UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended April 3, 2010
Commission File Number: 000-53290
CHROMADEX CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware | 26-2940963 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
10005 Muirlands Blvd Suite G, Irvine, California | 92618 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (949)-429-0288
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, accelerated filer, non-accelerated filer or smaller reporting company. See definition of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨ |
Accelerated filer ¨ | |
Non-accelerated filer ¨ |
Smaller reporting company x |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
Number of shares of common stock of the registrant: 28,950,346 outstanding as of May 17, 2010.
CHROMADEX CORPORATION
2010 QUARTERLY REPORT ON FORM 10-Q
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PART IFINANCIAL INFORMATION (UNAUDITED)
ITEM 1. | FINANCIAL STATEMENTS |
ChromaDex Corporation and Subsidiaries
Consolidated Balance Sheets (Unaudited)
April 3, 2010 and January 2, 2010
April 3, 2010 | January 2, 2010 | |||||||
Assets |
||||||||
Current Assets |
||||||||
Cash |
$ | 538,675 | $ | 471,378 | ||||
Trade receivables, net |
768,517 | 497,928 | ||||||
Inventories |
987,579 | 922,760 | ||||||
Prepaid expenses and other assets |
176,162 | 115,794 | ||||||
Total current assets |
2,470,933 | 2,007,860 | ||||||
Leasehold Improvements and Equipment, net |
1,450,033 | 1,203,431 | ||||||
Deposits and Other Noncurrent Assets |
||||||||
Deposits |
32,227 | 32,227 | ||||||
Intangible assets, net |
333,601 | 321,490 | ||||||
365,828 | 353,717 | |||||||
$ | 4,286,794 | $ | 3,565,008 | |||||
Liabilities and Stockholders Equity |
||||||||
Current Liabilities |
||||||||
Accounts payable |
$ | 878,605 | $ | 548,310 | ||||
Accrued expenses |
340,347 | 270,250 | ||||||
Current maturities of capital lease obligations |
70,750 | 28,430 | ||||||
Due to officers |
1,178,206 | 1,178,206 | ||||||
Customer deposits and other |
109,987 | 126,518 | ||||||
Total current liabilities |
2,577,895 | 2,151,714 | ||||||
Capital lease obligations, less current maturities |
258,023 | 45,868 | ||||||
Deferred rent |
318,082 | 319,973 | ||||||
Stockholders Equity |
||||||||
Common stock, $.001 par value; authorized 50,000,000 shares; issued and outstanding April 3, 2010 and January 2, 2010 28,838,216 shares |
28,838 | 28,838 | ||||||
Additional paid-in capital |
9,177,740 | 9,126,141 | ||||||
Accumulated deficit |
(8,073,784 | ) | (8,107,526 | ) | ||||
1,132,794 | 1,047,453 | |||||||
$ | 4,286,794 | $ | 3,565,008 | |||||
See Notes to Consolidated Financial Statements.
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ChromaDex Corporation and Subsidiaries
Consolidated Statements of Operations (Unaudited)
For the Three Month Periods ending April 3, 2010 and April 4, 2009
Three Months Ended | ||||||||
April 3, 2010 | April 4, 2009 | |||||||
Sales |
$ | 1,937,592 | $ | 1,447,127 | ||||
Cost of sales |
1,119,619 | 979,054 | ||||||
Gross profit |
817,973 | 468,073 | ||||||
Operating expenses: |
||||||||
Sales and marketing |
224,619 | 221,622 | ||||||
General and administrative |
554,033 | 566,643 | ||||||
778,652 | 788,265 | |||||||
Operating income (loss) |
39,321 | (320,192 | ) | |||||
Nonoperating (income) expenses: |
||||||||
Interest expense |
5,699 | 5,245 | ||||||
Interest income |
(120 | ) | (1,595 | ) | ||||
5,579 | 3,650 | |||||||
Net income (loss) |
$ | 33,742 | $ | (323,842 | ) | |||
Basic and Diluted income (loss) per common share |
$ | 0.00 | $ | (0.01 | ) | |||
Basic and Diluted average common shares outstanding |
28,838,216 | 28,838,216 | ||||||
See Notes to Consolidated Financial Statements.
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ChromaDex Corporation and Subsidiaries
Consolidated Statements of Cash Flows (Unaudited)
For the Three Month Periods ending April 3, 2010 and April 4, 2009
Three Months Ended | ||||||||
April 3, 2010 | April 4, 2009 | |||||||
Cash Flows From Operating Activities |
||||||||
Net income (loss) |
$ | 33,742 | $ | (323,842 | ) | |||
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: |
||||||||
Depreciation |
74,633 | 67,926 | ||||||
Amortization of intangibles |
17,889 | 30,958 | ||||||
Share-based compensation expense |
51,599 | 46,962 | ||||||
Changes in operating assets and liabilities: |
||||||||
Trade receivables |
(270,589 | ) | (105,318 | ) | ||||
Inventories |
(64,819 | ) | (81,305 | ) | ||||
Prepaid expenses and other assets |
(60,368 | ) | 18,878 | |||||
Accounts payable |
330,295 | 53,864 | ||||||
Accrued expenses |
70,097 | 31,936 | ||||||
Customer deposits and other |
(16,531 | ) | 17,288 | |||||
Deferred rent |
(1,891 | ) | (8,658 | ) | ||||
Net cash provided by (used in) operating activities |
164,057 | (251,311 | ) | |||||
Cash Flows From Investing Activities |
||||||||
Purchases of leasehold improvements and equipment |
(56,277 | ) | (11,061 | ) | ||||
Purchase of intangible assets |
(30,000 | ) | | |||||
Net cash (used in) investing activities |
(86,277 | ) | (11,061 | ) | ||||
Cash Flows From Financing Activities |
||||||||
Principal payments on capital leases |
(10,483 | ) | (20,144 | ) | ||||
Net cash (used in) financing activities |
(10,483 | ) | (20,144 | ) | ||||
Net increase (decrease) in cash |
67,297 | (282,516 | ) | |||||
Cash: |
||||||||
Beginning |
471,378 | 1,125,504 | ||||||
Ending |
$ | 538,675 | $ | 842,988 | ||||
Supplemental Disclosures of Cash Flow Information |
||||||||
Cash payments for interest |
$ | 5,699 | $ | 5,245 | ||||
Supplemental Schedule of Noncash Investing Activity |
||||||||
Capital lease obligation incurred for the purchase of equipment |
$ | 264,958 | $ | |
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ChromaDex Corporation and Subsidiaries
Notes to Consolidated Financial Statements (Unaudited)
Note 1. Interim Financial Statements
The accompanying financial statements of ChromaDex Corporation and its wholly owned subsidiaries, ChromaDex, Inc. and ChromaDex Analytics, Inc. (the Company) include all adjustments, consisting of normal recurring adjustments and accruals, that in the opinion of the management of the Company are necessary for a fair presentation of our financial position as of April 3, 2010 and results of operations and cash flows for the three months ended April 3, 2010 and April 4, 2009. These unaudited interim financial statements should be read in conjunction with the Companys audited financial statements and the notes thereto for the year ended January 2, 2010 appearing in the Companys Annual Report on Form 10-K filed with the Commission on March 31, 2010 and as amended by the Form 10-K/A filed with the Commission on April 30, 2010. Operating results for the three months ended April 3, 2010 are not necessarily indicative of the results to be achieved for the full year ending on January 1, 2011. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the period. Actual results could differ from those estimates.
Note 2. Nature of Business and Significant Accounting Policies
Nature of business : The Company creates and supplies botanical reference standards along with related phytochemical products and services. The Companys main priority is to create industry-accepted information, and to provide products and services to every layer of the functional food, pharmaceutical, personal care and dietary supplement markets. The Company provides these services at various terms with payment terms of primarily net 30 days.
Basis of presentation : The financial statements and accompanying notes have been prepared on a consolidated basis and reflect the consolidated financial position of the Company and its wholly owned subsidiaries. All significant intercompany balances and transactions have been eliminated from these financial statements. The Companys fiscal year ends on the Saturday closest to December 31 and the Companys normal fiscal quarters end on the Saturday 13 weeks after the last fiscal year end or fiscal quarter end. Every fifth or sixth fiscal year, the inclusion of an extra week occurs due to the Companys floating year-end date. The fiscal year 2014 will include 53 weeks instead of the normal 52 weeks.
Earnings per share : Potentially dilutive common shares consist of the incremental common shares issuable upon the exercise of common stock options and warrants for all periods. For the periods ended April 3, 2010 and April 4, 2009, the basic and diluted shares reported are equal because the common share equivalents are anti-dilutive due to the higher exercise prices than the market price of the shares for the period ended April 3, 2010 and for the period ended April 4, 2009. Due to options and warrants being out of the money, there are no potentially dilutive securities for the periods ended April 3, 2010 and April 4, 2009.
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Note 3. Leasehold Improvements and Equipment
Leasehold improvements and equipment consisted of the following:
April 3, 2010 | January 2, 2010 | |||||
Laboratory equipment |
$ | 2,330,933 | $ | 2,063,860 | ||
Leasehold improvements |
337,684 | 332,702 | ||||
Computer equipment |
209,916 | 208,499 | ||||
Furniture and fixtures |
15,308 | 15,308 | ||||
Office equipment |
3,445 | 3,445 | ||||
Construction in progress |
133,794 | 86,031 | ||||
3,031,080 | 2,709,845 | |||||
Less accumulated depreciation |
1,581,047 | 1,506,414 | ||||
$ | 1,450,033 | $ | 1,203,431 | |||
Note 4. Share-based Compensation
Note 5. Managements Plans for Continuing Operations
The Company has earned a net profit of $33,742 for the three month period ended April 3, 2010 and it incurred a net loss of $907,568 for the year ended January 2, 2010. The profit for the three month period ended April 3, 2010 is due to an increase in sales coupled with a decrease in labor and a decrease in overhead costs as a percentage of sales. The Company expects that as sales continue to grow, labor and overhead costs as a percentage of sales will continue to decrease as future growth in Net Sales will likely require lower direct labor and variable overhead costs. Managements anticipation of future growth is largely related to the Food and Drug Administrations (FDAs) guideline releases in the dietary supplement industry and the markets trend towards green chemistry in the food and cosmetic sector. The Company has implemented a comprehensive marketing plan design targeted on leveraging its capabilities concurrent with the FDAs guideline releases. The Company has also expanded its marketing plan to target the pharmaceutical and cosmetic sectors to support the reference standards, analytical services and discovery libraries product lines. In addition, the Companys new line of bulk raw food grade material is expect to contribute to the Net Sales growth, but at a lower gross margin.
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Subsequent to the period ended April 3, 2010, the Company entered into a Subscription Agreement with certain investors to issue and sell, in a private placement transaction, an aggregate of 26,249,983 newly issued shares of the Companys common stock for an aggregate purchase price of $3,674,998 or $0.14 per share. The Company has also agreed to issue 26,249,983 warrants to purchase Company common stock at an exercise price of $0.21 per share. More information regarding this capital raise is set forth in Note 6. Subsequent Events of this Quarterly Report on Form 10-Q. The Company believes this capital to be raised will be sufficient to implement its current business plan through December, 2011. However, if the Company determines that it needs additional financing to further enable its long-term strategic objectives, there can be no assurance that it will be available on terms favorable to it or at all. If adequate financing is not available, the Company may have to delay, postpone or terminate product and service expansion and curtail general and administrative operations in order to maintain sufficient operating capital after December, 2011. The inability to raise additional financing may have a material adverse effect on the future performance of the Company.
Note 6. Subsequent Events
On April 22, 2010, the Company entered into a Subscription Agreement (the Subscription Agreement) with certain investors named therein (the Subscribers). Under the terms of the Subscription Agreement, the Company has agreed to issue and sell to the Subscribers, in a private placement transaction (the Private Placement), an aggregate of 26,249,983 newly issued shares (the Private Placement Shares) of the Companys common stock for an aggregate purchase price of $3,674,998 or $0.14 per share. The Company has also agreed to issue to each Subscriber an immediately exercisable warrant (collectively, the Warrants) to purchase Company common stock (collectively, the Warrant Shares) equal to the number of Private Placement Shares purchased by such Subscriber at an exercise price of $0.21 per share. Assuming the full exercise of the Warrants for cash, the Company would receive additional proceeds of $5,512,496, for an aggregate of $9,187,494 in proceeds from the purchase of the Private Placement Shares and the exercise of the Warrants. There is no guarantee that transactions contemplated by the Subscription Agreement will be consummated or that, if consummated, the Subscribers will exercise any of the Warrants and the Company will not receive any proceeds from any of the Warrants until they are exercised. The closing of the Private Placement is subject to, among other conditions, receipt of stockholder approval of an amendment to the Companys certificate of incorporation, as amended, to increase the number of authorized common stock from 50 million to 150 million shares (the Stockholder Approval Condition). If approved, the Warrants to purchase 26,249,983 shares of common stock will be issued at an exercise price of $0.21 per share and will be valued for accounting purposes at the closing. More information regarding this Subscription Agreement is set forth in Current Report on Form 8-K filed with the Commission on April 26, 2010. The full details of the Subscription Agreement and the Private Placement are not summarized in this Quarterly Report on Form 10-Q, and the Company refers you to the full Form 8-K filed with the Commission on April 26, 2010 for additional information about the Private Placement.
On May 4, 2010, the Company filed with the Commission a definitive proxy statement relating to its 2010 annual meeting of stockholders, including proposals on (i) the Stockholder Approval Condition and (ii) certain amendments to the Companys Second Amended and Restated 2007 Equity Incentive Plan to increase the number of shares of the Companys common stock reserved for issuance under such plan.
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ITEM 2. | MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
GENERAL
This Quarterly Report on Form 10-Q (the Form 10-Q) contains forward-looking statements, as defined in Section 21E of the Securities Exchange Act of 1934, as amended. These statements reflect the Companys current expectations of the future results of its operations, performance and achievements. Forward-looking statements are covered under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The Company has tried, wherever possible, to identify these statements by using words such as anticipates, believes, estimates, expects, plans, intends and similar expressions. These statements reflect managements current beliefs and are based on information now available to it. Accordingly, these statements are subject to certain risks, uncertainties and contingencies that could cause the Companys actual results, performance or achievements in 2010 and beyond to differ materially from those expressed in, or implied by, such statements. Such statements, include, but are not limited to, statements contained in this Form 10-Q relating to our business, financial performance, business strategy, recently announced transactions and capital outlook. Important factors that could cause actual results to differ materially from those in the forward looking statements include, a continued decline in general economic conditions nationally and internationally, inability for us to complete the transactions contemplated by the Subscription Agreement; decreased demand for our products and services; market acceptance of our products; the ability to protect our intellectual property rights; impact of any litigation or infringement actions brought against us; competition from other providers and products; risks in product development; inability to raise capital to fund continuing operations; changes in government regulation, the ability to complete customer transactions and capital raising transactions, and other factors (including the risks contained in the section of this report entitled Risk Factors) relating to our industry, our operations and results of operations and any businesses that may be acquired by us. Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned. Additional risks, uncertainties, factors and other risks are set forth under Item 1A Risk Factors in the Companys Annual Report on Form 10-K filed with the Commission on March 31, 2010, as amended by the Form 10-K Amendment filed with the Commission on April 30, 2010, and in future reports the Company files with the Commission. Readers of this Form 10-Q should not place undue reliance on any forward-looking statements. Except as required by federal securities laws, the Company undertakes no obligation to update or revise these forward-looking statements to reflect new events or uncertainties.
You should read the following discussion and analysis of the financial condition and results of operations of ChromaDex together with the financial statements and the related notes presented in Item 1 of this report.
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Overview
ChromaDex Corporation and its subsidiaries (collectively, ChromaDex, or the Company) supplies phytochemical reference standards and reference materials, related contract services, and products for the dietary supplement, nutraceutical, food and beverage, functional food, pharmaceutical and cosmetic markets. Our business strategy is to identify, acquire, reduce-to-practice, and commercialize innovative new natural products and green chemistry (environmentally safe) technologies, with an initial industry focus on the dietary supplement, cosmetic, food and beverage markets, as well as novel pharmaceuticals. We plan to utilize our experienced management team to commercialize these natural product technologies by advancing them through the proper regulatory approval processes, arranging for reliable and cost-effective manufacturing, and ultimately either selling or licensing the product lines to third parties and customers.
The discussion and analysis of our financial condition and results of operations are based on the Companys financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles. The preparation of these financial statements requires making estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported revenues, if any, and expenses during the reporting periods. On an ongoing basis, we evaluate such estimates and judgments, including those described in greater detail below. We base our estimates on historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
We believe that our current cash, cash equivalents and cash generated from operations, and the capital to be raised pursuant to the Subscription Agreement entered into the by the Company on April 22, 2010 (see Liquidity and Capital Resources in Item 2 of this Form 10-Q) will be sufficient to meet our projected operating plans through December, 2011. We may, however, seek additional capital prior to the end of December, 2011 both to meet our projected operating plans after December, 2011 and to fund our longer term strategic objectives. To the extent we are unable to raise additional cash or generate sufficient net income prior to December, 2011 to meet our projected operating plans, or are unable to consummate the transactions contemplated by the Subscription Agreement, we will revise our projected operating plans accordingly. Additional capital may come from public and private stock or debt offerings, borrowings under lines of credit or other sources. These additional funds may not be available on favorable terms, or at all. Furthermore, if we issue equity or debt securities to raise additional funds, our existing stockholders may experience dilution and the new equity or debt securities we issue may have rights, preferences and privileges senior to those of our existing stockholders. In addition, if we raise additional funds through collaboration, licensing or other similar arrangements, it may be necessary to relinquish valuable rights to our products or proprietary technologies, or grant licenses on terms that are not favorable to us. If we cannot raise funds on acceptable terms, we may not be able to develop or enhance our products, obtain the required regulatory clearances or approvals, achieve long term strategic objectives, take advantage of future opportunities, or respond to competitive pressures or unanticipated customer requirements. Any of these events could adversely affect our ability to achieve our development and commercialization goals, which could have a material and adverse effect on our business, results of operations and financial condition. If we are unable to establish small to medium scale production capabilities through our own plant or though a collaboration we may be unable to fulfill our customers requirements. This may cause a loss of future revenue streams as well as require us to look for third party vendors to provide these services. These vendors may not be available, or charge fees that prevent us from pricing competitively within our markets.
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The FDA is currently in the process of starting to regulate the dietary supplement market under the new Good Manufacturing Practices (GMPs). The GMPs call for a three year phase in period and as of June, 2009, both large and medium manufacturers are held accountable under these new regulations. In June, 2010, small manufacturers will be held accountable as well. At this time, it is unknown to what extent the FDA will enforce the regulations and how they will be interpreted upon enforcement. These uncertainties may have a material adverse effect on the results of operations for ChromaDex as lack of enforcement or an interpretation of the regulations that lessens the burden of compliance for the dietary supplement marketplace may cause a reduced demand for ChromaDexs products and services.
Over the next twelve months, we plan to expand our service capacity through hiring and to implement accreditation and certification programs related to quality initiatives. In addition, we plan to expand our chemical library program and to either establish a GMP compliant pilot plant to support small to medium scale production of target compounds or partner through a collaboration with a company that has these capabilities. We also intend to increase the research and development of our new bulk food grade raw material line as well as increase marketing and sales related to these products.
Results of Operations
ChromaDex generated net sales of $1,937,592 for the three month period ended April 3, 2010 and $1,447,127 for the three month period ended April 4, 2009. ChromaDex earned a net profit of $33,742 for the three month period ended April 3, 2010 and incurred a net loss of $323,842 for the three month period ended April 4, 2009. This equated to a $0.00 income per basic and diluted share for the three month period ended April 3, 2010 versus a $0.01 loss per basic and diluted share for the three month period ended April 4, 2009.
Net Sales
Net Sales consist of Gross sales less returns and discounts. Net sales increased by 34% to $1,937,592 for the three month period ended April 3, 2010 as compared to $1,447,127 for the three month period ended April 4, 2009. This increase was due to our new service offerings, increased sales of bulk food grade raw materials, and increased demand for our existing products and services.
Costs of Sales
Costs of Sales include raw materials, labor, overhead, and delivery costs. Cost of sales for the three month period ended April 3, 2010 was $1,119,619 versus $979,054 for the three month period ended April 4, 2009. As a percentage of net sales, this represented a 10% decrease for the three month period ended April 3, 2010 compared to the three month period ended April 4, 2009. This percentage decrease in cost of sales is a result of fixed labor and overhead costs that make up the majority of our expenses. These fixed expenses did not increase in proportion to sales as we were able to achieve growth in sales without an increase of certain labor and overhead costs. However, during the three month period ended April 3, 2010, sales of high volume products, primarily consisting of bulk food grade materials for dietary supplements and foods increased. These high volume products have significantly higher raw material costs associated with them. The Company expects to see a significant increase in the sales of these high volume products throughout 2010. Increases in sales of these types of products will likely cause the Company to experience lower gross margins as a percentage of sales during this time period.
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Gross Profit
Gross profit is net sales less the cost of sales and is affected by a number of factors including product mix, competitive pricing and costs of products and services. Our gross profit increased 75% to $817,973 for the three month period ended April 3, 2010 from $468,073 for the three month period ended April 4, 2009. The increase in sales coupled with a decrease in labor and overhead costs as a percentage of sales contributed to this increase in gross profit. The Company expects that as sales continue to grow, labor and overhead costs as a percentage of sales will continue to decrease as future growth in Net Sales will likely require lower direct labor and variable overhead costs. Raw materials costs as a percentage of sales are expected to increase as sales of the high volume bulk food grade materials continue to grow.
Operating ExpensesSales and Marketing
Sales and Marketing Expenses consist of salaries, commissions to employees and advertising and marketing expenses . Sales and marketing expenses for the three month period ended April 3, 2010 were $224,619 as compared to $221,622 for the three month period ended April 4, 2009. This slight increase was due to our increased marketing efforts across different customer sectors, such as academic institutions, contract research organizations, sports nutrition, legal consultants and government agencies.
Operating ExpensesGeneral and Administrative
General and Administrative Expenses consist of research and development, general company administration, IT, accounting and executive management compensation. General and administrative expenses for the three month period ended April 3, 2010 were $554,033 as compared to $566,643 for the three month period ended April 4, 2009. One of the factors that contributed to this slight decrease was a decrease in amortization expenses of a certain intangible asset. This intangible asset became fully amortized as of December, 2009.
Non-operating ExpensesInterest Expense
Interest expense consists of interest on capital leases . Interest expense for the three month period ended April 3, 2010 was $5,699 compared to $5,245 for the three month period ended April 4, 2009. This increase was due to a new capital lease obligation incurred for the purchase of equipment during the three month period ended April 3, 2010.
Non-operating ExpensesInterest Income
Interest income consists of interest earned on money market accounts . Interest income for the three month period ended April 3, 2010, was $120 as compared to $1,595 for the three month period ended April 4, 2009. This decrease was primarily due to a decrease in cash balance in our money market accounts.
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Depreciation and Amortization
For the three month period ended April 3, 2010, we recorded approximately $74,633 in depreciation. We depreciate our assets on a straight-line basis, based on the estimated useful lives of the respective assets. We amortize intangible assets using a straight-line method over 10 years. In the three month period ended April 3, 2010, we recorded an amortization for intangible assets of approximately $17,899.
Liquidity and Capital Resources
Since inception and through April 3, 2010, we have incurred aggregate losses of approximately $8.1 million. These losses are primarily due to overhead costs and general and administrative expenses associated with the development and expansion of our operations. These operations have been financed through capital contributions and the issuance of common stock.
The Board of Directors periodically reviews our capital requirements in light of our proposed business plan. Our future capital requirements will remain dependent upon a variety of factors, including cash flow from operations, the ability to increase sales, increasing our gross profits from current levels, reducing sales and administration expenses as a percentage of net sales, continued development of customer relationships, and our ability to market our new products successfully. However, based on our results from operations, we may determine that we need additional financing to implement our business plan, and there can be no assurance that it will be available on terms favorable to us or at all. If adequate financing is not available, we may have to delay, postpone or terminate product and service expansion and curtail general and administrative operations in order to maintain sufficient operating capital. The inability to raise additional financing may have a material adverse effect on us. We may seek additional capital prior to December, 2011 both to meet our projected operating plans after December, 2011 and to fund our longer term strategic objectives. To the extent we are unable to raise additional cash or generate net income prior to December, 2011 to meet our projected operating plans, we will revise our projected operating plans accordingly.
On April 22, 2010, we entered into a subscription agreement (the Subscription Agreement) with certain investors (the Subscribers). Under the terms of the Subscription Agreement, we have agreed to issue and sell to the Subscribers, in a private placement transaction (the Private Placement), an aggregate of 26,249,983 newly issued shares (the Private Placement Shares) of our common stock for an aggregate purchase price of $3,674,998 or $0.14 per share. We have also agreed to issue to each Subscriber an immediately exercisable warrant (collectively the Warrants) to purchase our common stock equal to the number of Private Placement Shares purchased by such Subscriber at an exercise price of $0.21 per share. Assuming the full exercise of the Warrants for cash, we would receive additional proceeds of $5,512,496, for an aggregate of $9,187,494 in proceeds from the purchase of the Private Placement Shares and the exercise of the Warrants. There is no guarantee that transactions contemplated by the Subscription Agreement will be consummated or that, if consummated, the Subscribers will exercise any of the Warrants and that we will receive any proceeds from any of the Warrants until they are exercised. The closing of the Private Placement is subject to, among other conditions, receipt of stockholder approval of an amendment to our certificate of incorporation, as amended, to increase the number of shares of authorized common stock from 50 million to 150 million shares.
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Net cash provided by (used in) operating activities
Net cash provided by operating activities for the three months ended April 3, 2010 was $164,000 compared to $251,000 used in operating activities for the three months ended April 4, 2009. The positive net cash provided by operating activities for the three months ended April 3, 2010 is largely due to a net profit adjusted for non-cash items and an increase in cash provided by accounts payable and accrued expenses, during this time period.
We expect that our operating cash flows may fluctuate significantly in future periods as a result of fluctuations in our operating results, shipment timetables, accounts receivable collections, inventory management, and the timing of our payments, among other factors.
Net cash used in investing activities
Net cash used in investing activities was $86,000 for the three months ended April 3, 2010, compared to $11,000 for the three months ended April 4, 2009. The increase in cash used in investing activities mainly reflects the timing of purchases of equipment for our service business as well as purchases of intangible assets.
Net cash used in financing activities
Net cash used in financing activities was $10,000 for the three months ended April 3, 2010, compared to $20,000 for the three months ended April 4, 2009. Net cash used in financing activities for both periods consisted of principal payments on capital leases.
Dividend policy
We have not declared or paid any dividends on our common stock. We presently intend to retain earnings for use in our operations and to finance our business. Any change in our dividend policy is within the discretion of our board of directors and will depend, among other things, on our earnings, debt service and capital requirements, restrictions in financing agreements, if any, business conditions, legal restrictions and other factors that our board of directors deems relevant.
Off-Balance Sheet Arrangements
During the three months ended April 3, 2010, we had no off-balance sheet arrangements other than ordinary operating leases as disclosed in the Financial Statements and Supplementary Data section of the Companys Annual Report on Form 10-K filed with the Commission on March 31, 2010 as amended by the Form 10-K/A filed with the Commission on April 30, 2010.
ITEM 3. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Not applicable.
14
ITEM 4. | CONTROLS AND PROCEDURES |
Evaluation of Disclosure Controls and Procedures
The Companys Chief Executive Officer and Chief Financial Officer carried out an evaluation of the effectiveness of the Companys disclosure controls and procedures as of April 3, 2010. Pursuant to Rule13a-15(e) promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, disclosure controls and procedures means controls and other procedures that are designed to insure that information required to be disclosed by the Company in the reports that it files with the Securities and Exchange Commission is recorded, processed, summarized and reported within the time limits specified in the Commissions rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to insure that information the Company is required to disclose in the reports it files with the Commission is accumulated and communicated to the Chief Executive Officer and Chief Financial Officer as appropriate to allow timely decisions regarding required disclosure. Based on the Companys evaluation, its Chief Executive Officer and Chief Financial Officer concluded that the Companys disclosure controls and procedures were effective as of April 3, 2010.
Changes in Internal Controls
There was no change in internal controls over financial reporting (as defined in Rule 13a-15(f) promulgated under the Securities Exchange Act of 1934) that occurred during the Companys first fiscal quarter that has materially affected or is reasonably likely to materially affect the Companys internal control over financial reporting.
15
ITEM 1. | LEGAL PROCEEDINGS |
None.
ITEM 1A. | RISK FACTORS |
The 2009 Form 10-K includes detailed disclosure about the risks faced by the Companys business. Such risks have not materially changed since January 2, 2010, except as described below. Events or circumstances arising from one or more of these risks, together with the risks we identify in our 2009 Form 10-K, could adversely affect our business, financial condition, operating results and prospects and the value and price of our common stock could decline. The risks identified below and in our 2009 Form 10-K are not intended to be a comprehensive list of all risks we face and additional risks that we may currently view as not material may also impair our business operations and results.
Subscription Agreement Subject to Conditions
The Subscription Agreement is subject to numerous conditions, many of which are outside of our control and might not be fulfilled. We cannot assure you that the transactions contemplated by the Subscription Agreement will close in the near term or at all. If we fail to consummate the Subscription Agreement or otherwise fail to raise sufficient capital, we may have to delay, postpone or terminate product and service expansion and curtail general and administrative operations in order to maintain sufficient operating capital. The inability to raise additional financing may have a material adverse effect on our business, financial condition, business strategy or results of operations. Even if we were to consummate the transactions contemplated by the Subscription Agreement, we may need to raise additional capital in the future and there can be no assurance that we would be able to do so in the amounts required and in a timely manner, or at all. Failure to raise future additional capital may have a material adverse effect on our business, financial condition, business strategy or results of operations.
Dilution Resulting from Investment
Consummation of the transactions contemplated by the Subscription Agreement will involve the issuance of a substantial number of shares of our common stock and warrants to purchase common stock. If the transactions contemplated by the Subscription Agreement are consummated, our current stockholders ownership interest in us will be reduced, and if the warrants to exercise common stock that we are issuing pursuant to the Subscription Agreement are exercised in accordance with their terms, our current stockholders ownership interest in us will be reduced even further. As a result of the sale of such a large number of shares of our common stock and securities convertible into common stock, the market price of our common stock could decline.
ITEM 2. | UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS |
None.
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ITEM 3. | DEFAULTS UPON SENIOR SECURITIES |
None.
ITEM 4. | [REMOVED AND RESERVED] |
ITEM 5. | OTHER INFORMATION |
None.
17
ITEM 6. | EXHIBITS |
Exhibit No. |
Description of Exhibits |
|
10.1 | Patent License Agreement dated March 25, 2010 between The University of Mississippi and ChromaDex Corporation* | |
31.1 | Certification of the Chief Executive Officer pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended | |
31.2 | Certification of the Chief Financial Officer pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended | |
32.1 | Certification pursuant to 18 U.S.C. Section 1350 (as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002) |
* | This Exhibit has been filed separately with the Commission pursuant to an application for confidential treatment. The confidential portions of this Exhibit have been omitted and are marked by an asterisk. |
18
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
ChromaDex Corporation. (Registrant) |
||||||||
Date: |
May 18, 2010 |
/s/ THOMAS C. VARVARO |
||||||
Thomas C. Varvaro. Chief Financial Officer |
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Exhibit 10.1
[*] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of this March 25, 2010 (Effective Date) by and between the UNIVERSITY OF MISSISSIPPI, an educational institution with a principal address at University, Mississippi 38677 (UM) and Chromadex, Inc, a corporation organized and existing under the laws of California with a principal address 10005 Muirland Bvld Suite G, Irvine, California 92618 (CHROMADEX)
RECITALS
WHEREAS , UM and the United States Department of Agriculture, Agricultural Research Service (USDA) have developed inventions and desire to commercialize such inventions related to Pterostilbene.
WHEREAS, UM has executed two license agreements with the USDA with effective dates of August 8, 2006 and December 1, 2008 in which USDA has granted UM an exclusive worldwide license to any and all USDA rights in the Patent Rights with the right to grant sublicenses to qualified commercial partners subject to the provisions of this license agreements and to the prior submission to and approval by USDA of the proposed sublicense, which approval shall not be unreasonably withheld.
WHEREAS, CHROMADEX wishes to acquire certain rights and licenses with respect to the Patent Rights in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 | Unless otherwise provided in this Agreement, the following terms when used with initial capital letters shall have the meanings set forth below: |
" Affiliate " means, when used with reference to CHROMADEX, any Person directly or indirectly controlling, controlled by or under common control with CHROMADEX.
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" Bankruptcy Event " means the person in question becomes insolvent, or voluntary or involuntary proceedings by or against such person are instituted in bankruptcy or under any insolvency law, or a receiver or custodian is appointed for such person, or proceedings are instituted by or against such person for corporate dissolution of such person, which proceedings, if involuntary, shall not have been dismissed within sixty (60) days after the date of filing, or such person makes an assignment for the benefit of creditors, or substantially all of the assets of such person are seized or attached and not released within sixty (60) days thereafter.
" Calendar Quarter " means each three-month period, or any portion thereof, beginning on January 1, April 1, July 1 and October 1.
" Confidential Information " means all technical information, developments, discoveries, methods, techniques, formulae, processes and other information relating to Pterostilbene that UM or CHROMADEX owns or controls on the date hereof or owns or controls during the term of this Agreement, including by way of illustration and not limitation, designs, data, drawings, documents, models, business practices, financial data and other similar information.
" Effective Date " shall have the meaning set forth on page 1 of this Agreement.
Federal Government Interest means the rights of the United States Government and agencies thereof under Public Laws 96_517, 97_256 and 98_620, codified at 35 U.S.C.§§ 200-212, and any regulations issued there under, as such statute or regulations may be amended from time to time hereafter.
" Field " means the use of Pterostilbene in pharmaceutical products, as well as dietary supplement, food, beverage, and cosmetic products with structure:function claims, related to cardiovascular health, glucose levels, and cognitive function.
" Net Sales Price " means the gross amount charged by CHROMADEX for a Licensed Product less the items specifically listed in Schedule C. If a Licensed Product is sold for consideration other than solely cash, the fair market value of such other consideration shall be included in the Net Sales Price. If a Licensed Product is sold in a package or kit containing another product or service which is not a Licensed Product, the Net Sales Price for purposes of calculating the royalty under Article 3 hereof shall be calculated by multiplying the Net Sales Price of the combination product or service by the fraction of A/A+B, where "A" is the Net Sales Price of the Licensed Product or Service when sold separately and "B" is the Net Sales Price of the other product or service or products or services when sold.
" Patent(s) " means the any patents or applications which claim the invention(s) summarized in Appendix A which relate to the compound known as Pterostilbene, including without limitation any United States Letters Patent, and all continuations, continuations-in-part, additions, divisions, renewals, extensions, reexaminations and reissues of any of the foregoing, all foreign counterparts of any of the foregoing, and any other patents which relate to the Pterostilbene owned or controlled by UM during the term of this Agreement.
Patent Expenses means all out-of-pocket fees, expenses, and charges related to the Patent Rights incurred by UM or USDA in connection with the preparation, filing, prosecution, issuance, re-issuance, re-examination, interference, and/or maintenance of applications for patent or equivalent protection for the Patent Rights.
" Person " means an individual, partnership, corporation, joint venture, unincorporated association, or other entity, or a government or department of agency thereof.
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" Licensed Products " means any article or portion thereof which is made, produced, sold or used in whole or in part, by or with the use of the licensed Patent Rights. Licensed Products include Pterostilbene sold to 3 rd parties for use in dietary supplement products and used in dietary supplement products sold directly by CHROMADEX. Licensed Products does not include Pterostilbene sold by CHROMADEX as an analytical reference standard.
Sunk Patent Expenses means Patent Expenses incurred by USDA prior to the Effective Date of the Agreement.
" Valid Claim " means a claim of an unexpired issued Patent that has not been withdrawn, canceled or disclaimed or held invalid by a court or governmental authority of competent jurisdiction in an unappealed or unappealable decision.
ARTICLE 2
GRANT OF LICENSE
2.1 | Grant of License . Subject to the terms and conditions contained in this Agreement, UM hereby grants to CHROMADEX an exclusive, non-transferrable (except otherwise allowed in this Agreement), worldwide, royalty-bearing right and license to use and practice the Patent Rights to make, have made, use, and sell Licensed Products in the Field. Notwithstanding the foregoing, UM expressly reserves a non-transferable royalty-free right to use the Patent Rights in the Field itself, including use by its faculty, staff and researchers, for educational and research purposes only. |
2.2 | Right to Sub-license . CHROMADEX shall not have the right to sub-license to any third party, in whole or in part, its rights under this Agreement without the written permission of UM, such permission to will not be unreasonably withheld. In the event CHROMADEX wishes to sub-license the Patent Rights, UM and CHROMADEX will initiate good faith negotiations to determine equitable licensing terms and conditions. |
2.3 | No Rights by Implication . No rights or licenses with respect to the Patent Rights are granted or deemed granted hereunder or in connection herewith, other than those rights or licenses expressly granted in this Agreement. |
ARTICLE 3
LICENSING FEES AND EQUITY
3.1 | Upfront and Milestone Payments . In consideration of the license granted hereunder, CHROMADEX shall pay UM the following non-refundable payments: |
Either (a) [*] within [*] day of the Effective Date, or (b) [*] within [*] days of the Effective Date of the Agreement and [*] within [*] days of the Effective Date of the Agreement.
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3.2 | Royalties . In further consideration of the rights and licenses granted hereunder, CHROMADEX shall pay UM a royalty of [*] of Net Sales of all Licensed Products. CHROMADEX agrees to pay UM at least the following minimum royalties during the term of this Agreement: |
Calendar Year 1: [*]
Year 2: [*]
Year 3 and beyond. The minimum shall increase [*] per year over the Year 2 amount to a maximum of [*] per year.
3.3 | Payments . Royalties and other amounts payable under this Agreement shall be paid within [*] days following the last day of the Calendar Quarter in which royalties and other amounts accrue. The last such payment shall be made within [*] days after termination of this Agreement. Payments shall be deemed paid as of the day on which they are received by UM. |
3.4 | Reports . CHROMADEX shall deliver to UM within [*] days after the end of each Calendar Quarter following commercial sale of a Licensed Product a report setting forth in reasonable detail the calculation of the royalties and other amounts payable to UM for such Calendar Quarter pursuant to this Article 4, including, without limitation, the Licensed Products sold in each country during such Calendar Quarter, and the Net Sales Price. An example of a royalty report is provided in Appendix C. |
3.5 | Currency, Place of Payment, Interest . |
(a) | All dollar amounts referred to in this Agreement are expressed in United States dollars. All payments to UM under this Agreement shall be made in United States dollars (or other legal currency of the United States), as directed by UM, by check payable to The University of Mississippi or by wire transfer to an account as UM may designate from time to time. |
(b) | If CHROMADEX receives revenues from sales of Licensed Products in a currency other than United States dollars, royalties shall be converted into United States dollars at the applicable conversion rate for the foreign currency as published in the Exchange Rates table in the eastern edition of The Wall Street Journal as of the last date of the applicable Calendar Quarter. |
(c) | Amounts that are not paid when due shall accrue interest from the due date until paid, at an annual rate equal to the Prime Rate plus [*] as published in the Money Rates table in the eastern edition of The Wall Street Journal as of the due date. |
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3.6 | Records . CHROMADEX will maintain complete and accurate books and records that enable the royalties payable hereunder to be verified. The records for each Calendar Quarter shall be maintained for two years after the submission of each report under Article 3.5 hereof. Upon reasonable prior notice to CHROMADEX, UM and its accountants shall have access to the books and records of CHROMADEX to conduct a review or audit thereof. Such access shall be available during normal business hours. Upon reasonable prior notice to CHROMADEX, UM and its accountants shall have access to the books and records of CHROMADEX to conduct a review or audit thereof no more than [*] per year. Such access shall be available during normal business hours. In the event such audit reveals any error in the computation of Net Sales which results in an underpayment of royalties in excess of [*] of the amount owed during the applicable period, then CHROMADEX shall promptly reimburse UM for all reasonable expenses and costs incurred in the conduct of such review or audit. |
3.7. | CHROMADEX will pay UM the Sunk Patent Expense detailed in Appendix A within [*] days of the Effective Date of this Agreement. CHROMADEX will reimburse UM for future Patent Expenses incurred during the term of this Agreement within [*] days of receipt of an invoice from UM. |
ARTICLE 4
CERTAIN OBLIGATIONS OF CHROMADEX
4.1 | CHROMADEX Efforts; Reporting. CHROMADEX shall use its reasonable efforts to develop for commercial use and to market a Licensed Product as soon as practicable, and to continue to market a Licensed Product as long as commercially viable, all as is consistent with sound and reasonable business practice. |
4.2 | Compliance with Laws . CHROMADEX shall use its best efforts to comply with all prevailing laws, rules and regulations pertaining to the development, testing, manufacture, marketing and import or export of Licensed Products. Without limiting the foregoing, CHROMADEX acknowledges that the transfer of certain commodities and technical data is subject to United States laws and regulations controlling the export of such commodities and technical data, including all Export Administration Regulations of the United States Department of Commerce. These laws and regulations, among other things, prohibit or require a license for the export of certain types of technical data to specified countries. CHROMADEX will comply with all United States laws and regulations controlling the export of commodities and technical data. |
4.3 | Government Approvals . CHROMADEX will be responsible for obtaining, at its cost and expense, all governmental approvals required to commercially market Licensed Products. |
4.4 | Patent Notices. CHROMADEX shall mark or cause to be marked all Licensed Products made or sold in the United States with all applicable patent numbers for the Patents. If it is not practical for a Licensed Product to be so marked, then CHROMADEX shall mark or cause to be marked the package for each Licensed Product with all applicable patent numbers for the Patents. |
5
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4.5 | Bankruptcy or Equivalent . CHROMADEX will provide written notice to UM prior to the filing of a petition in bankruptcy or equivalent if CHROMADEX intends to file a voluntary petition, or, if known by CHROMADEX through statements or letters from a creditor or otherwise, if a Third Party intends to file an involuntary petition in bankruptcy against CHROMADEX. Notice will be given at least [*] days before the planned filing or, if such notice is not feasible, as soon as CHROMADEX is aware of the planned filing where any such notice is allowable under bankruptcy laws. CHROMADEX's failure to perform this obligation is deemed to be a material pre-petition incurable breach under this Agreement not subject to the [*] notice requirement of Article 9.2, and UM is deemed to have terminated this Agreement [*] days prior to the filing of the bankruptcy unless such notice is not allowable under bankruptcy laws. |
ARTICLE 5
REPRESENTATIONS
5.1 | Representations of UM . UM represents to CHROMADEX as follows: |
(a) | this Agreement, when executed and delivered by UM, will be the legal, valid and binding obligation of UM, enforceable against UM in accordance with its terms; |
(b) | UM, and to UMs knowledge, USDA has not granted rights in the Patent Rights to any Person other than CHROMADEX; |
(c) | UM has not received any written notice that the Patent Rights infringe the proprietary rights of any third party; |
(d) | the inventions claimed in the Patents to the knowledge of UM and USDA have not been publicly used, offered for sale, or disclosed in a printed publication by employees of UM or USDA more than one year prior to the filing of the U.S. application for the Patents. |
5.2 | Representations and Warranties of CHROMADEX . CHROMADEX represents and warrants to UM as follows: |
(a) | CHROMADEX is a corporation duly organized, validly existing and in good standing under the laws of California and has all requisite corporate power and authority to execute, deliver and perform this Agreement; |
(b) | This Agreement, when executed and delivered by CHROMADEX, will be the legal, valid and binding obligation of CHROMADEX, enforceable against CHROMADEX in accordance with its terms; |
6
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(c) | CHROMADEX understands and acknowledges that pursuant to the Bayh-Dole Act, Licensed Products must be manufactured substantially in the United States, and CHROMADEX will comply with applicable provisions of the Bayh-Dole Act; |
(d) | the execution, delivery and performance of this Agreement by CHROMADEX does not conflict with, or constitute a breach or default under, |
(i) | the charter documents of CHROMADEX, |
(ii) | any law, order, judgment or governmental rule or regulation applicable to CHROMADEX, or |
(iii) | any provision of any agreement, contract, commitment or instrument to which CHROMADEX is a party; and the execution, delivery and performance of this Agreement by CHROMADEX does not require the consent, approval or authorization of, or notice, declaration, filing or registration with, any governmental or regulatory authority. |
ARTICLE 6
LIABILITY AND INDEMNIFICATION
6.1 | No warranties; Limitation on Liability . EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, UM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO: (I) COMMERCIAL UTILITY; OR (II) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; OR (III) THAT THE USE OF THE PATENT RIGHTS WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS. UM SHALL NOT BE LIABLE TO CHROMADEX, CHROMADEXS SUCCESSORS OR ASSIGNS OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM ON ACCOUNT OF, OR ARISING FROM, THE USE OF INFORMATION IN CONNECTION WITH THE PATENT RIGHTS SUPPLIED HEREUNDER OR THE MANUFACTURE, USE OR SALE OF LICENSED PRODUCTS OR ANY OTHER MATERIAL OR ITEM DERIVED THEREFROM. |
6.2 | Liability . UM is an agency of the State of Mississippi under the management and control of the Board of Trustees of the State Institutions of Higher Learning (IHL). As authorized by law, IHL maintains a program of self-insurance for purposes of workers compensation and general liability, pursuant to the Mississippi Tort Claims Act as set forth in Chapter 46, Title 11, Mississippi Code 1972, as amended. Accordingly, any liability of UM for any damages, losses, or costs arising out of or related to acts performed by UM or it employees under this Agreement is governed by the Tort Claims Act. |
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6.3 | CHROMADEX Indemnification . CHROMADEX will indemnify and hold harmless UM, its trustees, officers, agents and employees (collectively, the Indemnified Parties), from and against any and all liability, loss, damage, action, claim or expense suffered or incurred by the Indemnified Parties which results from or arises out of (individually, a Liability and collectively, the Liabilities): |
(a) | breach by CHROMADEX of any covenant or agreement contained in this Agreement; |
(b) | the development, use, manufacture, promotion, sale, distribution or other disposition of any Licensed Products by CHROMADEX, its Affiliates, assignees, vendors or other third parties, for personal injury, including death, or property damage arising from any of the foregoing. The indemnification obligation under Article 6.3 shall not apply to any contributory negligence or product liability of the Indemnified Party which may have occurred prior to the execution of this Agreement. CHROMADEX will indemnify and hold harmless the Indemnified Parties from and against any Liabilities resulting from: |
(i) | any product liability or other claim of any kind related to the use by a third party of a Licensed Product that was manufactured, sold, distributed or otherwise disposed by CHROMADEX, its Affiliates, assignees, vendors or other third parties; |
(ii) | clinical trials or studies conducted by or on behalf of CHROMADEX relating to any Licensed Product and the Patent Rights, including, without limitation, any claim by or on behalf of a human subject of any such clinical trial or study, any claim arising from the procedures specified in any protocol used in any such clinical trial or study, any claim of deviation, authorized or unauthorized, from the protocols of any such clinical trial or study, any claim resulting from or arising out of the manufacture or quality control by a third party of any substance administered in any clinical trial or study; |
(iii) | CHROMADEXs failure to comply with all prevailing laws, rules and regulations pertaining to the development, testing, manufacture, marketing and import or export of a Licensed Product. |
6.4 | Procedures . The Indemnified Party shall promptly notify CHROMADEX of any claim or action giving rise to a Liability subject to the provisions of Article 6.3. CHROMADEX shall have the right to defend any such claim or action, at its cost and expense. Indemnified Party must have the right to approve counsel through the Mississippi Attorney General to represent it, such approval will not be unreasonably withheld. In the event CHROMADEX or any of its parents, affiliates or subsidiaries is also named in a particular claim, CHROMADEX may choose the same attorneys who defend the Indemnified Parties to defend CHROMADEX unless there arises a conflict of interest between the CHROMADEX and one or more of the Indemnified Parties or among the Indemnified Parties. The indemnification rights of UM or other Indemnified Party contained herein are in addition to all other rights which such Indemnified Party may have at law or in equity or otherwise. |
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6.5 | Product Liability Insurance . CHROMADEX shall maintain general liability and product liability insurance that is reasonable based upon industry standards, but not less than [*] per incident and [*] in the aggregate. The insurance amounts specified herein shall not be deemed a limitation on CHROMADEXs indemnification liability under this Agreement. CHROMADEX shall provide UM with copies of such policies, upon request of UM. CHROMADEX shall notify UM at least [*] days prior to cancellation of any such coverage. |
ARTICLE 7
PATENTS AND INFRINGEMENT
7.1 | Prosecution of Patents . |
(a) | Responsibilities for Patent Rights. |
(i) | UM through USDA patent attorneys is responsible for preparing, filing, and prosecuting any patent applications, maintaining any issued patents, and prosecuting and maintaining any and all continuations, continuations-in-part, divisional, substitutions, reissues, or re-examinations (or the foreign equivalent of these) related to the Patent Rights. CHROMADEX will reimburse UM for patent expenses as detailed in Article 3.7. |
(ii) | UM through USDA will prepare, file, and prosecute patent applications for the Patent Rights in the United States. UM through USDA will also prepare, file, and prosecute international applications for the Patent Rights under the Patent Cooperation Treaty. |
(a) | Such international applications shall designate the European Patent Office as the International Searching Authority, and shall designate at a minimum the European States (defined as EP on the international application form of the Patent Cooperation Treaty), and additional countries specified by CHROMADEX. |
(b) | CHROMADEX will specify in writing to UM the additional foreign countries in which patent applications are to be filed and prosecuted. UM when possible will notify CHROMADEX [*] days in advance of a national stage filing deadline for all Patent Rights, and CHROMADEX will specify such additional countries no later than [*] days before the national stage filing deadline for the pertinent patent application. |
(iii) | UM through USDA is solely responsible for making decisions regarding the content of U.S. and foreign applications to be filed under Patent Rights and prosecution of the applications, continuations, continuations-in-part, divisional, substitutions, reissues, or re-examinations (or the foreign equivalent of these) related thereto. UM will not seek to narrow the scope of a pending application without obtaining CHROMADEXs consent, which consent shall not be unreasonably withheld or delayed. UM shall use its good faith efforts to provide CHROMADEX with a copy of all materials to be filed with the U.S. Patent and Trademark Office and its foreign equivalents at least ten (10) business days prior to the planned filing and afford CHROMADEX the right to comment; provided, however, in the event such documents are not timely sent, no breach of contract shall be deemed to have occurred. |
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(iv) | CHROMADEX will cooperate with UM in the filing, prosecution, and maintenance of any Patent Rights. UM will advise CHROMADEX promptly as to all material developments with respect to the applications. Copies of all papers received and filed in connection with prosecution of applications in all countries will be provided promptly after receipt or filing to CHROMADEX to enable it to advise UM concerning the applications. |
(v) | No party shall be liable for any loss, as a whole or in part, of a patent term extension granted by the U.S. Patent and Trademark Office (or its foreign equivalents) on a patent issuing under the Patent Rights, even if such loss results from acts or omissions of the prosecuting party or its personnel. |
(vi) | Each party agrees to promptly forward all written communications from the other party regarding prosecution of Patent Rights to its patent counsel as appropriate, with a written confirmation to the other party that the communications have been forwarded. |
7.2 | Infringement by Third Party . In the event that CHROMADEX, UM OR USDA become aware of suspected infringement of the Patent Rights, they shall promptly notify the other parties of such suspected infringement. CHROMADEX, UM OR USDA directly or together, may bring suit to abate infringement of the Patent Rights, or communicate with a potential infringer, with prior approval from the other parties. In the event that one party intends to bring suit relating to suspected infringement, it shall promptly notify the other parties of its intention to sue so that the other parties may have the opportunity to approve and participate in and share costs and recoveries from said suit. If only one party brings suit and the other parties choose not to participate in said suit, the party that brings the suit shall be liable for all litigation costs and shall be entitled to retain all recoveries therefrom. |
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ARTICLE 8
CONFIDENTIALITY AND PUBLICATIONS
8.1 | Confidentiality . To the extent allowed by law, both parties shall maintain in confidence and shall not disclose to any third party the Confidential Information received pursuant to this Agreement, without the prior written consent of the disclosing party except that the Confidential Information may be disclosed by either party only to those third parties (x) who have a need to know the information in connection with the exercise by either party of its rights under this Agreement and who agreed in writing to keep the information confidential to the same extent as is required of the parties under this Article 8.1, or (y) to whom either party is legally obligated to disclose the information. The foregoing obligation shall not apply to information which: |
(a) | is, at the time of disclosure, publicly known or available to the public, provided that Information will not be deemed to be within the public domain merely because individual parts of such Information are found separately within the public domain, but only if all the material features comprising such Information are found in combination in the public domain; |
(b) | is known to recipient at the time of disclosure of such Confidential Information provided that recipient promptly notifies disclosing party in writing of this prior knowledge within thirty (30) days of receipt; |
(c) | is hereafter furnished to recipient by a third party, as a matter of right and without restriction on disclosure, provided that recipient promptly notifies disclosing party in writing of this third party disclosure after receipt thereof; |
(d) | is made public by disclosing party; |
(e) | is disclosed with the written approval of either party; |
(f) | is the subject of a legally binding court order compelling disclosure, or is otherwise subject to any law or regulation or regulatory body compelling disclosure, provided that recipient must give disclosing party reasonable advance notice of such required disclosure, and recipient must cooperate with disclosing party in attempting to prevent or limit such disclosure. |
8.2 | P ublications . Should UM desire to disclose publicly, in writing or by oral presentation, Confidential Information related to the Patent Rights, UM shall notify CHROMADEX in writing of its intention at least [*] days before such disclosure. UM shall include with such notice a description of the oral presentation or, in the case of a manuscript or other proposed written disclosure, a current draft of such written disclosure. CHROMADEX may request UM, no later than [*] days following the receipt of UMs notice, to file a patent application, copyright or other filing related to such Invention. All such filings shall be subject to the provisions of Article 9.1 of this Agreement. Upon receipt of such request, UM shall arrange for a delay in publication, to permit filing of a patent or other application by the CHROMADEX. Should CHROMADEX reasonably determine that more than [*] days is required in order to file any such patent information (including additional time required to perform additional research required for adequate patent disclosure), or, if CHROMADEX reasonably determines that such Confidential Information cannot be adequately protected through patenting and such Confidential Information has commercial value as a trade secret, then publication or disclosure shall be postponed until the parties can mutually agree upon a reasonable way to proceed. |
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8.3 | Use of Name . Neither CHROMADEX nor UM shall directly or indirectly use the other partys name, including the use of USDAs name by CHROMADEX, or the name of any trustee, officer or employee thereof, without that partys prior written consent, or disclose the terms of this Agreement to third parties except that UM or CHROMADEX may disclose this Agreement to an Affiliate and may disclose an accurate description of the terms of this Agreement to the extent required under federal or state securities, tax, grant administration, or other disclosure laws. UM shall take steps to preserve the confidentiality of such information to the extent allowed by law. |
ARTICLE 9
TERM AND TERMINATION
9.1 | Term . This Agreement and the licenses granted herein shall commence on the Effective Date and shall continue, subject to earlier termination under Articles 9.2 or 9.3 hereof, until the expiration of the last to expire of the Patents. |
9.2 | Termination by UM . Upon the occurrence of any of the events set forth below (Events of Default), UM shall have the right to terminate this Agreement by giving written notice of termination, such termination effective with the giving of such notice: |
(a) | nonpayment of any amount payable to UM that is continuing [*] calendar days after UM gives CHROMADEX written notice of such nonpayment; |
(b) | any breach by CHROMADEX of any covenant (other than a payment breach referred to in clause (a) above or a Commercialization Plan breach referred to in Article 9.3 below) or any representation or warranty contained in this Agreement that is continuing [*] calendar days after UM gives CHROMADEX written notice of such breach; |
(c) | CHROMADEX fails to comply with the terms of the license granted under Article 2 hereof and such noncompliance is continuing [*] calendar days after UM gives CHROMADEX notice of such noncompliance; |
(d) | CHROMADEX becomes subject to a Bankruptcy Event; |
(e) | the dissolution or cessation of operations by CHROMADEX; |
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(f) | If after the first commercial sale of a Licensed Product and during the term of this Agreement, CHROMADEX fails to make reasonable efforts to commercialize at least [*] Licensed Product or fails to keep at least [*] Licensed Product on the market after the first commercial sale for a continuous period of [*] where such noncompliance is continuing [*] calendar days after UM gives CHROMADEX written notice of such noncompliance. |
9.3 | Commercialization Plan. CHROMADEX has provided UM with a Commercialization Plan acceptable to UM. Such Commercialization Plan is contained in Appendix B and is incorporated herein by reference. UM shall be entitled to terminate this Agreement if CHROMADEX fails to meet the pre-established development milestones contained in the Commercialization Plan. The milestones may be changed as agreed upon in advance in writing by both parties. UM shall give written notice of its decision to terminate this Agreement specifying a failure of the Commercialization Plan milestones. Unless CHROMADEX has remedied such failure or both parties have agreed, in writing, to a revised milestone schedule within [*] days after receipt of such notice, this Agreement will be deemed to terminate as of the expiration of such [*] day period. |
9.4 | Termination by CHROMADEX . CHROMADEX shall have the right to terminate this Agreement, at any time and with or without cause, upon [*] days written notice to UM. |
9.5 | Rights and Duties Upon Termination . Within [*] days after termination of this Agreement, each party shall return to the other party any Confidential Information of the other party. In the event of an early termination of this Agreement, CHROMADEX shall have the right to use or sell all the Licensed Product(s) on hand or in the process of manufacturing at the time of such early termination, provided that CHROMADEX shall be obligated to pay to UM a royalty on such sales as set forth in this Agreement if, at that time there remains in existence any of Licensors Patent Rights covering the transfer of such Licensed Product(s) and a royalty or other payment is payable pursuant to the terms of this Agreement. |
9.6 | Provisions Surviving Termination . CHROMADEXs obligation to pay any royalties accrued but unpaid prior to termination of this Agreement shall survive such termination. In addition, all provisions required to interpret the rights and obligations of the parties arising prior to the termination date shall survive expiration or termination of this Agreement. |
ARTICLE 10
OTHER TERMS AND CONDITIONS
10.1 | Assignment . This Agreement and the rights and benefits conferred upon CHROMADEX hereunder may not be transferred or assigned by CHROMADEX to any party without the prior written consent of UM, such permission will not be unreasonably withheld, except for: |
(a) | an assignment in connection with a merger, sale or reorganization of CHROMADEX, or the sale or transfer of all or substantially all of CHROMADEXs assets which relate to the manufacture of a Licensed Product or use of the Patent Rights provided that CHROMADEX demonstrates to UMs reasonable satisfaction that the buyer or transferee is at least as financially stable as CHROMADEX and following the sale or transfer would be as capable of performing its obligations under this Agreement as CHROMADEX would be; or |
13
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(b) | an assignment of a security interest in this Agreement as a part of a security interest in all or substantially all of the CHROMADEXs assets which relate to the Patent Rights or a Licensed Product. Any prohibited assignment of this Agreement on the rights hereunder shall be null and void. No assignment shall relieve CHROMADEX of responsibility for the performance of any accrued obligations which it has prior to such assignment. This Agreement shall inure to the benefit of permitted assigns of CHROMADEX. |
For the avoidance of doubt, the parties agree that any assignment of this Agreement made in accordance with this Article 10.1 in which UM has given written consent shall relieve the assignor of all obligations under this Agreement, whether fixed, accrued, contingent or otherwise, whereupon the effect shall be the same as if this Agreement had been executed by the assignee in the first instant and the assignor had never been a party hereto.
10.2 | No Waiver . A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. |
10.3 | Independent Contractor . Nothing herein shall be deemed to establish a relationship of principal and agent between UM and CHROMADEX, nor any of their agents or employees for any purpose whatsoever. This Agreement shall not be construed as constituting UM and CHROMADEX as partners, or as creating any other form of legal association or arrangement which could impose liability upon one party for the act or failure to act of the other party. No employees or staff of UM shall be entitled to any benefits applicable to employees of CHROMADEX. Neither party shall be bound by the acts or conduct of the other party. |
10.4 | Notices . Any notice under this Agreement shall be sufficiently given if sent in writing by prepaid, first class, certified or registered mail, return receipt requested, addressed as follows: |
if to UM, to:
University of Mississippi
Thad Cochran Research Center
University, MS 38677
Attention: Dr. Walter G. Chambliss
Director of Technology Management
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if to CHROMADEX, to:
ChromaDex Inc,
Chief Financial Officer
10005 Muirlands Bvld
Suite G
Irvine, CA 92618
or to such other addresses as may be designated from time to time by notice given in accordance with the terms of this Article 10.4.
10.5 | Entire Agreement . This Agreement embodies the entire understanding between the parties relating to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral. This Agreement may not be modified or varied except by a written document signed by duly authorized representatives of both parties. |
10.6 | Severability . In the event that any provision of this Agreement shall be held to be unenforceable, invalid or in contravention of applicable law, such provision shall be of no effect, the remaining portions of this Agreement shall continue in full force and effect, and the parties shall negotiate in good faith to replace such provision with a provision which effects to the extent possible the original intent of such provision. |
10.7 | Force Majure . In the event that either partys performance of its obligations under this Agreement shall be prevented by any cause beyond its reasonable control, including without limitation acts of God, acts of government, shortage of material, accident, fire, delay or other disaster, provided that the effected party shall have used its reasonable best efforts to avoid or remove the cause of such nonperformance and to minimize the duration and negative affect of such nonperformance, then such effected partys performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence. The affected party shall continue performance under this Agreement using its best efforts as soon as such cause is removed. |
10.8 | Headings . Any headings and captions used in this Agreement are for convenience of reference only and shall not affect its construction or interpretation. |
10.9 | No Third Party Benefits . Nothing in this Agreement, express or implied, is intended to confer on any Person other than the parties hereto or their permitted assigns, any benefits, rights or remedies. |
10.10 | Governing Law . This Agreement shall be construed in accordance with and governed by the internal laws of the State of Mississippi, excluding such states rules relating to conflicts of laws, and its form, execution, validity, construction and effect shall be determined in accordance with such internal laws. |
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10.11 | Counterparts . This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, shall bear the signatures of each of the parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against the party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. |
10.12 | Resolution of Disputes . If the parties are unable to reach agreement by negotiating in good faith about any matter under this Agreement, the parties agree to resolve the dispute themselves, and if failing to do so, they agree to seek resolution of the dispute through mediation. |
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IN WITNESS WHEREOF, the parties hereto have duly executed this License Agreement as of the date first above written.
UNIVERSITY OF MISSISSIPPI
/s/ Alice M. Clark |
3/25/10 |
Dr. Alice M. Clark |
Date |
Vice Chancellor for Research and Sponsored Programs
Acknowledged by:
/s/ Allyson M. Best |
3/25/10 |
Allyson M. Best |
Date |
Assistant Director, Technology Management
CHROMADEX , INC.
/s/ Thomas C. Varvaro |
3/25/10 |
Thomas C. Varvaro |
Date |
Chief Financial Officer
17
Exhibit 31.1
Certification of the Chief Executive Officer
Pursuant to
§240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended
I, Frank L. Jaksch Jr., certify that:
1. I have reviewed this quarterly report on Form 10-Q of ChromaDex Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15a-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 18, 2010 |
/s/ FRANK L. JAKSCH JR |
|||
Frank L. Jaksch Jr. Chief Executive Officer |
Exhibit 31.2
Certification of the Chief Financial Officer
Pursuant to
§240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended
I, Thomas C. Varvaro., certify that:
1. I have reviewed this quarterly report on Form 10-Q of ChromaDex Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15a-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 18, 2010 |
/s/ THOMAS C. VARVARO |
|||
Thomas C. Varvaro Chief Financial Officer |
Exhibit 32.1
Certification Pursuant to 18 U.S.C. Section 1350
(as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with this quarterly report of ChromaDex Corporation (the Company) on Form 10-Q for the quarter ending April 3, 2010 as filed with the Securities and Exchange Commission on the date hereof (the Report), we, Frank L. Jaksch Jr., Chief Executive Officer of the Company, and Thomas C. Varvaro, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to our knowledge:
1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: May 18, 2010 |
/s/ FRANK L. JAKSCH JR |
|||
Frank L. Jaksch Jr. Chief Executive Officer |
||||
/s/ THOMAS C. VARVARO |
||||
Thomas C. Varvaro Chief Financial Officer |