Blueprint









 





Exhibit 10.62

  




 



***Text Omitted and Filed Separately



with the Securities and Exchange Commission.



Confidential Treatment Requested



Under 17 C.F.R. Sections 200.80(c) and 240.24b-2



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SUPPLY AGREEMENT

 



THIS SUPPLY AGREEMENT (the "Agreement") is made and entered into as
of the 19th of December, 2018
(the “Effective
Date”) by and between NESTEC Ltd., a Swiss private limited company, with
principal offices located at Avenue Nestle 55, 1800 Vevey,
Switzerland ("Buyer" or
“NHSc”) and
ChromaDex Inc., a California corporation with principal offices
located at 10005 Muirlands, Blvd, Suite G, Irvine, CA 92618, USA
(“Seller” or
“ChromaDex”).
Buyer and Seller are individually referred to herein as a
“Party” and
collectively as the “Parties.”

 



R E C I T A L S

 



WHEREAS, Seller is the owner or exclusive licensee of
certain intellectual property rights related to the composition and
use of the compound Nicotinamide Riboside (“NR”) and NR Product (defined
below) that is currently sold under the ChromaDex Trademarks
(defined below); and

 



WHEREAS, NR is supplied by Seller to third parties for the
commercialization of NR Product under the ChromaDex Trademarks (or
other tradenames) as dietary supplements on a global basis;
and

 



WHEREAS, NR and NR Product is marketed, commercialized and
sold by Seller to consumers in its pure form and in combination
with other active ingredients on a global basis under the ChromaDex
Trademarks (or other tradenames) subject to the terms and
conditions of this Agreement; and

 



WHEREAS, Buyer now desires to purchase the NR Product to
develop, market, promote, sell, and distribute the Approved
Products (defined below) subject to the terms and conditions
hereinafter described.

 



NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows.

 




1.


Definitions.





 


The
following terms have the meanings specified below:

 


“Active
Nutrition” means product offerings that are formulated
and marketed to consumers of all ages for the purpose of living a
healthy lifestyle with integrated physical activity. Active
Nutrition does not include Sports Nutrition.

 


“Affiliate”
shall mean, with respect to a Party, any person or entity that
controls, is controlled by, or is under common control with such
Party. An entity or person shall be deemed to be in control of
another entity (“Controlled
Entity”) if the former owns directly or indirectly at
least fifty percent (50%) of the outstanding voting equity of the
Controlled Entity (or some other majority equity or ownership
interest exits, in the event that such Controlled Entity is other
than a corporation).

 


“Allowable
Deductions” shall mean,

 


(a)
sales returns and allowances actually paid, granted or accrued,
including trade, quantity and cash discounts and any other
adjustments, including those granted on account of price
adjustments or billing errors, rejected goods, damaged or defective
goods, recalls, returns;

 


(b)
rebates, chargeback rebates, compulsory rebates, reimbursements or
similar payments granted or given to wholesalers or other
distributors, buying groups, health care insurance carriers or
other institutions and compulsory payments to governmental
authorities and any other governmental charges imposed upon the
sale of such Approved Product to third parties;

 

(c) adjustments
arising from consumer discount programs or other similar
programs;


 

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(d)
customs or excise duties, sales tax, consumption tax, value added
tax, and other taxes (except income taxes); and

 


(e)
charges for packing, freight, shipping and insurance (to the extent
that Buyer or its Affiliates bear such cost).

 


Allowable
Deductions shall be calculated by Buyer consistent with its
ordinary practice and in accordance with International Financial
Reporting Standards, and Buyer shall not calculate Allowable
Deductions in any manner that has the primary purpose of avoiding
or reducing the Sales Fees payable hereunder.

 


“Approved
Products” shall mean any Medical Nutrition (as defined
herein) or Functional Food and Beverages (as defined herein)
product which contains a minimum of [...***...]mg of the NR
Product per serving unless Buyer and Seller agree otherwise in
advance in writing. Buyer does not require any consent from Seller
to launch new products in Medical Nutrition or Functional Food and
Beverages provided that they comply with the requirements set forth
in this Agreement. For the sake of clarity, the Approved Products
will include NR Product in combination with proteins or other
active ingredients as Functional Food and Beverages or as Medical
Nutrition products of NHSc.

 


“Approved
Product Category(ies)” shall mean Medical Nutrition
and/or Functional Food and Beverages.

 


“Buyer”
shall include NESTEC Ltd. and its U.S. Affiliate, Nestlé
HealthCare Nutrition, Inc. and their respective successors and
assigns; provided, however, that the Parties acknowledge and agree
that Buyer or any of its Affiliates may purchase the NR Product and
market, sell and distribute the Approved Products pursuant to the
terms and conditions of this Agreement.

 


“Buyer’s
Technical Feasibility” shall mean when Buyer, in its
reasonable judgment, determines that the NR Product would be stable
in a ready to drink format.

 


“Change
of Control” shall mean any person or entities having
acquired, in any single transaction or series of related
transactions, whether by way of merger, consolidation, purchase, or
in any other manner, (i) securities of Seller or its Controlling
Affiliate(s) representing [...***...] percent
([...***...]%) or more of either the combined voting power
or ownership interest thereof, (ii) [...***...] percent
([...***...]%) or more of the profit/loss participation in
Seller or its Controlling Affiliate(s), or (iii) Control in Seller
or its Controlling Affiliate(s).

 


“ChromaDex
Brand Usage Guidelines” are attached hereto as
Exhibit A –
ChromaDex Brand Usage Guidelines (Exhibit A is hereby
incorporated herein in full by this reference) and, subject to the
terms and conditions in Section 11, sets forth the rules and
guidelines pertaining to the proper use of the ChromaDex Trademarks
which rules and guidelines may be amended by ChromaDex, at any
time, in ChromaDex’s sole discretion. If the ChromaDex Brand
Usage Guidelines are supplemented or amended, a supplemented or
amended version shall be promptly provided to Buyer, and Buyer has
the obligation to ensure that Buyer is in compliance with
ChromaDex’s current ChromaDex Brand Usage Guidelines after a
reasonable transition period.

 


“ChromaDex
Trademarks” shall mean the trademarks and logos owned
by ChromaDex incorporating the name, mark, and/or brand of the NR
Product as shown in the ChromaDex Brand Usage
Guidelines.

 


“Control”
shall mean (including the term “Controlling”)
possession, directly or indirectly, through one (1) or more
intermediaries, of the power to direct or cause the direction of
management and policies of Seller, whether through ownership of
voting securities or otherwise.

 


“Dollerup”
shall mean the following study: Dollerup, O.L., et al., A
randomized placebo-controlled clinical trial of nicotinamide
riboside in obese men: safety, insulin-sensitivity, and
lipid-mobilizing effects. Am J Clin Nutr, 2018.

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“Field”
shall mean human use.

 


“Functional
Food and Beverages” shall mean a Protein Based
(defined below) functional food or beverage (meaning consumer
healthcare sold under “Nutrition Facts” labeling
regulations in the US or similar labeling or definitional
regulations globally; i.e. not sold under dietary supplement
regulations) product containing NR Product in ready to drink and
loose powder format currently sold under the NHSc Brands (defined
below), which may include Active Nutrition products. Functional
Food and Beverages do not include Sports Nutrition.
“NHSc Brands”
shall mean the existing brands of Buyer or its affiliates set forth
in Exhibit B – NHSc
Brands (Exhibit
B is hereby incorporated herein in full by this reference)
as well as (i) any other existing brands acquired by Buyer during
the Term within the Approved Product Categories and (ii) any new
brands created by Buyer within the Approved Product Categories,
subject to the approval of Seller, such approval not to be
unreasonably withheld or delayed.


 


Functional
Food and Beverages Extensions” shall mean a Protein
Based product containing NR Product sold under the NHSc Brands that
is in a format other than ready to drink or loose
powder.

 


“Good
Manufacturing Practices” shall mean current and any
future good manufacturing practices and quality system regulations
set forth by the United States Food and Drug Administration
(“USFDA”), and
if the Approved Product is manufactured or sold outside of the
Unites States, the current and any future good manufacturing
practices and quality system regulations set forth by the USFDA or
higher standards if and as applicable in the country in which the
Approved Product is manufactured or sold.

 


“Gross
Sales Price” shall mean all invoiced sales of Approved
Products without offset, deduction, or allowances.

 


“Licensed
Materials” shall mean any advertising, marketing,
promotional, and/or merchandising materials and artwork prepared by
ChromaDex and provided to Buyer. There is no obligation for
ChromaDex to create or provide Licensed Materials. Licensed
Materials may or may not display ChromaDex Trademarks and may or
may not be provided to Buyer by ChromaDex, in ChromaDex’s
sole discretion.

 


“Launch”
shall mean first bona fide commercial sale of an Approved Product
in a country in the respective Sub-Territory.

 


“Martens”
shall mean the following study: Martens, C.R., Denman, B.A., Mazzo,
M.r., Armstrong, M.L., Reisdorph, N., McQueen, M.B., Chonchol,
M.B., Seals, D.R., Chronic
nicotinamide riboside supplementation is well-tolerated and
effectively elevates NAD+ in healthy middle-aged and older
adults. 2018, University of Colorado Boulder.

 


“Medical
Nutrition” shall mean (a) a specialized nutrition
product that serves as a nutritional solution for the dietary
management of a specific health condition to be used under medical
supervision; (b) a “medical food,” as defined in
Section 5(b) of the Orphan Drug Act (21 U.S.C. 360ee(b)(3)) and 21
CFR 101.9(j)(8); or (c) a “dietary food for special medical
purposes” as defined in Directive 1999/21/EC of the European
Parliament and of the Council; or (d) any food product
substantially equivalent to the preceding clause (a), (b) or (c)
under any applicable laws and regulations in any other jurisdiction
to be used under medical supervision.

 

 


“Net
Sales” shall mean the Gross Sales Price invoiced by
Buyer or its Affiliates to third parties, less only (a) any taxes
included in the Gross Sales Price, if any, and (b) Allowable
Deductions.

 

 


“NR
Product” means NR and any future revisions in salts,
formulations, or other forms.

 

 


“Protein
Based” means any functional food or beverages (not a
supplement) that lists protein as a primary nutrient in the
ingredient list under labeling regulations in the US or similar
labeling or definitional

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regulations
globally and contains at least 5 grams of protein per serving for
ready to drink products and 2 grams of protein per serving in
sachets.

 


"Reporting
Period" shall begin on the first day of each calendar
quarter and end on the last day of such calendar
quarter.

 


“Seller”
shall include ChromaDex, Inc., its Affiliates and their respective
successors and assigns.

 


“Seller’s
Technical Feasibility” shall mean when Seller, in its
reasonable judgment, determines that the NR Product would be stable
in a ready to drink format. Buyer’s Technical Feasibility and
Seller’s Technical Feasibility may sometimes be referred to
collectively as “Technical
Feasibility”.

 


“Specification”
shall mean the description of the NR Product set forth on
Exhibit C – Product
Specifications (Exhibit C is hereby
incorporated herein in full by this reference). The Specifications
may be amended from time to time by ChromaDex upon
[...***...] prior written notice thereof to Buyer. Any
material modifications to the Specifications that may impact
commercialization, manufacturing, and indications for use or taste
of an Approved Product shall require the advance written approval
of Buyer, such approval not to be unreasonably withheld or
delayed.

 


“Sports
Nutrition” means product offerings formulated for and
marketed to athletes to support sports and athletic training to
optimize sports and athletic performance.

 



Sub-Territories” shall mean each of (i) North America;
(ii) Europe; (iii) Latin America (including Central America and
South America; and (iv) Asia Pacific Exceptions (as defined
below)).

 


“Sub-Territory
Reversion” is defined in Paragraph 3.6.2.

 


“Supplier
Code of Conduct” shall mean Buyer’s Responsible
Sourcing Standard as published on
https://www.nestle.com/aboutus/suppliers (or any successor URL of
which Seller is advised in advance in writing). Seller shall be
advised of and agree to any revisions to the version at such URL as
of the Effective Date hereof.

 


“Term”
shall mean the term of this Agreement, which shall commence on the
Effective Date and shall remain in effect until the expiration or
abandonment of all applicable issued patents and applicable filed
patent applications for the NR Product, unless earlier terminated
in accordance with the provisions of this Agreement.

 


“Territory”
shall mean the combination of North America, Europe, Latin America
(including Central America and South America), but excluding Asia
Pacific except for the following territories that shall be included
in the Territory: Australia, New Zealand, and Japan only
(collectively the “Asia
Pacific Exceptions”). The Territory shall be subject
to the Sub-Territory Reversion pursuant to the terms
hereof.

 


“Washington
Heart Study” shall mean ClinicalTrials.gov
Identifier: NCT03423342, which can be found at
https://www.clinicaltrials.gov/ct2/show/NCT03423342?term=nicotinamide+riboside&rank=3.

 





2.


Conditions Precedent to Grant of Rights and Execution of This
Agreement.





 


2.1
Execution of this Agreement is conditioned upon:

 




(i)

Completion
of due diligence satisfactory to both ChromaDex and Buyer;
and





 




(ii)

Receipt
of the internal approvals reasonably required by both ChromaDex and
Buyer.





 



2.2                  

By
execution of this Agreement by both Parties, both Seller and Buyer
are representing that the foregoing conditions have been
satisfied.





 


 
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3.


Supply and Exclusivity.





 




3.1

Supply.
Throughout the Term, Buyer shall exclusively purchase from Seller
and Seller shall supply to Buyer the NR Product in accordance with
the specific terms and conditions contained herein. In the event
Seller fails to timely fulfill a Purchase Order (defined below),
Buyer will provide Seller written notice thereof and Seller shall
have [...***...] to cure by fulfilling the Purchase Order.
If Seller repeatedly (at least [...***...] times in any
rolling [...***...] period) and materially fails to timely
fulfill Purchase Orders, Buyer shall not be obligated to purchase
NR Product solely from Seller.





 




3.2

Approved
Products. Seller hereby agrees
that Buyer shall be entitled to develop, manufacture, sell,
promote, import, and distribute the Approved Products using NR
Product in the Field in the Territory during the
Term.





 




3.3

Exclusivity.
Provided that Seller has not terminated exclusivity as permitted by
this Agreement (including Seller’s rights to Reversion),
Seller agrees that it shall not sell NR Product to any third party
for use in Medical Nutrition in the Field in the Territory during
the Term. In addition, Seller shall not sell Medical Nutrition
products containing NR Product in the Field in the Territory during
the Term.





 




3.4

Co-Exclusivity.
Provided that Seller has not terminated exclusivity as permitted by
this Agreement (including Seller’s rights to Reversion),
Seller agrees that it shall not sell NR Product to any third party
for use in the manufacture of any third party product sold under a
third party brand in Functional Food and Beverages in the Field in
the Territory during the Term (“Buyer’s
Co-Exclusivity”).





 




3.4.1

In
order to maintain Buyer’s Co-Exclusivity:





 




3.4.1.1

Buyer
and Seller shall meet at the beginning of each quarter during
calendar year 2019 to communicate regarding Buyer’s progress
towards commercialization.





 




3.4.1.2

Buyer shall conduct Technical Feasibility product
testing (including sensory panel testing) by [...***...] on
a Functional Food and Beverages Approved Product (the
“Consumer Product Test
Target”). If Buyer fails
to achieve Buyer’s Technical Feasibility by the Consumer
Product Test Target, Buyer shall notify Seller in writing no later
than [...***...]. If Seller provides Buyer written notice
no later than [...***...] that Seller has achieved
Seller’s Technical Feasibility after Buyer notifies Seller
that Buyer failed to achieve Buyer’s Technical Feasibility,
then Seller shall have the option to terminate Buyer’s
Co-Exclusivity upon [...***...] written notice
(“Seller’s Feasibility
Failure Option”).





 




3.4.1.3

Buyer
must Launch the Approved Products in accordance with Section 3.6.
If Buyer fails to comply with the Launch requirements and
deadlines, Seller shall have the option to exercise any of its
rights to reversion and terminate Buyer’s Co-Exclusivity in
accordance with the terms of this Agreement.





 




3.4.1.4

Buyer’s
Co-Exclusivity shall cease without notice when Buyer is no longer
required to remit Sales Fees pursuant to Section 4.3.3.2, at which
time (i) there shall be no limitation on Seller’s ability to
sell the NR Product and (ii) Buyer will no longer be subject to the
Annual Minimum Royalty requirements set forth in Section 4.3.3.4 of
this Agreement.





 




3.4.2

Buyer’s
Co-Exclusivity does not prohibit Seller from selling products
containing NR Product to consumers at any time and Buyer
acknowledges that Seller will maintain all rights to sell products
containing NR Product to consumers in Functional Food and Beverages
without limitation.






 
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3.4.3

Buyer’s
Co-Exclusivity shall not include Functional Food and Beverages
Extensions. As long as Buyer has the right to purchase NR Product
for use in Buyer’s development, manufacture, sale, promotion,
importation, and distribution of Functional Food and Beverages in a
Sub-Territory, Buyer shall have the right (although not
co-exclusive) to purchase NR Product for use in Buyer’s
development, manufacture, sale, promotion, importation, and
distribution of Functional Food and Beverages Extensions in the
same Sub-Territory. The Parties hereby acknowledge that Seller is
not prohibited from developing, manufacturing, or selling
Functional Food and Beverages Extensions equivalent products
containing NR Product.





 




3.5

Prior Existing
Obligations. Notwithstanding
Section 3.3 (Exclusivity)
and Section 3.4 (Co-Exclusivity),
prior to the Effective Date, Seller entered into certain agreements
to supply the NR Product or products containing NR Product to
certain third parties (“Prior Existing
Obligations”). A list of
such Prior Existing Obligations are attached hereto as Exhibit D -
Prior Existing Obligations (Exhibit D is hereby incorporated herein
in full by this reference). Buyer agrees that Seller’s
continued performance under the Prior Existing Obligations is not a
breach of this Agreement, provided however that Seller shall use
commercially reasonable efforts to terminate such Prior Existing
Obligations as soon as legally possible.





 




3.6

Regulatory Activities;
Sub-Territory Reversion.





 




3.6.1

Seller’s
Regulatory Activities. Buyer
and Seller acknowledge and agree that Seller is principally
responsible for performing certain regulatory activities relating
to the NR Product as set forth in this Section 3.6 and Seller
agrees to proceed diligently, in good faith, and without delay
(“Seller’s Regulatory
Activities”). To the
extent that any of Seller’s Regulatory Activities are
required by applicable governmental regulators
“Applicable
Regulators”) in order for
Buyer to launch an Approved Product in a specific Sub-Territory,
Seller’s Regulatory Activities shall be conditions to
Buyer’s launch (and any related payment) obligations for such
Approved Products (on a product by product basis in each Approved
Product Category). If Seller is unable to obtain regulatory
approval from the Applicable Regulators of any specific Approved
Product as directed and recommended by Buyer, including dosage and
regulatory categories set by Buyer, Buyer has the option to accept
the Applicable Regulators’ decision and/or guidance or,
within [...***...] of Buyer’s receipt of Applicable
Regulators’ final decision and/or guidance with respect to a
particular Approved Product in a Sub-Territory, reject it in
writing. If Buyer accepts such final decision or guidance,
Seller’s Regulatory Activities shall be deemed satisfied for
the applicable Approved Product in the applicable Sub-Territory. If
Buyer rejects Applicable Regulators’ final decision and/or
guidance with respect to a particular Approved Product in a
Sub-Territory, Seller has the right to terminate all of
Buyer’s rights to sell the applicable Approved Products in
the applicable Sub-Territory.








3.6.1.1

Functional Food and
Beverages in United States.
Buyer and Seller acknowledge that Seller has already obtained GRAS
certification self-determination with successful FDA notification
for certain Functional Food and Beverages, including vitamin
waters, protein shakes, nutrition bars, gum, chews, and powdered
beverages at a maximum level of 0.0057% by weight as consumed.
Seller has successfully completed a New Dietary Ingredient
Notification for nutritional drinks and meals to include NR use up
to 300mg/day. Within [...***...] of the execution of this
Agreement, Seller will endeavor to obtain a GRAS self-determination
without notice status for certain mutually agreed Functional Food
and Beverages to include NR use up to 500mg/day; provided however
that Buyer and Seller shall consider the daily allowable dosage in
light of intake products Buyer intends to Launch, it being
acknowledged by Buyer that the more opportunities to intake NR
Product, the lower the daily allowable usage may
result.








3.6.1.2

Medical Nutrition in
United States. Within
[...***...] after the execution of this Agreement, Seller
will use commercially reasonable efforts to obtain a GRAS
self-determination without notification status at 1,000mg/day based
on the Martens and






 



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Dollerup studies.
Within [...***...] after the publication of the Washington
Heart Study, anticipated to be completed by the end of
[...***...], Seller will use commercially reasonable
efforts to obtain a GRAS self-determination without notice status
at 2,000mg/day.




3.6.1.3

Outside United
States. Buyer and Seller shall
meet within [...***...] of the Effective Date and
periodically thereafter to arrive at a mutually agreed upon
schedule of Sub-Territories outside the United States for which
Seller will submit regulatory approval dossiers (the
“Schedule of International
Markets”). Buyer and
Seller acknowledge that Brazil, Canada, Europe and Australia are
the initial Sub-Territories on the Schedule of International
Markets. Buyer and Seller shall exchange information as appropriate
to facilitate the parties’ efforts to obtain regulatory
approvals, which might include scientific information to help
accelerate the process.





 




3.6.2

Sub-Territory
Reversion.








3.6.2.1


North America.








3.6.2.1.1

Functional Food and
Beverages. If Buyer fails to
Launch a Functional Food and Beverages Approved Product in North
America within [...***...] of the Effective Date (the
“NA
Functional Food and Beverages Reversion Period”), all co-exclusivity rights of Buyer with
respect to North America for such Approved Product Category shall
terminate and there shall be no limitation on Seller’s
ability to sell NR Product in North America in such Approved
Product Category after such termination (the
“NA
Functional Food and Beverages Reversion”).








3.6.2.1.1.1

Reversion;
Termination. Buyer can avoid
the NA Functional Food and Beverages Reversion and extend its
co-exclusivity rights for [...***...] (the
“NA
FF&B Co-Exclusivity Extension”) if Buyer pays to Seller the equivalent of
the Approved Product Launch Fee for Functional Food and Beverages
for North America for such [...***...] (the
“NA
FF&B Reversion Fee”).
The NA FF&B Reversion Fee must be received by Seller prior to
the expiration of the NA Functional Food and Beverages Reversion
Period in order for Buyer to exercise the NA FF&B
Co-Exclusivity Extension. The NA FF&B Exclusivity Extension may
be exercised only once. If Buyer elects not to remit such NA
FF&B Reversion Fee, Buyer’s co-exclusivity for Functional
Food and Beverages in North America shall terminate and Seller
shall have the option to terminate all of Buyer’s rights to
sell Functional Food and Beverages Approved Products containing the
NR Product within North America (the “NA FF&B
Termination”) as its sole
and exclusive remedy. Seller shall have [...***...] after
Buyer’s failure to pay the NA FF&B Reversion Fee to
determine whether Seller is exercising the NA FF&B Termination.
Seller shall provide the NA FF&B Termination notice in
writing.






 




3.6.2.1.2

Medical
Nutrition. If Buyer does not
Launch a Medical Nutrition Approved Product in North America within
[...***...] of the Effective Date (the
“NA
Medical Nutrition Reversion Period”), all exclusivity rights of Buyer with
respect to North America for such Approved Product shall terminate
and there shall be no limitation on Seller’s ability to sell
NR Product into Medical Nutrition in North America after such
termination (the “NA Medical Nutrition
Reversion”).








3.6.2.1.2.1

Reversion;
Termination. Buyer can avoid
the NA Medical Nutrition Reversion and extend its exclusivity
rights for [...***...] (the “NA MN Exclusivity
Extension”) if Buyer pays
to Seller the equivalent of the Approved Product Launch Fee for
Medical Nutrition for North America for such [...***...]
(the “NA MN Reversion
Fee”). The NA MN
Reversion Fee must be received by Seller prior to the expiration of
the NA Medical Nutrition Reversion Period in order for Buyer to
exercise the NA MN





 


 
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Exclusivity
Extension. The NA MN Exclusivity Extension may be exercised only
once. If Buyer elects not to remit such NA MN Reversion Fee,
Buyer’s exclusivity for Medical Nutrition in North America
shall terminate and Seller shall have the option to terminate all
of Buyer’s rights to sell Medical Nutrition Approved Products
containing the NR Product within North America (the
“NA MN
Termination”) as its sole and exclusive remedy. Seller
shall have [...***...] after Buyer’s failure to pay
the NA MN Reversion Fee to determine whether Seller is exercising
the NA MN Termination. Seller shall provide the NA MN Termination
notice in writing.

 




3.6.2.1.3

The NA Functional Food and Beverages Reversion
Period and the NA Medical Nutrition Reversion Period shall be
collectively referred to herein as the “NA Reversion
Period” and the NA
Functional Food and Beverages Reversion and the NA Medical
Nutrition Reversion shall be collectively referred to herein as the
“NA
Reversion”.





 




3.6.2.2

International.
If Buyer does not Launch an Approved Product in an Approved Product
Category in Europe, Latin America and/or Asia Pacific within
[...***...] of the Effective Date (the
“Sub-Territory Reversion
Period”), all
co-exclusivity rights in Functional Food and Beverages and all
exclusivity rights in Medical Nutrition with respect to the
relevant Sub-Territory shall terminate and there shall be no
limitation on Seller’s ability to sell NR Product in the
relevant Sub-Territory in such Approved Product Category after such
termination (the “Sub-Territory
Reversion”).








3.6.2.2.1.1

Reversion;
Termination. Buyer can avoid
the Sub-Territory Reversion and extend its co-exclusivity or
exclusivity rights, as applicable, for [...***...] (the
“Sub-Territory
Extension”) if Buyer pays
to Seller the equivalent of the Approved Product Launch Fee per
Approved Product Category for the relevant Sub-Territory for such
[...***...] (the “Sub-Territory Reversion
Fee”). The Sub-Territory
Reversion Fee must be received by Seller prior to the expiration of
the Sub-Territory Reversion Period in order for Buyer to exercise
the Sub-Territory Extension. The Sub-Territory Extension may be
exercised only once. If Buyer elects not to remit such
Sub-Territory Reversion Fee, Buyer’s co-exclusivity rights
for Functional Food and Beverages and its exclusivity rights for
Medical Nutrition shall terminate in the relevant Sub-Territory and
Seller shall have the option to terminate all of Buyer’s
rights to sell the Approved Products containing the NR Product
within the relevant Category and Sub-Territory (the
“Sub-Territory
Termination”) as its sole
and exclusive remedy. Seller shall have [...***...] after
Buyer’s failure to pay the Sub-Territory Reversion Fee to
determine whether Seller is exercising the Sub-Territory
Termination. Seller shall provide the Sub-Territory Termination
notice in writing.








3.6.2.3

The NA Reversion and Sub-Territory Reversion shall
collectively be referred to herein as the
“Reversions.”
The NA FF&B Reversion Fee, NA MN Reversion Fee and
Sub-Territory Reversion Fee shall collectively be referred to
herein as the “Reversion
Fees”.








3.7

Reservation of
Rights. Other than the
specifically enumerated, limited exclusivity and co-exclusivity
rights sets forth in this Agreement, Seller is entitled to develop,
manufacture, sell, promote, import, and distribute any items,
products, materials, and rights in its sole discretion. Any rights
not specifically granted to Buyer are hereby reserved to
Seller.








3.8

Recall and Termination
Under A Recall. If any Approved
Products are at any point during the Term subject to a Class I
product recall and are likely to cause serious health problems or
death requiring notification by the USFDA, ChromaDex has the right
to direct Buyer to refrain from selling or distributing the
affected Approved Products until the situation is resolved to
ChromaDex’s reasonable satisfaction, and without liability to
NHSc therefor.






 



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4.


Ordering, Purchase Price and Payment.






 




4.1

Forecasts.
Buyer shall provide to Seller a good faith projection or estimate
of the quantity of NR Products that Buyer may order each month for
a [...***...] period (the “Forecast”). The first
[...***...] of the Forecast shall be binding (the
“Binding
Forecast”) and reflected
in the Purchase Order (defined below) with the remaining
[...***...] constituting a rolling Forecast which shall be
an estimate only of Buyer’s production requirements and not a
firm order for the NR Products. Seller will maintain sufficient
inventory and manufacturing capacity to produce up to
[...***...] percent ([...***...]%) of Buyer’s
estimated purchases for the Forecast period.






 




4.2

Purchase
Orders. Buyer agrees to submit
to Seller a binding purchase order, which will specify, among other
things, (i) the quantity of NR Product ordered and (ii) the
delivery date (the “Purchase
Order”) at least
[...***...] in advance of any required NR Product delivery
date. All NR Product will be made available for pick up at
Seller’s designated facility (“Seller’s
Facility”). Each Purchase
Order will not vary by more than [...***...] percent
([...***...]%) from the applicable Binding Forecast. Any
terms contained in any Purchase Order which are inconsistent with
the terms of this Agreement, shall be excluded and are of no force
and effect. In the event of a conflict
between the terms of this Agreement and a Purchase Order, the terms
of this Agreement shall prevail. Seller shall confirm to Buyer the receipt of each
Purchase Order within [...***...] after receipt and provide
to Buyer the dates by which Seller will deliver the NR Products to
Seller’s Facility. Legally binding obligations for the
purchase of NR Products will be created when Buyer submits the
Binding Forecast. Seller will fulfill Purchase Orders within the
requested timeframe (barring any Force Majeure Events). The minimum
purchase order quantity shall be [...***...]kg and minimum
pack size shall be [...***...]kg. The NR Product shall have
a minimum remaining shelf life of [...***...] upon
availability at Seller’s Facility.






 




4.3

Purchase
Price. Buyer shall pay to
Seller the following Fees:






 




4.3.1

Exclusivity
Fee. In exchange for the
exclusivity and co-exclusivity set forth in this Agreement, Buyer
shall pay to Seller within [...***...] of the Effective
Date a one-time, non-refundable payment of Four Million United
States Dollars (US$4,000,000.00) (the “Exclusivity
Fee”).






 




4.3.2

Approved Product Launch
Fees. Following the Launch of
the first Approved Product in the respective Approved Product
Category in a country in the respective Sub-Territory, Buyer shall
pay to Seller within [...***...] following the relevant
Launch a one-time, non-refundable payment in the amounts set forth
below (“Approved Product Launch
Fees”):






 


 


	


Approved Product

	


North America

	


Europe

	


Latin America

	


Asia Pacific


 


	

Functional
Food and Beverages

	

US$[...***...]

	

US$[...***...]

	

US$[...***...]

	

US$[...***...]


	

Medical
Nutrition

	

US$[...***...]

	

US$[...***...]

	

US$[...***...]

	

US$[...***...]







 


For
the avoidance of doubt, Approved Product Launch Fees are only
payable once per Approved Product Category and Sub-Territory, i.e.
the maximum Approved Product Launch Fees under this Agreement in
the event the Buyer launches one or several Approved Medical
Nutrition product and one or several Approved Functional Foods and
Beverages product in each Sub-Territory is maximum
US$6,000,000.00.



 

 
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4.3.2.1

The
Reversion Fees are separate and apart from the Approved Product
Launch Fees and payment of a Reversion Fee, if any, shall not be
applicable against the Approved Product Launch Fees. The Approved
Product Launch Fees shall not be applicable against the Exclusivity
Fee, any Sales Fees (defined below), or any Annual Minimum
Royalty.






 




4.3.3

NR Product
Fees.  The purchase price of the NR Product
purchased by Buyer from Seller pursuant to the Purchase Orders
shall be calculated as follows:






 




4.3.3.1

[...***...] United States Dollars per
kilogram (US$[...***...]/kg) for purchase orders placed in
2018 and 2019 (the “KG Price”). The KG Price for future years will be
mutually determined by the Parties and agreed to in advance in
writing by both parties; plus






 




4.3.3.2

A percent of the Net Sales of Approved Products
sold by Buyer as set forth below (the “Sales Fees”) (for purposes of clarification, this
is for all Approved Products and not per Approved
Product Category) :






 


 


	

 



Cumulative worldwide Annual Net Sales:

	

 



Sales Fee:


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)


	

 



[...***...]

	

 



[...***...] Percent ([...***...]%)







 




4.3.3.3

The Sales Fees will be calculated based on
cumulative worldwide gross Net Sales per each calendar year. The
first calendar year of the Agreement shall be deemed to be the
Effective Date through December 31, 2019. Thereafter, each calendar
year shall commence on January 1st
and end on December
31st.






   



4.3.3.4

Commencing twenty four (24) months after Buyer has
Launched an Approved Product in the relevant category
(“Royalty Year
1”), Buyer will pay
Seller the following minimum royalties on an annual basis for such
Approved Product Category as indicated below (the "Annual Minimum
Royalty"):






 


	

 



Royalty Year*

	

 



Functional Food and Beverages Category: Annual Minimum
Royalty


 

	

 



Medical Nutrition Category: Annual Minimum



Royalty


	

 



[...***...]

	

 



[...***...]

	

 



[...***...]







 


   
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[...***... ]

	

 



[...***...]

	

 



[...***...]







 






* The
Annual Minimum Royalty shall be prorated for any partial calendar
year.

   









4.3.3.5

Sales
Fees shall be due quarterly and shall be payable within
[...***...] of Buyer’s receipt of an invoice from
Seller reflecting the Sales Fee amount set forth in the sales
report for such period submitted by Buyer pursuant to Section 5.2
of this Agreement.








4.3.3.6

Sales
Fees payable on Net Sales of Approved Products will be applicable
against and offset only against the Annual Minimum Royalty. If the
total Sales Fees for any calendar year exceed the combined Annual
Minimum Royalty due for all Approved Product Categories in which an
Approved Product has been launched, no additional Annual Minimum
Royalty shall be due for that calendar year.








4.3.3.7

In the event that the Sales Fees are less than the
Annual Minimum Royalties, Buyer shall pay the difference between
the total Annual Minimum Royalty in all Approved Product Categories
in which an Approved Product has been launched combined less the
amount of Sales Fees received by Seller for the relevant calendar
year (the “Sales Fee True
Up”). The Sales Fee True
Up shall be paid within [...***...] of the end of relevant
calendar year. In the event that Buyer does not pay Seller the
Annual Minimum Royalty in a particular calendar year, Buyer will
lose all exclusivity and co-exclusivity rights with respect to NR
Product, products containing NR Product, and uses thereof and
Seller shall have the option to terminate all of Buyer’s
rights to sell the Approved Products in the Sub-Territory for which
the Annual Minimum Royalty was not paid (“Annual Minimum Royalty
Termination”).








4.3.3.8

The Sales Fees set forth in clause 4.3.3.2 above
will be reduced by an amount equal to [...***...] percent
([...***...]%) of such Sales Fees with respect to an
Approved Product in each country in the Territory if for the
applicable calendar quarter there is a product that (a) contains NR
and (b) is either (i) a Functional Food or (ii) a Medical Nutrition
product, has been approved by the applicable regulatory authority
and is being sold in such country by a Third Party (a
“Competing
Product”).
Notwithstanding the foregoing, such [...***...] percent
([...***...]%) reduction to the Sales Fees will not apply
if and for so long as unit sales of Competing Products in such
country are lower than (i) [...***...] percent
([...***...]%) of the units of Buyer’s sales in the
corresponding period in such country or (ii) [...***...]
percent ([...***...]%) of the units of Buyer’s sales
in the corresponding period in such country if Seller has brought
an action in a court of competent jurisdiction challenging such
Competing Product. No Annual Minimum Royalties or Sales Fees on the
Net Sales of Approved Products sold by Seller to Buyer are due with
respect to any given Sub-Territory after the expiration, final invalidation or abandonment
of all of Seller’s applicable issued patents and
applicable filed patent applications for the NR Product in such
Sub-Territory, or when Seller no longer has the right to sell the
NR Product in such Sub-Territory.





 




4.3.3.9

The
KG Price shall be due [...***...] after the date of
shipment of NR Product based on each Purchase Order (and
corresponding with Seller’s invoice date). The Sales Fees
shall be due within [...***...] after the last day of each
calendar quarter. In the event that, after first sale of an
Approved Product, there are no sales made during a given calendar
quarter, Buyer shall provide ChromaDex with a statement within
[...***...] after the last day of such quarter reporting
that no sales were made during such quarter.





 




4.3.3.10

  In
the event Buyer, via benchmarking, can demonstrate a gap between
the price being






charged
by Seller and the competition or market price, or the price
movement and the market price movement, for NR Products in
comparable quality and quantity, Buyer and Seller will meet to
discuss ways to remedy the situation. Further the Seller agrees not
to sell or supply NR Products to any third party at a price lower
than the applicable price charged to Buyer for the same volume of
NR Products.


 


 
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4.4

Payments.








4.4.1

Late Payments.
Failure to make prompt and full
payment of undisputed amounts hereunder constitutes a material
breach of this Agreement and to take the measures as set forth in
Section 15.2 of this Agreement. Buyer has no right of setoff. If
full payment is not made when due, Seller shall be entitled to
interest on any amount unpaid at the rate of [...***...]
percent ([...***...]%) per [...***...] or the
maximum rate permissible by applicable law until Seller receives
payment in full. In addition, if any amount payable to Seller is
not received by Seller within [...***...] of the due date,
Buyer agrees to reimburse Seller for any and all commercially
reasonable out-of-pocket expenses Seller may incur, including
reasonable attorneys' fees, in taking any action to obtain such
overdue payments contemplated by this Section.






 




4.4.2

Method of
Payment. All payments under
this Agreement should be made payable to "ChromaDex, Inc." and sent
via wire transfer as indicated below. Each payment should reference
this Agreement and identify the obligation under this Agreement
that the payment satisfies. Buyer shall remit payment to the
following account (or such other accounts(s) as ChromaDex may
specify in writing):






	

 


ChromaDex,
Inc.


Attention:
[...***...]


Account
# [...***...]


ABA#:
[...***...]


Bank:
[...***...]


Address:
[...***...]


Address:
[...***...]


 


Remittance detail
for wire


transfers must also
be sent either


by fax
or e-mail to:


Fax:
[...***...], Attention:


[...***...]


E-mail:
[...***...]

	
 


	
 

	
 









4.4.3

Payments in U.S.
Dollars.    All payments due under
this Agreement shall be drawn on a United States bank and shall be
payable in United States dollars. Conversion of foreign currency to
U.S. dollars shall be made at the conversion rate existing in the
United States (as reported in the Wall Street Journal) on the last
working day of the calendar quarter of the applicable Reporting
Period. Such payments shall be without deduction of exchange,
collection, or other charges, and, specifically, without deduction
of withholding or similar taxes or other government imposed fees or
taxes, except as permitted in the definition of Net Selling
Price.





 





5.


REPORTS AND RECORDS.





 


        5.1    Progress
Reports.   


 




5.1.1

Within
[...***...] after the Effective Date (and an updated
version [...***...] thereafter), Buyer shall furnish
ChromaDex with a high level research and development plan
describing the major tasks to be achieved in order to bring to
market an Approved Product (including updates and progress and
regulatory milestones achieved for the prior report). Such plans
can be written or consist of conversations between NHSc and
ChromaDex’s scientific and project management
representatives.

      










5.1.2

Before First
Commercial Sale.  Prior to the first Launch of the
first Approved Product, Buyer shall deliver reports to ChromaDex
[...***...], within [...***...] of the end of each
[...***...], containing reasonably detailed high level
information concerning











 











 









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the immediately preceding [...***...],
regarding Buyer’s progress towards commercialization
including, but not limited to, progress towards regulatory
approvals. In addition, Seller will provide Buyer with
[...***...] updates on status and progress of the Seller
Regulatory Obligations and any related regulatory approvals that
Seller is undertaking that may impact Buyer’s launch plans
for each territory.  







 








5.1.3

 Upon First Commercial
Sale of an Approved Product. Buyer shall report to ChromaDex the date of
first commercial sale of each Approved Product in each
Sub-Territory within [...***...] of
occurrence.








5.2

Sales
Reports.   








5.2.1

After
the first commercial sale of each Approved Product, Buyer shall
deliver reports to ChromaDex within [...***...] of the end
of each Reporting Period, containing information concerning the
immediately preceding Reporting Period.








5.2.2

Each
report delivered by Buyer to ChromaDex shall contain sufficient
detail to permit confirmation of the accuracy of the Sales Fee for
such period, including the following information for the
immediately preceding Reporting Period only to the extent that such
information may be applicable to such Reporting Period and shall be
in a form as mutually agreed by the parties:








(i)

the
number of Approved Products sold by Buyer and its Affiliates to
independent third parties in each Sub-Territory of the
Territory;








(ii)

the
Gross Sales Price charged by Buyer and its Affiliates for each
Approved Product in each Sub-Territory of the Territory (for the
total Gross Sales Price of each Approved Product sold by
Buyer);








(iii)

calculation
of Net Sales for each Approved Product for the applicable Reporting
Period in each Sub-Territory of the Territory, including a listing
of Allowable Deductions and allowed taxes; and








(iv)

total
Sales Fee due in U.S. dollars, together with the exchange rates
used for conversion.








5.3

Records, Audit, and
Payment.   Buyer
shall maintain, and shall cause its Affiliates if and as
applicable, to maintain, complete and accurate records relating to
the rights and obligations under this Agreement and any amounts
payable to ChromaDex in relation to this Agreement, which records
shall contain sufficiently clear and detailed information to permit
ChromaDex to confirm the accuracy of any reports delivered to
ChromaDex and compliance in all other respects with this Agreement.
The relevant party shall retain such records for at least
[...***...] following the end of the calendar year to which
they pertain, during which time ChromaDex, or ChromaDex's appointed
agents, shall have the right, at ChromaDex's expense, to inspect
such records during normal business hours to verify any reports and
payments made or compliance in all other respects under this
Agreement. Requests for an audit shall be made in writing. The
audit shall occur within [...***...] after receipt of such
written request. In the event that any audit performed under this
Section reveals an underpayment in excess of [...***...]
Dollars ($[...***...]), Buyer shall bear the full
reasonable cost of such audit and shall correct any errors and
omissions disclosed by such audit and remit any amounts due to
ChromaDex within [...***...] of receiving notice thereof
from ChromaDex.






 





6.

Taxes
and Import Duties. The KG Price
does not include federal taxes, state or local sales taxes, use
taxes, occupational taxes or import duties, all of which are the
obligation of Buyer. Unless prohibited by law, Buyer is responsible
for and shall pay all applicable sales, use, occupational, excise,
value added or other similar taxes or import duties applicable to
the manufacture, sale, price, delivery or use of the NR Product
provided by Seller, or in lieu thereof, Buyer shall provide Seller
with a tax-exemption certificate acceptable to and considered valid
by the applicable taxing authorities.






 



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7.

Delivery
and Risk of Loss. Shipping
terms for the Products are FOB Seller’s Facility. Seller
shall bear all risk of loss or damage to NR Products until the NR
Products are tendered to Buyer or its carrier for shipment at
Seller’s Facility. Seller shall also assume full
responsibility for any loss or damage to NR Products in the care,
custody, or control of Seller until such time as title to the NR
Product passes. Title shall pass at the time the NR Products are
tendered to Buyer or its carrier for shipment at Seller’s
Facility. At such time as title passes Buyer shall be fully
responsible and shall hold Seller harmless for and assume all risk
for any loss, destruction, or damage to the NR Product. Seller
reserves the right to pack orders in the most economical manner,
provided that this does not result in increased risk of loss of the
NR Product. However, where Buyer requests special packaging or
shipping, any additional cost will be billed to and be the
responsibility of Buyer. Buyer acknowledges that, subject to
Section 9 of this Agreement, Seller cannot accept returns, unless
they do not meet the applicable Specifications or are otherwise
defective and Seller is notified in writing within
[...***...] of the delivery date of such defect or failure
to meet applicable Specifications.





 





8.

Delivery
Delays. Seller shall use
commercially reasonable efforts to make the NR Products available
to Buyer on or before the delivery date set forth in the relevant
Purchase Order. Delivery dates and estimates are, however, subject
to Force Majeure Events. Once the NR Products are available for
Buyer’s pick up, Buyer shall pick up and remove the NR
Products promptly from Seller’s Facility, however in no event
shall Buyer delay or defer pick up for more than
[...***...].





 





9.

Rejection
and Revocation of Acceptance.
Any rejection or revocation of acceptance of NR Product by Buyer
that is based on initial inspection of the NR Product must be made
within [...***...] of delivery of NR Product to Buyer. All
shipments of NR Product shall be tested and inspected by Buyer
during such [...***...] period. Rejection or revocation of
acceptance of NR Product by Buyer shall be based the failure of NR
Product to conform to the Specifications or any other
representation, warranty or obligation set forth in this Agreement
(including the exhibits hereto) in any material respect. Any
attempted rejection or revocation of acceptance of such NR Product
made thereafter shall be null and void except for any latent
defects that Buyer did not detect after a reasonable initial
inspection and acceptance. Each shipment hereunder is to be
regarded as a separate and independent sale.





 





10.

Obligations.





 




10.1

The
identities of Seller’s suppliers are a proprietary trade
secret of Seller. All information regarding Seller’s
suppliers and their quality standards released to Buyer shall be
kept strictly confidential in accordance with the requirements
herein. Buyer acknowledges and agrees that Buyer will not contact
ChromaDex's supplier(s) in connection with the manufacture,
distribution, purchase, pricing, or sale of NR, NR Product, or any
other NR or NR Product precursor or otherwise as indicated in
further detail in the Non-Solicitation, Non-Competition, and
Non-Circumvention provision herein.








10.2

Buyer
shall not sell Approved Product other than in the Field in the
Territory








10.3

Approved
Product must contain a minimum of [...***...]mg of NR
Product per serving (unless Buyer and Seller agree otherwise in
advance in writing) and comply with the New Dietary Ingredient
(NDI) Notifications submitted by Seller to the FDA on August 20,
2015 and filed by the FDA on November 3, 2015 and submitted by
Seller to the FDA on December 27, 2017 and filed by the FDA on
March 7, 2018.








10.4

Buyer
may not re-sell or re-ship the NR Product to a third party (other
than an Affiliate or a co-manufacturer appointed by Buyer) in bulk
raw material form, unless expressly authorized to do so in advance
in writing by Seller.








10.5

For
U.S. distribution, on or in labels, packaging, advertising,
promotional materials or Internet communications for Buyer’s
Approved Product, Buyer will only make claims that in Buyer’s
commercially reasonable assessment are substantiated by competent
and reliable scientific evidence, and are in compliance with all
applicable laws, rules, statutes, and regulations. Buyer will not
misrepresent on product labels the amount, quantity or level of the
NR Product contained in the Approved Product. Buyer hereby
guarantees compliance with the requirements of this Section 10,
specifically including compliance with current Good







 

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Manufacturing
Practices as set forth in 21 CFR Section 111 and other relevant
rules, regulations, statutes, and laws. In the event that current
labeling, packaging or formulations of the Approved Product do not
comply with the requirements of this Section 10, Buyer will
promptly rectify all nonconforming Approved Product in a manner
reasonably acceptable to Seller and at Buyer’s sole cost and
expense.








10.6

Patent
Marking. During the Term, Buyer will ensure proper patent marking
on all Approved Product. All Approved Product shall be marked as
negotiated and agreed upon by the parties in good
faith.








10.7

Trademark
Marking. During the Term, Buyer
will ensure proper trademark marking on all Approved Product that
includes a ChromaDex Trademark as set forth in this
Agreement.






 





11.

ChromaDex
Trademarks. Provided that Buyer is not in material breach of
this Agreement, ChromaDex hereby grants Buyer a fully paid-up,
royalty-free, non-exclusive, non-sublicensable (other than to its
Affiliates) right and license to use the ChromaDex Trademarks only
as provided below:








11.1

Buyer agrees to use the ChromaDex Trademarks in
accordance with this Section, and in accordance with
ChromaDex’s Brand Usage Guidelines. The parties shall negotiate and agree upon in good
faith the display (prominence and location) of the ChromaDex
Trademarks on Approved Product labels and marketing
materials.








11.2

For the avoidance of doubt, ChromaDex rights in
accordance with this Section are limited to solely
the right to review if the ChromaDex Trademarks are being used by
Buyer in accordance with this Agreement. ChromaDex has no right to
control the content of any promotional
material.








11.3

Buyer agrees to include the ChromaDex Trademark
“TRU NIAGEN®
on the product packaging (with the
exception of small product formats like sachets). Any use of the
ChromaDex Trademarks and other proprietary markings and notices of
ChromaDex by Buyer shall be consistent with ChromaDex’s Brand
Usage Guidelines.








11.4

All
use of ChromaDex Trademarks and any related goodwill will all inure
to ChromaDex’s benefit.








11.5

Any
use of the ChromaDex Trademarks by Buyer outside the scope of
ChromaDex’s Brand Usage Guidelines or any use of the
ChromaDex Trademarks that are not used for labeling, packaging,
marketing and advertising of the Approved Products in the ordinary
course (e.g. press releases) require the prior written approval of
Seller.








11.6

Subject
to the limitations set forth above, Buyer agrees to abide by
ChromaDex’s reasonable written ChromaDex Brand Usage
Guidelines as issued and provided to Buyer from time to time. In
any case where the ChromaDex Trademarks are not used in compliance
with ChromaDex’s trademark policies, Buyer will as soon as
reasonably commercially practical correct the non-compliance and
submit samples of compliant use to ChromaDex for prior written
approval.








11.7

The
Approved Products will be marketed by Buyer under a trade name or
trademark to be determined by Buyer in its sole discretion, subject
to the obligation that Buyer will not use confusingly similar marks
or trade dress as compared to the ChromaDex Trademarks (and
ChromaDex also agrees not to use confusingly similar marks or trade
dress as compared to Buyer trademarks or trade dress).








11.8

ChromaDex has the right to supervise the
Buyer’s use of the ChromaDex Trademarks with respect to the
nature and quality of the Approved Products to ensure that any such
trademarks are used by Buyer pursuant to this Agreement. During the
Term, without limitation, Buyer agrees to use the ChromaDex Trademarks on and only in
connection with the Approved Products in strict accordance with
this Agreement.








11.9

Buyer
agrees to always use a ChromaDex Trademark accompanied by an
appropriate noun as shown in ChromaDex’s Brand Usage
Guidelines. Buyer further agrees that Buyer shall not use any
ChromaDex Trademarks as a noun and that Buyer shall not pluralize,
make possessive, abbreviate, or join any ChromaDex Trademark to
other words, symbols, or numbers, either as one word or with a
hyphen.








11.10

Buyer
shall always use the proper spelling and the proper trademark
symbol for the ChromaDex Trademarks in accordance with
ChromaDex’s Brand Usage Guidelines.







 

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11.11

Buyer
shall attribute ownership of all ChromaDex Trademarks to ChromaDex
by using the TM, SM, or ® symbol (as indicated in
ChromaDex’s Brand Usage Guidelines) and by using the
trademark attribution on all marketing and collateral materials for
the Approved Product as indicated in ChromaDex’s Brand Usage
Guidelines or as otherwise mutually agreed in writing by the
Parties. For the trademark symbol, the superscript or subscript
mode is preferred, but if it is not available, use parentheses:
(TM), (SM) or (R).








11.12

Buyer
may not incorporate Buyer’s and/or any other third party mark
into any ChromaDex Trademark nor may Buyer integrate any ChromaDex
Trademark into any of Buyer’s own trademarks, logos, or
designs. Buyer shall not alter, make puns on, or modify the
ChromaDex Trademarks in any way, nor may Buyer use and/or adopt any
marks or logos that are confusingly similar to or that dilute any
ChromaDex Trademarks.








11.13

Buyer
shall not use any ChromaDex Trademark in any manner that creates
confusion as to the source, sponsorship, or association of
Buyer’s products and/or site or facility with ChromaDex or,
that in any way indicates to the public that Buyer is a division or
Affiliate, or franchisee of ChromaDex or otherwise related to
ChromaDex. Buyer may not use or display any ChromaDex Trademarks on
Buyer’s invoices, bills, shipping memos, and/or letterhead,
and Buyer may not incorporate any ChromaDex Trademarks into any
company name or product name.








11.14

Buyer
shall not re-use, copy, modify, and/or counterfeit packaging
associated with any ChromaDex product. To do so will constitute a
material breach of this Agreement and ChromaDex shall have the
right to terminate this Agreement. ChromaDex further reserves all
rights to pursue any and all remedies available to it as a result
of Buyer’s selling and/or manufacturing any remarked,
counterfeited, copied, re-used, modified ChromaDex Trademark,
ChromaDex product, and/or ChromaDex product packaging.








11.15

Buyer
shall not use any ChromaDex Trademarks on any promotional material
created by Buyer in close proximity to non- Approved Products
unless it is completely clear that the ChromaDex Trademark is being
used and associated solely with the appropriate Approved Product.
Buyer agrees to take all steps necessary to avoid creating the
false impression that ChromaDex is in any way the source, sponsor,
or licensor of any product that is not an Approved
Product.








11.16

Buyer
shall not use or display any ChromaDex Trademarks in any manner
that may disparage ChromaDex, its products or services, or for
promotional goods or for products which, in ChromaDex’s sole
discretion may diminish or otherwise damage ChromaDex’s
goodwill in any ChromaDex Trademarks, including but not limited to,
uses which could be deemed to be obscene, pornographic, excessively
violent, or otherwise in poor taste or unlawful, or which purpose
is to encourage unlawful activities.








11.17

Notwithstanding
any of the foregoing, Buyer is not prohibited from making textual,
non-logo use in advertising, promotional materials, and invoices of
ChromaDex product names to refer to ChromaDex products that Buyer
is selling, so long as such product names are used properly as
trademarks with the appropriate trademark symbol and attribution
legend as required by ChromaDex’s Brand Usage
Guidelines.








11.18

All
Approved Product shall conform with the requirements herein,
including, but not limited to, ChromaDex’s Brand Usage
Guidelines. Approved Product labels must be submitted to Seller
prior to launch and approved by Seller in advance in writing as to
the use of ChromaDex’s Trademarks. Seller will not
unreasonably withhold approval. If Seller does not reject a
submitted label within [...***...], such label is deemed
accepted. Seller shall indicate to Buyer Seller’s reasons for
withholding approval which must be consistent with the requirements
set forth in this Agreement. Buyer at Buyer’s sole cost and
expense shall ensure all Approved Product labels meet all
applicable laws, rules, statutes, and regulations and all of
Seller’s requirements for approval set forth in this
Agreement.






 





12.

Buyer
Diligence Obligations. Buyer
shall use commercially reasonable diligent efforts, or shall cause
its Affiliates to use commercially reasonable diligent efforts, to
develop Approved Products and to introduce Approved Products into
the commercial market; thereafter, Buyer or its Affiliates shall
make Approved Products reasonably available to the public.
   






 



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13.

NR
Trade Secret Use. In
connection with the rights granted herein, Buyer needs access to
certain clinical and non-clinical data, agreements, and know-how
with respect to NR, NR Product, and uses thereof (collectively the
“NR
Trade Secrets”). Buyer
acknowledges that as between Buyer and Seller, Seller owns all
right, title and interest in and to the NR Trade Secrets. Neither
Buyer nor any of its Affiliates will contest Seller’s sole
ownership and control over the NR Trade Secrets. Seller hereby
agrees to make certain current and future NR Trade Secrets, in
Seller’s sole discretion, available to Buyer solely for
Buyer’s use to develop, manufacture and sell the Approved
Products (the “Disclosure
Purpose”). Except for the
Disclosure Purpose, Buyer hereby agrees that Buyer shall not use or
disclose the NR Trade Secrets. Buyer shall be entitled to share
portions of the NR Trade Secrets with its Affiliates on a need to
know basis provided that such Affiliates sign a confidentiality and
non-disclosure agreement at least as restrictive as this Agreement.
Upon expiration or earlier termination of this Agreement for any
reason, Buyer and its Affiliates shall immediately cease use of all
NR Trade Secrets and shall return all copies in any form (digital
or otherwise) of the NR Trade Secrets to Seller within
[...***...] of Seller’s request, and neither Buyer
nor its Affiliates shall maintain any copies of any NR Trade
Secrets.






 





14.

Right
of First Negotiation. In the
event that ChromaDex, in its sole discretion, decides to
exclusively license or sell substantially all assets related to the
NR Product in the dietary supplement category (the
“Divesting
Assets”), ChromaDex shall
advise Buyer and Buyer shall have a right of first negotiation for
a period of [...***...] to acquire the Divesting Assets
under terms and conditions to be negotiated in good faith by the
Parties. If after [...***...] the Parties are unable to
reach mutually agreeable terms and conditions, ChromaDex shall have
the ability to sell or license the Divesting Assets in its sole
discretion to a third party.






 





15.

Term
and Termination.






 





15.1

Term.
This Agreement shall commence on the Effective Date and, unless
earlier terminated in accordance herewith, shall remain in full
force and effect (the “Term”). For purposes of clarification, the Sales
Fee and exclusivity and Buyer’s Co-Exclusivity (unless such
exclusivity and/or Buyer’s Co-Exclusivity have been
previously terminated pursuant to the terms hereof) shall terminate
upon the expiration of the last relevant claim of ChromaDex’s
applicable issued patents and applicable filed patents for the NR
Product. Such applicable issued patents and applicable filed
patents for the NR Product are as indicated on Exhibit F –
Applicable Issued Patents and Applicable Filed Patents for the NR
Product (as may be amended by
ChromaDex from time to time) (Exhibit F
is hereby incorporated herein in full
by this reference)









15.2

Termination.
This Agreement may be terminated by: (i) a Party for cause if the
other Party commits a material breach of this Agreement and does
not cure such breach within thirty (30) days following such
Party’s receipt of written notice reasonably detailing such
breach from the non-breaching Party; (ii) a Party immediately upon
the giving of written notice if the other Party files a petition
for bankruptcy, is adjudicated bankrupt, takes advantage of the
insolvency laws of any state, territory or country, or has a
receiver, trustee, or other court officer appointed for its
property; or, (iii) a Party if a Force Majeure Event (as described
in Section 20 of this Agreement) with respect to the other Party
shall have continued for ninety (90) days or is reasonably expected
to continue for more than one hundred eighty (180)
days.








15.3

Buyer’s Further
Termination Rights. Buyer shall
have the right to terminate this Agreement under the following
circumstance:








15.3.1

Buyer
may terminate this Agreement if Buyer’s Technical Feasibility
in desired food forms is not achieved by December 31, 2019 by
providing Seller sixty (60) days advanced written
notice;








15.3.2

After the first anniversary of this Agreement
until the twenty-fourth (24th)
month after the Launch of the first Approved Product in each
Product Category, Buyer may terminate this Agreement as to one or
both Product Categories upon the payment of the Termination Fee for
the terminated Product Category, which shall be paid promptly
following Seller’s receipt of the termination
notice;






 



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15.3.3

After the twenty-fifth (25th)
month of the Launch of the first Approved Product, Buyer may
terminate this Agreement with twelve (12) months advance written
notice. No Termination Fee shall be due.








15.3.4

The “Termination
Fee” shall be Five
Hundred Thousand Dollars (US$500,000) for each Product Category
terminated, with a cap of One Million Dollars
(US$1,000,000).








15.3.5

ChromaDex
will receive monthly updates on Buyer’s Technical Feasibility
progress and other technical data from Buyer as further detailed in
the Reports and Records Section herein and will offer reasonable
assistance to Buyer in solving technical development issues as they
arise. Seller shall have no obligation to reimburse Buyer any
amounts already due and owing and/or paid under this Agreement in
the event of a termination by Buyer pursuant to Section 15.3 of
this Agreement.






 




15.4

Effect of
Termination.    








15.4.1

Survival.    Any
payment obligation of Buyer, Buyer’s obligations under
Sections 13, 16.2, 17, 18, 21, and 22-37, and any other term of
this Agreement that by their nature are meant to survive the
termination of this Agreement, including all provisions that
contemplate continuing effectiveness, including, without
limitation, any term regarding warranty disclaimer, limitations of
liability, indemnification, intellectual property rights, governing
law/venue/prevailing party and general terms, shall so survive any
termination of this Agreement.








15.4.2

Inventory.    Upon
the early termination of this Agreement, Buyer and its Affiliates
may complete and sell any work-in-progress and inventory of
Approved Products that exist as of the effective date of
termination (unless termination is based on cause or a breach by
Buyer of ChromaDex’s intellectual property rights or
Buyer’s confidentiality rights herein), provided that
(i) Buyer pays Seller the applicable royalty on the Net Sales
or other amounts due on such sales of Approved Products in
accordance with the terms and conditions of this Agreement, and
(ii) Buyer and its Affiliates shall complete and sell all
work-in-progress and inventory of Approved Products within
[...***...] after the effective date of
termination.








15.4.3

Pre-termination
Obligations.    In no event shall
termination of this Agreement release Buyer or its Affiliates from
the obligation to pay any amounts that became due on or before the
effective date of termination.








15.4.4

Buyer’s
Post-Termination Obligations.
After the termination hereof and Buyer’s exercise of the
rights granted herein in the Inventory Section above, Buyer shall
have no further rights to use the NR Product, sell Approved
Product, or use any of the other rights granted to Buyer herein
(including, but not limited to rights to the ChromaDex Trademarks
and ChromaDex Trade Secrets). Buyer shall further return to
ChromaDex all of ChromaDex’s Confidential Information (as
defined herein).






 





16.


Representations And Warranties.






 





16.1


Seller’s Representations and Warranties.






 



Seller expressly represents and warrants that:

(a)  It
has all necessary legal capacity, right, power, and authority to
enter into, execute, deliver, and be bound by this Agreement and
that the execution and delivery of this Agreement and the
performance by Seller of Seller’s obligations under this
Agreement, do not breach, and shall not result in a breach or
violation of, any agreement to which Seller is a party or by which
Seller is bound.

(b)  Seller
is the owner of all or has the right to (i) license Buyer the
rights to use the ChromaDex Trademarks and NR Trade Secrets as
specifically set forth in this Agreement, and (ii) grant Buyer the
rights to develop, manufacture, and sell the Approved Products
using the patents listed in Exhibit F on the terms set forth in
this Agreement;

 


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(c)
All
patents that are necessary for Buyer to use the NR Product to be
supplied to Buyer in the development, manufacture, promotion,
importation, marketing, distribution and sale of Approved Products
are set forth in Exhibit F;


(d) Seller has not received any notice regarding the NR
Product, including written notice, alleging any infringement by
Seller of any intellectual property rights of a third
party;


(e)
To the best of Seller’s knowledge after due diligence and
reasonable investigation, neither Seller, its Affiliates or any
person employed thereby directly in the performance of
Seller’s obligations under this Agreement has been debarred
under Section 306(a) or (b) of the Federal Food, Drug and Cosmetic
Act, and no debarred person will in the future by employed by
Seller. If, at any time after execution of this Agreement, Seller
becomes aware that Seller, any of its Affiliates or any person
employed thereby is, or is in the process of being, debarred,
Seller will so notify NHSc immediately.


(f) No NR Product at the time of shipment by Seller will be
adulterated or misbranded within the meaning of the Federal Food,
Drug and Cosmetic Act, as amended from time to time, or regulations
promulgated thereunder, as such law or regulation is constituted
and in effect at the time of any such shipment and no NR Product at
the time of shipment will be considered to be an article that may
not, under the provisions of §§ 404, 505 or 512 of the
Federal Food, Drug and Cosmetic Act, be introduced into interstate
commerce.

(g) All NR
Product at the time furnished to Buyer and for the full period of
the expected shelf life of such products will be in full compliance
with the Specifications, the quality standards set forth in
Exhibit G
– Quality Standards (the
“Quality
Standards”)
(Exhibit G
is hereby incorporated herein in full
by this reference), applicable Law and other requirements of this
Agreement as long as Buyer’s errors, acts, omissions, or
other conduct do not cause directly or indirectly the NR Product to
become out of compliance with the Specifications, fail to meet the
Quality Standards or violate applicable law and other requirements
of this Agreement.


(h) Seller’s manufacturing, laboratory, and packaging
facilities are and will at all times remain in material compliance
with Good Manufacturing Practices, including but not limited to
those set forth in 21 C.F.R. § 110 et seq., to the extent
applicable to the manufacture and packaging of the NR Product, and
all NR Product furnished to Buyer will be manufactured in
accordance with Good Manufacturing Practices.


(i) All NR Product at the time furnished to Buyer will not
have been damaged during storage and handling and will otherwise be
wholesome, fit for human consumption, and in first-class
merchantable condition.


(j) Seller has and will maintain during the Term the
necessary expertise, equipment, personnel, facilities, equipment
and inventory of raw materials and finished product to supply the
NR Products as agreed upon in all Purchase Orders accepted by
Seller (unless Seller is unable to due to a Force Majeure
Event).


(k)
Except as otherwise advised by Seller in writing to Buyer on or
prior to the Effective Date, there is no demand, claim, suit,
action, arbitration, and/or other proceeding, whether pending or
threatened (and for which any basis exists), that jeopardizes (or
could jeopardize) Seller’s ability to enter into this
Agreement or perform any of its obligations hereunder.


(l)
It will at all times during the Term comply with all applicable
laws, rules, orders, guidelines and regulations, including the ones
regarding the following matters: anticorruption, immigration,
antidiscrimination, tax, environment, data protection, food safety
and quality, and export control, import, customs and economic
sanctions.


(m)
Have a quality management system in accordance with
Nestlé’s reasonable requirements of which Seller is
advised of and agrees to in advance in writing.

 




16.2


LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER
WARRANTIES.





 




(i)

SELLER
WARRANTS THAT THE NR PRODUCT SOLD HEREUNDER, AS DELIVERED TO BUYER,
CONFORMS, TO ITS SPECIFICATIONS; (a) EXCEPT FOR THE SPECIFIC
WARRANTIES CONTAINED IN THIS PARAGRAPH AND ELSEWHERE IN THE
AGREEMENT, SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO THE NR
PRODUCT OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING BUT
NOT





 


 
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LIMITED
TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SELLER HAS NOT MADE ANY RECOMMENDATION TO BUYER REGARDING
THE USE OR SUBSEQUENT SALE OF THE NR PRODUCT. EXCEPT FOR ANY
LIABILITIES RELATING TO NEGLIGENCE, RECKLESSNESS, WILLFUL
MISCONDUCT, OR BREACH OF THIS AGREEMENT BY SELLER (OR ITS
AFFILIATES OR CONTRACTORS) BUYER ASSUMES ALL OTHER RISKS AND
LIABILITIES FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY
RESULTING FROM THE USE OR SUBSEQUENT SALE OF THE NR PRODUCT, EITHER
ALONE OR IN COMBINATION WITH OTHER INGREDIENTS; AND (b) BUYER
WARRANTS TO SELLER THAT BUYER HAS SATISFIED ITSELF THAT THE NR
PRODUCT AND THE PURPOSE FOR WHICH IT WILL BE USED AND/OR SOLD IS IN
COMPLIANCE WITH THE APPLICABLE LAWS AND REGULATORY REQUIREMENTS OF
THE RELEVANT COUNTRIES.

 




(ii)

ALL
CLAIMS MADE WITH RESPECT TO THE NR PRODUCT SHALL BE DEEMED WAIVED
BY BUYER UNLESS MADE IN WRITING.





 




16.3

Buyer’s
Representations and Warranties.
Buyer expressly warrants that it has all necessary legal capacity,
right, power, and authority to enter into, execute, deliver, and be
bound by this Agreement and that the execution and delivery of this
Agreement and the performance by Buyer of Buyer’s obligations
under this Agreement, do not breach, and shall not result in a
breach or violation of, any agreement to which Buyer is a party or
by which Buyer is bound. Except as otherwise advised by Buyer in
writing to ChromaDex on or prior to the Effective Date, there is no
demand, claim, suit, action, arbitration, and/or other proceeding,
whether pending or threatened (and for which any basis exists),
that jeopardizes (or could jeopardize) Buyer’s ability to
enter into this Agreement or perform any of its obligations
hereunder. Buyer further represents and warrants that Buyer and its
Affiliates, shall assume full responsibility for all acts, errors,
omissions, misrepresentations, and negligence by Buyer arising out
of or relating to: (i) any and all uses of the rights granted
herein, (subject to any ChromaDex liability specifically set forth
in this Agreement or subject to Seller’s breach of this
Agreement, gross negligence or willful misconduct); and (ii) the
development, manufacture, distribution, sale and advertisement of
the Approved Products. Without in any way limiting the foregoing,
Buyer represents and warrants that: (i) Buyer will obtain all
regulatory compliance required by its actions under this Agreement;
(ii) Buyer will conduct all actions under this Agreement in
compliance with all applicable laws, rules, statutes, and
regulations; and (iii) Buyer will ensure that none of the Approved
Products violate any intellectual property or any other right of a
third party.





 





17.


LIMITATION OF LIABILITY.





 


EXCEPT
FOR LIABILITY RESULTING FROM A PARTY’S INDEMNIFICATION OR
CONFIDENTIALITY OBLIGATIONS OR MISAPPROPRIATION OF THE OTHER
PARTY’S TRADE SECRETS AS SET FORTH


IN
SECTIONS 13 AND 26 OR INFRINGEMENT OF A PARTY’S INTELLECTUAL
PROPERTY, IN


NO
EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE OR LOST
PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES ARISING UNDER


THIS
AGREEMENT OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY BUSINESS
INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE
THEORY UPON


WHICH
ANY CLAIM MAY BE BASED, INCLUDING ANY TORT OR STATUTORY CAUSES OF
ACTION. EXCEPT FOR LIABILITY RESULTING FROM INDEMNIFICATION OR
CONFIDENTIALITY OBLIGATIONS OR WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE, IN NO EVENT, SHALL SELLER’S AGGREGATE LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNT OF TWO (2) TIMES THE SALES
FEES PAYABLE TO SELLER BY BUYER HEREUNDER IN THE TWELVE
(12)


MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
SELLER’S LIABILITY.


THE
FOREGOING LIMITATIONS OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM
EXTENT PERMITTED UNDER APPLICABLE LAW. BOTH PARTIES UNDERSTAND AND
AGREE THAT THIS LIMITATION OF LIABILITY ALLOCATES RISK OF
NONCONFORMING GOODS BETWEEN THE


 


 
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PARTIES
AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OTHER APPLICABLE
LAW. THE PRICES SET FORTH HEREIN REFLECT THIS ALLOCATION OF RISK
AND THE LIMITATIONS OF LIABILITY, INCLUDING THE EXCLUSION OF
SPECIAL, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, IN THIS
AGREEMENT.


 





18.


Intellectual Property Rights.








18.1

Rights Retained by
Seller. Except as otherwise
explicitly set forth in this Agreement, the sale of NR Product
covered by this Agreement shall not confer upon Buyer any license
or right under any patents, copyrights, trade secrets or other
proprietary information owned or controlled by Seller, or the right
to otherwise utilize such proprietary information unless in strict
accordance with all of the terms hereof, it being specifically
understood and agreed that all such rights, including, without
limitation, all intellectual property rights contained therein and
pertaining thereto, are reserved exclusively to Seller. Seller
hereby grants Buyer a fully paid-up, royalty-free, exclusive or
co-exclusive (in accordance with Sections 3.3 and 3.4 of this
Agreement), non-sublicensable (other than to its Affiliates) right
and license to use all current and future intellectual property
rights, clinical and non-clinical data, records, formulations, data
on new therapeutic uses and know-how, in respect of NR Product (the
“NR
Product IP Rights”).






 




(i)

Patent Filing and
Prosecution. From time to time
throughout the Term, the Parties will regularly confer and review
their solely and jointly owned and licensed existing, now pending,
and being developed during the Term intellectual property rights
that claim NR Product, products containing NR Product, or any uses
thereof and together consider strategies that would enhance the
value of those rights in the context of NR Product, products
containing NR Product, or uses thereof.






 




(ii)

Seller’s New
Intellectual Property Rights.
Any new intellectual property rights created solely by ChromaDex
during the Term hereof, will as between the Parties be owned solely
and exclusively by ChromaDex. Any such new intellectual property
rights and any new intellectual property rights licensed to
ChromaDex during the Term, to the extent that they are directed to
Medical Nutrition or Functional Food and Beverages products
containing NR Product or uses thereof shall not, however, be used
adversely against Buyer by ChromaDex in contradiction to the terms
and conditions detailed herein.






 




(iii)

Ownership of New
Jointly Created Intellectual Property Rights. Any new intellectual property rights jointly
created by ChromaDex and Buyer during the Term shall be jointly and
equally owned by ChromaDex and Buyer (subject to the clarification
in Section 18.1 (iv) below).






 




(iv)

Buyer’s New
Intellectual Property Rights.
Any new intellectual property rights created during the Term solely
by Buyer shall be owned solely and exclusively by Buyer, including,
for purposes of clarification, any new intellectual property rights
in respect of NR Product in combination with other active
ingredients or uses thereof and improved NR formulations (the
“New
IP”). Buyer agrees that
it will not enforce its intellectual property rights in a legal
proceeding against Seller for New IP pertaining or relating to the
use or inclusion of NR in Functional Food and Beverages or Medical
Nutrition that is necessary by Seller in order for Seller to
achieve Technical Feasibility for a commercial launch of a
Functional Food and Beverage or Medical Nutrition product, subject
to Seller’s compliance with the exclusivity and
co-exclusivity rights granted to Buyer under this
Agreement.






 




(v)


No Right By Buyer to
Challenge ChromaDex’s Intellectual Property
Rights. Buyer hereby
acknowledges and agrees that Buyer will not subvert, diminish, in
any way challenge in any forum, including, but not limited
to, administrative proceedings, or assert any rights in the
ChromaDex Trademarks, ChromaDex Trade Secrets, NR, NR Product,
products containing NR Product, or uses thereof, or any other NR
intellectual property, including ChromaDex owned or licensed
patents or patent applications. If Buyer violates or otherwise
breaches this non-challenge clause, Seller shall have the
right to terminate Buyer’s rights under this
Agreement,






 



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provided however,
in no event shall such termination diminish Seller’s rights
under this Section 18.1.


 





19.

Waiver
and Severability. No claim or right arising out of a breach of this
Agreement can be discharged in whole or in part by a waiver or
renunciation of the claim or right unless the waiver or
renunciation is in writing signed by the aggrieved Party. If any
term, covenant, warranty, remedy or condition of this Agreement, or
the application thereof to any person or circumstance shall, to any
extent, be held or deemed invalid, illegal or unenforceable, such
term, covenant, warranty, remedy, or condition shall be conformed
to a valid, legal, and enforceable provision that best accomplishes
the original intent of the Parties, and the remainder of this
Agreement or the application of such term, covenant or provision,
to persons or circumstances other than those to which it is held
invalid, illegal or unenforceable, shall not be affected thereby,
and each remaining term, covenant or provision of this Agreement
shall be deemed valid, legal and shall be enforced to the fullest
extent permitted by law.






 





20.

Force
Majeure. A Party shall have no
liability or obligation to the other party of any kind, including,
but not limited to, any obligation to deliver NR Product or to make
payment or accept delivery of NR Product, arising from any delay or
failure to perform all or any part of this Agreement as a result of
causes, conduct or occurrences beyond such Party’s reasonable
control, including, but not limited to, fire, flood, earthquake,
lightning, storm, accidents, act of war, terrorism, civil disorder
or disobedience, act of public enemies, , acts or failure to act of
any state, federal or foreign governmental or regulatory
authorities, labor disputes or strikes, (each a “Force
Majeure Event”). During a Force Majeure Event Seller may
allocate its available supply among its customers in a manner
determined by Seller to be fair and reasonable.






 





21.


Indemnification and Insurance.






 




21.1

To the fullest extent permitted by law, Buyer
shall defend, indemnify and hold Seller and its affiliates,
successors, heirs, and assigns and its and their respective
officers, directors, employees, and agents (the
"Seller
Indemnitees"), harmless from
any and all claims, damages, demands, suits, causes of action,
controversy, judgements, liabilities, fines, regulatory actions,
seizures of NR Product, losses, costs and expenses (including, but
not limited to attorneys’ fees, expert witness expenses and
litigation expenses) (hereinafter “Claim”), arising from or in connection with any
Claim asserted by a third party against Seller (i) for any damage,
environmental liability, patent or intellectual property
infringement caused by Buyer’s use, modification or
alteration of the NR Product, or any combination of the NR Product
in connection with Buyer’s product or any third party’s
product, or (ii) any injury, death, loss, property damage, delay or
failure in delivery of Seller’s NR Product or any other Claim
for injuries or damage to the general public who consumed the
Approved Product (unless due solely and exclusively to a Claim
arising from the NR Product), or (iii) any alleged or actual act,
error, omission, or negligence by Buyer or Buyer’s
Affiliates’ agents, employees, or representatives in
connection with the NR Product, Approved Products, or this
Agreement, whether in tort, contract, breach of warranty or
otherwise, relating to this Agreement, the business relationship
between the Parties, Buyer’s development, manufacture,
distribution, promotion, and sale of the Approved Products, or
Buyer’s breach of this Agreement (including breach of
Buyer’s representations and warranties). Notwithstanding the
foregoing, Buyer has no indemnity obligation to Seller to the
extent that any Claims result directly from the negligence or
willful misconduct of Seller or a material breach of this Agreement
by Seller.






 




21.2

To the fullest extent permitted by law, Seller
shall defend, indemnify and hold Buyer and its affiliates,
successors, heirs, and assigns and its and their respective
officers, directors, employees, and agents (the
"Buyer
Indemnitees") harmless from any
and all Claims, arising from or in connection with any Claim
asserted by a third party against Buyer for (i) any patent or other
intellectual property right infringement in connection with the NR
Product (provided that such alleged infringement does not arise
from (A) the combination of the NR Product with other ingredients
or (B) Buyer’s intellectual property, including New IP), or
(ii) any alleged or







 

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actual
act, error, omission, or negligence by Seller or Seller’s
Affiliates’ agents, employees, or representatives in
connection with this Agreement whether in tort, contract, breach of
warranty or otherwise, relating to this Agreement, the business
relationship between the Parties, the NR Product provided
hereunder, or Seller’s breach of this Agreement, or (iii) any
use of the ChromaDex Trademarks. Notwithstanding the foregoing,
Seller has no indemnity obligation to Buyer to the extent that any
Claims result directly from the negligence or willful misconduct of
Buyer or if such claims stem from Buyer’s acts or use which
is not in accordance with the rights and requirements of Buyer
herein.

 




21.3

Indemnification
Procedures.    Each Party agrees to
provide the other Party with prompt written notice of any claim,
suit, action, demand, or judgment for which indemnification is
sought under this Agreement. The indemnifying Party agrees, at its
own expense, to provide attorneys reasonably acceptable to the
indemnified Party to defend against any such claim. The indemnified
Party shall cooperate fully with the indemnifying Party in such
defense and will permit the indemnifying Party to conduct and
control such defense and the disposition of such claim, suit, or
action (including all decisions relative to litigation, appeal, and
settlement); provided, however, that the indemnified Party shall
have the right to retain its own counsel, at the expense of such
indemnifying Party, if representation of such the indemnified Party
by the counsel retained by the indemnifying Party would be
inappropriate because of actual or potential differences in the
interests of such indemnified Party and any other party represented
by such counsel. The indemnifying Party agrees to keep the
indemnified Party informed of the progress in the defense and
disposition of such claim and to consult with the indemnified Party
with regard to any proposed settlement.





 




21.4

Insurance.
The Parties agree, for the Term of this Agreement, to maintain a
program of insurance or self-insurance at levels sufficient to
satisfy its obligations as set forth in this Agreement, which shall
include commercial general liability insurance with limits
of at least $[...***...] per occurrence
and product liability insurance
with an aggregate limit of at
least $[...***...], and that such insurance coverage lists
the other party hereto as additional insureds. Each party shall
continue to maintain such insurance or self-insurance after the
expiration or termination of this Agreement during any period in
which Buyer or any Affiliate continues (i) to make, use, or
sell an Approved Product under the terms of this Agreement and
thereafter for a period of [...***...].





 





22.

Relationship
of the Parties. The relationship between Seller and Buyer shall be
solely that of independent contractors and neither Party, its
agents and employees, shall under no circumstances be deemed the
employees, partners, joint venturers, franchisees, agents or
representatives of the other Party. Neither Party shall represent
itself as the agent or legal representative of the other Party for
any purpose whatsoever or hold itself out contrary to the terms of
this Section, and neither Party shall have the right to create or
assume any obligation of any kind, express or implied, for or on
behalf of the other Party in any way
whatsoever.





 




23.


Assignment
and Modification. The rights and obligations of Buyer under this
Agreement shall not be assignable or
delegable without the prior written consent of Seller except in the
event of assignment to an
Affiliate of Buyer (which does not require consent of the Seller,
but does require reasonable advance written notification). Any
attempted assignment or delegation in violation of the foregoing
shall be void. Seller may assign this Agreement, or delegate its
duties hereunder, in whole or in part, without
the written consent of the Buyer (but with advance written
notification) (a “Transfer”) to an Affiliate
(other than in connection with a Change of Control). In addition,
Seller may also Transfer this
Agreement to an Affiliate or a third party in connection with a
Change of Control (a “Transfer
Event”), subject to the requirements set forth herein. If
Seller is contemplating entering into a Transfer Event with a company that sells
products to consumers directly
competitive with the Approved Products
in the then existing exclusive and co-exclusive Territories or any
other then existing NHSc brands (a “Restricted
Transferee”), Seller shall notify Buyer in advance in writing
and Buyer shall have a [...***...] right of first
negotiation from the date of such notification to negotiate in good
faith terms by which Seller would complete a Transfer Event with
Buyer. If after





 

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such
[...***...] of good faith negotiations, no agreement is
reached, Seller shall be entitled to Transfer this Agreement to a
Restricted Transferee upon at least [...***...] written
notice thereof to Buyer; provided that in such event Buyer shall
have the right in its sole discretion to terminate this Agreement
without penalty or liability. All
other assignments or delegations by Seller require the advance
written consent of Buyer, such consent not to be unreasonably
withheld, conditioned, or delayed. This Agreement shall not be
modified, altered or amended in any respect except by a writing
signed by the Parties. Any variation, modification or addition to
the terms set forth in this Agreement shall be considered a
material modification and shall not be considered part of this
Agreement unless it is amended in accordance with the
foregoing.

 





24.

Governing
Law; Venue; Attorneys’ Fees. This Agreement and all claims and causes of action
shall be governed by and subject to the internal laws (exclusive of
the conflicts of law provisions) and decisions of the courts of the
State of Delaware. The sole and exclusive venue for all claims and
causes of action between the Parties shall be the state or federal
court located in the State of Delaware, provided that either Party
may, at any time, seek injunctive or other equitable relief from
any court of competent jurisdiction. The prevailing Party in any
legal action shall be entitled to recover its reasonable
attorneys’ fees, in addition to any other remedies available
to such Party at law or in equity.






 





25.

Foreign
Corrupt Practices Act. Each of the Parties (including its officers,
directors, employees and agents) shall not pay, offer, promise or
authorize the payment, directly or indirectly, of any monies or
anything of value to any official or employee of any foreign
government, including, without limitation, any government-owned or
controlled entity, or of a public international organization, or
any political party, party official, or candidate for political
office, for the purpose of improperly inducing or rewarding
favorable treatment or advantage in connection with this
Agreement.






 





26.

Confidentiality
and Publicity. This Confidentiality and Publicity provision shall
supersede in its entirety the Mutual Non-Disclosure Agreement
between the Parties dated April 7, 2017. The Parties will be making
certain general business information and know-how that is not
generally known by the public available to the other Party, or a
Party may have access to Confidential Information of the other
Party orally and/or in writing. “Confidential
Information” shall
include, without limitation, any intellectual property, trade
secrets, technical information, training materials, control
documents, workflows and relevant documentation, materials, data,
any other secret, sensitive or confidential material related to the
business generally, business technology, business strategies,
accounting, financial information, contracts, agreements, files,
records, documents, techniques, expertise, marketing concepts,
diagrams or concepts relating to product plans or designs,
products, product specifications, systems, software code, formulae,
practices, processes, customers, projects or information of any
type whatsoever, in whatever form or media, whether or not marked
as “confidential” or “proprietary,” of a
Party that is disclosed to or becomes known by the other Party,
including all the records of the disclosing Party created,
accessed, viewed, learned or obtained by the receiving Party
pursuant to this Agreement and the transactions contemplated hereby
and which is not generally known to the public or throughout the
trade, or which could reasonably be expected to be valuable to the
disclosing Party or its Affiliates or a competitor of any of the
disclosing Party or its Affiliates. Confidential Information shall
also include the terms of this Agreement. For purposes of
clarification only and in no way intending to limit or otherwise
revise the obligations in this Section, these obligations apply to
Confidential Information disclosed to the other Party pursuant to
this Agreement and the transactions contemplated hereby prior to
the Effective Date. The Parties agree to refrain at all times from
disclosing the other Party’s Confidential Information to
others or from using any such Confidential Information except for
the benefit of the disclosing Party. The Parties further agree to
refrain from any other acts that could tend to destroy the value of
the Confidential Information to the disclosing
Party.






 


Without
in any way intending to limit the forgoing the Parties
shall:




(a)

not
access or use Confidential Information other than as necessary to
exercise its rights or perform its obligations under and in
accordance with this Agreement;








(b)

not
disclose or permit access to Confidential Information;







 

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(c)

safeguard
the Confidential Information from unauthorized use, access or
disclosure using at least the degree of care it uses to protect its
most/similarly sensitive information and in no event less than a
reasonable degree of care;








(d)

promptly
notify the other Party in writing of any unauthorized use or
disclosure of Confidential Information and use its best efforts and
cooperate with such disclosing Party to prevent further
unauthorized use or disclosure; and








(e)

ensure
its representatives’ compliance with, and be responsible and
liable for any of its representatives’ non-compliance with,
the terms of this Section.






 


Neither
NHSc nor ChromaDex will, without the prior written consent of the
other Party, issue any statement or communication to the public, to
the press or any third party regarding the transactions detailed
herein, or otherwise disclose to any third party the existence of
this Agreement or any other communication between the parties with
respect to the transactions detailed herein.


 


This
Section shall survive expiration or termination of this
Agreement.


 





27.


Dispute Resolution.








27.1

Mandatory
Procedures.    The Parties agree that
any dispute arising out of or relating to this Agreement shall be
resolved solely by means of the procedures set forth in this
Section, and that such procedures constitute legally binding
obligations that are an essential provision of this Agreement. If
either Party fails to observe the procedures of this Section, as
may be modified by their prior written agreement, the other Party
may bring an action for specific performance of these procedures in
any court of competent jurisdiction.








27.2

Equitable
Remedies.    Although the procedures
specified in this Section are the sole and exclusive procedures for
the resolution of disputes arising out of or relating to this
Agreement, either Party may seek a preliminary injunction or other
provisional equitable relief pursuant to Section 30 if, in its
reasonable judgment, such action is necessary to avoid irreparable
harm to itself or to preserve its rights under this
Agreement.








27.3

Dispute Resolution
Procedures.    








27.3.1

Exclusive
Procedures. Any controversy,
claim, or dispute arising out of or relating to this Agreement
including, without limitation, the interpretation, performance,
formation, validity, breach (including, without limitation, alleged
violations of state or federal statutory or common law rights or
duties) or enforcement of this Agreement, and further including any
such controversy, claim, or dispute against or involving any
officer, director, agent, employee, affiliate, successor,
predecessor or assign of a party to this Agreement (collectively, a
“Dispute”)
shall be resolved according to the procedures set forth in this
Section which shall constitute the sole and exclusive Dispute
resolution mechanism to resolve all Disputes and no other procedure
may be used with the sole exception that a party need not comply
with the terms herein before filing a claim for equitable relief.
Each Party's promise to resolve all Disputes as set forth herein is
given in consideration for the other Party's like
promise.








27.3.2

Confidentiality.
Without limiting the confidentiality
obligations referred to elsewhere in this Agreement, the details
and/or existence of any Dispute, any informal meetings, and any
proceedings conducted hereunder, including without limitation any
discovery taken in connection therewith, shall be kept strictly
confidential and shall not be disclosed or discussed with any third
party (excluding a party's attorneys, accountants, and other agents
and representatives, as reasonably required in connection with any
Dispute resolution procedure hereunder and provided that they sign
a confidentiality agreement at least as restrictive as this Section
if they are not attorneys), except as otherwise required by laws or
rule of any securities exchange on which such party's securities
are traded. All offers, promises, conduct, and statements, whether
oral or written, made in the course of the resolution of any
Dispute by the parties, their agents, employees, experts, and
attorneys, shall be confidential, privileged, and inadmissible for
any purpose, including impeachment, in any litigation, arbitration,
or other proceeding, except that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use by either
Party.







 

 

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27.3.3

Good Faith.
With regard to any Disputes between
ChromaDex and Buyer, the Parties agree to work together in good
faith to resolve all disputes promptly.








27.3.4

Informal Dispute
Resolution. Either Party may
demand, in writing, that each Party’s management
representatives meet within [...***...] at such place as
ChromaDex may reasonably designate to resolve the Dispute. No third
party shall have authority to consider or resolve any Dispute that
is not first the subject of informal Dispute resolution pursuant to
this Section. The Parties or their representatives with full
authority to settle the Disputes at issue shall attend all
meetings.








27.3.5

Mediation.
If the Parties do not resolve the Dispute within
[...***...] of the date of the first meeting between
management representatives (the “Informal Dispute
Resolution Deadline”),
ChromaDex and NHSc agree to mediate the Dispute within
[...***...] of the Informal Dispute Resolution Deadline and
at such place in the State of Delaware as ChromaDex may designate
with a mutually agreed upon mediator. If the Parties cannot agree
upon the selection of a mediator, the mediator will be chosen from
the list of certified mediators maintained by a court having
jurisdiction over this Agreement within [...***...] of
receiving such list. The Parties agree to continue to work in good
faith to resolve the Dispute prior to the date upon which the
mediation is scheduled to take place. If the Parties agree on a
resolution for the Dispute prior to the scheduled mediation date,
the mediation shall be cancelled. The Parties agree to share the
cost of any independent mediator engaged to assist the Parties in
resolving their differences. The mediator shall be a person
familiar with complex business transactions and litigation in the
nutraceutical industry, unless the Parties agree otherwise in
writing. If either Party fails to mediate the Dispute within
[...***...] of the Informal Dispute Resolution Deadline,
such Party shall be deemed to have waived its right to demand
mediation and the other Party may, in its sole discretion, proceed
directly to arbitration.








27.3.6

Arbitration.
In the event the Dispute is not
resolved through mediation, then the Dispute shall be fully and
finally adjudicated by binding arbitration to the fullest extent
allowed by law, but only if the arbitration is properly commenced
within the time allowed for similar legal action to be commenced in
accordance with the applicable statute of limitations; otherwise,
the Dispute is waived. Except as provided herein or by agreement of
all parties, the arbitration shall be administered by JAMS or its
successors (“JAMS”) and shall be conducted according to
the JAMS Comprehensive Arbitration Rules and Procedures in effect
at the time the arbitration is initiated or, if JAMS is no longer
in existence, then the arbitration shall be administered by the
American Arbitration Association or its successor (the
“AAA”) and conducted in accordance with the AAA
Commercial Arbitration Rules in effect at that time (the
“Rules”). The arbitration shall be conducted as
expeditiously and economically as reasonably
practicable.








27.3.7

The
arbitration shall be conducted by one arbitrator (the
“Arbitrator”). Unless all parties to the arbitration
agree, the Arbitrator shall be a lawyer admitted to practice in at
least one (1) State of the United States and need not be on the
roster of JAMS or the AAA. The Arbitrator shall be selected as
follows: If all parties to the Dispute do not agree upon the
Arbitrator within [...***...] after commencement of the
arbitration, then any party may initiate the following selection
process by written notice to each other party. Within
[...***...] after such written notice, each side to the
Dispute shall simultaneously transmit to each other side a list of
four (4) persons qualified to serve as the Arbitrator (the
“Candidates”). No party shall nominate a Candidate whom
that party knows or reasonably believes to have a conflict of
interest rendering the Candidate unable to serve as the Arbitrator.
If any single Candidate appears on the list of each side then that
person shall be appointed as the Arbitrator. If more than one
Candidate appears on the list of each side, then one of those
Candidates shall be selected randomly and that person shall be
appointed as the Arbitrator. If no Candidate appears on the list of
each side then, within [...***...] after the initial
exchange of lists, each side may strike one Candidate from the list
of each other side and rank all remaining Candidates in order of
preference (with “1” being the most preferable
Candidate), and the ranked lists shall be simultaneously exchanged.
The Candidate with the lowest total number of points shall be
appointed as the Arbitrator. In the event of a tie, one of the
Candidates with the







 

 

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 lowest
total number of points shall be selected randomly and that person
shall be appointed as the Arbitrator. If the person selected as the
Arbitrator declines to serve or becomes unwilling or unable to
serve after selection or appointment, or the administrator declines
to appoint that person as the Arbitrator, then the Candidate with
the next lowest total of points shall be appointed as the
Arbitrator. If any party to the arbitration fails to timely
participate in the foregoing selection process then the
administrator shall select and appoint the Arbitrator pursuant to
the Rules, except that each recalcitrant party shall be excluded
from that selection process.








27.3.8

The
Arbitrator shall entertain any demurrer, motion to strike, motion
for judgment on the pleadings, motion for complete or partial
summary judgment, motion for summary adjudication, or any other
dispositive motion consistent with Delaware or United States
federal rules of procedure, as applicable










27.3.9

 The
exchange of information in the arbitration shall be governed by the
Rules except as follows: (a) no side shall take the deposition of
more than [...***...] individuals (including the use of
corporate, “persons most knowledgeable,” F.R.C.P.
30(b)(6), or similar deposition notices or devices) unless, upon a
showing of extraordinary cause, the Arbitrator permits that side to
take a limited number of additional depositions; (b) each side
shall be entitled to the limited discovery of documents (including
electronically stored information) which are directly relevant and
material to the Dispute and are produced in response to a request
that is narrowly tailored to minimize both the burden and expense
of the responding person and the disclosure of confidential,
sensitive or financial information; (c) no party shall propound
interrogatories or requests for admission unless permitted by the
Arbitrator upon a showing of extraordinary cause; and (d) upon the
request of any party, the Arbitrator shall weigh the anticipated
burden or expense of any requested discovery against its likely
benefit, and shall impose any reasonable conditions on that
discovery, including, without limitation, allocation of the expense
of the discovery to the party seeking it.








27.3.10

The
Arbitrator shall issue a written award supported by a statement of
decision setting forth the Arbitrator’s complete
determination of the Dispute and the factual findings and legal
conclusions relevant to it (the “Award”). The Award
shall be final and binding on the Parties and, if the Award is not
fully satisfied within [...***...] after its issuance, then
judgment upon the Award may be entered by any court having
jurisdiction thereof or having jurisdiction over the relevant Party
or its assets. Each Party to this Agreement irrevocably submits to
the personal jurisdiction and venue of a state or federal court of
competent jurisdiction in Delaware for any purpose permitted
herein.








27.3.11

The
administrative costs of the arbitration, including fees of the
Arbitrator, initially shall be split equally between the sides;
provided, however, that the Arbitrator may, in his or her
discretion, allocate such costs in favor of any prevailing
party.








27.3.12

If
all or any portion of a Dispute is held to be non-arbitrable then
that Dispute (or portion thereof) shall be adjudicated by a single
referee appointed by a state or federal court of competent
jurisdiction in Delaware.








27.3.13

Notwithstanding
any other provision of this Agreement including, without
limitation, any other provision of this Section 27, the Parties may
bring suit in any court of competent jurisdiction to enjoin any
actual or threatened infringement of any intellectual property
rights or any actual or threatened violation of any confidentiality
or non-compete, non-solicitation, non-circumvention provisions of
this Agreement.








27.4

Performance to
Continue.    Each Party shall continue
to perform its undisputed obligations under this Agreement pending
final resolution of any dispute arising out of or relating to this
Agreement; provided, however, that a Party may suspend performance
of its undisputed obligations during any period in which the other
Party fails or refuses to perform its undisputed obligations.
Nothing in this Section is intended to relieve Buyer from its
obligation to make undisputed payments pursuant to the requirements
of this Agreement.








27.5

Statute of
Limitations.    The Parties agree that
all applicable statutes of limitation and time-based defenses (such
as estoppel and laches) shall be tolled while the procedures set
forth in Sections are pending. The Parties shall cooperate in
taking any actions necessary to







 


 
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achieve this result.


 





28.

Non-Solicitation,
Non-Competition, and Non-Circumvention.





 


28.1 Upon a Triggering Event (defined below),
during the Term and for a period of [...***...] after the
Triggering Event, neither Buyer nor any of Buyer’s
subsidiaries, Affiliates, principals, agents, representatives, or
employees (the “Buyer
Parties”) shall without
the prior express written consent of ChromaDex directly or
indirectly develop, manufacture, market, promote, sell or
distribute Functional Food and Beverages or Medical Nutrition
product using any NR, or NR Product. For purposes of this
Agreement, a “Triggering
Event” shall have
occurred if (a) Seller terminates this Agreement for any reason
permitted under this Agreement; (b) Buyer terminates this Agreement
pursuant to Section 15.3.1 or 15.3.2; or (c) Seller terminates any
of Buyer’s rights pursuant to the NA FF&B Termination, NA
MN Termination, Annual Minimum Royalty Termination, or a
Sub-Territory Termination, provided however in such event,
Buyer’s obligations contained in this paragraph shall only
apply to the terminated Sub-Territory or Approved Product
Category.


 


28.2
During the Term and for a period of [...***...] after the
termination of this Agreement, neither Buyer nor any of the Buyer
Parties shall, without the prior express written consent of the
ChromaDex, directly or indirectly:


 



(a)                  

Solicit
or induce or attempt to solicit or induce any vendor, employee,
sales representative, agent, or consultant of ChromaDex to
terminate or adversely alter their relationship, engagement,
employment, representation, or other association with ChromaDex;
or







(b)                  

Contract
with, or otherwise become involved in any transaction with
ChromaDex’s manufacturers, without ChromaDex’s explicit
advance written permission (unless Buyer has a pre-existing
relationship with such manufacturer prior to the Effective Date or
wishes to enter into a relationship with such manufacturer for
other products unrelated to the Approved Products, in which case
the restrictions set forth herein shall not be
applicable).






These
obligations in this Section are in no way intended to revise or
otherwise limit the other restrictions and obligations of Buyer
herein, including, but not limited to, those regarding
termination.


 



28.3                  

During
the Term and for a period of [...***...] after the
termination of this Agreement, ChromaDex shall not, without the
prior express written consent of the Buyer, directly or indirectly
solicit or induce or attempt to solicit (other than general
solicitations for hire) or induce any vendor, employee, sales
representative, agent, or consultant of Buyer to terminate or
adversely alter their relationship, engagement, employment,
representation, or other association with Buyer.






 





29.

Notices.
Any demand upon or notice to a Party
hereunder shall be effective when delivered by hand or when
properly deposited in the mails postage prepaid, or sent by
electronic facsimile or electronic mail transmission with receipt
acknowledged, or delivered to an overnight courier, in each case
addressed to the Party at the address shown below or such other
address as the Parties may advise in advance in
writing.






	

 



If to Seller:


ChromaDex,
Inc.


10005
Muirlands Blvd., Suite G


Irvine,
CA 92618


Attention: Legal
Department


Fax:
949-419-0294


 


With
a Copy to:


ChromaDex
Corporation


10900
Wilshire Blvd.,


Suite
650


Los
Angeles, CA 90024


Fax:
949-600-8923

	
 






 

 




 
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Attn:
General Counsel


 


With
Another Copy to:


Nolan
Heimann


16133
Ventura Blvd.,


Suite
820


Encino,
California 91436


Fax:
818-574-5689


Attn:
ChromaDex


 



If to Buyer:


Avenue
Nestle 55


1800
Vevey


Switzerland


Email:
[...***...]


Attn:
General Counsel, Nestlé Health Science


 

	
 










30.

Injunctive
Relief. In addition to all
other remedies that ChromaDex may have hereunder, including,
without limitation, a claim of money damages, Buyer acknowledges
that (a) its failure (except as otherwise provided herein) to cease
the manufacture, sale, distribution, advertising, or promotion of
the Approved Products covered by this Agreement or any class or
category thereof at the termination or expiration of this
Agreement; (b) its threatened or actual unauthorized use of the
rights granted hereunder, whether in whole or in part; (c) its
threatened or actual breach of the confidentiality provisions in
the ChromaDex and NHSc NDA referred to herein; or (d) its
threatened or actual breach of any other material term of this
Agreement may result in immediate and irreparable damage to
ChromaDex and to the rights of any subsequent licensee. Buyer
acknowledges and admits that there is no adequate remedy at law for
such failures listed in this Section and that in the event of such
threatened or actual failure, ChromaDex shall be entitled to
equitable relief by way of temporary and permanent injunctions and
such other and further relief as any court of competent
jurisdiction may deem just and proper.






 


In
addition to all other remedies that Buyer may have hereunder,
including, without limitation, a claim of money damages, Seller
acknowledges that; (a) its threatened or actual breach of the
confidentiality provisions contained in Section 26 herein; or (b)
its violation of Buyer’s exclusivity or Buyer’s
Co-Exclusivity (as set forth in Sections 3.3 and 3.4, respectively)
still in effect, may result in immediate and irreparable damage to
Buyer. Seller acknowledges and admits that there is no adequate
remedy at law for the violations set forth in the preceding
sentence and that in the event of such violation, Buyer shall be
entitled to seek equitable relief by way of temporary and permanent
injunctions and such other and further relief as any court of
competent jurisdiction may deem just and proper.


 





31.

Binding
Effect.    This Agreement shall be
binding upon and inure to the benefit of the Parties and their
respective permitted successors and assigns.






 





32.

Section
and Other Headings; Number; Construction of
Language. The section and other
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation
of this Agreement. Words used in this Agreement in the singular
number shall be held to include the plural, and vice versa, unless
the context requires otherwise. The language in all parts of this
Agreement is intended by the parties to be interpreted simply,
according to its fair meaning, and not strictly for or against
ChromaDex or Buyer regardless of which party drafted this
Agreement. The parties hereby agree and acknowledge that this
Agreement is a document negotiated by the parties, which are
sophisticated entities and fully understand the meaning of the
terms and conditions of this Agreement.






 





33.

Attorney
Representation. In the
negotiation, preparation and execution of this Agreement, each
Party has been represented by, or has been afforded the opportunity
to consult with an attorney of







 

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such
Party’s own choosing prior to the execution of this Agreement
and has been advised that it is in such Party’s best interest
to do so. The Parties have read this Agreement in its entirety and
fully understand its terms and provisions. The Parties have
executed this Agreement freely, voluntarily and without any
coercion whatsoever, they accept all terms, conditions and
provisions hereof. The Parties further agree that any rule or
construction to the effect that ambiguities are to be resolved
against the drafting Party shall not apply in the interpretation of
this Agreement or any amendments.


 





34.

Entire
Agreement. This Agreement and
any documents referred to herein and any exhibits attached hereto
contain and constitute the complete agreement between the Parties
with respect to the subject matter hereof. All previous or
contemporaneous agreements, representations, warranties, promises
and conditions relating to the subject matter of this Agreement are
superseded by this Agreement.






 





35.

Expenses.
Except as otherwise expressly provided in this Agreement, whether
or not the transactions contemplated hereby are consummated, each
Party shall pay its own costs and expenses incurred in connection
with the negotiation, execution and closing of this Agreement and
the transactions contemplated herein.






 





36.

Survival.
All obligations that by their nature should survive the termination
of this Agreement shall so survive.





 





37.

Counterparts.
This Agreement may be executed in counterparts, each of shall
constitute an original, whether actual original or a copy, and all
of which shall constitute one and the same
instrument.






 


 

 



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


 



 


	

Buyer


 



NESTEC Ltd.


 

	

Seller


 



ChromaDex, Inc.


	

 


Signature:
/s/ Claudio
Kuoni          
      



 


 


Name:
Claudio
Kuoni                  
         



 


 


Title
General
Counsel                         
 



 


 


Date:
19 December
2018                      




 


 

	

 


Signature:
/s/ Robert Fried 
        
                                                                   




 


 


Name:
Robert Fried  
                 
   
                                                                  




 


 


Title:
President &
CEO             
     
                                                               




 


 


Date:
December 19, 2018  
            
                                                                    








 

 


 
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Exhibit A – ChromaDex Brand Usage Guidelines


 




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Exhibit B - NHSc Brands


 


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Exhibit C – NR Product Specification


 


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Exhibit D – Prior Existing Obligations


 


 



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Exhibit F – Applicable Issued Patents and Applicable
Filed Patents for the NR Product


 


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Exhibit
G - Quality Standards 



 


 




 


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