Filed by Bowne Pure Compliance



 




EXHIBIT 10.01




[Execution Copy]




LICENSE AND SUPPLY AGREEMENT




This License and Supply Agreement (“Agreement”) is made and entered into effective as of the
1st day of January, 2008 (“Effective Date”), by and between (i) Martek Biosciences
Corporation, a Delaware USA corporation with offices located at 6480 Dobbin Road, Columbia, MD
21045, USA (“Martek”), and (ii) Numico Trading B.V., a corporation organized under the laws of the
Netherlands with offices located at Schiphol Boulevard 105, 1118 BG Schiphol Airport, The
Netherlands (including predecessor and successor entities, subsidiaries, divisions and Affiliates,
“Licensee”).



WITNESSETH:




WHEREAS, Martek has developed certain technology relating to the use of Omega-3 and Omega-6
long-chain polyunsaturated fatty acid-containing triglycerides for incorporation into infant
formula and growing up milk;



WHEREAS, Licensee and its affiliates are in the business of developing, manufacturing and
marketing infant nutritional products;



WHEREAS, Martek and Numico Beheer B.V. (f.k.a. Nutricia Bestuurcentrum B.V. (f.k.a.
Bestuurcentrum der Verenigde Bedrijven Nutricia B.V.)), an Affiliate of Numico Trading B.V.,
entered into a License Agreement dated as of September 10, 1992 pursuant to which Licensee obtained
a non-exclusive license and right from Martek to purchase, or to have its Affiliates purchase, the
Martek Products (as defined therein) from Martek for purposes of enabling Licensee to manufacture,
use and sell certain Infant Formula Products in the countries and portions thereof located in the
continent of * plus that portion of * which is located without the continent of *;



WHEREAS, Martek and Licensee subsequently entered into numerous amendments thereto including
without limitation: a) Amendment #1 expanding the licensed territory (“Territory”) to include * and
* dated December 11, 1997; b) Amendment #2 expanding the Territory to include * dated June 4,
2003; c) Amendment #3 expanding the Territory to include * (including *) and * dated January 1,
2005; d) Amendment #4 expanding the Territory to include the * but only with respect to * in the *
dated January 1, 2005; and e) Amendment #5 expanding the Territory to include * dated February 23,
2006 (as amended, the “1992 License Agreement”);



WHEREAS, Martek and International Nutrition Co. Ltd. A/S (“INC A/S”) entered into a License
and Supply Agreement dated as of March 4, 2003 pursuant to which INC A/S obtained a non-exclusive license and right from Martek to purchase, or to
have its Affiliates or designees purchase, the Martek Products (as defined therein) from Martek for
purposes of enabling INC A/S to manufacture, use and sell certain Infant Formula Products in the
countries and portions thereof located in * and * and subsequently made the following amendments:
a) Amendment #1 expanding the licensed territory to include * and * dated September 12, 2005, and
b) Amendment #2 expanding the licensed territory to include * dated October 27, 2005 (as amended,
the “2003 INC A/S License Agreement”);




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 1 of 46









 





WHEREAS, Martek and International Nutrition Co. Ltd. (“INC *”) entered into a License and
Supply Agreement dated as of May 8, 2003, pursuant to which INC * obtained a non-exclusive license
and right from Martek to purchase, or to have its Affiliates or designees purchase, the Martek
Products (as defined hereunder) from Martek for purposes of enabling INC * to manufacture, use and
sell certain Infant Formula Products in * (the “2003 INC * License Agreement”);



WHEREAS, the indirect parent company of Licensee, Royal Numico NV, acquired INC A/S and INC *
effective as of January 1, 2006;



WHEREAS, by letter dated September 28, 2007 from E. Leonard of Martek to G. van Wijk of
Licensee, Martek * under the various agreements (the “Letter”); and



WHEREAS, the parties desire to enter into this Agreement in order to consolidate, replace and
supercede the 1992 License Agreement, the 2003 INC A/S License Agreement, the 2003 INC * License
Agreement, and the Letter, as of the Effective Date.



NOW, THEREFORE, in consideration of the premises and of the mutual covenants of the parties
hereto, each party hereby agrees with the other as follows:



ARTICLE I

DEFINITIONS




Section 1.1 “Affiliate” shall mean any person, corporation, firm, partnership or other
entity which directly or indirectly owns Licensee or Martek (as the case may be), is owned by
Licensee or Martek, or is owned by a party which owns Licensee or Martek to the extent that the
owning entity has in excess of fifty percent (50%) of the equity having the power to vote on or
direct the affairs of the owned entity. For clarity, for so long as they fall within the above
definition, the New Affiliates shall be deemed Affiliates of Licensee hereunder.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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Section 1.2 “ARA” shall mean arachidonic acid.


Section 1.3 *



Section 1.4 “Designee” shall mean any entity that is designated by Licensee, and
approved by Martek in writing, such approval to not be unreasonably withheld or delayed, subject to
Martek’s right to withdraw such approval on reasonable advance notice for reasons which are
material to Martek’s reasonable business interests, to order quantities of the Martek Products from
Martek solely for (a) microencapsulation and/or other processing approved by Martek and (b) resale
to Licensee. As of the Effective Date, * are approved as Designees.



Section 1.5 “DHA” shall mean docosahexaenoic acid.



Section 1.6 “*” shall have the meaning set forth *.



Section 1.7 “*” shall have the meaning set forth *.



Section 1.8 “Growing Up Milk Product” or “GUM” shall mean a nutritionally
enhanced milk and/or soy-milk based product (i) marketed to and intended for use by children from
twelve (12) through thirty-six (36) months of age, and by older children in markets where such
products are or will be marketed by Licensee to be consumed by such older children, and (ii) which
contains Martek Products.



Section 1.9 “Infant Formula Product” shall mean a breast milk substitute formulated
industrially in accordance with applicable Codex Alimentarius and/or United States Food and Drug
Administration standards (i) to satisfy the total normal nutritional requirements of infants from
birth up to between four (4) and six (6) months of age and adapted to their physiological
characteristics and/or fed in addition to other foods to infants up to approximately one (1) year
of age and older or (ii) to satisfy the normal nutritional requirements of infants born
prematurely.



Section 1.10 “LCPUFA” shall mean any fatty acid, other than linoleic acid,
gammalinolenic acid and alphalinolenic acid, which contains at least eighteen (18) carbon atoms and
at least two (2) double bonds.



Section 1.11 “Licensed Patents” shall mean the patents and patent applications listed
in Exhibit 1 attached hereto and all other patents and patent applications owned by Martek
or licensed to Martek (with the right to sublicense) which cover the Technology and/or the Martek
Products, including all patents and patent applications covering inventions, improvements or
modifications conceived




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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or developed and owned by or licensed to Martek (with the right to
sublicense) during the Term of this Agreement and included in the Technology, and all divisionals, continuations, continuations-in-part, reexaminations, re-issues and extensions
thereof.



Section 1.12 “Licensee Product” shall mean any product (i) which is an Infant Formula
Product, (ii) which is developed and/or manufactured by or for Licensee or its Affiliates, (iii)
which bears Licensee’s brand or the brand of an Affiliate, (iv) which if manufactured, used or sold
in any country in the Territory where any Licensed Patent has issued, would infringe any such
Licensed Patent but for the license granted in Article II hereof, and (v) which does not contain
any Omega-3 LCPUFA derived from a microbial source other than Martek Products.



Section 1.13 “Martek Products” shall mean triglycerides containing Omega-3 and/or
Omega-6 long-chain polyunsaturated fatty acids produced by or for Martek, by microbial fermentation
in accordance with the Technology and/or the Licensed Patents and meeting the Specifications.



Section 1.14 “New Affiliates” shall mean *. and *



Section 1.15 “*”.



Section 1.16 “Other Product” shall mean any product (i) which is an Infant Formula
Product, (ii) which is developed and/or manufactured by or for Licensee or its Affiliates, (iii)
which bears Licensee’s brand or the brand of an Affiliate, (iv) which, if manufactured, used or
sold in any country in the Territory where any Licensed Patent has issued, would not infringe any
such Licensed Patent, and (v) which contains Martek Products.



Section 1.17 “Specifications” shall mean the specifications for the Martek Products
that are attached hereto as Exhibit 2, as they may be changed by written agreement between
the parties’ technical personnel from time to time.



Section 1.18 “Technology” shall mean the Licensed Patents and Martek’s proprietary and
confidential data, know-how, technology and practices relating to the Martek Products, and the
incorporation of the Martek Products into Infant Formula Products and/or Growing Up Milk Products,
and any modifications, improvements, and enhancements to any of the foregoing made by Martek, which
are proprietary to Martek and which, in Martek’s reasonable opinion, are necessary or useful in the
production and development of the Licensee Products, Other Products and/or Growing Up Milk
Products.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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Section 1.19 “Territory” shall mean the countries or other geographic areas listed in
Exhibit 3 attached hereto, plus any additional countries added by written amendment
pursuant to Section 2.5.



Section 1.20 “Third Party” shall mean any party other than Martek, Licensee and their
Affiliates.



Section 1.21 “Unit of Martek Products” shall mean that quantity of the Martek Products
containing one (1) kilogram of docosahexaenoic acid and/or arachidonic acid.




Section 1.22 “*” means *.



ARTICLE II

GRANT OF LICENSE AND OTHER RIGHTS





Section 2.1 License.



(a) Martek hereby grants to Licensee, under the Licensed Patents and the Technology, for the
Term of this Agreement and subject to the terms and conditions of this Agreement, a non-exclusive
right and license, directly or through sublicense to an Affiliate, (i) to incorporate, or permit a
Designee to incorporate, the Martek Products provided hereunder into or with one or more Infant
Formula Products in order to produce the Licensee Products and Other Products in the Territory,
(ii) to incorporate, or permit a Designee to incorporate, the Martek Products provided hereunder
into or with one or more Growing Up Milk Products, in order to produce Growing Up Milk Products
anywhere in the world, (iii) to use, market, import, export, distribute, offer for sale and sell
Licensee Products and Other Products solely for use in the Territory, and (iv) to use, market,
import, export, distribute, offer for sale and sell Growing Up Milk Products anywhere in the world.
No rights are granted to Licensee or its Affiliates under the Licensed Patents or Technology, by
implication or otherwise, other than as expressly set forth above, and no rights are granted
thereunder with respect to Infant Formula Products outside the Territory. No rights are granted to
Licensee or its Affiliates to use Martek Products, by implication or otherwise, other than as
expressly set forth above or in Section 3.1.



(b) For clarity, the license granted hereunder in *. with respect to Infant Formula Products
is solely limited to Licensee Products or Other Products which are *.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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Section 2.2 Transfer of the Martek Products. Nothing in this Agreement shall be
construed to permit Licensee or its Affiliates to sublicense the Martek Products or the Technology
or otherwise unilaterally transfer to any Third Party the Martek Products or the Technology except
as the same are incorporated into or used in the manufacture of the Licensee Products, Other
Products and/or Growing Up Milk Products solely in accordance with the terms of this Agreement. Notwithstanding the
foregoing, Licensee and its Affiliates may transfer the Martek Products, or may direct Martek to
transfer the Martek Products, to any Designee solely for (a) microencapsulation and/or other
processing that may be approved in writing by Martek and (b) resale to Licensee or its Affiliates
solely for use in accordance with the terms of this Agreement.



Section 2.3 Sublicensing. The grants to Licensee under this Article II shall not
include the right to grant sublicenses, except sublicenses to Licensee’s Affiliates which shall in
all cases be consistent with all terms and conditions of this Agreement including without
limitation Section 2.7; provided, however, that Licensee shall remain fully liable with respect to
all actions or inactions of any Affiliate as if such actions or inactions were those of Licensee
hereunder.



Section 2.4 Trademarks. No license whatsoever, either express or implied, is granted
pursuant to this Agreement to any trademarks or logos owned or controlled by Martek.



Section 2.5 Territory Expansion. The Territory includes all licensed countries as
listed on Exhibit 3 as of the Effective Date. Licensee is permitted to add additional
countries to the Territory hereunder upon notice to Martek, which additions will be reflected in
written amendments to this Agreement which shall amend the definition of Territory from and after
the Effective Date of the relevant amendment. Except as set forth below, * for any * to the
Territory by such an amendment provided that Licensee or its Affiliate * a Licensee Product or
Other Product in each relevant country within twelve (12) months of the effective date of the
amendment for such additional country. In the event Licensee or its Affiliate does not * a
Licensee Product or Other Product in such country as set forth above, * in accordance with Martek’s
* as of such twelve (12) month anniversary of the relevant amendment date for such additional
country which Licensee has elected to add to the Territory. Notwithstanding the foregoing,
Licensee shall have no rights hereunder to acquire a license or rights with respect to Infant
Formula Products in * beyond that described in Section 2.1(b). In the event Licensee wishes to
obtain a license for Infant Formula Products in *., Licensee shall notify Martek and the parties
agree to negotiate in good faith an amendment to this Agreement containing mutually acceptable
terms and conditions for * market, which shall include a for * market *.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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Section 2.6 Collaboration. During the Term of this Agreement, Martek agrees to
provide reasonable assistance to Licensee as requested by Licensee in Licensee’s efforts to
identify efficiencies in Licensee’s shipping and handling of the Martek Products, and other areas
as may be mutually agreed by the parties, such assistance not to exceed * per year. The parties acknowledge and agree that the efforts
described above will not impact the per unit and/or the per kilogram pricing of Martek Products as
set forth in Exhibit 4.



Section 2.7 Special Circumstances with respect to New Affiliates. Martek agrees
that, for so long as such entities remain Affiliates of Licensee, the New Affiliates shall be
included as Affiliates under this Agreement, and shall be bound by all terms and conditions hereof
*; provided, however, that (a) all Martek Product purchased by, on behalf of, or for use by, such
New Affiliates under this Agreement for use in Infant Formula Products shall be purchased under *,
and not *, and (b) any volumes ordered by, on behalf of, or for use by, such New Affiliates shall
only be used for determining * pursuant to * and shall not be aggregated with the volumes ordered
by any other entities hereunder for purposes of determining * pursuant to *, in each case unless
and until Licensee and such New Affiliates provide notice in writing to Martek, specifying an
effective date therefor, that such New Affiliates * and * applicable to Licensee under * (an *).
Upon the * of such *, the * for the New Affiliates * shall cease to be of any further force or
effect, such Affiliates may thereafter elect * as in effect at such time, and all volumes ordered
hereunder by any entities shall be aggregated for the purposes of determining relevant volume *.
In any event, at no time after the Effective Date shall Licensee or its Affiliates (other than the
New Affiliates) transfer responsibility for and/or the benefits of any portion of their Infant
Formula business (including without limitation any sales bookings or brand responsiblity) to the
New Affiliates prior to * *. For clarity, prior to an *, Numico and its Affiliates (other than the
New Affiliates) shall have no right to purchase Martek Product hereunder for the benefit of, or for
use by, the New Affiliates other than under * specified above.



ARTICLE III

PURCHASE AND SUPPLY OF THE MARTEK PRODUCTS




Section 3.1 Purchase of Martek Products. During the Term, Licensee and its Affiliates
(i) shall purchase and/or shall direct any Designee(s) to purchase, from Martek, the total
requirements of ARA as required by Licensee and its Affiliates for the manufacture, production,
distribution and/or sale of Infant Formula Products anywhere in the world; provided, however, that
unless and until * has become *, this *, and (ii) shall have the right (but not the obligation) to
purchase ARA Martek Product for use in the manufacture, production, distribution and/or sale of
Growing




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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Up Milk Products anywhere in the world. For clarity, Licensee shall, pursuant to Section
2.5, add to the Territory any country other than *. in which it or any of its Affiliates desires to
manufacture, produce, distribute or sell Infant Formula Products containing ARA during the Term.
Licensee shall have the further right to purchase DHA Martek Product as desired by Licensee and its Affiliates for the manufacture,
production, distribution and/or sale of Licensee Products or Other Products in the Territory,
and/or for the manufacture, production, distribution and/or sale of Growing Up Milk Products
anywhere in the world, in each case pursuant to Exhibit 4. All quantities of Martek
Product purchased by Licensee, its Affiliates or any Designee under this Agreement shall be used
solely for purposes of manufacture, production, distribution and/or sale of Licensee Products or
Other Products, in each case solely for use in the Territory, and/or for purposes of manufacture,
production, distribution and/or sale of Growing Up Milk Products anywhere in the world.




Section 3.2 Forecasts, Supply and Orders.



(i) On the Effective Date of this Agreement, Licensee shall give Martek written notice of the
quantity of the Martek Products, in each of the applicable * set forth in Exhibit 4, which
Licensee estimates in good faith that it and its Affiliates will order or direct the Designee(s) to
order from Martek during the remainder of the current calendar year. Not later than September 30
of each year during the Term of this Agreement, Licensee shall give Martek written notice of the
quantity of the Martek Products, in each of the applicable * set forth in Exhibit 4, which
Licensee estimates in good faith that it and its Affiliates will order or direct the Designee(s) to
order from Martek during the next subsequent calendar year. In addition to the foregoing, one (1)
month before the commencement of each calendar quarter during the Term of this Agreement, Licensee
shall provide Martek with a good faith non-binding forecast of Licensee’s and its Affiliates’
requirements of the Martek Products for each of the succeeding four (4) quarters, specifying
quantities and requested delivery dates. For clarity, prior to *, separate forecasts shall be
provided for the New Affiliates for each *.



(ii) Martek shall use commercially reasonable efforts to have available for shipment to
Licensee, its Affiliates and Designees such quantities of the Martek Products as Licensee requires
as indicated in the good faith forecasts provided pursuant to Section 3.2(i). Martek shall in good
faith notify Licensee of the quantity and timing of any expected supply shortfall, but any such
notification shall not be deemed to be considered a firm commitment or result in any liability or
obligation on the part of Martek except as otherwise expressly set forth in this Agreement. In
case for any reason Martek cannot or does not supply such quantities of the ARA Martek Products
which are required to be purchased from Martek hereunder and which are




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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forecasted in good faith by Licensee pursuant to Section 3.2(i) herein, Licensee shall be allowed to use an alternative
supplier for the quantities of ARA necessary, in addition to those which Martek is able to supply,
to meet its requirements during the duration of any supply shortfall by Martek. Licensee shall
consult in good faith with Martek in negotiating terms for any alternative source of supply, and Martek shall
reimburse Licensee for any increased purchase prices reasonably necessary to allow Licensee to
obtain cover for ARA as provided herein.



(iii) Licensee shall issue and/or shall direct its Affiliates and Designee(s) to issue formal
purchase orders (“Purchase Orders”) at least forty-five (45) but no sooner than ninety (90) days in
advance of the date on which Licensee, its Affiliate or Designee requests that Martek ship the
Martek Products. To facilitate proper *, the * (*) shall be specified in each Purchase Order. In
the event Licensee, an Affiliate or Designee does not * in any Purchase Order, * shall be used,
except that, with respect to orders by, for the benefit of, or for use by, New Affiliates, prior to
*, shall be used, subject in each case to reconciliation as provided in Section 5.2(b).



(iv) Purchase Orders submitted in accordance with this Agreement which have been acknowledged
by Martek in writing shall be considered firm orders and shall only be canceled or amended by
mutual written consent of Martek and Licensee, except as otherwise provided for herein. Martek
shall acknowledge all Purchase Orders submitted in accordance with the terms of this Agreement
within five (5) business days of Martek’s receipt of such Purchase Orders. Any orders not rejected
by Martek within * business days after confirmed receipt by Martek shall be deemed acknowledged by
Martek and considered firm orders and shall only be canceled or amended by mutual written consent
of Martek and Licensee, except as otherwise provided for herein.



(v) The parties expressly acknowledge that Martek shall use the non-binding forecasted
quantity of Martek Products specified by Licensee in accordance with the requirements of Section
3.2(i) for production planning purposes only and Licensee shall have no liability for any such
estimates.




Section 3.3 Order and Delivery Terms.



(i) The Martek Products shall be delivered EXW Martek’s place of shipment to Licensee, an
Affiliate or a Designee, as specified in the applicable order.



(ii) Title to and risk of loss of the Martek Products shall be transferred to Licensee upon
delivery by Martek to the carrier for shipment to Licensee, an Affiliate or a Designee.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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(iii) In connection with ordering and delivering the Martek Products, Martek and Licensee, its
Affiliates or Designees may employ their standard forms, but nothing in such forms shall bind
Martek or be construed to modify or amend the terms of this Agreement and, in the event of any conflict with the terms hereof, this
Agreement shall control.



(iv) Martek shall comply with the applicable Specifications, as set forth in Exhibit 2
attached hereto, *.



ARTICLE IV

TERM AND TERMINATION




Section 4.1 Term. This Agreement shall commence on the Effective Date and, unless
earlier terminated pursuant to another Section of this Article IV, or as otherwise provided for
herein, shall terminate on the fifteenth (15th) anniversary of the Effective Date (the
“Term”).



Section 4.2 Termination in Case of Material Breach; Opportunity to Cure. Either party
to this Agreement may terminate this Agreement upon thirty (30) days written notice to the other
party if the other party (or in the case of Licensee, Licensee, its Affiliate or Designee) shall
commit a material breach of this Agreement and shall not cure such breach within such thirty (30)
day period. For clarity, no termination may occur pursuant to this Section if the breach is cured
to the reasonable satisfaction of the non-breaching party within the relevant notice period.
Notwithstanding the foregoing, any * hereunder with respect to purchase of Martek Product of * that
is disputed in good faith by Licensee as promptly notified to Martek in writing shall not * of this
Agreement pursuant to this Section 4.2, unless and until such dispute is resolved pursuant to the
provisions of Section 14.1.



Section 4.3 Termination in Case of Infringement. Either Licensee or Martek shall have
the right to terminate this Agreement in a particular country within the Territory upon written
notice if a court or other tribunal of competent jurisdiction determines by final, non-appealable
order that the Technology or any of the Martek Products infringes upon the patent or other
proprietary rights of any Third Party in such country in any manner which would prevent Licensee
from selling Licensee Products in the Territory; provided, however, that if, prior to any such
termination, Martek develops a non-infringing alternative or obtains a license from such Third
Party, such that Licensee could lawfully use the Technology and/or the Martek Products (as the case
may be) in connection with the Licensee Products




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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at no additional cost or expense to Licensee beyond that expressly provided in this Agreement, neither party shall terminate this Agreement
pursuant to this Section 4.3.*



Section 4.4 Termination in Case of Insolvency; Government Action. Notwithstanding any
other provisions of this Agreement, either party to this Agreement may terminate this Agreement
upon giving notice to the other, should the other commit an act of bankruptcy, declare bankruptcy,
be declared bankrupt, enter into an arrangement for benefit of creditors, enter into a procedure of
winding up or dissolution, or should a trustee in bankruptcy or receiver or other equivalent entity
be appointed for the other or upon the expropriation, takeover or nationalization of the other
party or a majority portion of its assets by governmental action.



Section 4.5 Early Termination by Licensee. Licensee may terminate this Agreement for
any reason or no reason effective on or after December 31, 2011, provided that written notice of
such termination is provided to Martek at least six (6) months prior to the intended effective date
of termination.



Section 4.6 Effect of Termination. Upon termination of this Agreement in its
entirety, (a) Martek shall have the right, but not the obligation, to purchase from Licensee, its
Affiliates and Designees, at the fully landed costs paid for such Martek Products, unused
inventories of the Martek Products, and (b) Licensee and its Affiliates may continue for a period
of six (6) months following termination to distribute Licensee Products, Other Products and Growing
Up Milk Products made from Martek Products purchased during the Term of this Agreement, to the
extent lawful, and if Licensee is current with respect to all payments due under Article V below,
and otherwise continues to comply with the terms and conditions of this Agreement with respect to
any such Licensee Products, Other Products and Growing Up Milk Products.



Section 4.7 Other Rights and Remedies; Limitation of Liability. Unless another
provision of this Agreement specifically provides to the contrary, the rights of termination as
herein provided shall be in addition to all other rights and remedies which either party may have,
at law or in equity, to enforce this Agreement or to secure damages for the breach hereof, and the
exercise of any right of termination as herein provided by either party shall not relieve the other
of any of its obligations under this Agreement accruing prior to the effective date of termination,
including, but not limited to, the obligation to pay any amounts then due.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


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ARTICLE V

PAYMENTS BY LICENSEE




Section 5.1 License Fee and Pre-Payment. Licensee has previously compensated Martek
for all license fees due in connection with the licenses and other rights granted hereunder in the
Territory pursuant to: (i) the 1992 License Agreement; (ii) the 2003 INC A/S License Agreement; and
(iii) the 2003 INC * License Agreement. All such license fees have been fully paid as of the
Effective Date.




Section 5.2 Product Pricing.



(a) The pricing outlined in this Section 5.2 shall be effective for all orders of Martek
Products by Licensee, its Affiliates or Designees which are shipped after the Effective Date of
this Agreement. Notwithstanding any other provision of this Agreement, the 1992 License Agreement,
the 2003 INC A/S License Agreement or the 2003 INC * License Agreement, prices and payment terms
for all orders of Martek Products shipped prior to the Effective Date shall be as determined
pursuant to the 1992 License Agreement, the 2003 INC A/S License Agreement or the 2003 INC *
License Agreement, as relevant, and the Letter, as if such agreements and Letter remained in effect
as of the date of shipment, and for such purposes only, shall not be deemed superseded as of the
Effective Date. Pricing for the Martek Products shipped after the Effective Date shall be in
accordance with the * and other considerations as set forth in Exhibit 4 attached hereto.
Martek shall be paid for the Martek Products in any order submitted by Licensee, an Affiliate or a
Designee in accordance with the * set forth in Exhibit 4 attached hereto selected in such
order or in accordance with any relevant pricing set forth in any amendment to such Exhibit
4. Calculations based on annual ordering volumes shall be made using annual forecasts
submitted to Martek by Licensee in accordance with Section 3.2(i). For clarity, volumes ordered
by, on behalf of, or for use by, * with other volumes * for purposes of determining volume pricing
tiers unless and until *.



(b) Within thirty (30) days of the end of each calendar year, the parties shall confirm the
quantities of Martek Products used in each * for Infant Formula Products and Growing Up Milk
Products, and shall reconcile the total price paid versus the total price payable hereunder for
such Martek Products as follows: if the quantity paid in a calendar year is less than the quantity
actually owed during the calendar year based on actual use and due to the various price
differentials, Martek shall invoice Licensee within thirty (30) days after the end of the calendar
year for an amount equal to the difference, if any, between the total price paid and the total
price payable for the quantity of Martek Products actually purchased from Martek




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 12 of 46









 





for the respective uses. Alternatively, if the amount actually paid during a calendar year
exceeds the amount owed based on actual use and due to the various price differentials, Martek
shall credit against future purchases of Martek Product by Licensee from Martek an amount equal to
the difference, if any, between the total purchase price payable for the quantity actually
purchased and the total price paid by Licensee. In the event that Licensee does not provide the
relevant information to allow such reconciliations to be made within ninety (90) days of the end of
each calendar year (the “Reconciliation Period”), no adjustments requiring credits to Licensee
shall thereafter be due with respect to such calendar year; provided, however, that thirty (30)
days prior to the expiration of any Reconciliation Period set forth above, Martek will provide
notice to Licensee that such Reconciliation Period is expiring.



(c) In addition to the adjustments provided in (b) above, if the quantity of Martek Product
forecasted for purchase is greater than the quantity actually purchased during a calendar year,
Martek shall invoice Licensee within thirty (30) days after the end of the calendar year for an
amount equal to the difference, if any, between the total price paid and the total purchase price
payable for the quantity of Martek Products actually purchased from Martek. Alternatively, if the
quantity actually purchased during a calendar year exceeds the quantity forecasted for purchase,
Martek shall credit against future purchases of Martek Product by Licensee from Martek an amount
equal to the difference, if any, between the total purchase price payable for the quantity actually
purchased and the total price paid by Licensee.



Section 5.3 Payment Terms and Guarantee. Licensee, its Affiliates and the
Designee(s), as applicable, shall pay all correct invoices for amounts due in the United States in
U.S. dollars in accordance with Section 5.2 above and in accordance with Exhibit 4 within *
from the postmark date, date of transmission by facsimile or other electronic means, as applicable,
of Martek’s invoice, which invoice shall not be deemed to be delivered earlier than the date of
delivery of the invoiced Martek Products. For any invoices containing invoicing errors, payment
shall not be due, with respect to the incorrect portions of the invoice only, until the invoicing
errors are corrected and a new invoice, with respect to the incorrect portions on the original
invoice, is received by Licensee. In order to induce Martek to fill orders for the Martek Products
placed by Licensee’s Affiliates and the Designees, Licensee hereby assumes responsibility for, and
unconditionally guarantees, the timely payment of amounts due from Licensee’s Affiliates and the
Designees which are not reasonably disputed in good faith by such party (the “Guaranteed
Obligations”) promptly upon receipt from Martek of notice of nonpayment of any such amount. Martek
shall not be required, prior to any such notice to Licensee, to pursue or exhaust any of its rights
or remedies against a defaulting Affiliate or Designee with




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 13 of 46









 





respect to performance of any Guaranteed Obligation, or to provide any additional
notice.




Section 5.4 Other Pricing Issues.



(a) The price per Unit of Martek Products and corresponding price per Kilogram for ARA-only
for use in Infant Formula Products (solely as set forth in *) * under this Agreement shall, *, or
unless Martek *, which Licensee may *, be * that * at such time to * in *, and subject to *.



(b) *



Section 5.5 Taxes. Any and all payments required under this Agreement to be made to
Martek shall be made free and clear of, and without deduction or withholding for, any and all
present or future non-U.S. taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (all such taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as “Taxes”) unless such Taxes are
required by law or the administration thereof to be deducted or withheld. If Licensee, its
Affiliates or Designees shall be required by law or administration thereof to deduct or withhold
any Taxes from or in respect of any sum payable hereunder, (a) the sum payable shall be increased
as may be necessary so that after making all required deductions or withholdings (including
deductions or withholdings applicable to additional amounts paid under this Section) Martek
receives an amount equal to the sum it would have received if no such deduction or withholding had
been made; (b) Licensee shall make such deductions or withholdings; and (c) Licensee shall pay the
full amount deducted or withheld to the relevant taxation or other authority in accordance with
applicable law. Within thirty (30) days after the date of any payment of Taxes, Licensee will
furnish to Martek a copy of a receipt evidencing payment thereof. Martek will reasonably assist
Licensee or its Affiliates and Designees with recovering any Taxes paid, by providing to Licensee
upon written request copies of all documentation available to Martek that may be reasonably
required by Licensee to obtain such recovery.



Section 5.6 Sample Analysis. Martek shall have the right to analyze samples of the
Licensee Products and Other Products at any time and from time to time for purposes of verifying
that Licensee has complied with the terms of this Agreement. The expenses of such analyses shall
be borne by Martek; provided, however, that Licensee shall provide reasonable samples to Martek
without charge upon Martek’s request, to be made no more often than quarterly, and provided,
further, that Licensee shall be charged for, and shall promptly pay the expense of




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 14 of 46









 





any such analysis that discloses a material failure to comply with any applicable condition.



Section 5.7 Commercialization Expenses. Licensee and its Affiliates shall pay all
expenses for their commercialization of the Licensee Products, Other Products and Growing Up Milk
Products.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




Section 6.1 Martek’s Representations and Warranties. Martek represents and warrants
to the Licensee as follows:



(i) The execution and delivery of this Agreement and the performance by Martek of the
transactions contemplated hereby have been duly authorized by all necessary corporate actions.



(ii) The performance by Martek of any of the terms and conditions of this Agreement will not
constitute a breach or violation of any other agreement or understanding, written or oral, to which
it or its Affiliates is a party.



(iii) Martek warrants that the Martek Products will be manufactured in compliance with current
good manufacturing practices promulgated by U.S. Food and Drug Administration and in accordance
with the Specifications.



Section 6.2 Martek’s Disclaimers.



(i) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MARTEK HEREBY DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, RELATING TO THE MARTEK PRODUCTS, THE
TECHNOLOGY OR THE TRADEMARKS. MARTEK MAKES NO REPRESENTATIONS OR WARRANTIES AND HAS NO DUTY TO
ENSURE THAT THE TECHNOLOGY OR THE MARTEK PRODUCTS ARE USABLE WITH THE LICENSEE PRODUCTS, THE OTHER
PRODUCTS AND/OR THE GROWING UP MILK PRODUCTS, OR CAN BE INCORPORATED SAFELY INTO THE LICENSEE
PRODUCTS, THE OTHER PRODUCTS AND/OR THE GROWING UP MILK PRODUCTS. IT IS HEREBY ACKNOWLEDGED AND
AGREED THAT IT SHALL BE LICENSEE’S RIGHT AND OBLIGATION TO DETERMINE THE SAFETY AND UTILITY OF EACH
MARTEK PRODUCT AS IT RELATES TO THE LICENSEE PRODUCTS, THE OTHER PRODUCTS AND THE




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 15 of 46









 





GROWING UP MILK PRODUCTS; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT RELIEVE MARTEK OF
ANY OF ITS EXPRESS OBLIGATIONS AS OTHERWISE SET FORTH IN THIS AGREEMENT.



(ii) MARTEK HEREBY DISCLAIMS ANY WARRANTY THAT THE TECHNOLOGY, THE MARTEK PRODUCTS, THE
LICENSED PATENTS OR THE TRADEMARKS ARE FREE FROM INFRINGEMENT BY THIRD PARTIES. MARTEK FURTHER
DISCLAIMS ANY WARRANTY RELATING TO THE PATENTABILITY OF, OR THE VALIDITY OF ANY PATENTS RELATING
TO, THE TECHNOLOGY OR THE MARTEK PRODUCTS AND MAKES NO REPRESENTATIONS WHATSOEVER WITH REGARD TO
THE SCOPE OF ANY LICENSED PATENTS OR THAT ANY LICENSED PATENTS MAY BE COMMERCIALLY EXPLOITED
WITHOUT INFRINGING OTHER PATENTS.



(iii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MARTEK HEREBY DISCLAIMS AND SHALL NOT
BE LIABLE FOR ANY DAMAGES OF ANY NATURE RESULTING OR ARISING FROM OR RELATING TO (A) THE USE,
MANUFACTURE, DISTRIBUTION, MARKETING, OR SALE BY LICENSEE, ITS AFFILIATES OR ANY THIRD PARTY OF THE
TECHNOLOGY, THE MARTEK PRODUCTS, THE LICENSEE PRODUCTS, THE OTHER PRODUCTS AND/OR THE GROWING UP
MILK PRODUCTS, OR (B) ANY IMPROVEMENTS OR MODIFICATIONS TO THE TECHNOLOGY, THE MARTEK PRODUCTS, THE
LICENSEE PRODUCTS, THE OTHER PRODUCTS AND/OR THE GROWING UP MILK PRODUCTS WHICH ARE MADE BY
LICENSEE, ITS AFFILIATES, DESIGNEES, AGENTS OR CUSTOMERS.



Section 6.3 Licensee’s Representations and Warranties. Licensee represents and
warrants to Martek as follows:



(i) The execution and delivery of this Agreement and the performance by Licensee and its
Affiliates of the transactions contemplated hereby have been duly authorized by all necessary
corporate actions.



(ii) The performance by Licensee and its Affiliates of any of the terms and conditions of this
Agreement will not constitute a breach or violation of any other agreement or understanding,
written or oral, to which it or its Affiliates is a party.



Section 6.4 Licensee’s Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
LICENSEE HEREBY DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY NATURE RESULTING OR
ARISING FROM OR RELATING TO THE USE, MANUFACTURE, DISTRIBUTION, MARKETING, OR SALE BY LICENSEE, ITS
AFFILIATES OR ANY THIRD




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 16 of 46









 





PARTY OF THE MARTEK PRODUCTS, THE LICENSEE PRODUCTS, THE OTHER PRODUCTS AND/OR THE GROWING UP MILK
PRODUCTS.



ARTICLE VII

LICENSEE’S COVENANTS




Section 7.1 Compliance with Law; Regulatory Approval. Licensee covenants and agrees
that it and its Affiliates and the Designees shall conduct all of their operations dealing with the
Technology, the Martek Products, the Licensee Products, the Other Products and the Growing Up Milk
Products in material compliance with all applicable laws, regulations and other requirements which
may be in effect from time to time, of all national governmental authorities, and of all states,
municipalities and other political subdivisions and agencies thereof, including, without limiting
the generality of the foregoing, * laws and other requirements in each relevant country, including
any and all amendments, as may be applicable in any jurisdiction in which any Licensee Products,
Other Products and/or Growing Up Milk Products are sold. It shall be Licensee’s, and not Martek’s,
responsibility to secure any regulatory approvals in any jurisdiction that may be necessary in
connection with the exercise by Licensee of the rights granted under this Agreement. Licensee and
its Affiliates shall not knowingly impair Martek’s ability to obtain any regulatory approval of the
Martek Products by the competent governmental authorities in the Territory or outside the Territory
or with respect to other products that Martek may elect to pursue. The parties recognize and
acknowledge Licensee’s intent to diligently pursue the commercialization of Licensee Products,
Other Products and/or Growing Up Milk Products; provided, however, that nothing in this Agreement
shall be construed so as to obligate Licensee or its Affiliates to take any specific action or
measure to seek regulatory approval for or to market Licensee Products, Other Products and/or
Growing Up Milk Products.



Section 7.2 Performance and Product Quality. Licensee covenants and agrees that it
and its Affiliates and, to the extent applicable, its Designees shall exercise a reasonable
standard of care in the testing, manufacturing, marketing, packaging, distribution and sale of each
Licensee Product, Other Product and Growing Up Milk Product. Licensee further covenants and agrees
that it and its Affiliates shall maintain quality control, provide adequate tests of materials,
provide quality workmanship, and do such other things as are reasonably required to assure high
quality production of such Licensee Products, Other Products and Growing Up Milk Products.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 17 of 46









 






Section 7.3 Records.



(a) Licensee covenants and agrees that Licensee will keep, or cause to be kept, true and
accurate records adequate to ensure that Licensee’s and its Affiliates’ compliance with the terms
and conditions of this Agreement can be verified. Such records shall be made available upon prior
written request by Martek, during business hours, for inspection by an independent auditor who is
reasonably acceptable to Licensee and who shall be bound by a confidentiality agreement with
Licensee, to the extent necessary for the determination of compliance with this Agreement, and such
records shall be retained for a period of three years following the year to which they relate. The
auditor shall provide Martek with a report containing his/her conclusions, but not the inspected
records or the information contained therein, and shall concurrently provide Licensee with such
report. Each such inspection shall cover the records for a period no earlier than the Effective
Date and of no more than the three (3) calendar years prior to the date of the request for
inspection, and Martek shall be entitled to no more than one (1) such inspection per calendar year.
Martek shall bear the full cost of any such inspection
unless such auditor finds that
the Licensee is not in material compliance with its obligations under this Agreement, in which case
Licensee shall bear the full cost of such inspection.



(b) Martek covenants and agrees that Martek will keep, or cause to be kept, true and accurate
records adequate to ensure that Martek’s compliance with this Agreement can be verified. Such
records shall be made available upon prior written request by Licensee, during business hours, for
inspection by an independent auditor who is reasonably acceptable to Martek and who shall be bound
by a confidentiality agreement with Martek, to the extent necessary for the determination of
compliance with this Agreement, and such records shall be retained for a period of three years
following the year to which they relate. The auditor shall provide Licensee with a report
containing his/her conclusions, but not the inspected records or the information contained therein,
and shall concurrently provide Martek with such report. Each such inspection shall cover the
records for a period no earlier than the Effective Date and of no more than the three (3) calendar
years prior to the date of the request for inspection, and Licensee shall be entitled to no more
than one (1) such inspection per calendar year. Licensee shall bear the full cost of any such
inspection
unless such auditor finds that Martek is not in material compliance with its
obligations under this Agreement, in which case Martek shall bear the full cost of such inspection.



Section 7.4 Protection of Martek’s Proprietary Interest. Licensee acknowledges and
agrees that the Technology, Licensed Patents and the Martek Products are proprietary to Martek, and
Licensee hereby covenants and agrees that




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 18 of 46









 





(i) Licensee and its Affiliates shall not use the Technology or the Martek Products for any purpose
not provided for hereunder, and (ii) shall not challenge or cause any Affiliate or Third Party to
challenge Martek’s rights to the Technology, the Licensed Patents or the Martek Products.
Notwithstanding the foregoing provisions in this Section 7.4, Licensee’s obligations as set forth
in Section 7.4(ii) above shall not apply in any country of the Territory in which such obligations
are not enforceable in accordance with applicable law or regulation.



Section 7.5 Product Use. In order to ensure the quality and efficacy of the
Licensee Products and Other Products, Licensee covenants and agrees, on behalf of itself and its
Affiliates, that commencing on the Effective Date, it shall, on a country-by-country basis, include
or cause to be included in any Infant Formula Product which contains ARA and DHA, those amounts of
DHA and ARA which, at a minimum, are: (i) * or (ii) *.



ARTICLE VIII

PATENT PROSECUTION AND ENFORCEMENT




Section 8.1 Patent Applications. The responsibility for the prosecution of, and the
exclusive right to apply for, prosecute, maintain and enforce the Licensed Patents shall be and
remain with Martek except as provided below. Martek shall exercise commercially reasonable efforts
in this regard.



Section 8.2 Infringement Notice. Licensee shall notify Martek promptly in writing of
any infringement in the Territory of any issued Licensed Patent or other interference with Martek’s
proprietary interests relating to the Technology or the Martek Products or DHA and/or ARA in
general which becomes known to Licensee. If Martek determines that a material infringement exists
with respect to Martek Products, Martek shall communicate such determination to Licensee in writing
and take commercially reasonable actions to attempt to eliminate that infringement.



Section 8.3 Infringement Actions. Martek shall have the sole right to bring, at its
own expense, an infringement action against any Third Party with respect to any material
infringement relating to a Licensed Patent.



Section 8.4 Defense of Infringement Actions. Except to the extent otherwise provided
in Section 4.3 of this Agreement, Martek and Licensee hereby acknowledge and agree that each party
shall be responsible for defending, at its own expense, any infringement action brought against
such party by any Third




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 19 of 46









 





Party. Martek and Licensee agree reasonably to cooperate with the other in any defense and in
responding to any threatened infringement action, and to provide assistance, at its own
(respective) expense, as may be reasonably requested by the defending party. 



ARTICLE IX

ASSIGNMENT




Section 9.1 Assignment. This Agreement and the rights granted hereunder shall be
assignable by Martek, but shall not be assignable, in whole or in part, by Licensee without the
prior written consent of Martek which consent shall not be unreasonably withheld; provided,
however, that Licensee may transfer its rights and obligations under this Agreement to any
Affiliate without written consent.



ARTICLE X

PARTIES’ RELATIONSHIP




Section 10.1 Relationship between Parties. Neither party to this Agreement shall have
the power to bind the other by any guarantee or representation that either party may give, or in
any other respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of
the other party, and for purposes of this Agreement, the parties hereto hereby acknowledge and
agree that they shall not be deemed partners, joint venturers, or to have created the relationship
of agency or of employer and employee between the parties.



ARTICLE XI

INDEMNITY




Section 11.1 Indemnity by Licensee. Licensee shall indemnify, defend and hold
harmless Martek, its Affiliates and Martek’s and its Affiliates’ directors, officers, employees and
agents from and against all costs, expenses, damages, losses and liabilities (“Losses”) asserted
against them for which Martek, its Affiliates or the directors, officers, employees or agents of
either of them may become liable or incur or be compelled to pay with respect to or involving (i)
the Licensee Products and/or the Other Products and/or the Growing Up Milk Products and/or any
other activities of Licensee, its Affiliates or Designees hereunder, including, without limitation,
any product liability claim asserted against Licensee, its Affiliates, Third




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 20 of 46









 





Parties or Martek, (ii) any gross negligence or intentional wrongdoing of Licensee, its
officers, employees or agents or any Licensee Affiliate or Designee; or (iii) the material breach
by Licensee of any of its covenants, representations and warranties contained in this Agreement,
except in each case to the extent that any such Losses are subject to Martek’s indemnity
obligations set forth in Section 11.2 below.



Section 11.2 Indemnity by Martek. Martek shall indemnify, defend and hold harmless
Licensee, its Affiliates, and Licensee’s and its Affiliates’ directors, officers, employees and
agents from and against all Losses asserted against them for which Licensee, its Affiliates or the
directors, officers, employees or agents of either of them may become liable or incur or be
compelled to pay to the extent resulting from: (i) the failure of Martek or any Martek Affiliate
to manufacture the Martek Products delivered hereunder in accordance with the Specifications or the
warranty provided in Section 6.1(iii); (ii) any gross negligence or intentional wrongdoing of
Martek, its officers, employees or agents, or any Martek Affiliate; or (iii) the material breach by
Martek of any of its covenants, representations and warranties contained in this Agreement, except
in each case to the extent that any such Losses result from a material breach of any of the
Licensee’s covenants, representations and warranties contained herein or any gross negligence or
intentional wrongdoing of Licensee or any Licensee Affiliate or Designee.



Section 11.3 Condition to Indemnification. If either party expects to seek
indemnification under this Article XI, it shall promptly give notice to the indemnifying party of
the basis for such claim of indemnification. If indemnification is sought as a result of any third
party claim or suit, such notice to the indemnifying party shall be within fifteen (15) days after
receipt by the other party of such claim or suit; provided, however, that the failure to give
notice within such time period shall not relieve the indemnifying party of its obligation to
indemnify unless it shall be materially prejudiced by the failure. Each party shall fully
cooperate with the other party in the defense of all such claims or suits. No offer of settlement
or compromise shall be binding on a party hereto without its prior written consent (which consent
shall not be unreasonably withheld) unless such settlement fully releases such party without any
liability, loss, cost or obligation to such party.



Section 11.4 Survival of Indemnity Obligation. The indemnification obligations
provided in this Agreement, including that provided in this Article XI, shall survive the
expiration or termination of this Agreement, whether occasioned by the Agreement’s expiration
pursuant to Section 4.1 above or earlier termination pursuant to the other Sections of Article IV
above.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 21 of 46









 





ARTICLE XII

CONFIDENTIALITY




Section 12.1 Disclosure of Information. All the Technology and all other information
exchanged by the parties pursuant to and in execution of their obligations and in exercise of their
rights under this Agreement shall be deemed confidential. Martek and Licensee acknowledge and
agree that the value of the Technology, the Martek Products, the Licensee Products, the Other
Products and the Growing Up Milk Products is based, to a large extent, on maintaining the
confidentiality of the Technology, the Martek Products, the Licensee Products, the Other Products
and the Growing Up Milk Products and preventing any unauthorized dissemination to or use by Third
Parties of information relating to the Technology or the Martek Products. Disclosure of
confidential and proprietary information hereunder, whether orally or in written form, shall be
safeguarded by the recipient and shall not be disclosed to Third Parties and shall be made
available only to the receiving party’s employees or other agents who have a need to know such
information for purposes of performing the party’s obligations, or for purposes of exercising the
party’s rights, under this Agreement and such employees or other agents shall have a legal
obligation to the employer or principal, as applicable, not to disclose such information to Third
Parties. Each party shall treat, and Licensee shall ensure that its Affiliates and Designees
treat, any and all such confidential information in the same manner and with the same protection as
such party maintains its own confidential information. These mutual obligations of confidentiality
shall not apply to any information to the extent that such information: (i) is or later becomes
generally available to the public, such as by publication or otherwise, through no fault of the
receiving party; (ii) is obtained from a Third Party having the legal right to make such a
disclosure; or (iii) is independently developed by a party without access to the confidential
information. Martek, Licensee or Licensee’s Affiliates shall not remove from any communications or
other documents delivered by a disclosing party any proprietary notices affixed thereto by the
disclosing party.



Notwithstanding the foregoing, (x) Martek may issue the press release set forth in attached
Exhibit 5 upon final execution of this Agreement and (y) Martek and Licensee may disclose
(including but not limited to disclosure in response to questions, interrogatories, requests for
information or documents in legal proceedings, subpoenas, civil investigative demand or other
similar process) or announce to any Third Person, disclose in any filings under applicable
securities laws or regulations or otherwise make any public disclosure or issue a press release
concerning (a) the fact and the nature of this Agreement and the transactions to be performed
pursuant hereto; or (b) any otherwise confidential or proprietary




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 22 of 46









 





information as and to the extent required by applicable law or government agency of the United
States and the countries of the Territory, including, but not limited to, any applicable disclosure
requirements under the federal securities laws or regulations thereunder, provided that in the case
of each such disclosure, announcement or press release, the disclosing party, upon the advice of
outside counsel, in good faith deems the disclosure necessary to comply with the foregoing and to
the extent practicable and consistent with applicable laws, gives prior written notice to the other
party and gives the other party such assistance as the other party may reasonably request, in
accordance with applicable law, in order to prevent, challenge, modify or protect such disclosure.
In addition Martek and Licensee may each disclose the fact and the terms of this Agreement to its
attorneys and accountants without notice to the other party. Furthermore, Licensee may deliver a
copy of this Agreement (including drafts thereof) to any Affiliate so long as any such recipient
has undertaken, in writing, an obligation to maintain the terms of this Agreement in confidence,
and Martek shall have the right to issue a mutually agreed press release upon the commencement of
sales by any New Affiliate of an Infant Formula Product containing Martek Product under the terms
of this Agreement.



Section 12.2 Post-Term Obligations. The mutual confidentiality obligations of the
parties under the provisions of this Article XII shall survive the termination or expiration of
this Agreement for a period of * from the date of such termination or expiration. Upon termination
or expiration of this Agreement, Licensee shall promptly return to Martek all the Technology,
documents, records, and all other property or documentation disclosed or delivered to Licensee or
its Affiliates pursuant to this Agreement and then in existence, subject to the retention by
Licensee of one (1) copy thereof for archival purposes only.



ARTICLE XIII

LIMITATION OF LIABILITY




Section 13.1 Indirect Damages. EXCEPT TO THE EXTENT PROVIDED IN SECTION 11.1 OR 11.2
HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS OPPORTUNITY, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY UPON WHICH ONE PARTY MAY SEEK
REMEDIES AGAINST THE OTHER.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 23 of 46









 





Section 13.2 Exclusive Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE
EXCLUSIVE LIABILITY OF MARTEK, AND LICENSEE’S EXCLUSIVE REMEDY, FOR FAILURE OF ANY MARTEK PRODUCT
TO CONFORM TO THE SPECIFICATIONS SHALL BE THE REPLACEMENT OF THE NONCONFORMING MARTEK PRODUCTS OR A
REFUND OF THE PURCHASE PRICE PAID FOR THE NONCONFORMING MARTEK PRODUCTS (INCLUDING DUTY, FREIGHT,
INSURANCE CHARGES, AND OTHER SIMILAR RELATED EXPENSES), AT MARTEK’S SOLE OPTION; PROVIDED, HOWEVER,
THAT NOTHING IN THIS SECTION 13.2 SHALL RELIEVE MARTEK OF ITS INDEMNIFICIATION OBLIGATIONS SET
FORTH IN SECTION 11.2 OF THIS AGREEMENT.



Section 13.3 Maximum Aggregate Liability. (A) EXCEPT FOR LIABILITY WHICH IS THE SUBJECT
OF INDEMNIFICATION AS SET FORTH IN SECTION 11.2, OR UNLESS ARISING FROM MARTEK’S GROSS NEGLIGENCE,
FRAUD OR INTENTIONAL MISCONDUCT, MARTEK’S TOTAL LIABILITY TO LICENSEE AND ITS AFFILIATES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN ANY CALENDAR YEAR DURING THE TERM OF THIS AGREEMENT,
WHETHER BASED ON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL IN NO EVENT EXCEED THE
TOTAL AMOUNT *. (B) EXCEPT FOR LIABILITY WHICH IS THE SUBJECT OF INDEMNIFICATION AS SET FORTH IN
SECTION 11.1, OR UNLESS ARISING FROM LICENSEE’S GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT,
LICENSEE’S TOTAL LIABILITY TO MARTEK AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT IN ANY CALENDAR YEAR DURING THE TERM OF THIS AGREEMENT, WHETHER BASED ON BREACH OF
CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT *



ARTICLE XIV

MISCELLANEOUS




Section 14.1 Dispute Resolution. Martek and Licensee covenant and agree to use their
diligent efforts to resolve any disputes that arise between them in the future and are related to
this Agreement through negotiation and mutual agreement and, if good faith efforts to so negotiate
and mutually agree are unavailing, through binding arbitration under the procedures set forth
herein. When either party learns of a dispute subject to arbitration under this Agreement, it
shall promptly send written notice of the dispute to the other party. The parties agree that for a
period of thirty (30) days from the sending of such written notice, they shall in good faith




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 24 of 46









 





negotiate to resolve the dispute. Subject to the foregoing, disputes arising in connection
with this Agreement shall be finally settled under the Rules of the American Arbitration
Association by three arbitrators appointed in accordance with such Rules. Unless the parties to
such dispute agree otherwise in writing, any such arbitration shall be conducted in Baltimore,
Maryland and the results of such Arbitration shall be final and binding on the parties and
enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, the parties
acknowledge and agree that each of them shall have the right to seek immediate injunctive and other
equitable relief through the courts in the event of any material breach of this Agreement by the
other party that would cause the non-breaching party irreparable injury for which there would be no
adequate remedy at law. Martek and Licensee agree that any action brought by either party to
interpret or enforce any provision of this Agreement shall be brought only in, and each party
agrees to and hereby submits to, the jurisdiction and venue of the appropriate state or federal
court in the State of Maryland.



Section 14.2 Product Liability Insurance. Licensee shall procure and maintain product
liability insurance coverage of not less than * covering Licensee Products, Other Products and
Growing Up Milk Products, with Martek named as an additional insured and loss payee. Martek shall
procure and maintain product liability insurance coverage of not less than * covering Martek
Products, *. Either party may request from the other party a certificate evidencing such insurance
and such certificate shall be promptly provided. The minimum insurance coverage set forth above
shall be maintained at all times unless changed to equivalent coverage by another carrier upon
thirty (30) days prior written notice.



Section 14.3 Information Exchange. During the Term of this Agreement, the parties
shall promptly notify each other of any report of an adverse event associated with the use of a
Martek Product in any Licensee Product, Other Product and/or Growing Up Milk Product. Licensee
shall have sole discretion in determining what action, if any, is to be taken in connection with
any such adverse event report relating to a Licensee Product, Other Product and/or Growing Up Milk
Product. On an annual basis, Licensee shall provide Martek with the names of Licensee Products,
Other Products and Growing Up Milk Products; the brands under which Licensee Products, Other
Products and Growing Up Milk Products are distributed and/or sold; the amount of ARA and DHA in
each Licensee Product, Other Product and Growing Up Milk Product; and each of the countries where
Licensee Products, Other Products and Growing Up Milk Products are sold.



Section 14.4 Reciprocal Waiver. The parties hereby acknowledge that whatever rights
each of them may have with regard to performance under any




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 25 of 46









 





previously existing license agreements, as described in the preamble of this Agreement, have
been fully satisfied and that each of them hereby irrevocably waives the right to make any claim
against the other party, its Affiliates, its Designees, directors, officers, employees and agents
of any nature whatsoever, for liability accrued prior to the Effective Date, whether known,
unknown, contingent or actual, except for third party claims of which the senior management of such
party is unaware as of the Effective Date, which claims shall be subject to the indemnification
provisions of Article XI hereof as if arising from actions under this Agreement, and except as
otherwise provided in Section 5.2(a) hereof with respect to Martek Products shipped prior to the
Effective Date.



Section 14.5 Force Majeure. Neither party to this Agreement shall be liable for
damages due to delay or failure to perform any obligation under this Agreement, other than an
obligation to make payments, if such delay or failure results directly or indirectly from
circumstances beyond the reasonable control of such party. Such circumstances shall include, but
shall not be limited to, acts of God, acts of war, acts of terrorism, civil commotions, riots,
strikes, lockouts, acts of the government in either its sovereign or contractual capacity,
interruption of telecommunications transmissions, inability to obtain suitable equipment or
components, accident, fire, water damages, flood, earthquake, or other natural catastrophes. If
remittance of U.S. Dollars is prevented or impaired for reasons of force majeure, the party owing
the money shall settle such obligations in the manner as may be reasonably instructed by the party
to whom the obligation is owed. Should the effect of force majeure continue for more than twelve
(12) consecutive months, the party not relying on this Section 14.5 to excuse performance may
terminate this Agreement without liability (other than for claims arising prior to the effective
date of termination) on thirty (30) days notice to the party impaired by force majeure.



Section 14.6 Construction of Agreement. This Agreement shall be construed and the
respective rights of the parties shall be determined under and pursuant to the laws of the State of
Delaware, United States of America, without regard to the principles of conflict of laws thereof.
The parties expressly exclude the applicability of the Convention on Contracts for the
International Sale of Goods.



Section 14.7 Notices. Notices required under this Agreement shall be in writing and
sent by registered mail, by facsimile transmission, by nationally recognized overnight courier
service, or by hand delivery, with written verification of receipt and date of receipt, to the
respective parties at the following addresses:




Notices to Martek:

Martek Biosciences Corporation

6480 Dobbin Road




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 26 of 46









 






Columbia, Maryland 21045 USA

Facsimile: (410) 740-2985

Attn: General Counsel




Notices to Licensee:

Numico Trading B.V.

Schiphol Boulevard 105

1118 BG Schiphol Airport

The Netherlands

Facsimile:_+31-20-4569000

Attn:_General Manager of NPO




With a copy to:




Numico B.V.

Schiphol Boulevard 105

1118 BG Schiphol Airport

The Netherlands

Facsimile:_+31-20-4569000

Attn:_General Counsel



or to such other address as either party may designate by a notice given in compliance with this
paragraph, and shall be deemed effective when received.



Section 14.8 Entire Agreement. The terms and provisions contained in this Agreement
and its Exhibits constitute the entire agreement between the parties on the subject matter hereof
and shall, as of the Effective Date, supersede all previous communications, representations,
agreements or understandings, either oral or written between the parties hereto with respect to the
subject matter hereof, except as expressly set forth herein. Specifically, this Agreement shall,
as of the Effective Date, replace and supersede the 1992 License Agreement, the 2003 INC A/S
License Agreement, and the 2003 INC * License Agreement, and the Letter, except to the extent
otherwise expressly provided for in this Agreement. No agreement or understanding varying or
extending this Agreement will be binding upon either party hereto, unless in a writing which
specifically refers to this Agreement, which is signed by duly authorized officers or
representatives of the respective parties.



Section 14.9 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns. No person,
firm or corporation other than the parties hereto and their successors and permitted assigns shall
derive rights or benefits under this Agreement.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 27 of 46









 






Section 14.10 Counterparts. This Agreement may be executed in counterparts.



Section 14.11 Severability. Any of the provisions of this Agreement which are
determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of
such invalidity or unenforceability in such jurisdiction, without rendering invalid or
unenforceable the remaining provisions hereof in such jurisdiction, and without affecting the
validity or enforceability of any of the terms of this Agreement in any other jurisdiction. The
parties will substitute for the invalid or unenforceable provision a valid and enforceable
provision which conforms as nearly as possible with the original intent of the parties.



Section 14.12 Waiver. No waiver by either party of any breach of any of the terms
or conditions herein provided to be performed by the other party shall be construed as a waiver of
any subsequent breach, whether of the same or of any other term or condition hereof.



Section 14.13 Survival. Sections 4.6, 4.7, 5.3, 5.5, 6.2, 6.4, 7.1, 7.2, 7.3,
8.4, 14.1, 14.3, 14.4, 14.6, 14.7, 14.8, 14.9, 14.11, 14.12, 14.13, 14.4 and 14.15, and Articles
XI, XII and XIII shall survive the termination or expiration of this Agreement and Section 14.2
shall survive for two (2) years following the termination or expiration of this Agreement.



Section 14.14 Headings. Section headings contained in this Agreement are inserted for
convenience of reference only. The section headings shall not be deemed to be a part of this
Agreement for any purpose and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.



Section 14.15 Expenses. Should any party breach this Agreement, in addition to all
other remedies available at law or in equity, such party shall pay all of the other party’s costs
and expenses resulting therefrom and/or incurred in enforcing this Agreement, including reasonable
legal fees and expenses.




*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 28 of 46









 





THEREFORE, the parties hereto have caused this Agreement to be duly executed in their
respective behalves as of the day and year first written above.



	 	 	 	 	 	 	 
	MARTEK BIOSCIENCES CORPORATION (Martek)	 	Numico Beheer B.V. (Licensee)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Print Name:

	 	 	 	Print Name:	 	 
	 

	 	 
	 	 	 	 
	Print Title:

	 	 	 	Print Title:	 	 
	 

	 	 
	 	 	 	 
	Date:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 







*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 29 of 46









 





EXHIBIT 1

LICENSED PATENTS

(as of December 2007)




“Microbial Oil Mixtures and Uses Thereof”




	 	 	 	 	 	 	 
	Country	 	Application No.	 	Publ. or Patent No.	 	Status
	Australia
	 	AU92/12392	 	661,297	 	Granted 7 Nov 95
	*
	 	*	 	 	 	*
	Canada
	 	2,101,274	 	2,101,274	 	Granted 15 Dec 98
	Europe
	 	07002670.3	 	EP1 787 532 A1	 	Published 23 May 07
	(designates Austria, Belgium,
	 		 	(Div of EP1 092 352)	 
	Denmark, France, Germany,
	 	 	 
	Greece, Italy, Luxembourg,
	 	07075341.3	 	EP1 832 181 A2	 	Published 12 Sep 07
	Monaco,
Netherlands, Spain,

Sweden,
Switzerland/
Liechtenstein,
 and
United Kingdom)
	 	 	 	(Div of EP1 092 352)	 	 
	Indonesia
	 	P001678	 	ID 0000174	 	Granted 20 Jun 95
	Israel
	 	100733	 	100733	 	Granted 1 Apr 96
	 
	 	114253	 	114253	 	Granted 14 Oct 97
	Mexico
	 	9200320	 	183638	 	Granted 6 Jan 97
	New Zealand
	 	241359	 	241359	 	Granted 16 Feb 95
	Philippines
 
	 	43812	 	1992-43812	 	Granted 23 Nov 01
	Russia
	 	93052410.13	 	2,093,996	 	Granted 27 Oct 97
	Singapore
	 	9608986.7	 	49307	 	Granted 10 Jan 02
	 
	 	 	 	 	 	(Revocation Pending)
	South Africa
	 	92/0452	 	92/0452	 	Granted 28 Oct 92
	South Korea
	 	1993-0702205	 	321543	 	Granted 9 Jan 02
 
	 
	 	2000-7003480	 	292103	 	Granted 20 Mar 01
	 
	 	 	 	 	 	(Revocation Pending)
	Sri Lanka
	 	10526	 	10526	 	Granted 17 Jun 94
	United States
	 	07/944,739	 	5,374,657	 	Granted 20 Dec 94
	 
	 	08/358,474	 	5,550,156	 	Granted 27 Aug 96








*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 30 of 46









 





“Arachidonic Acid and Methods for the Production and Use Thereof”




	 	 	 	 	 	 	 
	Country	 	Application No.	 	Publ. or Patent No.	 	Status
	Australia
	 	AU92/12355	 	661,674	 	Granted 21 Nov 95
	 
	 	AU96/48542	 	713,567	 	Granted 16 Mar 00
	*
	 	*	 	 	 	*
	Canada
	 	2,101,273	 	2,101,273	 	Granted 2 Apr 02
	 
	 	2,209,513	 	2,209,513	 	Granted 28 May 02
	China
	 	96192002.5	 	CN1175976A	 	Published 11 Mar 98
	 
	 	200510071295.2	 	CN1696300A	 	Published 16 Nov 05
	Eurasia
	 	97-0090US	 	EA1036	 	Granted 28 Aug 00
	Europe
	 		 		 	
	(validated in Austria, Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, Monaco, Netherlands,
Portugal, Spain, Sweden,
Switzerland/
Liechtenstein, and
United Kingdom)
 
	 	96904435.3	 	EP0 800 584	 	Granted 2 May 03
(Opposition Pending)
	(designates same
countries as
parent)
	 	03076254.6	 	EP1 342 787A1
(Div of EP0 800 584)
 	 	Published 10 Sep 03
	(designates
Austria, Belgium,
Denmark, France,
Germany, Greece,
Italy, Luxembourg,
Monaco,
Netherlands, Spain,
Sweden, Switzerland/L
iechtenstein and
United Kingdom)
 
	 	05 077139.3	 	EP1 642 983B1
(Div of EP1 001 034)	 	Granted 11 Apr 07
	(designates same
countries as
parent)
	 	06077261.3	 	EP1 801 226 A1
(Div of EP1 642 983)	 	Published 27 Jun 07
	

	 	 	 	 	 	 
	Finland
	 	972829	 	117442	 	Granted 13 Oct 2006
	 
	 	*	 	 	 	*
	Hong Kong
	 	4101355.3	 	HK 1058528A	 	Published 21 May 04
	 
	 	06105700.4	 	HK 1085768	 	Published 11 Sep 06
	Indonesia
	 	P-001679	 	ID 0000393	 	Granted 22 Dec 95
	Israel
	 	100,732	 	100,732	 	Granted 1 Oct 95
	Japan
	 	08-521231 (1996)	 	1998 10512444	 	Published 2 Dec 98
	 
	 	2005-368593	 	2006 180877JP	 	Published 13 Jul 06
	 
	 	*	 	 	 	*
	Mexico
	 	92/00301	 	202940	 	Granted 6 Jul 01
	 
	 	97/005078	 	234429	 	Granted 13 Feb 06








*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 31 of 46









 





	 	 	 	 	 	 	 
	Country	 	Application No.	 	Publ. or Patent No.	 	Status
	New Zealand
	 	241,358	 	241,358	 	Granted 8 Feb 95
	Norway
	 	973085	 	320117	 	Granted 31 Oct 05
	Philippines
	 	43811	 	1-1992-43811	 	Granted 22 Aug 02
	Poland
	 	P321208	 	187694	 	Granted 14 Jan 04
	Russia
	 	93-054772	 	2120998	 	Granted 27 Oct 98
	 
	 	97-0090US	 	EA1036	 	Granted 28 Aug 00
	Singapore
	 	9703038.1	 	42669	 	Granted 30 Mar 99
	 
	 	 	 	 	 	(Revocation Pending)
	South Korea
	 	1999-7008800	 	302036	 	Granted 29 Jun 01
(Opposition Pending)
 
	 
	 	2006-7015060	 	6096168A	 	Published 7 Jun 06
	South Africa
	 	92/0454	 	92/0454	 	Granted 28 Oct 92
	Sri Lanka
	 	10527	 	10527	 	Granted 27 Oct 93
	United States
	 	08/367,881	 	5,658,767	 	Granted 19 Aug 97








*The asterisk denotes that confidential portions of this
exhibit have been omitted in reliance on Rule 24b-2 of the Securities
Exchange Act of 1934. The confidential portions have been submitted
separately to the Securities and Exchange Commission.


 


Page 32 of 46









 





“Docosahexaenoic Acid, Methods for its Production

and Compounds Containing the Same”




	 	 	 	 	 	 	 
	Country	 	Application No.	 	Publ. or Patent No.	 	Status
	Australia
	 	AU91/73302	 	660,162	 	Granted 03 Oct 95
	*
	 	*	 	 	 	*
	Canada
	 	2,076,018	 	2,076,018	 	Granted 2 May 00
	Europe (validated in Austria, 
Belgium,
Denmark, France,

Germany, Greece,
Italy, 
Luxembourg,
Netherlands, Spain,
Sweden,
Switzerland/
Liechtenstein, and
United
Kingdom)
	 	91903945.3	 	EP0 515 460	 	Granted 22 Apr 1998
(Opposition Pending)
	Israel
	 	97,126	 	97,126	 	Granted 16 Jun 95
	 
	 	111,174	 	111,174	 	Granted 11 Jun 98
	Japan
	 	1991-504147	 	2830951	 	Granted 25 Sep 98
	 
	 	1998-177561	 	11-092783	 	Published 24 Jun 1998
	 
	 	2003-27974	 	3957196	 	Granted 18 May 07
	 
	 	2004-57293	 	2004-215668	 	Published 5 Aug 2004
	 
	 	2005-09518	 	2005-176851	 	Published 5 Jul 2005
	 
	 	2006-017013	 	2006-191931	 	Published 27 Jul 2006
	 
	 	2007-41363	 	2007-195556	 	Published 9 Aug 2007
	Philippines
	 	I 41991	 	31568	 	Granted 3 Nov 98
	 
	 	I 54562	 	1-1996-54562	 	Granted 26 May 03
	 
	 	I 54563	 	1-1996-54563	 	Granted 5 Aug 03
	Romania
	 	98-20074	 	2.079T	 	Granted 30 Jan 2001
	South Korea
	 	91-701943	 	285870	 	Granted 8 Jan 01
	 
	 	10-1999-7011087	 	294293	 	Granted 13 Apr 01
	United States
	 	07/916,874	 	5,397,591	 	Granted 14 Mar 95
	 
	 	07/479,135	 	5,407,957	 	Granted 18 Apr 95
	 
	 	08/386,079	 	5,492,938	 	Granted 20 Feb 96
	 
	 	08/583,845	 	5,711,983	 	Granted 27 Jan 98








 


-33-









 







EXHIBIT 2

SPECIFICATIONS




ARASCO®




Product Specifications




General Characteristics




	 
	Description:     Vegetable oil from fungi, containing 40% arachidonic acid (ARA) 

Appearance:    Free flowing yellow liquid oil (triglyceride) 

Odor:                 Characteristic 

Antioxidants:  *







	 	 	 	 	 
	Chemical Characteristics

	 	Fatty Acid Composition
	 	Area %
	*

Free Fatty Acid    < 0.4%

	 	
*	 	 
	*
	 	 	 	 
	Elemental Composition *
	 	 	 	 
	*
	 	 	 	 
	Product Storage and Stability
	 	 	 	 






Maximum stability of ARASCO is achieved by shipping and storing the product frozen in the original
unopened container at -20 degrees Centigrade until thawed for use. The oil should be protected
from exposure to oxygen and elevated temperatures (> 30 C). Shipping and storage under frozen
conditions provides stability for ARASCO for up to three years if product is kept frozen and
unopened.



Once a container of oil is thawed and opened, use entire contents immediately. However, if it is
not possible to use the entire amount at one time, the remainder may be nitrogen purged and
refrozen at -20 degrees Centigrade.



Ingredients




Fungal Oil *


 


-34-









 





DHASCO®




Product Specifications




General Characteristics




	 	 	 
	Description:

	 	Vegetable oil from microalgae, containing 40% docosahexaenoic acid (DHA)
	Appearance:

	 	Free flowing light yellow to dark orange liquid oil (triglyceride)
	Odor:

	 	Characteristic
	Antioxidants:

	 	*






	 	 	 	 	 
	Chemical Characteristics

	 	Fatty Acid Composition
	 	Area %
	*
	 	 	 	 
	Free Fatty Acid < 0.4%

	 	*	 	 
	*
	 	 	 	 
	Elemental Composition*
	 	 	 	 
	*
	 	 	 	 






Product Storage and Stability




Maximum stability of DHASCO is achieved by shipping and storing the product frozen in the original
unopened container at -20 degrees Centigrade until thawed for use. The oil should be protected
from exposure to oxygen and elevated temperatures (> 30 C). Shipping and storage under frozen
conditions provides stability for DHASCO for up to three years if product is kept frozen and
unopened.



Once a container of oil is thawed and opened, use entire contents immediately. However, if it is
not possible to use the entire amount at one time, the remainder may be nitrogen purged and
refrozen at -20 degrees Centigrade.



Ingredients




Algal Oil *


 


-35-









 





EXHIBIT 3

TERRITORY




During the Term of this Agreement the Territory includes the following:



From the 1992 License Agreement (as amended):

The countries and portions thereof located in the continent of * plus that portion of * which is
located without the continent of *, plus the countries of * and *.



In addition, Territory shall also include *, but only for * which are defined as * meeting the
following criteria: *



From the 2003 INC A/S License Agreement (as amended):

* and *



From the 2003 INC * Agreement:

*


 


-36-









 





EXHIBIT 4 

PRICING




1) Unless otherwise provided below, Licensee shall pay Martek compensation for the Martek Products
(in oil form) and/or the rights granted in the attached Agreement in accordance with any of the *
then available to Licensee as set forth below in this Exhibit 4 which shall be * of the
Martek Products and shall be set forth in each such order. Annual volumes purchased in accordance
with * shall be calculated * for the purpose of determining the relevant volume-based pricing set
forth below.



2) The prices payable for the Martek Products shipped under this Agreement during the
remainder of calendar year 2008 pursuant to Section 5.2 shall be invoiced based on the lowest
volume (highest price) tier specified below for the *, subject to any reconciliation as provided in
Section 5.2.



3) The term “Unit of Martek Products” is defined in Section 1.21 of the Agreement. A kilogram
of the Martek Products, as referred to in this Exhibit 4, shall contain approximately forty
percent (40%), by weight, of docosahexaenoic acid (“DHA”) or arachidonic acid (“ARA”) or DHA and
ARA in the aggregate combined. Should Martek Products containing approximately forty percent
(40%), by weight, of DHA or ARA or DHA and ARA in the aggregate combined cease to be available, the
per kilogram * set forth below shall likewise cease to be available. In such event, an * will be
provided * of Martek Products.



4) The prices set forth in this Exhibit 4 for * may be increased by Martek once per
calendar year after January 1, 2009, by up to the amount, if any, of the percentage increase * in
the * for the current year as compared to the * for the previous calendar year. In the event that
Martek, pursuant to the prior sentence, is entitled to, but elects not to, take a permitted annual
price increase, Martek may elect to take a cumulative price increase in any following year;
provided that in no case shall any such price increase exceed the sum of any prior permitted but
untaken percentage price increases. There shall be no restrictions on price increases with respect
to * other than a requirement to provide prior written notice to Licensee.


 


-37-









 





* (subject to conditions set forth below):



*: The price per Unit of Martek Products and corresponding per Kilogram price for DHA and
ARA for use in combination in Infant Formula Products will be as follows:



	 	 	 	 	 	 	 
	Annual Volume	 	Price per Unit of	 	Annual Volume	 	Price per Kilogram
	(Units)	 	Martek Products	 	(Kilograms)	 	of Martek Products
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*






Conditions:




	 	1.	 	Martek Products for which * must comprise one hundred percent (100%) of any and all
Omega-3 and Omega-6 LCPUFAs contained in any quantity of any Infant Formula Products made
using such Martek Products.

	 
	 	2.	 	The ratio of ARA to DHA in any Infant Formula Product made using the Martek Products
shall be no greater than *.






*: The price per Unit of Martek Products and corresponding per Kilogram price for ARA-only
for use in Infant Formula Products will be as follows:



	 	 	 	 	 	 	 
	Annual Volume	 	Price per Unit of	 	Annual Volume	 	Price per Kilogram
	(Units)	 	Martek Products	 	(Kilograms)	 	of Martek Products
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*





 


-38-









 





Conditions:




	 	1.	 	Martek Products for which * must comprise one hundred percent (100%) of any and all
Omega-6 LCPUFAs contained in any quantity of any Infant Formula Products made using such
Martek Products, and all Omega-3 LCPUFAs contained therein which are not Martek Products
must be derived from non-microbial sources.






*: The price per Unit of Martek Products and corresponding per Kilogram price for ARA-only
for use in Infant Formula Products will be as follows:



	 	 	 	 	 	 	 
	Annual Volume	 	Price per Unit of	 	Annual Volume	 	Price per Kilogram
	(Units)	 	Martek Products	 	(Kilograms)	 	of Martek Products
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*






Conditions:




	1.	 	Martek Products for which * must comprise one hundred percent (100%) of any and all
Omega-6 LCPUFAs contained in any quantity of any Infant Formula Products made using such
Martek Products, and all Omega-3 LCPUFAs contained therein which are not Martek Products
must be derived from non-microbial sources.






*: The price per Unit of Martek Products and corresponding per Kilogram price for DHA and
ARA for use in combination in Infant Formula Products will be as follows:



	 	 	 	 	 	 	 
	Annual Volume	 	Price per Unit of	 	Annual Volume	 	Price per Kilogram
	(Units)	 	Martek Products	 	(Kilograms)	 	of Martek Products
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*






 


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Conditions:




	 	1.	 	Martek Products for which * must comprise one hundred percent (100%) of any and all
Omega-3 and Omega-6 LCPUFAs contained in any quantity of any Infant Formula Products made
using such Martek Products.

	 
	 	2.	 	The ratio of ARA to DHA in any Infant Formula Product made using the Martek Products
shall be no greater than *.






*: The price per Unit of Martek Products and corresponding per Kilogram price for ARA
and/or DHA for use in GUMs will be as follows:



	 	 	 	 	 	 	 
	Annual Volume	 	Price per Unit of	 	Annual Volume	 	Price per Kilogram
	(Units)	 	Martek Products	 	(Kilograms)	 	of Martek Products
	*

	 	*
	 	*
	 	*
	 
	 	 	 	 	 	 
	*

	 	*
	 	*
	 	*






Conditions:




	 	1.	 	Martek Products for which * must only be used in Growing Up Milk Products.





 


-40-









 





EXHIBIT 5

PRESS RELEASE




	 	 	 
	For Immediate Release

	 	Contact:
	 

	 	Cassie France-Kelly
	 

	 	Public Relations
	 

	 	(443) 542-2116
	 

	 	media@martek.com
	 
	 	 
	 

	 	Kyle Stults
	 

	 	Investor Relations
	 

	 	(410) 740-0081
	 

	 	investors@martek.com






Martek Signs Multi-Year Sole-Source Supply Agreement with Numico




COLUMBIA, Md. — DATE TBD — Martek Biosciences Corporation announced today that it has entered
into a multi-year license and supply agreement with Numico, a wholly-owned subsidiary of Danone and
a leading worldwide producer of infant formula products. Under the terms of the agreement, Martek
will serve as Numico’s exclusive supplier for all of its ARA and microbially-derived DHA needs for
infant formula products. Numico may continue to use alternative non-microbial DHA sources. The
agreement provides for a 15-year term, with Numico having the right to terminate the arrangement as
of January 2012. Martek has supplied DHA and ARA to Numico for infant formula products since 1994
under an existing license agreement.



Numico is a high-growth specialized nutrition company, and one of the fastest-growing international
food companies. The Baby Food division specializes in food for the healthy growth and development
of infants and toddlers (0-3 years old) through an extensive range of safe, nutritionally superior
and convenient products. Numico holds the market leadership positions in 25 of its 33 infant
formula markets worldwide.



Martek manufactures nutritional oils that contain the long-chain polyunsaturated fatty acids DHA
and ARA, both of which are naturally present in breast milk. Clinical studies have demonstrated
benefits for infants receiving formula supplemented with DHA and ARA. Martek’s proprietary blend
of DHA and ARA, marketed under the brand names life’sDHATM and life’sARATM, is currently used in over
97 percent of U.S. infant formulas. Additionally, infant formula containing


 


-41-









 





life’sDHA and life’sARA has been consumed by over 30 million infants in over 70 countries
worldwide.



“We are pleased to further strengthen our relationship with Numico, one of the world’s leading
infant formula and nutrition companies, and believe this agreement again demonstrates that
companies around the world continue to recognize the importance of adding DHA and ARA to infant
formula,” said Steve Dubin, Martek CEO. “With this new agreement, more than 70 percent of Martek’s
business in the infant formula market is subject to multi-year sole source agreements.”



Martek Biosciences Corporation (NASDAQ: MATK) is a leader in the innovation and development of DHA
omega-3 products that promote health and wellness through every stage of life. The company produces
life’sDHATM, a sustainable and vegetarian source of the omega-3 fatty acid DHA (docosahexaenoic
acid), for use in foods, beverages, infant formula, and supplements. The company also produces
life’sARATM (arachidonic acid), an omega-6 fatty acid, from a sustainable, vegetarian source, for
use in infant formula. For more information on Martek Biosciences Corporation, visit
http://www.martek.com.



Sections of this release contain forward-looking statements. These statements are based upon
numerous assumptions which Martek cannot control and involve risks and uncertainties that could
cause actual results to differ. These statements should be understood in light of the risk factors
set forth in the company’s filings with the Securities and Exchange Commission, including, but not
limited to, the company’s Form 10-K for the fiscal year ended October 31, 2007 and other filed
reports on Form 10-K, Form 10-K/A, Form 10-Q and Form 8-K.


 


-42-









 





EXHIBIT 6




*




*



 


-43-









 





EXHIBIT 7

EX-TERRITORY LICENSE FEES




The Infant Formula Product license fees for countries outside of the Territory are as
follows:



	 	 	 
	Country	 	License Fee (USD)
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*






 


-44-









 





	 	 	 
	Country	 	License Fee (USD)
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*
	*

	 	*






In the event Licensee elects to add an additional country or countries to the Territory
pursuant to Section 2.5 that are not listed in this Exhibit 7, then a license fee will be
provided for each such country at that time.


 


-45-









 





EXHIBIT 8

*





 


-46-