January 10, 2020
Exhibit 10.1
January
10, 2020
Xxxx
Xxxxxxxxxx
HAND
DELIVERED
Dear
Xxxx,
This
letter sets forth the terms and conditions of our agreement
("Agreement") regarding the separation of your employment with
ChromaDex Corporation and its subsidiaries, including ChromaDex,
Inc. (collectively, the "Company"). This Agreement will become
effective on the Effective Date as defined in Section 9 herein.
Capitalized terms that are used in this Agreement, but not defined
herein, shall have the meanings ascribed to them in the Executive
Employment Agreement between you and the Company, dated June 1,
2018 (the "Employment Agreement").
You and
the Company hereby agree as follows:
1.
SEPARATION. You and the Company agree that your Employment
Agreement is terminated effective January 10, 2020 (the "Separation
Date).
2.
SEPARATION BENEFITS. In accordance with Section 8 of the Employment
Agreement, which is hereby amended to specify the timing for when
you must execute the waiver and release of claims contained herein,
in exchange for your covenants and releases herein, and provided
that you sign this Agreement not later than 21 days after it is
delivered to you and this Agreement becomes effective as specified
in Section 8 below, the Company will provide you with the following
separation benefits.
(a)
Base Salary Continuation. The Company will provide you with
continuation of your current base salary for a period of twelve
(12) months (the "Base Salary Payments), less required payroll
deductions and tax withholdings. Base Salary Payments will commence
on the first payroll pay date following the Effective Date and
shall be paid in accordance with the Company's payroll schedule
then in effect.
(b)
Accrued Vacation. Payment for any accrued but unused vacation will
be paid on the Separation Date.
(c)
Benefit Coverage. Provided that you timely elect COBRA medical
and/or dental insurance continuation coverage, the Company will pay
one hundred percent of the premium cost of such coverage for a
period of twelve (12) months following the Separation Date, or
until such time as you are no longer eligible for COBRA
continuation coverage, whichever comes first. Notwithstanding the
foregoing, if at any time the Company determines, in its sole
discretion, that its payment of COBRA premiums on your behalf would
result in a violation of applicable law (including, without
limitation, Section 2716 of the Public Health Service Act), then in
lieu of paying COBRA premiums on your behalf, the Company will pay
you a fully taxable cash payment equal to the COBRA premium for
that month, subject to applicable tax withholding (such amount, the
"Special Severance Payment"), such Special Severance Payment to be
made without regard to your payment of COBRA premiums.
(d)
Treatment of Options. Notwithstanding anything to the contrary set
forth in the Equity Incentive Plan of ChromaDex Corp., effective as
of the Separation Date, the vesting and exercisability of the any
then unvested time-based vesting equity awards that would have
otherwise become vested had you performed continuous service
through the one year anniversary of the Separation Date then held
by you shall accelerate and become immediately vested and
exercisable, where applicable, by you upon your termination. With
respect to any performance-based vesting equity award, such award
shall continue to be governed in all respects by the terms of the
applicable equity award documents. Notwithstanding any provision of
the Plan or any other agreement between you and the Company or any
other party to the contrary, the Company agrees that you shall have
the unqualified right to exercise any of the vested options for a
period of three (3) years from the Separation Date. You and the Company agree and acknowledge that
through the Equity Incentive Plan of ChromaDex Corp., you presently
maintain 199,494 shares of the Company.
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(e) Tax
Withholding. All compensation described in this Section 2 will be
subject to the Company's collection of all applicable federal,
state and local income and employment withholding taxes. The
Company makes no representation regarding the federal or state tax
consequences of the compensation described in this Section 2. You
understand and agree that the Company shall not be responsible for
any tax liabilities, interest or
penalties
under state or federal law with respect to the compensation
described in this Section 2. You will indemnify and hold the
Company harmless as to any tax liabilities relating to or arising
from your failure to properly report or pay taxes on the
compensation described in this Section 2. You understand and agree
that you will be responsible for the payment of any and all
applicable state and federal taxes with respect to the compensation
described in this Section 2 and shall indemnify and hold harmless
the Company with respect to the payment of any and all such taxes.
Regardless of the determination by any taxing authority as to the
characterization of the payment, this Agreement shall not be
invalidated as a result thereof since the Company and its attorneys
are not guaranteeing or warranting any ultimate tax treatment of
the sum paid.
(f)
Final Expense Report. You shall submit a final expense report on or
before the Separation Date for business expenses incurred through
the Separation Date, in such a form as required by the Company's
standard practices and procedures. Reimbursement for any such
approved expenses will be made to you within thirty (30) days after
receipt of the expense report.
3.
OTHER COMPENSATION AND BENEFITS. Except as expressly provided
herein, you acknowledge and agree that you are not entitled to and
will not receive any additional compensation, wages, reimbursement,
severance, or benefits from the Company.
4.
COMPANY PROPERTY. You represent and confirm that no later than the
Separation Date you will return to the Company all Company
documents (and all copies thereof) and other property of the
Company in your possession or control, including, but not limited
to, computer security access, files, business plans, notes,
financial information, financial information, data,
computer-recorded information, tangible property, including entry
cards, keys and any other materials of any nature pertaining to
your work with the Company, and any documents or data of any
description (or any reproduction of any documents or data)
containing or pertaining to any proprietary or confidential
material of the Company; provided that you shall be permitted to
retain copies of documents relating to the terms and conditions of
your employment with the Company (for example, copies of Stock
Option Agreements). You must comply with this Section 4 in order to
receive the benefits specified in section 2 hereof.
5.
CONFIDENTIALITY OBLIGATIONS. You acknowledge the Employee
Confidential Information and Invention Assignment Agreement between
yourself and the Company dated June 4, 2018 (the "Confidential
Agreement"). You represent that you have complied with and will
continue to comply with the terms of the Confidential Agreement,
and you acknowledge that such representation is a material
inducement to the Company to enter into this
Agreement.
6.
NON-DISPARAGEMENT; INQUIRIES. You shall not make any disparaging
comments or statements about the Company, its services, its
products, its work, the members of its Board of Directors, or
executive management. The Company agrees that members of its Board
of Directors and its executive management team shall not make any
disparaging comments or statements about you. Any language
regarding your separation from the Company within any forthcoming
internal announcement or externl press release shall be
mutually
agreed
upon prior to release with both parties agreeing to act reasonably,
with the exception of disclosures required by law. The Company will
follow its standard neutral reference policy in response to any
inquiries regarding you from prospective employers, i.e., only
dates of employment and position(s) held will be
disclosed.
7.
INJUNCTIVE RELIEF. The parties agree that any remedy at law will be
inadequate for any breach by you or the Company of the covenants
under Sections 4, 5, and 6 of this Agreement and that each Party
shall be entitled to an injunction both preliminary and final, and
any other appropriate equitable relief to enforce her or its
rights
set
forth in these Sections. Such remedies shall be cumulative and
non-exclusive, being in addition to any and all other remedies
either Party may have.
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8.
RELEASE OF CLAIMS.
(a)
General Release. In exchange for the consideration provided to you
under this Agreement to which you would not otherwise be entitled,
including but not limited to the Separation Benefits, you hereby
generally and completely release the Company and its current and
former directors, officers, employees, shareholders,
partners,
agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, investors and assigns
(collectively, the "Released Parties") of and from any and all
claims, liabilities and obligations, both known and known, that
arise out of or are in any way related to events, acts, conduct, or
omissions occurring prior to or on the date you sign this Agreement
(collectively, the "Released Claims").
(b)
Scope of Release. The Released Claims include, but are not limited
to: (i) all claims arising out of or in any way related to your
employment with the Company, or the termination of your employment;
(ii) all claims related to your compensation or benefits from the
Company, including salary, bonuses, commissions, vacation pay,
expense reimbursements, severance pay, fringe benefits, stock,
stock options, or any other ownership interests in the Company;
(iii) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (iv)
all tort claims, including claims for fraud, defamation, emotional
distress, wrongful termination, and discharge in violation of
public policy; and (v) all federal, state, and local statutory
claims, including claims for discrimination, harassment,
retaliation, attorneys' fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the Age Discrimination in
Employment Act ("ADEA"), the federal Family and Medical Leave Act
(as amended) ("FMLA"), the California Family Rights Act ("CFRA"),
the California Labor Code (as amended), the California Xxxxx Act,
and the California Fair Employment and Housing Act (as
amended).
(c)
Excluded Claims. Notwithstanding the foregoing, the following are
not included in the Released Claims (the "Excluded Claims"): (i)
any rights or claims which are not waivable as a matter of law;
(iii) any claims for breach of this Agreement; and (ii) any rights
or claims to coverage under insurance policies maintained by the
Company for directors, executives, and/or officers. In addition,
although nothing herein prevents you from filing a claim or charge
with, cooperating with, or participating in any proceeding before
the Equal Employment Opportunity Commission, the National Labor
Relations Board, the Department of Labor, or any other local,
state, or federal agency, you hereby waive your right to receive
any monetary or other benefits in connection with any such claim,
charge or proceeding. You represent and warrant that, other than
the Excluded Claims, you are not aware of any claims you have or
might have against any of the Released Parties that are not
included in the Released Claims.
(d)
Acknowledgements. You acknowledge that (i) the consideration given
to you in exchange for the waiver and release in this Agreement is
in addition to anything of value to which you were already
entitled; (ii) that you have been paid for all time worked , have
received all the leave, leaves of absence and leave benefits and
protections for which you are eligible, and have not suffered any
on-the-job injury for which you have not already filed a claim;
(iii) you have been given sufficient time to consider this
Agreement and to consult an attorney or advisor of your choosing;
and (iv) you are knowingly and voluntarily executing this Agreement
waiving and releasing any claims you may have as of the date you
execute it.
9. ADEA
WAIVER. You knowingly and voluntarily waive and release any rights
you may have under the ADEA (defined above). You also acknowledge
that the consideration given for your releases in this Agreement is
in addition to anything of value to which you were already
entitled. You are advised by this writing that: (a) your waiver and
release do not apply to any claims that may arise after you sign
this Agreement; (b) you should consult with an attorney prior to
executing this Agreement; (c) you have twenty-one (21) days within
which to
consider
this Agreement (although you may choose to voluntarily execute this
Agreement earlier); (d) you have seven (7) days following the
execution of this Agreement to revoke this Agreement; and (e) this
Agreement will not be effective until the eighth day after you sign
this Agreement, provided that you have not earlier revoked this
Agreement (the "Effective Date"). You will not be entitled to
receive any of the benefits specified by this Agreement unless and
until it becomes effective.
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10.
SECTION 1542 WAIVER. In giving the applicable releases set forth
herein, which include claims which may be unknown at present, you
acknowledge that you have read and understand Section 1542 of the
Civil Code of the State of California which reads as
follows:
A
general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her
favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement
with the debtor or released party.
You
expressly waive and relinquish all rights and benefits under this
section and any law or legal principle of similar effect in any
jurisdiction with respect to claims released hereby.
11. NO
ADMISSIONS. The parties hereto hereby acknowledge that this is a
compromise settlement of various matters, and that the promised
payments in consideration of this Agreement shall not be construed
to be an admission of any liability or obligation by either party
to the other party or to any other person whomsoever.
12.
ENTIRE AGREEMENT. This Agreement constitutes the complete, final
and exclusive embodiment of the entire Agreement between you and
the Company with regard to the subject matter hereof. It is entered
into without reliance on any promise or representation, written or
oral, other than those expressly contained herein. It may not be
modified except in writing signed by you and the Chief Executive
Officer of the Company. Each party has carefully read this
Agreement, has been afforded the opportunity to be advised of its
meaning and consequences by his or its respective attorneys, and
signed the same of his or its free will.
13.
SUCCESSORS AND ASSIGNS. This Agreement shall bind the heirs,
personal representatives, successors, assigns, executors, and
administrators of each party, and inure to the benefit of each
party, its agents, directors, officers, employees, servants, heirs,
successors and assigns.
14.
APPLICABLE LAW. This Agreement shall be deemed to have been entered
into and shall be construed and enforced in accordance with the
laws of the State of California as applied to contracts made and to
be performed entirely within California.
15.
SEVERABILITY. If a court or arbitrator of competent jurisdiction
determines that any term or provision of this Agreement is invalid
or unenforceable, in whole or in part, the remaining terms and
provisions hereof shall be unimpaired. Such court or arbitrator
will have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term
or provision that most accurately represents the parties' intention
with respect to the invalid or unenforceable term or
provision.
16.
INDEMNIFICATION. You will indemnify and save harmless the Company
from any loss incurred directly or indirectly by reason of the
falsity or inaccuracy of any representation made by you herein. The
Company will indemnify and save harmless you from any loss incurred
directly or indirectly by reason of the falsity or inaccuracy of
any representation made by it herein.
17.
AUTHORIZATION. You and the Company warrant and represent that there
are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action
released herein and, further, that each of them are fully entitled
and duly authorized to give their complete and final general
release and discharge.
18.
COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, all of which together
shall constitute one and the same instrument.
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19.
SECTION HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this
Agreement.
20.
PHOTOCOPIES. A photocopy of this executed Agreement shall be as
valid, binding, and effective as the original
Agreement.
21.
DEADLINE. This offer shall remain open to you until 5:00 p.m.
Pacific Standard Time on the twenty-first day following the
delivery of this Agreement to you (the "Expiration Date"). If you
have not signed and returned this Agreement by the Expiration Date,
this offer will automatically lapse and be null and
void.
Please
confirm your assent to the foregoing terms and conditions of our
Agreement by signing below and returning the signed Agreement Xxxxx
Xxxxx.
Sincerely,
CHROMADEX
CORPORATION
/s/ Xxx Xxxxx
By: Xxx
Xxxxx, CEO
Having
read and reviewed the foregoing, I hereby agree to and accept the
terms and conditions of this Agreement as stated
above.
/s/ Xxxx
Xxxxxxxxxx
1/10/2020
Xxxx
Xxxxxxxxxx
Date
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