Exhibit 10.01





Exhibit 10.01




First Amended and Restated




ARA Alliance, Purchase and Production Agreement




By and Between




Martek Biosciences Corporation




And




DSM Food Specialties B.V.




Dated as of July 13, 2009






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






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 
	 	 	 	 
	1. INTRODUCTION
	 	 	1	 
	 
	 	 	 	 
	2. DEFINITIONS
	 	 	2	 
	 
	 	 	 	 
	3. SUPPLY, PRODUCTION AND ORDERS
	 	 	15	 
	 
	 	 	 	 
	3.1. Martek Requirements for ARA Products
	 	 	15	 
	 
	 	 	 	 
	3.2. DSM Production
	 	 	16	 
	 
	 	 	 	 
	3.3. Martek Production
	 	 	17	 
	 
	 	 	 	 
	3.4. Extraction and RBD Services
	 	 	20	 
	 
	 	 	 	 
	3.5. Martek Three Year Rolling Forecasts; Martek Firm Orders
	 	 	23	 
	 
	 	 	 	 
	3.6. DSM Three Year Rolling Forecast; DSM Firm Orders
	 	 	24	 
	 
	 	 	 	 
	3.7. Delivery Instructions
	 	 	24	 
	 
	 	 	 	 
	3.8. Shipment
	 	 	25	 
	 
	 	 	 	 
	3.9. Order Fulfillment
	 	 	26	 
	 
	 	 	 	 
	3.10. Limitation on Breach
	 	 	26	 
	 
	 	 	 	 
	4. QUALITY AND VERIFICATION
	 	 	27	 
	 
	 	 	 	 
	4.1. Verification of Production
	 	 	27	 
	 
	 	 	 	 
	4.2. Certification of Analysis
	 	 	27	 
	 
	 	 	 	 
	4.3. Refined Biomass Specification; Specification Changes
	 	 	29	 
	 
	 	 	 	 
	4.4. Ongoing Biomass Quality Review; Verification of Production Changes
	 	 	30	 
	 
	 	 	 	 
	4.5. Inspection
	 	 	30	 
	 
	 	 	 	 
	4.6. Manufacturing Changes
	 	 	31	 
	 
	 	 	 	 
	4.7. ARA Product Non-Conformity Procedure; Rework and Destruction
	 	 	34	 
	 
	 	 	 	 
	4.8. Compliance
	 	 	35	 





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




 


 









 





	 	 	 	 	 
	4.9. Disclaimers
	 	 	36	 
	 
	 	 	 	 
	5. MARKETING
	 	 	37	 
	 
	 	 	 	 
	5.1. Expansion of Fields of Use
	 	 	37	 
	 
	 	 	 	 
	5.2. Customer Contracts
	 	 	37	 
	 
	 	 	 	 
	5.3. Priority of ARA Marketing
	 	 	38	 
	 
	 	 	 	 
	5.4. * Arrangements with * Customers
	 	 	38	 
	 
	 	 	 	 
	5.5. Notification and Challenge Procedure
	 	 	39	 
	 
	 	 	 	 
	6. FINANCIAL MATTERS
	 	 	42	 
	 
	 	 	 	 
	6.1. Amounts Payable by Martek
	 	 	42	 
	 
	 	 	 	 
	6.2. Reconciliations to the Budgeted Price
	 	 	46	 
	 
	 	 	 	 
	6.3. Adjustments to the Budgeted Price
	 	 	48	 
	 
	 	 	 	 
	6.4. Amounts Payable by DSM
	 	 	50	 
	 
	 	 	 	 
	6.5. Invoices and Payment
	 	 	51	 
	 
	 	 	 	 
	6.6. Interest Charges for Inventory
	 	 	52	 
	 
	 	 	 	 
	6.7. Margin Protection
	 	 	52	 
	 
	 	 	 	 
	6.8. Stop Loss
	 	 	53	 
	 
	 	 	 	 
	6.9. Review of Alliance Structure and Economics; Renegotiation of Pricing Arrangements
	 	 	54	 
	 
	 	 	 	 
	6.10. Transparency
	 	 	54	 
	 
	 	 	 	 
	6.11. Books and Records
	 	 	55	 
	 
	 	 	 	 
	6.12. Break Up Fee
	 	 	56	 
	 
	 	 	 	 
	6.13. Considerations for Payments and Volume Commitments
	 	 	56	 
	 
	 	 	 	 
	7. PRODUCT DEVELOPMENTS AND PATENTS
	 	 	57	 
	 
	 	 	 	 
	7.1. R&D Collaboration
	 	 	57	 





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




 


 









 





	 	 	 	 	 
	7.2. Intellectual Property Rights
	 	 	59	 
	 
	 	 	 	 
	7.3. Prosecution, Maintenance and Enforcement
	 	 	62	 
	 
	 	 	 	 
	7.4. Intellectual Property Licenses
	 	 	66	 
	 
	 	 	 	 
	7.5. Technology Transfers
	 	 	72	 
	 
	 	 	 	 
	7.6. Protection of Other Joint Intellectual Property
	 	 	73	 
	 
	 	 	 	 
	8. ORGANIZATION (COMMUNICATION, COMMITTEES)
	 	 	74	 
	 
	 	 	 	 
	8.1. Formation of the Committee
	 	 	74	 
	 
	 	 	 	 
	8.2. Meetings of the Committee
	 	 	74	 
	 
	 	 	 	 
	8.3. Status Reports of the Committee
	 	 	74	 
	 
	 	 	 	 
	8.4. Scope of the Committee Meetings
	 	 	75	 
	 
	 	 	 	 
	8.5. Deadlock Within a Committee
	 	 	75	 
	 
	 	 	 	 
	8.6. Deadlock Within the Committee Over Factual Matters
	 	 	75	 
	 
	 	 	 	 
	8.7. Deadlock Within the Committee Over Non-Factual Matters
	 	 	76	 
	 
	 	 	 	 
	8.8. External Communication
	 	 	76	 
	 
	 	 	 	 
	9. TERM; TERMINATION; DAMAGES
	 	 	77	 
	 
	 	 	 	 
	9.1. Term
	 	 	77	 
	 
	 	 	 	 
	9.2. Termination for Cause
	 	 	77	 
	 
	 	 	 	 
	9.3. Effect of Expiration and Termination on Intellectual Property Rights
	 	 	80	 
	 
	 	 	 	 
	9.4. Other Effects of Termination; Damages; Cap
	 	 	84	 
	 
	 	 	 	 
	9.5. Limitation of Liability
	 	 	88	 
	 
	 	 	 	 
	10. GENERAL
	 	 	88	 
	 
	 	 	 	 
	10.1. Non-Solicitation
	 	 	88	 
	 
	 	 	 	 
	10.2. Confidential Information
	 	 	89	 
	 
	 	 	 	 
	10.3. Survival
	 	 	89	 





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




 


 









 





	 	 	 	 	 
	10.4. Trademarks
	 	 	90	 
	 
	 	 	 	 
	10.5. Disputes; Arbitration
	 	 	91	 
	 
	 	 	 	 
	10.6. Regulatory Matters
	 	 	92	 
	 
	 	 	 	 
	10.7. Assignment, Delegation and Subrogation; Insurance Inspection
	 	 	92	 
	 
	 	 	 	 
	10.8. Amendments and Waivers
	 	 	93	 
	 
	 	 	 	 
	10.9. Severability
	 	 	93	 
	 
	 	 	 	 
	10.10. Relationship of the Parties
	 	 	94	 
	 
	 	 	 	 
	10.11. Notices
	 	 	94	 
	 
	 	 	 	 
	10.12. Governing Law
	 	 	95	 
	 
	 	 	 	 
	10.13. Force Majeure
	 	 	95	 
	 
	 	 	 	 
	10.14. No Waivers
	 	 	95	 
	 
	 	 	 	 
	10.15. Entire Agreement
	 	 	96	 
	 
	 	 	 	 
	10.16. Counterparts
	 	 	96	 
	 
	 	 	 	 
	10.17. Guarantees
	 	 	96	 
	 
	 	 	 	 
	10.18. Hierarchy of Documents
	 	 	96	 




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




 


 









 





MARTEK BIOSCIENCES CORPORATION

DSM FOOD SPECIALTIES BV




FIRST AMENDED AND RESTATED




ARA ALLIANCE, PURCHASE AND PRODUCTION AGREEMENT




This First Amended and Restated ARA Alliance, Purchase and Production Agreement (the “Restated
Agreement”) is made and entered into this 13th day of July, 2009 (the “Restatement Effective Date”)
by and between DSM Food Specialties B.V., a Besloten Vennootschap organized under the laws of the
Netherlands with its principal place of business at A. Fleminglaan 1, 2613 AX Delft, the
Netherlands (“DSM”), and MARTEK BIOSCIENCES CORPORATION, a corporation organized under the laws of
the State of Delaware with its principal place of business at 6480 Dobbin Road, Columbia, Maryland
21045, USA (“Martek”) who, intending to be legally bound, hereby agree as follows:



1. INTRODUCTION




1.1 Martek and DSM have developed certain complementary (and, in some cases, blocking)
technology for the production, refining and blending of arachidonic acid for use in infant formula
to meet the nutritional needs of infants and as a potential nutritional supplement and/or food
ingredient for young children, pregnant and lactating women and adults generally. Martek owns
technology related to the manufacture and use of arachidonic acid and has certain issued patents
and pending patent applications throughout the world claiming (a) certain processes for the
manufacture of arachidonic acid, (b) certain compounds and (c) certain uses; and DSM owns
technology related to the manufacture of arachidonic acid and has certain issued patents and
pending patent applications throughout the world claiming (a) certain processes for the manufacture
of arachidonic acid, (b) certain formulations for that product, (c) certain compounds and (d)
certain applications. Martek has also obtained certain governmental regulatory approvals for the
use of arachidonic acid in infant formula.



1.2 Martek and DSM entered into an ARA Alliance, Purchase, and Production Agreement as of
April 19, 2004 (the “Signing Date”), but with effect as of and as though entered into on January 1,
2004 (the “Effective Date of the Alliance”) pursuant to which Martek and DSM agreed to certain
cross-licensing, purchase, and production arrangements (the “Alliance Agreement”) relating to
arachidonic acid, and entered into a related August 2004 letter agreement (the “August 2004 Letter
Agreement”).



1.3 Martek and DSM entered into a First Amendment to the Alliance Agreement (the “First
Amendment”) as of the 31st day of December, 2005, but with effect as of and as though entered into
on January 1, 2005 that sets forth certain amendments to the Alliance Agreement.


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




 


1









 





1.4 Martek and DSM entered into a Second Amendment to the Alliance Agreement (the “Second
Amendment”) effective as of the 1st day of January 2007 (the “Effective Date of the Second
Amendment”) that sets forth certain further amendments to the Alliance Agreement.



1.5 Martek and DSM thereafter entered into a letter agreement (the “Guarantee Remainder
Letter”) dated as of April 23, 2008 to address certain commitments under the Alliance Agreement, as
amended by the First Amendment and the Second Amendment.



1.6 Martek and DSM entered into a Heads of Agreement for the Third Amendment of the DSM-Martek
Alliance Agreement dated December 23, 2008 (the “Heads of Agreement”).



1.7 Martek and DSM now desire to enter into this Restated Agreement in order to consolidate
and restate the Alliance Agreement, as amended by the 2004 Letter Agreement, the First Amendment,
the Second Amendment and the Guarantee Remainder Letter and as supplemented by the Heads of
Agreement, and to make further amendments to the rights and obligations of the parties hereto,
effective as of the Restatement Effective Date, all as set forth herein.



1.8 Martek and DSM acknowledge that without the covenants, commitments and agreements relating
to Intellectual Property cross-licensing, potential reciprocal capacity expansion, purchase and
supply relationships, and certain other information-sharing and interdependencies set forth in the
Alliance Agreement (as amended to date) and this Restated Agreement, DSM and Martek would not be
able or willing to contribute their complementary resources to cooperative marketing and joint
research and development efforts to expand the applications and fields of use for arachidonic acid.




Now, therefore, the parties hereto hereby agree as follows.



2. DEFINITIONS




2.1. “ABN” shall mean Advanced Bionutrition Corporation, a Maryland corporation with offices
at 7155 Columbia Gateway Drive, Columbia, Maryland 21046.




2.2. “Actual Rates” shall have the meaning set forth in Section 6.2(b).



2.3. “Actual Usage” shall mean that quantity of ARA Products contained in a Martek Purchase
Order for a quarter placed by Martek in accordance with Section 3.5(c) and actually delivered by
DSM to Martek in accordance herewith.




2.4. “Additional Capital Asset(s)” shall have the meaning set forth in Section 4.6(d).



2.5. “Adult Applications Gross Profits” shall mean the combined Gross Profits realized by DSM
and Martek, from DSM’s manufacture of the ARA Products to Martek’s sales
to its customer, less the selling and transaction costs related to such sales, on the sales of
Units of ARA that are ultimately sold for use in ARA Applications for Adults.


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




 


2









 





2.6. “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, such Person. A Person shall
be deemed to “control” another Person if such Person possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of such other Person, whether
through ownership of voting securities, by contract or otherwise.



2.7. “Agreed Annual Fixed Cost” shall mean the Agreed Annual Fixed Cost for the relevant
calendar year as set forth in Section 6.1.



2.8. “Agreed Price” shall mean the amount paid by Martek to DSM per Unit of ARA with respect
to each calendar year 2009 through 2014 based on the Units of ARA purchased by Martek determined by
reference to the applicable Budgeted Price in Section 6.1, as revised to reflect any
reconciliations and adjustments as set forth in Sections 6.2 and 6.3.




2.9. “Approved Capital Asset(s)” shall have the meaning set forth in Section 4.6(d).




2.10. “ARA” shall mean the fatty acid called “arachidonic acid”.



2.11. “ARA Applications for Adults” shall mean products containing ARA Products that are
specifically labeled and/or marketed for persons over twelve (12) years of age, but shall not
include any products containing ARA Products that are specifically labeled for pregnant and/or
lactating women.



2.12. “ARA Assay Procedure” shall mean the method to determine the content of ARA in any
Biomass, Crude Oil or Finished Oil set forth in Schedule 2.12.



2.13. “ARA Fields of Use” shall mean, with respect to Martek, the Martek ARA Fields of Use
and, with respect to DSM, the DSM ARA Fields of Use.



2.14. “ARA Products” shall mean Biomass, Crude Oil, Finished Oil, Spent Biomass and ARA
produced in any other form and/or made by any process wherein the ARA content is greater than * of
total fatty acids.




2.15. “Audited Party” shall have the meaning set forth in Section 6.11.



2.16. “Biomass” shall mean fermentation product containing ARA conforming to the
Specifications set forth in Schedule 2.16.



2.17. “Blended Product” shall mean a product containing an ARA Product and one or more other
long chain polyunsaturated fatty acids.


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




 


3









 






2.18. “Breaching Party” shall have the meaning set forth in Section 9.2(b)(i)(A).




2.19. “Break Up Fee Account” shall have the meaning set forth in Section 6.12(a).




2.20. “Budgeted Price” shall be determined as specified in Section 6.1.




2.21. “Budgeted Rates” shall have the meaning set forth in Section 6.1.




2.22. “Cap” shall have the meaning set forth in Section 9.4(c).



2.23. “Capacity Dispute” shall mean the disagreement of the parties as to whether, pursuant to
Section 3.3(c), a DSM Shortfall is projected based on the Martek Three Year Rolling Forecast and
the DSM Three Year Rolling Production Forecast because Martek disagrees with DSM Three Year Rolling
Production Forecast or otherwise.



2.24. “cGMPs” shall mean those current good manufacturing practices that are appropriate for
the manufacturer of an ingredient that is used in infant formulas and foods, feeds and
pharmaceuticals and shall specifically include those FDA regulations pertaining to infant formulas
and food ingredients appearing in the Code of Federal Regulations, Title 21, Parts 106 and 110,
including FDA guidelines related thereto and other FDA interpretations thereof.




2.25. “Claim” shall have the meaning set forth in Section 4.2(c).




2.26. “Committee” shall have the meaning set forth in Section 8.1.




2.27. “Confidential Information” shall have the meaning set forth in Section 10.2.



2.28. “Crude Oil” shall mean an ARA Product that is collected after Extraction and that
conforms to the Specifications set forth in Schedule 2.28.




2.29. “Current Year” shall have the meaning set forth in Section 6.1.




2.30. “Customer ARA Production Royalty” shall have the meaning set forth in Section 6.1(i).




2.31. “Decision Date” shall have the meaning set forth in Section 5.5(b).




2.32. “Declining Party” shall have the meaning set forth in Section 7.3(a)(iii).



2.33. “DHA” shall mean the fatty acid called “docosahexanoic acid” produced by fermentation or
derived from plants.




2.34. “DHA Product” shall have the meaning set forth in Section 7.4(e).



2.35. “*” shall mean symptoms of, damage to or deterioration of the * as a result of *.


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




 


4









 






2.36. “Disputed Fact” shall have the meaning set forth in Section 8.5.




2.37. “Disputed Issue” shall have the meaning set forth in Section 8.7.



2.38. “Down Stream Processing”, or “DSP”, shall mean the process of harvesting, recovery and
drying of Biomass.




2.39. “DSM” shall have the meaning set forth in the preamble.




2.40. “DSM Adult Application Customer” shall have the meaning set forth in Section 7.4(f).




2.41. “DSM Adult ARA Applications” shall have the meaning set forth in Section 7.4(f).




2.42. “DSM Adult ARA Products” shall have the meaning set forth in Section 7.4(f).



2.43. “DSM ARA Fields of Use” shall mean (i) any Feed Products and (ii) other uses of ARA that
are not for human oral consumption or for the purpose of providing ARA as a nutrient for humans.




2.44. “DSM ARA Field of Use Royalty” shall have the meaning set forth in Section 6.4.



2.45. “DSM Budgeted Volume” shall mean the volume of ARA Products that (i) DSM has forecasted,
pursuant to Section 3.6(a), as of November 30 of a Current Year, to require Martek Services on and
(ii) Martek has forecasted to perform Martek Services on and deliver to DSM in the Succeeding Year.



2.46. “DSM Confirmation Letter” shall mean DSM’s written confirmation to Martek of a Martek
Purchase Order.



2.47. “DSM Costs” shall mean the actual costs incurred by DSM in connection with the
production of ARA Products, including without limitation the DSM Fixed Cost per Unit of ARA and the
DSM Variable Cost per Unit of ARA, calculated in accordance with the accounting principles and
procedures set forth on Schedule 2.47.




2.48. “DSM Extraction Allocation” shall have the meaning set forth in Section 3.4(a).




2.49. “DSM Firm Order” shall have the meaning set forth in Section 3.6(a).




2.50. “DSM Fixed Cost” shall have the meaning set forth in Section 6.1.


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




 


5









 






2.51. “DSM Gross Profits” shall have the meaning set forth in Section 9.4(c).




2.52. “DSM Improvement” shall have the meaning set forth in Section 7.4(d).




2.53. “DSM Mark Up” shall have the meaning set forth in Section 6.1.



2.54. “DSM Patents” shall mean (i) all the patents listed on Schedule 2.54 and all
corresponding patents worldwide, including any corresponding supplemental protection certificate,
substitution, renewal, division, continuation, continuation-in-part, inventors’ certificate,
reissue, reexamination, extension, patent of addition, and patent of incorporation, and all
counterparts thereof; and (ii) all patents that issue from applications listed on Schedule 2.54 or
that issue from any corresponding patent application worldwide, including any regional or national
phase application, regular or provisional application, as well as any continuation,
continuation-in-part, division and renewal thereof.



2.55. “DSM Proprietary Technology” shall mean, collectively, (i) all Know-how necessary for or
useful to the manufacture, processing or use of ARA Products, including, but not limited to, the
most efficient and effective fungal strains, and which Know-how is (a) as of the Effective Date of
the Alliance owned by DSM or any DSM Affiliate and set forth on Schedule 2.55, or (b) disclosed or
required to be disclosed to Martek pursuant to Section 7.4(d) immediately prior to the Restatement
Effective Date, and (ii) all DSM Patents.



2.56. “DSM Purchase Order” shall mean the purchase order issued every quarter by DSM to Martek
to confirm the amount indicated in a DSM Firm Order.




2.57. “DSM R&D Patents” shall have the meaning set forth in Section 7.2(b)(i).




2.58. “DSM RBD Services Allocation” shall have the meaning set forth in Section 3.4(b).



2.59. “DSM Shortfall” shall mean the difference between (X) the lesser of (a) the aggregate
amount of ARA Products requested in Martek Purchase Orders for delivery during a calendar quarter
and (b) * metric tons of 40% ARA (i.e., one Unit of ARA divided by 2.5) and (Y) the aggregate
amount of ARA Products actually delivered by DSM to Martek during such calendar quarter in response
to such Purchase Orders, but not less than zero.




2.60. “DSM Three Year Rolling Forecast” shall have the meaning set forth in Section 3.6(a).



2.61. “DSM Three Year Rolling Production Forecast” shall have the meaning set forth in Section
3.5(b).




2.62. “Effective Date of the Alliance” shall have the meaning specified in the Introduction.


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




 


6









 





2.63. “Enforcing Party” shall have the meaning set forth in Section 7.3(b).



2.64. “Excluded Subject Matter” shall consist of the subject matter covered by (i) all the
patents listed on Schedule 2.64 and all corresponding patents worldwide, including any
corresponding supplemental protection certificate, substitution, renewal, division, continuation,
continuation-in-part, inventors’ certificate, reissue, reexamination, extension, patent of
addition, and patent of incorporation, and all counterparts thereof; and (ii) all patents that
issue from applications listed on Schedule 2.64 or that issue from any corresponding patent
application worldwide, including any regional or national phase application, regular or provisional
application, as well as any continuation, continuation-in-part, division and renewal thereof.
“Excluded Subject Matter” shall also include all improvements and know-how related to the patents
set forth in (i) and (ii) above.




2.65. “Extraction” shall mean the process of deriving Crude Oil from Biomass.




2.66. “EXW” shall have the meaning set forth in Incoterms 2000.




2.67. “FDA” shall mean the US Food and Drug Administration.



2.68. “Feed Products” shall mean any products (i) for the feeding, or otherwise provisioning
of nutrients, to non-human animals, including, but not limited to, mammals, fish, and birds and
(ii) not intended or marketed for the purpose of providing ARA as a nutrient for humans.



2.69. “Finished Oil” shall mean Crude Oil that has been refined, bleached and deodorized and
meets the Specifications set forth on Schedule 2.70.



2.70. “Finished Oil Specifications” shall mean the product specifications set forth in
Schedule 2.70.



2.71. “Fixed Costs” shall mean those costs that do not change directly in proportion to
changes in the number of Units of ARA produced and shall include, but not be limited to, the fixed
portions of labor, depreciation, project costs, the fixed portion of energy costs, insurance, local
taxes, site service allocations such as production staff, maintenance, purchasing, quality
assurance, and security services. Fixed Costs shall not include Variable Costs.




2.72. “FMV” shall have the meaning set forth in Section 7.2(b)(iv)(A).




2.73. “Force Majeure Event” shall have the meaning set forth in Section 10.13.




2.74. “Gross Profit” shall mean Net Sales less actual costs of goods of the ARA Products sold.


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




 


7









 





2.75. “Gross Profits on Other ARA Applications” shall mean the combined Gross Profits realized
by DSM and Martek, from DSM’s manufacture of the ARA Products to Martek’s
sales to its customer, less the selling and transaction costs related to such sales, on the
sales of Units of ARA that are ultimately sold for use in Other ARA Applications.



2.76. “Growing Up Milk” shall mean nutritionally enhanced milk and soy milk-based products
intended for use by children from twelve (12) through thirty-six (36) months of age and older.




2.77. “Guaranty Agreement” shall mean an agreement in the form set forth on Schedule 2.77




2.78. “IBA Rules” shall have the meaning set forth in Section 10.5(a).




2.79. “ICC Rules” shall have the meaning set forth in Section 10.5(a).




2.80. “IP Notice” shall have the meaning set forth in Section 5.5(a).




2.81. “IP Notice Receipt Date” shall have the meaning set forth in Section 5.5(a).




2.82. “Improvements” shall have the meaning set forth in Section 7.4(d).




2.83. “Included ARA Products” shall have the meaning set forth in Section 5.5(a).



2.84. “Infant Formula Product” shall mean a human breast milk substitute formulated
industrially in accordance with applicable Codex Alimentarius and/or FDA standards or other
applicable regulatory bodies (a) to satisfy the total normal nutritional requirements of infants
from birth up to between four (4) and six (6) months of age and adapted to their physiological
characteristics or fed in addition to other foods to infants up to approximately one (1) year of
age and older or (b) to satisfy the total normal nutritional requirements of infants born
prematurely, as well as nutritional requirements of infants with special dietary needs.




2.85. “Infringed Party” shall have the meaning set forth in Section 9.2(a)(ii).




2.86. “Infringing Party” shall have the meaning set forth in Section 9.2(a)(i)(B).



2.87. “Intellectual Property” shall mean common law and statutory rights anywhere in the world
arising under or associated with (i) patents, patent applications and inventors’ certificates, (ii)
copyrights, copyright registrations and copyright applications, and “moral” rights, (iii) the
protection of trade and industrial secrets and confidential information, including business
information (such as contact and customer lists, telephone numbers and business plans) ideas,
formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced
to practice) (“Trade Secrets”), (iv) trademarks, trade names and service marks (“Trademarks”), (v)
other proprietary rights relating or with respect to the protection of technology, (vi) rights in
Internet domain names, URL and other internet-related properties, (vii) divisions, continuations,
renewals, reissuances and extensions of the foregoing
(as applicable) and (viii) analogous rights to those set forth above, including the right to
enforce and recover damages for the infringement or misappropriation of for any of the foregoing.


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




 


8









 






2.88. “Joint Know-how” shall have the meaning set forth in Section 7.2(b)(ii).




2.89. “Joint Patents” shall have the meaning set forth in Section 7.2(b)(ii).



2.90. “Joint Proprietary Technology” shall mean, collectively, the Joint Patents and the Joint
Know-how.



2.91. “Jointly Funded ARA Research Project” shall have the meaning set forth in Section
7.1(c)(ii).



2.92. “Know-how” shall mean all know-how, Trade Secrets and technology (including, but not
limited to, manufacturing and production processes, formulations and techniques, research and
development information, methodology, drawings, specifications, designs, plans, proposals and
technical data) related to ARA.




2.93. “Know-how Records” shall have the meaning set forth in Section 7.5(c).




2.94. “Lead Party” shall have the meaning set forth in Section 7.3(a)(i).




2.95. “Leader” shall have the meaning set forth in Section 8.1.




2.96. “Liable Party” shall have the meaning set forth in Section 9.4(c).




2.97. “Losses” shall have the meaning set forth in Section 9.4(c).




2.98. “Manufacturing Party” shall have the meaning set forth in Section 4.4.




2.99. “Martek” shall have the meaning set forth in the preamble.




2.100. “Martek Allocation” shall have the meaning set forth in Section 3.1(b).



2.101. “Martek ARA Fields of Use” shall mean all ARA fields of use other than the DSM ARA
Fields of Use.



2.102. “Martek Budgeted Volume” shall mean the volume of ARA Products that (i) Martek has
forecasted, pursuant to Section 3.5(a), as of November 30 of a Current Year, to purchase from DSM
during the Succeeding Year and (ii) DSM has forecasted to produce and deliver to Martek in such
Succeeding Year.



2.103. “Martek Confirmation Letter” shall mean Martek’s written confirmation to DSM of a DSM
Purchase Order.


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




 


9









 





2.104. “Martek Costs” shall mean, for each calendar year, those expenses of Martek related to
providing Martek Services to DSM and its Affiliates calculated in accordance with (i) the
accounting principles set forth on Schedule 2.104 and (ii) the process set forth in Article 6.




2.105. “Martek Expansion” shall have the meaning set forth in Section 3.3(c).




2.106. “Martek Firm Order” shall have the meaning set forth in Section 3.5(a).




2.107. “Martek Improvement” shall have the meaning set forth in Section 7.4(d).



2.108. “Martek Patents” shall mean (i) all the patents listed on Schedule 2.108 and all
corresponding patents worldwide, including any corresponding supplemental protection certificate,
substitution, renewal, division, continuation, continuation-in-part, inventors’ certificate,
reissue, reexamination, extension, patent of addition, and patent of incorporation, and all
counterparts thereof; and (ii) all patents that issue from applications listed on Schedule 2.108 or
that issue from any corresponding patent application worldwide, including any regional or national
phase application, regular or provisional application, as well as any continuation,
continuation-in-part, division and renewal thereof.



2.109. “Martek Proprietary Technology” shall mean, collectively, (i) all Know-how necessary
for or useful to the manufacture, processing or use of ARA Products and which Know-how is (a) as of
the Effective Date of the Alliance owned by Martek or any Martek Affiliate and set forth on
Schedule 2.109, or (b) disclosed or required to be disclosed hereunder to DSM pursuant to Section
7.4(d) immediately prior to the Restatement Effective Date including without limitation technology
for the Extraction and RBD processing steps contemplated in Section 3, and (ii) all Martek Patents.



2.110. “Martek Purchase Order” shall mean the purchase order issued every quarter to confirm
the amount indicated in a Martek Firm Order.




2.111. “Martek R&D Patents” shall have the meaning set forth in Section 7.2(b)(i).



2.112. “Martek Services” shall mean Extraction and/or RBD services performed hereunder by or
for Martek for DSM, as requested by DSM in a DSM Purchase Order.



2.113. “Martek Shortfall” shall mean the difference between the amount of Crude Oil or
Finished Oil, as applicable, requested in a DSM Purchase Order and the amount of Crude Oil or
Finished Oil, as applicable, actually delivered by Martek to DSM within fifteen (15) days of the
date on which delivery is required hereunder in response to that purchase order; in each case less
the balance, if any, of the DSM RBD Services Allocation or DSM Extraction Allocation, as
applicable.



2.114. “Martek Three Year Rolling Forecast” shall have the meaning set forth in Section
3.5(a).


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




 


10









 





2.115. “Martek Three Year Rolling Services Forecast” shall have the meaning set forth in
Section 3.6(b).




2.116. “Material Breach” shall have the meaning set forth in Section 9.2(b)(i)(A).




2.117. “Material Failure” shall have the meaning set forth in Section 9.2(b)(i)(A).




2.118. “Customers” shall mean the Martek customers with * as specified on Schedule 2.118.



2.119. “Nestec” shall mean Nestec Ltd., a corporation organized under the laws of Switzerland,
with offices at Avenue Nestle 55, CH 1800, Vevey, Switzerland.



2.120. “Net Revenues” shall mean the gross monies received from sublicensing the Joint
Proprietary Technology to a non-affiliated third party minus commissions, delivery costs, sales tax
and credits for refunds and returns directly related thereto.



2.121. “Net Sales” shall mean gross monies including royalties (except the Customer ARA
Production Royalty) received from sales of ARA Products minus commissions, delivery costs, sales
tax and credits for refunds and returns directly related to such sales.




2.122. “New ARA Product” shall have the meaning set forth in Section 3.1(d).




2.123. “New R&D Inventions” shall have the meaning set forth in Section 7.2(b).




2.124. “Non-Breaching Party” shall have the meaning set forth in Section 9.2(b)(i)(B).




2.125. “Notifying Party” shall have the meaning set forth in Section 5.5(a).



2.126. “Other ARA Applications” shall mean ARA Products that are ultimately sold for use in
the Martek ARA Fields of Use, other than for Infant Formula Products, Products for Babies and ARA
Applications for Adults.



2.127. “Other Materials” shall mean the list of items labeled “Other Materials” on Schedule
6.1-B.




2.128. “Out of Scope Customer” shall have the meaning set forth in Section 5.2.




2.129. “Patent Expenses” shall have the meaning set forth in Section 7.3(a)(i).




2.130. “Patent Proponent Party” shall have the meaning set forth in Section 7.3(a)(ii).


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




 


11









 





2.131. “Patent Protection Process” shall have the meaning set forth in Section 7.3(a)(i).



2.132. “Person” shall mean any individual, partnership, limited liability company, joint
venture, firm, corporation, association, business, trust, unincorporated organization or other
enterprise or form of organization and any governmental authority.



2.133. “PPI” shall mean the US Producer Price Index for code PC UOMFG for “all other
miscellaneous food manufacturing” (Series PCU 311999311999) as published by the Bureau of Labor
Statistics of the United States Department of Labor.



2.134. “Production Technology” shall mean any New R&D Inventions necessary for or useful to
the manufacture of ARA in any biomass.



2.135. “Products for Babies” shall mean any products specifically labeled and/or marketed for
babies, toddlers, infants and/or children up to three (3) years of age, other than Infant Formula
Products, but including Growing Up Milk.




2.136. “Profit Sharing Fee” shall have then meaning set forth in Section 6.1(g).




2.137. “R&D” shall mean research and development of or relating to ARA Products.




2.138. “R&D Collaboration Goals” shall have the meaning set forth in Section 7.1(a).




2.139. “R&D Committee” shall have the meaning set forth in Section 7.1(b).




2.140. “R&D Leader” shall have the meaning set forth in Section 7.1(b).



2.141. “R&D Plan” shall mean a summary of research and development work on ARA planned by each
party for the Succeeding Year.



2.142. “Raw Materials” shall mean * and other raw materials used in the production of ARA, but
shall not include *.



2.143. “RBD” shall mean the combined processes of refining, bleaching and deodorizing Crude
Oil.




2.144. “Recovered Amounts” shall have the meaning set forth in Section 6.3(a).




2.145. “Responding Party” shall have the meaning set forth in Section 5.5(a).



2.146. “Restated Agreement” shall have the meaning set forth in the preamble and shall include
the Schedules.


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




 


12









 





2.147. “Restatement Effective Date” shall have the meaning set forth in the preamble.




2.148. “Returned Material” shall have the meaning set forth in Section 4.7(c).



2.149. “*” shall mean the use of products derived or sourced from ARA Products as a source of
* in *, but any consumer products using such * shall not (i) contain an ARA content greater than *
of the * of the end consumer product, (ii) be labeled as containing ARA or (iii) be intended to
provide ARA for *.



2.150. “Section 9.2(a) Material Breach” shall have the meaning set forth in Section
9.2(a)(i)(B).




2.151. “Signing Date” shall have the meaning specified in the preamble.



2.152. “Solely Funded ARA Research Project” shall have the meaning as set forth in Section
7.1(c)(i).



2.153. “Specifications” shall mean: (a) the product specifications for the respective ARA
Products, as set forth on Schedules 2.16, 2.28 and 2.70, as applicable, which shall be deemed in
all cases to require compliance with cGMPs, and the requirements for kosher certification by the
Orthodox Union and for Halal certification by the Islamic Food and Nutrition Council of America or
any other organization agreed upon by the parties for all of a party’s respective facilities and
the facilities of any subcontractor that are used to manufacture, produce and/or package any ARA
Products; (b) quality control methods and methods of analysis with respect to Biomass, Crude Oil,
and Finished Oil; and (c) other requirements and specifications for ARA Products as set forth in
this Restated Agreement, as amended from time to time by the Committee pursuant to Section 8,
taking into account customers’ requirements among other things, or otherwise by mutual written
agreement of the parties.



2.154. “Spent Biomass” shall mean the material remaining after Extraction (such as through the
use of hexane) has been completed.




2.155. “Spent Biomass Order” shall have the meaning set forth in Section 3.2(d).




2.156. “Sublicensable Technology” shall have the meaning set forth in Section 7.2(b)(iv).




2.157. “Sublicensing Notice” shall have the meaning set forth in Section 7.2(b)(iv).




2.158. “Sublicensing Requester” shall have the meaning set forth in Section 7.2(b)(iv).




2.159. “Succeeding Year” shall have the meaning set forth in Section 6.1.


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




 


13









 






2.160. “Termination Notice” shall have the meaning set forth in 5.5(c).




2.161. “Testing Party” shall have the meaning set forth in Section 4.4.



2.162. “Third Party Toll Manufacturers” shall mean a third party toll manufacturer whose
business activity includes serving as a toll manufacturer and (A) on behalf of DSM, (i) ferments
ARA Products, (ii) performs RBD services using Martek Proprietary Technology, Martek Improvements
and/or Joint Proprietary Technology, or (iii) performs Extraction services using Martek Proprietary
Technology, Martek Improvements and/or Joint Proprietary Technology and (iv) whose entire output of
ARA Products, and/or ARA Products upon which RBD and/or Extraction services have been performed
using such technology, is purchased by DSM, or (B) on behalf of Martek, (i) ferments ARA Products
using DSM Proprietary Technology, DSM Improvements and/or Joint Proprietary Technology, (ii)
performs RBD services using DSM Proprietary Technology, DSM Improvements and/or Joint Proprietary
Technology, or (iii) performs Extraction services using DSM Proprietary Technology, DSM
Improvements and/or Joint Proprietary Technology and (iv) whose entire output of ARA Products,
and/or ARA Products upon which RBD and/or Extraction services have been performed, using such
technology is purchased by Martek.




2.163. “Transfer Procedures” shall have the meaning set forth in Section 8.4(a).




2.164. “Undepreciated * Costs” shall have the meaning set forth in Section 9.4(d)(iii).




2.165. “Undepreciated Pre-2004 Costs” shall have the meaning set forth in Section 9.4(d)(iii).



2.166. “Unit of ARA” shall mean that quantity of any ARA Product that contains one (1)
kilogram of pure ARA as determined by the applicable ARA Assay Procedure set forth in Schedule
2.12.



2.167. “Unit of DHA” shall mean that quantity of any product that contains one (1) kilogram of
pure DHA as determined by * or as otherwise mutually agreed by the parties.



2.168. “Usages” shall mean the quantity or amount of a specified Raw Material or utility that
is required to produce one Unit of ARA as specified in Schedule 6.1-A and Schedule 6.1-B.



2.169. “Variable Costs” shall mean those costs that change directly in proportion to changes
in the number of Units of ARA produced, and shall include, but not be limited to: raw and
intermediate materials, utilities, packaging, operations performed elsewhere, transportation, the
variable portion of waste and effluent disposal or treatment, and the variable portion of energy
costs. Variable Costs shall not include Fixed Costs.



2.170. “*” shall mean * having a * that are identified by mutual agreement between * pursuant
to that certain *.


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




 


14









 





3. SUPPLY, PRODUCTION AND ORDERS





3.1. Martek Requirements for ARA Products.



(a) Martek and its Affiliates will have the right to produce an unlimited amount of ARA
Products directly or through one or more Third Party Toll Manufacturers, but their respective
ability to sell and/or use such ARA Products shall be limited to the extent expressly provided in
this Restated Agreement.



(b) Except as otherwise expressly set forth in Section 3.3, Martek agrees that neither it nor
any of its Affiliates shall sell, directly or indirectly, in any calendar year, a combined
aggregate quantity of ARA Products that contains more than forty thousand (40,000) Units of ARA, as
adjusted pursuant to Section 3.1(c) immediately below, that are derived from ARA Products other
than those that Martek has purchased from DSM pursuant to this Restated Agreement (the “Martek
Allocation”).



(c) In the event of a DSM Shortfall during any calendar year, the Martek Allocation for that
calendar year will be increased according to and subject to Section 3.3(b) during the calendar year
in which such DSM Shortfall has occurred by the number of Units of ARA necessary to meet such DSM
Shortfall and, unless otherwise provided in Section 3.3(b), the Martek Allocation will
automatically revert for the next calendar year to ARA Products containing forty thousand (40,000)
Units of ARA that are derived from ARA Products other than those that Martek has purchased from DSM
pursuant to this Restated Agreement.



(d) Except as otherwise expressly set forth in this Restated Agreement, Martek shall purchase
from DSM all of its requirements for ARA Products. Notwithstanding anything to the contrary
contained in this Restated Agreement, the parties agree that where (i) Martek has developed an ARA
Product wherein the ARA content is greater than * but no more than * of total fatty acids (a “New
ARA Product”), and (ii) the primary product in such New ARA Product is not ARA, the parties will
agree to negotiate in good faith the terms on which to permit Martek to sell such New ARA Product;
provided that such New ARA Product shall only be sold by Martek inside the Martek ARA Fields of Use
and the sale of Units of ARA contained in such New ARA Product shall be subject to the Profit
Sharing Fee set forth in Section 6.1(g) herein and such other terms as the parties may agree upon.


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




 


15









 






3.2. DSM Production. 



(a) The parties acknowledge that DSM currently has fermentation and Down Stream Processing
production facilities in Capua, Italy and in Belvidere, New Jersey. In order to enable DSM to
lower its Fixed Costs and in exchange for DSM’s agreement herein to commit to Usages for certain
periods as provided in Section 6.1, DSM hereby agrees * ARA production for Martek * on or before *,
subject to the terms and conditions set forth herein including without limitation the payments to
be made pursuant to Section 6.13 hereof.



(b) DSM agrees that it will, itself or through one or more Third Party Toll Manufacturers,
produce ARA Products under this Restated Agreement using fermentation.
Subject to Section 3.3(a), Martek agrees that it will, itself or through one or more Third
Party Toll Manufacturers, perform RBD services for the ARA Products produced by DSM for both the
Martek ARA Fields of Use and the DSM ARA Fields of Use. DSM agrees that, except as otherwise
permitted in Section 3.4(b), neither it nor any of its Affiliates shall procure or accept any RBD
services with respect to ARA Products intended for sale from any Person other than Martek or its
Affiliates.



(c) Subject to Section 3.3(a) Martek agrees that it will, itself or through one or more Third
Party Toll Manufacturers, perform Extraction for the Biomass produced by DSM. DSM agrees that,
except as otherwise permitted in Section 3.4(a), neither it nor any of its Affiliates shall
perform, or have performed for it by any Person other than Martek or its Affiliates, directly or
indirectly, Extraction on any Biomass produced by DSM and intended for sale.



(d) Two (2) weeks before the beginning of each calendar quarter, DSM may place an order with
Martek for the amount (by weight or percent of total) of Spent Biomass (the “Spent Biomass Order”)
produced during such calendar quarter at Martek’s facilities and at Martek’s Third Party Toll
Manufacturers that DSM desires. For each calendar quarter for which Martek receives a Spent
Biomass Order from DSM, Martek shall transport to and store for DSM at Martek’s production
facilities an amount of Spent Biomass equal to the lesser of (i) the amount specified in such Spent
Biomass Order or (ii) the total aggregate amount of Spent Biomass that Martek and such Third Party
Toll Manufacturers produce during such quarter. DSM shall arrange for the Spent Biomass that is
the subject of a Spent Biomass Order to be removed from Martek’s premises no later than thirty (30)
days following the end of the related calendar quarter, otherwise Martek shall have the right to
dispose of such Spent Biomass. DSM shall pay all third party costs and shall reimburse Martek
within forty-five (45) days of receipt of invoice from Martek for all of its direct costs in
connection with the storage at and transportation from Martek’s production facilities of Spent
Biomass that is the subject of a Spent Biomass Order including but not limited to direct costs
related to salvaging Spent Biomass, but otherwise DSM shall not pay Martek or any Third Party Toll
Manufacturer for such Spent Biomass, and such storage and transportation costs shall not be
included in any calculation of the Agreed Price. It is understood and agreed that Martek shall
have the right to destroy or discard any Spent Biomass that is not the subject of a Spent Biomass
Order or that Martek in its sole discretion determines is hazardous to store.



(e) It is understood and agreed that DSM shall be entitled to utilize its * to produce ARA
Products to the extent necessary in order to avoid or redress a DSM Shortfall, which utilization
shall have no impact on the Agreed Price (i.e., no impact on the DSM Fixed Costs, Usages or DSM
Variable Costs), which Agreed Price and shipping costs shall in all cases be the same as if the
relevant ARA Products were produced *.


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




 


16









 





3.3. Martek Production.



(a) Subject to Martek’s rights under Section 5.5(d), Martek shall be entitled to produce ARA
Products only at its own facility or at a Third Party Toll Manufacturer that shall be reasonably
acceptable to DSM taking into consideration all the facts and circumstances, including without
limitation DSM’s proprietary interests in any DSM Proprietary Technology, DSM Improvements and/or
Production Technology proposed by Martek to be used by such Third Party Toll Manufacturer as well
as DSM’s competitive relationship with the proposed Third Party Toll Manufacturer. Martek will
obtain written approval from DSM, not to be unreasonably withheld, prior to using the DSM
Proprietary Technology, DSM Improvements and/or Production Technology at such Third Party Toll
Manufacturer for the production of such ARA Products. Notwithstanding the foregoing DSM shall have
the right in its sole discretion to reject a proposed Third Party Toll Manufacturer based upon
DSM’s competitive relationship therewith or its good faith concern regarding DSM’s proprietary
interest in DSM Proprietary Technology, DSM Improvements and/or Production Technology if such
proposed Third Party Toll Manufacturer would perform work relating to the processing of Finished
Oil or equivalents thereof, provided that DSM itself performs the work that would otherwise be
performed by such rejected Third Party Toll Manufacturer or proposes an alternative Third Party
Toll Manufacturer reasonably acceptable to Martek to perform such work, in each case at a cost to
Martek substantially equivalent to the cost that Martek would incur if such work had been performed
by the rejected Third Party Toll Manufacturer. Upon DSM’s acceptance of any such Third Party Toll
Manufacturer, Martek shall take all reasonable measures to protect DSM’s proprietary interests in
the DSM Proprietary Technology, DSM Improvements and/or Production Technology while such DSM
Proprietary Technology, DSM Improvements and/or Production Technology are being used by such Third
Party Toll Manufacturer. Notwithstanding the foregoing, Martek shall, as soon as practicable,
discontinue using the DSM Proprietary Technology, DSM Improvements and/or Production Technology at
such Third Party Toll Manufacturer if at any time following discussions with DSM either Martek or
DSM reasonably determines that the continued use by such Third Party Toll Manufacturer of DSM
Proprietary Technology, DSM Improvements and/or Production Technology would be reasonably likely to
pose a threat to DSM’s proprietary interests in such DSM Proprietary Technology, DSM Improvements
and/or Production Technology; the party making such determination shall notify the other party
immediately upon making such determination and Martek shall give DSM all reasonable assistance in
connection with any efforts by DSM to protect DSM’s proprietary interests in such DSM Proprietary
Technology, DSM Improvements and/or Production Technology. In the event that Martek manufactures
such ARA Products at its own facilities or at any Third Party Toll Manufacturer solely for purposes
of responding to a DSM Shortfall using the DSM Proprietary Technology, DSM Improvements and/or
Production Technology, DSM will assist Martek at Martek’s request by providing reasonable ARA
manufacturing assistance to Martek and Martek shall reimburse DSM for DSM’s reasonable costs and
expenses incurred in connection with providing such assistance.


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




 


17









 





(b) If DSM Shortfalls occur for * as a result of a Force Majeure Event or otherwise, or are
projected for the next succeeding * (based on DSM’s Three Year Rolling Production Forecast under
Section 3.5(b) and the Martek Three Year Rolling Forecast), the Martek Allocation shall be
increased by the number of Units of ARA necessary to meet such
DSM Shortfalls for the current calendar year and for subsequent calendar years until DSM
notifies Martek in good faith in writing that it is able to meet Martek’s then current Three Year
Rolling Forecast (the “Resume Notice Date”); provided, however, that if the Resume Notice Date is
prior to July 1st in the relevant calendar year, the Martek Allocation shall revert to
40,000 Units of ARA effective January 1 of the calendar year immediately following the year in
which the Resume Notice Date occurs, and if the Resume Notice Date is on or after July
1st in the relevant calendar year, the Martek Allocation for such year shall equal the
greater of (i) 40,000 Units of ARA and (ii) the number of Units of ARA manufactured, acquired or
committed to be acquired by Martek in reliance on the increased Martek Allocation during the
remainder of the calendar year during which the Resume Notice Date occurs (but not to exceed the
Units of ARA resulting from a DSM Shortfall(s)) and the Martek Allocation for the following
calendar year shall be equal to 40,000 Units of ARA plus the number of Units of ARA committed to be
acquired by Martek in reliance on the increased Martek Allocation during the portion of the six
month period following the Resume Notice Date that extends into such following calendar year, and
shall revert to 40,000 Units of ARA after the end of the calendar year following the calendar year
in which the Resume Notice Date occurs. Notwithstanding the foregoing, Martek will use its
commercially reasonable efforts to shorten any period before resuming purchases from DSM and shall
purchase as much ARA Products as is commercially reasonable from DSM during any period following
the Resume Notice Date.



It is understood and agreed between the parties hereto that, notwithstanding anything to the
contrary in this Restated Agreement, variations up to * between: i) the aggregate amount of ARA
Products requested in Martek Purchase Orders for delivery during a calendar quarter and ii) the
aggregate amount of ARA Products actually delivered by DSM to Martek during such calendar quarter
in response to such Martek Purchase Orders, to the extent resulting from (x) use of the preliminary
Biomass conversion factor (which factor is determined by the Committee), (y) variations of no more
than * in the exact date of delivery and/or (z) the use of the preliminary budget extraction factor
(which factor is determined by the Committee), shall not be considered in determining whether a DSM
Shortfall has occurred. If Martek determines in good faith that, prior to adjusting the delivered
amounts of ARA Product in any calendar quarter for deviations in quantities resulting from the
causes referred to above, a DSM Shortfall has occurred, then Martek will confirm the preliminary
amount of the alleged DSM Shortfall to DSM within thirty (30) days following the end of any such
calendar quarter within which the alleged DSM Shortfall occurred.


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




 


18









 





Any unfilled portion of a Martek Purchase Order applicable to a quarter shall be reduced by
the increase in the Martek Allocation, if any, in the immediately following quarter.
Notwithstanding anything to the contrary in this Restated Agreement, for any Martek Purchase Order
that is confirmed by DSM pursuant to Section 3.5(c), but that is not completely filled by DSM
within ninety (90) days following the end of the calendar quarter within which delivery was
scheduled, the unfilled portion of such Martek Purchase Order shall no longer be deemed to be
subject to a binding Martek Purchase Order pursuant to Section 3.5 to the extent of such failure to
deliver, and DSM shall not be required to deliver, and Martek shall not be required to accept any
later delivery of, the unfilled portion of such Martek Purchase Order, unless otherwise
expressly agreed in writing by the parties. Delivery of ARA Products during the calendar
quarter immediately following the calendar quarter within which delivery of any unfilled portion of
a Martek Purchase Order was originally scheduled shall be considered delivery of such unfilled
portion of the Martek Purchase Order, before any such deliveries shall count against any Purchase
Orders calling for delivery subsequent to the Martek Purchase Order with respect to which there was
an unfilled portion. For clarity, the provisions of this paragraph shall not affect the Martek
Allocation determination provisions in the first paragraph of this Section 3.3(b).



(c) In the event (i) DSM Shortfalls are projected (based on DSM’s Three Year Rolling
Production Forecast and the Martek Three Year Rolling Forecast) or occur for * as a result of a
Force Majeure Event or otherwise, (ii) Martek has requested in writing that DSM expand its ARA
production capacities by a specified volume in excess of the capacity of * Units of ARA (which is
the agreed annual capacity * as of the Restatement Effective Date through December 31, 2014), (iii)
Martek has offered to guarantee to DSM that DSM would recoup its investment in so expanding its ARA
production capacities by such volume, through the DSM Mark Up received on purchase orders by Martek
for ARA Products over a period of * and (iv) DSM has not commenced construction to expand, within *
of Martek’s written request (or such longer period as the parties may agree), its ARA production
capacities by at least the specified volume or if DSM fails to proceed with diligence in such
expansion or fails to complete such expansion within * of such commencement, then Martek
shall be entitled to expand its ARA production capacity and/or subcontract production of ARA
Products to one or more third parties by the specified volume (the “Martek Expansion”), provided
that Martek provides DSM with written notice prior to commencing construction and commences
construction of such expansion or enters into a subcontracting arrangement within * of its written
request as referred to under (ii) herein and, in the case of expansion activities, pursues them to
completion with diligence and completes such expansion within * of such commencement.



(d) Any Martek Expansion shall permanently add to the Martek Allocation unless there is a
Capacity Dispute related to such Martek Expansion. If a Capacity Dispute occurs the parties shall
attempt, in good faith, to agree upon the amount of the DSM Shortfall expected pursuant to Section
3.3(c). If the parties reach agreement upon the amount of such DSM Shortfall and Martek proceeds
with a Martek Expansion pursuant to Section 3.3(c), the then current Martek Allocation shall be
permanently increased by the amount of such DSM Shortfall. If the parties cannot resolve the
Capacity Dispute, the parties shall proceed to arbitration pursuant to Section 10.5 and the
arbitrators shall determine whether, pursuant to Section 3.3(c), a DSM Shortfall is projected, and
the extent of such DSM Shortfall. In making such determination, the arbitrators shall only consider
the facilities dedicated to ARA production, technology, processes, formulas, and expertise that
were in existence at the time the Capacity Dispute first arose and the technology, processes and
formulas that were reasonably contemplated and known by the Committee at the time of the Capacity
Dispute. The Martek Allocation shall be permanently increased by the amount of the DSM Shortfall as
so determined by the arbitrators.



(e) In the event that after such a Martek Expansion, Martek’s demand for ARA Products
decreases resulting in a decrease of required production capacity, such decrease shall be shared
pro rata by the parties.


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




 


19









 






3.4. Extraction and RBD Services.



(a) The parties agree that DSM and its Affiliates will have the right, either directly or
through one or more Third Party Toll Manufacturers, to perform Extraction of Biomass to produce an
unlimited amount of Crude Oil, but their respective ability to sell and/or use ARA Products
resulting therefrom shall be limited to the extent expressly provided in this Restated Agreement.
Except as expressly set forth below, DSM agrees that in any calendar year neither it nor its
Affiliates shall sell, directly or indirectly, a combined aggregate quantity of ARA Products into
any DSM ARA Fields of Use and/or any DSM Adult ARA Applications that contain more than the greater
of (i) forty thousand (40,000) Units of ARA and (ii) the Crude Oil requirements for the DSM ARA
Fields of Use (the “DSM Extraction Allocation”) as adjusted pursuant to this Section 3.4(a), that
are not derived from ARA Products on which Martek performed Extraction services pursuant to this
Restated Agreement. In the event of a Martek Shortfall during any calendar year relating to
Martek’s provision of Extraction services to DSM, the DSM Extraction Allocation for the calendar
year in which such Martek Shortfall has occurred shall be increased by the number of Units of ARA
necessary to meet such Martek Shortfall, and the DSM Extraction Allocation will automatically
revert for the next calendar year to an amount of Crude Oil equal to the greater of (i) forty
thousand (40,000) Units of ARA and (ii) the Crude Oil requirements for the DSM ARA Fields of Use.
In the event Martek Shortfalls relating to Martek’s provision of Extraction services to DSM occur
for * as a result of a Force Majeure Event or otherwise or are projected for the next succeeding *
based on Martek’s Three Year Rolling Services Forecast under Section 3.6(b) and the DSM Three Year
Rolling Forecast for Extraction services under Section 3.6(a), the DSM Extraction Allocation shall
be increased accordingly until such time that is * following the date that Martek notifies DSM in
good faith in writing that it is able to meet DSM’s then current Three Year Rolling Forecast for
Extraction services. DSM will use its commercially reasonable efforts to shorten such * period and
purchase as much Extraction services as commercially reasonable from Martek during such period. In
the event of a Martek Shortfall and upon DSM’s written request, Martek shall return to DSM the
portion of ARA Products delivered by DSM pursuant to Section 3.8(b) on which Martek has not yet
performed Extraction services.



(b) DSM and its Affiliates will have the right, either directly or through one or more Third
Party Toll Manufacturers, to perform RBD services on an unlimited amount of Crude Oil but their
respective ability to sell and/or use ARA Products resulting therefrom shall be limited to the
extent expressly provided in this Restated Agreement. Except as expressly set forth below, DSM
agrees that in any calendar year neither it nor its Affiliates shall sell, directly or indirectly,
a combined aggregate quantity of ARA Products into any DSM ARA Field of Use and/or any DSM Adult
ARA Applications that contain more than the greater of (i) forty thousand (40,000) Units of ARA and
(ii) the Finished Oil requirements for the DSM ARA Fields of Use (the


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




 


20









 





“DSM RBD Services
Allocation”) as adjusted pursuant to this Section 3.4(b), that are not derived from ARA Products on which Martek performed RBD services pursuant to this Restated
Agreement. In the event of a Martek Shortfall during any calendar year relating to Martek’s
provision of RBD services to DSM, the DSM RBD Services Allocation for the calendar year in which
such Martek Shortfall has occurred shall be increased by the number of Units of ARA necessary to
meet such Martek Shortfall and, unless otherwise provided below, the DSM RBD Services Allocation
will automatically revert for the next calendar year to an amount of Finished Oil equal to the
greater of (i) forty thousand (40,000) Units of ARA and (ii) the Finished Oil requirements for the
DSM ARA Fields of Use. In the event Martek Shortfalls relating to Martek’s provision of RBD
services to DSM occur for * as a result of a Force Majeure Event or otherwise, or are projected for
the next succeeding * based on Martek’s Three Year Rolling Services Forecast under Section 3.6(b)
and the DSM Three Year Rolling Forecast under Section 3.6(a) for RBD services, the DSM RBD Services
Allocation shall be increased by the number of Units of ARA necessary to meet such Martek
Shortfalls for the current calendar year and for subsequent calendar years until Martek notifies
DSM in good faith in writing that it is able to meet DSM’s then current Three Year Rolling Forecast
for RBD services (the “RBD Resume Notice Date”); provided, however, that if the RBD Resume Notice
Date is prior to July 1st in the relevant calendar year, the DSM Allocation shall revert
to 40,000 Units of ARA effective January 1 of the calendar year immediately following the year in
which the RBD Resume Notice Date occurs, and if the RBD Resume Notice Date is on or after July
1st in the relevant calendar year, the DSM RBD Services Allocation for such year shall
equal the greater of (i) 40,000 Units of ARA and (ii) the number of Units of ARA that DSM has
completed (or committed to have completed) RBD services Martek in reliance on the increased DSM RBD
Services Allocation during the remainder of the calendar year during which the RBD Resume Notice
Date occurs (but not to exceed the Units of ARA resulting from a Martek Shortfall(s)) and the DSM
RBD Services Allocation for the following calendar year shall be equal to 40,000 Units of ARA plus
the number of Units of ARA that DSM has completed (or committed to have completed) RBD services in
reliance on the increased DSM RBD Services Allocation during the portion of the six month period
following the RBD Resume Notice Date that extends into such following calendar year, and shall
revert to 40,000 Units of ARA after the end of the calendar year following the calendar year in
which the RBD Resume Notice Date occurs. Notwithstanding the foregoing, DSM will use its
commercially reasonable efforts to shorten any period before resuming purchases from Martek and
shall purchase as much RBD services as is commercially reasonable from Martek during any period
following the RBD Resume Notice Date. In the event of a Martek Shortfall and upon DSM’s written
request, Martek shall return to DSM the portion of ARA Products delivered by DSM pursuant to
Section 3.8(b) on which Martek has not yet performed RBD services.


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




 


21









 





(c) Subject to DSM’s rights under Section 5.5(d), DSM shall be entitled to perform RBD
services only at its own facility or at a Third Party Toll Manufacturer that shall be reasonably
acceptable to Martek taking into consideration all the facts and circumstances, including without
limitation Martek’s proprietary interests in the Martek Proprietary Technology, Martek Improvements
and/or Production Technology proposed by DSM to be used by such Third Party Toll Manufacturer as
well as Martek’s competitive relationship with such proposed Third Party Toll Manufacturer. DSM
will obtain written approval from Martek, not to
be unreasonably withheld, prior to using the Martek Proprietary Technology, Martek
Improvements and/or Production Technology at such Third Party Toll Manufacturer for the performance
of such RBD services. Notwithstanding the foregoing Martek shall have the right in its sole
discretion to reject a proposed Third Party Toll Manufacturer based upon Martek’s competitive
relationship therewith or its good faith concern regarding Martek’s proprietary interest in Martek
Proprietary Technology, Martek Improvements and/or Production Technology if such proposed Third
Party Toll Manufacturer would perform work relating to the processing of Finished Oil or
equivalents thereof, provided that Martek itself performs the work that would otherwise be
performed by such rejected Third Party Toll Manufacturer or proposes an alternative Third Party
Toll Manufacturer reasonably acceptable to DSM to perform such work, in each case at a cost to DSM
substantially equivalent to the cost that DSM would incur if such work had been performed by the
rejected Third Party Toll Manufacturer. Upon Martek’s acceptance of any such Third Party Toll
Manufacturer, DSM shall take all reasonable measures to protect Martek’s proprietary interests in
the Martek Proprietary Technology, Martek Improvements and/or Production Technology while such
Martek Proprietary Technology, Martek Improvements and/or Production Technology are being used by
such Third Party Toll Manufacturer. Notwithstanding the foregoing, DSM shall, as soon as
practicable, discontinue using the Martek Proprietary Technology, Martek Improvements and/or
Production Technology at such Third Party Toll Manufacturer if at any time following discussions
with Martek either Martek or DSM reasonably determines that the continued use by such Third Party
Toll Manufacturer of such Martek Proprietary Technology, Martek Improvements and/or Production
Technology would be reasonably likely to pose a threat to Martek’s proprietary interests in such
Martek Proprietary Technology, Martek Improvements and/or Production Technology; the party making
such determination shall notify the other party immediately upon making such determination and DSM
shall give Martek all reasonable assistance in connection with any efforts by Martek to protect
Martek’s proprietary interests in such Martek Proprietary Technology, Martek Improvements and/or
Production Technology. In the event that DSM performs such RBD Services at its own facilities, or
at any Third Party Toll Manufacturer solely for purposes of responding to a Martek Shortfall using
the Martek Proprietary Technology, Martek Improvements and/or Production Technology, Martek will
assist DSM at DSM’s request by providing reasonable ARA manufacturing assistance to DSM and DSM
shall reimburse Martek for Martek’s reasonable costs and expenses incurred in connection with
providing such assistance.



(d) The parties agree that at any time during the term of this Restated Agreement DSM shall
have the right to create and use a “DSM Expansion” in connection with the provision of RBD services
and Extraction on terms and conditions, mutatis mutandis, as those set forth in
Section 3.3(c) and (d) applicable to a Martek Expansion.


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




 


22









 






3.5. Martek Three Year Rolling Forecasts; Martek Firm Orders.



(a) Two months prior to the first day of each calendar quarter, Martek will submit to DSM a
good faith forecast of Martek’s demand of ARA Products, broken down by ARA Product, for each of the
following twelve (12) quarters (each, a “Martek Three Year
Rolling Forecast”), which shall include (i) a firm order by Martek of ARA Products, broken
down by ARA Product, for each month during the first calendar quarter covered by such Martek Three
Year Rolling Forecast (a “Martek Firm Order”) and (ii) Martek’s good faith estimate of Martek’s
demand for ARA Products, broken down by ARA Product, for each of the following eleven (11) quarters
covered by such Martek Three Year Rolling Forecast.



(b) One month prior to the first day of each calendar quarter, DSM will submit to Martek a
good faith forecast of DSM’s production capabilities of ARA Products, broken down by ARA Product,
for each of the following twelve (12) quarters (“DSM Three Year Rolling Production Forecast”).



(c) No later than two (2) weeks prior to the first day of each calendar quarter, Martek shall
issue a Martek Purchase Order to DSM for ARA Products for that quarter that shall be no less than
the amount indicated in the related Martek Firm Order. Each Martek Purchase Order shall include
delivery instructions that satisfy the requirements of Section 3.7. No later than one (1) week
prior to the first day of each calendar quarter, DSM will issue a DSM Confirmation Letter to Martek
indicating the extent to which DSM accepts such Martek Purchase Order.



(d) DSM shall use its good faith efforts to deliver the amount of ARA Products ordered in a
Martek Purchase Order and shall be entitled to deliver up to an additional ten percent (10%) of
such amount so ordered, provided that the amount delivered by DSM in the next succeeding calendar
quarter pursuant to a Martek Purchase Order for that quarter shall be reduced by such additional
amount, unless otherwise requested by Martek. In the event that Martek’s demand for ARA Products
substantially and persistently exceeds the Martek Three Year Rolling Forecast the parties shall use
their commercially reasonable efforts to make arrangements to meet such extra demand.



(e) It is understood and agreed that, in the event that Martek shall issue a Martek Purchase
Order for ARA Products in an amount greater than that set forth in the related Martek Firm Order,
DSM shall have the right, but not the obligation, to accept such Martek Purchase Order to the
extent of such greater amount.



(f) The parties acknowledge that Martek’s orders and forecasts for ARA Products set forth in
this Section 3.5 shall not include those ARA Products upon which DSM requests Martek to perform
Martek Services pursuant to Section 3.6.


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




 


23









 






3.6. DSM Three Year Rolling Forecast; DSM Firm Orders.



(a) Two months prior to the first day of each calendar quarter, DSM will submit to Martek a
good faith forecast of DSM’s demand for Martek Services, broken down by Extraction and RBD
Services, for each of the following twelve (12) quarters (each, a “DSM Three Year Rolling
Forecast”), which shall include (i) a firm order by DSM for Martek Services, broken down by
Extraction and RBD Services, for each month during the first calendar quarter
covered by such DSM Three Year Rolling Forecast (a “DSM Firm Order”) and (ii) DSM’s good faith
estimate of DSM’s demand for Martek Services, broken down by Extraction and RBD Services, for each
of the following eleven (11) quarters covered by such DSM Three Year Rolling Forecast.



(b) One month prior to the first day of each calendar quarter, Martek will submit to DSM a
good faith forecast of Martek Services capabilities, broken down by Extraction and RBD Services,
for each of the following twelve (12) quarters (“Martek Three Year Rolling Services Forecast”).



(c) No later than two (2) weeks prior to the first day of each calendar quarter, DSM shall
issue a DSM Purchase Order to Martek for Martek Services, broken down by Extraction and/or RBD
Services, for that quarter that shall be no less than the amount indicated in the related DSM Firm
Order. Each DSM Purchase Order shall include delivery instructions that satisfy the requirements
of Section 3.7. No later than one (1) week prior to the first day of each calendar quarter, Martek
will issue a Martek Confirmation Letter to DSM indicating the extent to which Martek accepts such
DSM Purchase Order.



(d) Martek shall use its good faith efforts to perform the Martek Services ordered in a DSM
Purchase Order and to deliver the resulting ARA Products to DSM no later than thirty (30) days
after delivery by DSM to Martek of the ARA Products upon which Martek will perform the Martek
Services.



(e) It is understood and agreed that, in the event that DSM shall issue a DSM Purchase Order
for Martek Services in an amount greater than that set forth in the related DSM Firm Order, Martek
shall have the right, but not the obligation, to accept such DSM Purchase Order to the extent of
such greater amount.




3.7. Delivery Instructions. 



(a) Martek shall submit delivery instructions to DSM for all quantities of ARA Products
subject to Martek Purchase Orders placed in accordance with Section 3.5. Such delivery
instructions shall be included in the Martek Purchase Orders and shall identify (i) the quantity of
ARA Products required, (ii) the required delivery date, (iii) the address to which the shipment
shall be delivered, and (iv) any other applicable shipping instructions.



(b) DSM shall submit delivery instructions to Martek for all quantities of ARA Products that
are to be produced through the Martek Services and subject to a DSM Purchase Order placed in
accordance with Section 3.6. Such delivery instructions shall be included in the DSM Purchase
Orders and shall identify (i) the quantity of ARA Products to be produced through Martek Services,
(ii) the required delivery date, (iii) the address to which the shipment shall be delivered, and
(iv) any other applicable shipping instructions.


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




 


24









 





3.8. Shipment.



(a) Subject to the provisions of Sections 3.5(c) and 3.5(d), during a month, DSM shall deliver
quantities of ARA Products covered by the Martek Purchase Order for the month on the later of (i)
the last business day of the month or (ii) ten (10) days after receipt of delivery instructions
from Martek. All such shipments shall be EXW, DSM’s (or DSM’s Third Party Toll Manufacturer’s)
facility. For purposes hereof, each order shall be deemed to have been “delivered”, and risk of
loss with respect to each such shipment shall pass from DSM to Martek, upon DSM making the shipment
available at DSM’s (or DSM’s Third Party Toll Manufacturer’s) facility to a carrier agreed upon by
the Committee for transport to the location specified in the Martek Purchase Order, and Martek
shall have the right to insure such shipment from and after such delivery. Notwithstanding the
foregoing, DSM shall retain title to all shipments of ARA Products covered by the Martek Purchase
Order until payment is received, whereupon title shall pass to Martek.



(b) In addition, DSM shall deliver to Martek additional quantities of ARA Products sufficient
for Martek to perform the Martek Services requested by DSM pursuant to a DSM Purchase Order and all
such quantities delivered shall be clearly identified by DSM and distinguished from ARA Products
delivered pursuant to Section 3.8(a). The roundtrip shipment cost of all such shipments shall be
borne by DSM. For purposes hereof, each order shall be deemed to have been “delivered”, and risk of
loss with respect to each such shipment shall pass from DSM to Martek upon delivery to Martek at
Martek’s facility by a carrier agreed upon by the Committee for transport to the location specified
in the DSM Purchase Order, and shall pass back to DSM upon delivery of the ARA Products to such
carrier at Martek’s facility following the performance by Martek of the Martek Services thereon.
DSM shall at all times retain title to all ARA Products that are provided for purposes of Martek
performing Martek Services.



(c) Subject to the provisions of Sections 3.6(c) and 3.6(d), during a month, Martek shall
deliver quantities of ARA Products covered by the DSM Purchase Order for the month on the later of
(i) the last business day of the month or (ii) ten (10) days after receipt of delivery instructions
from DSM. All orders shall be shipped EXW, Martek’s (or Martek’s Third Party Toll Manufacturer’s)
facility. For purposes hereof, each order shall be deemed to have been “delivered”, and risk of
loss with respect to each shipment shall pass from Martek to DSM upon Martek making the shipment
available at Martek’s (or Martek’s Third Party Toll Manufacturer’s) facility to a carrier agreed
upon by the Committee for transport to the location specified in the DSM Purchase Order, and DSM
shall have the right to insure such shipment from and after such delivery.


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




 


25









 






3.9. Order Fulfillment.



(a) DSM shall be responsible for, and shall retain the authority to exercise its own
discretion, in planning and arranging for supplies of ARA Products from any Third Party Toll
Manufacturers to fulfill DSM’s supply obligations to Martek hereunder. In such cases where
Production Technology is intended to be used by a Third Party Toll Manufacturer, DSM will obtain
Committee approval before proceeding.



(b) Subject to Section 3.3(a), Martek shall be responsible for, and shall retain the authority
to exercise its own discretion for, the performance of any Martek Services by any Third Party Toll
Manufacturers to fulfill Martek’s Service obligations to DSM hereunder.




3.10. Limitation on Breach.



(a) The parties understand and agree that, despite Martek’s commercially reasonable efforts to
provide accurate forecasts for its subsequent orders of ARA Products and DSM’s commercially
reasonable efforts to ensure that a sufficient amount of ARA Products are produced based on such
forecasts and orders, it is likely that at times the demand by Martek for ARA Products from DSM may
exceed the ability of DSM to supply such ARA Products. Martek and DSM hereby agree that DSM will
not be in breach of this Restated Agreement if, despite its good faith efforts, DSM fails from time
to time to deliver the quantity of ARA Products ordered by Martek; provided that DSM is operating
its facilities at or near production capacity at such time and delivers to Martek substantially all
of the ARA Products that DSM produces at such time, subject to the provisions of Section 5.3.



(b) The parties understand and agree that, despite DSM’s commercially reasonable efforts to
provide accurate forecasts for its subsequent orders for Martek Services and Martek’s commercially
reasonable efforts to ensure that it meets the demand for Martek Services based on such forecasts
and orders, it is likely that at times the demand by DSM for Martek Services may exceed the ability
of Martek to supply such Martek Services. Martek and DSM hereby agree that Martek will not be in
breach of this Restated Agreement if, despite its good faith efforts, Martek fails from time to
time to perform the Martek Services ordered by DSM; provided that Martek is operating its
facilities at production capacity or near production capacity at such time.


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




 


26









 





4. QUALITY AND VERIFICATION





4.1. Verification of Production.



The parties shall perform ring testing procedures as agreed upon by the Committee to confirm
the accuracy of any relevant quality control assay procedure (including without limitation the ARA
Assay Procedure).




4.2. Certification of Analysis.



(a) For each DSM shipment of ARA Products ordered by Martek and delivered by DSM pursuant to
Section 3.8(a) or Section 3.8(b), DSM shall furnish to Martek within twenty-four (24) days after
shipment a certificate of analysis in the form attached hereto as Schedule 4.2(a) and signed by
DSM’s relevant QA/QC officer, which certifies the actual content of those components of the ARA
Products that are identified in the Specifications, as applicable.




(i) If DSM does not furnish the signed certificate of analysis within
twenty-four (24) days after shipment of ARA Products ordered by Martek pursuant to a
Martek Purchase Order, the amount of such shipment for which no signed certificate
of analysis was delivered shall to the extent that such amount brings the total of
the shipment below what has been set forth in the Martek Purchase Order be
immediately deemed to be a DSM Shortfall for the calendar year and the Martek
Allocation shall be increased accordingly in accordance with the provisions of
Sections 3.1(b) and 3.3. If Martek determines such shipment to be acceptable after
such twenty-four (24) day period, the Martek Allocation shall be automatically
reduced by the lesser of (i) the amount by which the Martek Allocation was increased
in respect of such shipment or (ii) the difference between the then current Martek
Allocation for such calendar year and the total number of Units of ARA that Martek
and its Affiliates have sold during such calendar year that were not derived from
ARA Products purchased from DSM. In the event DSM provides Martek with a draft or
unsigned version of a certificate of analysis to facilitate Martek’s determination
of whether or not it will accept or reject the related shipment, Martek shall
promptly consult with DSM and make such determination.




(ii) If DSM does not furnish the signed certificate of analysis within
twenty-four (24) days after shipment of ARA Products delivered by DSM pursuant to
Section 3.8(b), Martek may delay its performance of the Martek Services until the
applicable certificate of analysis is furnished.



(b) For each Martek shipment of ARA Products produced by the Martek Services, Martek shall
furnish to DSM within fourteen (14) days after shipment a certificate of analysis in the form
attached hereto as Schedule 4.2(b) and signed by Martek’s relevant QA/QC officer, which certifies
the actual content of those components of the ARA Products that are identified in the
Specifications, as applicable. If Martek does not furnish the signed certificate of analysis
within fourteen (14) days after shipment of such ARA Products, the amount of such shipment shall be
immediately deemed to be a Martek Shortfall for the calendar year and the DSM RBD Services
Allocation and/or DSM Extraction Allocation, as applicable, shall be increased accordingly in
accordance with the provisions of Section 3.4. If DSM determines such shipment to be acceptable
after such fourteen (14) day period, the DSM RBD Services Allocation and/or DSM Extraction
Allocation, as applicable, shall be automatically reduced by the lesser of (i) the amount by which
the DSM RBD Services Allocation and/or DSM Extraction Allocation, as applicable, was increased in
respect of such shipment or (ii) the difference between the then current DSM RBD Services
Allocation and/or DSM Extraction Allocation, as applicable, for such calendar year and the total
number of Units of ARA that are in ARA Products on which DSM and its Affiliates have performed RBD
and/or Extraction services, as applicable, during such calendar year. In the event Martek provides
DSM with a draft or unsigned version of a certificate of analysis to facilitate DSM’s determination
of whether or not it will accept or reject the related shipment, DSM shall promptly consult with
Martek and make a determination of whether to accept such shipment.


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




 


27









 





(c) DSM shall not be liable to Martek if Martek begins to process or delivers to a customer
any ARA Products before Martek has received a signed certificate of analysis from DSM; provided
however, notwithstanding Section 4.2(a) DSM shall be entitled to request Martek to perform Martek
Services on ARA Products prior to receipt by Martek of the related signed certificate of analysis,
in which event if Martek performs such Martek Services on such ARA Products then DSM shall assume
liability to the extent the ARA Products do not conform to the related Specifications. DSM shall
be under no obligation to replace, or to refund to Martek the purchase price of, any ARA Products
if Martek has so processed or sold such ARA Product to a customer before Martek has received a
signed certificate of analysis from DSM. In addition, Martek shall indemnify, defend and hold
harmless DSM, its Affiliates and their respective directors, officers, employees and agents from
and against all actions, proceedings, costs, damages and claims (each, a “Claim”), including
reasonable counsel fees, that may be asserted against or incurred or suffered by any such Person
arising out of or relating to (i) any action taken by Martek with respect to any ARA Products
before Martek has received such a certificate of analysis from DSM, including without limitation
processing or delivery to a customer of ARA Products, whether such Claim is based upon a theory of
negligence, strict liability or otherwise or (ii) the sale or use by Martek of any ARA Products for
any application other than animal or human nutrition.



(d) Martek shall not be liable to DSM if DSM delivers to a customer any ARA Products upon
which Martek performed Martek Services before DSM has received a signed certificate of analysis
from Martek. Martek shall be under no obligation to replace, or to refund to DSM the cost of
Martek Services associated with the production of any ARA Products if DSM has so sold such ARA
Products to a customer before DSM has received a signed certificate of analysis from Martek. In
addition, DSM shall indemnify, defend and hold harmless Martek, its Affiliates and their respective
directors, officers, employees and agents from and against all Claims, including reasonable counsel
fees, that may be asserted against or incurred or suffered by any such Person arising out of or
relating to (i) any action taken by DSM with respect to any ARA Products upon which Martek
performed Martek Services before DSM has received such a certificate of analysis from Martek,
including without limitation delivery to a customer of such ARA Products, whether such Claim is
based upon a theory of negligence, strict liability or otherwise or (ii) the sale or use by DSM of
any ARA Products for any application other than animal or human nutrition.


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




 


28









 






4.3. Refined Biomass Specification; Specification Changes.



(a) The parties agree that promptly following the Restatement Effective Date, Martek and DSM
will undertake an analysis of historical data relating to Biomass and Finished Oil in order to
enable the parties to add to or edit the parameters, limits, ranges and/or methods as appropriate
to refine the Biomass Specifications in the form attached hereto as Schedule 2.16 so that they more
closely define the composition of Biomass actually received by Martek from DSM that has satisfied
all quality testing and analysis, produced Finished Oil meeting the Finished Oil Specifications and
that meets all regulatory and customer requirements, including those relating to analytical,
sensory and stability requirements of Finished Oil (the “Refined
Biomass Specifications”). Following the completion of the foregoing, which is expected to
take up to approximately *, Martek, in consultation with DSM, will define and deliver to the
Committee the proposed Refined Biomass Specifications. The Committee shall have thirty (30) days
thereafter during which it may accept the proposed Refined Biomass Specifications as final or agree
on changes necessary to finalize the Refined Biomass Specifications. If the Committee fails to
accept or to reach agreement on final Refined Biomass Specifications within such thirty (30) day
period, the disagreement will be deemed to be a Disputed Fact and will be resolved according to the
provisions set forth in Section 8.6(a). The final Refined Biomass Specifications will not be
considered a Specification change pursuant to Section 4.3(b) unless they include changes that
require adjustments to DSM’s then current manufacturing process, in which case the Committee shall
determine the impact that DSM’s adherence to the Refined Biomass Specifications will have on the
Agreed Price, the Martek Cost and delivery dates applicable to ARA Products produced in accordance
with the Refined Biomass Specifications. The final Refined Biomass Specifications that are accepted
and/or agreed to in accordance with the foregoing provisions shall replace the Specifications
currently attached as Schedule 2.16 and serve as the Specifications for Biomass for the remaining
term of this Restated Agreement, subject to any changes made pursuant to the process described in
Sections 4.3(b) and 4.4. If applicable, the form of certificate of analysis for Biomass shall be
updated to be consistent with the Refined Biomass Specifications and shall replace the certificate
of analysis form attached at Schedule 4.2(a).



(b) The parties acknowledge and agree that the Specifications may be subject to change from
time to time. Martek and DSM shall bring any required or requested changes to the Specifications
to the attention of the Committee in writing as soon as reasonably practicable. The Committee
shall have the authority to approve or reject any such changes, it being understood and agreed that
all changes that are reasonable in nature to make, taking into account all the facts and
circumstances, shall be approved by the Committee. Upon written approval by the Committee of any
such required or requested changes, the Committee shall then determine the terms, including the
Agreed Price and/or the Martek Cost, and delivery dates, applicable to ARA Products which will meet
the proposed Specification changes. In the event such changes to the Specifications are expected
to materially affect the Usages, the Committee shall agree in advance on any impact on the Usages
component of the Agreed Price. Each of Martek and DSM agrees to use its commercially reasonable
efforts to accommodate any requested changes at reasonable costs. Upon agreement by the Committee
on such terms Martek or DSM, as the case may be, shall implement the necessary adjustments in
accordance therewith, and, in the case of a change in Specifications, the parties shall follow the
procedure set forth in Section 4.4 for verifying that quantities of ARA Product produced satisfy
such changed Specifications.



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




 


29











 




4.4. Ongoing Biomass Quality Review; Verification of Production Changes.



(a) To enable the parties to more rapidly review the quality of Biomass, the parties will, in
accordance with Section 7.1(c), undertake a Jointly Funded ARA Research Project to develop a
laboratory scale Extraction and RBD process. The parties agree to regularly share manufacturing
data and other relevant information regarding the ARA Product so as to identify and communicate any
trends in the data that have the potential to cause the Biomass Specifications or the Finished Oil
Specifications not to be met. When such trends are identified, the parties agree to work together
in good faith to identify any changes in the manufacturing procedures that might be warranted, the
implementation of which shall comply with the provisions of Section 4.3 and 4.4 (Specification) and
Section 4.6 (Manufacturing), as applicable.



(b) In the event that the Committee approves a change to the Specifications pursuant to
Section 4.3(b), the party whose ARA Product specifications have changed (the “Manufacturing Party”)
shall deliver to the other party (the “Testing Party”) a quantity of ARA Product prepared to
satisfy the changed Specifications. Such delivery shall be made in accordance with a schedule and
in quantities and on terms determined by the Committee, which quantities shall be sufficient in all
cases to enable the Testing Party to verify that the quantities of ARA Product provided satisfy the
applicable changed Specifications. The Testing Party shall thereupon subject the delivered
quantities of ARA Product to the testing and analysis procedures agreed upon by the Committee to
verify that the individual quantities satisfy the applicable changed Specifications. If any
quantity of ARA Product fails to satisfy the applicable changed Specifications, the Testing Party
shall so notify the Manufacturing Party. Any dispute between the parties regarding the quality of
any ARA Product thus supplied shall be resolved by a binding determination of a third party testing
facility as agreed upon by the Committee. In case it is resolved that any quantity of ARA Product
thus supplied by the Manufacturing Party fails to satisfy the applicable changed Specifications,
the Manufacturing Party shall adjust its manufacturing process or take other appropriate action and
provide a replacement quantity of ARA Product for testing and analysis by the Testing Party. The
process shall continue until the Testing Party determines that all quantities of ARA Product
provided by the Manufacturing Party satisfy the applicable changed Specifications. The Testing
Party shall be responsible for its own testing costs and such costs shall not be included in DSM
Costs or Martek Costs, as applicable.



4.5. Inspection.



Upon reasonable notice during regular working hours, each of DSM and Martek and their
respective customers may inspect the manufacturing facilities of the other party and any
subcontractor(s) in order to inspect the manufacture of ARA Products, examine samples of ARA
Products and review quality control and manufacturing procedures for the purpose of verifying the
quality of ARA Products. In addition, Martek shall be permitted to have its technical personnel
periodically visit * to assist DSM in matters pertaining to ARA production at Martek’s discretion
and to provide support, to share technical experience, and/or to monitor ARA production activities.
The visits shall be with reasonable notice to DSM, with the exact hours of such visits to be mutually agreed upon. Martek shall assure that, during such visits, Martek
personnel shall adhere to the site’s rules and regulations and the instructions of DSM personnel.





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




 


30









 





4.6. Manufacturing Changes. 



(a) DSM shall promptly notify the Committee of any major or minor change to any manufacturing
process to be performed by DSM for ARA Products and shall not apply such change to the manufacture
of ARA Products without following the process set forth in this Section 4.6. Martek shall promptly
notify the Committee of any major or minor change to any Extraction or RBD process and shall not
apply such change to the Extraction or RBD process without following the process set forth in this
Section 4.6. Listed on Schedule 4.6(a) are certain changes that the parties consider to be major
changes and minor changes for purposes of this Section 4.6 as of the Restatement Effective Date.
The Committee shall have the authority to modify such Schedule from time to time in its discretion
and otherwise shall be the arbiter of whether changes other than those described on Schedule 4.6(a)
constitute major changes or minor changes for purposes of this Section 4.6. Any deadlock within
the Committee will be resolved in accordance with Section 8.6 as a Disputed Fact. Minor changes,
either as listed on Schedule 4.6(a) or as confirmed by the Committee, shall require notice to the
Committee prior to their implementation, including the date of implementation, but shall not
require pre-approval. In the event of a proposed major change by DSM, following notification to
the Committee, the provisions of Section 4.6(b) shall apply. In the event of a proposed major
change by Martek, following notification to the Committee, the Committee shall meet as promptly as
possible to determine what, if any, action is necessary or advisable in connection therewith. All
major changes are subject to verification that the ARA Product produced thereby meets Qualification
Requirements as set forth in Section 4.6(b). Each of Martek and DSM agrees to maintain a written
record of all changes to the manufacturing process of ARA Products it makes, which record will be
readily accessible or provided to the other party for review upon the request of such other party,
and which will be reported at the next succeeding quarterly meeting of the Committee.



(b) To determine if a proposed major manufacturing change by DSM is acceptable, the parties
agree to verify that such changes will produce Finished Oil that satisfies the applicable
analytical, sensory and stability requirements of Finished Oil as set forth in Schedule 4.6(b) (the
“Qualification Requirements”) pursuant to the verification process set forth in (i) through (iii)
below. DSM shall be entitled to propose up to * major manufacturing changes in each calendar year,
unless otherwise agreed in writing by Martek. The verification process is as follows:




(i) With respect to each proposed major manufacturing change, DSM shall deliver
to Martek three (3) separate consecutive batches of ARA Product produced by the
proposed changed process and which meet Biomass Specifications (the “Test ARA
Product”). Martek shall perform the Extraction and RBD services on each such batch
and thereafter subject such batches of the Test ARA Product to its testing and
analytical procedures to verify that each such
batch satisfies the Qualification Requirements, which testing and analysis shall be
completed by Martek within six (6) months following the date of Martek’s receipt of
the third batch of the Test ARA Product from DSM. Notwithstanding the foregoing,
DSM shall have the right to abandon at any time any proposed changed process by
delivery of written notice thereof to Martek, in which event DSM shall be
responsible for its cost of preparing the relevant Test ARA Product. Martek shall be
responsible for its cost in testing the Test ARA Product but need not pay DSM for
any Test ARA Product unless it is saleable by Martek, in which case Martek shall pay
DSM for any saleable batch, provided that one or more consecutive batches so
produced by DSM meet the Qualification Requirements and DSM has not abandoned the
proposed process changes due to quality or other reasons.





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




 


31









 






(ii) Upon completion of Martek’s testing and analysis, Martek will notify DSM
in writing as to whether or not the Test ARA Product meets the Qualification
Requirements. If the Qualification Requirements are met, DSM may implement the
proposed manufacturing change and shall inform Martek when the implementation has
been completed. If the Qualification Requirements are not met, DSM shall not be
permitted to implement the proposed manufacturing change and DSM shall be
responsible for its cost of preparing the relevant Test ARA Product. Martek shall be
responsible for its cost in testing the Test ARA Product but need not pay DSM for
such Test ARA Product.




(iii) If Martek fails to deliver to DSM written notice of the results of the
applicable testing and analysis of the Test ARA Product within the 6 month testing
period provided in Section 4.6(b)(i) (other than due to a Force Majeure Event (as to
which Martek shall give DSM prompt written notice)), and the Test ARA Product
ultimately meets the Qualification Requirements, the parties shall calculate a
penalty for Martek’s delay as follows, which penalty shall be payable by Martek to
DSM within forty-five (45) days following the end of each calendar quarter, as
applicable, determined as follows:




The difference between the Usages in the “Approval Year” (i.e., the
calendar year when the notice regarding Qualification Requirements
results would have been provided by Martek if the 6 month period of
§4.6(b)(i) were met) and Usages in the year immediately prior to the
Approval Year (prorated for the portion of proposed major
manufacturing changes that have been timely approved) shall be
determined and multiplied by the Actual Rates of the Approval Year.
The result shall then be multiplied by the number of days Martek was
late in delivering its written notice to DSM and divided by 365. The
result shall be multiplied by the quantity of Units of ARA
forecasted and ordered in the Approval Year. For example:




(Usages in prior year less Usages in the Approval Year—prorated for the
portion of proposed major changes which have been approved)


X





Actual Rates for Approval Year


X





(Number of late days/365)




X




Units of ARA ordered in Approval Year


=





Penalty payable.





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




 


32









 





(c) If, at any time the ARA Product does not meet Finished Oil Specifications, Martek shall
notify DSM promptly in writing after it becomes aware of such failure and the parties shall work
together to determine if the failure to meet such Specifications resulted from the aggregate
manufacturing changes implemented by DSM. Following Martek’s notice, DSM may immediately adjust
its manufacturing process to revert to the manufacturing process utilized immediately prior to the
manufacturing change(s) that produced ARA Product that did not satisfy Qualification Requirements.
In addition, Martek may request that the ARA Product be subjected to the verification process
described in Section 4.6(b)(i) and (ii) above to determine if the ARA Product meets Qualification
Requirements. If any such ARA Product thus produced by DSM (i.e., ARA Product produced following
one or more manufacturing changes) fails to satisfy Qualification Requirements, DSM shall adjust
its manufacturing process to revert to the manufacturing process utilized immediately prior to the
manufacturing change(s) that produced ARA Product that did not satisfy Qualification Requirements.
In addition, the parties agree to work together as part of the process described above to determine
if the failure to satisfy the Qualification Requirements is due to reasons reasonably related to a
change in or problem with Extraction or RBD.



(d) In the event DSM purchases or intends to purchase an additional fixed asset for use, in
whole or in part, * that is required for improving or maintaining production capabilities or
reducing the costs of ARA production for Martek pursuant to this Restated Agreement (the portion
(but such portion only, up to 100%) of any such asset used for improving or maintaining, or
reducing the costs of, ARA production being referred to herein as an “Additional Capital Asset”),
it shall notify Martek of such Additional Capital Asset as follows: If the aggregate capitalized
purchase amount of the Additional Capital Asset(s) (including all costs directly related thereto
that are capitalized in accordance with generally accepted accounting principles consistent with
those methods used by DSM for its other businesses, such as capitalized installation costs) is less
than USD$* in any calendar year, investment in such Additional Capital Asset(s) shall not require
Martek’s approval and such assets shall be deemed “Approved Capital Asset(s)” hereunder upon
purchase by DSM, but DSM shall notify Martek by providing an updated Schedule 9.4(d)-1 that
reflects the Approved Capital Asset(s), which shall be provided not less frequently than once per
calendar year. If the aggregate capitalized purchase amount of the Additional Capital Assets
equals or exceeds or is expected to equal or





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




 


33









 





exceed USD$* in any calendar year, DSM shall notify
Martek prior to such purchases and the parties shall discuss whether Martek is willing to share in the costs and benefits of such
purchases. If Martek agrees to co-invest in such new Additional Capital Assets then the parties
will agree upon the split of the investment costs, the corresponding allocation of depreciation to
ARA production for Martek, and how the financial benefits will be shared between the parties. In
that event, the parties shall agree upon and prepare an updated Schedule 9.4(d)-1 reflecting the
agreed portion of the Additional Capital Assets to be included thereon, which shall be referred to
as (and shall be deemed) “Approved Capital Assets.” If Martek does not agree to co-invest, then
DSM may invest in such Additional Capital Assets at its sole discretion, Martek shall not share in
the costs of any such Additional Capital Assets (i.e., they are not Approved Capital Assets), and
Martek shall not be entitled to share in any financial benefits arising from such Additional
Capital Assets through any additional cost reductions hereunder; provided, however, that Martek’s
failure to approve any such Additional Capital Assets shall not affect Martek’s ability to benefit
from the cost reductions previously committed through agreed upon Usages through 2014.
Accordingly, for any Additional Capital Assets for which Martek declines to co-invest as provided
above, Schedule 9.4(d)-1 shall not include any costs related to such Additional Capital Assets.
Within forty-five (45) days following the end of each calendar year, DSM will provide an annual
updated Schedule 9.4(d)-1 for the assets listed thereon and shall include a detailed list of all
Approved Capital Assets, their capitalized costs and the accumulated depreciation related thereto,
as well as detail relating to all such depreciation. All such assets shall be depreciated on a
straight-line basis over a ten (10) year period starting at the time such asset is placed into
service. Any disagreement between the parties relating to the determination of Additional Capital
Asset(s) or Approved Capital Asset(s) will be deemed to be a Disputed Fact and will be resolved
according to the provisions set forth in Section 8.6.



4.7. ARA Product Non-Conformity Procedure; Rework and Destruction. 



(a) If either party determines or has reason to believe that any shipment of ARA Products does
not conform with the applicable Specifications, that party will give prompt written notice thereof
to the other party, which notice shall include a description of the nonconformity. Any dispute
between the parties regarding whether or not a shipment conforms with the applicable Specifications
shall be resolved by a binding determination of a third party testing facility as agreed upon by
the Committee.



(b) If any shipment of ARA Products does not conform to the applicable Specifications, the
party that ordered such shipped products shall consider in good faith, whether it will accept such
shipment as-is. If the ordering party agrees to accept such shipment as-is, such ordering party
shall notify the producing party of such acceptance and shall pay such producing party the
applicable invoice price (in accordance with the terms of this Restated Agreement) for the
shipment. When determining if lots of ARA Product received from DSM meet Biomass Specifications,
Martek will continue to accept such lots that may not objectively meet the Biomass Specifications
but that Martek reasonably believes will produce Finished Oil that meets Finished Oil
Specifications, consistent with its past practice.





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




 


34









 





(c) If any shipment of ARA Products does not conform to the applicable Specifications and is
not accepted by the ordering party, such ordering party shall return such shipment to the producing
party at such producing party’s request and expense (the “Returned Material”). If the ordering
party authorizes the producing party to rework such shipment, such producing party shall be
entitled to rework such shipment and such ordering party shall accept such reworked shipment
provided that it meets the applicable Specifications, and the costs and expenses related to the
rework of the Returned Material shall be borne by the party doing such rework. If such reworked
shipment continues to fail to meet the applicable Specifications, the ordering party shall consider
in good faith whether it will accept such shipment as-is and, if the ordering party is Martek, it
shall also act in accordance with the last sentence of Section 4.7 (b). If such ordering party
agrees to accept such shipment as-is, such ordering party shall notify the producing party of such
acceptance, in which case the costs and expenses related to the rework of the Returned Material
shall be borne by the party doing such rework and such costs and expense shall not be included in
DSM Costs or Martek Cost, as applicable. The parties agree to work together in good faith to
co-develop rework procedures that allow rejected ARA Products to be re-processed into ARA Products
that meet the Specifications.



(d) In the event that the ordering party does not authorize the producing party to rework the
Returned Material or if such producing party does not exercise its right to provide a reworked
shipment or is unable to provide a reworked shipment that meets the Specifications within a
reasonable time after such producing party’s receipt of the notice of nonconformity, such ordering
party shall have no obligation to pay the producing party for the nonconforming ARA Products or
cost of Martek Services associated with the production of such ARA Products (as applicable) and, if
payment has already been made, such ordering party shall be entitled to an immediate refund of the
price of the nonconforming shipment. In such event, the producing party shall use its commercially
reasonable efforts to replace the nonconforming ARA Products with a substitute shipment that meets
the Specifications and such producing party shall be free to dispose of the Returned Material as it
determines, consistent with the terms of this Restated Agreement, including by selling it (to the
extent permitted) in its respective ARA Field of Use or destroying it.



4.8. Compliance. 



(a) DSM represents and warrants that it shall obtain and maintain, and shall ensure that its
Third Party Toll Manufacturers obtain and maintain, all licenses, permits, approvals, clearances
and notifications that may be required by law in connection with the manufacture and packaging of
ARA Products for Martek hereunder. DSM further represents and warrants that (i) the Specifications
for ARA Products to be produced as a result of Martek performing Martek Services for DSM shall
comply with all applicable laws, rules and regulations, (ii) all quantities of ARA Products that
DSM supplies to Martek hereunder shall be manufactured in conformity with all applicable laws,
rules and regulations and shall fully satisfy the Specifications, provided that DSM shall have
delivered to Martek a signed certificate of analysis indicating that such quantities of ARA
Products meet the Specifications, and (iii) DSM shall exercise commercially reasonable efforts to
keep its facilities that are used in the
manufacture of ARA Products in good working order and available for the production of ARA
Products pursuant to this Restated Agreement.





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




 


35









 





(b) Martek represents and warrants that it shall obtain and maintain, and shall ensure that
its Third Party Toll Manufacturers obtain and maintain, all licenses, permits, approvals,
clearances and notifications that may be required by law in connection with the Extraction, RBD,
manufacturing, packaging, or production of ARA Products for DSM hereunder. Martek further
represents and warrants that (i) the Specifications for ARA Products to be produced by DSM for
Martek shall comply with all applicable laws, rules and regulations and (ii) all Martek Services
shall be performed in conformity with all applicable laws, rules and regulations and the ARA
Products delivered as a result thereof shall fully satisfy the Specifications, provided that Martek
shall have delivered to DSM a signed certificate of analysis indicating that such quantities of ARA
Products meet the Specifications, and (iii) Martek shall exercise commercially reasonable efforts
to keep its facilities that are used in the manufacture of ARA Products in good working order and
available for the production of ARA Products pursuant to this Restated Agreement.



4.9. Disclaimers.



(a) THE LIMITED WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF, AND DSM HEREBY
DISCLAIMS, ALL OTHER WARRANTIES REGARDING THE PRODUCTS PRODUCED FOR MARTEK HEREUNDER, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.



(b) THE LIMITED WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF, AND MARTEK HEREBY
DISCLAIMS, ALL OTHER WARRANTIES REGARDING THE PRODUCTS PRODUCED AND SERVICES PERFORMED FOR DSM
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



(c) THE PARTIES ACKNOWLEDGE THAT NEITHER PARTY IS GRANTED ANY RIGHTS UNDER ANY PATENTS OR
PATENT APPLICATIONS FILED IN THE NAME OF OR ON BEHALF OF THE OTHER PARTY OR ITS AFFILIATES EXCEPT
THOSE SET FORTH IN SECTIONS 7.4 AND 9.3. EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTY TO THE OTHER
PARTY OR ANY THIRD PARTY AS TO THE SCOPE, VALIDITY OR ENFORCEABILITY OF ANY OF THE INTELLECTUAL
PROPERTY RIGHTS LICENSED HEREUNDER.





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




 


36









 





5. MARKETING




5.1. Expansion of Fields of Use. 



(a) DSM agrees to use its commercially reasonable efforts, including marketing efforts, to
assist Martek in entering into commercial agreements, on terms acceptable to Martek in Martek’s
sole discretion, with Infant Formula Product customers in such territories as DSM and Martek may
from time to time agree upon in writing.



(b) In view of DSM’s global marketing network, Martek agrees that should it or any of its
Affiliates consider utilizing a third party marketing and/or sales force for sales of ARA Products
for Infant Formula Products, Martek shall, before entering into a binding agreement with any other
third party with respect thereto, give DSM written notice thereof and shall present and consider
with DSM in good faith whether or not DSM could be of assistance in such marketing and sales
efforts.



(c) DSM shall use its good faith efforts to identify to Martek any DSM customer that indicates
to DSM an interest in any ARA Product that is available from Martek in the Martek ARA Fields of Use
and Martek shall use its good faith efforts to identify to DSM any Martek customer that indicates
to Martek an interest in any ARA Product that is available from DSM in the DSM ARA Fields of Use.



(d) DSM and Martek agree to explore together new market opportunities for additional uses of
ARA including applications that may involve combining ARA with DHA and/or other nutrients, but
shall be under no obligation to continue such explorations for any specific length of time nor
shall the parties be under any obligation to enter into any arrangement regarding any such new
market opportunities beyond the arrangements set forth herein.



5.2. Customer Contracts. 



From and after the Signing Date, each party and its Affiliates shall notify each of their
respective customers prior to any sale to such a customer of ARA Products that (a) any ARA Products
sold to such customer are subject to Intellectual Property licenses that prohibit such customer
from selling or using such ARA Products outside such notifying party’s ARA Fields of Use and (b)
such customer will not be able to purchase ARA Products from such party or any of its Affiliates if
any sale or use by such customer of such ARA Products is outside such notifying party’s ARA Fields
of Use. The parties shall cooperate in good faith to identify any customer that uses or sells ARA
Products purchased from a party or any of its Affiliates outside such notifying party’s ARA Fields
of Use (“Out of Scope Customer”). Where it is determined by agreement of the parties or pursuant
to the arbitration provisions of Section 10.5 that a party has sold, or that an Affiliate of a
party has sold, the ARA Products to an Out of Scope Customer, the party shall either promptly stop
such sale or use of ARA Products by such customer or make, or cause such Affiliate to make, no
further sales of ARA Products to such customer, it being understood and agreed that any failure to
stop such sale of ARA Products or to make, or cause such Affiliate to make, no such further sales
shall be deemed to be a breach of a material term of this Restated Agreement, unless applicable law
shall prohibit such party or Affiliate from stopping such sale or use of ARA Products by such
customer or from ceasing to make such further sales of ARA Products to such customer.





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




 


37









 





5.3. Priority of ARA Marketing. 



(a) It is understood and agreed that the parties will use all reasonable efforts to first meet
the demands for ARA Products for Infant Formula Products before supplying ARA Products to any other
Martek ARA Field of Use or to any DSM ARA Field of Use and otherwise in accordance with a
methodology for allocating any surplus ARA Products as determined by the Committee.



(b) Upon the request of either party, the number of Units of ARA in ARA Products to be
supplied per year for use in connection with new product and/or new ARA Field of Use development
shall be as follows, it being understood and agreed that the Committee shall have the authority to
modify such amounts from time to time:



	 	 	 
	 	 	Units of ARA per Annum
	Monthly Production Capacity	 	New ARA Product/Field of Use
	 
	 	 
	* Units of ARA

	 	* Units of ARA
	 
	 	 
	* Units of ARA

	 	* Units of ARA
	 
	 	 
	* Units of ARA

	 	* Units of ARA






(c) Each party shall be entitled to fifty percent (50%) of the total number of Units of ARA
per year allocated for use in connection with new product and/or new ARA Field of Use development,
provided that each party shall have the right to use all or a portion of such fifty percent (50%)
in any manner it deems fit within its own ARA Field of Use, whether for existing ARA Products or
new ARA Products.



5.4. * Arrangements with * Customers. 



(a) DSM hereby agrees to accept the * pricing for ARA Products as set forth in Section
5.4(b)(i) when and if Martek enters into * arrangements with *, pursuant to that certain *,
permitting * to order quantities of ARA Products * solely for inclusion in Infant Formula Products
that will be sold * in certain * and (ii) to meet its obligations to * Customers.



(b) DSM agrees (i) to accept Martek Purchase Orders for specified quantities of ARA Products
for which the delivery instructions provided by Martek in accordance with Section 3.8(a) specify
that the ARA Products delivered pursuant to such Purchase Orders will be included in an Infant
Formula Product that will be sold by * Customers * in one or more * and, together with DHA supplied
by Martek, must comprise * of any and all Omega-3 and/or Omega-6 long chain polyunsaturated fatty
acids (i.e., fatty acids other than linolenic acid, gammalinolenic acid and alphalinolenic acid
that contain at least * and at least *) in any Infant Formula Product sold by * Customers as
applicable in the *, and (ii) notwithstanding Section 6.1 of this Restated Agreement, to accept as
payment in full for the ARA Products subject to each such Martek Purchase Order an amount equal to
the Agreed Price per Unit of ARA for filling such order, less * of the DSM Mark Up per Unit of ARA. Notwithstanding the foregoing, DSM
shall not be required to accept in any calendar year Martek Purchase Orders for ARA Products for *
Customers at such * in an amount * of the * that are the subject of Martek’s Purchase Orders *. To
the extent that such Martek Purchase Orders * the * and the then current * for such * within
forty-five (45) days of the end of such calendar year.





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




 


38









 





(c) Martek shall (i) require * Customer, on whose behalf Martek orders ARA Products at the
price set forth in Section 5.4(b), to maintain complete and adequate books and records of all sales
of ARA Products ordered at such price, (ii) reserve and, in Martek’s discretion, exercise the right
to audit such books and records to enable Martek to verify that all such quantities of ARA Products
are included only in Infant Formula Products that are sold only in *, and (iii) take such steps
which are reasonable to ensure that such quantities of ARA Products are included only in Infant
Formula Products that are sold in *.



5.5. Notification and Challenge Procedure.



(a) Notwithstanding anything to the contrary set forth elsewhere in this Restated Agreement,
prior to any sale by a party (the “Notifying Party”) or any of its Affiliates of ARA Products into
the other party’s ARA Fields of Use (the “Responding Party”), the Notifying Party shall provide
written notice thereof to the Responding Party three (3) years before commencing any such sale (“IP
Notice”), which notice shall include a list of such ARA Products (“Included ARA Products”);
provided, however, that the foregoing requirement as well as the remaining
provisions of this Section 5.5 shall not apply to any sale by DSM or its Affiliates of, and DSM and
its Affiliates shall at all times be entitled to sell, DSM Adult ARA Products for a DSM Adult ARA
Application on the terms and subject to the conditions set forth in Section 7.4(f) of this Restated
Agreement. During such three (3) year period, the Notifying Party shall not commence such sales.
The date that the Responding Party receives such IP Notice shall hereinafter be referred to as the
“IP Notice Receipt Date.” The Responding Party shall have the right to proceed to arbitration
pursuant to Section 10.5 of this Restated Agreement, for the purpose of determining whether the
Notifying Party will be legally entitled to sell the Included ARA Products into any of the ARA
Fields of Use of the Responding Party without infringing the Intellectual Property rights or
Know-how of the Responding Party as further set forth in Section 5.5(b) below, by giving written
notice to the Notifying Party of its intent to proceed to arbitration, and subsequently initiating
such arbitration, within six (6) months of the IP Notice Receipt Date. Whether or not such right
to arbitrate is exercised, the Responding Party shall have the right to terminate this Restated
Agreement as further set forth in Section 5.5(c) below. If the Responding Party does not proceed
to arbitration within six (6) months of the IP Notice Receipt Date, the Notifying Party shall be
permitted to sell the Included ARA Products into any of the Responding Party’s ARA Fields of Use
only after the date which is three (3) years after the IP Notice Receipt Date. Any breach of any of
the provisions of this Section shall constitute a material breach of this Restated Agreement.





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




 


39









 





(b) In the case of arbitration pursuant to 5.5(a), the Notifying Party shall not sell any ARA
Products into any of the Responding Party’s ARA Fields of Use except in
accordance with Section 5.5(b)(ii), and shall have the burden of establishing by clear and
convincing evidence that its potential sale of the Included ARA Products into any of the Responding
Party’s ARA Fields of Use would not infringe upon the Responding Party’s Intellectual Property
rights or Know-how on the Decision Date. The date on which the arbitrators deliver their decision
to the parties shall hereinafter be referred to as the “Decision Date.”




(i) If the arbitrators determine that the Notifying Party will not be legally
entitled to sell the Included ARA Products into any of the Responding Party’s ARA
Fields of Use, then any subsequent sale of any Included ARA Products by the
Notifying Party into any of the Responding Party’s ARA Fields of Use shall be
conclusively deemed to be an infringement of the Responding Party’s Intellectual
Property rights and/or Know-how for purposes of any arbitration or legal proceeding
between the Responding Party and the Notifying Party related to such sale unless and
until there is a material change in the Intellectual Property rights or Know-how of
either party in which event either party shall be entitled to commence the process
set forth in Section 5.5(a) again.




(ii) If the arbitrators determine that the Notifying Party will be legally
entitled to sell the Included ARA Products into any of the Responding Party’s ARA
Fields of Use, such sales shall commence no earlier than (A), if this Restated
Agreement has not been terminated prior to the Decision Date, the date three (3)
years following the Decision Date or (B), if this Restated Agreement has
been terminated prior to the Decision Date, the date three (3) years following the
date of such termination.




(iii) During the pendency of the arbitration pursuant to 5.5(a), the Notifying
Party shall respect the arbitration process and shall not itself sell, and shall
cause its Affiliates not to sell, any ARA Products into the Responding Party’s ARA
Fields of Use except in accordance with Section 5.5(b)(ii).



(c) The Responding Party’s right to terminate this Restated Agreement pursuant to 5.5(a) shall
be exercisable by providing the Notifying Party with a written notice of termination (“Termination
Notice”), such Termination Notice to be delivered (i) any time up to the date six (6) months after
the Decision Date if the Responding Party commences arbitration in accordance with 5.5(a) or (ii)
at any time within one (1) year of the IP Notice Receipt Date if the Responding Party does not
commence arbitration in accordance with 5.5(a). In either case, the Termination Notice must (i)
set forth an effective date for the termination that is no earlier than the date three (3) years
after the IP Notice Receipt Date and (ii) be delivered to the Notifying Party at least six (6)
months prior to such effective date.





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




 


40









 





(d) Notwithstanding anything in this Restated Agreement to the contrary, upon the IP Notice
Receipt Date:




(i) The Responding Party’s purchase and/or supply obligations under Article 3
shall be terminated and shall instead become purchase and/or supply rights, as the
case may be, but the Notifying Party’s obligation to purchase or supply under
Article 3 shall continue;




(ii) The Responding Party’s (but not the Notifying Party’s) production or
sales allocation (i.e. the DSM Extraction Allocation /DSM RBD Services Allocation or
Martek Allocation, as applicable) under Article 3 shall become unlimited;




(iii) If DSM is the Responding Party: (i) the parties’ obligation set forth in
Section 5.3 to first meet demands for Infant Formula Products before supplying ARA
Products to any DSM ARA Field of Use and (ii) DSM’s obligation set forth in Section
5.4 to accept the * pricing for * customers, shall each terminate (such obligations
to continue unaffected if Martek is the Responding Party);




(iv) If Martek is the Responding Party, Martek’s payment obligations under
Section 6.12 (Break Up Fee) shall terminate (such payment obligation to continue
unaffected if DSM is the Responding Party), and Martek’s obligations regarding the
Agreed Annual Fixed Costs under Section 6 shall terminate (such payment obligation
to continue unaffected if DSM is the Responding Party); and




(v) The Responding Party shall have the right to sublicense the Notifying
Party’s proprietary technology (either Martek Proprietary Technology or DSM
Proprietary Technology, as applicable), Improvements and the Production Technology
to any Third Party Toll Manufacturers without the prior approval of or acceptance by
the Notifying Party (and the Notifying Party’s right to so sublicense shall continue
to be subject to the prior approval or acceptance requirements set forth herein).





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




 


41









 





6. FINANCIAL MATTERS




6.1. Amounts Payable by Martek.



(a) For each Unit of ARA that has been delivered by DSM in a given calendar year and accepted
by Martek pursuant to a Martek Purchase Order, Martek shall pay to DSM the applicable Budgeted
Price per Unit of ARA as determined below, subject to the limitations and adjustments further set
forth in this Article 6, including the reconciliations pursuant to Section 6.2 and adjustments
pursuant to Section 6.3. The Budgeted Price per Unit of ARA shall be equal to the sum of the DSM
Fixed Cost per Unit of ARA, the mark up per Unit of ARA (the “DSM Mark Up”) and the DSM Variable
Cost per Unit of ARA, in each case as in effect for the calendar year in which the Unit of ARA is
ordered for delivery pursuant to a Martek Purchase Order, as set forth below.



(b) Prior to December 1 of each calendar year (the “Current Year”), the Committee shall agree
upon the rates per Unit of ARA for electricity, natural gas, yeast extract and dextrose (the
“Budgeted Rates”) to be used in the calculation of the DSM Variable Costs per Unit of ARA for the
next calendar year (the “Succeeding Year”).



(c) For any period during the term of this Restated Agreement, if so requested by Martek, DSM
shall lock-in (if possible) a fixed rate for up to * (or a lesser portion if so requested by
Martek) of electricity, natural gas, yeast extract and dextrose to be used by DSM in connection
with producing ARA Products for Martek. In addition, DSM shall obtain written approval from
Martek, such approval to not be unreasonably withheld or delayed, prior to locking-in a fixed rate
or hedge for all or any portion of electricity, natural gas, yeast extract and dextrose in
connection with directly or indirectly producing ARA Products for Martek, even if Martek has not
requested such action, which written approval may be obtained via email correspondence between the
parties. The parties hereby agree that, once a rate is locked-in for a given period in accordance
with the foregoing procedure, it will not be subject to any further adjustment during the relevant
period unless mutually agreed in writing. DSM shall use commercially reasonable efforts to
minimize all DSM Variable Costs per Unit of ARA, including without limitation the costs subject to
rate adjustments listed above.



(d) The parties agree that Martek shall pay for all transportation from * Ex-Works and arrange
(or have arranged by DSM) transport of Units of ARA in line with DSM’s production planning and
Martek’s Purchase Orders.



(e) During the period from January 1, 2010 through December 31, 2014, * of all purchases of
Units of ARA made by Martek will be invoiced by and paid to DSM in US Dollars and * in Euros using
an exchange rate of * US Dollars per Euro. For example, if the aggregate Units of ARA purchased
for a calendar year is * and the Agreed Price per Unit of ARA is *, * will be paid and * will be
paid. For purchases of Units of ARA made by Martek in 2009, if the amounts invoiced by and paid to
DSM are not * in US Dollars and * in Euros, the amounts will be reconciled to match such
proportions using an exchange rate of * US Dollars per
Euro. Euros are calculated by determining * of the amount of US Dollars that would have been paid
at * per Unit of ARA (* of *, or *) and then dividing * by the exchange rate of US$* per €1. All
references to dollars or $ in this Restated Agreement shall mean US Dollars.





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




 


42









 





(f) The parties agree that the following volume and pricing terms and conditions shall apply
for each calendar year commencing with 2009 and continuing through December 31, 2014, subject to
adjustments set forth in Sections 6.2 and 6.3 below, as applicable:




	 	(i)	 	2009: For calendar year 2009, Martek may purchase up to * Units of ARA
at the Budgeted Price, but shall order at least * Units of ARA for delivery in 2009.
The Budgeted Price for 2009 shall be calculated based upon the following:







	 	•	 	The 2009 Agreed Annual Fixed Cost shall be * US Dollars ($*) resulting in a
DSM Fixed Cost per Unit of ARA equal to $* for the first * Units of ARA and $*
for any additional Units of ARA.







	 	•	 	The 2009 DSM Mark Up per Unit of ARA shall be equal to $* for the first *
Units of ARA and $* for any additional Units of ARA.







	 	•	 	The 2009 DSM Variable Cost per Unit of ARA shall be equal to $* for all
Units of ARA, determined as set forth on Schedule 6.1-B.







	 	(ii)	 	2010: For calendar year 2010, Martek may purchase up to * Units of ARA
at the Budgeted Price, but shall order at least * Units of ARA for delivery in 2010.
The Budgeted Price for 2010 shall be calculated based upon the following:







	 	•	 	The 2010 Agreed Annual Fixed Cost shall be * US Dollars ($*) resulting in a
DSM Fixed Cost per Unit of ARA equal to $* for the first * Units of ARA and $*
for any additional Units of ARA.







	 	•	 	The 2010 DSM Mark Up per Unit of ARA shall be equal to $* for all Units of
ARA forecasted for 2010 pursuant to the Martek Three Year Rolling Forecast as
of November 1, 2009 and $* for any additional Units of ARA.







	 	•	 	The 2010 DSM Variable Cost per Unit of ARA shall be the sum of the Usages
for electricity, natural gas, yeast extract and dextrose set forth in Schedule
6.1-A multiplied by their corresponding Budgeted Rates for 2010 (except that
the rate for “Other Materials” shall be as set forth on Schedule 6.1-B).








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




 


43









 






	 	(iii)	 	2011: For calendar year 2011, Martek may purchase up to * Units of
ARA at the Budgeted Price, but shall order at least * Units of ARA for delivery in
2011. The Budgeted Price for 2011 shall be calculated based upon the following:







	 	•	 	The 2011 Agreed Annual Fixed Cost shall be * US Dollars ($*) resulting in a
DSM Fixed Cost per Unit of ARA equal to $* for the first * Units of ARA and $*
for any additional Units of ARA.







	 	•	 	The 2011 DSM Mark Up per Unit of ARA shall be equal to $ * for all Units of
ARA forecasted for 2011 pursuant to the Martek Three Year Rolling Forecast as
of November 1, 2010 and $* for any additional Units of ARA.







	 	•	 	The 2011 DSM Variable Cost per Unit of ARA shall be the sum of the Usages
for electricity, natural gas, yeast extract and dextrose set forth in Schedule
6.1-A multiplied by their corresponding Budgeted Rates for 2011 (except that
the rate for “Other Materials” shall be as set forth on Schedule 6.1-B).







	 	(iv)	 	2012: For calendar year 2012, Martek may purchase up to * Units of ARA
at the Budgeted Price for delivery in 2012, which shall be calculated based upon the
following:







	 	•	 	The 2012 DSM Fixed Cost per Unit of ARA shall be the 2012 Agreed Annual
Fixed Cost of * US Dollars ($*) divided by the number of Units of ARA
forecasted for purchase by Martek for 2012 pursuant to the Martek Three Year
Rolling Forecast as of November 1, 2011, subject to a reconciliation based on
actual 2012 purchases as provided below.







	 	•	 	The 2012 DSM Mark Up per Unit of ARA shall be equal to $* for all Units of
ARA forecasted for 2012 pursuant to the Martek Three Year Rolling Forecast as
of November 1, 2011 and $* for any additional Units of ARA.







	 	•	 	The 2012 DSM Variable Cost per Unit of ARA shall be the sum of the Usages
for electricity, natural gas, yeast extract and dextrose set forth in Schedule
6.1-A multiplied by their corresponding Budgeted Rates for 2012 (except that
the rate for “Other Materials” shall be as set forth on Schedule 6.1-B).







	 	(v)	 	2013: For calendar year 2013, Martek may purchase up to * Units of ARA
at the Budgeted Price for delivery in 2013, which shall be calculated based upon the
following:







	 	•	 	The 2013 DSM Fixed Cost per Unit of ARA shall be the 2013 Agreed Annual
Fixed Cost of * US Dollars ($*) divided by the number of Units of ARA
forecasted for purchase by Martek for 2013 pursuant to the Martek Three Year
Rolling Forecast as of November 1, 2012, subject to a reconciliation based on
actual 2013 purchases as provided below.








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




 


44









 






	 	•	 	The 2013 DSM Mark Up per Unit of ARA shall be equal to $ * for all Units of
ARA forecasted for 2013 pursuant to the Martek Three Year Rolling Forecast as
of November 1, 2012 and $* for any additional Units of ARA.







	 	•	 	The 2013 DSM Variable Cost per Unit of ARA shall be the sum of the Usages
for electricity, natural gas, yeast extract and dextrose set forth in Schedule
6.1-A multiplied by their corresponding Budgeted Rates for 2013 (except that
the rate for “Other Materials” shall be as set forth on Schedule 6.1-B).







	 	(vi)	 	2014: For calendar year 2014, Martek may purchase up to * Units of ARA
at the Budgeted Price for delivery in 2014, which shall be calculated based upon the
following:







	 	•	 	The 2014 DSM Fixed Cost per Unit of ARA shall be the 2014 Agreed Annual
Fixed Cost of * US Dollars ($*) divided by the number of Units of ARA
forecasted for purchase by Martek for 2014 pursuant to the Martek Three Year
Rolling Forecast as of November 1, 2013, subject to a reconciliation based on
actual 2014 purchases as provided below.







	 	•	 	The 2014 DSM Mark Up per Unit of ARA shall be equal to US$ * for all Units
of ARA forecasted for 2014 pursuant to the Martek Three Year Rolling Forecast
as of November 1, 2013 and $* for any additional Units of ARA.







	 	•	 	The 2014 DSM Variable Cost per Unit of ARA shall be the sum of the Usages
for electricity, natural gas, yeast extract and dextrose set forth in Schedule
6.1-A multiplied by their corresponding Budgeted Rates for 2014 (except that
the rate for “Other Materials” shall be as set forth on Schedule 6.1-B).






(g) Other Applications. Notwithstanding anything to the contrary set forth above, for
those Units of ARA in ARA Products that Martek sells to customers that are sold for use for other
than Infant Formula Products and/or Products for Babies, Martek shall pay to DSM a fee (the “Profit
Sharing Fee”) equal to the following:




(i) * of Adult Applications Gross Profits, plus




(ii) * of Gross Profits on Other ARA Applications, less




(iii) The applicable DSM Mark Up for such Units of ARA



Where Martek sells such ARA Units in combination with Units of DHA for use in ARA Applications for
Adults and Other ARA Applications, the Adult Applications Gross Profits or Gross Profits on Other
ARA Applications, in each case per Unit of ARA, as applicable, shall be equal to the Gross Profits
on the Units of ARA (from DSM’s manufacture of the ARA Products to Martek’s sales to its customer,
less the selling and transaction costs related to such sales) that
are ultimately sold for use in such ARA Applications for Adults or Other ARA Applications, as
applicable, based on the average selling price in the Martek ARA Field of Use for similar Units of
ARA sold alone (but in similar quantities as the combined product) and not in combination with
Units of DHA. Any corresponding Profit Sharing Fee payments shall be made within forty-five (45)
days following the end of each calendar year.





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




 


45









 





(h) In the case of new non-fermentation technology to produce ARA Products the parties will
negotiate in good faith to the extent ARA Products are produced with such technology, a new
economic arrangement that will maintain their relative economic position as under the fermentation
technology reflected elsewhere in this Restated Agreement.



(i) If, during the term of this Restated Agreement, any Martek customer that is permitted by
contract with Martek to produce ARA Products in fact produces its own ARA Products, then Martek
shall pay to DSM, on a quarterly basis, * of the amount of arm’s length royalties and any other
related payments received by Martek from such customer in such calendar quarter that are directly
attributable to such customer-produced quantity of ARA Products (the “Customer ARA Production
Royalty”). Any Customer ARA Production Royalty payments shall be paid by Martek to DSM within
forty-five (45) days following the end of each calendar year.



6.2. Reconciliations to the Budgeted Price. 



(a) All Budgeted Prices determined as set forth above shall be paid only for Units of ARA
actually recovered by Martek in the post Extraction Crude Oil. Any corresponding payments as the
result of differences between Units of ARA purchased by Martek and those actually recovered by
Martek shall be reconciled within forty-five (45) days following the end of each calendar quarter.



(b) Martek shall be responsible for 100% of the actual rates billed to DSM by third parties or
by one or more Affiliates or business units of DSM (which amounts shall not include *) for
electricity, natural gas, yeast extract, and dextrose required for the production of Units of ARA
shipped to Martek pursuant to a Martek Purchase Order (the “Actual Rates”); provided that
the actual rates billed to DSM by one or more Affiliates or business units of DSM for such
utilities, yeast extract or dextrose shall be substantially the same, or at least as favorable to
Martek, as those prevailing at the time for such utilities, yeast extract or dextrose obtained from
other nonaffiliated companies. Notwithstanding the foregoing, where any such DSM Affiliate or
business unit provides DSM a below-market rate for such utilities (but such utilities only) as a
result of Additional Capital Assets purchased by DSM that are not Approved Capital Assets, the
market rates for such utilities shall apply as such market rates are reasonably agreed in advance
and in writing by the parties or, if not so agreed, as determined in accordance with the provisions
of Section 8.6 as a “Disputed Fact”. If, however, such Additional Capital Assets are Approved
Capital Assets, Martek will benefit from the more favorable rate, if any, in accordance with the
arrangement for Approved Capital Assets in Section 4.6(b). It is understood and agreed that the
“market rate” for any utility shall be the price for such utility that is generally available
to Persons similarly situated as DSM who purchase such utility in the same general quantities
and with the same general specifications as those purchased by DSM for ARA production.





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




 


46









 





(c) Any corresponding payments as the result of differences between Budgeted Rates and Actual
Rates shall be reconciled within forty-five (45) days following the end of each calendar quarter.
Schedules 6.2-A and 6.2-B set forth calculations applicable to the reconciliations provided in this
Section 6.2.



(d) The average RBD yield used to estimate Units of ARA as Finished Oil expected to be
obtained from each Unit of ARA as Crude Oil shall be *. Any difference between the expected and
actual Units of ARA as Finished Oil as reported by Martek will be converted into Units of ARA as
Crude Oil by dividing any such difference in Finished Oil quantities by the average RBD yield. DSM
will invoice Martek with respect to any increase in Crude Oil quantity or will credit Martek with
respect to any decrease in Crude Oil quantity as follows: * for DSM Variable Cost per Unit of ARA,
and * for DSM Mark Up per Unit of ARA. Any such corresponding payments shall be reconciled within
forty-five (45) days following the end of each calendar quarter.



(e) Thirty (30) days following the end of each calendar year 2009 through 2014, DSM shall
confirm the total Units of ARA produced in the immediately preceding calendar year including Units
of ARA delivered to Martek in such calendar year pursuant to a Martek Purchase Order and Units of
ARA produced by DSM in such calendar year that were intended for sale within the DSM Fields of Use
or DSM Adult ARA Applications. The Agreed Annual Fixed Costs for the relevant calendar year shall
be adjusted by multiplying the Agreed Annual Fixed Costs for the relevant calendar year by the
ratio of (X) total Units of ARA delivered in such calendar year to Martek pursuant to Martek
Purchase Order(s), excluding Carryover Units, to (Y) the total Units of ARA produced by DSM in such
calendar year, excluding Carryover Units (“Adjusted Annual Fixed Costs”). “Carryover Units” shall
mean Units of ARA produced by DSM in a calendar year in excess of Martek Purchase Orders, which
Units are produced for delivery to Martek in a subsequent calendar year. DSM shall pay to Martek
the amount, if any, by which the aggregate Agreed Annual Fixed Costs per Unit of ARA actually paid
by Martek to DSM for the relevant year exceed the Adjusted Annual Fixed Costs for the relevant
year, but not less than zero, within forty-five (45) days following the end of the relevant
calendar year.



(f) Martek shall pay to DSM the amount, if any, by which the Adjusted Annual Fixed Costs for
the relevant year exceeds the aggregate Agreed Annual Fixed Costs per Unit of ARA actually paid by
Martek for the relevant year, within forty-five (45) days following the end of the relevant
calendar year





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




 


47









 





6.3. Adjustments to the Budgeted Price.



(a) Notwithstanding anything to the contrary in this Restated Agreement, to the extent that
one or more DSM Shortfalls occur for causes other than a Force Majeure Event,
are less than or equal to * Units of ARA in the aggregate within a rolling * period, and do
not occur for more than *, then Martek shall pay to DSM the amount by which the Adjusted Annual
Fixed Costs for the relevant year exceeds the aggregate sum of the DSM Fixed Cost per Unit of ARA
paid to DSM for Units of ARA delivered in the relevant year, within forty-five (45) days following
the end of each calendar year(s) within which such DSM Shortfalls occur. If one or more DSM
Shortfalls occur for causes other than a Force Majeure Event and (A) exceed * Units of ARA in the
aggregate within a rolling * period, or (B) occur for more than four (4) consecutive calendar
quarters (each such * period in (A) or (B) shall be referred to as a “Relevant Period”) then (i)
for each Unit of ARA sold by Martek in excess of the base Martek Allocation (i.e., 40,000 Units of
ARA), Martek will pay to DSM (X) the Shortfall Fixed Cost per Unit of ARA for each such Unit of ARA
produced by Martek plus (Y) an amount equal to the Shortfall Agreed Price per Unit of ARA for the
relevant year minus the price per Unit of ARA paid by Martek to a third party ARA producer (but not
less than zero) for each such Unit of ARA produced by such third party ARA producer, plus (ii) for
each Unit of ARA purchased from DSM during the Relevant Period or an Adjustment Period, Martek will
pay to DSM the Shortfall Fixed Cost per Unit of ARA in lieu of the Agreed Annual Fixed Cost Per
Unit of ARA: provided, however, in no event shall the aggregate amount payable pursuant to (i) and
(ii) exceed the Adjusted Annual Fixed Costs for the relevant year(s). In the event that the
aggregate amount of DSM Fixed Costs Per Unit of ARA paid by Martek for Units of ARA purchased from
DSM during a Relevant Period or an Adjustment Period as set forth in (ii) above exceeds the
aggregate Shortfall Fixed Cost per Unit of ARA for such Units of ARA, the excess amount shall be
credited to Martek. “Shortfall Fixed Cost per Unit of ARA” shall mean the Adjusted Annual Fixed
Cost for the applicable calendar year(s) within the Relevant Period (and any Adjustment Period)
divided by the total Units of ARA requested in Martek Firm Orders for ARA Products for such
applicable calendar year(s) within the Relevant Period or Adjustment Period. “Shortfall Agreed
Price per Unit of ARA” shall mean the sum of the Shortfall Fixed Cost per Unit of ARA, the DSM Mark
Up per Unit of ARA and the DSM Variable Cost per Unit of ARA, in each case as in effect for the
calendar year in which the Unit of ARA is ordered for delivery from such third party ARA producer.
The adjustments to the Budgeted Price and Agreed Price per Unit of ARA applicable during a Relevant
Period as set forth above shall continue to apply for the remainder of any calendar year which
includes any portion of a Relevant Period, and such remaining calendar year period following the
end of a Relevant Period shall be referred to as an “Adjustment Period.” During any Adjustment
Period, Martek will use its commercially reasonable efforts to purchase all of its ARA Product
needs from DSM. Examples of calculations applying the provisions of this Section 6.3(a) are set
forth on Schedule 6.3(a). In the event that, due to a DSM Shortfall for causes other than a Force
Majeure Event, Martek has paid to DSM the difference between the Adjusted Annual Fixed Cost for the
immediately preceding year and the aggregate sum of DSM Fixed Costs per Unit of ARA paid to DSM for
Units of ARA delivered in such year pursuant to the first sentence of this Section 6.3(a) and DSM
Shortfalls continue to occur in the subsequent calendar year and exceeds * Units of ARA in the
aggregate within a rolling * period or occurs for more than *, then DSM will immediately credit
Martek for such payment amount. In no event will Martek be required to pay the DSM Mark Up per
Unit of ARA in respect of any ARA Products sold by Martek as permitted as a result of any increase
in the Martek Allocation effected pursuant to Section 3.3(b). DSM agrees to pursue any insurance
proceeds available to it with respect to a DSM Shortfall, but DSM has no obligation to
maintain such insurance coverage. Any and all amounts payable by Martek to DSM under this Section
6.3(a) shall be reduced by any insurance proceeds actually received by DSM and any other amounts
recovered or to which DSM is entitled with respect to insurance claims or damages, for such DSM
Shortfall (collectively, “Recovered Amounts”) which remain following application of such Recovered
Amounts to DSM’s loss with respect to the DSM Mark Up per Unit of ARA due to such DSM Shortfall
that were not otherwise recovered. If DSM receives a payment from Martek pursuant to this Section
6.3(a) and subsequently receives Recovered Amounts which would have resulted in a reduction of
Martek’s obligation as provided above, if received earlier, DSM shall promptly pay to Martek an
amount equal to such excess Recovered Amounts received, but not to exceed the amount paid by Martek
pursuant to this Section 6.3(a).





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




 


48









 





(b) Beginning in 2010, the parties shall compare the increase in the PPI from January of the
immediately preceding calendar year to January of the Current Year. If the increase in the PPI
exceeds * for any such calendar year period then the DSM Mark Up per Unit of ARA and the Agreed
Annual Fixed Costs (reduced by an amount equal to DSM’s annual depreciation for such calendar year
as set forth on Schedules 9.4(d)-1 and 9.4(d)-2) for the Current Year and each year thereafter
shall be increased by the percentage amount of such increase in the PPI, effective as of January 1
of the year in which such review of the PPI has taken place, provided that *. *.



(c) The parties agree that the pricing provisions set forth above relating to DSM Fixed Costs
per Unit of ARA and DSM Variable Costs per Unit of ARA (but not the DSM Mark Up) shall be amended
as expressly set forth elsewhere in this Restated Agreement or due to one or more of the following
events outside of DSM’s control: (i) legal or regulatory changes are made that would not allow DSM
to continue production of ARA in the then-current manner without violating a local, state or
federal law, (ii) new patents are issued that prevent DSM from producing in the then-current
manner, or (iii) one or more of the Raw Materials is no longer available *. In any such event,
DSM shall use its commercially reasonable efforts to keep DSM Fixed Costs per Unit of ARA and DSM
Variable Costs per Unit of ARA as low as possible by using its commercially reasonable efforts to
increase production efficiencies, using low cost alternative Raw Materials or employing other
applicable alternatives due to such events. In any such event, the parties will agree on
adjustments to the DSM Fixed Cost per Unit of ARA and/or the DSM Variable Cost per Unit of ARA for
the remaining calendar years through 2014, as applicable, to reflect the actual incremental
increases in the costs to be incurred by DSM in excess of the amounts already included therefor due
to such event and only for so long as such increases in costs are actually incurred; provided,
however, that changes to the applicable DSM Variable Costs per Unit of ARA will only be made if
such events require change(s) that increase the Usages component (or the total cost/unit of the
“Other Materials” component) of the DSM Variable Costs per Unit of ARA, as a result of which the
DSM Variable Costs increase by more than *, as calculated at the then applicable Actual Rates.





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




 


49









 





(d) Martek and DSM agree to use their commercially reasonable efforts to work together to
identify additional goods or products that could be manufactured or processed *
so as to improve plant utilization and thereby reduce the allocation of Agreed Annual Fixed
Costs to the production of ARA. In the event that the manufacturing and/or processing of
additional goods or products commences * as a result of cooperative efforts initiated by Martek,
DSM and Martek will jointly determine the extent to which any such additional plant utilization
actually reduces the amount of DSM Fixed Costs allocable to Martek, and the parties shall agree on
an adjustment to the DSM Fixed Costs payable hereunder through 2014 corresponding with the third
party goods/products utilization in respect of the available total annual capacity *. In the
event, however, that the manufacturing and/or processing of additional goods or products * results
from DSM’s efforts, Martek shall not be entitled to any reduction of the DSM Fixed Costs allocable
to Martek under this Restated Agreement through 2014. It is understood and agreed that, in
determining any fixed cost component of any pricing after 2014, all goods/products manufactured *
shall be considered, and not just those for which an adjustment is envisioned based on this Section
6.3(d).



6.4. Amounts Payable by DSM. 



(a) For each Unit of ARA upon which Martek has performed the Martek Services and which has
been delivered EXW by Martek and accepted by DSM pursuant to a DSM Purchase Order, DSM shall pay to
Martek the Martek Costs per Unit of ARA calculated in accordance with Schedule 2.104 plus a *
markup, in each case as in effect for the calendar year in which the Unit of ARA is ordered for
delivery in such calendar year pursuant to a DSM Purchase Order. Unless otherwise agreed to by the
parties, the Martek Costs per Unit of ARA for a Succeeding Year will be agreed to by the Committee
by November 30 of each Current Year and shall be based on the DSM Budgeted Volume for the
Succeeding Year and the actual Martek Costs per Unit of ARA for the first three (3) quarters of the
Current Year, taking into account any changes to specifications that may impact such costs. The
parties agree that Martek shall not be charged for ARA Products delivered by DSM to Martek for
purposes of Martek’s performing the Martek Services for DSM.



(b) With respect to any ARA Product sold in the DSM ARA Field of Use by DSM or any DSM
Affiliate to a third party that is not an Affiliate of either DSM or Martek, DSM will pay Martek a
royalty of * of the Agreed Price per Unit of ARA applicable to the relevant calendar year for each
Unit of ARA sold as adjusted pursuant to Section 6.3 (the “DSM ARA Field of Use Royalty”);
provided, however, that (i) no such royalty shall be due and owing unless and until the
total quantity of sales during the calendar year in question exceeds $*, (ii) no royalty shall be
owed for sales of ARA Products to * and (iii) the DSM ARA Field of Use Royalty shall not exceed *
of DSM’s Gross Profit on such sales. In cases where DSM reduces the price of the products referred
to in this Section 6.4 as an incentive for a DSM customer to purchase other DSM products, DSM’s
Gross Profit, for purposes of determining any cap on the DSM ARA Field of Use Royalty, shall be
based on the non-reduced price. Any corresponding DSM ARA Field of Use Royalty payments shall be
made within forty-five (45) days following the end of the immediately preceding calendar year.





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




 


50









 





(c) With respect to any ARA Product sold in the DSM Adult ARA Applications by DSM or any DSM
Affiliate to a third party that is not an Affiliate of either DSM or Martek, DSM will pay Martek a
royalty equal to * of the Agreed Price per Unit of ARA in effect applicable to the relevant
calendar year for each Unit of ARA sold as adjusted pursuant to Section 6.3 (the “DSM Adult ARA
Applications Royalty”); provided, however, that no such royalty shall be due and owing
unless and until the total quantity of sales during the calendar year in question shall exceed $*.
Notwithstanding the foregoing, for sales into the * market of a DSM Adult ARA Product that is a
DHA/ARA combination product, DSM agrees that it will either (i) utilize DHA supplied by Martek for
such DSM Adult ARA Product, subject to the payment of the * royalty specified above, or (ii) not
utilize DHA supplied by Martek for such DSM Adult ARA Product and instead pay Martek a royalty
equal to * of the Agreed Price per Unit of ARA in effect at the time for each Unit of ARA sold as
adjusted pursuant to Section 6.3. Any corresponding DSM Adult Applications Royalty payments shall
be made within forty-five (45) days following the end of the immediately preceding calendar year.
For the avoidance of doubt, to the extent any royalty is payable by DSM to Martek on ARA Products
under this Section 6.4(c), no royalty shall be payable by DSM to Martek on the same ARA Products
pursuant to Section 6.4(b).



6.5. Invoices and Payment. 



(a) DSM shall invoice Martek for each Martek Purchase Order no earlier than the date on which
such order is delivered EXW, and Martek shall remit all payments due to DSM within thirty (30) days
following the later of (i) the invoice date for such shipment and (ii) the receipt by Martek of a
signed certificate of analysis from DSM relating to such shipment, provided that the total
aggregate amount of unpaid invoices during any given month shall not at any time exceed 150% of the
average monthly total invoices sent by DSM to Martek during the three (3) months immediately
preceding such month. During the period from January 1, 2010 through December 31, 2014, DSM’s
invoices to Martek shall reflect * of the Agreed Price in US Dollars and * of the Agreed Price in
Euros as set forth in Section 6.1 (and Martek shall pay DSM’s invoices in such currencies) and
illustrated in Schedule 6.2-B. For invoices relating to 2009, the parties shall reconcile the
actual amounts paid in order to reflect * of the Agreed Price paid in US Dollars and * of the
Agreed Price paid in Euros as set forth in Section 6.1 and illustrated in Schedule 6.2-A. DSM
shall charge Martek interest (from the due date of the payment until the date such payment is
actually received by DSM) on payments that are more than fifteen (15) days late at an annualized
rate of interest equal to the Euribor rate in effect as of the first day of such quarter plus three
percent (3%).



(b) Martek shall invoice DSM for each DSM Purchase Order no earlier than the date on which
such order is delivered EXW, and DSM shall remit all payments due to Martek within thirty (30) days
following the later of (i) the invoice date for such shipment and (ii) the receipt by DSM of a
signed certificate of analysis from Martek relating to such shipment. All ARA Products upon which
Martek Services have been performed will be billed and paid for in US Dollars. Martek shall charge
DSM interest (from the due date of the payment until the date such payment is actually received by
Martek) on payments that are more than fifteen (15) days
late at an annualized rate of interest for each quarter equal to the Euribor rate in effect as
of the first day of such quarter plus three percent (3%).





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




 


51









 





(c) Amounts due from one party to the other pursuant to Section 7.2(b)(iv)(B) shall be paid
within forty-five (45) days following the end of the relevant calendar quarter.



(d) Except as otherwise expressly provided herein, all amounts to be paid by a party to the
other under this Restated Agreement shall be due and payable within thirty (30) days of the invoice
date in respect thereof. All amounts due and payable and not paid within the applicable grace
period shall bear interest for each quarter or portion thereof at an annualized rate of interest
equal to the Euribor rate in effect as of the first day of such quarter plus three percent (3%),
calculated from the due date of the payment until the date such payment is actually received by the
receiving party.



6.6. Interest Charges for Inventory. 



Either party may request from time to time that the other party maintain an inventory of ARA
Products for the sole purpose of fulfilling Martek Purchase Orders or DSM Purchase Orders, as
applicable. If a party agrees to maintain such inventory, then such party shall charge the
requesting party interest on the Agreed Price or fees for Martek Services as set forth in Section
6.4, as applicable, that would be paid for such inventory for the period that such party maintains
such inventory at an annualized rate of interest equal to the average Euribor rate plus three
percent (3%) for such period.



6.7. Margin Protection. 



(a) Martek and DSM shall share data on Gross Profits on sales of ARA Products and future
expectations of declines in Gross Profit per Unit of ARA. Notwithstanding anything in this Restated
Agreement to the contrary, if the average Gross Profit per Unit of ARA in US Dollars received by
Martek and its Affiliates on sales of a Unit of ARA falls below the DSM Mark Up per Unit of ARA for
a period of *, Martek shall give DSM prompt written notice thereof, whereupon the parties agree
that the DSM Mark Up per Unit of ARA shall be reduced as of the day of notification to an amount
that would be equal to the average Gross Profit in US Dollars received by Martek and its Affiliates
on sales of a Unit of ARA after the adjustment for such reduction in the DSM Mark Up per Unit of
ARA. If the average Gross Profit per Unit of ARA in US Dollars received by Martek and its
Affiliates on sales of a Unit of ARA recovers to at least the level of the DSM Mark Up per Unit of
ARA in any subsequent calendar quarter, Martek shall give DSM prompt written notice thereof,
whereupon the parties agree that the full DSM Mark Up per Unit of ARA shall be restored as of the
date of such notification.



(b) For purposes of calculating Martek’s Gross Profit in this Section 6.7, (i) Martek agrees
that it will not include in the calculation any ARA Products sold by Martek to its customers at a
reduced price as an incentive for the Martek customers to purchase other Martek products and (ii)
to the extent that the ARA Products are Blended Products, then the Gross Profit
per Unit of ARA in such ARA Products will be determined by multiplying (A) the Gross Profit in
US Dollars received by Martek and its Affiliates on sales of the Blended Product by (B) a fraction
where the numerator is the number of Units of ARA in the Blended Product and the denominator is the
total number of units of fatty acids in the Blended Product, but in no event shall such amount be
less than the Gross Profit on ARA Products where ARA Products are sold as single product.





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




 


52









 





6.8. Stop Loss. 



(a) If at any time from and after December 31, 2011, Martek shall have received from its
customers during the immediately preceding * period total orders of ARA Products of less than *
Units of ARA, then Martek shall have the right to deliver written notice thereof to DSM requesting
a meeting pursuant to this Section 6.8(a), in which event the parties shall promptly meet to
discuss in good faith changes that might be implemented so as to increase sales of or demand for
ARA Products and otherwise to increase the economic benefits to the parties from the Alliance. If
at any time from and after December 31, 2011, DSM shall have received from Martek during the
immediately preceding four (4) calendar quarter period an aggregate amount of DSM Mark-Up of less
than $* (which amount shall be subject to adjustment due to a DSM Shortfall, if any, as set forth
below), then DSM shall have the right to deliver written notice thereof to Martek requesting a
meeting pursuant to this Section 6.8(a), in which event the parties shall promptly meet to discuss
in good faith changes that might be implemented so as to increase the profitability of the Alliance
and otherwise to increase the economic benefits to the parties from the Alliance. The changes
referred to in the two immediately preceding sentences may include, without limitation, changes to
the location of production facilities, changes to the economic relationship between the parties,
marketing incentives or campaigns, the manufacturing of other products * and other cost-saving
and/or demand-inspiring measures, as applicable. In the event of a DSM Shortfall, the threshold
amount of $* set forth above shall be reduced, until such time as the Martek Allocation reverts
back to 40,000 Units of ARA, by an amount equal to the amount of the DSM Shortfall multiplied by
the amount of the applicable DSM Mark Up per Unit of ARA.



(b) If the parties meet as provided in Section 6.8(a) above, and at any time on or before the
* of such meeting Martek shall have received from its customers during the immediately preceding *
period total orders of ARA Products of less than * Units of ARA, then Martek shall have the right,
exercisable by delivery of written notice to DSM, to accelerate the expiration date of this
Restated Agreement to a date no earlier than the last day of the first full calendar quarter
following the date on which such written notice was delivered. If the parties meet as provided in
Section 6.8(a) above, and at any time on or before the * of such meeting DSM shall have received
from Martek during the immediately preceding * period an aggregate amount of DSM Mark-Up of less
than $* (which amount shall be subject to adjustment due to a DSM Shortfall, if any, as set forth
below), then DMS shall have the right, exercisable by delivery of written notice to Martek, to
accelerate the expiration date of this Restated Agreement to a date no earlier than the last day of
the first full calendar quarter following the date on which such written notice was delivered. In
the event of any such acceleration of the expiration date of this
Restated Agreement, all references in this Restated Agreement to December 31, 2023 shall be
deemed to be the accelerated date on which this Restated Agreement shall expire and all references
in this Restated Agreement to January 1, 2024 shall be deemed to be the day after such accelerated
date. For the avoidance of doubt, and unless otherwise provided herein, the consequences of any
such accelerated expiration shall be the same as if the Restated Agreement had expired on December,
31, 2023, including without limitation those set forth in Section 9.3 hereof. In the event of a DSM
Shortfall, the threshold amount of $* set forth above shall be reduced, until such time as the
Martek Allocation reverts back to 40,000 Units of ARA, by an amount equal to the amount of the DSM
Shortfall multiplied by the amount of the applicable DSM Mark Up per Unit of ARA.





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




 


53









 





6.9. Review of Alliance Structure and Economics; Renegotiation of Pricing Arrangements.



Commencing no later than June 1, 2013, the parties shall review in good faith, among other
issues, the market position of ARA, competition, current and projected future ARA production costs,
cost reduction strategies, and the structure and relative economic costs and benefits to the
parties of the Alliance hereunder. The parties will review the pricing provisions of this Restated
Agreement, including the DSM Mark Up per Unit of ARA and the allocation of payments between Euros
and US Dollars, and will use good faith efforts to renegotiate such pricing and currency allocation
prior to October 31, 2014, effective as of January 1, 2015. Either party shall be entitled to have
the relevant financial information of the other party confirmed by an independent public accounting
firm reasonably acceptable to the other party. The parties agree to negotiate in good faith ways
to address any issues identified during this review to insure the future success and profitability
of the Alliance for the remainder of the term of this Restated Agreement on terms similar to those
currently in place. If renegotiation is unsuccessful as of October 31, 2014, pricing will be
changed so that the parties share equally in the Gross Profit per each Unit of ARA sold (from the
manufacture and delivery of ARA Products to its sale to a direct customer of Martek or DSM)
effective January 1, 2015 and the allocation of payments between Euros and US Dollars shall remain
as set forth in Section 6.1.



6.10. Transparency. 



The parties agree during the term of this Restated Agreement to provide each other with data
and information including copies of invoices and other relevant paperwork, to the extent reasonably
necessary to verify the parties’ respective performances under this Restated Agreement and to
substantiate the payments owed to a party by the other hereunder, including the calculation of DSM
Costs, Martek Costs, Additional Capital Assets and Approved Capital Assets. The parties shall also
share data and information relating to each party’s performance in the manufacture of ARA Products
including actual Usages, information relating to productivity (including fermentation productivity)
and efficiency of production, yields, and other such data. The types of information to be
exchanged are intended to include the types that would be exchanged as part of an audit pursuant to
Section 6.11(a), and it is understood that the types of information may vary from time to time to
reflect changes in the information requirements of the
parties. All such data and information shall be shared by the parties on a confidential
basis, annually, or quarterly if it relates to or is required for the verification of amounts owed
quarterly, reviews at quarterly meetings or a review of a party’s manufacturing performance.
Notwithstanding the foregoing, (i) a party (the “Disclosing Party”) shall have the right not to
provide to the other party (the “Requesting Party”) any data or information requested by the
Requesting Party if the Disclosing Party determines in good faith that compliance with the request
could give rise to a colorable claim that one or both of the parties have violated any applicable
law and (ii) each party shall have the right to require that any data or information requested
pursuant to this Section 6.10 (including any data or information not disclosed by a Disclosing
Party to the Requesting Party on the basis of subsection (i) hereof) be disclosed to an independent
auditor (and not to the Requesting Party) for the sole purpose of verifying the parties’
performance of and compliance with the terms of this Restated Agreement, including verifying a
party’s calculation of payments owed to it by the other; such auditor shall be selected by the
Requesting Party, subject to the approval of the Disclosing Party, such approval not to be
unreasonably withheld, and shall be prohibited from disclosing such data and information to the
Requesting Party (including such party’s employees) and the expenses of such independent auditor
shall be borne equally by the Disclosing Party and the Requesting Party.





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




 


54









 





6.11. Books and Records. 



(a) Each party shall maintain complete and accurate records of its yields, production costs,
income, sales of ARA products, capital costs, and other information reasonably necessary to verify
that such party is complying with its obligations under this Restated Agreement and calculating
relevant amounts in accordance with the terms of this Restated Agreement. All accounting relevant
to this Restated Agreement shall be performed in accordance with generally accepted accounting
principles consistent with those methods used by the relevant party for its other businesses. The
parties each shall have the right, upon reasonable prior written notice, through an independent
public accounting firm reasonably acceptable to the other party, to examine the other party’s
books, records and accounts relating to the performance of its obligations under, or the prices to
be charged pursuant to, this Restated Agreement. Such audit right shall be exercisable by a party,
in regard to the books records and accounts related to a calendar year, by delivery of written
notice to the other party (the “Audited Party”) within six (6) months after the end of such
calendar year of its desire to have such an audit conducted; provided, however, that an Audited
Party shall have the right, exercisable by delivery of written notice to the other party, to
postpone the commencement of the audit for a maximum of 90 days to allow the Audited Party to
complete its own internal accounting review with respect to such calendar year.



(b) A party’s books, records and accounts being examined pursuant to Section 6.11(a) above
shall be deemed to be a complete and final statement of costs, fees and prices for the year subject
to audit upon delivery of such books, records and accounts to the appointed independent public
accounting firm and may not be amended, revised or supplemented at any time following such date for
purposes of such audit except for changes, either favorable or unfavorable to either party, as a
result of findings or inquiries by the appointed independent
public accounting firm. All information regarding a party’s business received in any such
examination shall be held in confidence. The expenses of such audits shall be borne by the party
requesting such audit. Any overpayment or underpayment by one party of the amounts that the other
party was entitled to receive under this Restated Agreement shall be promptly refunded to or paid
by such other party, as the case may be, with annualized interest for such period at the average
Euribor rate plus 3% calculated from the date(s) of the overpayment or underpayment until the date
of refund or payment in accordance herewith. If any such audit establishes an aggregate overbilling
or underpayment by one party during the period covered by the audit by 5% or more of the amounts to
which the other party was entitled, then such overbilled or underpaid party shall be reimbursed by
the other party for the expenses of the audit. The parties each shall be prohibited from accessing
the other party’s books, records and accounts and any privileged documents examined by the
accountant, and may receive only an accounting report from the auditor.





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




 


55









 





6.12. Break Up Fee.



(a) In the event that, after the Restatement Effective Date, DSM desires to expand its ARA
production capacity, it shall have the right to provide Martek with a detailed proposal of such
expansion plans for Martek’s review. If Martek provides its written approval to DSM for such
proposed expansion plans as provided in Section 3.3 (“Approved Expansion Plans”), then fifty
percent (50%) of the actual capital costs of the Approved Expansion Plans (provided they are not
materially changed from those approved by Martek) shall be added to a book entry account maintained
by DSM for such purposes (the “Break Up Fee Account”). DSM shall maintain a separate subaccount of
the Break Up Fee Account for each Approved Expansion Plan. As of the Restatement Effective Date,
the parties agree that the balance of the Break Up Fee Account is zero.



(b) The balance in a subaccount of the Break Up Fee Account for an expansion shall be reduced
(but not below zero) by * ($*) for each one US Dollar ($*) of DSM Mark Up, or equivalent thereof,
received by DSM from Martek in respect of ARA Products produced from the expansion capacity that
generated such subaccount.



(c) Upon any expiration of this Restated Agreement or a termination of this Restated Agreement
by DSM for cause pursuant to Section 9.2 or 5.5 when Martek is the Notifying Party, Martek shall
pay to DSM the balance in each subaccount of the Break Up Fee Account within forty-five (45) days
of any such expiration or termination.



6.13. Considerations for Payments and Volume Commitments. 



(a) In exchange for the parties’ agreement to eliminate the Currency Savings Account and all
balances accrued therein as of the Restatement Effective Date, and in consideration of the parties’
agreement to no longer apply the Currency Savings Account methodology from and after the
Restatement Effective Date, Martek has agreed to the ARA
purchase commitments in each of calendar years 2009, 2010 and 2011 as set forth in Sections
6.1(a), 6.1(b) and 6.1(c).





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




 


56









 





(b) In consideration of DSM’s agreement to guarantee Usages, * ARA production * as provided in
Section 3.2(a) of this Restated Agreement and to lock-in DSM Fixed Costs per Unit of ARA and the
DSM Mark Up per Unit of ARA, each as set forth herein, Martek shall make a one-time payment to DSM
(payable in two installments) equal to €7.9 million as follows:



(c) Martek shall pay to DSM 50% of this amount, or €3.95 million, on or before the fifteenth
day following the Restatement Effective Date, by wire transfer in immediately available funds; and



(d) Martek shall pay to DSM the remaining €3.95 million on or before the thirtieth day
following the date on which DSM delivers to Martek a written request therefor, which payment date
the parties currently anticipate will be on or before August 31, 2009, and which in no event shall
be due before July 1, 2009 or after October 31, 2009.



(e) The parties agree that the above payments represent the final amount of any and all costs
due by Martek with respect to any *, including any payment obligations set forth in Article 8 of
the Heads of Agreement.



7. PRODUCT DEVELOPMENTS AND PATENTS




7.1. R&D Collaboration.



(a) The R&D Collaboration Goals. Each party acknowledges and agrees that it shall endeavor
in good faith, independent of or jointly with the other party, to use commercially reasonable
efforts to conduct research projects that have a reasonable likelihood of developing (i) new or
improved production processes for ARA Products, (ii) new or improved ARA Product formulations,
(iii) new or improved ARA Product applications which may include clinical trials, and (iv) other
ARA improvements or new developments (the “R&D Collaboration Goals”).



(b) The R&D Committee. The Committee has formed a committee which consists of four (4) members
with appropriate scientific and marketing knowledge and expertise in the area of ARA Product
production and applications and related technological areas with two (2) members to be appointed by
Martek and two (2) members to be appointed by DSM (the “R&D Committee”). Each party shall identify
one of the members that it appoints to the R&D Committee as its “R&D Leader.” If either party
decides at any time to replace its designated R&D Leader or its other R&D Committee members, it may
do so by written notice to the other party’s R&D Leader. The R&D Committee shall meet promptly
upon its appointment by the Committee, and thereafter at least quarterly, for the purpose of
defining potential research projects in furtherance of the R&D Collaboration Goals. The R&D Committee shall meet at such
place as it may reasonably select, in person or by conference call as the R&D Committee decides.





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




 


57









 






(c) Research Project Proposals.




(i) In the fourth quarter of each calendar year of this Restated Agreement, the
parties shall exchange their respective annual R&D Plans for the following year
through the R&D Committee, for the purpose of sharing information. Each of Martek
and DSM may perform and finance their own R&D (each, a “Solely Funded ARA Research
Project”) and shall inform the other party of the topic of each Solely Funded ARA
Research Project upon the commencement of such project and promptly provide the
other party upon completion thereof with a summary of the results of such project in
anticipation of the licenses of Intellectual Property relating thereto pursuant to
Section 7.4 (a), (b), (d) and (f).




(ii) In addition, each party may recommend to the R&D Committee in its R&D Plan
research projects for possible joint funding, at each party’s sole discretion, and
any such project that is approved as provided below for joint funding (a “Jointly
Funded ARA Research Project”) shall be described in a detailed project plan
(including project management details). Upon unanimous R&D Committee recommendation
for joint funding, each proposed joint research project will be submitted to the
Committee for final written approval. Both parties shall provide reports on the
progress of any Jointly Funded ARA Research Project and the results thereof to the
R&D Committee on a quarterly basis.



(d) R&D Costs. Each party shall be responsible for its own R&D costs. The parties acknowledge
that DSM shall not include any costs of DSM R&D in the DSM Costs billed to Martek unless expressly
agreed by Martek in advance in writing and Martek shall not include any costs of Martek R&D in the
Martek Costs billed to DSM unless expressly agreed by DSM in advance in writing. The costs
involved in an approved Jointly Funded ARA Research Project shall be shared equally, unless
otherwise agreed to by the Committee in writing and any corresponding payment reconciliations shall
be made on a yearly basis.



(e) Outsourced R&D Activities. Any work to be performed at Martek as part of DSM’s R&D
activities will be based only on outsourcing by DSM and performed only at DSM’s initiative on terms
mutually agreed in writing. Any work to be performed at DSM as part of Martek’s R&D activities
will be based only on outsourcing by Martek and performed only at Martek’s initiative on terms
mutually agreed in writing.



(f) R&D Intellectual Property Rights from R&D Plans. The parties’ respective Intellectual
Property rights in any inventions, improvements, Know-how, or technologies invented or created in the course of performance of any Jointly Funded ARA
Research Project are set forth in Section 7.2(b) hereto.





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




 


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(g) R&D Intellectual Property Rights from Solely Funded ARA Research Projects. The
Intellectual Property rights in any inventions, improvements, Know-how or technologies invented or
created in the course of performance of any Solely Funded ARA Research Project shall be owned, as
between the parties hereto, by the party that funded such project, and patent rights filed and/or
obtained thereon and owned by Martek shall be deemed Martek R&D Patents and patent rights filed
and/or obtained thereon and owned by DSM shall be deemed DSM R&D Patents.



7.2. Intellectual Property Rights. 



(a) Validity of Certain Patents of the Parties. From the Effective Date of the Alliance to
the stated expiration date of this Restated Agreement (regardless of any earlier termination),




(i) DSM acknowledges and agrees that (A) Martek’s Patents (including those of
its Affiliates) listed on Schedule 2.64 (Excluded Subject Matter) and Schedule
2.108 (Martek Patents), (B) any patents that issue from the applications listed on
Schedule 2.64 or Schedule 2.108 and (C) all related family members of the patents
listed on Schedule 2.64 and Schedule 2.108 issued under the laws of any country,
shall be presumed valid and enforceable and, to the maximum extent permitted under
applicable law, DSM agrees not to, and shall cause each of its Affiliates not to,
challenge the validity or enforceability of such patents, through any legal action
or proceeding of any nature whatsoever, including, but not limited to, any action in
federal district court seeking to declare the invalidity of such patents, and




(ii) Martek acknowledges and agrees that (A) DSM’s Patents (including those of
its Affiliates) listed on Schedule 2.54 (B) any patents which issue from the
applications listed on Schedule 2.54, and (C) all related family members of the
patents listed on Schedule 2.54, issued under the laws of any country, shall be
presumed valid and enforceable and, to the maximum extent permitted under applicable
law, Martek agrees not to, and shall cause each of its Affiliates not to, challenge
the validity or enforceability of such patents, through any legal action or
proceeding of any nature whatsoever, including, but not limited to, any action in
federal district court seeking to declare the invalidity of such patents.



It is understood and agreed that Schedule 2.64 (Excluded Subject Matter), Schedule 2.54 (DSM
Patents) and Schedule 2.108 (Martek Patents) may be amended and updated from time to time after the
Restatement Effective Date with the written consent of the parties to include patent rights filed,
acquired or licensed by each of the parties or to delete patents that the parties agree
are no longer valid. Upon inclusion on any such Schedule, such patent rights shall be removed from
any other definition of a set of patent rights for purposes of this Restated Agreement. It is
further understood and agreed that a Notifying Party that challenges the scope of a Responding
Party’s patents, but not their validity or enforceability, pursuant to Section 5.5 will not be
deemed to be in violation of this Section.





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




 


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(b) R&D Intellectual Property Rights. Subject to the licenses granted in Sections 7.4(a),
7.4(b), 7.4(d) and 7.4(f) hereto, Intellectual Property rights in any inventions, improvements, or
technologies conceived or reduced to practice during the term of this Restated Agreement pursuant
to a Jointly Funded ARA Research Project (“New R&D Inventions”) shall be as follows:




(i) Any patent and/or patent application filed by a Patent Proponent Party (as
defined below) in accordance with Section 7.3(a)(ii) shall be owned solely by the
Patent Proponent Party (“Martek R&D Patents” or “DSM R&D Patents,” as the case may
be).




(ii) Subject to clause (i) above, the parties shall jointly own any patents or
patent applications that may be filed or issue on any New R&D Inventions (each party
having an equal and undivided one half ownership interest without a right of
accounting, except as expressly provided herein) (“Joint Patents”) and all other
Intellectual Property rights in New R&D Inventions regardless of which parties’
employees invented or created such New R&D Invention (“Joint Know-how”). Each party
shall, and shall cause its employees, consultants, and contractors to, execute any
and all documents required in order that each party shall own and, if applicable,
shall be registered as the owner of the New R&D Invention in accordance with Section
7.2(b). All rights in and to the New R&D Inventions shall be subject to this
Restated Agreement.




(iii) For the avoidance of doubt, during the term of this Restated Agreement
(A) each of Martek and its Affiliates shall have (1) the exclusive right to use all
Joint Proprietary Technology within the Martek ARA Fields of Use, (2) the
non-exclusive right to use all Joint Proprietary Technology outside of the DSM ARA
Fields of Use subject to Section 7.2(b)(iv)(A), and (3) no right to use, make or
have made, offer to sell, sell, import, or otherwise exploit, or permit others to
use, make or have made, offer to sell, sell, or otherwise exploit the Joint
Proprietary Technology in DSM’s ARA Fields of Use and (B) each of DSM and its
Affiliates shall have (1) the exclusive right to use all Joint Proprietary
Technology within the DSM ARA Fields of Use, (2) the non-exclusive right to use all
Joint Proprietary Technology outside of the Martek ARA Fields of Use subject to
Section 7.2(b)(iv)(A), and (3) no right to use, make or have made, offer to sell,
sell, import, or otherwise exploit, or permit others to use, make or have made,
offer to sell, sell, or otherwise exploit the Joint Proprietary Technology in
Martek’s ARA Field of Use. Notwithstanding the foregoing, except as expressly
set forth in Section 9.3, nothing contained in this Restated Agreement shall extend
DSM’s rights to the Excluded Subject Matter outside the DSM ARA Fields of Use.
Moreover, unless expressly agreed upon by the parties, subject to Section 10.4
hereto, nothing herein shall be deemed to grant either party any rights in any
trademarks or previously existing copyrighted work of the other party,
notwithstanding the use of such materials in any Jointly Funded ARA Research
Project. Notwithstanding the foregoing neither party shall sublicense Production
Technology without the other party’s prior written consent except pursuant to
Sections 3.3(a), 3.4(c), and 5.5(d).





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




 


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(iv) If either party is in serious negotiations with a non-Affiliate third
party regarding the sublicensing of its rights to the Joint Proprietary Technology
in an area where it has non-exclusive rights to such Joint Proprietary Technology in
accordance with Section 7.2(b)(iii)(A)(2) or 7.2(b)(iii)(B)(2) (“Sublicensable
Technology”), such party shall provide written notice to the other party of such
negotiations. If such party decides to sublicense its rights pursuant to such
negotiations (such party to hereinafter be referred to as the “Sublicensing
Requester”), then the Sublicensing Requester must provide the other party prior
written notice summarizing the proposed sublicensing arrangement for the
Sublicensable Technology (“Sublicensing Notice”).




(A) The non-requesting party shall have the right to prevent such
sublicense by (1) within thirty (30) days of receiving the Sublicensing
Notice, notifying the Sublicensing Requester of its disapproval of the
sublicense and its desire to have the exclusive right to sublicense the
Joint Proprietary Technology outside the DSM ARA Fields of Use and the
Martek ARA Fields of Use and (2) committing within thirty (30) days of the
determination of the fair-market value (“FMV”) of such exclusive right to
pay to the Sublicensing Requester the FMV, which is to be determined
pursuant to agreement of the parties or pursuant to Section 8.6 if agreement
is not reached within ten (10) days.




(B) If the non-requesting party does not notify the Sublicensing
Requester of its disapproval within thirty (30) days from receiving the
Sublicensing Notice or does not pay the FMV of the sublicense to the
Sublicensing Requester within thirty (30) days from determination of the FMV
amount, the Sublicensing Requester shall have the right to proceed with such
sublicense on substantially the same terms and conditions as set forth in
the Sublicensing Notice and the Sublicensing Requester shall pay the other
party, as applicable, (1) * of the Net Revenues the Sublicensing Requester
receives from the sublicensee which are not the result of the Sublicensing
Requester selling a product to the sublicensee, and (2) * of the Net
Sales the Sublicensing Requester receives from the sublicensee which are the
result of the Sublicensing Requester selling a product to the sublicensee, provided, however, that such
total amount shall not exceed * of the Sublicensing Requester’s Gross Profit
on such sales.





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




 


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(C) If the non-requesting party does not exercise its right to obtain
exclusive rights to the Sublicensable Technology as set forth in Section
7.2(b)(iv)(A) and the Sublicensing Requester proceeds with the sublicensing
arrangement for the Sublicensable Technology as set forth in the
Sublicensing Notice, the Sublicensing Requester does not need to follow the
procedures set forth in Section 7.2(b)(iv) again if it desires to enter into
another sublicensing arrangement for the same Sublicensable Technology;
however, if the Sublicensing Requester does not proceed with the
sublicensing arrangement as set forth in the Sublicensing Notice and then
subsequently desires to sublicense the same Sublicensable Technology to
another potential sublicensee, the Sublicensing Requester must follow the
procedures set forth in Section 7.2(b)(iv) again, including issuing a new
Sublicensing Notice.



7.3. Prosecution, Maintenance and Enforcement. 




(a) Prosecution and Maintenance of New R&D Patents.




(i) To the extent that a party desires to file an application for a patent
claiming or describing a New R&D Invention, the party seeking to file the
application shall inform the other party of its desire to file for patent protection
and submit a request to the R&D Committee for permission to file the application for
such invention. If a majority of the R&D Committee members are unable to agree on
whether to pursue patent protection at all or in any particular jurisdiction, the
matter shall be referred to the Committee, which shall make a final determination
whether to file the application. In the event that the R&D Committee or the
Committee, as the case may be, decides to pursue patent protection for a particular
invention in one or more jurisdictions, the R&D Committee or the Committee, as the
case may be, shall, designate the party with the most knowledge of the New R&D
Invention (as determined by the unanimous agreement of the R&D Committee or the
Committee, as the case may be) as the lead party (“Lead Party”) who will take
primary responsibility for the preparation, filing, prosecution, and maintenance of
any patents related to such New R&D Invention (“Patent Protection Process”). The
non-lead party shall provide all reasonable cooperation and assistance in connection
with the Patent Protection Process. The Lead Party will ensure that the non-lead
party is kept informed of the status of and has an opportunity to review and comment
on all aspects of the Patent Protection Process, including, but not limited to,
copying the non-lead party on all patent related communications such as patent





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




 


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applications, office actions, and responses and allowing the non-lead party not less than ten (10)
business days to review and comment upon the specifications, claims, and
responses to office actions prior to their submission to the appropriate patent
office. The Lead Party shall use all reasonable efforts to incorporate and address
the non-lead party’s comments. Notwithstanding the foregoing, final decisions
regarding the specification claims and responses to office actions shall be made by
the Lead Party. The applications shall be prepared, filed and prosecuted, and
maintenance fees paid through an attorney or agent chosen by the Lead Party. Except
as set forth in Section 7.3(a)(ii) below, each party shall pay fifty percent (50%)
of all expenses incurred hereafter pursuant to the Patent Protection Process
(“Patent Expenses”) according to the following procedure. On a quarterly basis the
Lead Party will provide the non-lead party with an invoice for Patent Expenses
reporting the amount of Patent Expenses incurred, the purpose of incurring such
Patent Expenses, and the amount of Patent Expenses owed by the non-lead party. The
non-lead party will reimburse on a quarterly basis the Lead Party within thirty (30)
days of receiving an invoice for Patent Expenses from the Lead Party. If the Lead
Party anticipates extraordinary expenses arising from the Patent Protection Process,
then the Lead Party will provide the non-lead party with full details and together
the parties will determine a mutually acceptable course of action prior to incurring
such expenditures. Both parties recognize that one party may incur certain legal
expenses regarding the New R&D Invention and/or patent rights relating to matters
pertaining solely to such party, and, in such circumstances, such expenses will not
be considered Patent Expenses, unless otherwise decided by the Committee. The Lead
Party will maintain adequate records showing all Patent Expenses incurred, which
will be made available to the non-lead party upon reasonable notice.




(ii) Notwithstanding Section 8.5 or Section 8.6, in the event that the
Committee is deadlocked on whether to file a patent application for a particular New
R&D Invention in one or more jurisdictions (i.e., where half of the Committee
members are in favor of pursuing patent protection and half the Committee members
are opposed), the party whose Committee members voted in favor of pursuing patent
protection (the “Patent Proponent Party”) shall have the right to independently file
a patent application covering such invention at its own costs and expense, and the
other party shall provide all reasonable cooperation and assistance in connection
therewith, including without limitation, ensuring that any of its employees who may
be inventors under such patent application shall be joined as inventors thereto, and
shall cause such employees to assign in writing their entire interest in such
invention to the Patent Proponent Party. In such event, the patent shall be treated
as an Improvement made by the Patent Proponent Party and shall be subject to the
license provisions of Section 7.4(d). Notwithstanding the foregoing, any decisions
by the Patent Proponent Party regarding whether to pursue patent protection or the
scope of the applicable patent claims being sought shall take into consideration the
legal and commercial interests of the other party, including without limitation the
other party’s interest in avoiding disclosure of
confidential information or technology in connection with its activities in
their respective ARA Fields of Use.





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




 


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(iii) If, in one or more countries, (A) the Lead Party shall at any time decide
not to prepare, file, prosecute or maintain any such patent application for any such
New R&D Invention or (B) either party does not pay its share of the expenses related
to the foregoing matters (in either situation, the “Declining Party”), the other
party may, at its own expense, prepare, file, prosecute or maintain any such patent
application in such country or countries. In such event, the Declining Party hereby
assigns its interest in and to the New R&D Invention (but only with respect to such
country or countries as applicable) underlying such patent application, and such
application in such country or countries to the other party and such party hereby
grants the Declining Party a license under such patents in accordance with the
parties’ respective rights in Sections 7.4(a), 7.4(b), 7.4(d) and 7.4(f).



(b) Independent Enforcement. Notwithstanding anything to the contrary herein, each party
shall have the right at any time to enforce independently, at its own cost and expense and in the
manner as it chooses in its sole discretion, any rights to Intellectual Property * (the party
pursuing or seeking to pursue such enforcement action is hereinafter referred to as the “Enforcing
Party”). The party that is not the Enforcing Party shall provide all reasonable cooperation in
connection with any actions permitted to be taken by the Enforcing Party pursuant to this Section
7.3(b) in connection with pursuing a suspected infringer in the Enforcing Party’s ARA Fields of
Use, including without limitation allowing itself to be joined as a party to any lawsuit brought by
the Enforcing Party against such infringer, provided that the Enforcing Party compensates the other
party for any costs reasonably associated therewith. Any such action shall be subject to the other
terms and conditions set forth herein.



(c) Enforcement. Each party agrees to promptly notify the other party * of any suspected
infringement of any patent or other rights to Intellectual Property (other than trademark rights)
of either party that relates to ARA, including without limitation any patent covering any New R&D
Inventions. Promptly upon notification of a suspected infringement, * evaluate whether to take any
action against such suspected third party infringer. In evaluating whether to pursue a particular
suspected third party infringer, * act in good faith and shall consider *, including without
limitation, the cost of pursuing the claim, the likelihood that either party will become the
subject of a counterclaim, the relative likelihood of success of the claims to be asserted and the
possible effects on the patent rights at issue. In the event that * decides that a particular
action should be taken against the suspected third party infringer, the parties shall cooperate to
promptly undertake such action. Such action may include * or other action aimed at causing
cessation of the infringement by the third party. Unless * the party in whose ARA Field of Use the
infringing activity is occurring shall be responsible for all costs associated with any such
action. In the event that the suspected infringement is occurring in both party’s ARA Fields of
Use, the parties shall share the costs of such action in proportion to the ARA related profits
derived by each party at or around the time of the suspected infringement. In the
event that one of the parties wishes to settle the dispute with the suspected infringer that
would not involve the complete and unqualified cessation of the suspected infringing activity, *,
neither party shall, without the prior consent of the other party, grant any license to, or enter
into a prospective settlement agreement with, the suspected infringing party.





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




 


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(d) Proceeds of Infringement Actions. The Enforcing Party shall be entitled to all proceeds
from any independent action taken by it in accordance with Section 7.3(b) hereto. In the event an
award of monetary damages is granted in an action with respect to * in connection with actions
taken in accordance with * hereto, the parties shall apply the award as follows: Initially the
award shall be used to reimburse the parties for their actual out-of-pocket expenses (including
attorneys fees) that have been incurred by or in connection with such action, provided that if the
award is insufficient to reimburse both parties for all of their out of pocket expenses, the award
shall be distributed in proportion to each party’s relative expenses in connection with the
action. Once the parties have been reimbursed for their respective out of pocket expenses, the
remaining portions of the award shall be divided between the parties, within thirty (30) days after
collection of the award, in proportion to the lost profits of each party resulting from the
infringement in accordance with whichever of the following formulas is appropriate under the
circumstances:




(i) Proceeds from Infringement Actions *.




(1) *




(ii) Proceeds from Infringement Actions *.




(1) *



It is the intent of the parties that the foregoing formulas will estimate the lost profits
suffered by each party by the infringing activity.



(e) Defensive Patent Actions. Notwithstanding anything to the contrary herein, in the event
that either party to this Restated Agreement becomes a defendant in any lawsuit in any
jurisdiction, the defendant party shall have the right, in its entire and sole discretion, to bring
a counter-claim or counter-suit based on the infringement of any Joint Patent against any party to
the extent that such counter-claim or counter-suit is reasonably likely to cause or bring about a
settlement of the dispute to which the party to this Restated Agreement has become a defendant.
The defendant party shall notify the other party in writing of its intention to exercise its right
under the immediately preceding sentence and such other party shall provide all necessary
cooperation and assistance, at the requesting party’s cost and expense, associated with the
defendant party’s counterclaim or counter-suit.



(f) Prosecution and Maintenance of Patents arising from Solely Funded ARA Research Projects.
Notwithstanding anything to the contrary set forth in this Restated Agreement, a party shall have
the sole right to file, prosecute and maintain patent rights claiming
inventions invented or created in the course of the performance of such party’s Solely Funded
ARA Research Projects.





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




 


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7.4. Intellectual Property Licenses. 



(a) License of Martek Proprietary Technology. Subject to the provisions of Section 9.3,
Martek hereby grants to DSM an exclusive (including as to Martek), worldwide, non-assignable,
sublicensable (to the extent permitted in Section 7.4(c) below) license under the Martek
Proprietary Technology, the Martek R&D Patents, the Excluded Subject Matter and Martek Improvements
to make, use, have made, import, sell and offer for sale ARA Products and ARA Products combined
with other products in the DSM ARA Fields of Use and to make ARA Products for delivery to Martek
and to perform Extraction and RBD processing, in each case only to the extent permitted herein;
provided, however, that Martek and its Affiliates shall have the right to utilize any Martek
Proprietary Technology, Martek R&D Patents, the Excluded Subject Matter and Martek Improvements in
the DSM ARA Fields of Use (i) that Martek and its Affiliates utilize in providing Martek Services
to DSM as of the Restatement Effective Date, or (ii) that DSM may from time to time after the
Restatement Effective Date authorize Martek and its Affiliates to utilize, in each case in
connection with the provision by Martek and its Affiliates of Martek Services to DSM and its
Affiliates as requested by DSM. The foregoing license shall be royalty-bearing solely as provided
in Article 6 hereof. DSM hereby guarantees that each of its Affiliates and any Third Party Toll
Manufacturer that shall become a sublicensee of DSM pursuant to Section 7.4(c) of this Restated
Agreement with respect to the Martek Proprietary Technology, Excluded Subject Matter, Martek R&D
Patents and/or Martek Improvements shall abide by the restrictions set forth in this Restated
Agreement in respect of any such sublicensed Martek Proprietary Technology, Excluded Subject
Matter, Martek R&D Patents and/or Martek Improvements.



(b) License of DSM Proprietary Technology. Subject to the provisions of Section 9.3, DSM
hereby grants to Martek an exclusive (including as to DSM), worldwide, non-assignable,
sublicensable (to the extent permitted in 7.4(c) below) license under the DSM Proprietary
Technology, the DSM R&D Patents and DSM Improvements to make, use, have made, import, sell and
offer for sale ARA Products and ARA Products combined with other products in the Martek ARA Fields
of Use and to perform Extraction and RBD services, in each case only to the extent permitted
herein; provided, however, that DSM and its Affiliates shall have the right to utilize any DSM
Proprietary Technology, DSM R&D Patents and DSM Improvements in the Martek ARA Fields of Use (i)
that DSM or its Affiliates utilize in providing services to Martek as set forth in this Restated
Agreement as of the Restatement Effective Date, or (ii) that Martek may from time to time after the
Restatement Effective Date authorize DSM or its Affiliates to utilize, in each case in connection
with the provision by DSM or its Affiliates of services to Martek and its Affiliates as requested
by Martek. The foregoing license shall be royalty-bearing solely as provided in Article 6 herein.
Martek hereby guarantees that each of its Affiliates and any Third Party Toll Manufacturer that
shall become a sublicensee of Martek pursuant to Section 7.4(c) of this Restated Agreement with
respect to the DSM Proprietary Technology, DSM R&D Patents and/or DSM Improvements shall abide by the
restrictions set forth in this Restated Agreement in respect of any such sublicensed DSM
Proprietary Technology, DSM R&D Patents and/or DSM Improvements.





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




 


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(c) Toll Manufacturers and Affiliates; Sublicenses; Other Rights of Martek’s Customers.




(i) Except as set forth in Sections 7.4(c)(iii) and (v), the licensed rights in
Sections 7.4(a) and 7.4(b) above and Sections 7.4(d) and 7.4(f) below may be
sublicensed by a party to its Affiliates but may not be sublicensed by such party to
any third party, including Third Party Toll Manufacturers, without the prior written
consent of the other party; provided, however, (i) in the event of a DSM Shortfall,
Martek shall be entitled to sublicense the licensed rights granted in Sections
7.4(b) and Section 7.4(d) to one or more Third Party Toll Manufacturers in
accordance with the requirements of Section 3.3(a) for the sole purpose of
responding, and only for so long as necessary to respond, to such DSM Shortfall and
(ii) in the event of a Martek Shortfall, DSM shall be entitled to sublicense the
licensed rights granted in Sections 7.4(a), 7.4(d) and 7.4(f) to one or more Third
Party Toll Manufacturers in accordance with the requirements of Section 3.4(c) for
the sole purpose of responding, and only for so long as necessary to respond, to
such Martek Shortfall.




(ii) For the avoidance of doubt, DSM hereby acknowledges that any Person that,
directly or indirectly, purchases or acquires ARA Product manufactured by DSM,
Martek or any Third Party Toll Manufacturer and sold by Martek or its Affiliates
during the term of this Restated Agreement, whether alone or in combination with
other products, shall not require a sublicense of the DSM Patents, the DSM R&D
Patents, and/or the DSM Improvements in order to use, offer to sell and/or sell such
ARA Product within the Martek ARA Fields of Use, whether by itself or as
incorporated with or into another product. DSM hereby covenants not to assert, or
permit or cause any other Person to assert, during the term of this Restated
Agreement any rights under any DSM Patent(s), DSM R&D Patent(s) and/or DSM
Improvements, to the extent applicable to the manufacture, use, offer to sell, sale
or importation of ARA Products and licensed to Martek under Section 7.4(b) or
Section 7.4(d), against any Person in connection with such Person’s direct or
indirect purchase of ARA Product manufactured by DSM, Martek or any Third Party Toll
Manufacturer pursuant to such DSM Patent(s), DSM R&D Patent(s), and/or DSM
Improvements and sold by Martek or its Affiliates, whether alone or in combination
with other products, provided that such Person uses, sells, offers for sale or
imports such ARA Product, whether by itself or incorporated with or into another
product, only within the Martek ARA Fields of Use. *.





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




 


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(iii) Further, during the term of this Restated Agreement, if reasonably
requested by a Person that, directly or indirectly, purchases or acquires ARA
Product manufactured by DSM, Martek, or any Third Party Toll Manufacturer and sold
by Martek or its Affiliates during the term of this Restated Agreement, whether
alone or in combination with other products, Martek may * for such Person’s use,
offer to sell and/or sale of such ARA Product provided that (A) such Person uses,
offers to sell and/or sells such ARA Product, whether by itself or incorporated with
or into another product, only within the Martek ARA Fields of Use, and provided
further that; (B) Martek represents to DSM in writing * that: (1) Martek will not
charge *, a fee * for ARA Products * and (2) Martek will not *, and (3) Martek will
not condition * accept prices higher than those that Martek or its Affiliates would
otherwise charge for products other than ARA Products, and (4) Martek has in fact
not taken any action as described in (1), (2) or (3) above with respect to any
customer *; and (C) Martek provides DSM prompt written notice of *.




(iv) Martek hereby acknowledges that any Person that, directly or indirectly,
purchases or acquires ARA Product manufactured by DSM, Martek or any Third Party
Toll Manufacturer and sold by DSM or its Affiliates during the term of this Restated
Agreement, whether alone or in combination with other products, shall not require a
sublicense of the Martek Patents, the Martek R&D Patents, and/or the Martek
Improvements in order to use, offer to sell and/or sell such ARA Product within the
DSM ARA Fields of Use, whether by itself or as incorporated with or into another
product. Martek hereby covenants not to assert, or permit or cause any other Person
to assert, during the term of this Restated Agreement any rights under any Martek
Patent(s), Martek R&D Patent(s) and/or Martek Improvements, to the extent applicable
to the manufacture, use, offer to sell, sale or importation of ARA Products and
licensed to DSM under Section 7.4(a), or Section 7.4(d), against any Person in
connection with such Person’s direct or indirect purchase of ARA Product
manufactured by DSM or any Third Party Toll Manufacturer pursuant to such Martek
Patent(s), Martek R&D Patent(s) and/or Martek Improvements and sold by DSM or its
Affiliates, whether alone or in combination with other products, provided that such
Person uses, sells, offers for sale or imports such ARA Product, whether by itself
or incorporated with or into another product, only within the DSM ARA Fields of Use.
*.




(v) Further, during the term of this Restated Agreement, if reasonably
requested by a Person that, directly or indirectly, purchases or acquires ARA
Product manufactured by DSM, Martek, or any Third Party Toll Manufacturer and sold
by DSM or its Affiliates during the term of this Restated Agreement, whether alone
or in combination with other products, DSM may * for such person’s use, offer to
sell, and/or sale of such ARA Product provided that : (A) such Person uses, offers
to sell and/or sells such ARA Product, whether by itself or incorporated into
another product, only within the DSM ARA Fields of Use,
and provided further that (B) DSM represents to Martek in writing * that: (1)
DSM will not charge *, a fee *that DSM would otherwise charge* for ARA Products *
and (2) DSM will not *, (3) DSM will not condition * accept prices higher than those
that DSM or its Affiliates would otherwise charge for products other than ARA
Products, and (4) DSM has in fact not taken any action as described in (1), (2) or
(3) above with respect to any customer *; and (C) DSM provides Martek prompt written
notice of *.





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




 


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(d) Improvements. A “DSM Improvement” shall mean (i) any improvement or enhancement to the DSM
Proprietary Technology, the Martek Proprietary Technology, the Excluded Subject Matter, the DSM R&D
Patents, the Martek R&D Patents or any New R&D Inventions or (ii) any other innovation, process or
technique that, in the case of either (i) or (ii), is created by DSM or any of its Affiliates
before or during the term of this Restated Agreement, or licensed to DSM or any of its Affiliates
by a third party licensor during the term of this Restated Agreement with the right to grant a
sublicense thereunder to Martek and/or its customers, that DSM or Martek or any of their respective
Affiliates demonstrates (through its own application to the production, processing, use or sale of
ARA Products or otherwise) in fact does improve, or reduce the costs associated with, the
production, processing, use or sale of ARA Products. DSM shall provide Martek reasonable
assistance at Martek’s expense in determining whether such improvement, enhancement, innovation,
process or technique in fact does improve, or reduce the costs associated with, the production,
processing, use or sale of ARA Products and therefore is a DSM Improvement, including allowing the
use of such improvement, enhancement, innovation, process or technique to enable Martek to make
such determination. A “Martek Improvement” shall mean (i) any improvement or enhancement to the
DSM Proprietary Technology, the Martek Proprietary Technology, the Excluded Subject Matter, the DSM
R&D Patents, the Martek R&D Patents or any New R&D Inventions or (ii) any other innovation, process
or technique that, in the case of either (i) or (ii), is created by Martek or any of its Affiliates
before or during the term of this Restated Agreement, or licensed to Martek or any of its
Affiliates by a third party licensor during the term of this Restated Agreement with the right to
grant a sublicense thereunder to DSM and/or its customers, that Martek or DSM or any of their
respective Affiliates demonstrates (through its own application to the production, processing, use
or sale of ARA Products or otherwise) in fact does improve, or reduce the costs associated with,
the production, processing, use or sale of ARA Products. Martek shall provide DSM reasonable
assistance at DSM’s expense in determining whether such improvement, enhancement, innovation,
process or technique in fact does improve, or reduce the costs associated with, the production,
processing, use or sale of ARA Products and therefore is a Martek Improvement, including allowing
the use of such improvement, enhancement, innovation, process or technique to enable DSM to make
such determination. Any disagreement between the parties as to whether an improvement,
enhancement, innovation, process or technique is in fact a “DSM Improvement” or a “Martek
Improvement” shall be a Disputed Fact and shall be resolved pursuant to the provisions of Section
8.6. “Improvements” shall mean the “DSM Improvements” and the “Martek Improvements,” collectively,
and “Improvement” shall mean any particular DSM Improvement or Martek Improvement, as required by
the context. In the event that it is determined that a party or its Affiliates has created an
Improvement, such party shall promptly disclose and transfer pursuant to Section 7.5 information and materials
regarding such Improvements to the other party. With respect to all Improvements that are not New
R&D Inventions, it is acknowledged and agreed that each party has granted to the other party,
effective as of the date that such Improvement is or was created or acquired, a license to such
Improvement as provided in Sections 7.4(a), 7.4(b) and 7.4(f).





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




 


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(e) DHA License.



(i) DSM hereby grants to Martek a royalty free, non-exclusive, non-assignable,
non-sublicensable license under the DSM Patents to make, use, sell, offer for sale and import
products that include DHA and/or other microbial oils not otherwise subject to licenses pursuant to
Section 7.4(b) (“DHA Product”) for the term of this Restated Agreement and thereafter to the extent
provided in Section 9.3; provided, however, that the license granted herein shall become royalty
bearing at fair market value in the event DSM terminates this Restated Agreement pursuant to
Section 9.2(a) or 9.2(b). Any such royalties shall be payable as set forth herein, or in the
absence of an alternate arrangement, on an annual basis within forty-five (45) following the end of
each calendar year.



(ii) For the avoidance of doubt, DSM hereby acknowledges and agrees that any Person that,
directly or indirectly, purchases or acquires DHA Product manufactured and/or sold by Martek or its
Affiliates shall not require a sublicense of the DSM Patents in order to use and/or sell such DHA
Products in any field of use, whether alone or incorporated into another product. DSM and its
Affiliates hereby covenant not to assert, or permit or cause any other Person to assert, any rights
under any DSM Patent licensed to Martek under this Section 7.4(e) against any Person (i) that,
directly or indirectly, purchases or acquires DHA Product manufactured by Martek, any of its
Affiliates, or a Third Party Toll Manufacturer and (ii) that uses, sells, offers for sale or
imports such DHA Product, alone or in combination with other products. Except as otherwise set
forth in Section 7.4(c)(ii) and 7.4(c)(iv), it is understood and agreed that DSM shall retain all
rights to assert, and to cause any other Person to assert, any rights under any DSM Patent licensed
to Martek or otherwise against any Person that purchases DHA Product manufactured by any Person
other than Martek or its Affiliates.



(f) Additional DSM License. In addition to the licenses granted to DSM in Section 7.4(a), and
subject to the provisions of this Section 7.4(f) and Section 9.3, Martek hereby grants to DSM an
exclusive (including as to Martek), worldwide, non-assignable, sublicensable (to the extent
permitted in Section 7.4(c)) license under the Martek Proprietary Technology, the Martek R&D
Patents, the Excluded Subject Matter, and Martek Improvements to make (only with respect to Biomass
or as otherwise permitted in Section 3.4(a) or (b)), use, import, sell and offer for sale ARA
Products and ARA Products combined with other products for the following ARA Applications for
Adults:




(i) *;




(ii) *; and





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




 


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(iii) such other areas agreed to in writing between the parties. DSM shall
request any such additional areas in writing and Martek shall notify DSM in
writing within 3 months from delivery of DSM’s written request whether it
agrees to grant any such additional rights for ARA Applications for Adults
to DSM. In the event Martek fails to deliver written notice to DSM within
such 3-month period denying DSM the rights requested, Martek shall be deemed
conclusively to have approved such request. In case Martek denies in writing
any such additional rights for ARA Applications for Adults to DSM, Martek
will provide reasons for such denial in writing to DSM.



For the avoidance of doubt, the exclusive license granted to Martek pursuant to Section 7.4(b)
under DSM Intellectual Property shall be deemed modified solely to the extent necessary to allow
DSM to practice the license granted to DSM in this Section 7.4(f). The foregoing ARA Applications
for Adults to which DSM is granted a license hereunder are hereinafter referred to as the “DSM
Adult ARA Applications,” each customer purchasing an ARA Product (alone or in combination with
another product) from DSM or one of its Affiliates for a DSM Adult ARA Application is hereinafter
referred to as a “DSM Adult Application Customer” and any ARA Product sold by DSM or one of its
Affiliates for use in a DSM Adult ARA Application is hereinafter referred to as a “DSM Adult ARA
Product.”



It is understood and agreed that (i) DSM shall not be required to deliver the notice specified in
Section 5.2 of this Restated Agreement to any DSM Adult Application Customer that purchases only a
DSM Adult ARA Product and (ii) no DSM Adult Application Customer shall be deemed to be an Out of
Scope Customer for purposes of Section 5.2 solely because it purchases a DSM Adult ARA Product. In
lieu of the requirements set forth in Section 5.2, DSM shall notify each DSM Adult Application
Customer prior to any sale to such a customer of a DSM Adult ARA Product that (a) the DSM Adult ARA
Products sold to such DSM Adult Application Customer are subject to Intellectual Property licenses
that prohibit such customer from selling or using such DSM Adult ARA Products for any application
other than a DSM Adult ARA Application and (b) such DSM Adult Application Customer will not be able
to purchase DSM Adult ARA Products from DSM or any of its Affiliates if any sale or use by such DSM
Adult Application Customer of such DSM Adult ARA Products is outside the DSM Adult ARA Applications
and (c) such DSM Adult Application Customer must label all products which incorporate such DSM
Adult ARA Product as being for use only within the relevant DSM Adult ARA Application unless such
DSM Adult ARA Application is a * in which case this clause (c) shall not apply to consumer products
within such *.



For each such sale, DSM shall provide a detailed report to Martek within forty-five (45) days
following the end of each calendar quarter which shall at least include the product name, the DSM
Adult Application Customer’s name, the intended application and the total Units of ARA sold. The
parties shall cooperate in good faith to identify any DSM Adult Application Customer that uses or
sells DSM Adult ARA Products purchased from DSM in an application other than a
DSM Adult ARA Application and DSM shall promptly stop sale of DSM Adult ARA Products to any DSM
Adult Application Customer who violates the restrictions specified above.





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




 


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7.5. Technology Transfers. 



(a) Technology Transfer to DSM. Within thirty (30) days after the discovery of any Martek
Improvement by Martek, Martek shall transfer information and materials relating to such Improvement
to DSM pursuant to the following procedure: (i) Martek shall transfer to DSM documents and any
biological material relating to the relevant Martek Improvement, completing such transfer within
one hundred eighty (180) days after the discovery date, (ii) Martek shall use its commercially
reasonable efforts to assist DSM to exploit the Martek Improvement as soon as reasonably
practicable, and (iii) Martek shall provide to DSM technology services, in the case of (ii) or
(iii) in accordance with the applicable Transfer Procedures, if any. DSM shall compensate Martek
for any out-of-pocket costs reasonably incurred by Martek in connection with such transfer. Martek
hereby represents and warrants to DSM that (x) the Martek Proprietary Technology, Martek
Improvements and such technology services constitute all of the Intellectual Property and
technology services of Martek and its Affiliates reasonably necessary to enable DSM to exercise its
rights under the licenses granted to it in Section 7.4(a) and (d) and (y) Martek has the right to
grant all licenses granted hereunder to DSM, subject to the disclaimer in Section 4.9(c) and
subject to the rights referred to in Section 6.1(i) of certain of Martek’s Infant Formula Product
customers to produce or have produced ARA Products.



(b) Technology Transfer to Martek. Within thirty (30) days after the discovery of any DSM
Improvement by DSM, DSM shall transfer information and materials relating to such Improvement to
Martek pursuant to the following procedure: (i) DSM shall transfer to Martek documents and any
biological material relating to the relevant DSM Improvement, completing such transfer within one
hundred eighty (180) days after the Signing Date, (ii) DSM shall use its commercially reasonable
efforts to assist Martek to exploit the DSM Improvement as soon as reasonably practicable, and
(iii) DSM shall provide to Martek technology services, in the case of (ii) or (iii) in accordance
with the applicable Transfer Procedures, if any. Martek shall compensate DSM for any
out-of-pocket costs reasonably incurred by DSM in connection with such transfer. DSM hereby
represents and warrants to Martek that (x) the DSM Proprietary Technology, DSM Improvements and
such technology services constitute all of the Intellectual Property and technology services of DSM
and its Affiliates reasonably necessary to enable Martek to exercise its rights under the licenses
granted to it in Section 7.4(b) and (d) and (y) DSM has the right to grant all licenses granted
hereunder to Martek, subject to the disclaimer in Section 4.9(c).



(c) Audit Rights. Both parties shall, during the course of this Restated Agreement, maintain
complete and accurate records, files, books, accounts, and other documents and sources of
information related to the Know-how utilized in the manufacture of ARA Products (“Know-how
Records”), including, but not limited to, records related to standard operating procedures, system
validation, and tests performed. Either party may, upon its request,
during reasonable business hours and after reasonable advance notice to the other party,
inspect the other party’s facilities for compliance with this Restated Agreement, and to inspect,
copy, and audit the Know-how Records. The parties agree to cooperate with such audits, including
providing all reasonable assistance in connection therewith, and promptly remedy any audit findings
that relate to the parties’ compliance with this Restated Agreement. The licensed rights granted
in this Section 7.5(c) and any discrepancies identified in the course of any such audit shall be
remedied as provided in Section 6.11(b) hereof.





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




 


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7.6. Protection of Other Joint Intellectual Property. 



(a) In addition to the Intellectual Property protections set forth above, the parties hereby
agree that, promptly following the execution of this Restated Agreement, appropriate
representatives from each party shall meet and otherwise work together to develop and implement an
active and proactive program (i) of reviewing Know-how and other Intellectual Property developed
since the Effective Date of the Alliance that is necessary or useful in connection with the
activities conducted by the parties hereunder, and (ii) of taking all reasonable measures and
precautions so as to assure that such Intellectual Property is sufficiently protected against third
party claims, inadvertent disclosure and other actions that could jeopardize the value of such
Intellectual Property and the ability of the parties to utilize such Intellectual Property. The
parties agree that such active and proactive program may include, without limitation, filing for
and obtaining patent protection of such Intellectual Property where appropriate and advisable.



(b) Within ninety (90) days following the Restatement Effective Date, the R&D Committee shall
agree in writing on a list of potentially patentable Intellectual Property jointly developed or
conceived by the parties after the Effective Date of the Alliance and prior to the Restatement
Effective Date. All Intellectual Property included on such list as mutually agreed shall be jointly
owned and shall be deemed New R&D Inventions for purposes of this Restated Agreement and shall be
subject to the provision of Sections 7.2(b), 7.3(a) and *.



(c) Notwithstanding any provision in this Restated Agreement to the contrary, in the event a
party wishes to file an application for a patent that discloses or requires the disclosure of
Confidential Information of the other party, the prior written approval of such other party is
required.





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






 


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8. ORGANIZATION (COMMUNICATION, COMMITTEES)




8.1. Formation of the Committee. 



(a) The parties acknowledge that they have formed a steering committee (the “Committee”) which
consists of four (4) members: two (2) appointed by Martek and two (2) appointed by DSM. The
Committee shall function on the basis set forth in this Article 8.



(b) Each party shall identify one of the team members it has appointed as its “Leader.” In
addition to its four (4) members, each party may send non-participating, nonvoting observers to
each meeting of the Committee. If either party decides at any time to replace its designated
Leader or its other Committee member, it may do so by written notice to the other party’s Leader.
The Committee shall have the authority to appoint other committees charged with responsibility for
the performance of certain functions under this Restated Agreement, including without limitation
R&D, production and logistics, intellectual property matters, and quality assurance/quality
control. The Committee shall have authority over any committee formed pursuant to this Section 8.1
and veto rights over any committee decision, provided, however, that the Committee shall not be
required to review all committee decisions. Any such committee shall be obligated to report to the
Committee at the quarterly meeting of the Committee. Any committee decision involving a financial
matter shall require the unanimous approval of the Committee.



8.2. Meetings of the Committee. 



The Committee shall meet at such times and places as it may select and it shall endeavor to
meet at least once per calendar quarter. Meetings of the Committee shall be in person, by
conference call, by proxy or a combination thereof, as the Committee decides. Each party shall
have one (1) vote in the Committee. Decisions of the Committee shall be by a unanimous vote. The
decisions and agreements of the Committee shall be formalized in minutes which shall be signed by
each party’s Leader at the next meeting for confirmation.



8.3. Status Reports of the Committee. 



The Leaders shall report to each other quarterly, or as otherwise mutually agreed upon,
regarding any anticipated problems (resolved or unresolved) and any indication of delay in fixed or
tentative schedules. The Leaders shall also report to each other as circumstances require
regarding any special issues, including production problems or unexpected developments in each
party’s ARA Fields of Use.





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




 


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8.4. Scope of the Committee Meetings. 



(a) The Committee shall be responsible for overseeing the collaboration under this Restated
Agreement, for monitoring the parties’ adherence to the terms hereof and for agreeing on or
determining any matters that are to be agreed on or determined by the Committee pursuant to this
Restated Agreement. In particular, the Committee shall, in good faith, address,
among other things, the following: (i) financial matters; (ii) production matters, including
proposed or actual changes to either party’s production processes and review of any forecast for
purposes of capacity planning and determination of the Units of ARA per year for use in connection
with new product and/or new ARA Fields of Use development in accordance with Section 5.3; (iii)
quality assurance and quality control matters, including discussion, consideration and approval of
the Specifications and any changes proposed to either of the foregoing to the extent consistent
with Section 4.3; (iv) the procedures for transferring technology between the parties (the
“Transfer Procedures”); (v) patent matters; and (vi) sales and marketing matters.



(b) It is understood and agreed that the Committee shall have the authority to determine the
Specifications acceptable for new ARA Products. The Committee shall have the authority to make
appropriate changes that are reasonable in nature, taking into account all the facts and
circumstances, to the preparation and submission of any forecasts and the procedures for shipment
and order fulfillment set forth herein with respect to any new ARA Products that are subject to the
terms of this Restated Agreement.



8.5. Deadlock Within a Committee. 



In the event of a deadlock with respect to any factual or scientific matter (a “Disputed
Fact”) within any committee formed by the Committee, including the R&D Committee, or any Disputed
Issue the committee shall take such Disputed Fact or Disputed Issue to the Committee for
resolution.



8.6. Deadlock Within the Committee Over Factual Matters. 



(a) In the event of a deadlock within the Committee with respect to any Disputed Fact, either
Leader may deliver a written request to the other Leader that the Disputed Fact be resolved by one
or more third party experts. The Leaders shall use their good faith commercially reasonable
efforts to agree upon a single third party expert to resolve the Disputed Fact within fifteen (15)
days of such written request. If a single third party expert is agreed upon within such period,
such expert shall have a period of no more than thirty (30) days following his or her appointment
during which to reach a conclusion with respect to the Disputed Fact. The conclusion of the third
party expert with respect to the Disputed Fact shall be in writing and shall be final and binding
on the Committee and the parties.



(b) If the Leaders have not reached agreement on a single third party expert within such
fifteen (15) day period, then each Leader shall have five (5) days following the expiration of such
fifteen (15) day period within which to appoint one third party expert unaffiliated with either of
the parties or any of their respective Affiliates, and the two third party experts so appointed
shall, in turn, appoint a third, third party expert unaffiliated with either of the parties or any
of their respective Affiliates within twenty (20) days of the later of them to be appointed. The
conclusion of a majority of the third party experts with respect to the Disputed Fact shall be in
writing and shall be final and binding on the Committee and the parties.





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




 


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(c) It shall be a condition of the appointment of each third party expert appointed in
accordance with the provisions of this Section 8.6 that he or she agree (i) to abide by the terms,
including the time periods, in this Section 8.6 and (ii) to enter into a nondisclosure agreement
acceptable to the parties pursuant to which he or she agrees to treat all information that he or
she receives, reviews or otherwise is made aware of in connection with a proceeding under this
Section 8.6 in the strictest of confidence.



(d) The parties shall share equally all costs associated with the appointment of any third
party expert pursuant to this Section 8.6.



8.7. Deadlock Within the Committee Over Non-Factual Matters. 



In the event of a deadlock within the Committee with respect to any matter other than a
factual or scientific matter (a “Disputed Issue”), either Leader may deliver a written request to
the other Leader that the Leaders attempt to resolve the Disputed Issue with the assistance of a
neutral mediator. The Leaders shall use their good faith commercially reasonable efforts to agree
upon a mediator within fifteen (15) days of such written request. Such mediator shall, within ten
(10) days of the appointment, recommend in writing a procedure for resolving the Disputed Issue.
The members of the Committee shall use their good faith efforts to resolve the Disputed Issue with
the assistance of the mediator. Notwithstanding the foregoing, any member of the Committee shall
be free to reject the recommendation, if any, of the mediator. Either party shall be entitled to
have any Disputed Issue resolved by arbitration pursuant to Section 10.5.



8.8. External Communication. 



Neither party shall release any communication to the general public (including any press
release or other publication) without the consent of the other party (such consent not to be
unreasonably withheld) where it would be reasonably apparent to a third party recipient of such
communication that the communication makes reference to such other party, whether by name or
otherwise, or to any material term of this Restated Agreement. The party reviewing the
communication shall have ten (10) days from the receipt of the proposed communication to review and
approve such communication, or any shorter period required by disclosure obligations under
applicable law or the listing standards of any stock exchange or listing service on which the
communicating party’s securities are quoted. The reviewing party shall be told of any such shorter
period in writing at the time such communication is submitted for review, and the party requesting
approval for such release shall submit the proposed communication to the reviewing party promptly
upon its intention to release such communication. If the reviewing party does not notify the other
party within such ten (10) day period (or shorter period, if applicable) of its disapproval of the
communication, in whole or in part, the communication shall be deemed approved in its entirety.
Notwithstanding the foregoing, where time is of the essence and it would not be practical or
advisable to take the time to attempt to obtain the consent of the other party, a party making such
communication shall not be required to obtain the consent of such other party where outside legal
counsel to the party
making such communication reasonably believes and has so advised such party that such
communication is necessary in the carrying out of its disclosure obligations under applicable law
or the listing standards of any stock exchange or listing service on which the communicating
party’s securities are quoted. The final version of the communication as well as the confirmation
of such outside legal advice will be promptly provided to the other party for information.





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




 


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9. TERM; TERMINATION; DAMAGES




9.1. Term. 



The term of this Restated Agreement commenced upon the Effective Date of the Alliance, with
amendments effected by this Restated Agreement effective as of the Restatement Effective Date, and
shall remain in effect until and expire at 11:59 p.m. GMT on December 31, 2023 unless terminated
earlier in accordance with Section 5.5 or this Article 9.



9.2. Termination for Cause. 




(a) In the event that:




(i) It shall be determined, (A) whether by arbitration pursuant to Section 10.5
or by admission of fault in writing with reference to this Section 9.2(a), (1) that
DSM is deemed pursuant to the third sentence of Section 5.2 to have breached the
provisions of Section 5.2 where the Out Of Scope Customer is selling ARA Products
for use in, or using ARA Products for, Infant Formula Product applications or (2)
that DSM or any of its Affiliates has breached this Restated Agreement by selling
ARA Products containing in excess of two hundred (200) Units of ARA for use in
Infant Formula Product applications except as authorized by Section 5.5, or (B)
whether by arbitration pursuant to Section 10.5 or by admission of fault in writing
with reference to this Section 9.2(a), (1) that Martek is deemed pursuant to the
third sentence of Section 5.2 to have breached the provisions of Section 5.2 where
the Out Of Scope Customer is selling ARA Products for use in, or using ARA Products
for, Feed Products or (2) that Martek or any of its Affiliates has breached this
Restated Agreement by selling ARA Products containing in excess of two hundred (200)
Units of ARA for use in Feed Products except as authorized by Section 5.5 (any of
which, a “Section 9.2(a) Material Breach” and the party determined to have committed
such Section 9.2(a) Material Breach, the “Infringing Party”); and




(ii) The other party (the “Infringed Party”) delivers written notice to the
Infringing Party stating that if the Infringing Party again commits the same Section
9.2(a) Material Breach a second time that the Infringed Party might exercise its
right to terminate this Restated Agreement pursuant to this Section 9.2(a) (which
shall not be a binding commitment on the part of the Infringed Party); and




(iii) It shall be determined, whether by arbitration pursuant to Section 10.5
or by admission of fault in writing with reference to this Section 9.2(a), that the
Infringing Party has committed the same Section 9.2(a) Material Breach a second time
at any time following the date ninety (90) days after the date of delivery of the
notice described in Section 9.2(a)(ii) but prior to the date three (3) years after
the determination by arbitration or by admission of fault described in Section
9.2(a)(i);





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




 


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then the Infringed Party shall have the right to terminate this Restated Agreement effective on
delivery of written notice to the Infringing Party within one hundred twenty (120) days following
the date on which such second determination shall have been made.



If the Infringing Party continues to engage in the activity or inactivity that constitutes a
Section 9.2(a) Material Breach for more than thirty (30) days (or such longer period as the parties
may agree in writing) after the date on which it shall be determined by arbitration or admission of
fault pursuant to Section 9.2(a)(i) that such activity or inactivity constituted a Section 9.2(a)
Material Breach, such continued activity or inactivity shall constitute a second breach of this
Restated Agreement by the Infringing Party for the purposes of Section 9.2(a)(iii). For the
avoidance of doubt, the failure by the Infringing Party to cure a Section 9.2(a) Material Breach
that, by its very nature, cannot be cured shall not in and of itself constitute a second breach of
this Restated Agreement for purposes of this Section 9.2(a).





(b) In the event that:




(i) It shall be determined, whether by arbitration pursuant to Section 10.5 or
by admission of fault in writing with reference to this Section 9.2(b),




(A) that a party (the “Breaching Party”) failed to perform a material
obligation or covenant of this Restated Agreement that results in the other
party’s suffering material damages (a “Material Failure”) or otherwise
breached a material term of this Restated Agreement that results in the
other party’s suffering material damages (a “Material Breach”), other than a
Section 9.2(a) Material Breach, and




(B) that such Material Failure or Material Breach continued without
being ceased, cured, remedied or repaired for a period of thirty (30) days
after written notice thereof had been given to the Breaching Party by the
other party (the “Non-Breaching Party”);




(ii) Thereafter, the Non-Breaching Party delivers written notice to the
Breaching Party stating that if the Breaching Party commits the same Material
Failure or the same Material Breach a second time within a period of three (3) years
after the determination by arbitration or by admission of fault described in Section
9.2(b)(i), that the Non-Breaching Party might exercise its right to
terminate this Restated Agreement pursuant to this Section 9.2(b) (which shall
not be a binding commitment on the part of the Non-Breaching Party); and






	 	 	 
	*	 	The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the
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(iii) It shall be determined, whether by arbitration pursuant to Section 10.5
or by admission of fault in writing with reference to this Section 9.2(b), (A) that
the Breaching Party committed the same Material Failure or the same Material Breach
a second time following the date of delivery of the notice described in Section
9.2(a)(ii) but within the three (3) year period set forth therein and (B) that such
Material Failure or Material Breach continued without being ceased, cured, remedied
or repaired for a period of thirty (30) days after written notice thereof had been
given to the Breaching Party by the Non-Breaching party;


then the Non-Breaching Party shall have the right to terminate this Restated Agreement effective on
delivery of written notice to the Breaching Party within one hundred twenty (120) days following
the date on which such second determination shall have been made. It is understood and agreed that
if the Breaching Party continues to engage in the activity or inactivity that constitutes a
Material Failure or a Material Breach pursuant to Section 9.2(b)(i) for more than sixty (60) days
(or such longer period as the parties may agree in writing) after the date on which it shall be
determined by arbitration or admission of fault pursuant to Section 9.2(b)(i) that such activity or
inactivity constituted a Material Failure or Material Breach, such continued activity or inactivity
shall be considered for the purposes of Section 9.2(b)(iii) as committing the same Material
Failure or Material Breach a second time. For the avoidance of doubt, the failure by the Breaching
Party to cure a Material Failure or Material Breach that, by its very nature, cannot be cured shall
not in and of itself constitute a second breach of this Restated Agreement for purposes of this
Section 9.2(b).




(c) In addition, in the event that either party (i) generally does not pay its debts as such
debts become due, (ii) admits in writing its inability to pay its debts generally, (iii) makes an
assignment for the benefit of creditors, (iv) commences a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other federal, state or foreign
bankruptcy, insolvency or other similar law, (v) consents to the appointment of or taking
possession by a receiver, liquidator, trustee, custodian, or sequestrator (or other similar
official) of such party or of any substantial part of its property, or (vi) takes board or
shareholder action intended or likely to result in any event described in clauses (i) through (vi)
of this subsection, or in the event there shall be entered in respect of either party a decree or
order for relief by a court having jurisdiction in the premises in an involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal, state or
foreign bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, trustee,
custodian, or sequestrator (or other similar official) of such party or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and any such decree or
order shall continue unstayed in effect for a period of sixty (60) consecutive days, then
the other party (and the other party only) shall have the right to terminate this Restated
Agreement.





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




 


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9.3. Effect of Expiration and Termination on Intellectual Property Rights. 



(a) Expiration. Upon expiration of this Restated Agreement, notwithstanding anything
to the contrary set forth in this Restated Agreement but except as may be limited by third party
licensors or otherwise as described below in this Section 9.3(a), the parties intend that each
party shall be entitled to utilize the same set of Intellectual Property licensed to it hereunder
as of the date of expiration in order to make, use, have made, import, sell or offer for sale any
ARA Products, alone or combined with other products, in any market or field, including without
limitation the Martek ARA Fields of Use and the DSM ARA Fields of Use and, with respect to Martek,
DHA Products, without accounting to the other party. For the avoidance of doubt, however,
following the expiration of this Restated Agreement, each party shall thereafter be free to develop
new Intellectual Property, including improvements to then-existing Intellectual Property, and the
other party shall have no rights hereunder to such new Intellectual Property. Accordingly,
notwithstanding anything to the contrary set forth in this Restated Agreement, upon expiration (but
not termination) of this Restated Agreement, it is understood and agreed as follows:




(i) (A) each exclusive license granted pursuant to Article 7 of this Restated
Agreement shall survive in full force and effect but shall automatically convert to
a non-exclusive license, and each non-exclusive license granted pursuant to Article
7 shall survive in full force and effect in perpetuity and shall remain
non-exclusive, (B) the rights to use Joint Proprietary Technology set forth in
Article 7 shall survive in full force and effect but shall automatically convert
from partially exclusive rights to non-exclusive rights, shall become royalty-free,
shall no longer be limited to specific fields of use and may be used in any market
or field, and shall be nonsublicenseable (except as set forth in Section 9.3(a)(ii)
below); and (C) each of Martek and DSM hereby grants to the other party a perpetual,
nonexclusive, worldwide, nonassignable, royalty-free and nonsublicenseable (except
as set forth in Section 9.3(a)(ii) below) license under its Surviving IP (as defined
in Section 9.3(a)(iii)) to make, use, have made, import, sell and offer for sale ARA
Products, alone or combined with other products, in any market or field or location
to the extent not provided in (A) or (B) above.




(ii) Each party shall be entitled to grant a sublicense of the other party’s
rights in any Surviving IP only to its Affiliates and to third party toll
manufacturers, and neither party shall have the right to grant a sublicense to any
other third party without the prior written consent of the other party;
provided, however, that third parties that purchase ARA Products that are
sold by Martek or DSM shall have the right to use such products in any manner for
which they were sold.





	 	 	 
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Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission




 


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(iii) “Surviving IP” shall mean DSM Proprietary Technology, Martek Proprietary
Technology, Joint Proprietary Technology, DSM R&D Patents,
Martek R&D Patents, Improvements and Excluded Subject Matter, either as owned
by a party or its Affiliates or licensed to a party by a third party licensor with
the right to grant rights or a sublicense thereunder to the other party, all as of
the date of expiration of this Restated Agreement (or earlier date of termination),
including any Intellectual Property that would fall within one of the aforementioned
capitalized defined terms as of the date of expiration of this Restated Agreement
(or earlier termination date) if the parties had fully complied with their
obligations hereunder and regardless of whether it has been previously disclosed or
added to a corresponding schedule as contemplated by this Restated Agreement;
provided that, in the event this Restated Agreement shall be terminated
pursuant to Section 9.2(a) or (b) and Martek is the Infringed Party, the Excluded
Subject Matter shall continue to be subject to the limitations set forth in Section
7.2(b)(iii) through December 31, 2023. The parties shall jointly identify all
Surviving IP in accordance with the following procedure: Commencing no later than
ninety (90) days prior to the date of expiration (or earlier termination) of this
Restated Agreement and to be completed no later than ninety (90) days after the date
of such expiration (or earlier termination), the parties will jointly conduct a
thorough review to determine all Intellectual Property owned by each party, or to
which each party has rights as licensee or otherwise, to determine whether it meets
the definition of “Surviving IP,” and prepare the list of Surviving IP clearly
identifying each party’s ownership and/or license or other interest therein.




(iv) For clarity, the non-exclusive license granted pursuant to Section 7.4(e)
shall survive in perpetuity and remain a non-exclusive license in accordance with
the restrictions of Section 7.4(e).



(b) For Cause. In the event of a termination of this Restated Agreement for cause in
accordance with Section 9.2(a), Section 9.2(b), Section 9.2(c) or Section 5.5 hereof, the
Infringing Party, the Breaching Party, the insolvent party to which Section 9.2(c) applies, and the
Notifying Party, as applicable, shall be referred to as the “Triggering Party” and the Infringed
Party, the Non-Breaching Party, the party to whom Section 9.2(c) does not apply, and the Responding
Party, as applicable, shall be referred to as the “Non-Triggering Party.” Notwithstanding anything
to the contrary set forth in this Restated Agreement, upon the effective date of such termination
for cause in accordance with Sections 9.2(a), (b) or (c) or Section 5.5, the Triggering Party’s and
Non-Triggering Party’s rights in Intellectual Property shall be as follows:





	 	 	 
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(i) Triggering Party: (A) each exclusive license granted to the
Triggering Party pursuant to Article 7 of this Restated Agreement shall survive in
full force and effect but shall automatically convert to a non-exclusive license,
and each non-exclusive license granted pursuant to Article 7 shall survive in full
force and effect in perpetuity and shall remain non-exclusive, (B) the rights of
the Triggering Party to use Joint Proprietary Technology set forth in Article 7
shall remain in effect but shall automatically convert from partially exclusive
rights to
non-exclusive rights, shall become royalty-free, shall be limited to fields of
use outside of the Non-Triggering Party’s ARA Fields of Use and shall be
nonsublicenseable (except as set forth below), and (C) the Non-Triggering Party
hereby grants to the Triggering Party a nonexclusive, worldwide, nonassignable,
royalty-free (except as otherwise provided in Section 9.4(b)(iii) and Section
7.4(e)), and nonsublicenseable (except as set forth below) license under its
Surviving IP to make, use, have made, import, sell and offer for sale ARA Products,
alone or combined with other products, limited to the Triggering Party’s ARA Fields
of Use to the extent not provided in (A) or (B) above.



Notwithstanding anything to
the contrary herein, from and after January 1, 2024, the Triggering Party’s rights
and licenses under the Surviving IP shall be as set forth for the parties in Section
9.3 (a), and not this Section 9.3(b)(i).


The Triggering Party shall be entitled to grant a sublicense under the
Non-Triggering Party’s Surviving IP to its Affiliates and to third party toll
manufacturers, but only to third party toll manufacturers for purposes of the
Triggering Party’s ARA Fields of Use; provided, that third parties that
purchase ARA Products that are sold by the Triggering Party shall have the right to
use such products in any manner for which they were sold in accordance with the
terms of this Restated Agreement. The Triggering Party shall not have the right to
grant a sublicense or similar rights to any other third party without the prior
written consent of the Non-Triggering Party.




(ii) Non-Triggering Party: (A) each exclusive license granted to the
Non-Triggering Party pursuant to Article 7 of this Restated Agreement shall survive
in full force and effect and shall remain an exclusive license until January 1,
2024, at which time it shall convert to a non-exclusive license, and each
non-exclusive license granted pursuant to Article 7 shall survive in full force and
effect in perpetuity and shall remain non-exclusive, (B) the rights of the
Non-Triggering Party to use Joint Proprietary Technology set forth in Article 7
shall remain in effect and exclusive for the Non-Triggering Party’s ARA Fields of
Use until January 1, 2024, at which time it shall convert to a non-exclusive
license, shall become royalty-free, shall no longer be limited to specific fields of
use, may be used in any market or field, and the right to sublicense will not
require any consent pursuant to Section 7.2(b)(iii), and (C) the Triggering Party
hereby grants to the Non-Triggering Party a worldwide, nonassignable, royalty-free
and nonsublicenseable (except as set forth below) license under its Surviving IP to
make, use, have made, import, sell and offer for sale ARA Products, alone or
combined with other products in any market or field to the extent not provided in
(A) or (B) above; provided that (i) the license to the Surviving IP granted
to the Non-Triggering Party shall be an exclusive license (including as to the
Triggering Party) with respect to the Non-Triggering Party’s ARA Fields of Use and a
non-exclusive license with respect to all other fields of use including the
Triggering Party’s ARA Fields of Use in each case until January 1, 2024, or for the
life of the
respective patent, if earlier. From January 1, 2024, the Non-Triggering Party’s
rights and licenses under the Surviving IP shall be as set forth for the parties in
Section 9.3(a) and not this Section 9.3(b)(ii).





	 	 	 
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Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission




 


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The Non-Triggering Party shall be entitled to grant a sublicense of the
Triggering Party’s Surviving IP to its Affiliates and to third party toll
manufacturers in all fields of use; provided, that third parties that
purchase ARA Products that are sold by the Non-Triggering Party shall have the right
to use such products in any manner for which they were sold. The Non-Triggering
Party shall not have the right to grant a sublicense or similar rights to any other
third party without the prior written consent of the Triggering Party.




(iii) In the event this Restated Agreement is terminated pursuant to Section
5.5, the Notifying Party’s and the Responding Party’s rights and licenses under the
Surviving IP shall be governed by the provisions of Section 9.3(a) as though this
Restated Agreement had expired, with effect as of the effective date of such
termination (subject to any waiting period imposed by Section 5.5 upon a party’s
right to commence sales in the other party’s Fields of Use).




(iv) In the event of a termination of this Restated Agreement the non-exclusive
license granted pursuant to Article 7.4(e) shall survive in perpetuity in accordance
with the restrictions of Section 7.4(e).




(v) In furtherance of the foregoing, promptly following any termination of this
Restated Agreement for cause, the Triggering Party and the Non-Triggering Party
shall jointly conduct a thorough review of the Intellectual Property that each party
owns and to which it has rights as licensee or otherwise to determine which
Intellectual Property constitutes Surviving IP and prepare the list of Surviving IP
clearly identifying each party’s ownership interest or license rights therein, all
as further provided in Section 9.3(a)(iii).



(c) Effect on Research Projects. Upon the expiration or termination of this Restated
Agreement pursuant to Section 5.5, or for cause pursuant to Section 9.2, unless the parties
otherwise agree in writing, all ongoing research projects undertaken in accordance with Section 7.1
hereto shall immediately terminate. Each party shall cooperate with the other party to exchange
information and materials related to any ongoing research project, and shall fully inform the other
party of any results from such research project not already disclosed to the R&D Committee.



(d) Certain Intellectual Property Rights. Notwithstanding anything to the contrary in
this Restated Agreement, upon the expiration or termination of this Restated Agreement, each party
shall have the exclusive right to enforce any rights to Intellectual Property that it owns
exclusively and the non-exclusive right to enforce any rights to Intellectual Property that it owns
jointly with the other party.





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




 


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9.4. Other Effects of Termination; Damages; Cap. 



(a) It is understood and agreed by the parties that, in the event Martek fails to perform any
obligation or covenant or otherwise breaches any term of this Restated Agreement or if DSM
exercises any right it may have to terminate this Restated Agreement pursuant to Section 9.2(a) or
Section 9.2(b), DSM shall be entitled to damages sufficient to place DSM in as good a position as
it would have been in if there had been no breach or termination and this Restated Agreement had
been fully performed, taking into consideration the net amount of losses caused and gains
prevented, in excess of the savings made possible, by the breach or termination and, in calculating
such damages as they relate to lost DSM Mark Up in the event DSM exercises any such right to
terminate this Restated Agreement pursuant to Section 9.2(a) or Section 9.2(b), DSM’s damages based
on sales it otherwise would have made to Martek and its Affiliates through December 31, 2023 shall
be determined on the following basis:




(i) If the date of termination is prior to January 1, 2015, then DSM’s lost
profits on sales of ARA Products to Martek and its Affiliates as a result of such
termination shall be calculated based on:




(A) DSM’s Mark Up in effect at the time of termination of this
Restated Agreement for DSM’s lost sales prior to January 1, 2015; and




(B) fifty percent (50%) of Martek’s Gross Profit on its sales of
ARA Products in the Martek ARA Fields of Use, as determined pursuant
to Section 6.7, for DSM’s lost sales on and after January 1, 2015; or




(ii) If the date of termination is on or after January 1, 2015, then DSM’s lost
profits on sales of ARA Products to Martek and its Affiliates as a result of such
termination shall be calculated based on the DSM Mark Up or other pricing
arrangement in effect on the date of termination for DSM’s lost sales from and after
the date of termination through December 31, 2023.



It is understood and agreed that the amount of damages that DSM shall be entitled to claim
hereunder shall be reduced (i) by the Gross Profits that DSM derives from sales of ARA Products
into Martek ARA Fields of Use but not including Gross Profits that DSM derives from sales of ARA
Products into any Martek ARA Fields of Use where such sales are permitted by an arbitration
decision pursuant to Section 5.5 and (ii) by the DSM Gross Profits that DSM derives from
alternative utilization of its ARA production facilities, to the extent DSM could not have derived
such DSM Gross Profits had there not been such a termination of this Restated Agreement. In the
event of termination of this Restated Agreement by DSM pursuant to Section 9.2, DSM agrees to take
all commercially reasonable steps to mitigate the damages it incurs and Martek shall reimburse DSM
for all costs and expenses associated therewith. For the purposes
of this Section 9.4(a), “DSM Gross Profits” shall mean gross monies including royalties
received from the sales of products or services minus costs of goods/services sold, including but
not limited to depreciation, commissions, delivery costs, sales tax and credits for refunds and
returns directly related to such sales or services.





	 	 	 
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Martek shall pay DSM any damages determined pursuant to this Section 9.4(a) quarterly, based
on (i) the actual quantities of ARA Products Martek and its Affiliates purchase from third parties
during such quarter plus (ii) the amount of ARA Products that Martek and its Affiliates produce and
sell themselves during such calendar quarter in excess of the Martek Allocation. Martek shall
provide DSM with a written statement of such amounts within thirty (30) days following the end of
such quarter, which statement shall include payment to DSM of the amount to which DSM is entitled
with respect to lost sales during such quarter, include a detailed calculation of such amount and
shall be certified as to its accuracy by the chief financial officer of Martek. DSM shall be
entitled to have an independent accounting firm audit from time to time the relevant books and
records of Martek and its Affiliates to confirm Martek’s and Martek’s Affiliates’ compliance with
the terms hereof. Such audit shall be at the cost of DSM unless it shall reveal a not immaterial
underpayment by Martek, in which event Martek shall bear the costs of the audit in addition to
owing such underpayment to DSM.



In the event that Martek terminates this Restated Agreement pursuant to Section 9.2(a) or
Section 9.2(b), DSM covenants and agrees that neither it nor any of its Affiliates shall compete
with Martek or any Martek Affiliate for sales of ARA Products in the Martek ARA Fields of Use until
the earlier of the date three (3) years after the date of such termination and December 31, 2023.
In the event that DSM terminates this Restated Agreement pursuant to Section 9.2(a) or Section
9.2(b), Martek covenants and agrees that neither it nor any of its Affiliates shall compete with
DSM or any DSM Affiliate for sales of ARA Products in the DSM ARA Fields of Use until the earlier
of the date three (3) years after the date of such termination and December 31, 2023.



(b) It is understood and agreed by the parties that, in the event DSM fails to perform any
obligation or covenant or otherwise breaches any term of this Restated Agreement, Martek shall be
entitled to (i) damages sufficient to place Martek in as good a position as it would have been in
if there had been no breach and this Restated Agreement had been fully performed, taking into
consideration the net amount of losses caused and gains prevented, in excess of the savings made
possible, by the breach, (ii) in the event that DSM or any of its Affiliates shall sell ARA
Products into any Martek ARA Fields of Use in violation of the provisions of this Restated
Agreement, Martek’s lost profits on such sales and (iii) in the event Martek exercises any right it
may have to terminate this Restated Agreement pursuant to Section 9.2(a) or Section 9.2(b), the DSM
ARA Field of Use Royalty on DSM’s sales of ARA Products from and after the date of termination
through December 31, 2023, calculated and payable as set forth in Section 6.9.



DSM shall pay Martek any damages determined pursuant to this Section 9.4(b) quarterly. DSM
shall provide Martek with a written statement of such amounts within thirty (30)
days following the end of such quarter, which statement shall include payment to Martek of the
royalties to which Martek is entitled with respect to sales of ARA Products by DSM and its
Affiliates during such quarter, include a detailed calculation of such amount and shall be
certified as to its accuracy by the chief financial officer of DSM. Martek shall be entitled to
have an independent accounting firm audit from time to time the relevant books and records of DSM
and its Affiliates to confirm DSM’s and DSM’s Affiliates’ compliance with the terms hereof. Such
audit shall be at the cost of Martek unless it shall reveal a not immaterial underpayment by DSM,
in which event DSM shall bear the costs of the audit in addition to owing such underpayment to
Martek.





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




 


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(c) Notwithstanding anything to the contrary set forth in this Restated Agreement, the total
aggregate amount that a party (a “Liable Party”) shall be liable for and required to pay to the
other party in respect of losses, damages, claims, costs or expenses (“Losses”) that are asserted
against or suffered by such other party arising out of, in connection with or based upon the breach
or failure to perform by the Liable Party of the provisions of this Restated Agreement shall not
exceed, and the Liable Party shall have no liability under this Restated Agreement for any Losses
that exceed in the aggregate one hundred fifty million US Dollars ($150,000,000) (the “Cap”).



In the event of multiple determinations of Losses against a Liable Party under this Restated
Agreement (whether by arbitration or admission of fault), the Cap on the liability of the Liable
Party for each subsequent determination of a Loss shall be equal to:




	 	(i)	 	One hundred fifty million dollars ($150,000,000);






Minus




	 	(ii)	 	The total aggregate amount of Losses that have been theretofore awarded against
the Liable Party pursuant to an arbitration procedure conducted in accordance with
Section 10.5 of this Restated Agreement plus the amount of Losses that have
been theretofore actually paid by the Liable Party to the other party in respect of
claims of breach or failure to perform by the Liable Party that are settled between the
parties without the issuance of an arbitration award.





Nothing contained in this Section 9.4(c) shall be deemed to limit in any way either party’s right
to seek provisional injunctive relief or other similar forms of provisional remedies pursuant to
Section 10.5(e) of this Restated Agreement.




(d) In the event either DSM or Martek exercises its right, if any, to accelerate the
expiration of the Restated Agreement as provided in Section 6.8(b), the provisions of Section
9.3(a) shall apply and the following shall apply:




(i) if DSM has and exercises its right to accelerate expiration of this
Restated Agreement pursuant to Section 6.8(b), then DSM covenants and agrees
that neither it nor any of its Affiliates shall compete with Martek or any
Martek Affiliate for sales of ARA Products in the Martek ARA Fields of Use until the
date that is one (1) year after the date of such accelerated expiration.





	 	 	 
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(ii) if Martek has and exercises its right to accelerate expiration of this
Restated Agreement pursuant to Section 6.8(b), then Martek shall pay to DSM (A) an
amount equal to the sum of the Undepreciated * Costs and the Undepreciated Pre-2004
Costs as of such accelerated expiration date and, (B) in the event Martek’s exercise
results directly in a DSM plant closing or layoff of DSM personnel * within six (6)
months of such expiration date, an amount equal to fees or payments imposed on or
required to be paid by DSM under federal, state or local law directly as a result of
such plant closing or personnel layoffs, if any, but not to include any amounts (1)
arising from DSM’s employee benefit plans or policies or that are in addition to any
fees imposed or required under such laws or (2) arising from DSM’s failure to give
sufficient notice under such laws.




(iii) “Undepreciated * Costs” shall mean an amount equal to the costs incurred
by DSM * for fixed assets directly and solely dedicated to ARA production for Martek
pursuant to this Restated Agreement, less the total depreciation of such assets as
set forth on Schedule 9.4(d)-1, as revised from time to time, subject to the
following: (a) the Undepreciated * Costs as of the Signing Date is to be set forth
on Schedule 9.4(d)-1, and (b) the Undepreciated * Costs shall be updated annually to
reflect the depreciation of the assets and to include costs for fixed assets
incurred after the Signing Date that are Approved Capital Assets, but shall not
include any such costs that are not Approved Capital Assets. “Undepreciated Pre-2004
Costs” shall mean an amount equal to the remaining undepreciated costs set forth on
Schedule 9.4(d)-2; and




(iv) Martek shall pay to DSM any amounts due pursuant to Section 9.4(d)(ii)
above within thirty (30) days of the accelerated expiration date or the date on
which such fees or payments are due, as applicable.



(e) In the event the parties mutually agree to *, then Martek shall pay to DSM (A) an amount
equal to *, and, (B) in the event Martek’s exercise results directly in a * within six (6) months
of such date, an amount equal to fees or payments imposed on or required to be paid by DSM under
federal, state or local law directly as a result of *, if any, but not to include any amounts (1)
arising from * or policies or that are in addition to any fees imposed or required under such laws
or (2) arising from DSM’s failure to give sufficient notice under such laws.





	 	 	 
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9.5. Limitation of Liability. 



(a) EXCEPT FOR THE LOST PROFITS PAYABLE BY MARTEK PURSUANT TO SECTION 9.4(a), LOST PROFITS
PAYABLE BY DSM PURSUANT TO SECTION 9.4(b)(ii) AND ROYALTIES PAYABLE BY DSM PURSUANT TO SECTION
9.4(b)(iii), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY AND ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CAUSE OF ACTION OF ANY KIND EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.



(b) Nothing contained in this Restated Agreement shall preclude either DSM or Martek from
asserting any claim for Losses against any third party; provided, however, that neither DSM nor
Martek shall assert any claim for Losses arising out of or in connection with this Restated
Agreement against any third party, including without limitation any subcontractor of the other
party, if and to the extent that either (i) DSM or Martek, as the case may be, shall be entitled to
assert the same claim for Losses against the other party or (ii) such other party is required,
pursuant to a legally binding obligation in effect at the time of such Losses, to indemnify such
third party against such Losses if such third party were to pay them to DSM or Martek, as the case
may be.



10. GENERAL




10.1. Non-Solicitation. 



(a) DSM agrees that, during the term of this Restated Agreement, neither it nor any of its
Affiliates shall, directly or indirectly, (i) solicit, recruit or induce, or attempt to solicit,
recruit or induce, any person who is an employee of Martek or any of its Affiliates to leave his or
her employment or engagement with Martek or any of its Affiliates or (ii) employ, hire or engage,
or cause to employ, hire or engage, any person who is or was within the previous six (6) months an
employee of Martek or any of its Affiliates, in either case without the prior written consent of
Martek; provided that general advertisements by DSM or its Affiliates for employment not directed
at employees or former employees of Martek or its Affiliates, and any employment resulting
therefrom, shall not be a violation of this Section 10.1(a).



(b) Martek agrees that, during the term of this Restated Agreement, neither it nor any of its
Affiliates shall, directly or indirectly, (i) solicit, recruit or induce, or attempt to solicit,
recruit or induce, any person who is an employee of DSM or any of its Affiliates to leave his or
her employment or engagement with DSM or any of its Affiliates or (ii) employ, hire or engage, or
cause to employ, hire or engage, any person who is or was within the previous six (6) months an
employee of DSM or any of its Affiliates, in either case without the prior written consent of DSM;
provided that general advertisements by Martek or its Affiliates for employment not directed at
employees or former employees of DSM or its Affiliates, and any employment resulting therefrom,
shall not be a violation of this Section 10.1(b).





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




 


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10.2. Confidential Information. 



The parties acknowledge and agree that each party will be disclosing confidential information
to the other party and that the parties will be developing confidential information jointly during
the term of this Restated Agreement, including but not limited to, the Specifications, know-how
(including, without limitation, all Know-how), Know-how Records, financial, marketing and business
data (if any), and cost information, business strategies, ideas, concepts, ARA Field of Use and
marketing information, financial information and Joint Proprietary Technology (the “Confidential
Information”). Each party agrees that it shall hold the Confidential Information in strict
confidence, shall not disclose it to others or use it in any way, commercially or otherwise, except
for purposes of performing its obligations or exploiting its rights under this Restated Agreement.
Each party further agrees to take all action necessary to protect the confidentiality of the
Confidential Information including, without limitation, (a) implementing and enforcing operating
procedures to minimize the possibility of unauthorized use or copying of the Confidential
Information, and (b) obligating each of its Third Party Toll Manufacturers, by written agreement,
to protect the Confidential Information. Notwithstanding this Section 10.2, the term “Confidential
Information” shall not include any information which (x) is or becomes part of the public domain
through no fault of the receiving party, (y) is obtained by the receiving party from any third
party which is under no obligation to the disclosing party to protect the confidentiality thereof,
or (z) can be established by the receiving party with reasonable documentary evidence to have been
independently developed by the receiving party without reliance on the Confidential Information.
Notwithstanding the foregoing, if a party or any of its employees or other representatives becomes
legally compelled (whether by subpoena, court order or other legal process, by any governmental
authority or by applicable law) to disclose any of the Confidential Information or the fact that
the Confidential Information has been made available to the receiving party or such employees or
representatives, the receiving party shall, to the fullest extent permitted by applicable law, give
the disclosing party an adequate opportunity, at the disclosing party’s expense, to interpose an
objection and/or to seek a protective order or such other remedy as the disclosing party may
consider appropriate in the circumstances. The receiving party shall, and shall assure that each
such employee or representative shall, disclose only that portion of the Confidential Information
that it is legally required to disclose.



10.3. Survival. 



The following provisions shall survive termination or expiration of this Restated Agreement:
Section 4.9 (Disclaimers); Section 6.1(g) (Profit Sharing Fee), but only in the event DSM
terminates this Restated Agreement pursuant to Section 9.2; Section 6.4(b) (Amounts Payable by
DSM), but only in the event Martek shall be entitled to receive the DSM ARA Field of Use Royalty
pursuant to Section 9.4(b)(iii) following the termination of this Restated Agreement; Section
6.5(d) (Invoices and Payments);Section 6.10 (Transparency) but only for a period of twelve (12)
months following the date of such termination or expiration; Section 6.11 (Books and Records) but
the obligations set forth therein shall be limited to those aspects of this Restated Agreement that
survive such termination or expiration; Section 6.12(c) (Break-Up Fee); Section 6.13 (Consideration
for Payments and Volume Commitments), but only to the extent such amounts are not paid prior to
termination ; Section 7.2(a) (Intellectual Property
Rights) but only through January 1, 2024; Section 7.3(Prosecution, Maintenance and
Enforcement), but only to the extent of any pending matters at the time of termination or
expiration; Section 7.4(e)(i) (DHA License), but only in the event the license granted thereunder
shall become royalty bearing; Section 8.8 (External Communications); Section 9.3 (Effect of
Expiration or Termination on Intellectual Property Rights); Section 9.4 (Other Effects of
Termination; Damages; Cap); Section 9.5 (Limitation of Liability); Section 10.2 (Confidential
Information); Section 10.3 (Survival); Section 10.5 (Disputes; Arbitration); Section 10.6
(Regulatory Matters); Section 10.7(a) (Assignment, Delegation and Subrogation; Insurance;
Inspection); Section 10.9 (Severability); Section 10.10 (Relationship of the Parties); Section
10.11 (Notices); Section 10.12 (Governing Law); and Section 10.15 (Entire Agreement); Sections
7.2(b), 7.4(a), 7.4(b), and 7.4(f), but only to the extent necessary to implement the parties’
intentions as set forth in Section 9.3 and Article II (Definitions), but only to the extent
necessary to give meaning to defined terms that are used in provisions referred to above.





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




 


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10.4. Trademarks.



(a) Use of Martek Trademarks. During the term of this Restated Agreement, DSM shall use
Martek’s brand names and the Martek trade name, solely on Martek’s behalf and for Martek’s benefit,
on all shipments of ARA Products by DSM to Martek or any Martek customer, pursuant to delivery or
order instructions by Martek to DSM, and DSM shall not attach any additional brand names,
trademarks, trade names, logos or designations to any such shipment. DSM’s use of Martek’s brand
names and the Martek trade name shall be in accordance with Martek’s policies in effect from time
to time, as communicated by Martek to DSM. DSM shall not be authorized to use, and is expressly
prohibited from using, any Martek brand name or the Martek trade name on any shipment of ARA
Products other than a shipment subject to an order and delivery instructions submitted to DSM by
Martek.



(b) Ownership of Martek Trademarks. DSM has paid no consideration for the use of any Martek
brand name or the Martek trade name, and nothing contained in this Restated Agreement will give DSM
any right, title or interest in any of them. DSM acknowledges that Martek owns and retains all
rights in the Martek brand names and the Martek trade name. DSM will not at any time during or
after this Restated Agreement assert or claim any interest in any Martek brand name or the Martek
trade name. Upon expiration or termination of this Restated Agreement, DSM will immediately cease
all use of the Martek brand names and the Martek trade name.



(c) DSM Trademarks. In the event that Martek supplies any Crude Oil or Finished Oil to DSM in
accordance with Article 3 hereto, Sections 10.4(a) and 10.4(b) shall apply in all respects mutatis
mutandis with respect to use and ownership of DSM’s trademarks in the event that Martek uses DSM’s
brand names or trade names on shipments pursuant to delivery or order instructions from DSM.





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




 


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10.5. Disputes; Arbitration.



(a) Disputes Generally. The parties hereby undertake to use good faith efforts to settle any
dispute arising under this Restated Agreement. Failing settlement, all disputes, including without
limitation all unresolved Disputed Issues, claims of breach of contract, fraud in the inducement,
negligence, and any other claim of dispute related to this contract shall be finally settled in
accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce
(the “ICC Rules”). In addition, the parties agree that the arbitration shall be conducted according
to the International Bar Association’s Rules of Evidence (the “IBA Rules”). Where the ICC Rules and
the IBA Rules are inconsistent, the IBA Rules shall prevail, but solely with respect to the
presentation and receipt of evidence. The arbitration shall take place in and the seat of the
arbitration shall be New York, New York, USA. There shall be a panel of three (3) arbitrators for
all disputes. The claimant party shall appoint an arbitrator in the arbitration petition and the
respondent party shall appoint an arbitrator in response. If within thirty (30) days after the
arbitration petition, the respondent has not appointed an arbitrator, such arbitrator shall be
appointed by the ICC. Within thirty (30) days of their confirmation, the two arbitrators shall
appoint a third arbitrator who shall preside over the arbitration panel. If the two arbitrators
cannot agree on a third arbitrator within such thirty (30) day period, the third arbitrator shall
be appointed by the ICC. The arbitrators shall, before accepting such appointment, agree to render
their decision to the parties in writing together with the underlying reasoning, including separate
statements of findings of facts and conclusions of law, no later than sixty (60) days after
completion of hearings, but in no event later than one hundred eighty (180) days from the date of
appointment of the last of the arbitrators to be appointed. Any final arbitration award shall be
final and not subject to appeal.



(b) Language; Transcript. English shall be the official language of the arbitration
proceedings. The arbitration shall be conducted in the English language. Relevant documents in
other languages shall be translated into English if the arbitrators so direct. A written transcript
in English of the hearing will be made and furnished to the parties.



(c) Decision of Arbitrators. The arbitrators will decide in accordance with the terms of this
Restated Agreement and will take into account any appropriate international trade usages applicable
to the transaction. The award of the arbitrators will be final and binding upon the parties.
Judgment upon the award may be entered in any court having jurisdiction in accordance with the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. An
application may be made to any such court for judicial acceptance of the award and an order of
enforcement.



(d) Expense of Arbitration. The arbitrators shall determine the allocation between the parties
of expenses incurred in connection with the arbitration, including, but not limited to, reasonable
attorneys’ fees and costs; provided however in the event of arbitration pursuant to the provisions
of Section 5.5 the arbitrators must award the prevailing party its attorneys fees and costs,
arbitration administrative fees, panel member fees and costs, and any other costs associated with
the arbitration.





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




 


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(e) Provisional Remedies Not Denied. Each party hereto acknowledges and agrees that the
provisions of this Restated Agreement are of the essence and that any violation by it of any
provision contained in this Restated Agreement shall cause the other party irreparable injury not
fully compensable by monetary damages and for which the non-breaching party may not have an
adequate remedy at law. Accordingly, if a non-breaching party institutes an arbitration action or
proceeding to enforce this Restated Agreement in accordance with the procedures set forth above,
then such non-breaching party shall be entitled to provisional injunctive relief or other form of
provisional remedy in aid of the arbitration as may be necessary or appropriate to the fullest
extent permissible under applicable law, to enjoin, prevent or curtail any breach of this Restated
Agreement, threatened or actual, without the posting of any bond or security, whether in summary
proceedings or on the merits. It is understood and agreed, however, that the final determination
of any alleged breach giving rise to any provisional injunctive relief or other form of provisional
remedy shall be made solely by the arbitrators in accordance with the provisions set forth above.
In addition to the authority conferred upon the arbitration tribunal by the ICC Rules, the
tribunal, along with any court of competent jurisdiction, shall also have the authority to grant
provisional remedies, including injunctive relief. Without limiting the generality of the
foregoing, it is understood and agreed that a party shall be entitled to injunctive relief in the
event the other party breaches any of the provisions of Section 5.5.



(f) Federal Arbitration Act. Notwithstanding anything to the contrary herein, the arbitration
provisions set forth herein, and any arbitration conducted thereunder, shall be governed
exclusively by the Federal Arbitration Act, Title 9, United States Code and the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, to the exclusion of any
state or municipal law.



10.6. Regulatory Matters. 



Each party shall provide the other party with all information the other party may reasonably
request in order to obtain or comply with any necessary regulatory approvals, permits, licenses,
clearances and notifications required by it in connection with its performance under this Restated
Agreement, including but not limited to all information concerning studies performed by or on
behalf of such party in the field of product identification, characterization and analysis;
pathogenicity, toxicity, mutagenicity and clinical trials. Each party shall promptly notify the
other of all communications with the FDA and other regulatory agencies regarding ARA.



10.7. Assignment, Delegation and Subrogation; Insurance Inspection. 



(a) Neither this Restated Agreement nor any rights granted hereby may be assigned by either
party without the prior written consent of the other party. Any attempt by either party to assign
any rights, duties or obligations without the requisite consent of the other party shall be void
and without force or effect. Notwithstanding the foregoing, either party shall have the right to
assign its rights and delegate its obligations under this Restated Agreement (i) to
an Affiliate, provided that such party shall guarantee the full and timely performance of such
obligations by such Affiliate, and (ii) in the event of a purchase of a party’s entire business to
which this Restated Agreement relates or the purchase of all or substantially all of a party’s
assets, subject in the case of (ii) to the consent of the non-assigning party, which consent shall
not be unreasonably withheld or delayed.





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




 


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(b) Without limiting the generality of the foregoing, neither party shall subrogate to an
insurance carrier or similar entity any right it may have to claim or recover Losses from (i) the
other party arising out of or in connection with this Restated Agreement, or (ii) a third party
arising out of or in connection with this Restated Agreement to the extent the other party is
required, pursuant to a legally binding obligation in effect at the time of such Losses, to
indemnify such third party against such Losses if such third party were to pay them, in each case,
without the prior written consent of such other party. Each party shall indemnify and hold harmless
the other party, its Affiliates and their respective directors, officers, employees and agents from
and against all Losses, including reasonable counsel fees, that such other party suffers or incurs
as a result of any subrogation made by it in violation of the terms of this Restated Agreement;
provided, however, that nothing contained in this Section 10.7(b) shall be deemed to relieve such
other party from any liability arising as a result of any breach or failure to perform under this
Restated Agreement.



(c) In the event that an insurance carrier or similar entity gives notice to a party that it
has been subrogated to the rights of the other party and that such carrier or entity intends to
exercise such rights against it, then such party receiving such notice shall give the other party
prompt written notice thereof.



(d) Upon reasonable notice during regular working hours, representatives of each of DSM’s and
Martek’s insurance carriers may inspect the manufacturing facilities used by or for the respective
parties in the manufacture of ARA for (i) the purpose of inspections or loss control visits
relative to insurance being secured or validated or (ii) assessing the validity of an insurance
claim and/or the extent of damage under an insurance claim submitted by DSM or Martek,
respectively.



10.8. Amendments and Waivers. 



Except as expressly stated herein, neither this Restated Agreement nor any terms hereof may be
amended, waived, discharged or terminated unless such amendment, waiver, discharge or termination
is in writing signed by all parties or, in the case of a waiver, by the party waiving compliance.



10.9. Severability. 



If any provision of this Restated Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. In the case of any such
invalidity, illegality or unenforceability, the parties agree to use their commercially
reasonable efforts to achieve the purpose of such provision by a new legally valid and enforceable
stipulation. In addition, the parties hereby authorize any court or arbitrator having jurisdiction
thereover to modify such provision to the extent necessary to render such provision enforceable,
and the rights and obligations of the parties shall be construed and enforced accordingly,
preserving to the fullest permissible extent the intent and the agreements of the parties.





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




 


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10.10. Relationship of the Parties. 



For purposes of this Restated Agreement, DSM and Martek will be and shall act as independent
contractors, and neither party is authorized to act as an agent or partner of, or joint venturer
with, the other party for any purpose. Neither party by virtue of this Restated Agreement shall
have any right, power, or authority to act or create any obligation, express or implied, on behalf
of the other party.



10.11. Notices. 



Except as otherwise expressly provided herein, all notices required or permitted to be sent
hereunder, including any requests and other communications, to any party hereunder shall be in
writing and sufficient if delivered by recognized international express courier service or by
facsimile with telephone confirmation of receipt by the addressee, in each case addressed as
follows:



	 	 	 
	If to DSM:

	 	DSM Food Specialties B.V.
	 

	 	A. Fleminglaan 1
	 

	 	2613 AX Delft
	 

	 	The Netherlands
	 

	 	Attention: Business Director ARA
	 

	 	Phone: ** 31 15 279 2173
	 

	 	Fax: ** 31 15 279 4320
	 
	 	 
	With a copy to:

	 	DSM Food Specialties B.V.
	 

	 	A. Fleminglaan 1
	 

	 	2613 AX Delft
	 

	 	The Netherlands
	 

	 	Attention: Legal Counsel
	 

	 	Phone: ** 31 15 279 2557
	 

	 	Fax: ** 15 279 4170
	 
	 	 
	If to Martek:

	 	Martek Biosciences Corporation
	 

	 	6480 Dobbin Road
	 

	 	Columbia, Maryland 21045
	 

	 	Attention: CEO
	 

	 	Phone: 410-740-0081
	 

	 	Fax: 410-740-2985
	 
	 	 
	With a copy to:

	 	Martek Biosciences Corporation
	 

	 	6480 Dobbin Road
	 

	 	Columbia, Maryland 21045
	 

	 	Attention: General Counsel
	 

	 	Phone: 410-740-0081
	 

	 	Fax: 410-740-2985








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




 


94









 







or to such other address as the party to whom notice is to be given may have furnished to the other
party, in writing in accordance herewith. Each such notice shall be effective on the fifth (5th)
business day following the date on which such communication is sent when delivered by recognized
international express courier service and on the first (1st) business day following the date on
which such communication is sent by electronic communication or facsimile in each case with
telephone confirmation of receipt by the addressee. This provision shall not apply to
communications between the parties in the ordinary course of business.



10.12. Governing Law. 



This Restated Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York applicable to contracts to be performed fully within the State of New
York. The parties hereby expressly exclude the applicability of the Convention on Contracts for the
International Sale of Goods and that body of law known as conflicts of laws. Notwithstanding
anything to the contrary herein, issues regarding the scope or interpretation of any parties’
patents shall be determined in accordance with the laws of the jurisdiction in which such patent
has issued.



10.13. Force Majeure. 



Each party shall be excused from the timely performance, and neither party shall be liable for
any damages or penalty for any delay or failure in performance, of any obligation hereunder or for
failure to give the other party prior notice thereof when such delay or failure is due to the
elements, acts of God, delays in transportation, delays in delivery by vendors or subcontractors or
other causes beyond that party’s reasonable control (each such event being a “Force Majeure
Event”). Such excuse shall continue for the duration of the Force Majeure Event and for a
reasonable period of time afterwards as then determined by the parties in good faith.



10.14. No Waivers. 



No express or implied waiver by either party of any event of default hereunder shall in any
way be, or be construed as, a waiver of any future or subsequent event of default.





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




 


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10.15. Entire Agreement. 



The parties acknowledge that this Restated Agreement, together with the Schedules hereto,
which are hereby incorporated herein and made a part hereof, sets forth the complete, exclusive and
integrated understanding of the parties and supersedes all proposals or prior agreements, oral or
written, and all other prior communications between the parties relating to the subject matter of
this Restated Agreement, including without limitation the Alliance Agreement as amended prior to
the date hereof, and, except as provided in Section 10.8, no other documents (including without
limitation each party’s general terms and conditions of purchase or sale) shall act to modify,
amend or add to this Restated Agreement.



10.16. Counterparts. 



This Restated Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same document.



10.17. Guarantees. 



(a) The parties acknowledge that * has executed the Guaranty Agreement, dated as of April 19,
2004, a copy of which is attached hereto as Schedule 2.77.



(b) DSM unconditionally and irrevocably guarantees to Martek compliance by each of its
Affiliates with the provisions of this Restated Agreement, including but not limited to Sections
5.5, 7.2, 7.4, and 9.4, and shall be liable to Martek for any damages resulting from an Affiliate’s
noncompliance with the provisions of this Restated Agreement. Martek shall, without any further
action or formality being required, have the right to institute arbitration to enforce this
provision in accordance with Section 10.5.



(c) Martek unconditionally and irrevocably guarantees to DSM compliance by each of its
Affiliates with the provisions of this Restated Agreement, including but not limited to Sections
5.5, 7.2, 7.4, and 9.4, and shall be liable to DSM for any damages resulting from an Affiliate’s
noncompliance with the provisions of this Restated Agreement. DSM shall, without any further
action or formality being required, have the right to institute arbitration to enforce this
provision in accordance with Section 10.5.



10.18. Hierarchy of Documents.



The body of this Restated Agreement will prevail in case of discrepancies with the Schedules.





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




 


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IN WITNESS WHEREOF, each of the parties has caused this Restated Agreement to be duly executed
and delivered as of the day and year first above written.



	 	 	 	 	 	 	 
	MARTEK BIOSCIENCES CORPORATION	 	DSM FOOD SPECIALTIES B.V.
	 
	 	 	 	 	 	 
	By:

	 	/s/ Steve Dubin
	 	By:
	 	/s/ A.R. Wessels
	 

	 	 
	 	 	 	 
	 

	 	Steve Dubin
	 	 	 	A.R. Wessels
	 

	 	Title: Chief Executive Officer
	 	 	 	Title: Managing Director
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Villaume Kal
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Villaume Kal as Attorney-in-Fact for
Geert Jan Nieboer, Managing
Director
	 

	 	 	 	 	 	Title: Business Director ARA








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






 


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Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULES




TO THE




FIRST AMENDED AND RESTATED




ARA ALLIANCE, PURCHASE AND PRODUCTION AGREEMENT




BY AND BETWEEN




MARTEK BIOSCIENCES CORPORATION




AND




DSM FOOD SPECIALTIES B.V.




Dated as of July 13, 2009






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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




LIST OF SCHEDULES




	 	 	 
	Schedule 2.12

	 	ARA Assay Procedures
	 
	 	 
	Schedule 2.16

	 	DSM Biomass Specifications
	 
	 	 
	Schedule 2.28

	 	DSM Crude Oil Specifications
	 
	 	 
	Schedule 2.47

	 	DSM Costs
	 
	 	 
	Schedule 2.54

	 	DSM Patents
	 
	 	 
	Schedule 2.55

	 	DSM Know-how
	 
	 	 
	Schedule 2.64

	 	Excluded Subject Matter
	 
	 	 
	Schedule 2.69

	 	Martek Finished Oil Specifications
	 
	 	 
	Schedule 2.77

	 	Guaranty Agreement
	 
	 	 
	Schedule 2.104

	 	Martek Costs
	 
	 	 
	Schedule 2.108

	 	Martek Patents
	 
	 	 
	Schedule 2.109

	 	Martek Know-how
	 
	 	 
	Schedule 2.118

	 	* Customers
	 
	 	 
	Schedule 4.2(a)

	 	DSM ARA Biomass Certificate of Analysis
	 
	 	 
	Schedule 4.2(b)

	 	Martek Finished Oil Certificate of Analysis
	 
	 	 
	Schedule 4.6(a)

	 	Manufacturing Changes
	 
	 	 
	Schedule 4.6(b)

	 	Qualification Requirements
	 
	 	 
	Schedule 6.1-A

	 	Belvidere Usages
	 
	 	 
	Schedule 6.1-B

	 	2009 DSM Variable Costs per Unit of ARA
	 
	 	 
	Schedule 6.2-A

	 	2009 Quarterly Reconciliation Format
	 
	 	 
	Schedule 6.2-B

	 	2010-2014 Quarterly Reconciliation Format
	 
	 	 
	Schedule 6.3(a)

	 	DSM Fixed Cost Payment Calculation in the Event of DSM Shortfalls
	 
	 	 
	Schedule 9.4(d)-1

	 	Annual Depreciation of Undepreciated * Costs
	 
	 	 
	Schedule 9.4(d)-2

	 	Annual Depreciation of Undepreciated Pre-2004 Costs








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.12

ARA ASSAY PROCEDURES




Determination of the Units of ARA in Biomass: The Units of ARA in Biomass is determined by
the content of ARA in *. The Units of ARA within the Biomass are calculated as follows.




*



Determination of the Units of ARA in Crude Oil and Finished Oil: The Units of ARA within
Crude Oil and Finished Oil are calculated as follows.




*




	 	•	 	HEL *







	 	•	 	ARA in HEL, Crude Oil, and Finished Oil is determined by * or equivalent method. This
method has been subject to round robin testing and is currently controlled by
inter-laboratory comparison. Data used for the determination of Units of ARA shall only be
generated by a laboratory that has either taken part in these tests or has been validated
to comply with the variability defined in the round robin test as acceptable.








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.16

DSM BIOMASS SPECIFICATIONS




	 	 	 	 	 
	
	 	PRODUCT SPECIFICATION FORM
	 	ARA-PSF-004M
	 	ARA Biomass
	 	Revision 5
	 	Product 2984
	 	July 13, 2009






	 	 	 	 	 
	Parameter	 	Specification Limits	 	Test Method
	 
	 	 	 	 
	Release Specifications (a)
	 	 	 	 
	Description

	 	Extruded m. alpina biomass pellets
	 	Visual
	Biomass Color

	 	Brown
	 	Visual
	Smell

	 	Characteristic
	 	Olfactory
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	 
	 	 	 	 
	Control Specifications (b)
	 	 	 	 
	Lab Extracted Crude Oil Color

	 	Light to Medium Yellow
	 	Visual
	*

	 	*
	 	*
	*

	 	*
	 	*
	 
	*

	 	*
	 	*






*



Storage:




	 	•	 	Below -2° C +/- 3°C, preferably lower temperatures







	 	•	 	Protected from light







	 	•	 	Dry conditions






Packaging:




	 	•	 	Big Bags (polypropylene with polyethylene liner), anti static







	 	•	 	Labeled with product number, batch number, production number,
production date and storage conditions on both inner and outer bag







	 	•	 	*






Legend:




	 	(a)	 	Release Specifications — unconditional release of biomass







	 	(b)	 	Control specifications — tested every * and for each experimental batch to monitor
product quality and process consistency; Martek will be directly notified when out of
specification







	 	(c)	 	* ARA average in extracted crude oil over *of production

	 
	 	(d)	 	Measured in HEL *

	 
	 	(e)	 	Equivalent methods may be used if mutually agreed upon by DSM and Martek in advance







	 	(f)	 	The upper ARA potency limit will be increased in steps of *when * of the same
fermentation protocol within each step (i.e., *) meet all finished ARASCO oil analytical,
stability and sensory specifications








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement



SCHEDULE 2.28

DSM CRUDE OIL SPECIFICATIONS




	 	 	 	 	 
	
	 	PRODUCT SPECIFICATION FORM
	 	ARA-PSF-001M
	 	ARA Crude Oil
	 	Revision 5
	 	 	 	22 June 2005






Product no: 2983




	 	 	 	 	 	 	 
	Parameters	 	Approval limit (*)	 	Discussion Range (*)	 	Methods
	Release specifications
	 	 	 	 	 	 
	Appearance

	 	Typical at 25°C
	 	 	 	Visual
	Color

	 	Light-medium yellow
	 	 	 	Visual
	Smell

	 	Typical — free of any rancid odor
	 	 	 	olfactory
	*

	 	*
	 	*
	 	*
	*

	 	*
	 	*
	 	*
	*

	 	*
	 	 	 	*
	*

	 	*
	 	*
	 	*
	*

	 	*
	 	 	 	*






	 	 	 	 	 
	Parameters	 	Specification Limit (*)	 	Methods
	Control specifications (c)
	 	 	 	 
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	Control specifications (*);
*
	 	 	 	 
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*
	*

	 	*
	 	*






In-process control parameters (*):




	 	 	 	 	 
	Parameters	 	Control limit (d)	 	Methods
	*

	 	*
	 	*






	 	 	 
	Scope	 	Omichem & Naturex
	Kosher

	 	Yes
	HALAL

	 	No
	Non-GMO

	 	Yes








	 	 	 
	(a)	 	Release Specifications — Unconditional release of material


	 
	(b)	 	Results within these limits shall be discussed with Martek prior to approval

	 
	(c)	 	Control specifications — To monitor the quality of the product and the consistency of the
process; Martek will be directly notified when out of specification

	 
	(d)	 	In-process control parameters — Corrective actions will be taken when the control limits are
exceeded. No impact on product release

	 
	(e)	 	*(average per shipment of oil)

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




 


 









 




Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




Storage conditions:




	 	•	 	below -18°C

	 
	 	•	 	Protected from light

	 
	 	•	 	Dry conditions






Packaging:




	 	•	 	Under Nitrogen

	 
	 	•	 	200 kg food grade phenolic coated lined drums (tight head) with DSM label

	 
	*	 	 








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






 


 











 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.47

DSM COSTS




Included Costs:




DSM Costs per Unit of ARA shall equal Variable Costs per Unit of ARA plus Fixed Costs per Unit of
ARA, adjusted as necessary in accordance with Article 6 of the attached Restated Agreement. Fixed
Costs and Variable Costs shall be based on Generally Accepted Accounting Principles and shall be
based on actual or budgeted costs as applicable.



DSM’s capital costs for Approved Expansion Plans and Approved Capital Assets shall be depreciated
on a straight-line basis over * period starting at the time such expansion is placed into
production. Notwithstanding the above, (i) Belvidere Phase I Build-out capital costs are agreed to
be no greater than * and shall be depreciated on a straight-line basis over a * period starting
from January 1st 2004; and (ii) The basis for depreciating the Belvidere plant assets in
existence prior to the Belvidere Phase I Build-out and dedicated to use in such Belvidere Phase I
Build-out shall be no greater than * and will be depreciated on a straight-line basis over a *
period starting January 1st 2004. The final amount is subject to verification by Martek
including, at Martek’s option, an independent audit of such amount.



The ARA portion of assets not totally dedicated to ARA, other than production assets (such as ERP
systems), shall be depreciated by using the DSM internal accounting standards applicable to DSM
operations in general, but still consistent with Generally Accepted Accounting Principles.



Excluded Costs:




The following costs shall not to be included in the DSM Costs per Unit of ARA and Fixed Budget
Price per Unit of ARA (the “Excluded Costs”):




	 	•	 	All costs related to the importing and re-exporting of ARA products sent to Martek that
do not meet Martek Specifications, including but not limited to related freight, tariffs
and warehousing costs.







	 	•	 	Costs related to reworking material that originally did not meet Martek Specifications
pursuant to Section 4.7 of the Agreement.







	 	•	 	Legal costs associated with negotiating and drafting the Alliance Agreement as amended
and the Restated Agreement.







	 	•	 	Production Startup Costs.







	 	•	 	R&D Contribution pursuant to Section 7.1(d).








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.54

DSM PATENTS




	 	 	 	 	 
	Patent #	 	Title	 	Summary
	WO 97/36996

	 	Process for the preparation of
a granular microbial biomass
and isolation of valuable
compounds therefrom
	 	A process for the
isolation of desired
compound(s) from a
microbial biomass is
disclosed, wherein the
microbial biomass
(which, if necessary,
is pre-treated to give
a dry matter content
of from 25 to 80% is
granulated (e.g. by
extrusion) and then
dried to a dry matter
content of at least
80%. The granulation
of the biomass to
granules significantly
eases subsequent
drying of the biomass
(which can be stored
as dried granules) and
gives higher yields on
extraction of the
compound(s).
	WO 97/37032

	 	Fatty acid containing

Oil from pasteurized biomass
	 	In one aspect the
present invention
provides a process for
the isolation of one
or more compound(s)
from a microbial
biomass, the process
comprising:
	 

	 	 	 	a)    culturing
microorganisms in a
fermentation broth
under conditions
whereby the
microorganisms produce
the compound

	 

	 	 	 	b)    pasteurizing either
the fermentation broth
or a microbial biomass
derived therefrom; and

	 

	 	 	 	c)    extracting,
isolating or
recovering the
compound from the
microbial biomass

	WO 97/35487

	 	Solid water soluble

PUFA-carrying particles
	 	The present invention
relates to a process
for the preparation of
a polyunsaturated
fatty acid
(PUFA)-containing
composition where a
PUFA-containing lipid
is adsorbed onto a
solid carrier such as
a powder. This can be
used in a process for
preparing an infant
formula, such as where
the powdered
PUFA-containing lipid
is added after an
emulsion of oil and
water phases has been
formed.
	WO 97/35488

	 	Late addition of PUFAs in
production of infant formula
	 	The present invention
relates to a process
for the preparation of
a polyunsaturated
fatty acid
(PUFA)-containing
food, such as an
infant formula, where
a composition
comprising a PUFA is
added at a late stage
of the infant formula
preparation process in
this way, the PUFAs is
minimally exposed to
conditions during the
process that induce
degradation of the
PUFAs.
	WO 97/43362

	 	Sterol extraction with polar

solvent
	 	The present invention
relates to a process
of treating an oil,
the process comprising
contacting the oil
with a polar solvent,
and then separating
the solvent containing
the compound from the
so treated oil. The
oil is microbially
derived, and extracted
either form a
fermentation broth or
a filtrate thereof
using hexane. The
compound to be
extracted is usually a
sterol or a
diglyceride. The
solvent is ethanol
having up to 5% of
water. The oil an
contain a
plyunsaturated fatty
acid such as C28, C20
or C22 w-e, or w-6
fatty acid, such as
arachidonic acid.
	WO 99/65327

	 	Microbial ARA for use in

marine feed
	 	A marine feed
composition is
described comprising
microbially derived
arachidonic acid (ARA)
or ARA in the form of
a triglyceride. The
ARA is suitably
produced by a fungus,
such as of the genus
Mortierella, although
the feed composition
itself is free of
microbial cells. These
forms of ARA have been
found to give better
growth and
pigmentation promotion
in marine organisms
(shrimps and fish)
than corresponding
phospholipid forms of
ARA from fish oil. The
ARA can be in the form
of an oil, e.g. an
oil-in-water emulsion
or may first be fed to
larvae, rotifers or
nauplii which are
themselves included in
a composition as
“live” feed for larger
organisms.








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 
	Patent #	 	Title	 	Summary
	WO 00/21524

	 	PUFA supplement /ARA for

pregnant women
	 	Edible formulations,
such as
polyunsaturated fatty
acids (PUFAs) such as
pharmaceutical
compositions or
nutritional
supplements, are
disclosed comprising
arachidonic acid
(ARA). They are
adapted to deliver
from 150 mg to 1 g per
day of ARA and may
contain other PUFAs,
for example
docosahexaenoic acid
(DHA) at a ration of
ARA: DHA of 1:1 to 1:2
are also disclosed, as
are foodstuffs
comprising of 0.1 to
5% of ARA. Such
formulations can be
used to increase ARA
levels in vivo, for
example in pregnant
women or for people
who have diseases or
conditions associated
with low ARA levels.
	WO 02/10423

	 	Isolation of microbial oils
	 	The extraction of a
microbial or single
cell oil, for example
comprising one or more
polyunsaturated fatty
acids (PUFA’s),
directly form
microbial cells is
disclosed which avoids
the need for solvents.
	WO 02/10322

	 	Purifying crude PUFA oils
	 	A process for
preparing an oil
mixture of an w-6 PUFA
(such as ARA) with w-3
PUFA (such as DHA
and/or EPA is
described which can be
included into edible
formulations such as
foodstuffs, and in
particular infant
formulas.
	WO 04/001021

	 	Pasteurization of biomass
	 	An improved
pasteurization
protocol for
pasteurizing microbial
cells is disclosed.
The protocol has three
stages, a first
heating stage, a
second plateau stage
at which the cells are
held at a (maximum
and) constant
temperature, and a
third cooling stage.
	WO 04/009827

	 	Preparation of microbial oil
	 	The present invention
provides a process for
the production of a
microbial oil,
comprising culturing a
micro-organism in a
two-stage process
where, in a last stage
that precedes the end
of fermentation, the
carbon source is: consumed by the
micro-organisms at a
rate greater than it
is added to the
medium; added at a
rate < 0.30 M
carbon/kg medium; or
is rate limiting on
the growth of the
micro-organism. The
Micro-organism thus
have the carbon source
restricted so that
they preferentially
metobolise fats or
lipids other than
arachidonic acid
(ARA), so increasing
th proportion of ARA
in the cells. A
microbial oil is then
recovered from the
micro-organism, using
hexane as a solvent,
that has at least 50 %
ARA and at least 90 %
triglycerides.
	WO 98/37179A2

	 	Fermentative production of
valuable compounds on an
industrial scale using
chemically defined media
	 	A process for the
production of a
valuable compound,
comprising the steps
of: fermentation of a
microbial strain on an
industrial scale in a
fermentation medium
which is a chemically
defined medium
essentially composed
of chemically defined
constituents, and
recovery of the
valuable compound from
the fermentation
broth.








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.55

DSM KNOW-HOW




Status: Technology in place for large scale ARA production



Main process characteristics: process scale: *,




*

productivity: *

high quality oil:*

*:




*

*

*

*



Main fields of expertise:




Strains:





	 	•	 	A number of ARA producing strains of different organisms







	 	•	 	Main line of producers: Mortierella alpina






Fermentation technology:





	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*

	 
	 	•	 	*






Pasteurization technology:





	 	•	 	*







	 	•	 	*







	 	•	 	*






Downstream processing:





	 	•	 	*







	 	•	 	*







	 	•	 	*






Extraction of biomass:





	 	•	 	*

	 
	 	•	 	*






Process developments developed, not implemented:





	 	•	 	*







	 	•	 	*








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




Toxicology, safety studies:





	 	•	 	*







	 	•	 	*







	 	•	 	*






Nutrition:





	 	•	 	*







	 	•	 	*






Application areas:





	 	•	 	*






New fields of investigation:




Increase fermentation efficiency:





	 	•	 	*







	 	•	 	*







	 	•	 	*







	 	•	 	*






Downstream processing:





	 	•	 	*







	 	•	 	*







	 	•	 	*






Extraction:





	 	•	 	*








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.64

EXCLUDED SUBJECT MATTER




	 	 	 	 	 	 	 	 	 	 	 
	SR No./ Huntion	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	No./ Rothwell No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000106

	 	AU
	 	661297 
	 	7-Nov-1995
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000109

	 	BR
	 	PI920526-5 
	 	22-Jan-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Appealed
	62611.000110

	 	CA
	 	2101274 
	 	15-Dec-1998
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000358

	 	EP
	 	07075341.3 
	 	22-Jan-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Published
	62611.000354

	 	EP
	 	07002670.3 
	 	22-Jan-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Published
	62611.000387

	 	EP
	 	8005794.6 
	 	22-Jan-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Published
	62611.000380

	 	HK
	 	08102811.5 
	 	11-Mar-2008
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Published
	62611.000118

	 	ID
	 	ID0000174 
	 	20-Jun-1995
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000120

	 	IL
	 	114253 
	 	14-Oct-1997
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000119

	 	IL
	 	100733 
	 	1-Apr-1996
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000133

	 	KR
	 	321543 
	 	9-Jan-2002
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000135

	 	KR
	 	313987 
	 	25-Oct-2001
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000137

	 	LK
	 	10526 
	 	17-Jun-1994
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000127

	 	NZ
	 	241359 
	 	16-Feb-1995
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000129

	 	PH
	 	1992-43812 
	 	23-Nov-2001
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000130

	 	RU
	 	2093996 
	 	27-Oct-1997
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000131

	 	SG
	 	49307 
	 	10-Jan-2002
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000141

	 	US
	 	5374657 
	 	20-Dec-1994
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000142

	 	US
	 	5550156 
	 	27-Aug-1996
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	62611.000128

	 	WO
	 	PCT/US92/00522
	 	22-Jan-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Nat Phase
	62611.000132

	 	ZA
	 	PI920526-5 
	 	28-Oct-1992
	 	MICROBIAL OIL MIXTURES AND
USES THEREOF
	 	Granted
	2997-20-PCN

	 	CN
	 	01816395.5 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-PCZ

	 	CZ
	 	2002-2507 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-PEP

	 	EP
	 	0190211935 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-PHU

	 	HU
	 	P0301967 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-PPL

	 	PL
	 	P362 422 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	SR No./ Huntion	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	No./ Rothwell No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-20-TH

	 	TH
	 	063197 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-TW

	 	TW
	 	90101741 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Pending
	2997-20-PUS

	 	US
	 	6,568,351 
	 	27-May-2003
	 	Methods for Raising Rabbits
	 	Granted
	2997-20-PCT

	 	WO
	 	US01/01720 
	 	19-Jan-2001
	 	Methods for Raising Rabbits
	 	Nat Phase
	2997-21-PAU

	 	AU
	 	2001273028 
	 	26-Jun-2001
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PCA

	 	CA
	 	2,413,109 
	 	27-Nov-2007
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-EPDE

	 	DE
	 	60125176.8-08
	 	13-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PEP

	 	EP
	 	EP1299003 
	 	13-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-EPFR

	 	FR
	 	1299003 
	 	13-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-EPGB

	 	GB
	 	1299003 
	 	13-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PHK

	 	HK
	 	03107219.7 
	 	26-Jun-2001
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Published
	2997-21-EPIT

	 	IT
	 	1299003 
	 	13-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PNZ

	 	NZ
	 	523741 
	 	26-Jun-2001
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-TH

	 	TH
	 	066509 
	 	25-Jun-2001
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Pending
	2997-21-TW

	 	TW
	 	268761 
	 	21-Dec-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PUS

	 	US
	 	7,504,121 
	 	17-Mar-2009
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Granted
	2997-21-PUS-3

	 	US
	 	11/560,809 
	 	16-Nov-2006
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Published
	2997-21-PCT

	 	WO
	 	US01/20471 
	 	26-Jun-2001
	 	Improved Methods of
Incorporating
Polyunsaturated Fatty
Acids in Milk
	 	Nat Phase
	2997-31-PAE

	 	AE
	 	PCT/AE 376/2003
	 	14-May-2002
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Pending
	2997-31-PAU

	 	AU
	 	2002303744 
	 	31-Jul-2008
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Granted
	2997-31-PCA

	 	CA
	 	2,446,027 
	 	14-May-2002
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Pending
	2997-31-PEP

	 	EP
	 	02731799.9 
	 	14-May-2002
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Published
	2997-31-PJP

	 	JP
	 	2002-588780 
	 	14-May-2002
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Pending
	2997-31-PMX

	 	MX
	 	252263 
	 	6-Dec-2007
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Granted
	2997-31

	 	US
	 	6,716,460 
	 	6-Apr-2004
	 	Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Granted








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	SR No./ Huntion	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	No./ Rothwell No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-31-PCT

	 	WO
	 	US02/15353 
	 	14-May-2002
	 	A Method of Improving the
Flavor, Tenderness and
Overall Consumer
Acceptability of Poultry
Meat
	 	Nat Phase
	2997-38-CON

	 	US
	 	12/111,844 
	 	29-Apr-2008
	 	Products Containing Highly
Unsaturated Fatty Acids
For Use by Women During
States of Preconception,
Pregnancy and
Lactation/Post-Partum
	 	Published
	2997-46-PAU

	 	AU
	 	2003238264 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Pending
	2997-46-PCA

	 	CA
	 	2489391 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Pending
	2997-46-PEP

	 	EP
	 	03737159.8 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Published
	2997-46-EPHK

	 	HK
	 	05109565.1 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Published
	2997-46-PJP

	 	JP
	 	2004-512524 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Pending
	2997-46-PJP-DIV

	 	JP
	 	2006-144750 
	 	25-May-2006
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Published
	2997-46-PUS

	 	US
	 	10/518,957 
	 	27-Jun-2005
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Pending
	2997-46-PCT

	 	WO
	 	US03/19108 
	 	18-Jun-2003
	 	Stable Emulsions of Oils
in Aqueous Solutions and
Methods for Producing Same
	 	Nat Phase
	62611.000283

	 	AT
	 	0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000176

	 	AU
	 	693450 
	 	5-Nov-1998
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000284

	 	BE
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000177

	 	CA
	 	2164291 
	 	30-Oct-2007
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000377

	 	CA
	 	2596241 
	 	2-Jun-1994
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Pending
	62611.000285

	 	CH
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	SR No./ Huntion	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	No./ Rothwell No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000286

	 	DE
	 	69433713 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000287

	 	DK
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000301

	 	EP
	 	04075413.7 
	 	2-Jun-1994
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Published
	62611.000178

	 	EP
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	EPGrant
	62611.000288

	 	ES
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000289

	 	FR
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000290

	 	GB
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000291

	 	GR
	 	20040401791 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000292

	 	IE
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000293

	 	IT
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000179

	 	JP
	 	501997/95 
	 	2-Jun-1994
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Published
	62611.000381

	 	JP
	 	2007-327930 
	 	19-Dec-2007
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Published
	62611.000294

	 	LU
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000295

	 	MC
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	SR No./ Huntion	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	No./ Rothwell No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000180

	 	MX
	 	263227 
	 	17-Dec-2008
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611-000393

	 	MX
	 	MX/A/2008/013240
	 	31-Oct-2008
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Pending
	62611.000296

	 	NL
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000297

	 	PT
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000298

	 	SE
	 	EP0707487 
	 	14-Apr-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Granted
	62611.000300

	 	US
	 	10/855,488 
	 	28-May-2004
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Published
	62611.000186

	 	US
	 	08/479,809 
	 	7-Jun-1995
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Pending
	62611.000181

	 	WO
	 	PCT/US94/06317
	 	2-Jun-1994
	 	METHODS AND PHARMACEUTICAL
COMPOSITIONS USEFUL FOR
TREATING NEUROLOGICAL
DISORDERS
	 	Nat Phase
	62611.000183

	 	AU
	 	768369 
	 	25-Mar-2004
	 	METHODS FOR CONTROLLING
HIGHLY UNSATURATED FATTY
ACID CONTENT IN VARIOUS
TISSUES
	 	Granted
	62611.000184

	 	EP
	 	96921263.8 
	 	3-Jun-1996
	 	METHODS FOR CONTROLLING
HIGHLY UNSATURATED FATTY
ACID CONTENT IN VARIOUS
TISSUES
	 	Published
	62611.000390

	 	EP
	 	07075522.8 
	 	3-Jun-1996
	 	METHODS FOR CONTROLLING
HIGHLY UNSATURATED FATTY
ACID CONTENT IN VARIOUS
TISSUES
	 	Pending
	62611.000185

	 	IL
	 	122405 
	 	11-Jul-2003
	 	METHODS FOR CONTROLLING
HIGHLY UNSATURATED FATTY
ACID CONTENT IN VARIOUS
TISSUES
	 	Granted
	62611.000187

	 	WO
	 	PCT/US96/08649
	 	3-Jun-1996
	 	METHODS FOR CONTROLLING
HIGHLY UNSATURATED FATTY
ACID CONTENT IN VARIOUS
TISSUES
	 	Nat Phase








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.69

MARTEK FINISHED OIL SPECIFICATIONS




	 	 	 
	ARASCO®

Product Specifications

	 	






	 	 	 
	General Characteristics	 	 
	Description:

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

	 	Free flowing yellow liquid oil (triglyceride)
	Aroma:

	 	Characteristic
	Antioxidants:

	 	*






	 	 	 	 	 
	Chemical Characteristics	 	 	 	Specification
	*

	 	 	 	*
	Free Fatty Acid

	 	 	 	max 0.4 %
	*

	 	 	 	*
	 
	 	 	 	 
	Elemental Composition

	 	 	 	Specification
	*

	 	*	 	 
	*

	 	*	 	 
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	*	 	 
	*

	 	*	 	 
	 
	 	 	 	 
	Fatty Acid Profile, Area %

	 	 	 	Specification
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	*	 	 
	*

	 	 	 	*
	*

	 	 	 	*
	*

	 	 	 	*






Product Storage and Stability




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



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



Ingredients




Fungal Oil; * antioxidants.





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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.77

GUARANTY AGREEMENT




[Please see attached.]






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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




CORPORATE GUARANTY




THIS CORPORATE GUARANTY is made as of this
 _____ 
day of April, 2004, by the parties set forth
below.



WHEREAS, *, a * company (“*”) incorporated under the laws of *, having its registered office
at *, hereinafter to be referred to as: the “Guarantor”;



WHEREAS, DSM Food Specialties B.V., a private limited liability company (“besloten
vennootschap met beperkte aansprakelijkheid”) incorporated under the laws of the Netherlands,
having its registered office at A. Fleminglaan 1 in Delft, the Netherlands (hereinafter to be
referred to as: “DFS”), is a *;



WHEREAS, DFS and Martek Biosciences Corporation, a corporation incorporated under the laws of
the State of Delaware, United States of America, having its principal place of business at 6480
Dobbin Road, Columbia, Maryland 21045, United States of America (hereinafter to be referred to as:
“Martek”), have entered into that certain ARA Alliance, Purchase and Production Agreement dated as
of the date hereof, as may be amended (the “ARA Agreement”);



WHEREAS, the Guarantor and Martek have agreed that the Guarantor shall guarantee the correct
and timely fulfillment by DFS of any and all of DFS’ obligations, undertakings, representations,
warranties and covenants to Martek under or arising out of the ARA Agreement as set forth herein;



NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:



1. Arbitral Award Guaranty.




(a) Subject to the other terms and conditions of this Corporate Guaranty, the Guarantor hereby
unconditionally and irrevocably guarantees payment to Martek of any amount for which DFS may be
found to be indebted to Martek by virtue of a valid arbitral award established in accordance with
the provisions set forth in Section 10.5 of the ARA Agreement including but not limited to
liability for attorneys fees and costs (“Arbitral Award”).



(b) In the event full payment of any Arbitral Award is not received by Martek from DFS within
thirty (30) days of such award being issued, Guarantor shall immediately pay Martek the full amount
of such award without any further action on Martek’s part.



(c) Upon DFS’ failure to pay to Martek the amount of any Arbitral Award within thirty (30) days as
provided above, Guarantor agrees that Martek at its election may proceed directly and at once,
without notice, against Guarantor to collect the amount of the Arbitral Award without first
proceeding against DFS, any other person, or any assets of DFS or of any other person.



(d) This guaranty is absolute, unconditional, and continuing, and is in no way conditioned upon any
event or contingency, other than the issuance of the Arbitral Award, or upon any attempt to collect
from DFS through the commencement of legal proceedings or otherwise, and shall be binding upon and
enforceable in full against Guarantor without regard to any circumstance which might otherwise
constitute a defense available to, or a discharge of, Guarantor in respect of the Arbitral Award,
other then payment in full of the Arbitral Award. Guarantor acknowledges and agrees that the
Arbitral Award shall be binding on Guarantor as if Guarantor were a party to the arbitration
proceeding in which the award was issued.





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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




2. Bankruptcy.




(a) If DFS is declared bankrupt (“faillissement”) or granted suspension of payments (“surséance van
betaling”) and a bankruptcy trustee or a court of competent jurisdiction fails to respect the
arbitration procedures set forth in Section 10.5 of the ARA Agreement or enjoins, stays or
otherwise delays for more than ninety (90) days an arbitration proceeding instituted thereunder,
Martek and the Guarantor shall resolve any claims under the ARA Agreement by arbitration conducted
in accordance with the procedures set forth in such Section 10.5 to determine the indebtedness and
liability of DFS to Martek. Guarantor agrees to pay Martek any amount of such liability or
indebtedness of DFS as established by the arbitration proceeding.



(b) In the event that DFS is the subject of a bankruptcy proceeding, Martek
hereby consents to the Guarantor’s assumption of the defence by DFS of any claim by Martek under
the ARA Agreement.



3. Claims.




Any and all claims under Section 1 of this Corporate Guaranty must be made within * of the date of
any Arbitral Award.



4. Term Date.




This Corporate Guaranty shall continue in full force and effect until the earlier of (i) such date
as all of the statutes of limitations applicable to any cause of action Martek might have against
DFS related to the ARA Agreement have expired or (ii) the date three (3) years after the expiration
or the termination of the ARA Agreement (“Term Date”), provided that this Corporate Guaranty shall
continue in effect even after the Term Date with regard to any Arbitral Award issued as a result of
any arbitration previously commenced by Martek against DFS before the Term Date and not yet
completed as of the Term Date.



5. Licenses.




In the event the licenses granted to Martek by DFS pursuant to Section 7.4(b) and (d) of the ARA
Agreement (the “Licenses”) are terminated as a result of DFS filing for or being placed into
bankruptcy or granted suspension of payments, Guarantor shall obtain promptly for Martek at no cost
to Martek any licenses as required for Martek to continue to have the license rights as specified
in Section 7.4(b) and (d) of the ARA Agreement. Martek reserves any and all statutory, contractual
and other legal rights to retain its rights with respect to the Licenses notwithstanding
termination or rejection in any bankruptcy or insolvency proceeding. It is understood and agreed
that if Guarantor obtains such licenses for Martek, Martek shall not be entitled to claim damages
against DFS, or the Guarantor pursuant to Section 2, for DFS’s failure to itself provide such
Licenses from and after the date(s) on which the Guarantor obtains such licenses for Martek.



6. Limitations.




The obligations of the Guarantor under this Corporate Guaranty shall never exceed the aggregate of
DFS’ obligations and/or liabilities under the ARA Agreement. The liability of the Guarantor
hereunder shall be without regard to a bankruptcy or suspension of payments of DFS, and with regard
solely to any action brought by Martek pursuant to Section 2, any and all defenses and limitations
with respect to DFS’ obligations and/or liabilities under the ARA Agreement, without regard to a
bankruptcy or suspension of payments of DFS, may also be invoked and relied upon by the Guarantor.





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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




7. Article *.



This Corporate Guaranty is in addition to and is not in substitution for or in derogation of any
rights Martek has against the Guarantor pursuant to any declaration in accordance with Article *,
provided, however, that Martek agrees that it shall not be entitled to a double recovery of its
damages, and (i) to the extent that Martek recovers damages in a * Action, it shall not be entitled
to recover such damages again in an action under this Corporate Guaranty, and (ii) to the extent
Martek recovers damages in an action under this Corporate Guaranty, it shall not be entitled to
recover such damages again in a * Action.



8. Notices.




Any notice to be made to the Guarantor under this Corporate Guaranty must be made to:




*


Attn. Chairman of the Managing Board of Directors


***




with a copy to:




*



Attn. Director Corporate Legal Affairs



***



9. Governing Law.




This Corporate Guaranty shall be governed by and interpreted in accordance with the internal laws
(excluding the conflict of laws rules) of the State of New York, USA. The Guarantor hereby
irrevocably submits to the jurisdiction of any United States federal court sitting in New York, New
York in any action or proceeding arising out of or relating to this Corporate Guaranty, and
irrevocably agrees that all claims in respect of such action or proceeding may be heard and
determined in any such federal court. The Guarantor further agrees that service of any process,
summons, notice or document by registered mail to its address set forth in Section 8 above shall be
effective service of process for any action, suit or proceeding brought against the Guarantor in
any such court. The Guarantor irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Corporate Guaranty in such courts
and further irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum. Subject to the provisions of Section 7 hereof, the Guarantor further agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law.



10. Assignment.




This Corporate Guaranty shall be binding upon the successors and assigns of Guarantor; provided,
that no transfer, assignment or delegation by Guarantor without the consent of Martek shall release
Guarantor from its liabilities hereunder.





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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




11. Acknowledgement.




Guarantor acknowledges that this Corporate Guaranty is being furnished to Martek by it in order to
induce Martek to enter into the ARA Agreement with DFS. Guarantor further acknowledges that duly
authorized and competent agents or representatives of Guarantor have read, and understand, this
Corporate Guaranty and that Guarantor has been advised by competent counsel with regard to this
Corporate Guaranty.



12. No Waiver.




No failure or delay or lack of demand, notice or diligence in exercising any right under this
Corporate Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of any other right
under this Corporate Guaranty.



13. Confession of Judgment.




Upon the failure or refusal of the Guarantor to pay in full the amount of any Arbitral Award upon
demand therefor, the Guarantor hereby authorizes the Clerk of Court of record in the federal court
sitting in Baltimore, Maryland, upon application by Martek, to enter judgment in favor of Martek
and against the Guarantor in the full outstanding amount of the Arbitral Award together with
interest accrued on the Arbitral Award at the rate of six percent (6%) per year from the date of
the Arbitral Award until paid, attorneys’ fees of one percent (1%) of the Arbitral Award and costs.
The Guarantor hereby waives presentment, demand, notice and protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or enforcement hereof.



[The remainder of this page has been intentionally left blank.]






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





 


 









 







Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




IN WITNESS WHEREOF, the parties hereto have executed and delivered this Corporate Guaranty as
of the day and year first above written.



*




	 	 	 	 	 	 	 	 	 
	By:

	 	*
	 	By:
	 	*	 	 
	 

	 	 

Name: *
	 	 	 	 

Name: *
	 	 
	 

	 	Title: Member of the Managing Board of Directors
	 	 	 	Title: Director Corporate Legal Affairs	 	 






	 	 	 	 	 
	MARTEK BIOSCIENCES CORPORATION

 	 	 
	By:  	/s/ Steve Dubin
 	 	 
	 	Name:  	Steve Dubin 	 	 
	 	Title:  	President 	 	 





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





 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.104

MARTEK COSTS




Included Costs:




The Martek Costs per Unit of ARA shall equal the Variable Costs for Martek Services per Unit of ARA
plus the Fixed Costs for Martek Services per Unit of ARA. Fixed Costs and Variable Costs shall be
based on Generally Accepted Accounting Principles and shall be based on actual or budgeted costs as
applicable.



The depreciation portion of Fixed Costs shall be based on Martek’s internal depreciation policies
which are generally on a straight line basis for twenty years for the Company’s oil processing
plants, ten to fifteen years for oil processing machinery and equipment and five years for
furniture and fixtures.



The ARA portion of assets not totally dedicated to ARA, other than production assets (such as ERP
systems), shall be depreciated by using the Martek’s internal accounting standards applicable to
Martek operations in general, but still consistent with Generally Accepted Accounting Principles.



Excluded Costs:




The following costs shall not to be included in the Costs for Martek Services per Unit of ARA (the
“Excluded Costs”):




	 	•	 	All costs related to the importing and re-exporting of ARA products sent to DSM that
do not meet applicable Specifications, including but not limited to related freight,
tariffs and warehousing costs.







	 	•	 	Costs related to reworking material that originally did not meet applicable
Specifications pursuant to Section 4.7 of the Agreement.







	 	•	 	Legal costs associated with negotiating and drafting the Alliance Agreement as amended
and the Restated Agreement.







	 	•	 	R&D Contribution pursuant to Section 7.1(d).








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.108

MARTEK PATENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-4-1

	 	US
	 	5,882,703 
	 	16-Mar-1999
	 	Product Containing Mortierella Sect.
Schmuckeri Lipids
	 	Granted
	2997-4

	 	US
	 	5,583,019 
	 	10-Dec-1996
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-1-1

	 	US
	 	6,245,365 
	 	12-Jun-2001
	 	Product Containing Mortierella Sect.
Schmuckeri Lipids
	 	Granted
	2997-4-1-1-1

	 	US
	 	6,319,698 
	 	20-Nov-2001
	 	Method for Producing Arachidonic Acid
	 	Granted
	2997-4-1-1-2

	 	US
	 	6,749,849 
	 	15-Jun-2004
	 	Method for Producing Arachidonic Acid

(as amended)
	 	Granted
	2997-4-1-1-2-1

	 	US
	 	7,195,791 
	 	27-Mar-2007
	 	Method for Production of Archidontic Acid
	 	Granted
	2997-4-1-1-2-1-1

	 	US
	 	11/531,439 
	 	13-Sep-2006
	 	Method for Production of Arachidonic Acid
	 	Published
	2997-4-1-1-2-1-1-C1

	 	US
	 	11/782,466 
	 	24-Jul-2007
	 	Method for Production of Arachidonic Acid
	 	Published
	2997-4-1-1-2-1-1-C2

	 	US
	 	11/782,571 
	 	24-Jul-2007
	 	Method for Production of Arachidonic Acid
	 	Published
	2997-4-1-2

	 	US
	 	6,541,049 
	 	1-Apr-2003
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-AU

	 	AU
	 	711967 
	 	10-Feb-2000
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-CA

	 	CA
	 	2163278 
	 	20-Nov-1995
	 	Method for Production of Arachidonic Acid
	 	Pending
	2997-4-EP

	 	EP
	 	EP0726321 
	 	12-Jun-2002
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-EPDE

	 	DE
	 	69621663.9-08
	 	12-Jun-2002
	 	Arachidonic Acid
	 	Granted
	2997-4-EP-DIV-1

	 	EP
	 	6008737.6 
	 	16-Jan-1996
	 	Method for Production of Arachidonic Acid
	 	Published
	2997-4-EP-DIV-HK

	 	HK
	 	2106865.7 
	 	16-Jan-1996
	 	Method for Production of Arachidonic Acid
	 	Pending
	2997-4-EPFR

	 	FR
	 	EP0726321 
	 	12-Jun-2002
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-EPGB

	 	GB
	 	EP0726321 
	 	12-Jun-2002
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-EPIT

	 	IT
	 	EP0726321 
	 	12-Jun-2002
	 	Method for Production of Arachidonic Acid
	 	Granted
	2997-4-JP

	 	JP
	 	7-314330 
	 	1-Dec-1995
	 	Method for Production of Arachidonic Acid
	 	Pending
	2997-4-JP-DIV-2

	 	JP
	 	2007-336075 
	 	27-Dec-2007
	 	Method for Production of Arachidonic Acid
	 	Published
	2997-19-PAU-1-1

	 	AU
	 	2008229885 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PAU-1

	 	AU
	 	2005202980 
	 	30-Jun-2008
	 	Solventless Extraction Process
	 	Granted
	2997-19-PAU

	 	AU
	 	780619 
	 	7-Apr-2005
	 	Solventless Extraction Process
	 	Granted
	2997-19-PBR

	 	BR
	 	PI0107699-0 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PCA

	 	CA
	 	2,397,665 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PCN

	 	CN
	 	zk01806424.8 
	 	11-Feb-2009
	 	Solventless Extraction Process
	 	Granted
	2997-19-PCN-DIV

	 	CN
	 	200810184934.X
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PCZ

	 	CZ
	 	2002-2506 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PEP

	 	EP
	 	1942672.5 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PHK

	 	HK
	 	03102740.6 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Published
	2997-19-PHU

	 	HU
	 	P0300556 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PID

	 	ID
	 	WO0200201683 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PIL

	 	IL
	 	150772 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-19-PIN-1

	 	IN
	 	6878/DELNP/2006
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PIN

	 	IN
	 	2002/00711/DEL
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PJP

	 	JP
	 	4020642 
	 	5-Oct-2007
	 	Solventless Extraction Process
	 	Granted
	2997-19-PJP-1

	 	JP
	 	2005-137044 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Published
	2997-19-PKR

	 	KR
	 	2002-7009287 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PMX-1

	 	MX
	 	PA/a/2005/009334
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PMX

	 	MX
	 	232230 
	 	18-Nov-2005
	 	Solventless Extraction Process
	 	Granted
	2997-19-PNO

	 	NO
	 	20023449 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PNZ

	 	NZ
	 	520287 
	 	10-May-2004
	 	Solventless Extraction Process
	 	Granted
	2997-19-PPL

	 	PL
	 	P356587 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PPL-1

	 	PL
	 	P387119 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-PRU

	 	RU
	 	2336307 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Granted
	2997-19-PSG

	 	SG
	 	90582 
	 	28-Feb-2006
	 	Solventless Extraction Process
	 	Granted
	2997-19-TH

	 	TH
	 	063198 
	 	22-Jan-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-TW-1

	 	TW
	 	94128361 
	 	8-Mar-2001
	 	Solventless Extraction Process
	 	Pending
	2997-19-TW

	 	TW
	 	I 293648 
	 	21-Feb-2008
	 	Solventless Extraction Process
	 	Granted
	2997-19-1-C3

	 	US
	 	11/782,449 
	 	24-Jul-2007
	 	Solventless Extraction Process
	 	Published
	2997-19-1-C2

	 	US
	 	11/782,434 
	 	24-Jul-2007
	 	Solventless Extraction Process
	 	Published
	2997-19-1-C1

	 	US
	 	11/782,416 
	 	24-Jul-2007
	 	Solventless Extraction Process
	 	Published
	2997-19

	 	US
	 	6,750,048 
	 	15-Jun-2004
	 	Solventless Extraction Process
	 	Granted
	2997-19-1

	 	US
	 	7,351,558 
	 	1-Apr-2008
	 	Solventless Extraction Process
	 	Granted
	2997-19-PCT

	 	WO
	 	US01/01806 
	 	19-Jan-2001
	 	Solventless Extraction Process
	 	Nat Phase
	2997-19-PZA

	 	ZA
	 	2002/5790 
	 	23-Sep-2003
	 	Solventless Extraction Process
	 	Granted
	2997-42-PAU-DIV

	 	AU
	 	2009200718 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
from Oil Seed and Microbia Sources
	 	Pending
	2997-42-PAU

	 	AU
	 	2002366642 
	 	26-Mar-2009
	 	Extraction and Winterization of Lipids
From Oil Seed and Microbial Sources
	 	Granted
	2997-42-PCA

	 	CA
	 	2469647 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
From Oil Seed and Microbial Sources
	 	Pending
	2997-42-PCN

	 	CN
	 	ZL02828043.1
	 	2-Aug-2006
	 	Extraction and Winterization of Lipids
from Oilseed and Microbial Sources
	 	Granted
	2997-42-PEP

	 	EP
	 	02791414.2 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
from Oilseed and Microbial Sources
	 	Published
	2997-42-PJP

	 	JP
	 	2003-550880 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
from Oilseed and Microbial Sources
	 	Published
	2997-42-PNO

	 	NO
	 	20042929 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
From Oilseed and Microbial Sources
	 	Pending
	2997-42-PUS

	 	US
	 	7,419,596 
	 	2-Sep-2008
	 	Extraction and Winterization of Lipids
From Oilseed and Microbial Sources
	 	Granted
	2997-42-PUS-1

	 	US
	 	12/184,974 
	 	1-Aug-2008
	 	Extraction and Winterization of Lipids
From Oilseed and Microbial Sources
	 	Published
	2997-42-PCT

	 	WO
	 	US02/39930 
	 	12-Dec-2002
	 	Extraction and Winterization of Lipids
from Oilseed and Microbial Sources
	 	Nat Phase
	2997-45-PAU

	 	AU
	 	2003237182 
	 	8-Jan-2009
	 	High-Quality Lipids and Methods for
Producing by Enzymatic Liberation form
Biomass
	 	Granted
	2997-45-PAU-1

	 	AU
	 	2008252072 
	 	3-May-2003
	 	High-Quality Lippids and Methods for
Producing by Enzymatic Liberation from
Biomass
	 	Pending








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-45-PCA

	 	CA
	 	2484334 
	 	3-May-2003
	 	High-Quality Lipids and Methods for
Producing by Enzymatic Liberation From
Biomass
	 	Pending
	2997-45-PEP

	 	EP
	 	03736552.5 
	 	3-May-2003
	 	HIGH-QUALITY LIPIDS AND METHODS FOR

PRODUCING BY ENZYMATIC LIBERATION FROM

BIOMASS
	 	Published
	2997-45-1

	 	US
	 	10/971,723 
	 	22-Oct-2004
	 	Methods for Producing Lipids by

Liberation from Biomass
	 	Published
	2997-45-PUS

	 	US
	 	10/513,576 
	 	11-Oct-2005
	 	High-Quality Lipids and Methods for
Producing by Enzymatic Liberation From
Biomass
	 	Published
	2997-45-PCT

	 	WO
	 	PCT/US03/14177
	 	3-May-2003
	 	High-Quality Lipids and Methods for
Production by Enzymatic Liberation from
Biomass
	 	Nat Phase
	2997-46-PAU

	 	AU
	 	2003238264 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Pending
	2997-46-PCA

	 	CA
	 	2489391 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Pending
	2997-46-PEP

	 	EP
	 	03737159.8 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Published
	2997-46-EPHK

	 	HK
	 	05109565.1 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Published
	2997-46-PJP

	 	JP
	 	2004-512524 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Pending
	2997-46-PJP-DIV

	 	JP
	 	2006-144750 
	 	25-May-2006
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Published
	2997-46-PUS

	 	US
	 	10/518,957 
	 	27-Jun-2005
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Pending
	2997-46-PCT

	 	WO
	 	US03/19108 
	 	18-Jun-2003
	 	Stable Emulsions of Oils in Aqueous
Solutions and Methods for Producing Same
	 	Nat Phase
	62611.000324-AT

	 	AT
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000009

	 	AU
	 	661674 
	 	21-Nov-1995
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-BE

	 	BE
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000012

	 	BR
	 	PI9205519.2 
	 	22-Jan-1992
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Appealed
	62611.000013

	 	CA
	 	2101273 
	 	2-Apr-2002
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-CH

	 	CH
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-DE

	 	DE
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-DK

	 	DK
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000352

	 	EP
	 	06077261.3 
	 	22-Jan-1992
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000324

	 	EP
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	EPGrant
	62611.000324-ES

	 	ES
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-FR

	 	FR
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-GB

	 	GB
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-GR

	 	GR
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000378

	 	HK
	 	07113851.4 
	 	19-Dec-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000021

	 	ID
	 	ID0000393 
	 	22-Dec-1995
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000022

	 	IL
	 	100732 
	 	1-Oct-1995
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-IT

	 	IT
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-LU

	 	LU
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-MC

	 	MC
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000124

	 	MX
	 	183638 
	 	6-Jan-1997
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000027

	 	MX
	 	202940 
	 	6-Jul-2001
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-NL

	 	NL
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000030

	 	NZ
	 	241358 
	 	8-Feb-1995
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000032

	 	PH
	 	1992-43811 
	 	22-Aug-2002
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000033

	 	RU
	 	2120998 
	 	22-Jan-1992
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000324-SE

	 	SE
	 	EP1642983 
	 	11-Apr-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000057

	 	US
	 	5658767 
	 	19-Aug-1997
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000031

	 	WO
	 	PCT/US92/00517
	 	22-Jan-1992
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Nat Phase
	62611.000034

	 	ZA
	 	92/0454 
	 	28-Oct-1992
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000273

	 	AT
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000043

	 	AU
	 	713567 
	 	16-Mar-2000
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000274

	 	BE
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000359

	 	BR
	 	PI9612999-9 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending
	62611.000044

	 	BR
	 	PI9607179-6 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000045

	 	CA
	 	2209513 
	 	28-May-2002
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000272

	 	CH
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000321

	 	CN
	 	 	200510071295.2	 	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000046

	 	CN
	 	96192002.5 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000397

	 	CN
	 	 	200910006766.X	 	 	3-Jan-1996
	 	Arachidonic Acid and Methods for the
Production and Use Thereof
	 	Pending
	62611.000271

	 	DE
	 	69627816.2 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000275

	 	DK
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000058

	 	EA
	 	001036 
	 	28-Aug-2000
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000048

	 	EP
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	EPGrant
	62611.000260

	 	EP
	 	03076254.6 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000276

	 	ES
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000347

	 	FI
	 	20060617 
	 	26-Jun-2006
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000049

	 	FI
	 	117442 
	 	13-Oct-2006
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000270

	 	FR
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000269

	 	GB
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000268

	 	GR
	 	20030402977 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000346

	 	HK
	 	06105700.4 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000299

	 	HK
	 	04101355.3 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000267

	 	IE
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000266

	 	IT
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000326

	 	JP
	 	2009-80997 
	 	30-Mar-2009
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending
	62611.000401

	 	JP
	 	2009-80997 
	 	30-Mar-2009
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending
	62611.000050

	 	JP
	 	4014219 
	 	21-Sep-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000325

	 	JP
	 	2005-368593 
	 	21-Dec-2005
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000326

	 	JP
	 	2007-158505 
	 	15-Jun-2007
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Published
	62611.000348

	 	KR
	 	10-2006-7015060
	 	26-Jul-2006
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending
	62611.000357

	 	KR
	 	10-2008-7015041
	 	20-Jun-2008
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Pending
	62611.000265

	 	LU
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000263

	 	MC
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000051

	 	MX
	 	234429 
	 	13-Feb-2006
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000264

	 	NL
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	62611.000052

	 	NO
	 	320117 
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000054

	 	PL
	 	187694 
	 	14-Jan-2004
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000261

	 	PT
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000262

	 	SE
	 	EP0800584 
	 	2-May-2003
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000055

	 	SG
	 	42669 
	 	30-Mar-1999
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Granted
	62611.000053

	 	WO
	 	PCT/US96/00182
	 	3-Jan-1996
	 	ARACHIDONIC ACID AND METHODS FOR THE

PRODUCTION AND USE THEREOF
	 	Nat Phase
	62611.000105

	 	US
	 	6166231 
	 	26-Dec-2000
	 	TWO PHASE EXTRACTION OF OIL FROM BIOMASS
	 	Granted
	2997-33-PAE

	 	AE
	 	PCT/AE 378/2003
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Pending
	2997-33-PAU-DIV

	 	AU
	 	2009200194 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Moeified
Plant Seeds and Marine Organisms
	 	Pending
	2997-33-PAU

	 	AU
	 	2002309856 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Published
	2997-33-PCA

	 	CA
	 	2,451,116 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Pending
	2997-33-PEP

	 	EP
	 	02736881.0 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Published
	2997-33-PJP

	 	JP
	 	2002-589426 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Published








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application or	 	Appl. Date or	 	 	 	 
	SR/ No./ Hunton No.	 	Country	 	Patent Number	 	Date Issued	 	Title of Patent	 	Status
	2997-33-PJP-DIV

	 	JP
	 	2007-289167 
	 	21-Oct-2004
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Published
	2997-33-PMX

	 	MX
	 	PA/a/2003/010399
	 	14-May-2002
	 	Production and Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
From Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Pending
	2997-33-PUS

	 	US
	 	10/457,066 
	 	21-Oct-2004
	 	Production and Use of a Polar Lipid-Rich
Fraction
	 	Pending
	2997-33-PCT

	 	WO
	 	US02/15454 
	 	14-May-2002
	 	Production of Use of a Polar Lipid-Rich
Fraction Containing Omega-3 and/or
Omega-6 Highly Unsaturated Fatty Acids
from Microbes, Genetically Modified
Plant Seeds and Marine Organisms
	 	Nat Phase





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




 


 











 




Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.109

MARTEK KNOW-HOW




Main fields of expertise:




Strains and strain improvement methodologies:





	 	•	 	Strains identified with significantly higher productivity and ARA potency than the *







	 	•	 	*







	 	•	 	*






Fermentation:





	 	•	 	*







	 	•	 	*






Downstream Processing:





	 	•	 	*







	 	•	 	*







	 	•	 	*







	 	•	 	*







	 	•	 	*







	 	•	 	*






Product Formulation:





	 	•	 	*







	 	•	 	*






Product Characterization:





	 	•	 	*






Transgenic Oilseeds:





	 	•	 	*






Feed Applications:





	 	•	 	*







	 	•	 	*







	 	•	 	*







	 	•	 	*






Ingredient Forms:





	 	•	 	*







	 	•	 	*






Product Safety and Toxicology:





	 	•	 	*







	 	•	 	*






Product Efficacy & Health Benefits:





	 	•	 	*








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










 


 









 










Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 2.118

* CUSTOMERS





	 	1.	 	*







	 	2.	 	*







	 	3.	 	*







	 	4.	 	*








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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 4.2(a)

DSM BIOMASS CERTIFICATE OF ANALYSIS




	 	 	 	 	 
	

	 	Certificate of Analysis
	 	ARA-CoA-004M
	 	ARA Biomass
	 	Revision 1
	 	 	 	13 July 2009






Product no: 2984




	 	 	 	 	 	 
	Parameters	 	Requirements	 	Result
	Description
	 	Granulate	 	 	 
	Smell
	 	Characteristic	 	 
	Color
	 	Brown	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 
	*
	 	*	 	 	 





Storage:




	 	•	 	Below -2°C +/- 3°C, preferably lower temperatures

	 
	 	•	 	Protected from light

	 
	 	•	 	Dry conditions






Packaging:




	 	•	 	Big Bags (polypropylene with polyethylene liner), anti static

	 
	 	•	 	Labeled with product number, batch number, production number, production date and storage conditions on both inner and outer bag






*


Remarks




	 	 	 
	 

	 	 
	Date:

	 	QA-Manager:








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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 4.2(b)

MARTEK FINISHED OIL CERTIFICATE OF ANALYSIS




	 	 	 	 	 	 	 
	

	 	Certificate of Analysis
	 
	 	 	 	 	 	 
	 

	 	ARASCO®
	 
	 	 	 	 	 	 
	 

	 	Arachidonic Acid
	 
	 	 	 	 	 	 
	 

	 	Lot No.
	 	 	 	*
	 
	 	 	 	 	 	 
	 

	 	Country of Origin
	 	 	 	United States
	 
	 	 	 	 	 	 
	 

	 	Date of Manufacture
	 	 	 	*
	 
	 	 	 	 	 	 
	 

	 	Expiration Date (frozen, -20oC)
	 	 	 	*






	 	 	 
	General Characteristics	 	 
	 
	 	 
	Description:

	 	Vegetable oil from fungi, which contains approximately 40% Arachidonic Acid (ARA)
	Appearance:

	 	Clear, free flowing yellow liquid oil (triglyceride) at 40oC
	Aroma

	 	Characteristic
	Antioxidants

	 	*






	 	 	 	 	 	 	 
	Chemical Characteristics	 	Units	 	Specification	 	Result
	 
	Arachidonic Acid
	 	Area %	 	*	 	*
	Arachidonic Acid
	 	mg/g	 	— *	 	*
	*
	 	%	 	*	 	*
	Free Fatty Acid
	 	%	 	max 0.4	 	*
	*
	 	meq/kg	 	*	 	*
	*
	 	%	 	*	 	*
	*
	 	%	 	*	 	*
	*
	 	%	 	*	 	*
	*
	 	%	 	*	 	*






	 	 	 	 	 	 	 
	Elemental Composition	 	Units	 	Specification	 	Result
	 
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*
	*
	 	ppm	 	*	 	*






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fatty Acid Profile	 	Units	 	 	Specification	 	 	Result	 
	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 
	*
	 	Area %	 	 	*	 	 	 	*	 








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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 
	Martek Biosciences Corporation certifies this product is vegetable oil from fungi, which
contains approximately 40% Arachidonic Acid (ARA), and meets the product specifications as
outlined above. ARASCO® is Kosher and Halal Certified and is BSE/TSE free.
	 	Released By:

 

 	 	Jennifer Zaffarano
Release Specialist I

 








	 	 	 
	*	 	Martek will endorse the results of this Certificate of Analysis for a period of up to three years from the date of manufacture if the material is stored frozen (~-20°C) in the original, unopened containers.
Beyond three years, we recommend the quality of the material be confirmed prior to use, by retesting the Certificate of Analysis parameters.





	 	 	 	 	 	 	 
	Martek Biosciences Corporation

	 	Martek Biosciences Boulder Corporation
	 	Martek Biosciences Kingstree Corporation
	 	Martek Biosciences Corporation
	6480 Dobbin Road

	 	4909 Nautilus Court North
	 	1416 N. Williamsburg County Highway
	 	555 Rolling Hills Lane
	Columbia, MD 21045

	 	Boulder, CO 80301
	 	Kingstree, SC 29556
	 	Winchester, KY 40391
	(800) 662-6339

	 	(303) 381-8100
	 	(843) 381-8485
	 	(859) 744-0920
	(410) 740-0081

	 	Research and Development
	 	Manufacturing
	 	Manufacturing
	Customer Service
	 	 	 	 	 	 








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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 4.6(a)

MANUFACTURING CHANGES



A. Documentation: All process changes must be documented and approved by management level
representatives from the departments applicable to the process change, including but not limited
to, Process Development, Manufacturing, and Quality Assurance. DSM and Martek will each maintain a
log of all process changes, which will be accessible to the other party. Process changes are
permanent modifications made to the manufacturing and testing processes. Temporary process
deviations will be appropriately documented by each party in the applicable production and testing
records and addressed by the Committee.



B. Major vs. minor changes: Changes are categorized as “minor” or “major” process changes, as
summarized in the examples below:





	 	•	 	Minor changes (Any change that has an impact to yield or process efficiency)







	 	•	 	Fermentation — *.

	 
	 	•	 	Pasteurization, Filtration, Extrusion and Drying — *.

	 
	 	•	 	Extraction and RBD — *.







	 	•	 	Major changes (Any change that has or may have a detectable and significant
effect on final product properties as specified in the product specification forms)







	 	•	 	Fermentation — *.

	 
	 	•	 	Pasteurization, Filtration, Extrusion and Drying — *.

	 
	 	•	 	Extraction and RBD — *.





All changes not specified above must be discussed by the Quality Subcommittee with recommendation
to the Steering Committee as appropriate.




C. Customer notification requirements:





	 	•	 	Both parties will provide pre-notification of any change to production controls,
processes and test methods to allow the other party to determine if a change is major or
minor prior to implementation.







	 	•	 	All major process and test method changes require approval of the other party prior to
implementation.







	 	•	 	Martek is responsible to determine if and when process or test method changes require
customer notification within the Martek ARA Fields of Use.







	 	•	 	Martek is responsible to determine if and when a process or test methods change requires
regulatory review within the Martek ARA Fields of Use.






Version 4 — Modified July 13, 2009






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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 4.6(b)

QUALIFICATION REQUIREMENTS




	 	 	 	 	 
	Physical Description	 	 	 	Method
	Description:

	 	Vegetable oil from m. alpina fungi	 	 
	Appearance:

	 	Clear, free-flowing liquid at 40° C
	 	Visual
	Color:

	 	Light-medium yellow
	 	Visual
	Odor:

	 	Characteristic (1)
	 	Sensory panel evaluation






	 	 	 	 	 	 	 	 	 
	Fatty Acid Composition	 	 	 	 	 	Sensory Limits (1)	 	 
	*
	 	*	 	*	 	*	 	 
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	 
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	*	 	*
	*
	 	*	 	*	 	 	 	 
	*
	 	*	 	*	 	Stability	 	 
	*
	 	*	 	*	 	*	 	 
	Others
	 	—	 	*	 	 	 	 






	 	 	 	 	 	 	 	 	 
	Chemical Analyses	 	Units	 	Minimum	 	Maximum	 	Method
	*
	 	mg/g	 	*	 	*	 	*
	*
	 	%	 	*	 	*	 	*
	*
	 	meq/kg	 	*	 	*	 	*
	*
	 	—	 	*	 	*	 	*
	*
	 	—	 	*	 	*	 	*
	*
	 	%	 	*	 	*	 	*
	*
	 	%	 	*	 	*	 	*
	*
	 	%	 	*	 	*	 	*
	*
	 	%	 	*	 	*	 	*
	 
	Elemental Analyses
	 	 	 	 	 	 	 	 
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*
	*
	 	ppm	 	*	 	*	 	*








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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 6.1-A

BELVIDERE USAGES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Variable Cost Component	 	UOM	 	2009	 	2010	 	2011	 	2012	 	2013	 	2014
	 
	Dextrose
	 	Kg/Unit	 	*	 	*	 	*	 	*	 	*	 	*
	Yeast Extract
	 	Kg/Unit	 	*	 	*	 	*	 	*	 	*	 	*
	Electricity
	 	kWh/Unit	 	*	 	*	 	*	 	*	 	*	 	*
	Natural Gas
	 	Dthm/Unit	 	*	 	*	 	*	 	*	 	*	 	*





The total of all other Variable Cost Components will be equal to $*/ Unit for each year (2010
- 2014). The Usages listed above are subject to adjustment based on the provisions of
Sections 4.3(b), 4.6(d), and 6.3(c).






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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 6.1-B

2009 DSM VARIABLE COSTS PER UNIT OF ARA




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Capua	 	Units	 	 	Rate	 	 	Usage/Unit	 	 	Cost/Unit	 
	Dextrose
	 	€/Kg	 	 	*	 	 	 	*	 	 	 	*	 
	Yeast Extract
	 	€/Kg	 	 	*	 	 	 	*	 	 	 	*	 
	Electricity
	 	€/kWh	 	 	*	 	 	 	*	 	 	 	*	 
	Natural Gas
	 	€/mc	 	 	*	 	 	 	*	 	 	 	*	 
	Other
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	 
	 
	 	 	 	 	 	 	 	 	 	@ $*/€	 	 	*	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Belvidere	 	Units	 	 	Rate	 	 	Usage/Unit	 	 	Cost/Unit	 
	Dextrose
	 	$/Kg	 	 	*	 	 	 	*	 	 	 	*	 
	Yeast Extract
	 	$/Kg	 	 	*	 	 	 	*	 	 	 	*	 
	Electricity
	 	$/kWh	 	 	*	 	 	 	*	 	 	 	*	 
	Natural Gas
	 	$/Dthm	 	 	*	 	 	 	*	 	 	 	*	 
	Other
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 






	 	 	 	 	 	 	 	 	 
	 	 	2009 Volume (MT)	 	 	Total Cost (000s)	 
	Capua	 	 	*	 	 	 	*	 
	Belvidere	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 
	 Total	 	 	*	 	 	 	*	 
	 
	Weighted average Variable Cost per Unit of ARA
	 	 	 	 	 	 	*	 








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






 


 











 




Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 6.2-A

2009 QUARTERLY RECONCILIATION FORMAT




2009 Quarterly Reconciliation




	 	 	 	 	 	 	 	 	 
	Total (Credit)/Debit
	 	€	*	 	 	€	*	 






2009 Budgeted Price per Kg of 40% ARA Crude Oil



	 	 	 	 	 	 	 	 	 
	DSM Fixed Costs
	 	 	 	 	 	$	*	 
	DSM Variable Costs
	 	 	 	 	 	$	*	 
	DSM Mark Up
	 	 	 	 	 	$	*	 
	 
	 	 	 	 	 	 
	Budgeted Price (Kg)
	 	€	*	 	 	$	*	 
	 
	 
	 	 	*	 	 	 	*	 
	 
	 	 	-	 	 	 	-	 
	Conversion Factor (Biomass:Crude Oil)
	 	 	*	 	 	 	*	 
	Budgeted Biomass Price (Kg)
	 	€	*	 	 	$	*	 






Volume and Currency Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil Extracted (Kg)
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	* Volume Split
	 	 	*	 	 	 	*	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Amounts Due
	 	€	*	 	 	$	*	 	 	 	 	 	 	 	 	 
	Invoice Amounts Paid
	 	€	*	 	 	$	*	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit
	 
	 	 	 	 	 	 	 	 	 	€	*	 	 	(Credit)/Debit






Rate Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Budgeted	 	 	 	 	 	 	 	 	 	 	 
	*	 	Budget Rate	 	 	Actual Rate	 	 	Usage	 	 	 	 	 	Delta	 	 	 	 	 
	*
	 	€	*	 	 	€	*	 	 	 	*	 	 	 	 	 	 	€	*	 	 	 	 	 
	*
	 	€	*	 	 	€	*	 	 	 	*	 	 	 	 	 	 	€	*	 	 	 	 	 
	*
	 	€	*	 	 	€	*	 	 	 	*	 	 	 	 	 	 	€	*	 	 	 	 	 
	*
	 	€	*	 	 	€	*	 	 	 	*	 	 	 	+	 	 	€	*	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	€	*	 	 	Total Delta
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	X	 	 	 	*	 	 	Crude Oil (Kg)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	€	*	 	 	(Credit)/Debit
	*
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	 	 	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	 	 	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	 	 	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	 	 	 	 	$	*	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	Total Delta
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	Crude Oil (Kg)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




RBD Yield Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil In (Kg)
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Finished Oil Out (Kg)
	 	 	*	 	 	 	*	 	 	Yield	 	 	 	 	 	 	 	 
	Total 40% Finished Oil Expected (Kg)
	 	 	*	 	 	 	*	 	 	Yield	 	 	 	 	 	 	 	 
	 
	 	 	-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	40% Finished Oil Difference
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	40% Crude Oil Difference
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	50% of Variable Costs
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100% of DSM Mark Up
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	50% Variable Cost + 100% DSM Mark Up
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit






	 	 	 	 	 	 	 	 	 
	Martek Profit Sharing Fee (Q4 only)
	 	$	*	 	 	Debit
	 
	 	 	 	 	 	 	 	 
	DSM ARA Field of Use & Adult ARA Applications Royalty (Q4 only)
	 	$	*	 	 	(Credit)






Adjusted Annual Fixed Costs Reconciliation (Q4 only)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil Delivered to Martek (Kg)
	 	 	*	 	 	(excluding Carryover Units)	 	 	 	 
	Total 40% Crude Oil Produced by DSM (Kg)
	 	 	*	 	 	(excluding Carryover Units)	 	 	 	 
	 
	 	 	*	 	 	 	 	 	 	 	 	 
	 
	 	 	 
	Agreed Annual Fixed Costs
	 	$	*	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Adjusted Annual Fixed Costs
	 	$	*	 	 	 	 	 	 	 	 	 
	Aggregate Agreed Annual Fixed Costs per Unit of ARA paid
	 	$	*	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	*	 	 	(Credit)/Debit








	 	 	 
	Note:	 	the above reconciliation format example illustrates common calculations, but does not include all possible reconciliation lines.

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




 


 









 









Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




SCHEDULE 6.2-B

2010-2014 QUARTERLY RECONCILIATION FORMAT




2010 Quarterly Reconciliation



	 	 	 	 	 	 	 	 	 
	Total (Credit)/Debit
	 	€	*	 	 	€	*	 






2010 Budgeted Price per Kg of 40% ARA Crude Oil



	 	 	 	 	 	 	 	 	 
	DSM Fixed Costs
	 	 	 	 	 	$	*	 
	DSM Variable Costs
	 	 	 	 	 	$	*	 
	DSM Mark Up
	 	 	 	 	 	$	*	 
	 
	 	 	 	 	 	 
	Budgeted Price (Kg)
	 	€	*	 	 	$	*	 
	 
	 
	 	 	 	 	 	 	*	 
	 
	 	 	-	 	 	 	-	 
	Conversion Factor (Biomass:Crude Oil)
	 	 	 	 	 	 	*	 
	Budgeted Biomass Price (Kg)
	 	 	 	 	 	$	*	 






Volume and Currency Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil Extracted (Kg)
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	25%-75% Volume Split
	 	 	*	 	 	 	*	 	 	 	 	 	 	 	 	 
	 
	Total Amounts Due
	 	€	*	 	 	$	*	 	 	 	 	 	 	 	 	 
	Invoice Amounts Paid
	 	€	*	 	 	$	*	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit
	 
	 	 	 	 	 	 	 	 	 	€	*	 	 	(Credit)/Debit






Rate Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Budgeted	 	 	 	 	 	 	 	 
	*	 	Budget Rate	 	 	Actual Rate	 	 	Usage	 	 	Delta	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	$	*	 	 	 	 	 
	*
	 	$	*	 	 	$	*	 	 	 	*	 	 	$	*	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	Total Delta
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	Crude Oil (Kg)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit






RBD Yield Reconciliation



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil In (Kg)
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Finished Oil Out (Kg)
	 	 	*	 	 	 	*	 	 	Yield	 	 	 	 	 
	Total 40% Finished Oil Expected (Kg)
	 	 	*	 	 	 	*	 	 	Yield	 	 	 	 	 
	 
	 	 	-	 	 	 	 	 	 	 	 	 	 	 	 	 
	40% Finished Oil Difference
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	40% Crude Oil Difference
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	50% of Variable Costs
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	100% of DSM Mark Up
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	50% Variable Cost + 100% DSM Mark Up
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit








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




 


 









 





Schedules to the First Amended and Restated ARA Alliance, Purchase and Production Agreement




	 	 	 	 	 	 	 	 	 
	Martek Profit Sharing Fee (Q4 only)
	 	$	*	 	 	Debit
	 
	DSM ARA Field of Use & Adult ARA Applications Royalty (Q4 only)
	 	$	*	 	 	(Credit)






Adjusted Annual Fixed Costs Reconciliation (Q4 only)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total 40% Crude Oil Delivered to Martek (Kg)
	 	 	*	 	 	(excluding Carryover Units)	 	 	 	 	 	 	 	 
	Total 40% Crude Oil Produced by DSM (Kg)
	 	 	*	 	 	(excluding Carryover Units)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Agreed Annual Fixed Costs
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Adjusted Annual Fixed Costs
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aggregate Agreed Annual Fixed Costs per Unit of ARA paid
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	*	 	 	(Credit)/Debit








	 	 	 
	Note:	 	the above reconciliation format example illustrates common calculations, but does not include all possible reconciliation lines.

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




 


 









 









SCHEDULE 6.3(a)

DSM FIXED COSTS PAYMENT CALCULATION IN THE EVENT OF DSM SHORTFALLS



*
 


 









 






	 	 	 	 	 
	Example 1
	 	 	 	 
	Units of ARA forcasted for purchase (prior Nov)
	 	 	*	 
	Agreed Annual Fixed Costs
	 	$	*	 
	Agreed Annual Fixed Costs per Unit of ARA
	 	$	*	 
	Units of ARA delivered to Martek
	 	 	*	 
	Total Units of ARA produced by DSM
	 	 	*	 
	Ratio of Units of ARA delived to produced
	 	 	*	 
	(A) Adjusted Annual Fixed Costs
	 	$	*	 
	(B) Aggregate sum of DSM Fixed Costs paid
	 	$	*	 
	 	 	 	 
	 
	Difference to be paid to DSM
	 	$	*	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Example 2
	 	Year 1-Q1	 	 	Year 1-Q2	 	 	Year 1-Q3	 	 	Year 1-Q4	 	 	Year 2-Q1	 	 	Year 2-Q2	 	 	Year 2-Q3	 	 	Year 2-Q4
	Units of ARA forcasted for purchase (prior Nov)
	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Agreed Annual Fixed Costs
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Agreed Annual Fixed Costs per Unit of ARA
	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Units of ARA requested in Martek Firm Order
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Units of ARA delivered to Martek
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	DSM Shortfall
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Cumulative four (4) Rolling DSM Shortfall
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Units of ARA delivered to Martek
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	Total Units of ARA produced by DSM
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	Ratio of Units of ARA delived to produced
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	Adjusted Annual Fixed Costs
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	Units of ARA requesed in Martek Firm Orders
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	Shortfall Fixed Costs per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	(A) Adjusted Annual Fixed Costs
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(B) Aggregate sum of DSM Fixed Costs paid
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Difference to be paid to DSM
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	(Credit) to Martek	 	$	*	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Shortfall Fixed Costs
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	Aggregate sum of DSM Fixed Costs paid
	 	 	 	 	 	 	 	 	 	 	*	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	-	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6.3(a)(ii) (Credit)/Debit
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	—	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Units of ARA produced and sold by Martek > 40,000 Units
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	*	 
	Shortfall Fixed Costs per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	x	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	x	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6.3(a)(i)(X)Debit
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DSM Mark Up per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	Adjusted DSM Variable Cost per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 
	Shortfall Fixed Costs per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	+	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sum
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	=	 	 	$	*	 
	Third party price per Unit of ARA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	-	 	 	$	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Difference
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	=	 	 	$	*	 
	Units of ARA produced by a third party and sold by Martek > 40,000 Units
	 		 	 	 	 	 	 	 	 	 	 	*	 	 	 	 	 	 	 	 	 	 	 	x	 	 	 	*	 
	6.3(a)(i)(Y) Debit
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	=	 	 	$	*	 
	 
	Total (Credit)/Debit
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	*	 






 


 









 





SCHEDULE 9.4(d)-1

ANNUAL DEPRECIATION OF UNDEPRECIATED * COSTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009	 	 	2010	 	 	2011	 	 	2012	 	 	2013	 	 	2014	 	 	2015	 	 	2016	 	 	2017	 	 	2018	 
	Total Beginning Book
Value of Undepreciated *
Costs
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fermentors and Equipment
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Phase 1 Project
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Phase 2 Project
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Fire Upgrades
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Building
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Phase 1 Project
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Phase 2 Project
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Additional ARA Investments
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior to 2009
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Ending Book Value
of Undepreciated * Costs
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 






DSM’s capital costs for Approved Expansion Plans and Approved Capital Assets shall be depreciated
on a straight-line basis over a * period starting at the time such expansion is placed into
production. The final amount is subject to verification by Martek including, at Martek’s option, an
independent audit of such amount.


 


 









 





SCHEDULE 9.4(d)-2

ANNUAL DEPRECIATION OF UNDEPRECIATED PRE-2004 COSTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009	 	 	2010	 	 	2011	 	 	2012	 	 	2013	 	 	2014	 	 	2015	 
	Total Beginning Book
Value of Undepreciated
Pre-2004 Costs
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fermentors and Equipment
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Phase 1 Existing
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Phase 2 Existing
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Building
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Phase 1 Existing
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Phase 2 Existing
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Shared Assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pilot Plant
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	Utilities
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Ending Book Value
of Undepreciated
Pre-2004 Costs
	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 	 	 	*	 






The above listed DSM’s capital costs shall be depreciated as indicated above. The final amount is
subject to verification by Martek including, at Martek’s option, an independent audit of such
amount. The shared asset values reflect 50% of the actual book value allocated to Martek.