Exhibit 10.2


 


FIRST AMENDMENT


TO EXCLUSIVE LICENSE AGREEMENT


 


This
First Amendment to Exclusive License Agreement (this “Amendment”) is made and
entered into effective September 1, 2008, between Interleukin Genetics, Inc.,
a Delaware corporation having its principal office at 135 Beaver Street,
Waltham, MA 02452 (“IG”) and Access Business Group International LLC, having
offices at 7575 Fulton Street, East, Ada, Michigan 49355-001 (“ABG”).


 


WHEREAS,
ABG and IG are parties to that certain Exclusive License Agreement effective March 5,
2003 (the “License Agreement”); and


 


WHEREAS,
ABG and IG are parties to various Research Agreements effective, respectively,
on March 5, 2003; June 17, 2004 (as amended); March 5, 2005; March 18,
2005; June 30, 2006; January 1, 2007; and January 31, 2008 (the “Research
Agreements”); and


 


WHEREAS,
the parties wish to amend the License Agreement in accordance with the terms
and conditions of this Amendment and to confirm their understanding with
respect to intellectual property rights arising under the Research Agreements.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged ABG and IG agree as follows:


 


1.                                       Amendments to
License Agreement.


 


(a)                                  As of the date
hereof, the license and any other rights granted by IG to ABG in Section 3.1
of the License Agreement shall be converted to a nonexclusive license and, in
connection therewith, Section 3.1 of the License Agreement is hereby
deleted in its entirety and the following is inserted in lieu thereof:


 


“3.1 IG hereby grants to ABG a non-exclusive license with the right to
grant sublicenses, to practice in the Licensed Field under the IG Patent
Rights, the IG Technology and IG’s interest in the Program Patent Rights and
Program Inventions to make, have made, use, sell offer for sale and import
Nutrigenomics Consumables and Dermagenomic Consumables in the Licensed
Territory and in the Licensed Field and to sell Nutrigenomics Tests and
Dermagenomics Tests in the Licensed Territory and in the Licensed Field for the
term of this Agreement unless earlier terminated pursuant to the terms hereof;
provided, however that such license does not include the right to perform or
sublicense others to perform Dermagenomics Test or Nutrigenomics Tests.”


 


(b)                                 A new Section 3.2
is hereby added to the License Agreement which shall provide as follows:


 


“3.2 During the term of the Agreement, IG agrees that its intent is to
collaborate with and grant licenses to pharmaceutical, biotechnology,
diagnostic, molecular diagnostic, consumer products, medical device and
healthcare management companies under the IG Patent Rights, the IG Technology
and IG’s interest in the Program Patent 


 


Portions of this Exhibit were omitted and have been filed separately
with the Secretary of the Commission pursuant to the Company’s application
requesting confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.


 


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Rights
and Program Inventions to make, have made, use, sell, offer for sale, export or
import genetic tests. Pertaining to license grants in Nutrigenomics Tests,
Dermagenomics Tests, Nutrigenomics Consumables or Dermagenomics Consumables in
the Licensed Territory and in the Licensed Field, IG agrees not to grant to any
of the companies on the attached Schedule A a license under the IG Patent
Rights, the IG Technology and IG’s interest in the Program Patent Rights and
Program Inventions to make, have made, use, sell, offer for sale, export or
import Nutrigenomics Tests, Dermagenomics Tests, Nutrigenomics Consumables or
Dermagenomics Consumables in the Licensed Territory and in the Licensed Field
and IG further agrees to include such restriction in all of its licenses of
such IG Patent Rights, IG Technology and IG’s interest in the Program Patent
Rights and Program Inventions.  IG agrees
that ABG may from time to time request additions to Schedule A and such
Schedule A shall be amended in a written document executed by both parties
promptly upon such request.”


 


(c)                                  A new Section 3.3
is hereby added to the License Agreement, which shall provide as follows:


 


“3.3 If IG desires to make, have made, use, sell, offer for sale and
import any Nutrigenomics Consumable or Dermagenomics Consumables that is a
Program Invention under the Research Agreements, and of which ABG has sole and
exclusive ownership, IG must separately obtain a license to do so from ABG.”


 


(d)                                 Section 4.1
of the License Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:


 


“4.1 ABG will pay to IG a royalty of [***] percent ([***]%) of the
Manufacturing Cost of Dermagenomics and Nutrigenomics Consumable sold by ABG
and its Related Companies, [***].”


 


(e)                                  Section 6.5
of the License Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:


 


“6.5                           ABG shall have
the right to terminate this Agreement, without cause, on thirty (30) days
advance written notice to IG.”


 


(f)                                    Section 7.3(c) of
the License Agreement is hereby amended by adding the following sentence to the
end of this section:


 


“Costs for any changes made or any countries added at the request of
ABG shall be paid for by ABG.”


 


(g)                                 Section 7.4
of the License Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:


 


“7.4. Subject to Section 5.8, either Party may make public
disclosures or provide publicity with regard to the Program Patent Rights and
Licensed Information and its application in the Licensed Fields, provided that a
disclosing Party shall make reasonable 


 


Portions of this Exhibit were omitted and have been filed separately
with the Secretary of the Commission pursuant to the Company’s application
requesting confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.


 


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efforts
to provide notice to the other Party beforehand and allow the other Party to
comment on any such proposed disclosure or publicity.”


 


(h)                                 Article VIII
of the License Agreement is hereby deleted in its entirety.


 


2.                                       Intellectual
Property Rights – Research Agreements. 
For the avoidance of doubt, ABG and IG desire to confirm their agreement
with respect to ownership of intellectual property rights arising under the Research
Agreements.


 


(a)                                  IG’s Intellectual Property Rights.  Specifically as set forth in the Research
Agreements (except for the Research Agreement effective March 18, 2005,
which is separately addressed in this Section 2(a)), effective as of the
date of each such Research Agreement, IG shall have the sole and exclusive
ownership of all inventions, discoveries, improvements or other proprietary
intellectual property rights relating to genomics tests arising under the
research program set forth in each respective agreement, with full rights to
license or sublicense.  With respect to
the Research Agreement between the Parties effective March 18, 2005, IG
shall have the sole and exclusive ownership of all inventions, discoveries,
improvements or other proprietary intellectual property rights arising under
the research program set forth therein, with full rights to license or
sublicense.


 


(b)                                 ABG’s Intellectual Property Rights.  Specifically as set forth in the Research
Agreements (except for the Research Agreement effective March 18, 2005,
which is separately addressed in Section 2(a) above), effective as of
the date of each such Research Agreement, ABG shall have the sole and exclusive
ownership of all inventions, discoveries, improvements or other proprietary intellectual
property rights relating to nutritional or skincare products arising under the
research program set forth in each respective agreement, with full rights to
license or sublicense.


 


3.                                       All capitalized
terms herein shall have the meanings set forth in the License Agreement.


 


4.                                       Except as set
forth herein, all remaining terms and conditions of the License Agreement shall
remain unchanged and in full force and effect.


 


5.                                       The terms of
this Amendment shall be construed and governed in accordance with the laws of
the State of Michigan, without regard to the choice of law principles of
Michigan or any other state or country.


 


6.                                       This Amendment
may be executed in multiple counterparts, each of which shall be deemed an
original and all of which shall constitute but one and the same instrument. No
agreement hereafter made shall be effected to change, modify, or discharge this
Amendment, in whole or in part, unless such agreement is in writing and signed
by or on behalf of the party against whom the enforcement of the change,
modification, or discharge is sought. 
This Amendment shall be binding on the parties hereto and their
respective personal and legal representatives, successors, and permitted
assigns.  Each person whose signature
appears below represents and warrants that he or she has the authority to bind
the entity on whose behalf he or she has executed this Amendment.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Exclusive License Agreement effective as of the date set forth above.


 


	
  ACCESS
  BUSINESS GROUP 

  	
   

  	
   

  
	
  INTERNATIONAL
  LLC

  	
   

  	
  INTERLEUKIN
  GENETICS, INC.

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Jay G. Ertl

  	
   

  	
  By:
  

  	
  /s/
  Lewis H. Bender

  
	
   

  	
   

  	
   

  
	
  Its:
  

  	
  Vice
  President - Product Supply

  	
   

  	
  Its:
  

  	
  Chief
  Executive Officer

  



 


Portions of this Exhibit were omitted and have been filed separately
with the Secretary of the Commission pursuant to the Company’s application
requesting confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.


 


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SCHEDULE A


 


[***]


 


Portions of this Exhibit were omitted and have been filed separately
with the Secretary of the Commission pursuant to the Company’s application
requesting confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.


 


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