable until this revocation period has expired. Employee
will not receive any of the separation benefits until that
revocation period has expired. To revoke, Employee must send
written confirmation to Jordan X. Xxxxxxx (XxxxxxX@xxxxxxxxx.xxx)
within seven (7) calendar days expressly indicating his/her
revocation.
viii. Employee
agrees that any modifications, material or otherwise, made to this
agreement and general release do not restart or affect in any
manner the original seven (7) day consideration
period.
g. Employee
agrees that the Agreement does not constitute any admission by the
Company that any personnel action it took with respect to the
Employee was wrongful, unlawful, tortious, in contravention to the
laws or public policies of the State of California, in breach of
any written or oral contract, or in violation of any federal
statute, regulation, and/or constitutional provision.
5. Confidentiality.
a. Employee
acknowledges and agrees that during his/her employment with the
Company he/she had access to and gained knowledge of certain
Company and client confidential information which he/she agrees to
keep confidential including: matters pertaining to clients,
products, financial, IT and policy issues pertaining to the
Company, and information relating to current and former employees
of the Company. Disclosure of any such information in any form and
any attempts to access such information (unless specifically
authorized by the Company) is considered a breach of this
Agreement.
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b. Employee
agrees to immediately return to the Company all Company property
and information in his/her possession including, but not limited
to: Company reports, customer lists, supplier lists, consultant
lists, formulas, files, manuals, memoranda, computer equipment,
access codes, discs, software, and any other Company business
information or records, in any form in which they are maintained,
including records or information regarding Company customers,
suppliers and vendors, and Company products and product
development, and agrees that he/she will not retain any copies,
duplicates, reproductions, or excerpts thereof in any form.
Employee further agrees that he/she will not, in any manner, make
use of any Company property and information in any future dealings,
business or otherwise, and acknowledges that any use of Company
property and information in any future dealings, business or
otherwise, would constitute a breach of the Agreement.
c. Employee
agrees that he/she will not disclose, directly or indirectly, the
underlying facts that led up to the Agreement or the terms or
existence of the Agreement. Employee represents that he/she has not
and will not, in any way, publicize the terms of the Agreement and
agrees that its terms are confidential and will not be disclosed by
him/her except that he may discuss the terms of the Agreement with
his/her attorneys, financial advisors, accountants, and members of
hi/hers immediate family, or as required by law. Employee
understands and agrees that should he violate the provision of the
Agreement, he/she will be responsible to the Company for liquidated
damages in the amount of any and all funds payable pursuant to the
Agreement and understands that such monetary relief shall not be a
bar to the Company’s pursuit of injunctive
relief.
d.
Employee acknowledges that any breach of Section 6 of the Agreement
would cause irreparable injury to the Company for which there is no
adequate remedy at law. In addition to any remedies that may be
available to the Company in the event of a breach or threatened
breach of Section 6 of the Agreement by Employee, including
monetary damages, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary or permanent
injunction which would prevent Employee from violating or
attempting to violate the provisions of this section of the
Agreement. In seeking such an order, any requirement to post a bond
or other undertaking shall be waived. In any such action, the
Company shall be entitled to an award of all reasonable costs and
fees incurred in bringing such an action, including reasonable
attorney’s fees.
6.
Non-disparagement. Employee represents
and agrees that he/she shall refrain from making any written or
oral statements to any person or entity with whom the Company or
Employee has had or may have a business or social relationship
which may reasonably be expected to impugn or degrade the
character, integrity, ethics or business practices of the Company,
its affiliates, employees, directors, officers, agents,
representatives or clients, or which may reasonably be expected to
damage the business, image or reputation of the Company, its
affiliates, employees, directors, officers, agents,
representatives, or clients.
7. Non-Solicitation of Company
Employees. As
a condition for the Separation Benefits in Section 2 above,
Employee will preserve the confidentiality of all trade secrets and
other confidential information of the Company as described above.
Further, Employee will not now nor at any time in the future
disrupt, damage, impair or interfere with the business of the
Company whether by way of interfering with or raiding its
employees, disrupting its relationships with customers, agents,
representatives or vendors or otherwise. Specifically, Employee is
barred from hiring, directly or indirectly, or assisting in the
hiring of any ChromaDex employee for a period of three (3)
years.
9. Future Cooperation. Employee agrees to
reasonably cooperate with the Company, its financial and legal
advisors, in connection with any business matters for which the
Employee’s assistance may be required and in any claims,
investigations, administrative proceedings or lawsuits which relate
to the Company and for which Employee may possess relevant
knowledge or information. Any travel and accommodation expenses
incurred by the Employee as a result of such cooperation will be
reimbursed in accordance with the Company’s standard
policies.
10.
Applicable Law and Jurisdiction. The
Agreement shall be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of
law principles. Any dispute regarding the Agreement or related to
the Employee’s employment with the Company shall be resolved
in the Courts located in Orange County, California, without a jury
(which is hereby expressly waived).
11.
Entire Agreement. The Agreement may not
be changed or altered, except by a writing signed by both parties.
Until such time as the Agreement has been executed and subscribed
by both parties hereto: (i) its terms and conditions and any
discussions relating thereto, without any exception whatsoever,
shall not be binding nor enforceable for any purpose upon any
party; and (ii) no provision contained herein shall be construed as
an inducement to act or to withhold an action, or be relied upon as
such. The Agreement constitutes an integrated, written contract,
expressing the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes
any and all prior agreements and understandings, oral or written,
between the parties, including the Employment Agreement, except as
otherwise provided herein.
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12. Non-Assignment.
Employee has not assigned or transferred any claim he/she is
releasing, nor has he/she purported to do so. If any provision in
the Agreement is found to be unenforceable, all other provisions
will remain fully enforceable.
13. Binding
Effect.
This Agreement shall be binding upon Employee and upon his/her
heirs, administrators, representatives, executors, successors and
assigns, and shall be binding upon an inure to the benefit of
Releasees and each of them, and to their heirs, administrators,
representatives, executors, successors, and assigns.
14. Severability. Should
any provision of this Agreement be declared or be determined by any
court of competent jurisdiction to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be
affected thereby, and said illegal or invalid part, term, or
provision shall not be a part of this Agreement. The parties
expressly empower a court of competent jurisdiction to modify any
term or provision of this Agreement to the extent necessary to
comply with existing law and to enforce the Agreement as
modified.
15. Acknowledgement.
Employee acknowledges and agrees that he/she has carefully read and
fully understands all of the provisions of this Agreement. Employee
voluntarily enters into this Agreement by signing this Agreement
below.
IN WITNESS WHEREOF, the Parties hereto
have duly executed this Agreement as of the date entered
below.
CHROMADEX,
INC.
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
By
General Counsel & Secretary
Date:
11/19/2018
Employee
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Date:
11/20/2018
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