UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT
REPORT
PURSUANT TO SECTION 13 OR
15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported):
October
4, 2017
CHROMADEX CORPORATION
(Exact name of registrant as specified in its
charter)
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Delaware
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001-37752
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26-2940963
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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10005 Muirlands Boulevard, Suite G, Irvine, California,
92618
(Address
of principal executive offices, including zip code)
(949) 419-0288
(Registrant's telephone number, including area
code)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[
]Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[
]Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[
]Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
[
]Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the
registrant is an emerging growth company as defined in
Rule
405 of the Securities
Act of 1933 (
§
230.405 of
this chapter) or Rule
12b-2 of the Securities Exchange Act
of 1934 (
§
240.12b-2 of
this chapter).
Emerging growth
company
☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section
13(a)
of the Exchange Act.
☐
Item
5.02
Departure
of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
(b)
On October 5, 2017, ChromaDex
Corporation (“ChromaDex”) entered into an agreement
with Thomas C. Varvaro whereby Mr. Varvaro will no longer serve as
ChromaDex
’s Chief Financial Officer, Secretary,
principal financial officer and
principal accounting officer, effective immediately. ChromaDex
expects that Mr. Varvaro will transition from ChromaDex over the
coming months to pursue other opportunities. During this transition
Mr. Varvaro will serve as ChromaDex’s Senior Vice President,
Finance, and will report to Mr. Farr effective
immediately.
(c)
On October 4, 2017, the Board of Directors of ChromaDex (the
“Board”) appointed Kevin M. Farr as Chief Financial
Officer, Secretary, principal accounting officer and principal
financial officer, effective as of October 5, 2017, to replace the
vacancies created by Mr. Varvaro’s transition as disclosed in
item (b) above.
Mr. Farr, age 59, previously served as the Chief Financial Officer
of Mattel, Inc. (“Mattel”) from February 2000 through
September 2017, and prior to that served in multiple leadership
roles at Mattel since 1991. Before joining Mattel, Mr. Farr spent
10 years at Pricewaterhouse Coopers. Mr. Farr serves on the
Corporate Advisory Board of the Marshall School of Business at the
University of Southern California, and as a board member of Polaris
Industries Inc. Mr. Farr received his Master of Business
Administration from Northwestern University's J. L. Kellogg
Graduate School of Business, and his B.S. in Accounting from
Michigan State University.
In connection with his appointment as Chief Financial Officer,
ChromaDex and Mr. Farr entered into an Executive Employment
Agreement (the “Employment Agreement”). Pursuant to the
Employment Agreement, Mr. Farr is entitled to: (i) an annual base
salary of $300,000 and (ii) a discretionary annual bonus based on
the achievement of certain performance goals to be determined by
the Board. Pursuant to the Employment Agreement, Mr. Farr also
received an option to purchase up to 1,000,000 shares of ChromaDex
common stock under the ChromaDex 2017 Equity Incentive Plan (the
“Plan”), subject to monthly vesting over a three-year
period, with an exercise price equal to $4.24 per share, which was
equal to the closing price of ChromaDex’s common stock on the
date of grant. Any unvested options will vest in full (a) upon a
change of control of ChromaDex, subject to Mr. Farr’s
continuous service through such change of control, (b) on the date
(the “Price Threshold Date”)
that the unweighted
average closing price of
ChromaDex
’s common stock as quoted on
the Nasdaq Capital Market (or such similar established stock
exchange) over the previous 20 trading days (including the date
such calculation is measured) first equals or exceeds $10.00 per
share
, subject to Mr. Farr’s
continuous service through such Price Threshold Date, or (c) if Mr.
Farr is terminated by ChromaDex without cause or if Mr. Farr
resigns for good reason within 90 days prior to such change of
control or Price Threshold Date.
If Mr. Farr’s employment is terminated by ChromaDex without
cause or Mr. Farr resigns for good reason, then, subject to
executing a release, Mr. Farr will receive (i) continuation of his
base salary for 12 months, (ii) COBRA premiums for 12 months, (iii)
a prorated annual cash bonus, based on the good faith determination
of the Board of the actual results and period of employment during
the year of such termination, (iv) accelerated vesting of
time-based equity that would have otherwise become vested by the
one year anniversary of such termination date and (v) an extended
exercise period for his options.
ChromaDex expects to enter into an indemnification agreement with
Mr. Farr on substantially the same terms as its standard
indemnification agreement for directors and executive officers,
previously filed as Exhibit 10.1 to ChromaDex’s Current
Report on Form 8-K filed with the Securities and Exchange
Commission on December 16, 2016.
The foregoing summary of the Employment Agreement does not purport
to be complete and is qualified in its entirety by reference to the
complete Employment Agreement, a copy of which is attached hereto
as Exhibit 10.1, and is incorporated herein by
reference.
There are no arrangements or understandings between Mr. Farr and
any other persons pursuant to which he was selected as
ChromaDex’s Chief Financial Officer. There are also no family
relationships between Mr. Farr and any of ChromaDex’s
directors or executive officers and he has no direct or indirect
material interest in any transaction required to be disclosed
pursuant to Item 404(a) of Regulation S-K.
On
October 9, 2017, ChromaDex
issued a press release announcing the hiring of Mr. Farr and the
transition from ChromaDex of Mr. Varvaro. A copy of the press
release is attached as Exhibit 99.1 hereto.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits
.
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ExhibitNumber
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Description
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Executive
Employment Agreement with Kevin M. Farr.
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Press
Release dated October 9, 2017.
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SIGNATURES
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 hereunto duly authorized.
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CHROMADEX CORPORATION
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Dated:
October 10, 2017
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By:
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/s/ Frank L.
Jaksch, Jr.
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Name:
Frank L. Jaksch, Jr.
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Chief
Executive Officer
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Exhibit 10.1
CHROMADEX CORPORATION
EXECUTIVE
EMPLOYMENT
AGREEMENT
for
KEVIN M. FARR
This
Executive Employment Agreement (this “
Agreement
”) is entered into as of
October 5, 2017 (the “
Effective Date
”), by and between
Kevin M. Farr (“
Executive
”) and ChromaDex
Corporation, a Delaware corporation (the “
Company
”).
1.
Employment
by the Company.
1.1
Position.
Executive shall serve as the Company’s Chief Financial
Officer, reporting to the Company’s Chief Executive Officer
(the “
CEO
”)
and/or President, as determined by the CEO and President. During
the term of Executive’s employment with the Company,
Executive will devote Executive’s commercially reasonable
efforts and substantially all of Executive’s business time
and attention to the business of the Company, except for approved
paid time off and reasonable periods of illness or other
incapacities permitted by the Company’s general employment
policies and applicable law.
1.2
Duties
and Location.
Executive shall perform such duties as are
customarily associated with the position of Chief Financial Officer
and such other duties, commensurate with his position, as are
assigned to Executive by the CEO and/or President, or the
Company’s Board of Directors (the “
Board
”). Executive’s primary
office location shall be in the Los Angeles, California area. The
Company reserves the right to reasonably require Executive to
perform Executive’s duties at the Company’s offices in
Irvine, California as required for the performance of his duties
and for business meetings with Company employees or representatives
of third parties, and to require reasonable business
travel.
1.3
Policies
and Procedures.
The employment relationship between the
parties shall be governed by the general employment policies and
practices of the Company, except that when the terms of this
Agreement differ from or are in conflict with the Company’s
general employment policies or practices, this Agreement shall
control.
2.
Compensation
.
2.1
Base
Salary.
Executive will receive an initial base salary at the
annual rate of $300,000, less standard payroll deductions and
withholdings and payable in accordance with the Company’s
regular payroll schedule. The base salary may be increased from
time to time. The base salary may not be decreased, other than a
decrease of less than ten percent (10%) of Executive’s
highest base salary pursuant to a salary reduction program
applicable generally to the Company’s senior executives. The
initial base salary, as increased or decreased, shall be referred
to as “
Base
Salary
.”
2.2
Annual
Bonus.
In addition to base salary, Executive will be
eligible to earn discretionary annual incentive compensation (the
“
Performance
Bonus
”), based on the achievement of individual and
corporate performance targets and metrics to be determined and
approved by the Board or the Compensation Committee thereof. The
Performance Bonus, if earned, will be paid on an annual basis, less
standard payroll deductions and withholdings, after the close of
the fiscal year and after determination by the Board (or the
Compensation Committee thereof) of the level of achievement of the
applicable performance targets and metrics and the level of the
bonus amount, but not later than March 15 of the following calendar
year. No Performance Bonus amount is guaranteed and, in addition to
the other conditions for earning such Performance Bonus, Executive
must remain an employee in good standing of the Company on the
scheduled annual Performance Bonus payment date in order to earn
any Performance Bonus, except as otherwise provided
herein.
2.3
Stock
Options.
Subject to the approval of the Board, the Company
will grant Executive options (incentive stock options, to the
extent possible pursuant to the terms of the Company’s 2017
Equity Incentive Plan (the “
Plan
”) and applicable law) (the
“
Options
”) to
purchase 1,000,000 shares of the Company’s common stock for
an exercise price equal to the fair market value on the date of the
grant. The Options shall vest in a series of 36 equal monthly
installments over three years, subject to Executive’s
Continuous Service (as defined in the Plan) on each such vesting
date. Notwithstanding anything to the contrary set forth in the
Plan or any award agreement, (A) if the Company consummates a
Change in Control (as that term is defined in the Plan) and subject
to (i) Executive’s Continuous Service through the date of the
consummation of the Change in Control or (ii) termination by the
Company without Cause or by the Executive for Good Reason within 90
days prior to the consummation of a Change in Control, Executive
shall vest immediately prior to such Change in Control as to 100%
of his otherwise unvested time-based equity awards (the
“
Single Trigger
Acceleration
”), provided, however, that in exchange
for the Single Trigger Acceleration, the Company may require
Executive to execute and deliver to the Company a signed and dated
general release of all known and unknown claims in substantially
the form attached hereto as
Exhibit A
(the
“
Release
”),
and (B) any unvested Options held by Executive shall become fully
vested on the date that the unweighted average closing price of the
Company’s common stock as quoted on the Nasdaq Capital Market
(or such similar established stock exchange) over the previous 20
trading days (including the date such calculation is measured)
first equals or exceeds $10.00 per share (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like
with respect to the Company’s common stock after the
Effective Date) (the “
Price
Threshold Date
”), subject to (i) Executive’s
Continuous Service through such Price Threshold Date or (ii)
termination by the Company without Cause or by the Executive for
Good Reason within 90 days prior to the Price Threshold
Date.
3.
Standard
Company Benefits.
Executive shall, in accordance with
Company policy and the terms and conditions of the applicable
Company benefit plan documents, be eligible to participate in the
benefit and fringe benefit programs provided by the Company to its
senior executive officers from time to time. Any such benefits
shall be subject to the terms and conditions of the governing
benefit plans and policies and may be changed by the Company in its
discretion.
4.
Expenses.
The Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in
furtherance or in connection with the performance of
Executive’s duties hereunder, in accordance with the
Company’s expense reimbursement policy as in effect from time
to time.
5.
Proprietary
Information Obligations
.
5.1
Proprietary
Information Agreement.
As a condition of employment, and in
consideration for the benefits provided for in this Agreement,
Executive shall sign and comply with the Company’s Employee
Confidential Information and Invention Assignment Agreement (the
“
Proprietary Information
Agreement
”) attached hereto as
Exhibit B
.
In
addition, Executive agrees to abide by the Company’s
internally published policies and procedures, as may be modified
and internally published from time to time within the
Company’s discretion.
5.2
Third-Party
Agreements and Information.
Executive represents and
warrants that Executive’s employment by the Company does not
conflict with any prior employment or consulting agreement or other
agreement with any third party, and that Executive will perform
Executive’s duties to the Company without violating any such
agreement. Executive represents and warrants that Executive does
not possess confidential information arising out of prior
employment, consulting, or other third party relationships, that
would be used in connection with Executive’s employment by
the Company, except as expressly authorized by that third party.
During Executive’s employment by the Company, Executive will
use in the performance of Executive’s duties only information
that is generally known and used by persons with training and
experience comparable to Executive’s own, common knowledge in
the industry, otherwise legally in the public domain, or obtained
or developed by the Company or by Executive in the course of
Executive’s work for the Company.
6.
Outside
Activities and Non-Competition During
Employment
.
6.1
Outside
Activities.
Throughout Executive’s employment with the
Company, Executive may engage in civic and not-for-profit
activities and manage his and his family’s passive
investments, so long as such activities do not materially interfere
with the performance of Executive’s duties hereunder or
present a conflict of interest with the Company or its affiliates.
Subject to the restrictions set forth herein, and only with prior
written disclosure to and consent of the Board, Executive may
engage in other types of business or public activities. The Board
may rescind such consent, if the Board determines, in its good
faith discretion, that such activities compromise or threaten to
compromise the Company’s or its affiliates’ business
interests or conflict or compete with Executive’s duties to
the Company or its affiliates. The Board has consented to
Executive’s service on the board of Polaris Industries,
Inc.
6.2
Non-Competition
During Employment.
Except as otherwise provided in this
Agreement, during Executive’s employment with the Company,
Executive will not, without the prior written consent of the Board,
directly or indirectly serve as an officer, director, stockholder,
employee, partner, proprietor, investor, joint venturer, associate,
representative or consultant of any person or entity engaged in, or
planning or preparing to engage in, business activity competitive
with any line of business engaged in (or planned to be engaged in)
by the Company; provided, however, that Executive may purchase or
otherwise acquire up to (but not more than) one percent (1%) of any
class of securities of any enterprise (without participating in the
activities of such enterprise) if such securities are listed on any
national or regional securities exchange.
7.
Termination
of Employment; Severance
.
7.1
At-Will
Employment.
Executive’s employment relationship is
at-will. Either Executive or the Company may terminate the
employment relationship at any time, with or without Cause (as
defined below) or advance notice.
7.2
Termination
Without Cause or Resignation for Good Reason.
In the event
Executive’s employment with the Company is terminated by the
Company without Cause (and other than as a result of
Executive’s death or Disability (as defined below)) or
Executive resigns his employment for Good Reason, then provided
such termination or resignation constitutes a “separation
from service” (as defined under Treasury Regulation Section
1.409A-1(h), without regard to any alternative definition
thereunder, a “
Separation
from Service
”), and provided that Executive satisfies
the Release Requirement in Section 8 below, the Company shall
provide Executive with the following “
Severance Benefits
”:
7.2.1
Severance Payments
.
Severance pay in the form of continuation of Executive’s Base
Salary for a period of twelve (12) months following termination,
subject to required payroll deductions and tax withholdings (the
“
Severance
Payments
”). Subject to Section 8 below, the Severance
Payments shall be made on the Company’s regular payroll
schedule in effect following Executive’s termination date;
provided, however that any such payments that are otherwise
scheduled to be made prior to the Release Effective Date (as
defined below) shall instead accrue and be made on the first
administratively practicable payroll date following the Release
Effective Date. For such purposes, Executive’s final Base
Salary will be calculated prior to giving effect to any reduction
in Base Salary that would give rise to Executive’s right to
resign for Good Reason.
7.2.2
Health Care Continuation Coverage
Payments
. If Executive timely elects continued coverage
under COBRA, the Company will pay Executive’s COBRA premiums
to continue Executive’s coverage (including coverage for
Executive’s eligible dependents, if applicable)
(“
COBRA
Premiums
”) through the period starting on the
termination date and ending twelve (12) months after the
termination date (the “
COBRA
Premium Period
”); provided, however, that the
Company’s provision of such COBRA Premium benefits will
immediately cease if during the COBRA Premium Period Executive
becomes eligible for group health insurance coverage through a new
employer or Executive ceases to be eligible for COBRA continuation
coverage for any reason, including plan termination. In the event
Executive becomes covered under another employer’s group
health plan or otherwise ceases to be eligible for COBRA during the
COBRA Premium Period, Executive must immediately notify the Company
of such event. The COBRA Premiums paid by the Company shall be
treated as taxable income to Executive.
7.2.3
Equity Acceleration upon
Termination
.
Notwithstanding
anything to the contrary set forth in the Plan
or any award
agreement, effective as of Executive’s employment termination
date, the vesting and exercisability of the then unvested
time-based vesting equity awards that would have otherwise become
vested had Executive performed Continuous Service through the one
year anniversary of Executive’s employment termination date
then held by Executive shall accelerate and become immediately
vested and exercisable, if applicable, by Executive upon such
termination and shall remain exercisable, if applicable, following
Executive’s termination as set forth in the applicable equity
award documents. With respect to any performance-based vesting
equity award, such award shall continue to be governed in all
respects by the terms of the applicable equity award documents.
Upon any such termination, Executive shall have three (3) years to
exercise any options or stock appreciation rights, but no later
than ten (10) years from the date of grant or the date when the
options or stock appreciation rights would otherwise terminate
under the Plan other than as a result of termination of employment
(e.g., if all of the Company’s options are accelerated and
terminate if not exercised in connection with a Change in Control
(as that term is defined in the Plan), then Executive’s
options will also terminate if not exercised in connection with the
Change in Control).
7.2.4
Pro Rata Bonus
. Executive
shall be eligible to receive, based on the good faith determination
of the Board or the Compensation Committee thereof, a pro rata
Performance Bonus based on actual results and Executive’s
period of employment during the fiscal year in which termination
occurred (the “
Pro Rata
Bonus
”), on the date when other bonuses are paid for
the fiscal year.
7.2.5
No Mitigation or
Offset
. The Executive shall have no obligation to mitigate
the obligations hereunder, and the amounts due hereunder shall not
be offset by any amounts otherwise earned by
Executive.
7.3
Termination
for Cause; Resignation Without Good Reason; Death or
Disability.
Executive will not be eligible for, or entitled
to any severance benefits, including (without limitation) the
Severance Benefits listed in Section 7.2 above, if the Company
terminates Executive’s employment for Cause, Executive
resigns Executive’s employment without Good Reason, or
Executive’s employment terminates due to Executive’s
death or Disability, provided that the Executive, in the case of
death or Disability termination, shall be eligible to receive a Pro
Rata Bonus.
8.
Conditions
to Receipt of Severance Benefits.
To be eligible for any of
the Severance Benefits pursuant to Section 7.2 above, Executive
must satisfy the following release requirement (the
“
Release
Requirement
”): return to the Company a signed and
dated Release within the applicable deadline set forth therein, but
in no event later than forty-five (45) calendar days following
Executive’s termination date, and permit the Release to
become effective and irrevocable in accordance with its terms (such
effective date of the Release, the “
Release Effective Date
”). No
Severance Benefits will be provided hereunder prior to the Release
Effective Date. Accordingly, if Executive refuses to sign and
deliver to the Company an executed Release or signs and delivers to
the Company the Release but exercises Executive’s right, if
any, under applicable law to revoke the Release (or any portion
thereof), then Executive will not be entitled to any severance,
payment or benefit under this Agreement.
9.
Accrued
Amounts.
On any termination, the Executive shall promptly
receive earned but unpaid Base Salary, accrued but unused vacations
and unreimbursed expenses (in accordance with the Company’s
applicable expense reimbursement policies), and shall be entitled
to any amounts due under any benefit or fringe plan or program in
accordance with the provisions of the plan or program.
10.
Section
409A.
It is intended that all of the severance benefits and
other payments payable under this Agreement satisfy, to the
greatest extent possible, the exemptions from the application of
Code Section 409A provided under Treasury Regulations
1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this
Agreement will be construed to the greatest extent possible as
consistent with those provisions, and to the extent no so exempt,
this Agreement (and any definitions hereunder) will be construed in
a manner that complies with Section 409A. For purposes of Code
Section 409A (including, without limitation, for purposes of
Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s
right to receive any installment payments under this Agreement
(whether severance payments, reimbursements or otherwise) shall be
treated as a right to receive a series of separate payments and,
accordingly, each installment payment hereunder shall at all times
be considered a separate and distinct payment. Any reference to
termination or similar words shall mean a separation from service
under the meaning of Code Section 409A. Notwithstanding any
provision to the contrary in this Agreement, if Executive is deemed
by the Company at the time of Executive’s Separation from
Service to be a “specified employee” for purposes of
Code Section 409A(a)(2)(B)(i), and if any of the payments upon
Separation from Service set forth herein and/or under any other
agreement with the Company are deemed to be “deferred
compensation”, then to the extent delayed commencement of any
portion of such payments is required in order to avoid a prohibited
distribution under Code Section 409A(a)(2)(B)(i) and the related
adverse taxation under Section 409A, such payments shall not be
provided to Executive prior to the earliest of (i) the expiration
of the six-month and one day period measured from the date of
Executive’s Separation from Service with the Company, (ii)
the date of Executive’s death or (iii) such earlier date as
permitted under Section 409A without the imposition of adverse
taxation. Upon the first business day following the expiration of
such applicable Code Section 409A(a)(2)(B)(i) period, all payments
deferred pursuant to this Section 10 shall be paid in a lump sum to
Executive, and any remaining payments due shall be paid as
otherwise provided herein or in the applicable agreement. No
interest shall be due on any amounts so deferred. If any severance
benefits provided under this Agreement constitutes “deferred
compensation” under Section 409A, for purposes of determining
the schedule for payment of the severance benefits, the effective
date of the Release will be the sixtieth (60th) date following the
Separation From Service, regardless of when the Release actually
becomes effective. To the extent required to avoid accelerated
taxation and/or tax penalties under Code Section 409A, amounts
reimbursable to Executive under this Agreement shall be paid to
Executive on or before the last day of the year following the year
in which the expense was incurred, amounts shall not be subject to
liquidation or exchange for another benefit, and the amount of
expenses eligible for reimbursement (and in-kind benefits provided
to Executive) during any one year may not effect amounts
reimbursable or provided in any subsequent year. The Company makes
no representation that any or all of the payments described in this
Agreement will be exempt from or comply with Code Section
409A.
11.
Section
280G; Limitations on Payment
.
11.1
If
any payment or benefit Executive will or may receive from the
Company or otherwise (a “
280G
Payment
”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and
(ii) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “
Excise Tax
”), then any such 280G
Payment provided pursuant to this Agreement (a “
Payment
”) shall be equal to the
Reduced Amount. The “
Reduced
Amount
” shall be either (x) the largest portion
of the Payment that would result in no portion of the Payment
(after reduction) being subject to the Excise Tax or (y) the
largest portion, up to and including the total, of the Payment,
whichever amount (i.e., the amount determined by clause (x) or by
clause (y)), after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax
(all computed at the highest applicable marginal rate), results in
Executive’s receipt, on an after-tax basis, of the greater
economic benefit notwithstanding that all or some portion of the
Payment may be subject to the Excise Tax. If a reduction in a
Payment is required pursuant to the preceding sentence, the
reduction shall occur in the manner (the “
Reduction Method
”) that results in
the greatest after tax economic benefit for Executive. If more than
one method of reduction will result in the same after tax economic
benefit, the items so reduced will be reduced pro rata (the
“
Pro Rata Reduction
Method
”).
11.2
Notwithstanding
any provision of Section 11.1 to the contrary, if the
Reduction Method or the Pro Rata Reduction Method would result in
any portion of the Payment being subject to taxes pursuant to
Section 409A that would not otherwise be subject to taxes pursuant
to Section 409A, then the Reduction Method and/or the Pro Rata
Reduction Method, as the case may be, shall be modified so as to
avoid the imposition of taxes pursuant to Section 409A as follows:
(A) as a first priority, the modification shall preserve to
the greatest extent possible, the greatest after tax economic
benefit for Executive as determined on an after-tax basis;
(B) as a second priority, Payments that are contingent on
future events (
e.g.
, being
terminated without Cause), shall be reduced (or eliminated) before
Payments that are not contingent on future events; and (C) as
a third priority, Payments that are “deferred
compensation” within the meaning of Section 409A shall be
reduced (or eliminated) before Payments that are not deferred
compensation within the meaning of Section 409A.
11.3
Unless Executive
and the Company agree on an alternative accounting firm or law
firm, the accounting firm engaged by the Company for general tax
compliance purposes as of the day prior to the effective date of
the Change in Control transaction shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or
group effecting the Change in Control transaction, the Company
shall appoint a nationally recognized accounting or law firm to
make the determinations required by this Section 11. The Company
shall bear all expenses with respect to the determinations by such
accounting or law firm required to be made hereunder.
The Company shall use commercially reasonable
efforts to cause the accounting or law firm engaged to make the
determinations hereunder to provide its calculations, together with
detailed supporting documentation, to
Executive
and the Company within fifteen (15) calendar days
after the date on which
Executive’s
right to a 280G Payment becomes reasonably likely
to occur (if requested at that time by
Executive
or the Company) or such other time as
requested by
Executive
or the
Company.
11.4
If
Executive receives a Payment for which the Reduced Amount was
determined pursuant to clause (x) of Section 11.1 and the Internal
Revenue Service determines thereafter that some portion of the
Payment is subject to the Excise Tax, Executive agrees, to the
extent not in violation of the Sarbanes-Oxley Act, to promptly
return to the Company a sufficient amount of the Payment (after
reduction pursuant to clause (x) of Section 11.1) so that no
portion of the remaining Payment is subject to the Excise Tax. For
the avoidance of doubt, if the Reduced Amount was determined
pursuant to clause (y) of Section 11.1, Executive shall have no
obligation to return any portion of the Payment pursuant to the
preceding sentence.
12.
Definitions
.
12.1
Cause.
For the purposes of this Agreement, “
Cause
” means the occurrence of any
one or more of the following:
(i)
Executive’s
conviction of or plea of guilty or
nolo contendere
to any felony;
(ii)
Executive’s willful and continued failure or refusal to
follow lawful and reasonable instructions of the Company or the
Board or lawful, reasonable, material and internally published
policies and regulations of the Company;
(iii) Executive’s willful and continued failure to
perform the assigned duties of Executive’s employment with
the Company; (iv) unethical or fraudulent conduct by Executive that
materially discredits the Company or is materially detrimental to
the reputation, character and standing of the Company; or (v)
Executive’s material breach of this Agreement or the
Proprietary Information Agreement. An event described in Section
12.1(ii) through Section 12.1(v) herein shall not be treated as
“Cause” until after Executive has been given written
notice of such event, failure, conduct or breach and Executive
fails to cure such event, failure, conduct or breach within 30
calendar days from such written notice; provided, however, that
such 30 calendar day cure period shall not be required if the
event, failure, conduct or breach is incapable of being
cured.
12.2
Good
Reason.
For purposes of this Agreement, Executive shall have
“
Good Reason
”
for resignation from employment with the Company if any of the
following actions are taken by the Company without
Executive’s prior written consent: (i) a reduction in
Executive’s Base Salary, other than a reduction by less than
ten percent (10%) of the Executive’s highest Base Salary
pursuant to a salary reduction program applicable generally to the
Company’s senior executives; (ii) a material reduction in
Executive’s duties (including responsibilities and/or
authorities) or reporting lines; (iii) a relocation of
Executive’s principal place of employment to a place that
increases Executive’s one-way commute by more than thirty
(30) miles as compared to Executive’s then-current principal
place of employment immediately prior to such relocation (excluding
any relocation to the Company’s Irvine, California office);
or (iv) a material breach of this Agreement. In order for
Executive to resign for Good Reason, each of the following
requirements must be met: (w) Executive must provide written
notice to the Company’s Board within 60 days after the first
occurrence of the event giving rise to Good Reason setting forth
the basis for Executive’s resignation, (x) Executive must
allow the Company at least calendar 30 days from receipt of such
written notice to cure such event, (y) such event is not reasonably
cured by the Company within such 30 calendar day period (the
“
Cure Period
”),
and (z) Executive must resign from all positions Executive
then holds with the Company not later than calendar 30 days after
the expiration of the Cure Period.
12.3
Disability
.
For purposes of this Agreement, “
Disability
” means that Executive
is unable to perform the essential functions of his position
(notwithstanding the provision of any reasonable accommodation) by
reason of any medically determinable physical or mental impairment
which has lasted for a period of one hundred and twenty (120) days
during any consecutive six (6) month period.
13.
Dispute
Resolution.
To ensure the rapid and economical resolution of
disputes that may arise in connection with Executive’s
employment with the Company, Executive and the Company agree that
any and all disputes, claims, or causes of action, in law or
equity, including but not limited to statutory claims, arising from
or relating to the enforcement, breach, performance, or
interpretation of this Agreement, Executive’s employment with
the Company, or the termination of Executive’s employment
with the Company, will be resolved pursuant to the Federal
Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent
permitted by law, by final, binding and confidential arbitration
conducted in Irvine, California by JAMS, Inc. (“
JAMS
”) or its successors by a
single arbitrator.
Both Executive and the
Company acknowledge that by agreeing to this arbitration procedure,
they each waive the right to resolve any such dispute through a
trial by jury or judge or administrative
proceeding
.
Any
such arbitration proceeding will be governed by JAMS’ then
applicable rules and procedures for employment disputes, which will
be provided to Executive upon request. In any such proceeding, the
arbitrator shall: (i) have the authority to compel adequate
discovery for the resolution of the dispute and to award such
relief as would otherwise be permitted by law;
and
(ii) issue a written arbitration decision including the
arbitrator’s essential findings and conclusions and a
statement of the award. Executive and the Company each shall be
entitled to all rights and remedies that either would be entitled
to pursue in a court of law. Nothing in this Agreement is intended
to prevent either the Company or Executive from obtaining
injunctive relief in court to prevent irreparable harm pending the
conclusion of any such arbitration pursuant to applicable law. The
Company shall pay all filing fees in excess of those which would be
required if the dispute were decided in a court of law, and shall
pay the arbitrator’s fees and any other fees or costs unique
to arbitration. The parties shall pay their own legal fees. Any
awards or orders in such arbitrations may be entered and enforced
as judgments in the federal and state courts of any competent
jurisdiction.
14.
General
Provisions
.
14.1
Notices.
Any notices provided must be in writing and will be deemed
effective upon the earlier of personal delivery (including personal
delivery by fax) or the next day after sending by overnight
carrier, to the Company at its primary office location and to
Executive at the address as listed on the Company
payroll.
14.2
Severability.
Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction to the extent possible
in keeping with the intent of the parties.
14.3
Waiver.
Any waiver of any breach of any provisions of this Agreement must
be in writing to be effective, and it shall not thereby be deemed
to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
14.4
Complete
Agreement.
This Agreement, together with the Proprietary
Information Agreement and to the extent referenced in this
Agreement, the Plan, constitutes the entire agreement between
Executive and the Company with regard to the subject matter hereof
and is the complete, final, and exclusive embodiment of the
Company’s and Executive’s agreement with regard to this
subject matter. This Agreement is entered into without reliance on
any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes and replaces any
other agreements or promises made to Executive by anyone concerning
Executive’s employment terms, compensation or benefits,
whether oral or written (including but not limited any agreements
or promises with or from the Company or any of its affiliates or
predecessors). It cannot be modified or amended except in a writing
signed by a duly authorized officer of the Company, with the
exception of those changes expressly reserved to the
Company’s discretion in this Agreement.
14.5
Counterparts.
This Agreement may be executed in separate counterparts, any one of
which need not contain signatures of more than one party, but both
of which taken together will constitute one and the same
Agreement.
14.6
Headings.
The headings of the sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
14.7
Successors
and Assigns.
This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and
administrators, except that Executive may not assign any of
Executive’s duties hereunder, Executive may not assign any of
Executive’s rights hereunder without the written consent of
the Company, which shall not be withheld unreasonably, and the
Company may not assign this Agreement, except to an Affiliate (as
defined in the Plan) or to a successor in connection with a Change
in Control.
14.8
Tax
Withholding.
All payments and awards contemplated or made
pursuant to this Agreement will be subject to withholdings of
applicable taxes in compliance with all relevant laws and
regulations of all appropriate government authorities. Executive
acknowledges and agrees that the Company has neither made any
assurances nor any guarantees concerning the tax treatment of any
payments or awards contemplated by or made pursuant to this
Agreement. Executive has had the opportunity to retain a tax and
financial advisor and fully understands the tax and economic
consequences of all payments and awards made pursuant to this
Agreement.
14.9
Choice
of Law.
All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the laws
of the State of California.
In Witness
Whereof
, this Agreement shall be effective as of the
Effective Date.
|
|
ChromaDex
Corporation
By:
/s/ Frank
Jaksch,
Jr.
FRANK JAKSCH, JR.
Chief Executive Officer
Executive
/s/
Kevin M. Farr
KEVIN M. FARR
|
Exhibit 99.1
ChromaDex Appoints Kevin Farr as New
CFO
IRVINE, Calif., Oct. 9, 2017
–
ChromaDex Corp. (NASDAQ: CDXC), an innovator of science-based,
proprietary health and wellness consumer products and ingredient
technologies that promote health longevity, announced today that it
has appointed Kevin Farr as new Chief Financial Officer, effective
immediately. Farr is joining ChromaDex from Mattel, Inc., where he
was Executive Vice President and CFO since 2000. Farr brings
extensive global experience in building iconic consumer brands,
including American Girl, Barbie, Fisher-Price, Hot Wheels and
Thomas & Friends. ChromaDex expects that Thomas Varvaro will
transition from ChromaDex over the coming months to pursue other
opportunities. During this transition, he will take on the role of
Senior Vice President, Finance and will report to Kevin
Farr.
Farr
has extensive global S&P 500 public company experience in
corporate finance, treasury, tax, investor relations, strategic
planning, corporate development, mergers and acquisitions,
information technology, operational efficiency and transformation
programs, and capital market transactions.
“Kevin
is a seasoned finance and business leader with more than three
decades of experience, including a top leadership position at one
of the world’s great consumer goods companies,” said
Robert Fried, President and Chief Strategy Officer of ChromaDex.
“I’m excited to welcome Kevin to ChromaDex’s
senior leadership team as CFO. His integrity and results-oriented
mindset, will complement our team, as we focus on ChromaDex’s
new growth strategy.”
“I
see tremendous global growth opportunities for ChromaDex’s
multifaceted ingredient, consulting and consumer products that
focus on various patented ingredients and its flagship consumer
product, TRU NIAGEN
™
,” said
Kevin Farr. “I look forward to executing our new strategy to
deliver TRU NIAGEN
™
directly to
the consumer and select resellers.”
Mr.
Farr serves on the board of directors and is Chairman of the Audit
Committee of Polaris, Inc., as well as on the Corporate Advisory
Board of the Marshall School of Business at the University of
Southern California. Kevin received his master’s degree at
Northwestern University and is a Certified Public Accountant. Prior
to joining Mattel, he worked at PricewaterhouseCoopers for 10
years.
“I
want to thank Tom Varvaro for his outstanding leadership as
ChromaDex’s CFO over the last 14 years,” said ChromaDex
Co-Founder and CEO, Frank Jaksch. “Tom has been instrumental
in building ChromaDex into the science based innovation company
that we are today.”
Tom
Varvaro stated, "I am very proud of the work we have done at
ChromaDex during my tenure, and it has been a very rewarding
personal experience for me as well. I will continue to follow the
company closely as the team builds on the current positive momentum
and I look forward to seeing what they will be able to accomplish
with NIAGEN
®
over the coming
years.”
About ChromaDex:
ChromaDex leverages its complementary business units to discover,
acquire, develop and commercialize patented and proprietary
ingredient technologies that address the dietary supplement, food,
beverage, skin care and pharmaceutical markets. In addition to our
ingredient technologies unit, we also have business units focused
on natural product fine chemicals (known as "phytochemicals"),
chemistry and analytical testing services, and product regulatory
and safety consulting. As a result of our relationships with
leading universities and research institutions, we are able to
discover and license early stage, IP-backed ingredient
technologies. We then utilize our in-house chemistry, regulatory
and safety consulting business units to develop commercially viable
ingredients. Our ingredient portfolio is backed with clinical and
scientific research, as well as extensive IP protection. Our
portfolio of patented ingredient technologies includes
NIAGEN
®
nicotinamide riboside;
pTeroPure
®
pterostilbene;
PURENERGY
®
,
a caffeine-pTeroPure
®
co-crystal;
IMMULINA
™
,
a spirulina extract; and
AnthOrigin
®
,
anthocyanins derived from a domestically-produced, water-extracted
purple corn. To learn more about ChromaDex, please visit
www.ChromaDex.com
.
Forward-Looking Statements:
This
release contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities and Exchange Act of 1934, as
amended, including statements related to Mr. Varvaro’s
transition from ChromaDex, ChromaDex’s growth strategy, the
ability of Mr. Farr to complement the ChromaDex team, the global
growth opportunities for ChromaDex’s multifaceted ingredient,
consulting and consumer products that focus on various patented
ingredients and its flagship consumer product, TRU
NIAGEN
™
, and the
performance of NIAGEN
®
over the coming
years. Statements that are not a description of historical facts
constitute forward-looking statements and may often, but not
always, be identified by the use of such words as "expects",
"anticipates", "intends", "estimates", "plans", "potential",
"possible", "probable", "believes", "seeks", "may", "will",
"should", "could" or the negative of such terms or other similar
expressions. More detailed information about ChromaDex and the risk
factors that may affect the realization of forward-looking
statements is set forth in ChromaDex's Annual Report on Form 10-K
for the fiscal year ended December 31, 2016, ChromaDex's Quarterly
Reports on Form 10-Q and other filings submitted by ChromaDex to
the SEC, copies of which may be obtained from the SEC's website at
www.sec.gov
.
Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof,
and actual results may differ materially from those suggested by
these forward-looking statements. All forward-looking statements
are qualified in their entirety by this cautionary statement and
ChromaDex undertakes no obligation to revise or update this release
to reflect events or circumstances after the date
hereof.
ChromaDex Investor Relations Contact:
Andrew
Johnson, Director of Investor Relations
949-419-0288
andrewj@chromadex.com
ChromaDex Public Relations Contact:
Breah
Ostendorf, Director of Marketing
949-537-4103
breaho@chromadex.com
END
###