Exhibit 10.1

CERTAIN INFORMATION CONTAINED IN THIS EXHIBIT, MARKED BY [***], HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE THE REGISTRANT HAS DETERMINED THAT IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

SHAREHOLDERS AGREEMENT

among

HONG KONG TAIKUK (CHINA) GROUP LTD.

ASIA PACIFIC SCIENTIFIC, INC.

and

CHROMADEX ASIA PACIFIC VENTURES LIMITED

DATED: SEPTEMBER 30, 2022

TABLE OF CONTENTS

SHAREHOLDERS AGREEMENT

This SHAREHOLDERS AGREEMENT (this “Agreement”) is made on September 30, 2022 by and among:

(1)         Hong Kong Taikuk (China) Group Ltd, a company organized under the laws of Hong Kong with its registered address at No. 58, Yingfangli, Sanfangqiqiang, FZ China (“Taikuk”);

(2)         Asia Pacific Scientific, Inc., a company organized under the laws of the Cayman Islands with its registered address at MCS, PO Box 309, Ugland House, Grand Cayman KY1-1104, Cayman Islands (“CDXC”); and

(3)         ChromaDex Asia Pacific Ventures Limited, a Hong Kong limited company (the “Company” and, together with the Shareholders, each a “Party” and collectively the “Parties”).

RECITALS

A.         The Parties intend for CDXC or its designee (i) to obtain all applicable regulatory approvals required to commercialize the Products in the Territory, including “Blue Hat” or health food registration with the PRC State Administration for Market Regulation for Products (“Blue Hat Registration”) in the name of CDXC or its designee in the Territory for all of ChromaDex Corporation’s proprietary products containing nicotinamide riboside (collectively, the “Product(s)”); (ii) to enter into a non-exclusive distribution agreement with China National Pharmaceutical Group Co., Ltd. (“Sinopharm”) relating to the commercialization of the Products in the Territory (the “Sinopharm Distribution Agreement”); and (iii) after CDXC or its designee has obtained such Blue Hat Registration, to market, to sell and distribute the Products in the Territory pursuant to the Sinopharm Distribution Agreement (collectively, the “JV Purpose”);

B.         ChromaDex Asia Limited entered into a distribution agreement, with an effective date of April 1, 2022, with Sinopharm relating to the commercialization of the Products on Sinopharm’s cross border platform (the “Cross Border Agreement”);

C.         In consideration of, among other things, Taikuk’s obligations as set forth in the Transaction Documents, Taikuk shall receive 1,100 Non-Voting Shares at the Closing, subject to Section 3.4 hereto; and

D.         The Parties wish to enter into this Agreement to set forth the rights and obligations of each Party on the terms and subject to the conditions provided herein.

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE 1
 

DEFINITIONS AND INTERPRETATION

1.1    Definitions. As used in this Agreement, the following terms have the following meaning:

“Affiliate” means, with respect to any person or entity, any other person Controlling, Controlled by or under common Control with such person or entity, including, without limitation, any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter existing that is controlled by one (1) or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such person or entity. No Party or its Affiliates shall by reason of this Agreement be deemed to be an Affiliate of any other Party or its Affiliates. For the purposes of this Agreement, the Company shall not be an Affiliate of any Shareholder or its Affiliates, and none of the Shareholders or their Affiliates shall be an Affiliate of the Company. The term “Affiliated” shall have a corresponding meaning.

“Agreement” has the meaning defined in the Preamble.

“Anti-Corruption Law” means laws, regulations, directives and statutes, in each case, relating to anti-bribery or anti-corruption, which apply to the business and dealings of the Group Companies, including laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any government official to obtain a business advantage; such as, without limitation, the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong), the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554 of the Laws of Hong Kong), the Criminal Law of the People’s Republic of China, the Anti-Unfair Competition Law of the People’s Republic of China, the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, each as supplemented, amended, re-enacted or replaced from time to time, together with their implementing regulations, and any other Applicable Law that relates to bribery or corruption to which any party is subject, including all national and international laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.

“Anti-Corruption Policy” has the meaning defined in Section 5.6.1.

“Anti-Money Laundering Laws” means the U.S. Bank Secrecy Act, the U.S. Money Laundering Control Act of 1986, the U.S. International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, the Organised and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong), the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405 of the Laws of Hong Kong), the United Nations (Anti- Terrorism Measures) Ordinance (Cap. 575 of the Laws of Hong Kong), the Anti Money Laundering and Counter Terrorist Financing Ordinance (Cap. 615 of the Laws of Hong Kong), the United Nations Sanctions Ordinance (Cap. 537 of the Laws of Hong Kong), the Weapons of Mass Destruction (Control of Provision of Services) Ordinance (Cap. 526 of the Laws of Hong Kong), the Import and Export Ordinance, (IEO) (Cap. 60 of the Laws of Hong Kong), the Cross boundary Movement of Physical Currency and Bearer Negotiable Instruments Ordinance (Cap. 629 of the Laws of Hong Kong), the Criminal Law of the People’s Republic of China and related judicial interpretations including the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of the Laws in the Trial of Money Laundering and Other Criminal Cases, and the Anti-Money Laundering Law of the People’s Republic of China, and any other anti-money laundering and anti-terrorist financing laws, rules, regulations or other legally binding measures of the jurisdictions where any Party or the Group Companies conduct business.

“Applicable Accounting Principles” means the United States generally accepted accounting principles and practices as in effect from time to time.

“Applicable Law” means, as to any Person, any ordinance, statute, law, rule, regulation, directive, treaty, judgment, order, decree, interpretation, permit or injunction of any Governmental Authority, securities exchange or other self-regulating body, including any common or customary law, that is applicable to or binding upon such Person or any of its properties.

“Applicable Shareholder” has the meaning defined in Exhibit 3.

“Associated Persons” means, in relation to any entity, its directors, officers, employees, and its agents and representatives acting on behalf of such Person.

“Auditors” has the meaning defined in Section 4.5.3.

“Bad Acts” has the meaning defined in Section 4.7.1.

“Blue Hat Registration” has the meaning defined in Recital A.

“Board” means the board of directors of the Company.

“Book Items” has the meaning defined in Section 4.9.1.

“Breaching Party” has the meaning defined in Section 6.1.3(a).

“Budget Act” means the Bipartisan Budget Act of 2015 and any Sections of the Code or the Treasury Regulations promulgated thereunder and with respect thereto, each as amended from time to time.

“Business” has the meaning defined in Section 2.1.

“Business Day” means any day other than a Saturday, Sunday or day on which commercial banks in the PRC, Los Angeles or Hong Kong are required to be closed.

“CDXC” has the meaning defined in the Preamble.

“CDXC Designee” has the meaning defined in Section 5.10.

“CDXC Designee Net Revenue” means the amounts actually received by CDXC or its Affiliates from the use, sale, licensing, sublicensing, support, manufacture, supply or other disposition of the Products after deductions as agreed to in the Cross Border Agreement.

“CDXC Marks” means the Marks owned or controlled by CDXC or its Affiliates in the Territory as of the Closing Date and during the term of this Agreement, including any trademarks in the “ChromaDex” name.

“CDXC Technology” means all Inventions in the Territory relating to the Products controlled by CDXC or its Affiliates as of the Closing Date, including all Intellectual Property Rights in the Territory therein to the extent necessary to carry out the Business. For purpose of this definition, “controlled” means, with respect to an Invention, that CDXC has the right, power and legal authority, whether arising by ownership, licence or other authorisation, to disclose, and/or to grant and authorise licences or sub-licences under, such items as required under the terms of this Agreement, without violating the terms of any written agreement with any third party under which CDXC or its Affiliates first acquired such rights to such item of Invention.

“CEO” has the meaning defined in Section 4.4.1.

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“CFO” has the meaning defined in Section 4.4.1.

“Closing” has the meaning defined in Section 3.1.

“Closing Date” has the meaning defined in Section 3.1.

“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of succeeding law.

“Company” has the meaning defined in the Preamble.

“Company Net Revenue” means the amounts actually received by the Group Companies from the use, sale, licensing, sublicensing, support, manufacture, supply or other disposition of the Products after the deductions set forth below: sales returns and allowances actually paid, granted or accrued, quantity and cash discounts for price adjustments, billing errors, rejected goods, damaged or defective goods, recalls, returns, rebates, chargeback rebates, compulsory rebates, reimbursements or similar payments granted or given to wholesalers or other distributors, adjustments arising from consumer discount programs or other similar programs, customs or excise duties, sales tax, consumption tax, value added tax, and other taxes (except income taxes), and charges for packing, freight, shipping and insurance. Company Net Revenue will be calculated consistent with its ordinary practice and in accordance with International Financial Reporting Standards.

“Company Securities” means the Securities of the Company.

“Confidential Information” has the meaning defined in Section 5.5.1.

“Constitutional Documents” of any Person means such Person’s memorandum and articles of association or incorporation, by-laws, shareholders or joint venture agreements, certificate of formation or equivalent governing or organizational documents.

“Control” (and the derivative terms “Controlling” and “Controlled”) means the direct or indirect ownership of more than 50% of the equity securities or other ownership interests or voting rights of, or the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.

“Cross Border Agreement” has the meaning defined in Recital B.

“Deed of Adherence” means the Deed of Adherence substantially in the form of Exhibit 2 hereto.

“Defaulting Party” has the meaning defined in Section 6.1.3.

“Directors” has the meaning defined in Section 4.2.2.

“Disclosing Party” has the meaning defined in Section 5.5.1.

“Dragging Shareholders” has the meaning defined in Section 7.3.1.

“Encumbrances” means any option, pledge, mortgage, security interest, lien, charge, claim, encumbrance, reservation or other restriction having similar effect with respect to any tangible or intangible property in favor of any third party and, with respect to any Securities, shall include any right of management or voting or interest under any trust arrangement relating to such Securities, whether arising in contract or attaching to such Securities.

“Equity Incentive Plan” has the meaning defined in Section 5.11.

“Executive Officers” has the meaning defined in Section 4.4.1.

“Exit Transaction” has the meaning defined in Section 7.3.1.

“Fiscal Year” has the meaning defined in Section 4.5.1.

“Governmental Authority” means (a) any national, provincial, municipal, local or foreign government or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, (b) any public international organization, (c) any agency, division, bureau, department or other sector of any government, entity or organization described in the foregoing clauses (a) or (b) of this definition, or (d) any state-owned or state-controlled enterprise or other entity owned or controlled by any government, entity or organization described in clauses (a), (b) or (c) of this definition.

“Group Companies” has the meaning defined in Section 2.3.

“Group Parties” has the meaning defined in Exhibit 3.

“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.

“Insolvent Party” has the meaning defined in Section 6.1.3(b).

“Intellectual Property Rights” means all United States and foreign rights of the following types, whether registered and unregistered, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, applications for copyright registration, design rights (including color combinations, package or label designs and font type), and moral rights, (b) rights in trade secrets, Confidential Information, and know-how (including any techniques, specifications, designs, processes, practical knowledge and skills, or other similar information), (c) patents, patent applications (including reissues, reexaminations, continuations, and continuations-in-part), and any counterparts worldwide claiming priority therefrom, and all rights in and to any of the foregoing, (d) data rights, (e) Marks, (f) all other intellectual property rights or proprietary rights throughout the world, and (g) all past, present and future claims and causes of action arising out of or related to infringement, misappropriation or other violation of any of the foregoing.

“Invention” means any and all designs, data, information, inventions, improvements, development, know-how, discoveries (whether patentable or not), formulations, methodologies, procedures, and processes.

“JAMS” means JAMS, Inc.

“JAMS Rules” means the then applicable JAMS Comprehensive Arbitration Rules & Procedures.

“JV Purpose” has the meaning defined in Recital A.

“Marks” means all distinctive identifiers, including trademarks, service marks, trade dress, logos, trade names, corporate names, and other indicia of ownership, domain names, mnemonic “vanity” telephone numbers, social media, blog, microblog, or messaging service names, handles, or accounts, or any other identifiers, whether registered or unregistered, together with all registrations, applications, translations, adaptations, derivations and combinations thereof.

“Negotiator” has the meaning defined in Section 7.3.1.

“New Shareholder” has the meaning defined in Exhibit 2.

“Non-Complying Party” has the meaning defined in Section 6.1.3(c).

“Non-Voting Shares” means class B ordinary shares of the Company that are ineligible to vote on matters presented at a general meeting of the Shareholders.

“Parties” or “Party” has the meaning defined in the Preamble.

“Person” means a natural person, corporation, partnership, limited liability company, trust or other legal entity and, where the context permits, shall include such person’s executors, administrators, legal representatives and permitted successors and assignors.

“PFIC” means a “passive foreign investment company” within the meaning of Section 1297 of the Code.

“PRC” or “China” means the People’s Republic of China and, for the purposes of this Agreement, shall exclude Hong Kong, the Macau Special Administrative Region of the PRC and Taiwan.

“Pre-Existing Arbitration” has the meaning defined in Section 8.2.2.

“Product(s)” has the meaning defined in Recital A.

“Pro Rata Portion” means, with respect to a Shareholder, a fraction determined by dividing (a) the number of the issued and outstanding Company Securities held by such Shareholder (including its Transferee Affiliates) by (b) the total number of the issued and outstanding Company Securities held by, subject to the immediate next sentence, all Shareholders. When the term “Pro Rata Portion” is used in reference to only Voting Shareholders, then such term shall mean, with respect to such Voting Shareholder, a fraction determined by dividing (i) the number of issued and outstanding Voting Shares held by such Shareholder (including its Transferee Affiliates) by (ii) the total number of issued and outstanding Voting Shares held by all Voting Shareholders.

“Public Official” means (a) any elected or appointed government official, officer, employee or Person acting in an official or public capacity on behalf of a government; (b) any official or employee of a quasi-public or non-governmental international organization; (c) any employee or other person acting for or on behalf of any entity that is wholly or partially government owned or Controlled by a government; (d) any Person exercising legislative, administrative, judicial, executive, or regulatory functions for or pertaining to government (including any independent regulator); (e) any political party official, officer, employee, or other Person acting for or on behalf of a political party; and (f) any candidate for public office. For purposes of this Agreement and unless otherwise stated, “Public Official” also includes any immediate relative of the foregoing Persons; provided, that the meaning of immediate relative shall be consistent with guidance issued by the U.S. Department of Justice.

“Receiving Party” has the meaning defined in Section 5.5.1.

“Registration Period” has the meaning defined in Section 3.3.1.

“Regulatory Approvals” has the meaning defined in Section 5.3.

“Representatives” has the meaning defined in Section 5.5.2.

“Repurchase Closing” has the meaning defined in Section 3.6.

“Repurchased Non-Voting Shares” has the meaning defined in Section 3.6.

“Right of Repurchase” has the meaning defined in Section 3.6.

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, any EU Member State, or Her Majesty’s Treasury of the United Kingdom, or (c) the PRC government, including those administered by the relevant departments under the PRC State Council.

“Sanctioned Country” means, at any time, a country, region or territory which is the subject or target of comprehensive Sanctions (at the time of this Contract, Cuba, Iran, North Korea, Syria, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic).

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the relevant departments under the PRC State Council, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country, (c) the government of a Sanctioned Country or the Government of Venezuela, or (d) any Person 50-percent or more owned or controlled by any such Person or Persons or acting for or on behalf of such Person or Persons.

“Securities” means, as to any Person, ordinary or preferred shares or other equity securities of such Person (whether voting or non-voting), and any other securities (equity, debt, derivative or otherwise) or instruments exchangeable, exercisable or convertible for or into ordinary or preferred shares or other equity securities of such Person.

“Shareholders” means CDXC and Taikuk, each a “Shareholder” and together the “Shareholders.”

“Shareholders Agreement” has the meaning defined in Exhibit 2.

“Shares” means the ordinary shares in the capital of the Company, including Voting Shares and Non-Voting Shares.

“Sinopharm” has the meaning defined in Recital A.

“Sinopharm Distribution Agreement” has the meaning defined in Recital A.

“Subsidiary” of an entity means any entity of which common stock or other equity securities having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such entity.

“Taikuk” has the meaning defined in the Preamble.

“Taikuk Fee” has the meaning defined in Section 3.4.1.

“Tax” or “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any additions to tax or penalties applicable thereto.

“Tax Advisor” has the meaning set out in Section 4.14.3.

“Tax Matters Shareholder” has the meaning set out in Section 4.14.3.

“Tax Proceeding” has the meaning set out in Section 4.14.1.

“Tax Returns” means any return, declaration, report, election, claim for refund or information return or other statement or form relating to, filed or required to be filed with any Taxing authority, including any schedule or attachment thereto or any amendment thereof.

“Term” has the meaning defined in Section 6.1.1.

“Territory” means mainland China and its territories, and, for the avoidance of doubt, does not mean Hong Kong, the Macau Special Administrative Region of the PRC and Taiwan.

“Trade Controls” means any laws and regulations administered and maintained by the United States government and the PRC government and any agency thereof pertaining to export or import controls or antiboycott laws, including, without limitation, the Arms Export Control Act (22 U.S.C. § 1778), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701–1706), Section 999 of the Internal Revenue Code, the U.S. customs laws at Title 19 of the U.S. Code, the Export Control Reform Act of 2018 (50 U.S.C. §§ 4801-4861), the U.S. Department of State’s International Traffic in Arms Regulations (22 C.F.R. Parts 120–130), the U.S. Department of Commerce’s Export Administration Regulations (15 C.F.R. Parts 730-774), the U.S. customs regulations at 19 C.F.R. Chapter 1, the Foreign Trade Regulations (15 C.F.R. Part 30), the Foreign Trade Law of the People’s Republic of China, the Customs Law of the People’s Republic of China, the Regulations of the People’s Republic of China on the Administration of Import and Export of Technologies, and the Law of the People’s Republic of China on Import and Export Commodity Inspection.

“Transaction Documents” means this Agreement, the Constitutional Documents of the Company and any other agreements designated as such by agreement of the Parties.

“Transfer” means any direct or indirect transfer, sale, conveyance, assignment, pledge, mortgage, charge, hypothecation or any other disposition whatsoever, or grant or issuance, either voluntarily, by operation of law, at judicial sale, or otherwise, of Securities (including any interest therein) to any Person, and “Transferred” shall be construed accordingly.

“Transferee Affiliate” has the meaning defined in Section 7.2.

“Transferring Party” has the meaning defined in Section 7.2.

“Treasury Regulations” means temporary and final U.S. Treasury regulations promulgated under the Code, as such definitions may be amended from time to time.

“US $” means the lawful currency of the United States of America.

“U.S. Capital Account” has the meaning defined in Section 4.9.1.

“Voting Shareholder” means CDXC.

“Voting Shares” means class A ordinary shares of the Company that are eligible to vote on matters presented at a general meeting of the Shareholders.

1.2    Construction; Interpretation.

1.2.1    No Presumption Against Drafting Party. This Agreement has been negotiated by the Parties and their respective counsel and shall be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either of the Parties. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party shall not apply and is hereby expressly waived.

1.2.2    Directly or Indirectly. The phrase “directly or indirectly” means directly or indirectly through one or more intermediate Persons or through contractual or other arrangements or understandings, and “direct or indirect” has the correlative meaning.

1.2.3    Gender and Number. Unless the context otherwise requires, all words (whether gender-specific or gender neutral) shall be deemed to include each of the masculine, feminine and neuter genders, and words importing the singular include the plural and vice versa.

1.2.4    Headings. Headings are included for convenience only and shall not affect the construction of any provision of this Agreement.

1.2.5    Include not Limiting. “Include,” “including,” “are inclusive of” and similar expressions are not expressions of limitation and shall be construed as if followed by the words “without limitation.”

1.2.6    References to Documents. References to this Agreement include the Schedules, Annexes and Exhibits, which form an integral part hereof. A reference to any Section, Schedule, Annex or Exhibit is, unless otherwise specified, to such Section of, Schedule, Annex or Exhibit to this Agreement. The words “hereof,” “hereunder” and “hereto,” and words of like import, unless the context requires otherwise, refer to this Agreement as a whole and not to any particular Section hereof or Schedule, Annex or Exhibit hereto. References to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, novated or restated from time to time. References in this Agreement to the Parties shall include the Parties and their successors and permitted assigns.

1.2.7    Writing or Written. Any reference to “writing” or “written” includes any method of reproducing words or text in a legible and non-transitory form (including via email).

1.2.8    Amendment to Statute. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time and any reference to any law includes the rules and regulations promulgated thereunder.

1.3    Time. For purposes of calculating the length of time from a given day, the relevant period shall be calculated exclusive of that day, unless otherwise specified. If an event is to take place on a certain day which is not a Business Day, it is to be done on the next Business Day.

ARTICLE 2

BUSINESS AND SCOPE

2.1    Scope. Initially the Company will be engaged to assist CDXC or its designee in its efforts to obtain Blue Hat Registration and enter into the Sinopharm Distribution Agreement. After CDXC or its designee obtains such Blue Hat Registration, to the extent not prohibited by Applicable Law, the business of the Company is to market, sell and distribute Products in the Territory (the “Business”).

2.2    Independent Operation of the Company. Without prejudice to the rights and obligations of the Shareholders set forth in this Agreement, the Company shall operate as an independent entity separate and apart from the Shareholders.

2.3    Formation of Joint Venture Subsidiaries. The Company may operate the Business directly or through local operating corporations, partnerships, associations, joint ventures or similar entities or arrangements, each serving one or more regions in the Territory, as shall be organized or established by the Company (each local entity, including the Company and its Subsidiaries, collectively, the “Group Companies” and each a “Group Company”).

ARTICLE 3

CAPITALIZATION MATTERS

3.1    Subscription of Shares. Concurrent with the execution of this Agreement (the “Closing Date”), Taikuk hereby subscribes for, and the Company hereby allots and issues to Taikuk, 1,100 Non-Voting Shares (representing 11% of the total number of Shares of the Company as increased by the subscription), for an aggregate subscription price of US $1,000,000 payable to the Company in cash on the date hereof; provided, however, that such Non-Voting Shares of the Company held by Taikuk shall be subject to the Company’s irrevocable, exclusive option to repurchase for cancellation under Section 3.6.

3.2    Payment of Funds. On the Closing Date, (a) Taikuk will pay its subscription price by wire transfer of immediately available funds to the Company’s bank account and the Company shall issue Shares in the numbers set forth below, and (b) CDXC or any of its Affiliates shall hold 8,900 Voting Shares (initially representing 89% of the total number of Shares of the Company as increased by the subscription). Upon completion of such subscription in Section 3.1 and the payment of the Taikuk Fee set forth in Section 3.4.1(a) below, the initial equity ownership of the Shareholders will be as follows:

3.2.1    CDXC or any of its Affiliates will hold 8,900 Voting Shares (initially representing 89% of the total number of Shares of the Company as increased by the subscription);

3.2.2    Taikuk will hold a 1,100 Non-Voting Shares (initially representing 11% of the total number of Shares of the Company as increased by the subscription).

3.3    Registration Period.

3.3.1    CDXC shall make a payment of US $1,000,000 in cash to Taikuk upon completion of Blue Hat Registration of the Product in the Territory, allowing the Company to market, sell and distribute the Product in the Territory; provided, however, that such Blue Hat Registration shall be completed within twenty-four (24) months following the Closing, which may be extended by 12 months upon the written consent of the Parties (such period, the “Registration Period”).

3.3.2    If Blue Hat Registration is not completed during the Registration Period, CDXC will have the right to cause the Company to promptly make a payment of remaining cash on hand in the Company to the Voting Shareholder, and the other Parties shall take the necessary action to facilitate such distribution. Following such distributions, the Parties shall use their commercially reasonable efforts to terminate and dissolve the Company as soon as reasonably practicable.

3.4    Taikuk Fees.

3.4.1    In consideration of, among other things, Taikuk’s obligations as set forth in this Agreement or any Transaction Documents, (a) Taikuk shall receive 1,100 Non-Voting Shares in the Company at the Closing and (b) at the Closing, CDXC shall make a payment of US $1,000,000 by wire transfer of immediately available funds to Taikuk’s bank account ((a) and (b), collectively, the “Taikuk Fee”); provided, however, that such Non-Voting Shares shall be subject to the Company’s irrevocable, exclusive option to repurchase under Section 3.6.

3.4.2    If the Company and Sinopharm enter into the Sinopharm Distribution Agreement relating to the commercialization of the Product in the Territory, Taikuk shall be entitled to receive non-refundable royalties for all sales of the Product from the Company to Sinopharm in the Territory equal to [***] of Company Net Revenue pursuant to the Sinopharm Distribution Agreement. Pursuant to the Sinopharm Distribution Agreement, the Company shall pay such royalties accrued on a quarterly basis within sixty (60) days after the end of each Company fiscal quarter beginning with the quarter in which the Company realizes Company Net Revenue from the Sinopharm Distribution Agreement.

3.4.3    In connection with the Cross Border Agreement, a CDXC Designee shall pay Taikuk non-refundable royalties for all sales of the Product from a CDXC Designee to Sinopharm equal to [***] of CDXC Designee Net Revenue pursuant to such Cross Border Agreement. Pursuant to the Cross Border Agreement, a CDXC Designee shall pay such royalties accrued on a quarterly basis within sixty (60) days after the end of each fiscal quarter beginning with the quarter in which such CDXC Designee realizes CDXC Designee Net Revenue. The Parties agree that upon completion of Blue Hat Registration of the Products in China, such CDXC Designee shall assign the Cross Border Agreement and the transactions contemplated thereunder to the Company without additional consideration.

3.5    No Additional Obligation. Except as provided in Sections 3.1, no Shareholder shall be obligated to make any capital contribution, in cash or otherwise, to any Group Company or to provide any loan, loan guaranty or other financial support on behalf of any Group Company. Following the Closing, from time to time and as determined by the Company and CDXC, the Parties may, but are not obligated to, contribute additional capital into the Company in exchange for Shares as determined by the Board in good faith.

3.6    Right of Repurchase. In the event that the Blue Hat Registration is not completed during the Registration Period, then the Company shall have the option to repurchase all, but not less than all, of the Non-Voting Shares issued to Taikuk under Section 3.1 and Section 3.4.1 for an aggregate purchase price of US $1.00 in cash (such option to repurchase the Non-Voting Shares, the “Right of Repurchase”) which option shall be exercisable by delivery of written notice to Taikuk within ninety (90) days of the end of the Registration Period. If the Company fails to exercise its Right of Repurchase within such ninety (90) day period, the Company’s Right of Repurchase shall terminate. If the Company elects to exercise its Right of Repurchase in accordance with this Section 3.6, the closing of the repurchase (the “Repurchase Closing”) shall occur within ten (10) Business Days of the notice of such exercise. At the Repurchase Closing, (a) the Company shall deliver to Taikuk the aggregate purchase price of US $1.00 in cash, and Taikuk shall deliver to the Company any certificates representing such Non-Voting Shares (the “Repurchased Non-Voting Shares”), (b) each of the Company and Taikuk shall execute and deliver a purchase agreement (including as attachments thereto, an instrument of transfer and bought and sold notes) in a form reasonably acceptable to the Company, containing representations, warranties and indemnities with respect to (i) the ownership of the Repurchased Non-Voting Shares by Taikuk free and clear of all Encumbrances, other than Encumbrances arising under applicable securities laws, (ii) each of the Company’s and Taikuk’s power and authority to enter into and consummate the transaction, and (iii) the enforceability of the purchase agreement on Taikuk and the Company, and (c) Taikuk shall execute and deliver to the Company a release of all claims in a form reasonably acceptable to the Company.

3.7    Power of Attorney. Effective only upon the occurrence and during the continuance of the Company having a Right of Repurchase, and if Taikuk refuses to, or fails to timely execute and deliver any of the documents or certificates described in Section 3.6, Taikuk hereby irrevocably appoints the Company (and any of the Company’s designated officers, or employees) as Taikuk’s true and lawful attorney to sign Taikuk’s name on any of the documents or certificates described in Section 3.6. The appointment of the Company as Taikuk’s attorney in fact, and each and every one of the Company’s rights and powers, being coupled with an interest, is irrevocable.

3.8    Legend. Each certificate, instrument, or book entry representing Non-Voting Shares held by Taikuk or its transferee shall be notated with the following legend:

THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO CERTAIN REPURCHASE RIGHTS IN A SHAREHOLDERS AGREEMENT BY AND AMONG THE SHAREHOLDERS AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.

ARTICLE 4

GOVERNANCE

4.1    General. To the extent permitted by Applicable Law, the Voting Shareholder shall at all times exercise its voting rights to give effect to the terms of this Article 4, including the appointment and removal of the Directors. Without prejudice to the foregoing, any appointment, removal or replacement of a Director, whether under Section 4.2.2 or 4.2.5, shall become effective automatically and forthwith upon the delivery of a written notice from CDXC to the Company, without the need for any resolutions to be passed or for any further action to be taken either by the Directors or the Shareholders; provided, however, to the extent that a board and/or shareholder resolution is required by Applicable Law for such action to be effective, the Shareholders shall cause such resolution to be passed as soon as reasonably practicable.

4.2    Board of Directors.

4.2.1    Company Board. The Company shall be managed by the Board in accordance with the terms of this Agreement, its Constitutional Documents and Applicable Law.

4.2.2    The Board shall consist of three (3) directors (the “Directors”), which shall be appointed and removed from and after the Closing, CDXC shall be entitled to appoint and remove three (3) Directors, regardless of CDXC’s ownership interest in the Company (such Directors that CDXC is entitled to appoint and remove pursuant to this Section 4.2.2).

4.2.3    In CDXC’s discretion, the number of directors on the Board may be increased or decreased and the composition of the Board, including CDXC’s right to elect directors, may be changed; provided, that, upon any such adjustment, CDXC shall maintain its ability to appoint all Directors to the Board. Upon any adjustment of a CDXC’s right to appoint Directors as provided in the foregoing sentence, CDXC shall cause any Director that is no longer to serve on the Board as a result of such adjustment to immediately resign and to waive in writing, any claims they have against the Company, and failing any such resignation such Voting Shareholder(s) shall take all necessary actions to remove such Director(s) in order to maintain compliance with this Section 4.2.

4.2.4    One of the Directors shall be designated Chairman. The Chairman of the Board shall be one of the Directors appointed and removed by CDXC and such Chairman shall serve a twelve (12) month term. For clarity, the Chairman shall not have any additional voting or other rights as compared to the other Directors.

4.2.5    Removal; Vacancies.

(a)    At any time and in its sole discretion, upon prior or concurrent written notice to the Board, CDXC shall have the right to remove any Director.

(b)    In the event of a vacancy of any Director for any reason, such vacancy shall be filled by CDXC by giving written notice thereof to the Board.

4.2.6    Compensation. Unless otherwise determined by CDXC in its sole discretion, no director of the Company shall receive any compensation from the Company in his or her capacity as a director, other than, in the discretion of the Board, under the Equity Incentive Plan. A director who is also an officer or employee of the Company may receive compensation in his or her capacity as such officer or employee.

4.2.7    Board Meetings.

(a)    Notice and Attendance. The Board shall meet quarterly unless waived by the unanimous approval of the Directors. Upon the request of at least two (2) Directors, the Chairman of the Board shall convene a meeting of the Board by giving each Director written notice of the proposed meeting and time and place thereof (but subject to Section 4.2.7(e)), which notice shall include the meeting agenda setting out all the matters to be deliberated at the meeting and all written materials shall be submitted no less than two (2) Business Days before the meeting. Except with the unanimous written agreement of the Directors present at the meeting, no matters other than those set out in the agenda may be submitted for deliberation during the meeting. Written notice of all Board meetings shall be given not less than ten (10) calendar days in advance, which notice period may be shortened or waived with the consent of all the Directors (which consent may be given by any Director in writing or shall be deemed to have been given by any Director actually attending the relevant Board meeting without objecting to the waiver of such notice). The Directors may attend Board meetings in person or by means of telephone or video conference or other communication device that permits all the Directors participating in the meeting to hear and be heard by each other or any other means unanimously approved by the Directors present at the meeting and permitted under the Applicable Law of Hong Kong, and participation in a meeting by any such means shall constitute presence in person at such meeting. The Directors shall be entitled to appoint alternates or proxies to represent them at Board meetings.

(b)    Quorum. The quorum for any Board meeting shall be two (2) Directors, including attendance by alternate or by proxy, provided that if a quorum is not present at the time designated for a duly convened meeting, such meeting shall be adjourned to the same place and time on the date which is five (5) Business Days after the original meeting date (or such other date and time as agreed by a majority of the Directors and notified at least two (2) Business Days in advance in writing to all Directors).

(c)    Board Decisions. Any action, determination or resolution of the Board shall require the affirmative vote of a majority of Directors present at a meeting at which a valid quorum is present. Any action which may be taken at a meeting of the Board may be taken by a written resolution of the Board if such resolution is executed by a number of the Directors necessary for such action to be approved at a duly convened meeting assuming all Directors then in office are present at such meeting. Each Director shall be entitled to one (1) vote on any matter before the Board.

(d)    Language; Minutes. Meetings of the Board shall be conducted in English. Written minutes of such meetings shall be prepared in English by the Chairman of the Board or his/her designee and distributed to each Director promptly following each meeting for review and ratification by the Board with such changes as the Board may determine.

(e)    Place of Meeting. Board meetings held in person shall be held in California or at such other place as the Directors may approve, having regard to tax efficiency for the Company (or the relevant Group Company, as applicable). Directors shall be entitled to reimbursement from the Company for any travel-related expenses reasonably incurred in connection with attendance at any meeting of the Board.

4.2.8    Powers of the Board. Subject to Section 4.3, the Board shall be responsible for the overall management and control of the Company; provided, that (a) the Board may expressly delegate certain duties and responsibilities to the CEO or other Executive Officers, and such duties or responsibilities shall not require the approval of the Board or the approval or consent of the Shareholders.

4.3    Shareholders’ Meeting.

4.3.1    Notice and Attendance. The meetings of the Shareholders may be called by one or more Voting Shareholders holding in the aggregate no less than 20% of the outstanding Voting Shares. Unless the Voting Shareholders unanimously agree otherwise and subject to any requirement under Applicable Law, at least five (5) Business Days’ notice shall be given to each Shareholder of any general meeting. Shareholders may attend a general meeting in person or by means of telephone or video conference or other communication device that permits all Shareholders participating in the meeting to hear and be heard by each other or any other means unanimously approved by the Voting Shareholders present at the meeting and permitted under Applicable Law, and participation in a meeting by any such means shall constitute presence in person or by proxy or representative at such meeting.

4.3.2    Quorum. The quorum for general meetings of the Company shall be Shareholders holding a number of Voting Shares necessary to constitute a majority of all outstanding Voting Shares. No business shall be transacted at any general meeting of the Company unless a quorum is present at the beginning of and throughout each meeting. If the required Shareholders fail to attend the meeting by themselves or by proxy within one (1) hour of the time schedule for the commencement of the meeting, and therefore a quorum is not constituted in accordance with this Section 4.3.2, such meeting shall be adjourned and reconvened in the same location and at the same time on a date falling on the fifth (5^th) Business Day following the original meeting date (or such other date and time as agreed by the Voting Shareholders holding a majority of the outstanding Voting Shares and notified to all Shareholders at least two (2) Business Days in advance in writing), and if at the reconvened meeting a quorum is not present within one (1) hour from the time scheduled for the commencement of the meeting, then one or more Voting Shareholders present at such meeting, which must include CDXC, shall be deemed to constitute a quorum.

4.3.3    Chairman. The Chairman of the Board shall take the chair at every general meeting of the Company, or if there be no such Chairman or, if at any general meeting of the Company such Chairman shall not be present within ten (10) minutes after the time appointed for holding such meeting or is unwilling to act, then the Voting Shareholders present shall choose one of their own members to be the chairman of such meeting.

4.3.4    Voting. Subject to Sections 4.3.5, questions arising at any general meeting of the Company shall be decided by a simple majority of votes present at the meeting where a valid quorum is present, except where a greater majority is required by this Agreement or by Applicable Law. Each Voting Share shall be entitled to one vote.

4.3.5    Written Resolutions. Shareholders’ resolutions may be passed by written resolution (in one or more counterparts) signed by Voting Shareholders holding all of the outstanding Voting Shares. The written consent of a Shareholder can be given by way of a written consent from any Director appointed by such Shareholder.

4.4    Executive Officers.

4.4.1    Executive Officers. The Group Companies shall have a Chief Executive Officer or a position with equivalent or similar responsibilities (such position, the “CEO”), a Chief Financial Officer or a position with equivalent or similar responsibilities (such position, the “CFO”), and the Board may appoint additional officers to manage the day-to-day operations of the Group Companies (the CEO, CFO and any other officers appointed by the Board, collectively, the “Executive Officers”). Each of the Executive Officers shall be approved and appointed by the Group Companies, subject to approval by the Board. Notwithstanding the foregoing, the initial CEO shall be Robert Nathan Fried, and the initial CFO shall be Brianna Lynne Gerber, each effective as of the date hereof.

4.4.2    Removal; Vacancies.

(a)    Any Executive Officer of a Group Company may be removed for any reason by the Board in accordance with this Agreement.

(b)    In the event of a vacancy of any Executive Officer for any reason, such vacancy shall be filled pursuant to Section 4.4.1.

4.4.3    Powers of the CEO. The functions, duties and powers of the CEO of the Company shall be as provided by the Board from time to time.

4.5    Accounting Matters.

4.5.1    Fiscal Year. Except as may otherwise be required by Applicable Law, the fiscal year of each Group Company for both financial and tax reporting purposes shall commence on January 1 and end on December 31 of each year (the “Fiscal Year”).

4.5.2    Accounting Records. The Company shall, and shall require that each other Group Company shall, make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect their transactions and dispositions of assets, which comply with Applicable Accounting Principles, Applicable Law (including the Hong Kong Financial Reporting Standards as in effect from time to time, if so required by Applicable Law) and this Agreement in relation to such record keeping requirements and devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are executed in accordance with management’s general or specific authorization and are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and practices applicable to the Group Companies to maintain accountability of such assets.

4.5.3    Engagement of Auditors. The independent auditors of the Group Companies (the “Auditors”) shall be a reputable audit firm appointed by the Company after having obtained approval by the Board.

4.6    Language. To the extent permitted by Applicable Law, any minutes, resolutions, proposals, agendas or reports to or of any meetings of the Board or the Shareholders shall be in English.

4.7    Indemnification.

4.7.1    To the fullest extent permitted by Applicable Law, no director of any Group Company shall be personally liable to any Group Company or any Shareholder for monetary damages for breach of fiduciary duty as a director.

4.7.2    Each Shareholder, director, officer or legal representative of each Group Company who is made a party or is threatened to be made a party to or is involved in any proceeding due to such capacity shall be indemnified and held harmless by such Group Company to the fullest extent permitted by Applicable Law against all claims, expenses, liabilities and losses (including attorneys’ fees, judgments, fines, taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, other than (a) claims by a Shareholder against a legal representative, director or officer appointed or nominated by such Shareholder, (b) claims by a Group Company against its officer for breach of his/her contract with such Group Company, and/or (c) claims arising from or relating to any act or omission of such Person that involves (i) actual fraud or willful misconduct, gross negligence or reckless disregard of duty or (ii) breach of any representation, warranty, covenant or agreement set forth in this Agreement and the other Transaction Documents (“Bad Acts”).

4.7.3    The indemnification obligations under this Section 4.7 shall continue as to a person who has ceased to be such Shareholder, director, officer or legal representative, and shall inure to the benefit of his or her heirs, executors and administrators. The right to indemnification conferred herein shall be a contract right based upon an offer from such Group Company, which offer shall be deemed to be accepted by such person’s service or continued service as a director, officer or legal representative of such Group Company.

4.7.4    Each Shareholder agrees to, and does hereby, indemnify, defend, and hold harmless the other Shareholders and their respective Affiliates, and each of their respective shareholders, directors, employees, agents, representatives, and permitted successors and assigns, from and against any and all damages, liabilities, costs, and expenses (including professionals’ fees) arising out of or relating to any and all claims, demands, or actions related to such Shareholder’s Bad Acts. Any indemnified party making a claim for indemnification under this Section 4.7 (an “Indemnified Party”) against the other Shareholder(s) (the “Indemnifying Party”) must give the Indemnifying Party a written notice describing such claim demand, or action and the nature and amount of such loss, to the extent that the nature and amount thereof are determinable at such time (a “Claim Notice”); provided, however, that the failure to notify or delay in notifying the Indemnifying Party will not relieve the Indemnifying Party of its obligations under this Section 4.7 except to the extent that such Indemnifying Party is materially prejudiced as a result thereof. The Indemnifying Party and the Indemnified Party shall cooperate with each other in the defense or settlement of any such claim, demand, or action. In addition, each party (a) will respond to requests for indemnity within fifteen (15) Business Days of its receipt of a request for indemnity, and (b) may only use counsel of its own choosing in connection with any such indemnity if it indemnifies the parties set forth above without any reservation of rights. The Indemnifying Party shall control the defense of any such claim unless it either: (i) refuses to indemnify the Indemnified Party for the matters set forth above, or fails to respond to the request for indemnity within the time period set forth above; or (ii) indemnifies the Indemnified Party for the matters set forth above under a reservation of rights, then the Indemnified Party may (but will not be required to) control the defense of the matter in its sole and absolute discretion with counsel of its own choosing. If the Indemnifying Party is entitled and has elected to appoint lead counsel and to take primary control of the defense of such claim, then the Indemnifying Party must obtain the prior written consent of the Indemnified Party (which will not be unreasonably withheld) prior to entering into any settlement of any claim unless the proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief on the Indemnified Party. If the Indemnified Party is entitled and has elected to appoint lead counsel and to take primary control of the defense of such claim, then the Indemnified Party shall not settle any claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld).

4.8    Dividends. Cash dividends will be declared by the Board at its discretion and will be allocated to the Shareholders according to ownership percentage of the Company, subject to any withholding or any other tax under any Applicable Laws.

4.9    U.S. Capital Accounts and U.S. Tax Allocations. To the extent the Company is treated as a partnership for U.S. federal income tax purposes:

4.9.1    U.S. Capital Accounts and Book Allocations. A separate capital account (“U.S. Capital Account”) in respect of each Shareholder shall be established and calculated in accordance with Section 704(b) of the Code and the Treasury Regulations, including Treasury Regulations Sections 1.704-1(b) and 1.704-2. Except as otherwise required under Section 4.9.3 below, all individual items of income, gain, loss or deduction of the Company determined for Code Section 704(b) purposes (“Book Items”) will be allocated among the U.S. Capital Accounts of each Shareholder in accordance with Treasury Regulations Section 1.704(b)(2)(iv) in proportion to the Shareholders’ relative percentage interests. The Company and each Shareholder agrees that it is intended that each Shareholder be treated as a partner of the Company for U.S. income tax purposes in respect of all of such Shareholder’s rights and obligations under this Agreement.

4.9.2    U.S. Tax Allocations. Except as otherwise required under Section 704(c) of the Code and the Treasury Regulations promulgated under such section of the Code and Section 4.9.3 of this Agreement, each item of Company income, gain, loss and deduction shall be allocated for U.S. income tax purposes among the Shareholders in the same manner as its correlative Book Item of income, gain, loss or deduction is allocated pursuant to Section 4.9.1. If, as a result of the exercise of a noncompensatory option to acquire an interest in the Company, a U.S. Capital Account reallocation is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective allocations pursuant to Regulation Section 1.704-1(b)(4)(x).

4.9.3    Special Regulatory Allocations. The allocation of income, gain, loss or deduction of the Company pursuant to this Agreement is intended to comply with the Treasury Regulations issued under Section 704(b) of the Code and shall be interpreted consistent with such Treasury Regulations. In addition, the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) that constitute a “qualified income offset” under such section and the “minimum gain chargeback” provisions contemplated by Treasury Regulations Sections 1.704-2(f) and 1.704-2(i) are incorporated herein by reference. All “non-recourse deductions” (within the meaning of Treasury Regulations Section 1.704-2(b)(1)) shall be allocated to the Shareholders in accordance with their respective interest in the Company. Any “partner non-recourse deductions” (within the meaning of Treasury Regulations Section 1.704-2(i)(1)) shall be allocated to the Shareholder who bears the economic risk of loss with respect to the “partner non-recourse debt” (within the meaning of Treasury Regulations Section 1.704-2(b)(4)) to which such partner non-recourse deductions are attributable. Any special allocations of items of income or gain pursuant to this Section 4.9.3 shall be taken into account in computing subsequent allocations pursuant to Section 4.9.1 above, so that the net amount for any item so allocated and all other items allocated to each Shareholder pursuant to this Agreement shall be equal, to the extent possible, to the net amount that would have been allocated to each such Shareholder pursuant to the provisions of this Agreement if such special allocations had not occurred.

4.9.4    Other Provisions. The foregoing provisions of this Section 4.9 are intended to comply with Treasury Regulation Sections 1.704-1(b) and 1.704-2 and will be interpreted and applied in a manner consistent with such Treasury Regulations. All matters concerning allocations for purposes of maintaining U.S. Capital Accounts and for U.S. federal income Tax purposes not provided for in this Agreement will be determined by CDXC. In the event that the Code or any Treasury Regulations require allocations of items of income, gain, loss, deduction or credit different from those set forth in this Section 4.9, CDXC is hereby authorized to make new allocations in reliance on the Code and such Treasury Regulations, and no such new allocation shall give rise to any claim or cause of action by any Shareholder. The provisions of this Section 4.9 shall apply solely to the allocation of income, gain, loss or deduction of the Company for U.S. federal income Tax reporting purposes, and shall not affect the distributions to each Shareholder. The Shareholders’ proportional shares of the Company’s “excess nonrecourse liabilities” within the meaning of Treasury Regulations Section 1.752-3(a)(3), shall be determined in accordance with Section 752 of the Code and the Treasury Regulations promulgated under such section of the Code using any applicable method selected by CDXC. For any fiscal year or other period during which any Shares are transferred between the Shareholders or to another person, Book Items that are allocable with respect to such Shares shall be apportioned between the transferor and the transferee using any method allowed pursuant to Section 706 of the Code and the applicable Treasury Regulations as chosen by CDXC.

4.10    Tax Returns.

4.10.1    The Company shall cause to be prepared and filed all Tax Returns required to be filed by the Company or any of its Subsidiaries. The Shareholders shall (and shall cause their respective Affiliates to) provide the Company with such information or records as may be reasonably necessary and reasonably requested in connection with the preparation of any Tax Return relating to the Tax affairs of the Company.

4.10.2    At least sixty (60) days prior to filing any income Tax Return of the Company or any of its Subsidiaries, the Company will provide a draft copy of such Tax Return to each Shareholder owning at least twenty percent (20%) of all of the issued and outstanding Shares in the Company on a fully converted and fully exercised basis for its review and comment, and each such Shareholder will provide any comments to such Tax Return to the Company and each other Shareholder owning at least twenty percent (20%) of all of the issued and outstanding Shares in the Company on a fully converted and fully exercised basis no later than thirty (30) days before the due date for filing such Tax Return, and before filing such return, the Company or such Subsidiary will make all changes reasonably requested by the Shareholder. To the extent of any conflict between the comments provided by the Shareholders and in the event that the Shareholders are not able to reach an agreement with respect to such Tax Return, then the items in dispute shall be turned over to a nationally recognized independent certified accounting firm jointly chosen by the disputing Shareholders for resolution, which resolution shall be binding and conclusive upon the Shareholders, the Company and such Subsidiary (as applicable) without further appeal therefrom. The disputing Shareholders shall split the costs of such accounting firm.

4.11    Withholding.

4.11.1    Each Shareholder agrees to provide the Company with any documentation reasonably requested by the Company that is reasonably available to such Shareholder or any of its Affiliates to establish an exemption or reduction from any amounts that the Company (or any of its Subsidiaries or any other person in which the Company directly or indirectly holds an interest) is required to withhold or pay under Applicable Law within thirty (30) days of the request for such information.

4.11.2    Subject to Section 4.11.3 below, each Shareholder authorizes the Company to withhold and pay over any withholding Taxes or other Taxes required to be withheld and to be paid by the Company in accordance with Applicable Law.

4.11.3    Prior to the Company withholding or paying any Taxes with respect to any Shareholder, the Company will (a) provide advance written, notice at least ten (10) days prior to making any such withholding or paying any Taxes with respect to any Shareholder, to the applicable Shareholder that such withholding or payment is intended (which notice will include a statement regarding the basis for such withholding or payment and identifying the Applicable Law requiring such withholding) and (b) cooperate with the applicable Shareholder in good faith to the extent reasonable to obtain reduction of or relief from such obligation to deduct and withhold. Any amounts withheld pursuant to this Section 4.11 shall be treated for all purposes of this Agreement as having been paid to the Shareholder in respect of which such deduction or withheld was made, provided that the Company shall (i) timely pay over to the appropriate Governmental Authority in accordance with Applicable Law any such amounts deducted or withheld and (ii) promptly provide to the Shareholder in respect of which such deduction or withholding was made, receipts or other evidence reasonably satisfactory to such Shareholder of such payment to the appropriate Governmental Authority. The Company and each Shareholder will take such actions as reasonably requested to obtain any refund or reduction of, or exemption from, any Taxes of the Company or any Shareholder that may result as a consequence of this Agreement and the transactions contemplated hereby.

4.12    U.S. Tax Elections.

4.12.1    Upon CDXC’s written request, the Company and any Subsidiary of the Company will make an election under Treasury Regulation Section 301.7701-3 on IRS Form 8832 to determine the entity classification of the Company or any Subsidiary of the Company for U.S. federal and state income Tax purposes as of the date and in the manner determined by CDXC in its sole and absolute discretion, including for this purpose, the preparation and execution of any corporate resolutions, corporate consents or similar documents determined by CDXC to be reasonably necessary or appropriate for the making of any election. CDXC shall have the right to review and comment on any IRS Form 8832 (or any successor form) for the Company or any Subsidiary of the Company and any other document relating to making such election.

4.12.2    The Company agrees to promptly provide CDXC with any information reasonably available and reasonably requested by CDXC so that CDXC can determine whether any election referred to in the foregoing paragraph should be made with respect to the Company and any Subsidiary or potential Subsidiary of the Company.

4.13    Tax Information.

4.13.1    The Company shall (a) pay, or caused to be paid, all Taxes required by Applicable Law with respect to the Company or any Subsidiary of the Company and comply with all other Tax compliance obligations (including with respect to transfer pricing and evidentiary requirements for transfer pricing) as required under Applicable Law, and (b) as soon as practicable after filing any Tax Return or any payment of Taxes by the Company or any Subsidiary, the Company shall deliver to each Shareholder a copy of each Tax Return and any other evidence of Taxes paid.

4.13.2    Upon request by any Shareholder, the Company shall cooperate with the Shareholders and their tax advisors in their efforts to determine whether the Company, or any Subsidiary of the Company, will be treated as a PFIC. In connection with a “Qualified Electing Fund” election made by a Shareholder pursuant to Section 1295 of the Code or a “Protective Statement” filed by any Shareholder’s Affiliates pursuant to U.S. Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), upon request by any Shareholder, the Company shall provide or, with respect to any Subsidiary of the Company, cause to be provided, an annual financial information statement to such Shareholder in the form provided in Exhibit 4 to this Agreement (or in such other form as may be required to reflect changes in Applicable Law) as soon as reasonably practicable following the end of each taxable year of such Shareholder (but in no event later than sixty (60) days following the end of each such taxable year if reasonably practicable based on the timing of the request), and shall provide the Shareholders with access to such other Company, or Subsidiary, information as may be required for purposes of filing United States federal income tax returns of such Shareholder or Shareholder’s Affiliates in connection with such “Qualified Electing Fund” election or “Protective Statement”. All reasonable costs incurred by the Company in connection with the actions described in this Section 4.13.2 shall be borne by the Shareholders requesting such actions.

4.13.3    The Company shall provide the Shareholders with reasonable access to such Company information within its possession, power or control in a timely manner as may be required by any Shareholder to make due inquiry with its tax advisors on at least an annual basis regarding the Company’s, or any Subsidiary of the Company’s, status as a CFC with respect to the Shares held by such Shareholder and regarding whether any portion of the Company’s income is “Subpart F Income” (as defined in Section 952 of the Code) or “global intangible low-taxed income” under Section 951A of the Code. Each Shareholder shall reasonably cooperate with the Company and the other Shareholders and from time to time provide information about such Shareholder, such Shareholder’s Affiliates, and such Shareholder’s direct and indirect owners, in order to enable a Shareholder’s tax advisors to determine the status of such Shareholder, such Shareholder’s Affiliates or a direct or indirect owner of such Shareholder as a “United States Shareholder” within the meaning of Section 951(b) of the Code. No later than sixty (60) days following the end of each taxable year of the Company, the Company shall provide to each Shareholder the Company’s capitalization table as of the end of the last day of such taxable year. All reasonable costs incurred by the Company in connection with the actions described in this Section 4.13.3 shall be borne by the Shareholders requesting such actions.

4.13.4    The Company agrees to provide each Shareholder with any information requested by such Shareholder that relates to the Company and which is reasonably necessary for such Shareholder (or its parent company(ies)) to complete such Shareholder’s (or its parent company’s(ies’)) Tax Returns or to calculate the amount of such Shareholder’s (or its parent company’s(ies’)) Taxes that arise in connection with owning an interest in the Company, including providing the information necessary to prepare IRS Forms 8865, 5471 and 1118, and any other information that may be required with respect to the Company as a result of any of the Shareholders’ (or their parent companies’) direct or indirect ownership of the Company. All reasonable costs incurred by the Company in connection with the actions described in this Section 4.13.4 shall be borne by the Shareholders requesting such actions.

4.13.5    The information referred to in Sections 4.13.1 to 4.13.4 above shall be provided within a reasonable time upon request (such request to include reasonable details) and not to exceed thirty (30) days from such request.

4.14    Tax Proceedings; Tax Matters.

4.14.1    In the event any Taxing authority informs the Company (or any of its Subsidiaries or any other Person in which the Company directly or indirectly holds an interest) of any notice of proposed audit, claim, assessment or other dispute with respect to Taxes (a “Tax Proceeding”) either: (a) relating to the Company or any Subsidiary of the Company; (b) that the Company would reasonably expect to relate to a Shareholder or (c) for which the Company would reasonably expect a Shareholder may be liable, the Company shall promptly notify such Shareholder upon the receipt of such notice. The Company shall provide any information reasonably available to the Company or its Affiliates reasonably requested by such Shareholder in connection with such Tax Proceeding.

4.14.2    In the event any Taxing authority informs a Shareholder of any Tax Proceeding of the Company (or any of its Subsidiaries or any other Person in which the Company directly or indirectly holds an interest), the Shareholder shall promptly notify the Company upon the receipt of such notice. Each Shareholder shall provide to the Company any information reasonably available to the Shareholder or its Affiliates reasonably requested by the Company in connection with such Tax Proceeding. The Company shall keep each Shareholder reasonably informed on the status of any such Tax Proceeding, and the Company shall not settle (or cause to be settled) the Tax Proceeding without receiving the prior written consent of each Shareholder owning at least twenty percent (20%) of all of the issued and outstanding Shares in the Company, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the Company (or its Subsidiary or any other Person in which the Company directly or indirectly holds an interest, as applicable) shall be solely responsible for the assessment of any Taxes or any costs or expenses (including any costs or expenses relating to managing the Tax Proceeding) with respect to any Tax Proceeding for Taxes of the Company or any of its Subsidiaries.

4.14.3    To the extent the Company is treated as a partnership for U.S. federal income tax purposes, for purposes of U.S. federal income and applicable state and local tax purposes, CDXC or a CDXC Designee shall (a) be designated as the “partnership representative” (within the meaning of Section 6223(a) of the Code and similar provisions of state and local Applicable Law of the Company and (b) if necessary, CDXC shall select a “designated individual” within the meaning of Treasury Regulations Section 301.6223-1(b)(3) and similar provisions of state and local Applicable Law (together with the “partnership representative,” as applicable, the “Tax Matters Shareholder”). The Company shall comply with all requirements to effect such designations. Except as otherwise provided in this Section 4.14.3, the Tax Matters Shareholder is authorized to take all actions and make all elections and determinations that arise in connection with being the Tax Matters Shareholder of the Company and to make all determinations concerning allocations for purposes of maintaining U.S. Capital Accounts and any U.S. Tax matter or elections (including any election under Section 754). CDXC shall have the right to designate an internationally recognized accounting or law firm as a tax advisor (including the relevant contact person at such firm) that is reasonably acceptable to the other Voting Shareholders to be retained by the Company and its Subsidiaries (any such person, the “Tax Advisor”) whose costs and expenses shall be borne by the Company. Expenses incurred by the Tax Matters Shareholder defending any U.S. federal or state income tax returns as the Tax Matters Shareholder or in a similar capacity shall be borne by the Company and the Tax Matters Shareholder shall be reimbursed for such amounts. To the maximum extent permitted by Applicable Law, the Tax Matters Shareholder will not be liable for, and will be indemnified and held harmless by the Company against, any losses and expenses arising from any civil, criminal or administrative proceeding by reason of it being the Tax Matters Shareholder of the Company.

ARTICLE 5
 

ADDITIONAL COVENANTS; REPRESENTATIONS AND WARRANTIES

5.1    Intellectual Property Rights. The Parties acknowledge and agree that (a) all CDXC Technology, (b) any Inventions developed, created, conceived or reduced to practice by the Group Companies that incorporates, combines, includes, embodies, contains, improves, is based upon, or otherwise relates to CDXC Technology (the “Group Companies Inventions”), and (c) all CDXC Marks, in each case together with all Intellectual Property Rights therein, shall be exclusively owned by CDXC or its Affiliates, as applicable. The Group Companies hereby assign to CDXC all right, title and interest in and to any Group Companies Inventions and CDXC Marks and all Intellectual Property Rights therein. All rights to the CDXC Technology and Group Companies Inventions and CDXC Marks are hereby reserved by CDXC and its Affiliates, as applicable. Subject to the terms and conditions of this Agreement, CDXC or its Affiliate hereby grant the Group Companies a royalty free right and license in the Territory to use and display the “ChromaDex” name (which for clarity, is considered a CDXC Mark hereunder) within the name of the Group Companies, but only so long as such Group Companies exercise such license in connection with the Business as limited herein. CDXC and its Affiliates may conduct quality control inspections of the Group Companies use of the licensed ChromaDex name, and request samples of how the Group Companies use such name. CDXC may request that the Group Companies take down or remove any use of the “ChromaDex” name that CDXC reasonably determines is or would reasonably be likely to have an adverse impact on the value, reputation or goodwill associated with the “ChromaDex” name, and the Group Companies will use good faith efforts to comply with such requests as soon as commercially reasonably possible.

5.2    No Contest; Negative Publicity. Each of the Group Companies agrees that it will not and will cause the Shareholders to not, directly or indirectly, contest, challenge or attach CDXC’s or its Affiliates’ right, title or interest in or to the CDXC Technology CDXC Marks or any other Intellectual Property Rights of CDXC or its Affiliates. Each Group Company agrees that it and any other Person acting on its behalf will not, directly or indirectly, engage in any conduct or practice that is disparaging to CDXC or its Affiliates, the CDXC Technology, the CDXC Marks or the Intellectual Property Rights of CDXC or its Affiliates or otherwise portrays CDXC or its Affiliates, the CDXC Technology, the CDXC Marks or the Intellectual Property Rights of CDXC or its Affiliates in a negative light. If a Group Company becomes aware that any Shareholder violates this Section 5.2, the Group Companies will exercise all rights that it has to remove such Shareholder from the Company and redeem any interest such Shareholder has in the Company without reimbursement to such Shareholder and without recourse. All goodwill derived from use of the CDXC Marks, including by Group Companies pursuant to the license grant set forth in Section 5.1 above, shall inure to the benefit of CDXC. Each other Party shall (and shall cause its Affiliates to) do such things as CDXC may reasonably request in order for CDXC to obtain the ownership and benefit of the CDXC Marks and related goodwill.

5.3    Rights to Regulatory Approvals. CDXC or its Affiliate will supply product samples, data and documentation as may be reasonably needed by the Group Companies for application of the Blue Hat Registration and the Company shall promptly reimburse CDXC and its Affiliates for all reasonable costs and expenses incurred by CDXC and its Affiliates therefor. Notwithstanding anything to the contrary in this Agreement, all regulatory approvals and applications therefor, obtained or completed in connection with the JV Purpose or related to the Product, including any related records (“Regulatory Approvals”) shall be owned by CDXC or its designee and held in the name of CDXC or its designee. In the event of termination of this Agreement or any liquidation, dissolution, bankruptcy or similar proceeding or substantial abandonment of discontinuation of the active operations of the Group Companies, then CDXC or its designee (as applicable) shall have the sole and exclusive right to continue maintaining the ownership rights to all such Regulatory Approvals.

5.4    Blue Hat Registration. Taikuk and the other Parties agree to cooperate, reasonably and in good faith, in obtaining all applicable Regulatory Approvals required to commercialize the Products in the Territory, including the Blue Hat Registration in China for all of the Products.

5.5    Confidentiality and Publicity.

5.5.1    Confidential Information. The Parties recognize that, in connection with the performance of this Agreement and the other Transaction Documents, each Party (in such capacity, the “Disclosing Party”) may disclose Confidential Information (as defined below) to the other Parties (each, in such capacity, a “Receiving Party”). For purposes of this Agreement, “Confidential Information” means information disclosed in connection with the transactions contemplated under the Transaction Documents that is confidential or proprietary (whether owned by the Disclosing Party or a third party to whom the Disclosing Party owes a non-disclosure obligation), including the business, future plans, technology, Intellectual Property Rights, financial information, projections and customer information of a Party. Confidential Information does not include information which: (a) was known to a Receiving Party or its Affiliates at the time of the disclosure by the Disclosing Party through no breach of this Section 5.5 by such Receiving Party or its Affiliates; (b) has become publicly known through no breach of this Section 5.5 by a Receiving Party or its Affiliates; (c) has been received by a Receiving Party or its Affiliates from a third party which, to the knowledge of the Receiving Party or its Affiliates, is not subject to a confidentiality obligation to the Disclosing Party; or (d) has been independently developed by a Receiving Party or its Affiliates without access to or reliance on any Confidential Information.

5.5.2    Confidentiality Obligation. The Receiving Party agrees (a) to keep the Confidential Information of the Disclosing Party confidential as it treats its own confidential information, and not to use the Confidential Information for any purpose other than in the performance of its obligations or the exercise of rights under the Transaction Documents and (b) not to disclose any such Confidential Information, except (i) to its Affiliates and its and their respective, directors, officers and employees and investors, auditors, bankers, financiers, agents, representatives, lawyers, financial advisers and other advisers (collectively, the “Representatives”) who reasonably need to know the Confidential Information in connection herewith, provided that such Representatives are subject to confidentiality obligations no less restrictive than those set out in this Section 5.5 and that the Receiving Party shall remain responsible for the breach of any confidentiality obligations under this Section 5.5 by any of its Representatives and (ii) pursuant to, and to the extent required by, Applicable Law (including an order of a Governmental Authority or applicable rules of a stock exchange); provided that, to the extent permitted by Applicable Law, the Receiving Party shall, (A) to the extent possible, promptly notify the Disclosing Party of such need to disclose Confidential Information under this Section 5.5.2 in order to provide the Disclosing Party a reasonable opportunity to contest such Applicable Law or order or seek a grant of confidential treatment by the applicable Governmental Authority or stock exchange on any Confidential Information, and (B) reasonably cooperate with the Disclosing Party, at its expense, in attempting to contest such Applicable Law or order or obtain such grant at the Disclosing Party’s expense.

5.5.3    Confidentiality of Agreement; Publicity. Each Party agrees that the terms and conditions of the Transaction Documents shall be treated as Confidential Information for purposes of Section 5.5.2 (with such Party being treated as the Receiving Party and each other Party being treated as the Disclosing Party, for purposes of applying Section 5.5.2 to the confidentiality of the terms and conditions of the Transaction Documents). Unless otherwise required by Applicable Law (including an order of a Governmental Authority or applicable rules of a stock exchange), no Party shall make any press release, public announcement or any other public statement with respect to the transactions contemplated by the Transaction Documents without the prior agreement of each of the other Parties. Notwithstanding anything to the contrary contained herein, CDXC may file a copy of this Agreement and the other Transaction Documents with the United States Securities and Exchange Commission and Nasdaq Stock Market LLC.

5.6    Compliance Programs.

5.6.1    Anti-Corruption Policy. The Group Companies shall adopt a policy designed to ensure compliance with Anti-Corruption Laws that is in form and substance modelled on CDXC’s or its Affiliates’ Anti-Corruption Laws policy (the “Anti-Corruption Policy”) and each Party shall cause the Directors appointed by such Party to sign the Anti-Corruption Policy. The Group Companies shall have in place policies, systems, controls and procedures that are sufficient: (a) to prevent it and its Associated Persons from violating any Anti-Corruption Laws, (b) for reporting to the Board a violation or suspected violation of Anti-Corruption Laws, and (c) for ensuring that all such reports are fully investigated and the findings reported to the Board for any appropriate action. The Group Companies shall not, and shall cause its Associated Persons not to, directly or indirectly, offer, pay, promise to pay or authorize the giving of any monies or financial or other advantage or any other thing of value to any Person: (i) for the purpose of inducing or rewarding that Person or any other Person to perform their role or function improperly; (ii) for the purpose of influencing a Public Official in relation to any decision, act or other performance of their official role or function, including a decision to fail to perform that role or function, so as to obtain or retain business or a business advantage of any kind; or (iii) that is otherwise in breach of any applicable Anti-Corruption Laws or the Anti-Corruption Policy. The Group Companies shall not, and shall cause its Associated Persons not to, directly or indirectly, request, accept, agree to receive or authorize the acceptance of any monies or financial or other advantage from any Person: (A) as an inducement or reward for the improper performance of any role or function; or (B) that is otherwise in breach of any applicable Anti-Corruption Laws or the Anti-Corruption Policy. The Group Companies shall keep full and accurate books and records (including financial records), and make all books and records and other relevant documentation of the Group Companies available to the Shareholders’ duly authorized representatives to audit or investigate as deemed necessary by the Shareholders to verify the Group Companies’ compliance with Anti-Corruption Laws and this Section 5.6 and with any anti-corruption certification delivered by the Group Companies. Except as agreed in writing by the Voting Shareholders, the Group Companies will not retain any Public Official as an employee, agent or consultant. The Group Companies shall, and shall cause its Associated Persons to, receive appropriate training in ethical business practices, including a regular annual training program and any training required by Applicable Law or reasonably requested by a Shareholder, in each case with training materials and formats approved by CDXC, and the Group Companies shall maintain accurate and current records of all such training activities. The Group Companies and each of its directors will annually by December 31, and each of the employees and seconded employees of the Group Companies will at each Shareholder’s request, complete a certification prepared in the form attached hereto as Exhibit 3 attesting that such Person has not committed any act prohibited by the Anti-Corruption Laws or the Anti-Corruption Policy and is not aware of any facts or circumstances suggesting that a violation of the Anti-Corruption Laws or the Anti-Corruption Policy has occurred or may have occurred.

5.7    Sanctions and Trade Controls Policy. The Group Companies shall adopt a policy designed to ensure compliance with Sanctions and Trade Controls, and each Party shall cause the Directors appointed by such Party to sign such policy. The Group Companies shall not, and shall use reasonable best efforts to cause its Associated Persons not to, directly or indirectly, transact or deal with a Sanctioned Person or Sanctioned Country, or otherwise violate Sanctions or Trade Controls.

5.8    Representations and Warranties.

5.8.1    Representations and Warranties of the Company. As of the Closing Date, the Company hereby represents and warrants to the other Parties that:

(a)    The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite power and authority to conduct its business in accordance with its Constitutional Documents and to enter into and perform fully each of its obligations under this Agreement and the other Transaction Documents to which the Company is to be a party, including the due authorization, issuance, sale and delivery of the Shares contemplated in this Agreement. When issued in accordance with the terms hereof, the Shares will be (i) duly authorized and validly issued and fully paid and non-assessable and (ii) free and clear of all Encumbrances (other than Encumbrances incurred by a Shareholder, restrictions arising under applicable securities laws, or restrictions imposed by this Agreement).

(b)    All corporate actions on its part necessary for the authorization, execution and delivery of this Agreement and the other Transaction Documents to which the Company is to be a party and for the performance of all of its obligations hereunder and thereunder has been taken. This Agreement and the other Transaction Documents to which the Company is a party or will be a party, when executed and delivered, shall each constitute its valid and legally binding obligation, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles.

(c)    Other than any licenses, permits, certifications, authorizations or regulatory approvals required to be obtained in connection with the Business, no consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority or any other Person, is required in connection with its execution, delivery and performance of this Agreement or any other Transaction Document to which the Company is to be a party.

(d)    The execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is to be a party will not (i) violate its Constitutional Documents, (ii) violate any judgment, order, writ, injunction or decree of any court or other Applicable Law applicable to it, (iii) result in its violation of any applicable licenses, permits or authorizations, (iv) result in the breach of, give rise to a right of termination, cancellation or acceleration of any obligation with respect to (presently or with the passage of time), or otherwise be in conflict with any term of, or affect the validity or enforceability of, any agreement or other commitment to which the Company is a party or by which the Company is bound, or (v) result in the creation of any Encumbrance upon any of its assets except, with respect to sub-clauses (ii) through (iii), as would not materially and adversely affect its ability to perform its obligations under this Agreement and any other Transaction Document to which the Company is to be a party.

(e)    There is no action, suit, proceeding or governmental investigation pending or, to its knowledge, threatened, against the Company before any Governmental Authority which question or challenge its right to enter into or perform, or which question or challenge the validity of, or that would affect in any way its ability to enter into or perform this Agreement or any other Transaction Document to which the Company is to be a party.

(f)    Assuming the accuracy of the representations and warranties of each applicable Shareholder set forth in Section 5.8.2(f) (Investment Representations), the offer and sale of the Shares pursuant to this Agreement will be exempt from the registration requirements of the Securities Act.

(g)    The Company is not, and immediately after giving effect to the sale of the Shares in accordance with this Agreement and the application of the proceeds thereof, will not be required to be registered as, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

(h)    Immediately prior to the Closing, the Company has one share in issue to Asia Pacific Scientific, Inc.

(i)    There are no options, warrants, conversion privileges or other rights, or agreements with respect to the issuance thereof, presently outstanding to purchase any of the Company Securities. No Company Securities, or Shares issuable upon exercise or exchange of any outstanding Company Securities, are subject to any preemptive rights, rights of first refusal or other rights to purchase such Securities (whether in favor of the Company or any other Person).

5.8.2    Representations and Warranties of the Shareholders. As of the Closing Date, each Shareholder hereby represents and warrants to the other Parties that:

(a)    It is duly organized, validly existing and (if applicable) in good standing under the laws of the jurisdiction of its incorporation and has the requisite power and authority to conduct its business in accordance with its Constitutional Documents and to enter into and perform fully each of its obligations under this Agreement and the other Transaction Documents to which it is to be a party.

(b)    All corporate actions on its part necessary for the authorization, execution and delivery of this Agreement and the other Transaction Documents to which it is to be a party and for the performance of all of its obligations hereunder and thereunder has been taken. This Agreement and the other Transaction Documents to which it is a party or will be a party, when executed and delivered, shall each constitute its valid and legally binding obligation, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles.

(c)    Other than any licenses, permits, certifications, authorizations or regulatory approvals required to be obtained in connection with the Business, no consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority or any other Person, is required in connection with its execution, delivery and performance of this Agreement or any other Transaction Document to which it is to be a party.

(d)    The execution, delivery and performance of this Agreement and the Transaction Documents to which it is to be a party will not (i) violate its Constitutional Documents, (ii) violate any judgment, order, writ, injunction or decree of any court or other Applicable Law applicable to it, (iii) result in its violation of any applicable licenses, permits or authorizations, (iv) result in the breach of, give rise to a right of termination, cancellation or acceleration of any obligation with respect to (presently or with the passage of time), or otherwise be in conflict with any term of, or affect the validity or enforceability of, any agreement or other commitment to which it is a party or by which it is bound, or (v) result in the creation of any Encumbrance upon any of its assets except, with respect to sub-clauses (ii) through (iii), as would not materially and adversely affect its ability to perform its obligations under this Agreement and any other Transaction Document to which it is to be a party.

(e)    There is no action, suit, proceeding or governmental investigation pending or, to its knowledge, threatened, against it before any Governmental Authority which question or challenge its right to enter into or perform, or which question or challenge the validity of, or that would affect in any way its ability to enter into or perform this Agreement or any other Transaction Document to which it is to be a party.

(f)    Investment Representations.

(i)    Such Shareholder is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”).

(ii)    Such Shareholder has been advised by the Company that the Shares have not been registered under the Securities Act, that the Shares will be issued on the basis of the statutory exemption provided by Section 4(a)(2) under the Securities Act or Regulation D promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering and under similar exemptions under certain state securities laws, that this transaction has not been reviewed by, passed on or submitted to any federal or state agency or self-regulatory organization where an exemption is being relied upon, and that the Company’s reliance thereon is based in part upon the representations made by such Shareholder in this Agreement. Such Shareholder acknowledges that it has been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder on the transfer of securities

(iii)    Such Shareholder is purchasing the Shares for its own account and not with a view to, or for sale in connection with, any distribution thereof in violation of federal or state securities laws.

(iv)    By reason of its business or financial experience, such Shareholder has the capacity to protect its own interest in connection with the transactions contemplated hereunder.

(v)    Such Shareholder recognizes that investing in the Company involves substantial risks, and has taken full cognizance of and understands all of the risk factors related to the acquisition of the Shares. Such Shareholder has carefully considered and has, to the extent it believes such discussion necessary, discussed with such Shareholder’s professional legal, tax and financial advisers the suitability of an investment in the Company, and such Shareholder has determined that the acquisition of the Shares is a suitable investment for such Shareholder. Such Shareholder (A) has not relied on the Company or any of its representatives or Affiliates for any tax or legal advice in connection with the purchase of the Shares and (B) acknowledges that neither the Company nor any of its representatives or Affiliates has provided or will provide any tax or legal advice to such Shareholder. In evaluating the suitability of an investment in the Company, such Shareholder has not relied upon any representations or other information other than as stated under this Agreement.

5.8.3    Additional Representations and Warranties and Covenants. As of the Closing Date, each Party hereby represents and warrants to the other Parties that:

(a)    Such Party or, as far as such Party is aware, none of its current Associated Persons have (i) violated or committed an offense under any Anti-Corruption Laws, (ii) authorized, offered, promised or given any financial or other advantage (including any payment, loan, gift or transfer of anything of value), directly or indirectly, to or for the use or benefit of any Public Official (or to another Person at the request or with the assent or acquiescence of such Public Official), or any other Person, in order to assist such Party or such Party’s Associated Person in improperly obtaining or retaining business for or with any Person, improperly directing business to any Person, or securing any improper advantage, or (iii) taken any other action which would violate Anti-Corruption Laws.

(b)    Such Party and its respective Subsidiaries has kept and will keep full and accurate books and records of all payments made in connection with this Agreement and any other Transaction Document to which it is a party.

(c)    Such Party and its respective Subsidiaries has in place policies, systems, controls and procedures reasonably designed to prevent it and its Associated Persons from violating any Anti-Corruption Laws or Anti-Money Laundering Laws.

(d)    Such Party or, as far as such Party is aware, its current Associated Persons, is not or has not been the subject of any investigation, inquiry or litigation, administrative or enforcement proceedings by any Governmental Authority regarding any offence or alleged offence under the Anti-Corruption Laws or Anti-Money Laundering Laws, and so far as such Party is aware, no such investigation, inquiry or proceedings have been threatened in writing or are pending, and there are no circumstances likely to give rise to such investigation, inquiry or proceedings.

(e)    Such Party is not ineligible or treated by any Governmental Authority as ineligible to tender for any contract or business with, or be awarded any contract or business by, such Governmental Authority, or to tender for or perform any sub-contracting work under a contract with such Governmental Authority.

(f)    Such Party is not owned or Controlled by, a Sanctioned Person, and none of their respective officers or directors is a Sanctioned Person. For the preceding five years as of the date hereof, such Party has not knowingly engaged in, or is now knowingly engaged in, any dealings or transactions (i) with any individual or entity that at the time of the dealing or transaction is or was a Sanctioned Person, (ii) in any country or territory that at the time of the dealing or transaction is or was a Sanctioned Country, (iii) in violation of applicable Sanctions or Trade Controls, or (iv) that might reasonably be expected to cause such person to become a Sanctioned Person.

(g)    Without limiting the foregoing, such Party shall comply with, and shall cause the Group Companies to use reasonable best efforts to comply with, all Applicable Laws in relation to the performance of its and their obligations hereunder or in connection with the Business, including the provisions of the Anti-Corruption Laws and the Anti-Money Laundering Laws and applicable Sanctions and Trade Controls.

(h)    Such Party will not conduct or participate in any transaction, dealing, or activity that might reasonably be expected to cause such Party to become a Sanctioned Person.

5.9    Insurance.

5.9.1    After Blue Hat Registration and during the remaining term of this Agreement, the Company shall maintain, at its own cost and expense, the following insurance: (a) all insurance, in types and amounts, required by Applicable Law to be maintained by a company operating in the jurisdiction(s) in which the Company is operating; (b) general liability insurance, in the form of commercial general liability, public liability or otherwise, with limits to be determined by the Company and (c) errors and omissions/professional liability insurance, with limits to be determined by the Company.

5.9.2    The Company shall be responsible for all deductibles, self-insured retentions and any and all other self-insurance mechanisms and requirements to which the required insurance is subject.

5.9.3    All insurance maintained by the Company shall, where commercially reasonably attainable, contain a waiver of the insurer’s subrogation rights in favor of the Shareholders, their respective subsidiaries and Affiliates, and all such companies’ respective directors, officers and employees.

5.9.4    The foregoing insurance shall be maintained while this Agreement is in effect, provided that if the errors and omissions/professional liability coverage is being maintained on a claims-made basis, then if the Company is dissolved or otherwise wound up or terminated, the Company, prior to such dissolution, winding up or termination, shall purchase, at its own cost and expense, an extended reporting period of no less than six (6) years on the errors and omissions/professional liability policy.

5.9.5    Upon request, the Company shall provide each Shareholder a certificate of insurance evidencing that the insurance required herein is being maintained. In the event that any of the insurance required herein is cancelled or nonrenewed, the Company shall replace such insurance so that no lapse in coverage occurs, and shall provide each Shareholder a revised certificate of insurance evidencing same. Upon request, the Company shall provide a requesting Shareholder a complete copy of any of the insurance required to be maintained herein.

5.10    Supply Agreement. Following the Closing, CDXC may cause the Company to enter into a supply agreement for the Product(s) with ChromaDex Corporation or its Affiliate or designee (collectively, “CDXC Designee”) with the terms and conditions to be decided upon between CDXC or its Affiliates, on the one hand, and CDXC Designee, on the other hand.

5.11    Equity Incentive Plan. Following the Closing, the Board may adopt an equity incentive plan for employees of the Company on terms reasonably acceptable to the Board (the “Equity Incentive Plan”). In the discretion of the Board, the Equity Incentive Plan will provide for grants of equity incentive awards to members of the Board.

ARTICLE 6

TERM AND TERMINATION

6.1    Termination. This Agreement may be terminated as follows:

6.1.1    Expiration of Term. This Agreement shall terminate on the twentieth (20^th) anniversary of the Closing Date, unless the Parties otherwise agree in writing to extend prior to such termination (such term, as it may be extended, the “Term”).

6.1.2    Termination by Unanimous Consent. This Agreement may be terminated at any time by CDXC.

6.1.3    Termination Before Expiration of the Term. CDXC may terminate this Agreement at its sole discretion by written notice to Taikuk upon the occurrence of any of the following:

(a)    any Party materially breaches this Agreement (such a Party, a “Breaching Party”), and such breach is not remedied within thirty (30) days of the non-breaching Party giving written notice of such breach to the Breaching Party;

(b)    any Party, or any Person with Control over any other Party, (such a Party, an “Insolvent Party”) becomes bankrupt or insolvent, or is the subject of proceedings for liquidation or dissolution only wherein any of which results in an inability of the Insolvent Party to perform the functions of its business in their ordinary course, or ceases to carry on business or becomes unable to pay its debts as and when they become due and payable; provided, however, that, notwithstanding anything to the contrary contained herein, no right of termination shall exist due to the bankruptcy, insolvency, liquidation or dissolution of the investors of CDXC or the members of the CDXC board of directors or their Affiliates; or

(c)    any Party is not in compliance in all material respects with the requirements of all Applicable Laws (such Party, a “Non-Complying Party”).

Notwithstanding anything to the contrary in this Agreement, in lieu of terminating this Agreement under this Section 6.1.3, the Voting Shareholder may elect to terminate this Agreement only with respect to the applicable Breaching Party, Insolvent Party or Non-Complying Party (as applicable, a “Defaulting Party”) and such Defaulting Party will forfeit any and all interest such Defaulting Party has in the Group Companies without any additional consideration therefor and without any further action by the Group Companies.

6.1.4    Partial Termination. This Agreement shall be terminated with respect to a Shareholder if such Shareholder (together with its Affiliates) no longer owns any Company Securities.

6.2    Effect of Termination.

6.2.1    Voluntary Liquidation. In the event that this Agreement is terminated pursuant to Section 6.1.1 or Section 6.1.2, the Shareholders shall procure that the Company be put into voluntary liquidation and dissolution in accordance with Section 6.2.3.

6.2.2    Upon termination of this Agreement pursuant to this Article 6, this Agreement shall be of no force and effect, provided that Article 1 (Definitions and Interpretation), Sections 5.1 (Intellectual Property Rights), 5.5 (Confidentiality and Publicity), this Article 6 (Term and Termination), Article 7 (Transfer Restrictions) and Article 8 (General Provisions) shall survive the termination of this Agreement and shall remain in full force and effect. All other rights and obligations of the Parties hereunder shall terminate without any liability on the part of any Party in respect thereof, except that such termination shall not relieve any Party of any liability for any fraud, intentional misrepresentation or criminal or willful misconduct, or a breach of the terms and provisions contained in this Agreement arising prior to termination.

6.2.3    Upon termination of this Agreement in accordance with its terms, the Company shall thereafter engage in no further business other than that which is necessary to wind up the Business, and after the payment of the Company’s liabilities, the assets of the Company shall be applied and distributed, where the Company is solvent, by the Directors, or, where the Company is insolvent, by one or more liquidators appointed or nominated for appointment by the Shareholders, upon the passing of a special resolution to wind up the Company, in accordance with the priority of payments prescribed by the applicable law, provided that any surplus assets of the Company that are available for distribution to its members shall be applied: (a) to the Non-Voting Shareholders (on a pro rata basis based on their respective Pro Rata Portions) in an amount equal to the lesser of (i) an aggregate amount equal to US $1,000,000 and (ii) the Non-Voting Shareholders’ aggregate Pro Rata Portion of any such surplus assets; and (b) the balance, in its entirety, to the Voting Shareholder.

6.2.4    Upon termination or expiration of this Agreement for any reason, the Parties agree that, pursuant to Section 5.3, no Party other than CDXC or its designee shall have any rights to any Regulatory Approvals.

6.2.5    Upon dissolution of the Company, the Parties shall do and perform, or cause to be done and performed, all such further acts, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as necessary to give effect to the dissolution, liquidation and deregistration of the Company, including causing their respective Directors to timely approve the termination and signing all relevant documents required to obtain all consents from the applicable Governmental Authorities with respect to the dissolution, liquidation and deregistration of the Company.

ARTICLE 7

TRANSFER RESTRICTIONS

7.1    General Restriction Against Transfer of Company Securities. A Shareholder shall not Transfer any of the Company Securities held by it to any Person and shall cause its Affiliates not to Transfer their indirect interests in the Company Securities to any Person unless (a) such Transfer is in accordance with Section 7.2 and (b) such Transfer is approved in writing by the Voting Shareholder. Any Transfer in contravention of the provisions of this Article 7 shall be null and void. Notwithstanding anything to the contrary contained in this Agreement, no consent shall be required for pledges of assets in connection with disclosed and consensual debt financing transactions of a Party. For the avoidance of doubt, no Company Securities subject to a Right of Repurchase may be Transferred.

7.2    Permitted Transfers.

Each Shareholder (the “Transferring Party”) may Transfer its Company Securities to its Affiliates (the “Transferee Affiliate”), provided that (a) such Shareholder shall (i) provide the other Shareholders with reasonable evidence for its relationship with the Transferee Affiliate no later than thirty (30) days before the effective date of the Transfer and (ii) deliver to the other Shareholders on or prior to the effective date of the Transfer a Deed of Adherence duly executed by the Transferee Affiliate, (b) the Transferring Party shall continue to be bound by all of its obligations under the Transaction Documents on a joint and several basis with the Transferee Affiliate, and (c) in the event the Transferee Affiliate ceases to be an Affiliate of the Transferring Party, such Transferee Affiliate shall immediately Transfer the Company Securities held by it to the Transferring Party or another Person that qualifies as an Affiliate of the Transferring Party. Each Shareholder and its Transferee Affiliates will be treated as one Shareholder for all purposes under this Agreement.

7.3    Drag-Along Rights.

7.3.1    If any Person or group of Persons not affiliated with any Shareholder renders a bona-fide offer to acquire more than 50% of the Shares, or more than 50% of the assets or business of the Company, by share or asset purchase, merger, or otherwise (“Exit Transaction”) and Shareholders holding at least 50% of the Voting Shares approve of such offer (the Shareholders approving of such offer, the “Dragging Shareholders”), then each Party hereto shall, upon request of the Dragging Shareholders, be obliged to make all statements and take all actions necessary or appropriate to implement the Exit Transaction. In any event, this obligation shall, in particular, but without limitation, include the obligation of each Shareholder to (a) vote all of his, her or its Shares in favor of such transaction, to the extent any such vote is necessary or appropriate in this respect (e.g., also regarding the performance of due diligence by the Company or the potential acquirer), (b) sell, transfer and/or exchange all of his, her or its Shares in connection with such transaction at (pro rata) the terms of such offer, but subject to, and applying the provisions of, the proceeds preference in Section 6.2.3, and (c) execute and deliver such instruments and take such other action, including executing any purchase agreement, license agreement, swap, merger or contribution agreement or other and related documents, as may be reasonably required for such purpose. The Dragging Shareholders shall be entitled to request that an M&A advisor or other suitable consultant or other person (“Negotiator”) is instructed and authorized by the Company (and/or, if so requested, by all Shareholders) to prepare an Exit Transaction, identify and approach potential acquirers, and negotiate all terms and conditions of the Exit Transaction with such potential acquirer or acquirers. The Dragging Shareholders may determine the Person to act as Negotiator. In case the Shareholders enter into binding agreements on an Exit Transaction, any costs of the Negotiator invoiced in connection with such Exit Transaction shall be borne by all Shareholders pro rata to the proceeds received by them from such Exit Transaction. The Negotiator shall be entitled at any time upon its instruction by the Dragging Shareholders to demand that all Shareholders immediately submit to the Negotiator respective powers of attorney by way of separate deed to effect the Exit Transaction.

7.4    Actions Concerning Transfers. The Company shall register any Transfer of Company Securities which complies with the provisions of this Article 7. The Company shall not register any Transfer of Company Securities on its books in violation of this Article 7.

7.5    Scope of Transfer Restrictions. The provisions of this Agreement shall apply to any Company Securities which may be issued or transferred hereafter to a Shareholder or to its Affiliates in consequence of any additional issuance, purchase, exchange or reclassification of Company Securities, corporate reorganization, or any other form of re-capitalization, or consolidation, or merger, or share split, or share dividend or otherwise.

ARTICLE 8

GENERAL PROVISIONS

8.1    Governing Law. The Agreement and all non-contractual or other obligations arising out of or in connection with it shall be governed by the laws of Hong Kong.

8.2    Dispute Resolution.

8.2.1    All disputes arising out of or in connection with this Agreement shall be settled by arbitration in Los Angeles, California and by the rules of arbitration governed by JAMS under its JAMS Rules then in effect. The seat of arbitration shall be Los Angeles, California. The number of arbitrators shall be one, which shall be appointed by CDXC. The arbitration proceedings shall be conducted in English. The arbitrator shall have the authority to grant specific performance, and to allocate among the Parties the costs of arbitration in such equitable manner as the arbitrators may determine. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing and without prejudice to Parties’ agreement to arbitrate, any Party shall have the right to institute a legal action in a court of proper jurisdiction for injunctive relief and/or a decree for specific performance pending final settlement by arbitration.

8.2.2    If more than one arbitration is commenced under the Transaction Documents and any Shareholder believes that two or more of such arbitrations are substantially related, JAMS may, at the request of a Shareholder to consolidate all or a part of the matters in dispute in the various arbitrations upon the terms or conditions as the arbitral tribunal deems fit, taking into account the interests of justice and efficiency, the stage of the proceedings and all other relevant circumstances. In addition, if arbitration proceedings have already been commenced under any other Transaction Documents (a “Pre-Existing Arbitration”), and a Shareholder believes that there is a dispute under this Agreement that is substantially related to, or involves the same parties or issues as, a Pre-Existing Arbitration, then either Shareholder may seek to refer such dispute to the arbitral tribunal in the Pre-Existing Arbitration. The Shareholders agree that JAMS will have the discretion to determine whether to consolidate such dispute with the Pre-Existing Arbitration, taking into account the interests of justice and efficiency, the stage of the proceedings and all other relevant circumstances. Subject to the compliance of the terms of this Section 8.2, the Shareholders expressly accept that any dispute under this Agreement may be disposed of in an arbitration proceeding relating to a dispute arising under another Transaction Document, even if the latter proceeding involves parties other than the Shareholders.

8.3    Notices and Other Communications. Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and in English and shall be provided by one or more of the following means and shall be deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by facsimile or electronic mail, on the date of transmission, (c) if by internationally recognized courier service, on the date of delivery as may be confirmed in writing to the sender by such courier service or (d) on the tenth Business Day from the date of posting in the case of pre-paid first class post, special delivery or registered post. All such notices, requests, demands and other communications shall be addressed as follows:

If to CDXC:

MCS, PO Box 309

Ugland House, Grand Cayman

KY1-1104, Cayman Islands

Attn: Heather Van Blarcom

Email: legal@chromadex.com

With a copy to (which notice alone shall not constitute proper notice under this Section 8.3):

Latham & Watkins LLP

10250 Constellation Blvd., Suite 1100

Los Angeles, CA 90067, USA

Attn: David Zaheer

Email: david.zaheer@lw.com

If to Taikuk:

No. 58, Yingfangli, Sanfangqiqiang, FZ China

Attn: Chris Yung Hui

Email: chris.hui@me.com

If to the Company:

40th Floor, Dah Sing Financial Centre, No. 248

Queen’s Road East, Wanchai, Hong Kong

Attn: Heather Van Blarcom

Email: legal@chromadex.com

With a copy to (which notice alone shall not constitute proper notice under this Section 8.3): CDXC and Taikuk (as provided in this Section 8.3).

or to such other address or electronic mail as a Party may have specified to the other Party in writing delivered in accordance with this Section 8.3.

8.4    Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for reference only and shall not be binding upon the Parties.

8.5    Severability. If any provision in this Agreement shall be found or be held to be invalid or unenforceable, then the meaning of said provision shall be construed, to the maximum extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any Party.

8.6    Expenses. For the avoidance of doubt, any documented and out-of-pocket costs and expenses reasonably incurred by any Party in connection with the Group Companies’ application for and obtaining of any permit or license required for the operation of the Business shall be borne entirely by the Company.

8.7    No Waiver. No waiver of any term or condition of this Agreement shall be valid or binding on a Party unless the same shall have been set forth in a written document, specifically referring to this Agreement and duly signed by the waiving Party. The failure of a Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.

8.8    Entire Agreement; Amendments. The terms and conditions contained in this Agreement, and the other Transaction Documents (including the Annexes, Exhibits and Schedules thereto) constitute the entire agreement between the Parties and supersede all previous agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof. No agreement or understanding amending this Agreement shall be binding upon any Party unless set forth in a written document which expressly refers to this Agreement and which is signed and delivered by duly authorized representatives of each Party.

8.9    Assignment. No Party shall have the right to assign its rights or obligations under this Agreement without the other Parties’ prior written consent, except for any Shareholder to assign its rights or obligations hereunder in connection with a Transfer of such Shareholder’s Company Securities that is made in compliance with, and subject to, Article 7. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective successors and permitted assigns.

8.10    Cumulative Remedies. Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby or by Applicable Law or otherwise on such Party, and the exercise of any one remedy will not preclude the exercise of any other remedy.

8.11    Specific Performance. Each Party agrees that irreparable harm, for which there may be no adequate remedy at law and for which the ascertainment of damages would be difficult, may occur in the event any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Each Party accordingly agrees that each of the other Parties shall be entitled to seek an injunction or injunctions in accordance with Section 8.2 to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, in each instance without being required to post bond or other security and in addition to, and without having to provide the adequacy of, other remedies at law.

8.12    No Agency. Nothing contained herein or done in pursuance of this Agreement shall be construed as any Party being the agent of any other Party for any purpose or in any sense whatsoever.

8.13    Third Party Beneficiaries. Except as expressly set forth herein, nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any Person, other than the Parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby. Except as expressly set forth herein, a Person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance, Cap. 623 of the laws of Hong Kong, to enforce or to enjoy the benefit of any term of this Agreement. For the avoidance of doubt, any amendments to or waiver under this Agreement shall not require the consent of any Person not a party to this Agreement.

8.14    Conflicts. To the extent permitted under Applicable Law, if any provision of this Agreement or any other Transaction Documents (other than the Constitutional Documents of the Group Companies) conflicts with any provision of the Constitutional Documents of any Group Company, the Parties agree that the provisions of this Agreement or such other Transaction Documents shall prevail and control as among the Parties. The Shareholders shall exercise their rights to cause such Constitutional Documents to be amended as soon as practicable to comply with the provisions of this Agreement and the applicable Transaction Documents.

8.15    Counterparts. This Agreement may be executed in any number of counterparts, and each counterpart shall constitute an original instrument, but all such separate counterparts shall constitute only one and the same instrument. This Agreement may be executed by delivery of a facsimile or .pdf copy of an executed signature page with the same force and effect as the delivery of an originally executed signature page.

8.16    Further Assurances. Each of the Parties shall, from time to time, execute, or cause the execution of, such documents and instruments, or take any other action or cause (including cause the Directors appointed by it and its Affiliates) the taking of any other action to give full effect to the provisions of this Agreement and the other Transaction Documents.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as a deed of the date first above written.

EXECUTED AND DELIVERED                    )

as a deed by                                                         )         By:/s/ Heather Van Blarcom                  

CHROMADEX ASIA PACIFIC                      )         Name: Heather Van Blarcom

VENTURES LIMITED                                    )         Title: Authorised Director

By:/s/ Jocelyn He

Name: Jocelyn He

Title: Company Secretary

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as a deed of the date first above written.

EXECUTED AND DELIVERED                )

as a deed by                                                     )         By:/s/ Heather Van Blarcom                  

ASIA PACIFIC SCIENTIFIC, INC.           )         Name: Heather Van Blarcom

                                                                     )         Title: Authorised Director

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as a deed of the date first above written.

EXECUTED AND DELIVERED             )

as a deed by                                                  )         By:/s/ Tianyi Zheng                  

HONG KONG TAIKUK (CHINA)           )         Name: Tianyi Zheng

GROUP LTD.                                              )         Title: Chairman

Exhibit 1

Amended and Restated Articles of Association

(See Attached)

Exhibit 2

Form of Deed of Adherence

THIS DEED is made the [●] day of [●] [●] by [●] (the “New Shareholder”) and is supplemental to the Shareholders Agreement dated [●] made among Hong Kong Taikuk (China) Group Ltd., Asia Pacific Scientific, Inc., and ChromaDex Asia Pacific Ventures Limited, (such agreement as from time to time supplemented, varied and amended, the “Shareholders Agreement”).

WITNESSETH as follows:

IN WITNESS whereof the New Shareholder has executed this Deed the day and year first above written.

Exhibit 3

Form of Compliance Certification

In connection with the Shareholders Agreement (the “Agreement”) dated [●] with respect to ChromaDex Asia Pacific Ventures Limited (the “Company”) and the Transaction Documents between the Company and [Applicable Shareholder] and/or its affiliates (“[Applicable Shareholder]”), the Company’s Subsidiaries (“Subsidiaries” and each a “Subsidiary”, and together with the Company, the “Group Companies”) and the Group Companies employees, associates, representatives, officers, directors, agents and any related parties (the “Group Parties”) hereby certify that:

1.    The Group Parties will comply strictly with all laws, regulations, rules, decrees and governmental orders of the PRC and all applicable Anti-Corruption Laws, the Anti-Corruption Policy and Applicable Sanctions, Trade Controls, and Anti-Money Laundering Laws.

2.    Without limiting the generality of Paragraph No. I of this certification, the Group Parties acknowledge that the performance of any services to [Applicable Shareholder] pursuant to the Transaction Documents be subject to the requirements and restrictions of the applicable Anti-Corruption Laws or the Anti-Corruption Policy, the Group Parties understand the provisions of such applicable Anti-Corruption Laws and the Anti-Corruption Policy and agree to act in compliance with same.

3.    In accordance with the applicable Anti-Corruption Laws and the Anti-Corruption Policy, no Group Party has, and will not, directly or indirectly, offer, pay, promise to pay, or authorize the giving of any monies or financial or other advantage or any other thing of value to any person: (a) for the purpose of inducing or rewarding that person or any other person to perform their role or function improperly; (b) for the purpose of influencing a Public Official in relation to any decision, act or other performance of their official role or function, including a decision to fail to perform that role or function, so as to obtain or retain business or a business advantage of any kind; or (c) that is otherwise in breach of the applicable Anti-Corruption Laws or the Anti-Corruption Policy.

4.    In accordance with the applicable Anti-Corruption Laws and the Anti-Corruption Policy, to the actual knowledge of the Group Parties, except as agreed in writing by each Shareholder, no Group Party has or will, retain any Public Official, as an employee, agent, consultant, and no Public Official is an officer, director or registered shareholder of the Group (unless such arrangement was approved by each Shareholder).

5.    In accordance with the applicable Anti-Corruption Laws and the Anti-Corruption Policy, the Group has not, and will not, directly or indirectly, request, accept, agree to receive, or authorize the acceptance of any monies or financial or other advantage from any person: (a) as an inducement or reward for the improper performance of any role or function; or (b) that is otherwise in breach of the applicable Anti-Corruption Laws.

6.    In accordance with the applicable Anti-Corruption Laws, the Anti-Corruption Policy and the provisions of the Agreement, the Group Parties have received appropriate training in ethical business practices, including a regular annual training program and any training required by Applicable Law or reasonably requested by [Applicable Shareholder], in each case with training materials and formats approved by Asia Pacific Scientific, Inc..

7.    In accordance with Applicable Sanctions and Trade Controls, no Group Party has, and will not, directly or indirectly, transact or deal with a Sanctioned Person.

8.    The Group Companies agree at the request of [Applicable Shareholder] and at least annually it will certify as to its continued compliance with the applicable Anti-Corruption Laws, the Anti-Corruption Policy and the Group Companies’ representations hereunder, and Applicable Sanctions and Trade Controls. Any knowledge or suspicion of violations of these laws and regulations, or any improper payment or offer of, or agreement to, same in connection with the Group Companies’ business shall be immediately reported to CDXC.

Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.

Exhibit 4

Form of PFIC Annual Information Statement

(1)    This questionnaire applies to the taxable year of ChromaDex Asia Pacific Ventures Limited (“Company”) beginning on [January 1, 20[__]] and ending on [December 31, 20[__]] and is being provided to [__________] (“Shareholder”).

(2)    Please state whether 75% or more of the Company’s gross income constitutes passive income.

Passive income: For purposes of this question, note that passive income includes:

Look-through rule: If the Company owns, directly or indirectly, 25% of the stock by value of another corporation, the Company must take into account its proportionate share of the income received by such other corporation.

(3)    Please state whether the average fair market value during the taxable year of passive assets held by the Company equals 50% or more of the average fair market value of all of the company’s assets.

Note: In order to answer this question, the test is applied on a gross basis; no liabilities are taken into account.

Passive Assets: For purposes of this question, note that “passive assets” are those assets which generate (or are reasonably expected to generate) passive income (as defined in paragraph (2) above). Assets which generate partly passive and partly non-passive income are considered passive assets to the extent of the relative proportion of passive income (compared to non-passive income) generated in a particular taxable year by such assets. Please note the following:

Average value: For purposes of this question, note that “average fair market value” equals the average quarterly fair market value of the assets for the relevant taxable year.

Look-through rule: If the Company owns, directly or indirectly, 25% of the stock by value of another corporation, the Company must take into account its proportionate share of the passive assets of such other corporation.

(4)    Please state whether: (a) more than 50% of the Company’s stock (by voting power or by value) is owned by five or fewer U.S. persons or entities; and (b) the average aggregate adjusted tax bases (as determined under U.S. tax principles) during the taxable year of the passive assets held by the company equals 50% or more of the average aggregate adjusted tax bases of all of the company’s assets.

Average value: For purposes of this question, “average aggregate adjusted tax bases” equals the average quarterly aggregate adjusted tax bases of the assets for the relevant taxable year.

Look-through rule: If the Company owns, directly or indirectly, 25% of the stock by value of another corporation, the Company must take into account its proportionate share of the passive assets of such other corporation.

(5)    Shareholder has the following pro-rata share of the ordinary earnings and net capital gain of the Company as determined under U.S. income tax principles for the taxable year of the Company:

Ordinary Earnings: __________ (as determined under U.S. income tax principles)

Net Capital Gain: ___________ (as determined under U.S. income tax principles)

Pro Rata Share: For purposes of the foregoing, the shareholder’s pro rata share equals the amount that would have been distributed with respect to the shareholder’s stock if, on each day during the taxable year of the Company, the Company had distributed to each shareholder its pro rata share of that day’s ratable share (determined by allocating to each day of the year, an equal amount of the Company’s aggregate ordinary earnings and aggregate net capital gain for such year) of the Company’s ordinary earnings and net capital gain for such year. Determination of a shareholder’s pro rata share will require reference to the Company’s articles of association and equity joint venture contract dated [_________].

(6)    The amount of cash and fair market value of other property distributed or deemed distributed by Company to the Shareholder during the taxable year specified in paragraph (1) above is as follows:

Cash: _________________

Fair Market Value of Property: ____________________

(7)    The Company will permit the Shareholder to inspect and copy the Company’s permanent books of account, records, and such other documents as may be maintained by Company that are necessary to establish that PFIC ordinary earnings and net capital gain, as provided in Section 1293(e) of the U.S. Internal Revenue Code of 1986, as amended (or any successor provision thereto), are computed in accordance with U.S. income tax principles.

Yours sincerely,

_____________________________

For and on behalf of ChromaDex Asia Pacific Ventures Limited

Name:

Title:

Exhibit 10.2

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “Agreement”) is dated as of September 30, 2022, by and among ChromaDex Corporation, a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively to the extent there is more than one Purchaser, the “Purchasers”).

WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement; and

WHEREAS, the Company and each Purchaser intend to enter into a registration rights agreement (the “Registration Rights Agreement”), which shall provide for, among other things, the terms and conditions upon which the Shares shall be registered for re-sale under the Securities Act.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:

ARTICLE I.

DEFINITIONS

1.1           Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:

“Acquiring Person” shall have the meaning ascribed to such term in Section 4.4.

“Action” shall have the meaning ascribed to such term in Section 3.1(j).

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.

“Board of Directors” means the board of directors of the Company.

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

“Change of Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events: (i) any “person” (as such term is used in Section 13(d) and 14(d) of the Exchange Act (as defined below)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction; (ii) the consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization (or similar transaction), if more than fifty percent (50%) of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation or other reorganization (or similar transaction) is owned by persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization; or (iii) the consummation of a sale, transfer or other disposition of all or substantially all of the Company’s and its Subsidiaries’ assets, taken as a whole.

“Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1.

“Closing Date” means the date on which the Closing is consummated.

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Company Counsel” means Proskauer Rose LLP, with offices located at 2029 Century Park East, Suite 2400, Los Angeles, CA 90067-3010.

“Employee Plan” means (A) an employee benefit plan within the meaning of Section 3(3) of ERISA whether or not subject to ERISA; (B) stock option plans, stock purchase plans, bonus or incentive award plans, severance pay plans, programs or arrangements, deferred compensation arrangements or agreements, employment agreements, executive compensation plans, programs, agreements or arrangements, change in control plans, programs or arrangements, supplemental income arrangements, vacation plans, and all other employee benefit plans, agreements, and arrangements, not described in (A) above; and (C) plans or arrangements providing compensation to employee and non-employee directors, in each case in which the Company or any ERISA Affiliate sponsors, contributes to, or provides benefits under or through such plan, or has any obligation to contribute to or provide benefits under or through such plan, or if such plan provides benefits to or otherwise covers any current or former employee, officer or director of the Company or any ERISA Affiliate (or their spouses, dependents, or beneficiaries).

“Equity Interest” means any share, capital stock, partnership, limited liability company, member or similar equity interest or voting right in any Person, and any option, warrant, right (including conversion, stock appreciation, put, call, redemption, repurchase or similar rights), security (including debt securities), commitment, obligation, agreement or arrangement that is convertible, exchangeable or exercisable into or for, or give any Person a right to subscribe for or acquire, or whose value is linked to or based upon, any such share, capital stock, partnership, limited liability company, member or similar equity interest or voting right.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any entity that would have ever been considered a single employer with the Company under Section 4001(b) of ERISA or part of the same “controlled group” as the Company for purposes of Section 302(d)(3) of ERISA.

“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(r).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.

“FDA” shall have the meaning ascribed to such term in Section 3.1(dd).

“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).

“Governmental Authority” shall mean any federal, state, foreign or local government, or any political subdivision thereof or any arbitrator, court, administrative or regulatory agency, commission, department, board, bureau, body or other government, authority or instrumentality or any entity or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(o).

“Law” or “law” shall mean any supranational, national, federal, state, regional, provincial, local or municipal constitution, treaty, law, statute, ordinance, code, determination, principle of common law or any other requirement having the effect of law of any Governmental Authority (including any rule, regulation, plan, injunction, judgment, order, award, decree, ruling, requirement, guidance, policy or charge thereunder or related thereto), in each case as amended as of the date hereof, whether in the United States or a foreign jurisdiction.

“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, mortgage, claim, easement, right-of-way, option, title retention agreement, preemptive right or other restriction.

“Material Adverse Effect” shall mean any change, event, condition, effect, development, state of facts or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, has had or would be reasonably likely to have (a) a material adverse effect on the business, condition (financial or other), assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole, or (b) a material adverse effect on the Company’s ability to timely perform its obligations under, or timely consummate any of the transactions contemplated by, the Agreement (including the sale of the Shares), in accordance with the terms of this Agreement; provided, that for purposes of clause (a) hereof, the following Effects shall not constitute a “Material Adverse Effect: (i) changes occurring after the date hereof in conditions in the United States of America or global economy or capital or financial markets generally, including changes in interest or exchange rates, (ii) changes occurring after the date hereof in law (or the interpretation thereof) or changes to U.S. GAAP occurring after the date hereof that, in each case, generally affect the biotechnology, biopharmaceutical or nutraceutical industries, (iii) acts of war, sabotage or terrorism occurring after the date hereof, or any escalation or worsening of any such acts of war, sabotage or terrorism, or (iv) earthquakes, hurricanes, floods or other natural disasters (including the COVID-19 pandemic) occurring after the date hereof, provided, however, that any Effect referred to in clauses (i)-(iv) above shall be taken into account in determining whether a Material Adverse Effect has occurred or would be reasonably likely to occur only if such Effect has had or would be reasonably likely to have a disproportionate effect on the Company or its Subsidiaries, taken as a whole, compared to other companies in the general industries in which the Company or any of its Subsidiaries operate.

“Material Permits” shall have the meaning ascribed to such term in Section 3.1(m).

“Per Share Purchase Price” equals $1.25, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Closing.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“Products” means products and/or services currently or previously researched, designed, developed, manufactured, performed, licensed, packaged, labeled, tested, marketed, processed, handled, sold, stored, distributed, transported, provided and/or otherwise made available by or on behalf of the Company or its Subsidiaries.

“Purchase Price” means $3,100,000, which for the avoidance of doubt, represents the product of (x) the Shares multiplied by (y) the Per Share Purchase Price.

“Purchaser Party” shall have the meaning ascribed to such term in Section 4.6.

“Regulation FD” means Regulation FD promulgated by the Commission pursuant to the Exchange Act, as such Regulation may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Regulation.

“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Shares” means 2,480,000 shares of Common Stock.

“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock). 

“Subscription Amount” means, as to each Purchaser, its pro rata share of the Purchase Price, as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.

“Subsidiary” means any subsidiary of the Company as set forth in the SEC Reports, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.

“Trading Day” means a day on which the principal Trading Market is open for trading.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

“Transaction Documents” means this Agreement, the Registration Rights Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder.

“Transfer Agent” means Computershare, the current transfer agent of the Company, with a mailing address of 462 South 4th Street, Suite 1600, Louisville, Kentucky 40202 and any successor transfer agent of the Company.

ARTICLE II.

PURCHASE AND SALE; REGISTRATION OF SHARES

2.1           Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at 10:00am (New York City time) on October 7, 2022 at the offices of Company Counsel, or at such other time and location as the parties shall mutually agree in writing. At the Closing, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the Shares in exchange for payment by the Purchasers, severally and not jointly, of an aggregate amount equal to the Purchase Price. Each Purchaser’s applicable Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designee. At the Closing, the Company shall deliver to each Purchaser its respective pro rata share of the Shares (based on such Purchaser’s applicable Subscription Amount relative to the aggregate Purchase Price), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Settlement of the Shares shall occur via “Delivery Versus Payment” (DVP) (i.e., on the Closing Date, the Company shall issue the Shares registered in each Purchaser’s name and address and released by the Transfer Agent directly to the account(s) identified by each Purchaser, and payment therefor shall be made by each Purchaser (by wire transfer to the Company)). All Shares shall be delivered to the Purchasers hereunder free and clear of all Liens, other than restrictions on transferability arising under applicable federal securities laws.

2.2           Deliveries.

(a)           On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:

(i)           a legal opinion of Company Counsel, in form and substance reasonably acceptable to the Purchasers;

(ii)        the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;

(iii)        a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver to such Purchaser, on an expedited basis, a certificate evidencing the number of such Purchaser’s Shares registered in the name of such Purchaser;

(iv)        the Registration Rights Agreement, in form and substance reasonably acceptable to the Purchasers, executed by a duly authorized officer of the Company; provided, that the Purchasers may waive delivery of such Registration Rights Agreement at the Closing, in which case, the provisions of Section 4.11 shall apply; and

(v)        a certificate, signed by a duly elected officer of the Company, certifying as of the Closing Date as to the satisfaction of each of the conditions set forth in Section 2.3(b)(i), (ii) and (iv).

(b)           On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designee.

2.3           Closing Conditions.

(a)           The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:

(i)           the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate in all material respects as of such date);

(ii)           all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed in all material respects; and

(iii)           the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.

(b)           The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:

(i)           the accuracy on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date, without giving effect, in each case, to any material or Material Adverse Effect qualifiers), except that where the failure to be accurate does not constitute a Material Adverse Effect;

(ii)           all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed in all material respects;

(iii)           the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;

(iv)           there shall have been no Material Adverse Effect with respect to the Company since the date hereof;

(v)           from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing;

(vi)      all authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state in the United States that are binding upon the Company and that are required in connection with the lawful sale and issuance of the Shares at the Closing pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the date of the Closing, and no stop order or other order enjoining the sale of the Shares shall have been issued and no proceedings for such purpose shall be pending or, to the knowledge of the Company, threatened by the Commission, or any commissioner of corporations or similar officer of any state in the United States having jurisdiction over this transaction; and

(vii)           the sale and issuance of the Shares shall be legally permitted by all laws and regulations to which Purchasers and the Company are subject.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

3.1           Representations and Warranties of the Company. Except as set forth in the SEC Reports (other than in the portions thereof appearing under the heading “Risk Factors” or “Forward Looking Statements” or the Disclosure Schedule to this Agreement (the “Disclosure Schedule”), which Disclosure Schedule shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedule), the Company hereby makes the following representations and warranties to each Purchaser as of the date hereof and as of the Closing Date (except for the representations and warranties that speak as of a specific date, which shall be made as of such date):

(a)           Subsidiaries. All of the direct and indirect Subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly or indirectly, all of the issued and outstanding capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other Equity Interests of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase Equity Interests of each Subsidiary.

(b)           Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with all requisite power and authority to own, lease, operate and use its properties and assets and to carry on its business as currently conducted and as it is presently proposed to be conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except, in the case of any Subsidiary, where the failure to be so qualified or in good standing, as the case may be, has not had and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect and no Proceeding has been instituted, is pending, or, to the Company’s knowledge, has been threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

(c)           Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby (including the issuance and sale of the Shares by the Company) have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(d)           No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby do not and will not conflict with, violate, result in a breach of or constitute (upon notice or lapse of time or both) a default under, or result in the creation or imposition of any Lien upon any properties or assets of the Company or any Subsidiary or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) under any (i) certificate or articles of incorporation, bylaws or other organizational or charter documents of the Company or any of its Subsidiaries, or (ii) any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Company’s receipt or filing, as applicable, of the Required Approvals, any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority in the United States to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations and the rules and regulations of any self-regulatory organization to which the Company or its securities are subject, including all Trading Markets), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of clause (ii), as has not had and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect.

(e)           Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, approval, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in the United States in connection with the execution, delivery and performance by the Company of the Transaction Documents (including the offer, sale or issuance of the Shares by the Company), other than those filings that are set forth on Schedule 3.1(e) of the Disclosure Schedule (collectively, the “Required Approvals”). The Required Approvals will be timely filed by the Company within the applicable periods therefor.

(f)        Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens, other than restrictions on transferability under applicable federal securities laws. Each holder of the Shares will not be subject to personal liability by reason of being such a holder. The Shares are not and will not be subject to any preemptive rights held by any holders of any security of the Company or any similar contractual rights granted by the Company to any Person. All corporate action required to be taken for the authorization, issuance and sale of the Shares has been duly and validly taken. The Shares shall be issued by the Company in compliance with all federal and state securities laws.

(g)           Capitalization.

(i)         As of the close of business on the date immediately prior to the date of this Agreement (the “Capitalization Date”), the authorized capital stock of the Company consists of 150,000,000 shares of Common Stock, of which 68,350,889 such shares of Common Stock are issued and outstanding (the “Outstanding Common Stock”).

(ii)           As of the close of business on the Capitalization Date, except as set forth on Schedule 3.1(g)(ii) of the Disclosure Schedule, there are no Equity Interests of the Company issued and outstanding or subject to issuance. Schedule 3(g)(ii) of the Disclosure Schedules sets forth (x) a list of all stock options granted, awarded or otherwise outstanding as of the Capitalization Date (including, among other things, the name of grantee, number and type of Equity Interests subject to the option, exercise price, grant price, market price on grant date, vesting schedule and grant date for each such listed stock option) (collectively, the “Outstanding Company Options”), (y) a list of all restricted stock grants which are outstanding as of the Capitalization Date (including the name of grantee, number and type of Equity Interests granted, purchase price per share and grant date for each such listed restricted stock grant) (collectively, the “Outstanding Company RSAs”) and (z) a list of all warrants to purchase capital stock of the Company which are outstanding as of the Capitalization Date (including the name of the holder of, exercise price for, expiration date of and number and type of Equity Interests issuable under each such listed warrant) (collectively, the “Outstanding Company Warrants”). 

(iii)           The Company has not issued any Equity Interests since its most recently filed periodic or current report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of other Equity Interests outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except for the Outstanding Company Options, the Outstanding Company RSAs, the Outstanding Company Warrants and as a result of the purchase and sale of the Shares, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or other Equity Interests, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or other Equity Interests. Except with respect to the Outstanding Company Options and the Outstanding Company RSAs and the related award agreements to which the Company is a party, there are no obligations (whether outstanding or authorized) of the Company or any Company Subsidiary requiring the repurchase of any Equity Interests of the Company. The issuance and sale of the Shares will not obligate the Company to issue shares of Common Stock or other Equity Interests to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such Equity Interests. All of the outstanding Equity Interests of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding Equity Interests was issued in violation of any preemptive rights or similar rights to subscribe for or purchase Equity Interests. The offers and sales of the Company’s Equity Interests were at all relevant times either registered under the Securities Act and the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the applicable purchasers, exempt from such registration requirements. No further approval or authorization of any stockholder or the Board of Directors is required for the issuance and sale of the Shares pursuant to the Transaction Documents. Except as listed on Schedule 3.1(g)(iii), there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s Equity Interests to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s holders of Equity Interests.

(h)           SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described in the SEC Reports conform to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described in the SEC Reports that have not been so filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the SEC Reports, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. Except as described in the SEC Reports, none of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. Performance by the Company of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.

(i)           Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to, either individually or in the aggregate, result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting or the manner in which it keeps its accounting books and records other than as required by GAAP, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans and (vi) no officer or director of the Company has resigned from any position with the Company. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made. Unless otherwise disclosed in an SEC Report filed prior to the date hereof, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.

(j)           Litigation. Since January 1, 2020, except as disclosed in the SEC Reports, there is no claim, complaint, action, arbitration, charge, hearing, inquiry, litigation, suit, inquiry, notice of violation, audit, examination, investigation or any other proceeding or any settlement, judgment, order, award, injunction or decree pending or other proceeding (whether civil, criminal, administrative, investigative or informal), including, without limitation, an informal investigation or partial proceeding, such as a deposition, whether commenced or threatened, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties, at Law or in equity, before or by any Governmental Authority, or brought by any third party (collectively, an “Action”) which: (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or (ii) would have or reasonably be expected to result in a Material Adverse Effect. Nor to the Company’s knowledge does there exist any reasonable basis for any such Action. Since January 1, 2020, except as disclosed in the SEC Reports, neither the Company nor any Subsidiary, and, to the knowledge of the Company, no director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or, to the knowledge of the Company, any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.

(k)           Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in material compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours.

(l)           Compliance. The Company is and has been since January 1, 2020, in compliance with all Laws of any Governmental Authority applicable to its businesses, Products or operations, except in each case as could not have or reasonably be expected to have a material and adverse impact on the Company and its Subsidiaries, taken as a whole. Since January 1, 2020, except as set forth in the SEC Reports, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and, to the knowledge of the Company, no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is or has been in violation of any judgment, decree or order of any court, arbitrator or other Governmental Authority or (iii) is or has been in violation of any applicable Law of any Governmental Authority, including, without limitation, all Laws relating to taxes, environmental protection, occupational health and safety, product development, manufacturing, quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.

(m)           Regulatory Permits. Since January 1, 2020, the Company and the Subsidiaries have possessed all certificates, approvals, agreements, licenses, registrations, exemptions, clearances, authorizations and permits issued by the appropriate Governmental Authorities necessary to conduct their respective businesses as described in the SEC Reports, including, without limitation, those relating to the Products of the Company or the Subsidiaries, except where the failure to possess such certificates, approvals, agreements, licenses, registrations, exemptions, clearances, authorizations and permits, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect (each, a “Material Permit”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to, nor to the knowledge of the Company does there exist any basis for, the revocation or modification of any Material Permit. The disclosures in the SEC Reports concerning the effects of federal, state, local and all foreign regulation on the Company’s business as currently contemplated are correct.

(n)           Title to Assets. The Company and the Subsidiaries have good title in fee simple to, or have valid rights to lease or otherwise use, all real property and all personal property that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP, and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material respects.

(o)           Intellectual Property.

(i)           The Company and the Subsidiaries have, or have rights to (A) use, all patents and patent applications (collectively, “Patents”); trademarks, trademark applications, service marks, logos, packaging designs, Internet domain names and trade names (collectively, “Marks”); know-how and trade secrets including without limitation any inventions (whether or not patentable) (collectively, “Trade Secrets”), copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports (“Business”) and (B) to sell all Products, and which the failure to do so could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement, except as could not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not reasonably be expected to result in a Material Adverse Effect. All Intellectual Property Rights owned by or exclusively licensed to the Company or the Subsidiaries that have been issued by, or registered with, or the subject of an application filed with, as applicable, the U.S. Patent and Trademark Office, the U.S. Copyright Office or any similar office or agency anywhere in the world are currently in material compliance with formal legal requirements (including without limitation, as applicable, payment of filing, assignment recordations, examination and maintenance fees, inventor declarations, proofs of working or use, timely post-registration filing of affidavits of use and incontestability, and renewal applications). To the knowledge of the Company, all such Intellectual Property Rights are valid and enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(ii)          No Patent has been or is now involved in any reissue, re-examination, inter-partes review, post-grant review, or opposition proceeding; all products made, used or sold under the Patents have been marked with the proper patent notice.

(iii)           There are no pending or, to the knowledge of the Company, threatened claims against the Company alleging that any of the operation of the Business or any activity by the Company, or manufacture, sale, offer for sale, importation, and/or use of any Product infringes or violates (or in the past infringed or violated) the rights of others (“Third Party IP Assets”) or constitutes a misappropriation of (or in the past constituted a misappropriation of) any subject matter of any Third Party IP Assets or that any of the Intellectual Property Rights are invalid or unenforceable.

(iv)         Neither the operation of the Business, nor any activity by the Company, nor manufacture, use, importation, offer for sale and/or sale of any Product, to the knowledge of the Company, infringes or violates (or in the past infringed or violated) any Third Party IP Asset or constitutes a misappropriation of (or in the past constituted a misappropriation of) any subject matter of any Third Party IP Asset.

(v)           The Company owns all rights in or to all inventions, improvements, ideas, discoveries, writings, works of authorship, other intellectual property, and information relating to the Business that have been created or developed by each employee, consultant or contractor of the Company or the Subsidiaries within the scope of employment or engagement, as applicable, and all Intellectual Property Rights related thereto; in each case where a Patent is held by the Company or the Subsidiaries by assignment, the assignment has been duly recorded with the U.S. Patent and Trademark Office and all similar offices and agencies anywhere in the world in which foreign counterparts are registered or issued.

(vi)        Schedule 3.1(o)(vi) contains a complete and accurate list of all Patents owned by the Company and the Subsidiaries or used or held for use by the Company or the Subsidiaries in the Business, registered and material unregistered Marks owned by the Company or the Subsidiaries or used or held for use by the Company or the Subsidiaries in the Business and registered and material unregistered copyrights owned by the Company or the Subsidiaries or used or held for use by the Company or the Subsidiaries in the Business.

(p)         Insurance. The Company and the Subsidiaries are insured by insurers of nationally-recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has received any notice of cancellation of any such insurance, nor, to the Company’s knowledge, will it or any Subsidiary be unable to renew their respective existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.

(q)            Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.

(r)           Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all rules and regulations applicable to them promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to provide ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.

(s)         Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve months prior to the Execution Date. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.

(t)           Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended. Notwithstanding the foregoing, for purposes of this Section 3.1(t), “Affiliates” does not include the purchasers as named in those certain Securities Purchase Agreements, dated April 26, 2017 and April 27, 2020, in each case by and among the Company and the certain purchasers named therein (the “Previous Purchasers”) or Persons who are Affiliates of the Company solely because they are holders of the Company’s securities.

(u)           Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary, except as set forth in the Registration Rights Agreement.

(v)           Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in the three years preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.

(w)           Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Shares and the Purchasers’ ownership of the Shares.

(x)        Disclosure. The SEC Reports, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made not misleading. There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.

(y)        No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Shares pursuant to the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including, without limitation, under the rules and regulations of any Trading Market on which any of the securities of the Company are listed or designated.

(z)        Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Shares hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. The SEC Reports sets forth as of the date hereof all outstanding secured and unsecured indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.

(aa)       Tax Status. Except as set forth on Schedule 3.1(aa) of the Disclosure Schedule, the Company and its Subsidiaries each (i) has timely and properly filed all material United States federal, state, local and foreign Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, the “Tax Returns”) required to be filed by it, (ii) such Tax Returns are true, correct and complete in all material respects and the Company has paid all Taxes and other governmental assessments and charges that are material in amount and required to be paid (whether disputed or not) by it, whether or not shown on the Tax Returns to be due, and (iii) has set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply. There are no unpaid Taxes in any material amount claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Reports are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements.  Neither the Company nor any Subsidiary of the Company is a party to any claim, dispute, audit, pending action or proceeding, nor is any such claim, dispute, action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.  Neither the Company nor any Subsidiary of the Company has been notified that either the Internal Revenue Service or any other Taxing authority has raised any issues, or notified the Company or a Subsidiary of an intent to raise such issues, in connection with any Tax Return of the Company. No Lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary of the Company has been proposed, asserted or assessed against the Company or any Subsidiary of the Company. The Company has never been a “United States real property holding corporation” as defined in Section 897(c)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) and Section 1.897-2(b) of the Treasury Regulations promulgated thereunder. The Company and each of its Subsidiaries has complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Law to be withheld and paid from the wages or salaries of employees, and neither the Company nor any of its Subsidiaries is liable for any Taxes for failure to comply with such Laws. No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary of the Company does not file Tax Returns that the Company or a Subsidiary is or may be subject to taxation by that jurisdiction. Neither the Company nor any Subsidiary of the Company has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of foreign, state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation. Neither the Company nor any Subsidiary of the Company is a party to any Tax allocation, indemnity or sharing arrangement. Neither the Company nor any Subsidiary of the Company has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder. Neither the Company nor any Subsidiary of the Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:  (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) use of an improper method of accounting for a taxable period ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. income Tax law) executed on or prior to the Closing Date; (iv) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. income Tax law); (v) installment sale or open transaction disposition made on or prior to the Closing Date; (vi) prepaid amount received on or prior to the Closing Date; (vii) election made under Section 108(i) of the Code prior to the Closing; (viii) the application of Section 952(c)(2) of the Code; (ix) application of Section 951 of the Code with respect to income earned or recognized or payments received prior to the Closing; or (x) any similar election, action, or agreement that would have the effect of deferring any liability for Taxes of the Company or any of its Subsidiaries from any period ending on or before the Closing Date to any period ending after such date. The Company has not distributed stock of another entity, and has not had its stock distributed by another entity, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code. The term “Taxes” means (A) all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, alternative or add-on minimum taxes, customs, unclaimed property or escheat, duties or other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of (1) being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another Person, (2) being a member of an affiliated, combined, consolidated or unitary group or (3) any contractual liability.

(bb)           Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the FCPA.

(cc)           Accountants. Marcum LLP (the “Company Auditor”) (i) is an independent registered public accounting firm as required by the Exchange Act and (ii) to the knowledge of the Company, shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2022. Except as set forth in the SEC Reports, the Company Auditor has not, during the previous three (3) years, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.

(dd)           Regulatory Matters.

(i)           Since January 1, 2020, each Product of the Company or the Subsidiaries has been in all material respects: (i) formulated, developed, designed, licensed, manufactured, tested, processed, handled, stored, labeled, packaged, transported, marketed and advertised in compliance with all applicable Laws and requirements, including, but not limited to, the statutes and regulations enforced by the U.S. Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) and (ii) in compliance with all applicable Laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports.

(ii)           Since January 1, 2020, there have been no product holds, stop sales, or other corrective action taken by the Company or its Subsidiaries (or their agents) or requested or ordered or any adverse action taken by any Governmental Authority relating to the Company, its Subsidiaries, or their respective Products, and the Company or its Subsidiaries have not initiated or participated in a recall, market withdrawal, safety alert, dear health care professional letter or other corrective action.

(iii)           Since January 1, 2020, there has been no pending, completed or, to the Company's knowledge, threatened, claim, charge, complaint, or Action against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA, FTC, or any other Governmental Authority, which: (i) contests the premarket clearance, licensure, registration, or approval, use, development, distribution, manufacture, packaging, testing, processing, handling, sale, labeling and/or promotion of any Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any Laws, rules or regulations by the Company or any of its Subsidiaries.

(iv)       Since January 1, 2020, the properties, business and operations of the Company and its Subsidiaries have been and are being conducted in all material respects in accordance with all applicable Laws, rules and regulations of the FDA or other Governmental Authority. The Company has not been informed by the FDA that the FDA will prohibit the development, marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by or on behalf of the Company or its Subsidiaries, nor has the FDA expressed any concern as to approving or clearing for marketing any product or product claim being, or proposed to be, developed or used by the Company. All Products claiming to be or containing a New Dietary Ingredient (NDI) or having an ingredient that is claimed to be Generally Recognized as Safe (GRAS) have complied with the applicable statutes and regulations enforced by the FDA

(ee)        Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.

(ff)           U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended.

(gg)        Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Notwithstanding the foregoing, for purposes of this Section 3.1(gg), “Affiliates” does not include the Previous Purchasers or Persons who are Affiliates of the Company solely because they are holders of the Company’s securities.

(hh)           Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.

(ii)           Acknowledgment Regarding Purchasers’ Purchase of Shares. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Shares. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.

(jj)           Acknowledgement Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Section 3.2(f) hereof), it is understood and acknowledged by the Company that: (i) as of the date of this Agreement, none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Shares for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Shares are outstanding in compliance with all applicable Laws, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities as conducted in compliance with all applicable Laws, are being conducted.  The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.

(kk)         Regulation M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.

(ll)           Environmental Matters. To the knowledge of the Company, neither it nor any of its Subsidiaries is (i) in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Matters”), (ii) owns or operates any real property contaminated with any substance that is in violation of any Environmental Laws, (iii) is liable for any offsite disposal or contamination pursuant to any Environmental Laws, or (iv) is subject to any Action or claim relating to any Environmental Laws, in each case, which violation, contamination, liability, Action or claim has had, or would have, individually or in the aggregate, a Material Adverse Effect; and there is no pending investigation or, to the Company’s Knowledge, investigation threatened in writing that might lead to such a claim.

(mm)      Warranties and Product Liabilities. Since January 1, 2020, there have been no claims against the Company or its Subsidiaries for product liability, personal injury, property damage, indemnity, warranty or other similar claims arising from the ingestion or other use of the Products of the Company or its Subsidiaries. There are no material Liabilities arising from any injury resulting from the ingestion or other use of the Company’s Products, or arising from warranty or other claims or returns with respect to any Product(s), individually or in the aggregate. All Products have been designed, developed, manufactured, labeled, packaged, processed, handled, stored, advertised, marketed, sold, transported and/or distributed so as to meet and comply in all material respects with all applicable standards and requirements of any Governmental Authority, product specifications, applicable licenses or contractual commitments and express warranties.

(nn)           Employee Benefit Plans

(i)           Each Employee Plan that is intended to qualify under Section 401(a) of the Code is so qualified and has received a favorable determination or approval letter from the IRS with respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Employee Plan for any period for which such Employee Plan would not otherwise be covered by an IRS determination and, to the knowledge of the Company, no event or omission has occurred that would cause any Employee Plan to lose such qualification.

(ii)         Each Employee Plan is, and has been operated in material compliance with applicable laws and regulations and is and has been administered in all material respects in accordance with applicable laws and regulations and with its terms. No litigation or governmental administrative proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of the Company, threatened with respect to any Employee Plan or, to the knowledge of the Company, any fiduciary or service provider thereof, and, to the knowledge of the Company, there is no reasonable basis for any such litigation or proceeding. All payments and/or contributions required to have been made with respect to all Employee Plans either have been made or have been accrued in accordance with the terms of the applicable Employee Plan and applicable law. The Employee Plans satisfy in all material respects any applicable minimum coverage and discrimination requirements under the Code.

(iii)           Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, or been required to contribute to (a) any employee benefit plan that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA, (b) a Multiemployer Plan, (c) any funded welfare benefit plan within the meaning of Section 419 of the Code, (d) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (e) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Company nor any ERISA Affiliate has ever incurred any liability under Title IV of ERISA that has not been paid in full.

(iv)      None of the Employee Plans provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar state law) and the Company has never promised to provide such post-termination benefits, other than employment agreements or offer letters with certain of the Company’s officers that provide for post-termination health benefits.

(v)           The per share exercise price of each Company Option is no less than the fair market value of a share of Common Stock on the date of grant of such Company Option determined in a manner consistent with Section 409A of the Code. Each Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Employee Plan is, or to the knowledge of the Company, will be, subject to the penalties of Section 409A(a)(1) of the Code.

(vi)         No Employee Plan is subject to the laws of any jurisdiction outside the United States.

(vii)        Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event): (a) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer, director or other service provider of the Company or any of its Subsidiaries; (b) result in any “parachute payment” as defined in Section 280G(b)(2) of the Code (whether or not such payment is considered to be reasonable compensation for services rendered); or (c) result in a requirement to pay any tax “gross-up” or similar “make-whole” payments to any employee, director or consultant of the Company or any Subsidiary.

(viii)       No Employee Plan, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code or any other provision of the Code or any similar foreign law, as a result of the transactions contemplated by this Agreement alone or together with any other event.

3.2           Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):

(a)           Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(b)           Understandings or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and not with a present view toward the public sale or distribution thereof, and has no present intention of selling or distributing any of the Shares or any direct or indirect arrangement or understanding with any other persons to distribute or regarding the distribution of the Shares (this representation and warranty not limiting such Purchaser’s right to sell the Shares pursuant to the pursuant to an effective registration statement under the Securities Act or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Such Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except pursuant to and in accordance with the Securities Act. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.

(c)           Purchaser Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. Such Purchaser is not a broker-dealer registered under Section 15 of the Exchange Act.  Each Purchaser is acting alone in its determination as to whether to invest in the Shares. Each such Purchaser has delivered a questionnaire in form reasonably satisfactory to the Company with respect to the “bad actor” provisions of Rule 506(d) promulgated under the Securities Act. Each such Purchaser is not, as of the date of this Agreement, party to any voting agreements or similar arrangements with respect to the Shares, except the Registration Rights Agreement.  Each Purchaser represents and warrants that it: (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if serving as a director or if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if serving as or elected as a director of the Company, with such person’s fiduciary duties under applicable law; (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company.

(d)           Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

(e)      Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.

(f)       Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).

(g)           Foreign Purchasers.  If any Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended, or if Purchaser is a US subsidiary or affiliate of a foreign parent company, “Foreign Purchaser”), each such Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Shares or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any government or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Shares. The Company’s offer and sale and Foreign Purchaser’s subscription and payment for and continued beneficial ownership of the Shares will not violate any applicable securities or other laws of Foreign Purchaser’s jurisdiction. Such Foreign Purchaser shall notify the Company and shall provide such information as the Company may reasonably request to comply with state, federal, or local regulations that are triggered by the Foreign Purchaser’s level of ownership in the Company.

(h)         Legends. Each Purchaser understands that the certificates representing the Shares will bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such Shares):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO THE EXTENT THAT SUCH OPINION IS REQUIRED PURSUANT TO THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT UNDER WHICH THE SECURITIES WERE ISSUED.

(j)           Reliance on Exemptions. Such Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.

The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby except to the extent that the representations contained in Section 3.1 require the representations contained in this Section 3.2 to be true and correct.

ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES

4.1           Furnishing of Information. Until the time that no Purchaser owns Shares, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.  The rights set forth in this Section 4.1 shall terminate upon the consummation of a Change of Control.

4.2           Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.

4.3           Securities Laws Disclosure; Publicity. The Company shall (a) prior to 8:00 a.m. (New York City time) on the Trading Day immediately following the date hereof, issue a press release (the “Press Release”) in form and substance reasonably acceptable to the Purchasers disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, describing the terms of the transactions contemplated by the Transaction Documents in the form required by the Exchange Act and attaching the material Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act (such filing, together with all attachments and exhibits, the “8-K Filing”). From and after the issuance of the Press Release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such Press Release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate, except for any confidentiality agreement referenced in Section 5.2 and any confidentiality and similar obligations that may exist in connection with a Purchaser’s relationship with a member of the Board of Directors; provided, nothing herein shall affect Robert Fried’s confidentiality obligations to the Company under existing contracts, policies or fiduciary duties. The Company shall consult with Purchasers, and consider in good faith any comments Purchasers may have on, the 8-K Filing. Without limiting the generality of the foregoing, from and after the date of this Agreement until the date on which the Purchasers cease to hold any Shares, the Company shall not, directly or indirectly, issue any press release or make any filing with the Commission, in each case, to the extent such press release or filing identifies any Purchaser or the transactions contemplated by this Agreement, unless the Company first consults with each Purchaser, and considers in good faith any comments that any Purchaser may have on, such materials; provided, that the Company may make any subsequent press release or filings with the Commission that are substantially consistent in form with any such materials previously approved by the Purchasers in the manner provided for in this Section 4.3 without being required to first consult the Purchasers as otherwise required in this Section 4.3.

4.4           Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Shares under the Transaction Documents or under any other agreement between the Company and the Purchasers.

4.5           Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, or (c) in violation of FCPA or the Office of Foreign Assets Control of the U.S. Department of the Treasury regulations.

4.6           Indemnification of Purchasers. Subject to the provisions of this Section 4.6, the Company will indemnify and hold each Purchaser and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by (i) any current or former stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents or (ii) any other third-party with respect to any of the transactions contemplated by the Transaction Documents (unless, in either case, such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party, which right shall remain in effect if and for so long as the Company continues to diligently defend against such action; provided, that in no event shall the Company be entitled to assume the defense of any action if such action (i) is with respect to a criminal proceeding, action, indictment, allegation or investigation or (ii) seeks an injunction or other equitable relief against any Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

4.7           Listing of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares on such Trading Market and promptly secure the listing of all of the Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares, and will take such other action as is reasonably necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.

4.8           Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Document. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Shares or otherwise.

4.9       Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.3.  Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.3, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedule. Notwithstanding the foregoing, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the press release as described in Section 4.3 (so long as such transactions comply with all applicable Laws and, if applicable, the Company’s insider trading, securities trading and similar policies), (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities Laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the press release described in Section 4.3 (so long as such transactions comply with all applicable Laws, and, if applicable, the Company’s insider trading, securities trading and similar policies) and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the press release as described in Section 4.3 (other than, if applicable, under confidentiality policies of the Company, any confidentiality agreement referenced in Section 5.2 and any confidentiality and similar obligations that may exist in connection with a Purchaser’s relationship with a member of the Board of Directors). Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets or internal access to information received by the portfolio managers managing other portions of such Purchaser’s assets in connection with such portfolio managers’ investment decisions, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement.

4.10           Reservation of Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of Shares for the purpose of enabling the Company to issue Shares pursuant to this Agreement.

4.11           Registration Rights Agreement. In the event that the Purchasers waive in writing the condition precedent to the Closing contained in Section 2.2(a)(iv), then from and after the Closing, the Purchasers and the Company shall use reasonable best efforts to negotiate, in good faith, the terms of the Registration Rights Agreement, and the Company and the Purchasers shall enter into the Registration Rights Agreement promptly after the Closing (and in any event within forty eight (48) hours thereafter). 

ARTICLE V.

MISCELLANEOUS

5.1            Fees and Expenses. Each party shall pay all fees and expenses that it incurs (including on account of any of their respective advisers, counsel, accountants and other experts) in connection with the negotiation, preparation, execution and delivery of this Agreement (including all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Shares to the Purchasers) (collectively, the “Transaction Expenses”); provided, however, that the Company shall reimburse the Transaction Expenses of the Purchasers in an aggregate amount not to exceed $35,000; provided, further, that all Transfer Agent fees and transfer taxes arising in connection with the sale and transfer of the Shares hereunder shall be borne by the Company.

5.2           Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, and any confidentiality agreements between the parties currently in existence, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

5.3           Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. 

5.4           Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and each Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought; provided, that no waiver of any rights hereunder by one Purchaser shall be effective as against any other Purchaser. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with accordance with this Section 5.4 shall be binding upon each Purchaser and the Company.

5.5           Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

5.6           Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger).

5.7           No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.6.

5.8           Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.6, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.

5.9           Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.

5.10       Attorneys’ Fees. In the event that any Action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

5.11           Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

5.12       Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

5.13      Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then, until the time the Company performs such obligations, such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.

5.14           Replacement of Shares. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Shares.

5.15           Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.

5.16           Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

5.17           Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers. It is expressly acknowledged and agreed by the Company and each Purchaser that each Purchaser has and shall continue to make independent decisions concerning its investment in the Company and exercising or refraining from exercising any rights under any of the Transaction Documents and that no inference, presumption or conclusion that such Purchasers constitute a “Group” within the meaning of Section 13(d)(3) of the Exchange Act or Rule 13d-5 thereunder shall be raised in connection with the investigation, execution, delivery, amendment, modification, waiver, performance or consummation of this Agreement or any of the transactions contemplated hereby, notwithstanding the fact that (i) certain Purchasers are now or may in the future be represented by the same or similar advisors, agents, counsel or other representatives, (ii) the Purchasers collectively may exercise or refrain from exercising rights under the Transaction Documents in the same manner or (iii) such rights under the Transaction Documents may have been negotiated by the Purchasers with the Company at the same time, or may be amended or modified with the Company in the same or a similar manner. None of the Purchasers are under common control, and none of such parties is an Affiliate of, or affiliated with, one another. The parties hereto shall not act together or create a partnership-in-fact or otherwise with respect to the Company or any of its Subsidiaries.

5.18           Saturdays, Sundays, Holidays, etc.   If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

5.19           Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.

5.20           WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.

5.21           Tax Filings. The Company shall cooperate, and shall cause each of its Subsidiaries to cooperate, with each Purchaser in providing such Purchaser with any information reasonably requested by such Purchaser for it to timely make all filings, returns, reports, forms or calculations in order to assist each Purchaser and their direct and indirect owners with the preparation of their tax returns, obtaining any benefit pursuant to applicable Tax law, or complying with any other Tax law that any Purchaser or their direct or indirect owners are subject. 

5.22       Disclosure Schedule. Any matter or item disclosed in one section of the Disclosure Schedule shall be deemed to have been disclosed in each other section of the Disclosure Schedule in which it is reasonably apparent on the face of such disclosure that the information is required to be so disclosed. From and after the date of this Agreement until the Closing Date, the Company may prepare and deliver to each Purchaser supplements and/or amendments to the Disclosure Schedules (each, an “Update”) with respect to matters first arising after the date hereof and each such Update shall be deemed to be an amendment to this Agreement for all purposes hereof other than for purposes of the conditions set forth in Section 2.3(b)(i) or Section 2.3(b)(iv).

5.23           Waiver of Conflicts. Each party to this Agreement acknowledges that Company Counsel, outside general counsel to the Company, has in the past performed and is or may now or in the future represent one or more Purchasers or their affiliates in matters unrelated to the transactions contemplated by this Agreement (the “Financing”), including representation of such Purchasers or their affiliates in matters of a similar nature to the Financing. The applicable rules of professional conduct require that Company Counsel inform the parties hereunder of this representation and obtain their consent. Company Counsel has served as outside general counsel to the Company and has negotiated the terms of the Financing solely on behalf of the Company. The Company and each Purchaser hereby (a) acknowledge that they have had an opportunity to ask for and have obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation; (b) acknowledge that with respect to the Financing, Company Counsel has represented solely the Company, and not any Purchaser or any stockholder, director or employee of the Company or any Purchaser; and (c) gives its informed consent to Company Counsel’s representation of the Company in the Financing.

(Signature Pages Follow)

IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR PURCHASER FOLLOWS]

IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

Signature of Authorized Signatory of Purchaser:  /s/ Tony Pun

Name of Authorized Signatory: Tony Pun

Title of Authorized Signatory: Authorized Signatory

Email Address of Authorized Signatory:

Address for Notice to Purchaser:

c/o Suites PT, 2909 &2910, Harbour Centre

25 Harbour Road. Wanchai, Hong Kong

Attention: Tony Pun and Jacky Li

Name of Purchaser: Champion River Ventures Limited

Signature of Authorized Signatory of Purchaser: /s/ Neil Douglas McGee

Name of Authorized Signatory: Neil Douglas McGee

Title of Authorized Signatory: Director

Email Address of Authorized Signatory:

Address for Notice to Purchaser:

c/o 7/F, Cheung Kong Center, 2 Queen’s Road Central, Hong Kong (Attention: Ezra Pau)

Name of Purchaser: Robert Fried IRA*

Signature of Authorized Signatory of Purchaser: 

Name of Authorized Signatory: Robert N. Fried

Title of Authorized Signatory: Authorized Signatory

Email Address of Authorized Signatory:

Address for Notice to Purchaser:

c/o ChromaDex Corporation

10900 Wilshire Blvd. Suite 650

Los Angeles, CA 90024

Exhibit 10.3

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made as of September 30, 2022, by and among ChromaDex Corporation, a corporation organized and existing under the laws of the State of Delaware (the “Company”), and each purchaser signatory hereto (each, a “Purchaser” and collectively to the extent there is more than one Purchaser, the “Purchasers”).

RECITALS

WHEREAS, the Company and the Purchasers are parties to a Securities Purchase Agreement, dated as of September 30, 2022 (the “Purchase Agreement”), pursuant to which the Purchasers are purchasing up to an aggregate of 2,480,000 shares of Common Stock (as defined below); and

WHEREAS, in connection with the consummation of the transactions contemplated by the Purchase Agreement, and pursuant to the terms of the Purchase Agreement, the parties desire to enter into this Agreement in order to grant certain rights to the Purchasers as set forth below.

NOW, THEREFORE, in consideration of the covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

AGREEMENT

1.            Certain Definitions. Unless the context otherwise requires, the following terms, for all purposes of this Agreement, shall have the meanings specified in this Section 1.

“Affiliate” has the meaning set forth in Rule 12b-2 of the rules and regulations promulgated under the Exchange Act; provided, however, that for purposes of this Agreement, the Purchasers and their Affiliates, on the one hand, and the Company and its Affiliates, on the other, shall not be deemed to be “Affiliates” of one another.

“Allowed Delay” has the meaning set forth in Section 2.1(b)(ii).

“Board” means the board of directors of the Company.

“Business Days” has the meaning ascribed to such term in the Purchase Agreement.

“Closing Date” has the meaning ascribed to such term in the Purchase Agreement.

“Common Stock” means shares of the common stock, par value $0.001 per share, of the Company.

“Effective Date” means the date that a Registration Statement filed pursuant to Section 2.1(a) is first declared effective by the SEC.

“Effectiveness Deadline” means, with respect to the Shelf Registration Statement or New Registration Statement, the ninetieth (90th) calendar day following the Closing Date (or, in the event the SEC reviews and has written comments to the Shelf Registration Statement or the New Registration Statement, the one hundred twentieth (120th) calendar day following the Closing Date); provided, however, that if the Company is notified by the SEC that the Shelf Registration Statement or the New Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as to such Shelf Registration Statement or New Registration Statement shall be the fifth (5th) Business Day following the date on which the Company is so notified if such date precedes the dates otherwise required above; provided, further, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business; provided, further, that if the SEC is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same amount of days that the SEC remains closed for operations.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Filing Deadline” has the meaning set forth in Section 2.1(a).

“FINRA” means the Financial Industry Regulatory Authority.

“Form S-3” means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the Securities Act subsequently adopted by the Commission that permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the Commission.

“Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act, relating to an offer of Registrable Securities.

“Holder” means any Purchaser owning or having the right to acquire Registrable Securities.

“Liquidated Damages” has the meaning set forth in Section 2.1(c).

“New Registration Statement” has the meaning set forth in Section 2.1(a).

“Participating Holder” means with respect to any registration, any Holder of Registrable Securities covered by the applicable Registration Statement.

“Person” has the meaning ascribed to such term in the Purchase Agreement.

“Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.

“Register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document.

“Registrable Securities” means the Shares issued at the Closing (as defined in the Purchase Agreement) and any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such Shares. Notwithstanding the foregoing, Shares shall cease to be Registrable Securities for all purposes hereunder upon the earliest to occur of the following: (A) the sale by any Person of such Shares to the public either pursuant to a registration statement under the Securities Act or under Rule 144 (in which case, only such Shares sold shall cease to be Registrable Securities) or (B) such Shares becoming eligible for sale by the Holder pursuant to Rule 144 without restriction.

“Registration Statement” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

“Registration Expenses” has the meaning set forth in Section 2.3.

“Remainder Registration Statement” has the meaning set forth in Section 2.1.

“Rule 144” means Rule 144 as promulgated by the SEC under the Securities Act, as such rule may be amended from time to time, or any similar successor rule that may be promulgated by the SEC.

“Rule 145” means Rule 145 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“SEC” or “Commission” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

“SEC Guidance” means (i) any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff and (ii) the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended, or any similar successor federal statute and the rules and regulations thereunder, all as the same shall be in effect from time to time.

“Shares” has the meaning ascribed to such terms in the Purchase Agreement.

“Shelf Registration Statement” has the meaning set forth in Section 2.1(a).

“Subsidiaries” means each corporation, limited liability company, partnership, association, joint venture or other business entity of which any party or any of its Affiliates owns, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of the members of the board of directors or similar governing body.

“Transaction Documents” means this Agreement and the Purchase Agreement, all exhibits and schedules thereto and hereto and any other documents or agreement executed in connection with the transactions contemplated hereunder or thereunder.

2.            Registration Rights.

2.1      Shelf Registration.

(a) Registration Statements. On or prior to thirty (30) days following the Closing Date (the “Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Securities) for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Shelf Registration Statement”). Such Shelf Registration Statement shall, subject to the limitations of Form S-3, include the aggregate amount of Registrable Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Shelf Registration Statement) the “Plan of Distribution” section in substantially the form attached hereto as Annex A. To the extent the staff of the SEC does not permit all of the Registrable Securities to be registered on the Shelf Registration Statement filed pursuant to this Section 2.1(a) or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, the Company shall (i) inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Shelf Registration Statement and file a new registration statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.29. Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages in Section 2.1(c), if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the SEC for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by Registrable Securities not acquired pursuant to the Purchase Agreement (whether pursuant to registration rights or otherwise), and second by Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders, subject to a determination by the Commission that certain Holders must be reduced first based on the number of Shares held by such Holders). In the event the Company amends the Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by SEC or SEC Guidance provided to the Company or to registrants of securities in general, one or more Registration Statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statement”).

(b) Effectiveness.

(i) The Company shall use reasonable best efforts to have the Shelf Registration Statement or New Registration Statement declared effective as soon as practicable but in no event later than the Effectiveness Deadline (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act), and shall use its commercially reasonable efforts to keep the Shelf Registration Statement or New Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders or (ii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Effectiveness Period”). The Company shall notify the Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.

(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of a Purchaser) disclose to such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable.

(c) If: (i) the Shelf Registration Statement is not filed with the SEC on or prior to the Filing Deadline, (ii) the Shelf Registration Statement or the New Registration Statement, as applicable, is not declared effective by the SEC (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, (iii) after its Effective Date and other than for an Allowed Delay, (A) such Registration Statement ceases for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities included in such Registration Statement or (B) the Company suspends the use of the Prospectus contained in the Registration Statement, or (iv) the Company fails to satisfy the current public information requirement pursuant to Rule 144(c)(1) as a result of which the Holders are unable to sell Registrable Securities without restriction under Rule 144 (or any successor thereto) and fails to cure any such failure to satisfy the Rule 144(c)(1) requirement within ten (10) Business Days following the date upon which the Holder notifies the Company in writing that such Holder is unable to sell Registrable Securities as a result thereof (any such failure or breach in clauses (i) through (iv) above being referred to as an “Event,” and the date on which such Event occurs, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the earlier of (1) the applicable Event is cured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty (“Liquidated Damages”), equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Holder. The parties agree that (1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the Effectiveness Deadline) and in no event shall, the aggregate amount of Liquidated Damages payable to a Holder exceed, in the aggregate, five percent (5%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for such unregistered Registrable Securities and (2) in no event shall the Company be liable in any thirty (30) day period for Liquidated Damages under this Agreement in excess of one percent (1.0%) of the aggregate purchase price paid by the Holders pursuant to the Purchase Agreement for such unregistered Registrable Securities. If the Company fails to pay any Liquidated Damages pursuant to this Section 2.1(c) in full within five (5) Business Days after the date payable, the Company will pay interest thereon at a rate of one percent (1.0%) per month (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. The Company shall not be liable for Liquidated Damages under this Agreement as to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement due solely to SEC Guidance from the time that it is determined that such Registrable Securities are not permitted to be registered until such time as the provisions of this Agreement as to the Remainder Registration Statements required to be filed hereunder are triggered, in which case the provisions of this Section 2.1(c) shall once again apply, if applicable. In such case, the Liquidated Damages shall be calculated to only apply to the percentage of Registrable Securities which are permitted in accordance with SEC Guidance to be included in such Registration Statement. The Effectiveness Deadline for a Registration Statement and any cure period shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of such Registration Statement on a timely basis results from the failure of a Purchaser to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Purchaser).

(d) In the event that Form S-3 is not  available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form reasonably acceptable to the Holder and (ii) undertake to register the Registrable Securities on Form S-3 promptly after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.

2.2      Piggyback Registrations; Prohibition on Filing other Registration Statements

(a) If at any time after the Shelf Registration Statement is declared effective, there is not then an effective registration statement covering all of the Registrable Securities, and the Company determines to prepare and file with the SEC a Registration Statement relating to an offering for its own account or the account of others of any of its equity securities, then the Company shall send to each Holder written notice of such determination and, if within fifteen (15) days after the date of such notice, any such Holder shall so request in writing, the Company shall include in such Registration Statement all or any part of the Registrable Securities such Holder requests to be registered.

(b) The Company shall have the right, in its sole discretion, to terminate or withdraw any registration initiated by it under this Section 2.2 prior to the effectiveness of such registration whether or not any Holder has elected to include Registrable Securities in such registration.

(c) Prior to the Effective Date of the Shelf Registration Statement, neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in a Registration Statement other than the Registrable Securities and the Company shall not enter into any agreement providing any such right to any of its security holders. The Company shall not file with the Commission a registration statement relating to an offering for its own account under the Securities Act of any of its equity securities other than a registration statement on Form S-8 or, in connection with an acquisition, on Form S-4 until the earlier of (i) the date that is thirty (30) days after the date the Shelf Registration Statement in the first sentence of this clause (c) is declared effective or (ii) the date that all Registrable Securities are eligible for resale by non-affiliates without volume or manner of sale restrictions under Rule 144 and without the requirement for the company to be in compliance with the current public information requirements under Rule 144. For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, the Company shall not be prohibited (i) from preparing and filing with the Commission a registration statement relating to an offering of Common Stock by existing stockholders of the Company under the Securities Act pursuant to the terms of registration rights held by such stockholder, (ii) from filing amendments to registration statements filed prior to the date of this Agreement or (iii) from filing prospectus supplements relating to any offering of securities of the Company pursuant to any registration statement filed by the Company prior to the date of this Agreement (including any amendment thereto prior to, on or after the date of this Agreement), or granting contractual rights related thereto. 

2.3      Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement shall be paid by the Company, other than underwriting discounts or commissions deducted from the proceeds in respect of any Registrable Securities, including (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the SEC, FINRA or any other regulatory authority and, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in NASD Rule 2720 (or any successor provision) and of its counsel, (ii) all fees and expenses in connection with compliance with any securities or “Blue Sky” laws (including fees and disbursements of counsel for the underwriters in connection with “Blue Sky” qualifications of the Registrable Securities), (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses and Free Writing Prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants of the Company (including the expenses of any special audit and cold comfort letters required by or incident to such performance), (v) Securities Act liability insurance or similar insurance if the Company so desires or the underwriters so require in accordance with then-customary underwriting practice, (vi) all fees and expenses incurred in connection with the listing of Registrable Securities on any securities exchange or quotation of the Registrable Securities on any inter-dealer quotation system, (vii) any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities, (viii) all fees and expenses of any special experts or other Persons retained by the Company in connection with any registration, (ix) all of the Company’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), (x) all expenses related to the “road-show” for any underwritten offering, including all travel, meals and lodging, and (xi) (xii) any other fees and disbursements customarily paid by the issuers of securities and consistent with the foregoing. All such expenses are referred to herein as “Registration Expenses.” The Company shall not be required to pay any underwriting discounts and commissions and transfer taxes, if any, attributable to the sale of Registrable Securities.

2.4      Company Obligations. The Company will use reasonable best efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Company will:

(a) prepare the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing a Registration Statement, Prospectus or any Free Writing Prospectus, or any amendments or supplements thereto, (x) furnish to the Participating Holders, if any, copies of all documents prepared to be filed, which documents shall be subject to the review of such Participating Holders and their respective counsel and (y) except in the case of a registration under Section 2.2, not file any Registration Statement or Prospectus or amendments or supplements thereto to which any Participating Holders shall reasonably object;

(b) file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act;

(c) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Free Writing Prospectus as may be (y) reasonably requested by any Participating Holder or (z) necessary to keep such registration effective for the period of time required by this Agreement, and comply with provisions of the applicable securities laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;

(d) promptly notify the Participating Holders, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or Free Writing Prospectus or any amendment or supplement thereto has been filed, (B) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement, Prospectus or Free Writing Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC preventing or suspending the use of any preliminary or final Prospectus or any Free Writing Prospectus or the initiation or threatening of any proceedings for such purposes, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction and (E) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction;

(e) promptly notify the Participating Holders when the Company becomes aware of the happening of any event as a result of which the Registration Statement, the Prospectus included in such Registration Statement (as then in effect) or any Free Writing Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, when any Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement, Prospectus or Free Writing Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC and furnish without charge to the Participating Holders an amendment or supplement to such Registration Statement, Prospectus or Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;

(f) promptly incorporate in a Prospectus supplement, Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the Participating Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, and make all required filings of such Prospectus supplement, Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Free Writing Prospectus or post-effective amendment;

(g) furnish to each Participating Holder, without charge, as many conformed copies as such Participating Holder may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);

(h) deliver to each Participating Holder, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus), any Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such Participating Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Participating Holder;

(i) on or prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify, and cooperate with the Participating Holders and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as any Participating Holder or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by this Agreement, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

(j) cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, and enable such Registrable Securities to be in such denominations and registered in such names as may be requested at least two (2) Business Days prior to any sale of Registrable Securities;

(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;

(l) make such representations and warranties to the Participating Holders in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;

(m) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Purchasers reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;

(n) obtain for delivery to the Participating Holders an opinion or opinions from counsel for the Company dated the effective date of the Registration Statement or, in the event of an underwritten offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Participating Holders or underwriters, as the case may be, and their respective counsel;

(o) cooperate with each Participating Holder participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA or any other securities regulatory authority;

(p) use its reasonable best efforts to comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;

(q) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

(r) use commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which any of the Common Stock is then listed or quoted and on each inter-dealer quotation system on which any of the Common Stock is then quoted;

(s) the Company shall make available, during normal business hours, for inspection and review by the Purchasers, advisors to and representatives of the Purchasers (who may or may not be affiliated with the Purchasers and who are reasonably acceptable to the Company), all financial and other records, all SEC Reports (as defined in the Purchase Agreement) and other filings with the SEC, and all other corporate documents and properties of the Company as may be reasonably necessary for the purpose of such review, and cause the Company’s officers, directors and employees, within a reasonable time period, to supply all such information reasonably requested by the Purchasers or any such representative, advisor or underwriter in connection with such Registration Statement (including, without limitation, in response to all questions and other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of the Registration Statement for the sole purpose of enabling the Purchasers and such representatives, advisors and underwriters and their respective accountants and attorneys to conduct initial and ongoing due diligence with respect to the Company and the accuracy of such Registration Statement; and

(t) with a view to making available to the Purchasers the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Purchasers to sell shares of Common Stock to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) the date as all of the Registrable Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or any other rule of similar effect or (B) such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.

All such information made available or provided pursuant to this Section 2.4 shall be treated as confidential information and shall not be disclosed by the Purchasers to any other Person other than such Purchaser’s respective officers, directors, employees, accountants, consultants, legal counsel, investment bankers, advisors and authorized agents (collectively, the “Purchaser Representatives”); provided, that, each such Purchaser Representative shall be informed that such confidential information is strictly confidential and shall be subject to confidentiality restrictions in favor of the disclosing Purchaser with respect to the confidential information disclosed by the Purchaser to such Purchaser Representative. Notwithstanding anything to the contrary herein, the foregoing restrictions shall not prevent the disclosure by a Purchaser of any information (x) that is required to be disclosed by order of a court of competent jurisdiction, administrative body or other Governmental Authority (as defined in the Purchase Agreement), or by subpoena, summons or legal process, or by law, rule or regulation or (y) that is publicly available (other than by a breach of such Purchaser’s confidentiality obligations to the Company), provided that, to the extent permitted by Law (as defined in the Purchase Agreement), in the event a Purchaser or Purchaser Representative is required to make a disclosure pursuant to clause (x) hereof, it shall provide to the Board prompt notice of such disclosure (other than any such disclosure required by any administrative body or other Governmental Authority in the exercise of its regulatory or other oversight authority with respect to such Purchaser or Purchaser Representative). The confidentiality obligations herein shall, with respect to any particular Purchaser, expire on the second (2nd) anniversary of the date on which such Purchaser ceases to hold any Shares.

2.5      Obligations of the Purchasers.

(a) Each Purchaser shall furnish in writing to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Purchaser of the information the Company requires from such Purchaser if such Purchaser elects to have any of its Registrable Securities included in the Registration Statement. A Purchaser shall provide such information to the Company at least two (2) Business Days prior to the first anticipated filing date of such Registration Statement if such Purchaser elects to have any of its Registrable Securities included in the Registration Statement.

(b) Each Purchaser, by its acceptance of the Registrable Securities agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Purchaser has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.

(c) Each Purchaser agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to Section 2.1(b) or (ii) the happening of an event pursuant to Section 2.4(d) and Section 2.4(e) hereof, such Purchaser will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities, until the Purchaser is advised by the Company that such dispositions may again be made.

2.6      Indemnification.

(a) Indemnification by the Company. The Company will indemnify and hold harmless each Purchaser and its officers, directors, members, employees and agents, successors and assigns, and each other person, if any, who controls such Purchaser within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, any preliminary Prospectus or final Prospectus, or any amendment or supplement thereof or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading; (ii) any “Blue Sky” application or other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof (any such application, document or information herein called a “Blue Sky Application”); (iii) the omission or alleged omission to state in a Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made; (iv) any violation by the Company or its agents of any rule or regulation promulgated under the Securities Act applicable to the Company or its agents and relating to action or inaction required of the Company in connection with such registration; or (v) any failure to register or qualify the Registrable Securities included in any such Registration Statement in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company will undertake such registration or qualification on a Purchaser’s behalf and will reimburse such Purchaser, and each such officer, director or member and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Purchaser or any such controlling person in writing specifically for use in such Registration Statement or Prospectus.

(b) Indemnification by the Purchasers. Each Purchaser agrees, severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors, officers, employees, stockholders and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expense (including reasonable attorney fees) resulting from any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated in the Registration Statement or Prospectus or preliminary Prospectus or amendment or supplement thereto or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information furnished in writing by such Purchaser to the Company specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement thereto. In no event shall the liability of a Purchaser be greater in amount than the dollar amount of the proceeds (net of all expense paid by such Purchaser in connection with any claim relating to this Section 2.6 and the amount of any damages such Purchaser has otherwise been required to pay by reason of such untrue statement or omission) received by such Purchaser upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.

(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party (provided, however, that such indemnified party shall, at the expense of the indemnifying party, be entitled to counsel of its own choosing to monitor such defense); provided that, subject to the preceding sentence, any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (a) the indemnifying party has agreed to pay such fees or expenses, or (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person); and provided, further, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying party will, except with the consent of the indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.

(d) Contribution. If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a holder of Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such holder in connection with any claim relating to this Section 2.6 and the amount of any damages such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.

2.7      Termination of Registration Rights. The registration rights provided to the Holders under Section 2 shall terminate in their entirety upon the earlier to occur of: (i) the date two years from the Closing Date; or (ii) at such time as there are no Registrable Securities. Notwithstanding the foregoing, Sections 2.3, 2.6 and 3 shall survive the termination of such registration rights.

3.            Miscellaneous.

3.1      Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

3.2      Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successor and assigns of the parties hereto (other than the rights of any Holder under Section 2 hereof, which shall not be assignable and shall not inure to the benefit of any successor or assign of a Holder). The Company may not assign its rights or obligations hereunder except with the prior written consent of each Holder. Each Holder may assign their respective rights hereunder (other than the rights of any Holder under Section 2 hereof, which shall not be assignable and shall not inure to the benefit of any successor or assign of a Holder) in the manner and to the Persons permitted under the Purchase Agreement.

3.3        Entire Agreement; Amendment. This Agreement and the other Transaction Documents constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Any previous agreements among the parties relative to the specific subject matter hereof are superseded by this Agreement. Neither this Agreement nor any provision hereof may be amended, changed, waived, discharged or terminated other than by a written instrument signed by the party against who enforcement of any such amendment, change, waiver, discharge or termination is sought.

3.4        Notices. All notices and other communications provided for or permitted hereunder shall be made as set forth in Section 5.3 of the Purchase Agreement.

3.5    Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

3.6      Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

3.7     Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

3.8      Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement, or any waiver of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing, and that all remedies, either under this Agreement, by law or otherwise, shall be cumulative and not alternative.

3.9      Consents. Any permission, consent, or approval of any kind or character under this Agreement shall be in writing and shall be effective only to the extent specifically set forth in such writing.

3.10     SPECIFIC PERFORMANCE. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC INTENT OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED BY LAW OR EQUITY, AND ANY PARTY SUED FOR BREACH OF THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY IN DAMAGES WOULD BE ADEQUATE.

3.11      Construction of Agreement. No provision of this Agreement shall be construed against either party as the drafter thereof.

3.12      Section References. Unless otherwise stated, any reference contained herein to a Section or subsection refers to the provisions of this Agreement.

3.13      Variations of Pronouns. All pronouns and all variations thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the context in which they are used may require.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.

[Signature Page to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.

[Signature Page to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.

[Signature Page to Registration Rights Agreement]

*The Robert Fried IRA has the right, upon notice to the other Purchasers prior to the Closing, to assign the rights and obligations of the Robert Fried IRA under the Agreement to either Robert N. Fried individually or to another entity controlled by Robert N. Fried.

Annex A

PLAN OF DISTRIBUTION

We are registering the shares of common stock issued to the selling stockholders to permit the resale of these shares of common stock by the holders of the shares of common stock from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.

The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions. The selling stockholders may use any one or more of the following methods when selling shares:

●         ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

●         block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

●         purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

●         an exchange distribution in accordance with the rules of the applicable exchange;

●         privately negotiated transactions;

●         settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;

●         broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

●         through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise;

●         a combination of any such methods of sale; and

●         any other method permitted pursuant to applicable law.

The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.

Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 5110.

In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and if such short sale shall take place after the date that this Registration Statement is declared effective by the Commission, the selling stockholders may deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares, to the extent permitted by applicable law. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the selling stockholders have been advised that they may not use shares registered on this registration statement to cover short sales of our common stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the SEC.

The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the warrants or shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

The selling stockholders and any broker-dealer or agents participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, as amended, or the Exchange Act.

Each selling stockholder has informed the Company that it is not a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the common stock. Upon the Company being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such the shares of common stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In no event shall any broker-dealer receive fees, commissions and markups, which, in the aggregate, would exceed eight percent (8%).

Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus forms a part.

Each selling stockholder and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholder and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.

We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that each selling stockholder will pay all underwriting discounts and selling commissions, if any, and any legal expenses incurred by it. We will indemnify the selling stockholders against certain liabilities, including some liabilities under the Securities Act, in accordance with a registration rights agreement, or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus, in accordance with the related registration rights agreements, or we may be entitled to contribution.

Exhibit 10.4

TERMINATION AGREEMENT

THIS TERMINATION AGREEMENT (this “Agreement”) is entered into on September 30, 2022 (the “Effective Date”) by and among ChromaDex Corporation, a Delaware corporation (“CDXC”), Crystal Lake Developments Limited, a company incorporated under the laws of the British Virgin Islands (“Crystal Lake”), Pioneer Idea Holdings Limited, a company organized under the laws of the British Virgin Islands (“Pioneer Idea”) and Hong Kong Taikuk (China) Group Ltd, a company organized under the laws of Hong Kong (“Taikuk”). Each of CDXC, Crystal Lake, Pioneer Idea and Taikuk are hereinafter referred to as a “Party” and collectively the “Parties”).

WHEREAS, reference is made to that certain Joint Venture Agreement dated as of May 19, 2022 between the Parties attached as Exhibit A (as amended, restated and/or supplemented from time to time, the “Term Sheet”); and

WHEREAS, the Parties desire to terminate their rights and obligations under the Term Sheet as of the Effective Date.

NOW, THEREFORE, in consideration of the promises and the mutual covenants and provisions herein set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, upon the terms and subject to the conditions contained herein, hereby agree as follow:

1.    The Parties hereby agree that the Term Sheet (and all provisions therein, including, for the avoidance of doubt, any provisions therein that are stated as surviving the termination of said Term Sheet) is terminated effective as of the Effective Date and each Party is irrevocably and unconditionally released from its respective obligations (whether past, present or future) under the Term Sheet and that there are no actual, contingent or prospective claims, rights of action, outstanding obligations or liabilities, costs and expenses (past, present and future) whatsoever arising under or in connection with the Term Sheet and furthermore to the extent of any claims, losses, rights of action, outstanding obligations or liabilities, costs and expenses whatsoever airing under or in connection with the Term Sheet (including, without limitation, for breach of any obligations thereunder), each Party is irrevocably and unconditionally discharged and released from any claims, losses, rights of action, outstanding obligations or liabilities, costs and expenses (whether present or future, actual or contingent, known or unknown and whether incurred alone or jointly with any other party) incurred or owed by them to any other Party by, or arising pursuant to, the Term Sheet.

2.    The terms of this Agreement shall be governed by and construed in accordance with the law of the State of California, without regard to the conflicts of law principals thereof. Each Party hereto irrevocably consents to the exclusive jurisdiction and venue of any federal court located in the Southern District of the State of California or state court in Los Angeles County to determine any dispute arising in connection with this Agreement, including disputes relating to any non-contractual obligations.

3.    This Agreement supersedes any other oral or written agreements between the Parties regarding the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application of any such provision shall be held to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction, then such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.

4.    This Agreement may be executed in any number of counterparts (including via electronic signature and .pdf), each of which is deemed to be an original, but all of which together constitute one (1) and the same instrument.

[Signature page follows]

IN WITNESS WHEREOF, the Parties have executed and delivered this Termination Agreement as of the date first set forth above.

EXHIBIT A

TERM SHEET