Filed by Bowne Pure Compliance





Exhibit 10.1




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TECHNOLOGY LICENSE AGREEMENT

between

THE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK

and

ChromaDex, Inc.




This Technology License Agreement (“Agreement”) is effective as of June 30, 2008 (“Effective Date”)
by and between The Research Foundation of State University of New York, on behalf of University at
Buffalo, a non-profit corporation organized and existing under the laws of the State of New York
(“Foundation”) and ChromaDex Inc., a California corporation, with an address at 10005 Muirlands
Boulevard, Suite G, Irvine, California 92618 (“Licensee”).



WHEREAS, Foundation and Licensee wish to enter into an exclusive license agreement to
facilitate the development and commercialization of certain technology developed at the University
at Buffalo so that this technology may be utilized to the fullest extent for the benefit of
Licensee, Foundation, the inventor(s) and the public;



NOW, THEREFORE, in consideration of the terms and considerations hereinafter set forth, the
parties agree as follows:




	1.	 	DEFINITIONS

	 
	 	 	All capitalized terms used in this Agreement will have the meanings stated below or defined
elsewhere in the Agreement.







	 	1.1.	 	“Affiliate” means every corporation or entity which, directly or indirectly, or through
one or more intermediaries, controls, is controlled by, or is under common control with
Licensee.







	 	1.2.	 	“Cosmetic Application” means the applications where products incorporating
leucoanthocyanidins, anthocyanidins and anthocyanins are used for cosmetic purposes,
including but not limited to applications where the product is rubbed, poured, sprinkled,
or sprayed on, introduced into, or otherwise applied to the human body for cleansing,
beautifying, promoting attractiveness, or altering the appearance including, but not
limited to, skin moisturizers, perfumes, lipsticks, fingernail polishes, eye and facial
makeup preparations, shampoos, permanent waves, hair colors, toothpastes, and deodorants.
This application also includes the use of any leucoanthocyanidins, anthocyanidins and
anthocyanins intended for use as a component of a cosmetic product.







	 	1.3.	 	“Field” means the field of microbial production of leucoanthocyanidins, anthocyanidins
and anthocyanins.





 


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	 	1.4.	 	“Fine Chemical Product Application” means applications, other than Cosmetic
Application, Food Additive Application, Nutraceutical Application, Research Field
Application or Pharmaceutical Application, that use a purified leucoanthocyanidin,
anthocyanidin or anthocyanin.







	 	1.5.	 	“Food Additive Application” means applications where any leucoanthocyanidins,
anthocyanidins and anthocyanins are used, the intended use of which results or may
reasonably be expected to result, directly or indirectly, in its becoming a component or
otherwise affecting the characteristics of any food, including but not limited to
colorants, flavors, and fragrances.

	 
	 	1.6.	 	“Inventors” means Mattheos Koffas, Effendi Leonard, Yajun Yan and Joseph Chemler.







	 	1.7.	 	“Know-How and Material Rights” means confidential and/or proprietary information or
materials, whether or not patented or patentable, in which Foundation has a legal interest
and is free to disclose to Licensee, as set forth in Exhibit B attached hereto which is
specific to the design, development, manufacture and marketing of Technology and products,
and which was developed prior to the Effective Date by the Inventors at the University at
Buffalo.

	 
	 	1.8.	 	“Licensed Product” means all Patent Products and Technology Products as defined herein.

	 
	 	1.9.	 	“Licensed Service” means all Patent Services and Technology Services as defined herein.







	 	1.10.	 	“Net Sales of Licensed Product or Licensed Service” means the gross revenues actually
received by Licensee, Affiliates and Sublicensees from the manufacture, use, sale, lease or
other transfer of Licensed Product or Licensed Service, less sales and/or use taxes
actually paid, import and/or export duties actually paid, outbound transportation paid,
prepaid or allowed, and amounts allowed or credited due to returns (not to exceed the
original billing or invoice amount). In this context, gross revenues will also include the
fair market value of any non-cash consideration actually received by Licensee, Affiliates
and Sublicensees for the manufacture, use, sale, lease, or other transfer of Licensed
Product. Net Sales does not include Sublicensing Revenue.







	 	1.11.	 	“Net Sales of Technology Product or Technology Service” means the gross revenues
actually received by Licensee, Affiliates and Sublicensees from the manufacture, use, sale,
lease or other transfer of Technology Product or Technology Service, less sales and/or use
taxes actually paid, import and/or export duties actually paid, outbound transportation
paid, prepaid or allowed, and amounts allowed or credited due to returns (not to exceed the
original billing or invoice amount). In this context, gross revenues will also include the
fair market
value of any non-cash consideration actually received by Licensee, Affiliates and
Sublicensees for the manufacture, use, sale, lease, or other transfer of Technology
Product or Technology Service. Net Sales does not include Sublicensing Revenue.





 


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	 	1.12.	 	“Nutraceutical Application” means applications using leucoanthocyanidins,
anthocyanidins and anthocyanins as dietary supplements or food supplements thought to have
a beneficial effect on human or animal health.







	 	1.13.	 	“Patent Costs” means all reasonable costs incident to filing, prosecuting and
maintaining the patents associated with the Patent Rights in the United States and elected
foreign countries, and any and all reasonable costs incurred in filing continuations,
divisional applications or related applications thereon and any re-examinations or reissue
proceedings thereof.







	 	1.14.	 	“Patent Product” means any product that if made, used, offered for sale, sold,
imported, leased or otherwise transferred in the United States or any other country would,
but for the license granted herein, infringe one or more Valid Claims.







	 	1.15.	 	“Patent Rights” means Foundation’s patent rights to any subject matter claimed in or
covered by (a) any pending or issued United States or foreign patent or any patent
application listed in Exhibit A attached hereto, including any reissues or reexaminations
thereof; (b) any continuation or divisional applications of the patents and patent
applications listed in Exhibit A; and (c) any patents issued on continuation or divisional
applications, including reissues and reexaminations, of the patents and patent applications
listed in Exhibit A.







	 	1.16.	 	“Patent Service” means any method, process, procedure or service that would, but for
the license granted herein, infringe one or more Valid Claims.







	 	1.17.	 	“Pharmaceutical Application” means applications where devices, kits, or medications
incorporating leucoanthocyanidins, anthocyanidins and anthocyanins are used (a) in the
diagnosis, cure, mitigation, treatment, or prevention of disease (b) in or as articles
(other than food) intended to affect the structure or any function of the body of man or
other animals







	 	1.18.	 	“Research Field Application” means applications where devices, kits, or
leucoanthocyanidins, anthocyanidins and anthocyanins are used for research purposes only.







	 	1.19.	 	“Sublicensing Revenue” means any payments that Licensee or an Affiliate receives from
a Sublicensee in consideration of the sublicense of the rights granted Licensee under this
Agreement, including without limitation, license fees, milestone payments, license
maintenance fees and other payments. Sublicensing Revenue does not include royalties
received by Licensee from Sublicensees.





 


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	 	1.20.	 	“Sublicensee” means any non-Affiliate third party to whom Licensee grants a sublicense
of any or all of the rights granted Licensee under this Agreement.







	 	1.21.	 	“Technology” means technology developed by Inventors at the University at Buffalo on
or before the Effective Date and which Foundation is free to disclose to Licensee,
including (a) confidential and/or proprietary information and materials in which Foundation
has a legal interest and as described in Foundation Docket Nos. [*] and [*] titled [*],
(b) Know-How and Material Rights.







	 	1.22.	 	“Technology Products” means any products that incorporate, utilize, or are made with
the use of the Technology, or part thereof, but that are not Patent Products.







	 	1.23.	 	“Technology Services” means any method, process, procedure or service that
incorporates, utilizes, or make use of the Technology, or part thereof, but that are not
Patent Services.







	 	1.24.	 	“Term” means the period of time beginning on the Effective Date and ending on the
later of (i) the expiration date of the last to expire Patent Right, or (ii) ten (10) years
from the date of the first sale of a Licensed Product.







1.25. “Territory” means worldwide.




	 	1.26.	 	“Valid Claim” means an unexpired claim in an issued unexpired patent or a claim of a
pending patent application or supplementary protection certificate within the Patent Rights
that has not been revoked, abandoned, disclaimed or withdrawn, or held unenforceable,
unpatentable or invalid by a court of competent jurisdiction in a final judgment that has
not been appealed within the time allowed by law or from which there is no further appeal.







	2.	 	GRANT OF RIGHTS AND RETAINED RIGHTS







	 	2.1.	 	Exclusive License. Subject to the terms of this Agreement, Foundation grants to
Licensee an exclusive license under the Patent Rights and Know-How and Material Rights to
make, have made, use, sell and offer for sale Licensed Products and Licensed Services in
the Field for Nutraceutical Application, Food Additive Application, Fine Chemical Product
Application, Research Field Application and Cosmetic Application and Territory and during
the Term. The license granted is subject to the overriding obligations to the U.S.
Government set forth in 35 USC 200-212 and applicable governmental implementing
regulations. The license granted is subject to the provisions of Article 4 entitled “DUE
DILIGENCE AND MARKETING OBLIGATIONS”.





 


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	 	2.2.	 	Non-Exclusive License. Subject to the terms of this Agreement, Foundation grants to
Licensee a non-exclusive license under the Patent Rights and Know-How
and Material Rights to make, have made, use, sell and offer for sale Licensed Products
and Licensed Services in the Field for Pharmaceutical Application and Territory and
during the Term. The license granted is subject to the overriding obligations to the
U.S. Government set forth in 35 USC 200-212 and applicable governmental implementing
regulations. The license granted is subject to the provisions of Article 4 entitled
“DUE DILIGENCE AND MARKETING OBLIGATIONS”.







	 	2.3.	 	First Look Right. Subject to any existing or hereafter incurred obligations to the
United States government or agency thereof arising out of the use of government funds or to
any third party arising out of the use of third party’s sponsored research funds,
Foundation grants Licensee an exclusive right (“First Look Right”) to negotiate in good
faith a definitive license agreement for an exclusive (or non-exclusive, at Licensee’s
option), royalty bearing, worldwide license with right to sublicense to use and otherwise
exploit each improvement to the Technology, Licensed Products and Licensed Services within
the Field developed by the Inventors while employed at the University at Buffalo during the
Term and owned or controlled by Foundation (“Improvements”).

	 
	 	 	 	The First Look Right will commence on the date that Foundation discloses the Improvement
to Licensee (“Improvement Disclosure”). Foundation’s Improvement Disclosure will
include sufficient information to allow the Licensee to evaluate such Improvement and
its potential for development as or in connection with a Licensed Product or Licensed
Service. Licensee will have [*] days (“Notice Period”) from the date of receipt of
Foundation’s disclosure to (a) evaluate the Improvement and (b) provide written notice
(“First Look Notice”) to Foundation of its interest in entering into negotiations for a
license under the Improvement to make, have made, use, sublicense, sell, offer for sale,
have sold, import and export products or services that incorporate, utilize or are made
with the use of such Improvements. If and when Foundation receives the First Look
Notice, the parties will promptly and in good faith commence license negotiations.
Licensee will provide a commercialization plan for the Improvement at the onset of
license negotiations.

	 
	 	 	 	The First Look Right will terminate (i) at the end of the Notice Period if Licensee
fails to provide First Look Notice, (ii) immediately upon notice that Licensee is not
interested in entering into negotiations for a license to such Improvement, or (iii) one
hundred eighty (180) days after Foundation receives the First Look Notice if the parties
have not yet finalized a definitive license agreement. Upon termination or expiration
of the First Look Right, Foundation will be free to present and license such Improvement
to third parties without restriction.







	 	2.4.	 	Retained Rights. Foundation retains the right to use the Technology, Know-How and
Material Rights and Patent Rights for educational purposes and internal research and
development.





 


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	3.	 	COMPENSATION AND PAYMENT TERMS







	 	3.1.	 	Research Funding. Licensee will provide Foundation with unrestricted research funds,
within thirty (30) days of the Effective Date, of [*]. The research funded by these funds
does not need to relate to the Technology Rights, and may be used by the Inventors for the
research projects of their choosing.







	 	3.2.	 	Royalties on Net Sales. Licensee will pay to Foundation an earned royalty of [*] of
Net Sales of Patent Product or Patent Service. Licensee will pay to Foundation an earned
royalty of [*] of Net Sales of Technology Product and [*] of Net Sales of Technology
Services.







	 	3.3.	 	Annual Minimum Royalties on Net Sales. Licensee will pay Foundation Annual Minimum
Royalty payments of $5,000 on or before the first day of the calendar year 2010 and each
following year for the Term of the Agreement.

	 
	 	 	 	Each Annual Minimum Royalty payment will be credited against any earned royalties due
for the applicable calendar year.

	 
	 	3.4.	 	Sublicensing Fees. Licensee will pay Foundation [*] of Sublicensing Revenue.









	 	3.5.	 	Milestone Payments. Licensee will pay Foundation milestone payments according to the
following schedule of events:






	 	 	 	 	 
	MILESTONE	 	MILESTONE PAYMENT	 
	 
	 	 	 	 
	Sale of first Licensed Product, Licensed Service or
Sublicense Fee payment received.
	 	 	[*]	 







	 	3.6.	 	Payment Terms: All dollar amounts referenced herein will refer to U.S. Dollars.
Payments with designated payment dates are due and payable on or before those dates.
Earned royalty payments will be made within [*] days after the end of each calendar quarter
for the calendar quarter. All invoiced payments will be paid within [*] days of Licensee’s
receipt of invoice. When Licensed Products or Licensed Services are sold for currencies
other than U.S. Dollars, earned royalties will first be determined in the foreign currency
of the country in which the Licensed Products or Licensed Services were sold and then
converted into equivalent U.S. Dollars. The exchange rate is that rate quoted in the Wall
Street Journal on the last business day of the reporting period and is quoted as local
currency per U.S. Dollar.







 


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	 	3.7.	 	Payment Address. All payments will be made payable to “The Research Foundation of
State University of New York” and will be sent to the below address:







UB Office of Science, Technology Transfer & Economic Outreach

UB Technology Incubator

Baird Research Park

Suite 111

1576 Sweet Home Road

Amherst, NY 14228

Attn: Licensing Specialist




	 	3.8.	 	Late Payment. In the event that payments are not received by Foundation when due,
Licensee will pay to Foundation interest charges at a rate of [*] per annum. Interest will
be calculated from the date payment was due until actually received by Foundation.







	 	3.9.	 	Foreign Charges. Royalties due on sales that occur in any country outside the United
States may not be reduced by any deduction of withholding, value-added taxes, fees, or
other charges imposed by the government of such country, except as permitted in the
definition of Net Sales. Licensee is responsible for all bank transfer charges.







	4.	 	DUE DILIGENCE AND MARKETING OBLIGATIONS







	 	4.1.	 	Licensee will use commercially reasonable efforts to commercialize and market Licensed
Products and Licensed Services as soon as practicable and in accordance with the milestone
events set forth herein.

	 
	 	4.2.	 	Licensee will complete the following milestones by the timeframes set forth below:






	 	 	 	 	 
	MILESTONE	 	COMPLETION DATE	 
	 
	 	 	 	 
	Commercialization development plan submitted to Foundation.
	 	 	[*]	 
	Commercial availability of a Licensed Product or Licensed
Service.
	 	 	[*]	 
	Annual sales revenues of [*].
	 	 	[*]	 
	Annual sales revenues of [*].
	 	 	[*]	 







	 	4.3.	 	In the event that Licensee fails to meet either the third or fourth milestone set forth
in Section 4.2 above by the date set forth therein notwithstanding Licensee’s reasonable
efforts to meet same, then Foundation’s sole remedy for same will be to
render the exclusive licenses set forth in Section 2.1 of this Agreement as
nonexclusive, upon written notice from Foundation to Licensee.





 


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	 	4.4.	 	Notwithstanding the above, in the event that prior to the milestone dates set forth in
Section 4.2 above, there is a Change in Law that materially and adversely impacts
Licensee’s ability to achieve the milestone by the applicable milestone date, Foundation
and Licensee agree to meet and negotiate in good faith reasonable extensions to the
milestone dates given the impact of the Change in Law. “Change in Law” means amendments,
modifications or changes in existing Applicable Law, including changes in the enforcement
or application of Applicable Law, or the enactment of any new Applicable Law. “Applicable
Law” means any federal, state or local law, ordinance, rule, regulation, permit and order
of any governmental authority, including the judicial or administrative interpretation
thereof, which is applicable to Licensee’s use of the Patent Rights and Know How and
Material Rights to make, have made, use sell and offer for sale the Licensed Products and
Licensed Services as permitted under this Agreement.







	5.	 	SUBLICENSING







	 	5.1.	 	The license granted in this Agreement includes the right of Licensee to grant
sublicenses to third parties during the Term. With respect to sublicense granted pursuant
to Article 5, Licensee will:







	 	(a)	 	not receive, or agree to receive, anything of value in lieu of cash as
considerations from a third party under a sublicense granted pursuant to Article 5
without the express written consent of Foundation;







	 	(b)	 	to the extent applicable, include all of the rights of and obligations
due to Foundation and contained in this Agreement;







	 	(c)	 	procure Foundation’s prior written consent prior to finalizing a
sublicense agreement, which consent will not be unreasonably withheld;

	 
	 	(d)	 	promptly provide Foundation with a copy of each sublicense issued; and







	 	(e)	 	use commercially reasonable efforts to collect all payments due,
directly or indirectly, to Foundation from Sublicensees and summarize and deliver
all reports due, directly or indirectly, to Foundation from Sublicensees.







	 	5.2.	 	Upon termination of this Agreement for any reason, Foundation, at its sole discretion,
will determine whether Licensee will cancel or assign to Foundation any and all sublicense
agreements. Licensee will include a provision in each sublicense agreement which allows
Foundation to assume the sublicense agreement if (a) the License Agreement is terminated,
and (b) Foundation chooses to assume the sublicense agreement.







 


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	6.	 	PATENT PROSECUTION AND PATENT COSTS







	 	6.1.	 	Patent Costs Incurred Pre-Effective Date. Licensee will reimburse Foundation in ten
(10) equal monthly payments with the first payment due [*] days after the Effective Date
for Patent Costs incurred by Foundation prior to the Effective Date. Foundation has
received invoices for [*] in Patent Costs as of May 8, 2008. This number may not represent
the entire outstanding balance of Pre-Effective Date Patent Costs.







	 	6.2.	 	Patent Rights Management.

	 
	 	 	 	Foundation will control and manage all future preparation, filing, prosecution and
maintenance of the Patent Rights.







(a) Although Foundation retains primary responsibility for Patent Rights management,
Foundation will consult Licensee and Licensee will have reasonable opportunities to
provide input and cooperate with Foundation on appropriate courses of action regarding
Patent Rights management to protect products or services contemplated to be sold or
offered by Licensee, or Licensee through its Sublicensees, under this Agreement
including, but not limited to a) the inclusion or amendment of claims in any patent
application in Exhibit A, b) domestic and foreign patent filing campaigns, c) the
advisability of continuing prosecutions in the face of rejections, d) appeals, and e)
patent maintenance. Foundation will direct its outside patent counsel to provide
Licensee with a copy of all correspondence to Foundation, and all proposed patent
applications or office action responses for Licensee’s review prior to filing in the
United States Patent and Trademark Office or any foreign patent office, and Licensee
will provide any input it may have regarding such application or response in a timely
manner to Foundation. Foundation will give serious consideration to reasonable input
provided by Licensee, and provide Licensee with a copy of all correspondence from
Foundation to outside patent counsel, when such correspondence relates to Patent Rights.




(b) Foundation will give prompt and timely notice to Licensee of any intention to cease
filing, prosecution and/or maintenance of any patent application or patent within the
Patent Rights. In such case, Licensee may elect to continue filing, prosecution or
maintenance of such patents, at its own expense. Unless Foundation provides express
written notice to the contrary, Foundation will retain ownership of Patent Rights even
where Licensee files, prosecutes or maintains such patents or patent applications.
Subsequently, in the event Licensee intends to cease filing, prosecution and/or
maintenance of Patent Rights which Licensee is responsible for filing, prosecuting or
maintaining hereunder, Licensee will give prompt and timely written notice to Foundation
of such intention, and in such case, will permit Foundation to continue filing,
prosecution or maintenance at its own expense.



 


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(c) Each party will promptly inform the other as to all matters that come to its
attention that may affect the preparation, filing, prosecution or maintenance of the
Patent Rights, and will cooperate with the other party with respect thereto, including,
without limitation, providing, as reasonably requested, the appropriate powers of
attorney, declarations or other documents necessary to facilitate the filing,
prosecution or maintenance of the Patent Rights. The Party having responsibility for
the preparation, filing, prosecution and maintenance of such Patents, will promptly
provide the other Party, or direct the its attorney to provide the other Party with
copies of all substantive communications from any patent office and with drafts of all
substantive filings to be made, reasonably in advance of their filing, with any patent
office with respect thereto; will consider in good faith any comments thereon provided
by the other Party; and will not unreasonably decline to incorporate changes to such
filing proposed by such other Party. Each Party will assist the other in the
preparation and prosecution of such Patent Rights and will execute all documents
reasonably deemed necessary for the filing thereof and/or for the vesting of title
thereto as provided in this Agreement.




	 	6.3.	 	Post-Effective Date Patent Costs. Licensee will reimburse Foundation for all Patent
Costs incurred after the Effective Date within [*] days after its receipt of a copy of the
applicable invoice. Foundation may, at its option, (a) invoice Licensee, or (b) have the
firm or other entity providing the patent related service send a copy of each patent
expense invoice to Licensee so that it can directly pay such firm for such expense(s).







	7.	 	BOOKS, RECORDS AND REPORTS







	 	7.1.	 	Books and Records. Licensee will keep complete, true and accurate books of account
containing reasonable particulars that may be necessary for the purpose of showing the
amounts payable to Foundation hereunder and for the purpose of showing compliance with all
other obligations under this Agreement. Said books and the supporting data will be
available at all reasonable times for five (5) years following the end of the calendar year
to which they pertain, for confidential inspection (subject to Foundation’s obligations
relating to internal reporting and accounting requirements) by Foundation or its agents,
upon reasonable notice to Licensee, for the purpose of verifying Licensee’s royalty
statement or compliance in other respects with this Agreement. Foundation and its agents
may make copies of relevant information during the course of an inspection. In addition,
Licensee agrees to provide copies to Foundation of relevant records upon request of
Foundation. Each party will promptly pay or credit the other for any underpayment or
overpayment discovered during an inspection. Should such inspection lead to the discovery
of a greater than five percent (5%) discrepancy in reporting to Foundation’s detriment,
Licensee will pay (a) the full cost of the inspection, and (b) late charge on the full
amount of the discrepancy at the lesser of the maximum rate allowed by law or one and one
half (1 1/2 %) per month.







 


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	 	7.2.	 	Quarterly Reports. Within [*] days after the end of each calendar quarter during the
term of the Agreement, Licensee will provide reports containing the following information
relating to the quarter: (a) number and type of Licensed Products made by or for Licensee
and any Sublicensees; (b) number and type of Licensed Products and Licensed Services sold
by Licensee, Affiliates and Sublicensees; (c) Net Sales (and the calculation of Net Sales);
(d) royalties due under Section 3.2; (e) Sublicensing Revenue (and the calculation of
Sublicensing Revenue), (f) Sublicensing Fees due under Section 3.4, and (g) the total
amount (royalties and Sublicensing Fees) due Foundation for the calendar quarter. The
foregoing will be provided on a country-by-country basis.







	 	7.3.	 	Annual Reports. Within [*] days after the end of each calendar year during the term of
the Agreement, Licensee will also provide reports containing the following information
relating to the calendar year: (a) number and type of Licensed Products made by or for
Licensee and Sublicensees; (b) number and type of Licensed Products and Licensed Services
sold by Licensee, Affiliates and Sublicensees; (c) Net Sales (and the calculation of Net
Sales); (d) royalties due under Section 3.2; (e) Sublicensing Revenue (and the calculation
of Sublicensing Revenue); (f) Sublicensing Fees due under Section 3.4; and (g) the total
amount (royalties and Sublicensing Fees) due for the calendar year. The foregoing will be
provided on a country-by-country basis.







	 	7.4.	 	Semi-Annual Due Diligence Reports. Within [*] days after the end of each second and
fourth calendar quarter through the 2012 calendar year, Licensee will provide reports
containing the following information relating to the two previous calendar quarters:
progress on the commercialization and development of Licensed Products and Licensed
Services (i.e., new product development, product evaluation and testing, marketing plans,
sales forecasts, significant commercialization events, progress on the milestones set forth
in Article 4). The foregoing will be provided on a country by country basis.







	 	7.5.	 	Report Certification. An officer of Licensee will sign and certify each report, and
all reports will be prepared in accordance with Generally Accepted Accounting Principles.
If no royalties are due for a particular period, Licensee will submit a report to
Foundation that states this.







	8.	 	PATENT RIGHTS INFRINGEMENT







	 	8.1.	 	Foundation and Licensee will promptly inform the other in writing of any patent
infringement by a third party and provide available evidence of infringement.







	 	8.2.	 	If within ninety (90) days after notification of alleged infringement Foundation has
not been successful in persuading the alleged infringer to desist, is not diligently
prosecuting an infringement action, or if Foundation notifies Licensee of its intent
not to bring action against the alleged infringer, then Licensee may, after first
requesting and procuring Foundation’s consent, bring action at its own expense.







 


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	 	8.3.	 	If any suit is brought involving the enforcement or defense of the Patent Rights, the
other party hereto agrees, at the request and expense of the party initiating such suit, to
reasonably cooperate and to make available relevant records, papers, information, samples,
specimens and the like.







	 	8.4.	 	No settlement or consent judgment or other voluntary final disposition of an
enforcement or defense suit initiated by either party to this Agreement may be entered into
without the consent of the other, which consent will not be unreasonably withheld.







	 	8.5.	 	In the event that a declaratory judgment action alleging invalidity or noninfringement
of the licensed rights is brought against Licensee, Foundation reserves the right, within
thirty (30) days after commencement of such action, to intervene and take over the sole
defense to the action at its own expense.







	 	8.6.	 	The total cost of any infringement action commenced or defended solely by Foundation
will be borne by Foundation and after Foundation deducts all unreimbursed litigation
expenses and legal fees, Foundation will share any recovery or damages derived therefrom
with Licensee in an amount to be determined based on damage suffered by Licensee.







	 	8.7.	 	The cost of any infringement action commenced or defended by Licensee (after first
procuring Foundation’s consent as required by Section 8.2) will be borne by Licensee.
Licensee may deduct any unreimbursed litigation expenses and legal fees from any recovery
of damages or settlement received by Licensee from any such suit, and the balance of such
recovery will be considered Sublicensing Revenue subject to payment of Sublicensing Fees as
set forth in Section 3.4.







	9.	 	INDEMNIFICATION AND INSURANCE







	 	9.1.	 	Licensee will defend, indemnify and hold Foundation, its officers, trustees, employees
and agents harmless from and against any and all claims, actions, suits, loss, injury,
expenses, damages, liability, cost and expenses (including reasonable attorneys’ fees,
whether incurred as a result of a third party claim or a claim to enforce this provision)
of any kind or nature arising out of, or resulting from, the exercise or practice of the
license granted under this Agreement, including without limitation, liabilities arising
from the production, manufacture, sale, use, lease, or advertisement of Licensed Products.
Any settlement will require Foundation’s prior written approval, which approval will not be
unreasonably withheld.







 


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	 	9.2.	 	Licensee will at all times comply, through insurance or self-insurance, with all
statutory worker’s compensation and employers’ liability requirements covering all
employees with respect to activities performed under this Agreement. In addition, Licensee
will maintain, from the initiation of human trials, if applicable, and for so long as
Licensee customarily maintains insurance for its other products, Comprehensive General
Liability Insurance, including Products Liability Insurance, with reputable and financially
secure insurance carriers to cover the activities of Licensee and its sublicensees. This
insurance will provide minimum limits of Product Liability Insurance of [*] until first
commercial sale of Licensed Product or execution of the first sublicense, and then increase
to a minimum of [*] of Product Liability Insurance for the remaining term of this
Agreement. This insurance will include the Foundation and the State University of New York
their regents, officers, employees, students and agents as additional insureds. This
insurance will be written to cover claims made during or after the expiration of this
Agreement. Licensee will advise Foundation, in writing that it maintains excess liability
coverage over primary insurance for at least the minimum limits set forth above. At
Foundation’s request, Licensee will furnish a Certificate of Insurance evidencing primary
coverage and requiring thirty (30) days prior written notice of cancellation or material
change to Foundation. All insurance of Licensee will be primary coverage; insurance of
Foundation or the State University of New York will be excess and noncontributory.







	10.	 	TERMINATION







	 	10.1.	 	Termination for Licensee Breach. If Licensee should (a) materially violate or fail to
perform any covenant, condition or undertaking of the Agreement, or (b) have a bankruptcy
action filed against it, or (c) have a receiver appointed for it; then Foundation may give
written notice of such default to Licensee. If Licensee should fail to cure such default
within [*] days of notice of such default, then this Agreement may, at Foundation’s option,
be terminated by a second written notice to Licensee.







	 	10.2.	 	Automatic Termination. If Licensee (a) will cease to attempt to carry on its business
with respect to the rights granted in the Agreement, (b) has filed a bankruptcy action, (c)
becomes insolvent, (d) makes an assignment for the benefit of creditors, or (e) challenges,
whether as a claim, cross-claim, counterclaim or defense, the validity or enforceability of
any of the Patent Rights before any court, arbitrator or other tribunal or administrative
agency in any jurisdiction, this Agreement will immediately terminate without any further
action by Foundation.







	 	10.3.	 	Accrued Obligations. Termination of this Agreement will not relieve either party of
any obligation or liability accrued hereunder prior to such termination, or rescind or give
rise to any right to rescind any payments made or other consideration given to Foundation
hereunder prior to the time such termination
becomes effective. Such termination will not affect in any manner any rights of
Foundation arising under this Agreement prior to the date of such termination. Licensee
will pay all attorneys’ fees and costs incurred by Foundation in enforcing any
obligation of Licensee or accrued right of Foundation.





 


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	 	10.4.	 	Disposition of Licensed Products. Upon expiration or termination of this Agreement by
either party, Licensee will provide Foundation with a written inventory of all Licensed
Products in process of manufacture, in use or in stock. Licensee may dispose of any such
Licensed Products within the ninety (90) day period following such expiration or
termination, provided, however, that Licensee will pay royalties and render reports to
Foundation thereon in the manner specified herein.







	 	10.5.	 	Survival. The provisions Article 1 (Definitions), Article 7 (Books, Records and
Reports), Article 9 (Indemnification and Insurance), Section 10.4 (Disposition of Licensed
Products), Section 10.5 (Survival), Article 11 (Warranty and Liability), Article 14
(Non-Use of Names) and Article 18 (Miscellaneous) will survive termination of this
Agreement.







	11.	 	WARRANTY AND LIABILITY







	 	11.1.	 	EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, FOUNDATION MAKES NO REPRESENTATIONS
AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF
PATENT RIGHTS CLAIMS, ISSUED OR PENDING.







	 	11.2.	 	NO WARRANTY OR REPRESENTATION IS MADE THAT ANYTHING MADE, USED, SOLD OR COMMERCIALLY
TRANSFERRED UNDER THE TERMS OF THIS LICENSE WILL BE FREE FROM INFRINGEMENT OF ANY THIRD
PARTY PATENTS OR COPYRIGHT CLAIMS.







	 	11.3.	 	NOTHING IN THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, OBLIGATES FOUNDATION EITHER TO
BRING OR TO PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR PATENT OR COPYRIGHT
INFRINGEMENT OR TO FURNISH ANY KNOW-HOW OR TRADE SECRETS NOT PROVIDED IN FOUNDATION’S
COPYRIGHT RIGHTS OR PATENT RIGHTS.







	 	11.4.	 	IN NO EVENT WILL FOUNDATION BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM THE EXERCISE OF THIS LICENSE OR THE USE OF THE TECHNOLOGY, LICENSED
PRODUCT OR LICENSED METHOD, INCLUDING FOR LOST
PROFITS, LOST DATA OR DOWNTIME, WHETHER OR NOT FOUNDATION HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.







 


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	 	11.5.	 	THIS AGREEMENT DOES NOT CONFER BY IMPLICATION, ESTOPPEL, OR OTHERWISE ANY LICENSE OR
RIGHTS TO ANY OTHER FOUNDATION PROPERTY OTHER THAN THOSE RIGHTS EXPRESSLY STATED HEREIN.







	12.	 	ASSIGNMENT







This Agreement and the license granted hereunder may not be assigned or transferred by
Licensee except in connection with the sale or other transfer of Licensee’s business to
which the license granted hereunder relates. Licensee will give Foundation at least [*]
days prior written notice of any assignment or transfer of Licensee’s business to which
the license granted hereunder relates, and will provide Foundation with documentation
executed by the assignee or transferee that confirms their agreement to be bound by the
terms and provisions of this Agreement.




	13.	 	OBLIGATIONS TO FEDERAL GOVERNMENT AND OTHER SPONSORS







The Agreement will be subject to the rights of the United States Government, if any,
resulting from any funding of the Technology by the United States Government. This
Agreement will also be subject to the rights of any other entities that may have
contributed funding to development of the Technology, if any. Licensee acknowledges
that such rights, if applicable to Technology, may reserve to the United States
Government, a royalty-free, non-exclusive, non-transferable license to practice or have
practiced on its behalf any government-funded invention claimed within any associated
patents or patent applications as well as other rights.




	14.	 	NON-USE OF NAMES







Licensee agrees that it will not use Foundation’s name or State University of New York,
or University at Buffalo, adaptation thereof (including logos and symbols associated
with Foundation and “State University of New York”, and “University at Buffalo”)
(collectively “SUNY”), or the names of the scientists, researchers or others employed at
or with SUNY in any advertising, promotional or sales literature without first obtaining
Foundation’s prior written consent, or in the case of the names of such researchers,
scientists or employees the prior written consent
of the individuals, except that Licensee may state that it is a licensee of the
Foundation.


 


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	15.	 	FOREIGN LAWS







When required by local or national law, Licensee will register this Agreement, pay all
costs and legal fees connected therewith, and otherwise insure that the local/national
laws affecting this Agreement are fully satisfied.




	16.	 	COMPLIANCE WITH LAWS







	 	16.1.	 	General Compliance. Licensee will ensure compliance with all applicable county,
state, federal or foreign laws, rules, and regulations governing the production, use,
marketing, sale, and distribution of Licensed Products.







	 	16.2.	 	Export Control Laws. Licensee and its Affiliates and Sublicensees will comply with
all United States laws and regulations controlling the export of certain commodities and
technical data, including without limitation all Export Control Regulations of the United
States Department of Commerce and International Traffic In Arms Regulations. Among other
things, these laws and regulations prohibit or require a license for the export of certain
types of commodities and technical data to specified countries. In order to facilitate the
exchange of technical information under this Agreement, therefore, Licensee gives its
assurance to Foundation that Licensee will not knowingly, unless prior authorization is
obtained from the appropriate office, export directly or indirectly any technical data
received from Foundation under this Agreement and will not export directly Licensed Product
or technical data to any restricted country in each case, except in compliance with all
U.S. laws and regulations. Foundation neither represents that a license is or is not
required nor that, if required, it will be issued by the U.S. Department of Commerce or
other appropriate governmental entity.







	17.	 	CONFIDENTIALITY







	 	17.1.	 	Confidential Information. As used in this Agreement, “Confidential Information” will
mean confidential or proprietary information exchanged between the parties hereunder and
relating to the Technology or the performance of the obligations set forth herein.
Confidential Information will include (a) written or other tangible information marked as
confidential or proprietary, (b) orally disclosed information that is identified as
confidential and summarized in a notice delivered within thirty (30) days of the
disclosure, and (c) information that should reasonably be considered confidential under the
context in which the
disclosure is made (i.e., nonpublic patenting information and nonpublic infringement
information).





 


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	 	17.2.	 	Confidentiality Obligations. Each party agrees to (a) maintain the other party’s
Confidential Information in confidence, and (b) not disclose the other party’s Confidential
Information to any other party, without the prior written consent of the disclosing party.
Each party agrees to limit its use of the other party’s Confidential Information to the
purposes permitted by this Agreement. To the extent that either party is required to
disclose the Confidential Information of the other party pursuant to interrogatories,
requests for information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process, such party will provide the other party with prompt
written notice of any such request. The owner of the Confidential Information may then
seek a protective order or other appropriate remedy or waive compliance with Section 17 of
this Agreement in that particular case. Nothing in this Section 17 will restrict
Licensee’s ability to disclose information required by the SEC or other governmental
regulatory agency.







	 	17.3.	 	Termination and Expiration of Confidentiality Obligations. The obligations of Section
17.2 will terminate with respect to any particular portion of the Confidential Information
which (a) was in the receiving party’s possession prior to disclosure to it by the
disclosing party; (b) is or hereafter becomes, through no fault of the receiving party,
part of the public domain by publication or otherwise; (c) is furnished to the receiving
party by a third party after the time of disclosure hereunder as a matter of right and
without restriction on its disclosure; or (d) is independently developed by employees or
agents of the receiving party independently of and without reference to Confidential
Information received from the disclosing party. The obligations of Section 17.2 will expire
[*] years from the date the disclosing party discloses the Confidential Information to the
receiving party.







	18.	 	MISCELLANEOUS







	 	18.1.	 	Governing Law. This Agreement will be construed, governed, interpreted and applied in
accordance with the laws of the State of New York, except that questions affecting the
construction and effect of any patent will be determined by the law of the country in which
the patent was granted. The parties consent to the exclusive personal jurisdiction of the
state and federal courts of the State of New York.







	 	18.2.	 	Entire Agreement. This Agreement, including any Exhibits or attachments hereto,
embodies the entire agreement and understanding among the parties to this Agreement and
supersedes all prior agreements and understandings relating to the subject matter of this
Agreement. None of the terms or provisions of this
Agreement may be altered, modified, or amended except by the execution of a written
instrument signed by the parties hereto.







 


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	 	18.3.	 	Severability. The provisions of this Agreement are severable, and in the event that
any provisions of this Agreement are determined to be invalid or unenforceable under any
controlling body of law, such invalidity or unenforceability will not in any way affect the
validity or unenforceability of the remaining provisions hereof.







	 	18.4.	 	Notices. All notices, requests, consents and other communications to be provided under
this Agreement must be in writing and will be delivered in person or sent overnight
delivery by a nationally recognized courier or by certified or registered mail, return
receipt requested to the addresses provided below, and will be deemed to have been given
when hand delivered, one (1) day after mailing when mailed by overnight courier or five (5)
days after mailing by registered or certified mail:







If to Licensee, to:




ChromaDex, Inc.

10005 Muirlands Boulevard

Suite G, First Floor

Irvine, California 92618

Attn: Tom Varvaro, CFO




If to Foundation, to:




UB Office of Science, Technology Transfer and Economic Outreach (STOR)

University at Buffalo Technology Incubator

Baird Research Park, Suite 111

1576 Sweet Home Road

Amherst, NY 14228

Attn: Director




	 	18.5.	 	Waiver. No waiver by either party hereto of any breach or default of any of the
covenants or agreements herein set forth will be deemed a waiver as to any subsequent
and/or similar breach or default.







	 	18.6.	 	Patent Marking. To the extent commercially feasible and consistent with prevailing
business practices, Licensee will mark, and will cause its Sublicensees to mark, all
Licensed Products that are manufactured or sold under this Agreement with the number of
each issued patent under the Patent Rights that applies to such Licensed Product.







	 	18.7.	 	Force Majeure. Neither party will be liable for failure or delay of fulfillment of
all or part of this Agreement, directly or indirectly owing to acts of nature, governmental
orders or restriction, war, warlike conditions, revolution, riot,
looting, strike, lockout, fire, flood, or any other cause or circumstances beyond the
parties’ control.







 


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	 	18.8.	 	Headings. The headings of the articles and sections are inserted for convenience of
reference only, and are not intended to influence the interpretation of this Agreement.







	 	18.9.	 	Manufactured in U.S. Licensee agrees that Licensed Products leased or sold in the
United States will be manufactured substantially in the United States.






IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives.



	 	 	 	 	 	 	 
	CHROMADEX	 	THE RESEARCH FOUNDATION OF

STATE UNIVERSITY OF NEW YORK
	 
	 	 	 	 	 	 
	By:
	 	/s/ FRANK JAKSCH	 	By:	 	[  *  ]
	 
	 	 	 	 	 	 
	Frank Jaksch, CEO and President	 	[  *  ]
	 
	 	 	 	 	 	 
	Date:

	 	June 27, 2008
	 	Date:
	 	June 30, 2008







 


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EXHIBIT A




PATENTS




United States Patent 7,338,791- Production of Flavonoids by Recombinant Microorganisms,

issued March 4, 2008




United States Divisional Patent Application, serial number 12/074,332, Production of

Flavonoids by Recombinant Microorganisms, filed March 3, 2008




PCT patent application, serial number PCT/US05/24525, Production of Flavonoids by

Recombinant Microorganisms, filed on July 11, 2005




 


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EXHIBIT B




KNOW-HOW AND MATERIALS





	1.	 	[*] leucoanthocyanidins, anthocyanidins and anthocyanins.

	 
	2.	 	[*].







 


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