Exhibit
 10.1


 





CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”




 





FIRST
AMENDED AND RESTATED EXCLUSIVE SUPPLY AGREEMENT


 


This
First Amended and Restated Exclusive Supply Agreement (“Agreement”) is hereby made effective on this 18th day of July,
2014 (“Effective Date”), between Myos Corporation, a Nevada Corporation, having an address of
Cedar Knolls, NJ 07927 (hereinafter “Customer”) and DIL Technologie GmbH, a German
Company having a business address at Prof.-von-Klitzing-Str. 7, D – 49610 Quakenbrück, Germany (“Manufacturer”),
and is intended to amend and replace the Exclusive Supply Agreement entered into between the Parties on June 24, 2013 in its entirety.



 


WHEREAS,
the Parties agree as follows:


 


	 	1.	WORK




 


	 		Manufacturer
    agrees to use its best efforts to perform the work (hereinafter “Work”) pursuant to ongoing and regular supply
    terms discussed and agreed upon between the Parties, as initially determined herein. The Parties agree Work shall mean the
    procurement of fertilized chicken egg yolk, via a process and form as defined in Exhibit A (the “Product”).




 


	 		From
    time to time, as requested by Customer, Manufacturer may further process, blend or otherwise modify the Product either directly,
    or through a third party. In particular, Customer may request, and Manufacturer shall produce, the Product in a blended form
    such as the blended form defined in Exhibit B (the “Blended Product”). The Parties shall work together in good
    faith in the event any other forms of Product are requested.




 


	 	2.	REQUIREMENTS
    FOR PURCHASING







  


	 	 	2.1	Ongoing
    and Regular Order Commitments




 


		 	The
    Parties agree that an ongoing and regular supply order will yield the most cost effective pricing and supply efficiency. As
    such, the Parties agree the Manufacturer will manufacture a set quantity of the Product on a monthly basis, and have such
    Product available for shipment upon completion thereof.




 


	 	2.1.1        Remainder
    of [***]




 


		From
    the Effective Date of this Agreement, through [***], the Parties agree approximately [***] kg of Product shall
    be manufactured and delivered to Customer, with approximately even amounts shipped monthly (i.e., approx. [***]
    kg/month). 




 





	 	2.1.2         Calendar
    Years [***]




 


		For
    each of calendar years [***], the Parties agree to a minimum of [***] kg of Product shall be manufactured and
    delivered to Customer, with approximately even amounts shipped monthly (i.e., approx. [***] kg/month). 




 



    	 



    	 



    


 


CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”



 


	 	 	2.2	Modifications
    to Quantity or Form of Product. 




 


		In
    the event the Customer requests an increase in the quantity of Product, the Customer must make such request in writing or
    via electronic mail, and the Manufacturer shall notify the Customer of the approximate lead time, not to exceed three months,
    necessary to implement such a change. The Parties agree to work together in good faith to implement any necessary changes
    in the order quantity as expeditiously and cost effectively as possible. The Parties acknowledge and agree Manufacturer’s
    current maximum capacity for manufacturing the Product for Customer is approximately [***] kg/month, and upon request
    and reasonable notice, Manufacturer can increase capacity to such amounts. 




 





	 	 	2.3	Exclusivity






  


		During
    the Term of this Agreement, the Parties agree Manufacturer shall only manufacture, develop or produce Product for Customer
    or for Customer’s commercial benefit, if specifically authorized by Customer. However, nothing herein shall preclude
    Manufacturer from using Product for non-commercial purposes to further its own research advancements.




 





	 	3.	SHIPMENTS









  


		All
    Products delivered pursuant to the terms of this Agreement shall be suitably packed for shipment in accordance with industry
    standards in sealed containers/bags, marked for shipment to Customer’s requested destination, and delivered to a carrier
    or forwarding agent, as determined by Customer. Shipment will be F.O.B at Manufacturer, or Manufacturer’s designated
    facility, and all freight, insurance, and other shipping expenses, as well as any special packing expenses not included in
    the original price quotation for the Products will be paid by Customer.




 





	 	4.	cGMP
    COMPLIANCE, CERTIFICATE OF ANALYSIS AND WARRANTIES






 





	 		4.1	cGMP
    Compliance




 


		Manufacturer
    agrees that all Products made hereunder shall be manufactured in accordance with cGMP Compliance standards. In particular,
    Manufacturer agrees to comply with cGMP batch record keeping standard as set forth by German Good Manufacturing Practice standards
    for foodstuffs. The Parties agree the resulting Product or Blended Product shall also be in specific compliance with the standards
    set forth in Exhibits C and D, respectively.




 


	 	 	4.2	Certificate
    of Analysis




 


		Manufacturer
    agrees to perform the necessary testing and analysis for each batch of Product or Blended Product manufactured and provide
    Customer with a Certificate of Analysis therewith. Such Certificate of Analysis for each batch shall include test results
    for various parameters listed in Exhibits C and D. Such Certificate of Analysis shall be signed and certified by a qualified
    employee of Manufacturer.




 




    	2



    	 



    

 


CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”



 


	 	 	4.3	Certificate
    of Veterinarian



  


		Manufacturer
    agrees to obtain the necessary certifications from a licensed German veterinarian for each batch of Product or Blended Product
    manufactured for purposes of exporting the Product from the European Union. Customer shall notify Manufacturer of the requisite
    certification standards pertaining to the importation of egg-based products from the European Union into the United States.




  


	 	 	4.4	Express
    Warranty




 


		(a)	Manufacturer
                                                                                                                        warrants
                                                                                                                        that the
                                                                                                                        Product
                                                                                                                        or the
                                                                                                                        Blended
                                                                                                                        Product
                                                                                                                        will conform
                                                                                                                        to all
                                                                                                                        applicable
                                                                                                                        product
                                                                                                                        specifications
                                                                                                                        as set
                                                                                                                        forth
                                                                                                                        herein
                                                                                                                        and will
                                                                                                                        be free
                                                                                                                        from contamination,
                                                                                                                        i.e.,
                                                                                                                        under
                                                                                                                        the threshold
                                                                                                                        limits
                                                                                                                        established
                                                                                                                        in Exhibit
                                                                                                                        C and
                                                                                                                        Exhibit
                                                                                                                        D.
                                                                                                                        



 


		(b)	Upon
                                                                                                                        any failure
                                                                                                                        of a Product
                                                                                                                        or Blended
                                                                                                                        Product
                                                                                                                        to comply
                                                                                                                        with any
                                                                                                                        and all
                                                                                                                        applicable
                                                                                                                        warranties,
                                                                                                                        the Manufacturer
                                                                                                                        shall
                                                                                                                        promptly
                                                                                                                        replace
                                                                                                                        such quantity
                                                                                                                        of Product
                                                                                                                        or Blended
                                                                                                                        Product
                                                                                                                        at no
                                                                                                                        additional
                                                                                                                        cost,
                                                                                                                        within
                                                                                                                        thirty
                                                                                                                        (60) days
                                                                                                                        of written
                                                                                                                        notification
                                                                                                                        of such
                                                                                                                        failure.



 


		(c)	The
                                                                                                                        warranties
                                                                                                                        outlined
                                                                                                                        in this
                                                                                                                        Agreement
                                                                                                                        are for
                                                                                                                        the benefit
                                                                                                                        of Customer
                                                                                                                        only and
                                                                                                                        are not
                                                                                                                        assignable.



 


	 	5.	PAYMENT
                                                                                 TERMS, PRODUCT PRICING & CASH UPON SIGNING







 


	 	 	5.1	Payment
    Terms






  


		In
    consideration for the consistency in Product delivery, and discount in pricing, Customer shall pay for Product in accordance
    with the following schedule (within 5 business days of the dates set forth herein):




 





	 	The Effective Date of this Agreement:  	[***] kg
	 	August 1, 2014:	[***] kg
	 	September 1, 2014:	[***] kg
	 	October 1, 2014:	[***] kg
	 	January 1, 2015:	[***] kg
	 	April 1, 2015:	[***] kg
	 	July 1, 2015:	[***] kg
	 	October 1, 2015:	[***] kg
	 	January 1, 2016:	[***] kg
	 	April 1, 2016:	[***] kg
	 	July 1, 2016:	[***] kg
	 	October 1, 2016:	[***] kg




  


	 	 	5.2	Product
    Pricing




 


		For
    the period between the Effective Date and [***], the Parties agree the price per kilogram of Product shall be [***]
    Euros ([***]€). For the period between [***], the Parties agree the price per kilogram of Product shall
    not exceed [***] Euros ([***]€). Manufacturer shall use its best efforts to reduce such price through cost
    savings with its vendors, which it shall pass through to Customer. 




 


		In
    the event Manufacturer is delivering Blended Product to Customer, as set forth herein, the Parties agree the price per kilogram
    of Blended Product shall be [***] Euros and [***] cents ([***]€) for the period between the Effective
    Date and [***]. For the period between [***] and [***], the Parties agree the price per kilogram of Blended
    Product shall not exceed [***] Euros and [***] cents ([***]€). Manufacturer shall use its best efforts
    to reduce such price through cost savings with its vendors, which it shall pass through to Customer.




 



    	3



    	 



    




 


CONFIDENTIAL TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”


 





	 	 	5.3	True-Up
    at Each Payment




 


		The
    Parties agree and acknowledge that commencing with the August 1, 2014 payment, the Parties shall “true-up” any
    outstanding overpayment/underpayment for Product actually delivered since the previous payment, at the rate applicable at
    the time of the advance. For example, if payment is made for [***] kg on the Effective Date hereof, and as of August
    1, 2014, only [***] kg of Product are manufactured and delivered according to the terms hereunder, Customer shall have
    a credit of [***] kg @ [***]€/kg to be applied to the August 1, 2014 payment. In another example, if Customer
    receives [***] kg of Product between the Effective Date and [***], Customer shall pay for the additional [***]
    kg @ [***]€/kg, plus the advance for the following period. 




 


	 	 	5.4	Resolution
    of all Outstanding Balances




 


		Any
    outstanding balance owed by Customer to Manufacturer as of the Effective Date shall be paid in full by Customer within 10
    business days of the Effective Date hereof.




 


	 	6.	IP
    ASSIGNMENT & ROYALTIES




 


	 	 	6.1	Assignment
    of U.S. Patent Application




 


		Upon
    execution of this Agreement, Manufacturer shall assign and hereby does assign United States Patent Application Serial No.
    13/765,340 (the “U.S. Application”) to Customer, including all related rights associated therewith. Manufacturer
    shall execute the recordable assignment document (“Assignment”) for recordation at the United States Patent and
    Trademark Office (“USPTO”) , as set forth in Exhibit E, at the time of execution of this Agreement, so that the
    Parties may avoid the need to file this Agreement in its entirety with the USPTO. Manufacturer will execute any additional
    documents reasonably required to perfect such assignment recordations as well.




 


	 	 	6.2	Royalty
    Payment




 


		Upon
    expiration of the Term of this Agreement, for a period of [***] years thereafter (“Royalty Term”), to the
    extent Customer manufactures a product in the United States using a method protected by either the patent to issue from the
    U.S. Application (hereinafter “Patented Method”), Manufacturer shall be entitled to a royalty payment from Customer
    in the amount of [***] dollars ($[***] USD) per kilogram of Product produced by Customer during the Royalty
    Term in the United States. 




 


		In
    the event Customer manufactures a muscle health product using dried fertilized egg yolk in either the United States, using
    a method not covered by any of the Patented Methods, Manufacturer shall be entitled to a royalty payment from Customer in
    the amount of [***] ($[***] USD) per kilogram of Product produced by Customer during the Royalty Term. 




 






    	4



    	 



    

  


CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”



 


	 	 		6.2.1        Minimum
    Guaranteed Royalty




 


		In
    consideration for assignment of the U.S. Application herein, Customer shall commit to a total guaranteed minimum royalty payment
    to Manufacturer of [***] dollars ($[***] USD). In the event the royalty payment, based on the terms above, falls
    short of the guaranteed minimum amount, Customer shall pay the difference between the guaranteed minimum amount, and any actual
    amount paid, within thirty (30) days from the end of the Royalty Term. 




 


	 	 		6.2.2         Maximum
    Royalty




 


		During
    the Royalty Term, the Parties agree the maximum royalty amount Customer shall pay in consideration for assignment of the U.S.
    Application herein shall be [***] dollars ($[***] USD). For sake of clarity, over the course of the Royalty
    Term, in the event Customer pays royalties to Manufacturer under this Section 6 in the amount of [***] dollars ($[***]
    USD), no further royalties shall be due to Manufacturer for any purpose whatsoever. 




 


	 	 	6.3	Right
    of First Refusal to EU Patent Rights




 


		Manufacturer
    is the owner of European Patent No. 12171561 (the “EP Patent”), which covers substantially similar subject matter
    as the U.S. Application, and as of the Effective Date, is valid in several European jurisdictions. The Parties agree, in the
    event a third party expresses bona fide interest in EU Patent (i.e., either to license or acquire the EU Patent)
    and Manufacturer agrees in principal to the same, at any time during the validity of the EU Patent, Manufacturer shall notify
    Customer of the same in writing, and shall offer Customer a right of first refusal to any potential transaction involving
    the EU Patent. Customer shall have one hundred twenty (120) days from the receipt of the written notice to review, analyze,
    and consider accepting its right of first refusal to such terms for the EU Patent. Manufacturer agrees any assignment or licensing
    of rights to the EU Patent to any third party, without following the right of first refusal terms herein, shall render such
    assignment or license null and void.




 


	 	7.	TERM
    AND TERMINATION




 


	 	 	7.1	Term




 


		The
    term of this Agreement shall commence on the Effective Date, and shall continue through December 31, 2016. Upon request from
    Customer, this Agreement may be renewed for subsequent one year terms indefinitely unless terminated by either party giving
    thirty (90) days written notice prior to the expiration of any renewal term.




 


	 	 	7.2	Termination




 


		This
    Agreement may only be terminated by either party for cause upon written notice to the other party of a material breach hereof,
    or upon written agreement of the Parties. Upon receipt of such notification, the breaching party shall be permitted Sixty
    (60) days to cure any such breach. If after such sixty (60) days period the breaching party has not cured such breach, then
    the non-breaching party may terminate this Agreement immediately upon sending written notification of the same to the breaching
    party. Termination of this Agreement shall not affect the obligations of either Party that exist as of the date of termination.




 






    	5



    	 



    




 


CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”



 


	 	8.	LIMITATIONS
    OF LIABILITY




 


	 	 	8.1	Patents,
    Copyrights, Trade Secrets, Other Proprietary Rights




 


		Each
    Party (“Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (“Indemnified Party”)
    from all claims, costs, damages, judgments, and attorney’s fees resulting from or arising out of any alleged and/or
    actual infringement or other violation of intellectual property rights in connection with the performance by the Indemnifying
    Party of its obligations under this Agreement (“Intellectual Property Rights”). The Indemnified Party shall promptly
    notify the Indemnifying Party in writing of the initiation of any such claims. In the event of any litigation, suit or other
    proceedings relating to or concerning such Intellectual Property Rights, the Indemnified Party shall permit
    the Indemnifying Party to assume the defense thereof, and cooperate with the Indemnifying Party with respect to such defense.
    If the Indemnifying Party elects not to assume the defense, the Indemnified Party shall have the right to seek, and have the
    Indemnifying Party pay for separate counsel representing the interests of Indemnified Party. Further, any and all settlements
    regarding such Intellectual Property Rights shall be approved in writing by an authorized representative of Indemnified Party.




 


		THE
    FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES TO EACH OTHER CONCERNING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.




 


	 	 	8.2	No
    Other Liability




 


		INDEPENDENT
    OF OR UNDER THE EXPRESS WARRANTIES CREATED UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
    FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT
    OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE,
    INTENTIONAL MISCONDUCT OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE ONE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY
    SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE, IT BEING ACKNOWLEDGED
    BY THE PARTIES THAT THIS LIMITATION OF LIABILITY IS ESSENTIAL CONSIDERATION FOR ENTERING INTO AND PERFORMANCE OF THIS AGREEMENT.
    




 


	 	 	8.3	Customer
    Responsible for U.S. Liability




 


		Notwithstanding
    any of the above paragraphs, and for the avoidance of doubt, with the exception of willful or intentional acts or gross misconduct
    of Manufacturer, Customer shall be responsible for any liability occurring within the United States, arising from Manufacturer’s
    manufacture of Products in accordance with the terms of this Agreement.




 


	 	9.	RESEARCH
    AND DEVELOPMENT COLLABORATION




 


		The
    Parties agree the Research and Development Services Agreement, entered into between the Parties on September 20, 2013, shall
    remain in full force and effect for the duration of the term thereof, including all amendments formally made in writing and
    executed by both Parties.




  






    	6



    	 



    




 


CONFIDENTIAL
TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”





 


	 	10.	MISCELLANEOUS




 


	 	 	10.1	Entire
    Agreement




 


		This
    Agreement constitutes the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes
    all prior agreements and understandings between the parties relating to such transactions, unless such prior agreements are
    expressly identified herein as remaining in full force and effect. Each Party shall hold the existence and terms of this Agreement
    confidential, unless it obtains the other Party’s express written consent otherwise, provided that Manufacturer may
    use Customer’s name as a reference unless otherwise instructed in writing by Customer.




 


	 	 	10.2	Amendments




 


		This
    Agreement may be amended only by a writing executed by authorized representatives of both parties.




  


	 	 	10.3	Independent
    Contractor




 


		Neither
    party shall, for any purpose, be deemed to be an agent of the other party nor shall the relationship between the parties only
    be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or
    to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party
    in any respect whatsoever.




 


	 	 	10.4	Expenses




 


		In
    the event a dispute between the parties hereunder with respect to this Agreement must be resolved by litigation or other proceeding
    or a party must engage an attorney to enforce its right hereunder, the prevailing party shall be entitled to receive reimbursement
    for all associated reasonable costs and expenses (including, without limitation, attorney’s fees) from the other party.




 


	 	 	10.5	Governing
    Law




 


		This
    Agreement shall be governed by and construed under the laws of the United Kingdom.




 


	 	 	10.6	Assignment




 


		(a)	Neither
                                                                                                                        party
                                                                                                                        shall
                                                                                                                        assign
                                                                                                                        or transfer
                                                                                                                        this Agreement,
                                                                                                                        except
                                                                                                                        as expressly
                                                                                                                        provided
                                                                                                                        herein,
                                                                                                                        without
                                                                                                                        the prior
                                                                                                                        written
                                                                                                                        consent
                                                                                                                        of the
                                                                                                                        other
                                                                                                                        party;
                                                                                                                        provided,
                                                                                                                        however,
                                                                                                                        that a
                                                                                                                        Party
                                                                                                                        may transfer
                                                                                                                        or assign
                                                                                                                        its rights
                                                                                                                        and obligations
                                                                                                                        under
                                                                                                                        this Agreement
                                                                                                                        in connection
                                                                                                                        with a
                                                                                                                        merger,
                                                                                                                        reorganization,
                                                                                                                        consolidation
                                                                                                                        or sale
                                                                                                                        of all
                                                                                                                        or substantially
                                                                                                                        all of
                                                                                                                        its assets.



 


		(b)	This
                                                                                                                        Agreement
                                                                                                                        shall
                                                                                                                        be binding
                                                                                                                        upon and
                                                                                                                        inure
                                                                                                                        to the
                                                                                                                        benefit
                                                                                                                        of the
                                                                                                                        parties’
                                                                                                                        successors
                                                                                                                        and assigns
                                                                                                                        as permitted
                                                                                                                        herein.



 






    	7



    	 



    




 


CONFIDENTIAL TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***”


 





	 	 	10.7	Customer’s
    Confidential Information




 


		The
    Parties agree the Mutual Non-Disclosure Agreement executed between them prior to the date hereof, shall be incorporated herein
    as if written in full herein.




 


	 	 	10.8	Notice




 


		Any
    notice or other communication required or permitted hereunder shall, unless otherwise provided herein, be made in writing
    and shall be delivered personally or sent by an overnight delivery or courier service, by certified or registered mail (postage
    prepaid), by telegraph, by telex, by facsimile transmission, or by email to the address first specified in this Agreement
    or to such other address as either party may designate. Such notice or other communication shall be deemed given when so delivered
    personally, telegraphed, telexed or sent by facsimile transmission, or, if sent by overnight delivery or courier service,
    the day after sent, or if mailed, (3) days after the date of deposit in the mails.




 


	 	 	10.9	Other




 


		If
    any term or provision of the Agreement is declared to be invalid or unenforceable, it shall be deemed to be omitted or modified
    to the extent necessary to render it valid or enforceable, and the remainder of this Agreement shall continue in full force
    and effect. Failure of either party to enforce any provision hereof shall not be construed as a waiver thereof or prevent
    enforcement on any other occasion or of any other provisions. Headings are for reference only; and the use of the singular
    and plural number shall each be deemed to include the other as indicated by the context. All provisions in this Agreement
    which by their language, nature or context are intended to survive, such as without limitation, payment limitation of liability
    and indemnification provisions, shall survive any termination of this Agreement.




 


	 	 	10.10	FORCE
    MAJEURE




 


		In
    the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement
    (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic,
    destruction of production facilities, riot, insurrection, material unavailability, electricity or other utility or telecommunication
    outage or suspension of services, or any other cause beyond the reasonable control of the party (or its selected vendors,
    affiliates, or the like) invoking this section, and if such party shall have used its best efforts to mitigate its effects,
    such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance
    shall be extended for the period of delay or inability to perform due to such occurrences. Regardless of the excuse of Force
    Majeure, if such party is not able to perform within forty-five (45) days after such event, the other party may terminate
    this Agreement.




 






    	8



    	 



    




 


CONFIDENTIAL TREATMENT REQUESTED


WITH
RESPECT TO CERTAIN PORTIONS HEREOF


DENOTED
WITH “***” 


 


ACCEPTED AND AGREED TO:


 





	FOR
    MYOS CORPORATION	 	FOR
    D.I.L.:
	 	 	 	 	 
	By:  	/s/
    Peter Levy	 	By:  	/s/
    Volker Heinz 
	Printed
    Name: Peter Levy	 	Printed
    Name: Volker Heinz
	Title:
    President	 	Title:
    CEO







 


9