**EXHIBIT 10.49****SUPPLY AGREEMENT**     THIS SUPPLY AGREEMENT (the “Agreement”) is made as of January 1, 2007 (the “Effective Date”),by and between Abbott Nutrition, a division of Abbott Laboratories, a corporation organized underthe laws of Illinois with offices located at 625 Cleveland Avenue, Columbus, OH 43215 (includingpredecessor and successor entities, subsidiaries, divisions and Affiliates, “PURCHASER”), andMartek Biosciences Corporation, a Delaware corporation with offices located at 6480 Dobbin Road,Columbia, Maryland 21045 (“SELLER”).**WITNESSETH THAT**:     WHEREAS, PURCHASER and SELLER entered into a License Agreement dated as of March31st, 2000, which License Agreement is amended by this Agreement solely to the extentexpressly provided for herein (as so amended, the “License Agreement”), wherein SELLER has grantedto PURCHASER in the Territory (as defined therein) certain rights under Licensed Patents (asdefined therein) and Technology (as defined therein) (A) to produce the Licensee Product (asdefined therein), (B) to use and make the Martek Products (as defined therein) for purposes ofmaking and having made the Licensee Product and (C) to use, market and distribute the LicenseeProduct, in each case as further specified in the License Agreement; and     WHEREAS, PURCHASER wishes to purchase the Martek Products from SELLER; and     WHEREAS, SELLER is willing to supply the Martek Products for use by PURCHASER to manufacture,use, market and distribute the Licensee Product in accordance with the terms of the LicenseAgreement and as otherwise set forth herein; and     WHEREAS, such purchase and supply of the Martek Products shall be subject to the terms andconditions set forth in this Agreement.     NOW, THEREFORE, in consideration of the foregoing premises and of the mutual undertakingsherein contained, the parties agree as follows:**ARTICLE 1.****DEFINITIONS**     Unless defined herein, all capitalized terms will have the meaning stated in the LicenseAgreement, as amended hereby. References herein to SELLER and PURCHASER shall also be deemed asreferences to Licensor and Licensee, respectively, for purposes of the License Agreement.     1.1 * shall mean * as set forth in Exhibit F attached hereto, as such Exhibit may be modifiedby written agreement of the parties.     1.2 * shall mean* as such * may be modified by written agreement of the parties. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 1–

 
     1.3 “ARA” shall mean arachidonic acid.     1.4 “DHA” shall mean docosahexaenoic acid.     1.5 “Growing Up Milk” shall mean nutritionally enhanced milk and soy-milk based productsmarketed to and intended for use by children from twelve (12) through thirty-six (36) months ofage.     1.6 “Martek Product Specifications” shall mean the specifications for the Martek Products tobe supplied hereunder, as set forth in Exhibit C attached hereto, as such Exhibit may be modifiedby written agreement of the parties.     1.7 “Unit of the Martek Product” shall mean that quantity of Martek Products containing one(1) kilogram of DHA, one (1) kilogram of ARA, or one (1) kilogram of ARA and DHA in the aggregate.**ARTICLE 2.****PURCHASE AND SUPPLY OF COMPOUNDS**     2.1 Purchase.     2.1.1 Notwithstanding PURCHASER’s right to make and have made DHA and ARA as provided in theLicense Agreement, during the Term and subject to the terms of this Agreement including withoutlimitation Section 2.7, PURCHASER shall purchase, and/or shall direct the Designee(s) (as definedin Exhibit B hereto) to purchase, from SELLER, PURCHASER’s total requirements of DHA and ARA asrequired by PURCHASER for use in the manufacture of Infant Formula Products in the Territory inaccordance with the terms of the License Agreement and as otherwise set forth herein; provided,however, that such total requirements shall not include PURCHASER’s requirements of DHA and/or ARAfor research and development purposes, or * to the extent not prohibited by this Agreement or theLicense Agreement. For purposes hereof, * includes the * of each formulation of each LicenseeProduct using * reasonably prior to * as part of reasonable efforts to * following *.All quantities of the Martek Products purchased by PURCHASER or any Designee under this Agreementshall be used solely for purposes of manufacture and production of Licensee Products, or forresearch and development purposes related to Infant Formula Products or Growing Up Milk.     2.1.2 PURCHASER agrees that, unless otherwise expressly provided herein, from and after theEffective Date, the provisions of Sections 2.4(i) and 4.1(vi) of the License Agreement shall bedeleted and of no further force or effect, and shall be replaced by the following provisions, whichshall survive termination of this Agreement until any later termination or expiration of theLicense Agreement: -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 2–

 
 (i) SELLER agrees that (A) the price per Unit of Martek Products and thecorresponding price per kilogram, for the same volume of Martek Products for use inInfant Formula Products, charged to PURCHASER have been, since the effective date ofthe License Agreement, * for Martek Products for use in Infant Formula Products, and(B) the per unit and corresponding per kilogram price for Martek Products for use in Infant Formula Products charged to PURCHASER shall, unlessconsented to in writing by PURCHASER or * to PURCHASER, *, continue to be *.  (ii) SELLER shall not enter into * that includes any *, with another company having* greater than * of the * (such * as measured on * basis by * or a mutually agreedreplacement therefor), for DHA and/or ARA for use in Infant Formula Products, with an *unless SELLER pays to PURCHASER*; provided, however, that the foregoing provision shallnot apply with respect to any company that is an * with respect to Infant FormulaProducts operating in * as of the Effective Date, or to any company that has received awritten offer of * within thirty-six (36) months prior to the Effective Date.     2.2 Forecasts and Orders.     2.2.1 On the Effective Date of this Agreement, PURCHASER shall give SELLER written notice ofthe quantity of Martek Products that PURCHASER estimates in good faith it will order or direct theDesignees to order from SELLER during the remainder of the current calendar year. Not later thanSeptember 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice ofthe quantity of Martek Products that PURCHASER estimates in good faith it will order or direct theDesignees to order from SELLER during the next calendar year. In addition to the foregoing, one(1) month before the commencement of each calendar quarter during the Term, PURCHASER shall provideSELLER with a forecast (a “Rolling Forecast”) of PURCHASER’s requirements for the Martek Productsfor each of the succeeding four (4) quarters, specifying quantities and requested delivery dates.These forecasts will be PURCHASER’s good-faith estimate of requirements and shall not be considereda commitment or other obligation of PURCHASER or its Designees to purchase such Martek Products.     2.2.2 PURCHASER and/or its Designees shall issue formal purchase orders (“Purchase Orders”) atleast sixty (60) but no more than ninety (90) days in advance of the date on which PURCHASER or theDesignee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 below. SELLERshall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance withthe terms of this Agreement for up to * of the relevant volumes specified in the Rolling Forecastsprovided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amountsshall be accepted and filled by SELLER as is commercially reasonable.     2.2.3 Purchase Orders submitted in accordance with this Agreement, which have beenacknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to theprovisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 3–

 
the parties. SELLER shall acknowledge all Purchase Orders submitted in accordance with thisAgreement within five (5) business days of SELLER’s receipt of such Purchase Orders.     2.3 Payment Terms.     2.3.1 Price. During the Term, PURCHASER or its Designee(s), as applicable based onwho placed the Purchase Order, shall pay for the Martek Products that it orders and receivesdelivery of in accordance with the terms of this Agreement, at the prices determined in accordancewith Exhibit A attached hereto (the “Purchase Price”). Since the Purchase Price per Unit of MartekProduct is based on an annual volume purchase level, the Purchase Price invoiced for MartekProducts purchased hereunder during a given calendar year shall be set using the annual forecastssubmitted to SELLER by PURCHASER on September 30th of the prior calendar year inaccordance with Section 2.2.1, subject to adjustments, if applicable, as provided in Section 2.3.2. Notwithstanding the foregoing, ifPURCHASER’s relevant September 30 forecast indicates an annual volume that is * below the volumerequired for the next lower pricing tier, such lower price will be utilized for the invoicedPurchase Price for the relevant calendar year, subject to adjustments, if applicable, as providedin Section 2.3.2.     2.3.2 Adjustments. If the quantity used to determine the invoiced Purchase Price asprovided in Section 2.3.1 is greater than the quantity actually purchased during the relevantcalendar year, and, as a result, the Purchase Price paid per Unit of Martek Product should havebeen higher in accordance with Exhibit A, then SELLER shall invoice PURCHASER within thirty (30)days after the end of such calendar year for an amount equal to the difference, if any, between thetotal Purchase Price paid and the total Purchase Price payable for the quantity of Martek Productsactually purchased from SELLER as specified in Exhibit A. Alternatively, if the quantity actuallypurchased during the relevant calendar year exceeds the quantity used to determine the invoicedPurchase Price as provided in Section 2.3.1 for such calendar year, and, as a result, the PurchasePrice paid per Unit of Martek Product should have been lower in accordance with Exhibit A, thenSELLER shall credit against future purchases of the Martek Products by PURCHASER from SELLER anamount equal to the difference, if any, between the total Purchase Price payable for the quantityactually purchased as specified in Exhibit A and the total Purchase Price paid by PURCHASER. Anycredit due to PURCHASER shall be made available within thirty (30) days after the end of suchcalendar year. In the event this Agreement terminates or is cancelled prior to the end of acalendar year, then the payments or, in lieu of credits for future purchases, reimbursementsrequired to effectuate the foregoing shall be made within thirty (30) days of the date followingsuch termination or cancellation.     2.3.3 Collaboration. In each calendar year (or prorated portion thereof) during theTerm, SELLER agrees to provide, as requested by PURCHASER, up to* man hours (or prorated portionthereof in the event of less than a full calendar year) of reasonable assistance to PURCHASER inPURCHASER’s efforts to identify efficiencies in PURCHASER’s shipping and handling of the MartekProducts and in other areas as mutually agreed. As to any efficiencies in shipping and handlingthat may be attained pursuant to the foregoing sentence, * of any resulting savings shall accrue toPURCHASER, and, as to any other efficiencies, the parties shall mutually negotiate and agree ingood faith on an apportionment of any savings resulting therefrom prior to undertaking suchcollaborative efforts. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 4–

 
     2.3.4 Taxes. The Purchase Price for the Martek Products is exclusive of any and allnational, state or local sales, use, value added or other similar taxes, customs duties and similartariffs and fees which SELLER or its Affiliates may be required to pay or collect upon the deliveryof the Martek Products, or otherwise. Should any such tax or levy be made, PURCHASER agrees to paysuch tax or levy and indemnify SELLER for any claim for such tax or levy demanded. In no event,however, shall PURCHASER be responsible for any taxes based on SELLER’s income or similar measures.     2.3.5 Terms. PURCHASER or the Designee, as applicable, shall pay all correctinvoices for amounts due in accordance with Section 2.3.1 above in the United States in U.S.dollars within * from the date of SELLER’s invoice, which invoice shall be dated as of the date ofdelivery of the invoiced Martek Products in accordance with Section 2.4.1 below. Invoices toDesignees shall not reference any Martek Product other than that being delivered for the benefit ofPURCHASER hereunder. For any invoices containing invoicing errors, payment shall not be due withrespect to the incorrect portions of the invoice only until the invoicing errors are corrected anda new invoice, with respect to the incorrect portions on the original invoice, is received byPURCHASER. In order to induce SELLER to fill orders for the Martek Products placed by theDesignees, PURCHASER hereby agrees to * to ensure the timely payment of, and to assist in the collection of, amounts due fromthe Designees following receipt from SELLER of written notice of nonpayment of correctly invoicedamounts due hereunder from a Designee. Notwithstanding any other provision of this Agreement orthe License Agreement, SELLER, at its reasonable discretion, shall have the right to revoke itsapproval of a particular Designee on sixty (60) days prior written notice to PURCHASER due toSELLER’s reasonable dissatisfaction with the performance of such Designee.     2.3.6 Sample Request. SELLER may request, up to two (2) times per year, and PURCHASERshall provide following each such request, samples for up to six (6) SKUs of the Licensee Productsfrom PURCHASER’s international markets. Reasonable expenses of filling any such requests shall beborne by SELLER. SELLER shall not resell or distribute such Licensee Products and shall use themonly for purposes of display or evaluating their content of Martek Products.     2.4 Order and Delivery Terms.     2.4.1 Martek Products shall be delivered ExWorks SELLER’s place of shipment to PURCHASER orits Designee, as specified in the applicable Purchase Order.     2.4.2 Title to and risk of loss of the Martek Products shall be transferred to PURCHASER orits Designee in accordance with Section 2.4.1 above.     2.4.3 SELLER shall comply with the Martek Product Specifications, as set forth in Exhibit Cattached hereto, and *, with respect to all Martek Product delivered hereunder. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 5–

 
     2.4.4 In connection with ordering and delivering the Martek Products hereunder, SELLER andPURCHASER and/or its Designees may employ their standard forms, but nothing in such forms shall beconstrued to bind SELLER or PURCHASER or its Designees or to modify or amend the terms of thisAgreement, and, in case of conflict herewith, this Agreement shall control.     2.5 Product Recall/Complaints.     2.5.1 Product Recall***.***Should the parties’ actions or any governmental action requirethe recall, destruction or withholding from market of any Martek Product or Licensee Product soldhereunder or pursuant hereto (a “Recall”), then SELLER shall bear the costs and expenses of suchRecall to the extent such Recall is the result of the fault or omission of SELLER or its agents orsubcontractors, including, by way of example only and not limitation, supplying Martek Product thatis not in compliance with the Martek Product Specifications *, and PURCHASER shall bear the costsand expenses of such Recall to the extent such Recall is the result of the fault or omission ofPURCHASER or its agents or subcontractors.     2.5.2 Product Complaints*.*If SELLER receives a complaint from any Third Party, or ifSELLER’s quality assurance group, infant formula business unit managers, or senior managementotherwise become aware of a complaint or issue, about Martek Product involving safety concerns,SELLER shall notify PURCHASER in writing (Attn: Quality Assurance), including providing a copy ofthe complaint, within twenty-four (24) hours.     2.6 Capacity and Supply.     2.6.1 SELLER shall manage its manufacturing capacity through process improvement, capitalexpansion, and/or subcontracting with a Third Party to ensure it has the necessary capacity tomanufacture and deliver Martek Product as ordered by PURCHASER in accordance with this Agreement.     2.6.2 In the event that SELLER subcontracts the manufacture of Martek Product to a Third Party(a “SELLER TPM”), then SELLER shall (i) give PURCHASER at least three (3) months written noticeprior to contracting with a SELLER TPM, (ii) disclose the identity and manufacturing location ofthe SELLER TPM, (iii) ensure that the SELLER TPM is bound to perform the relevant obligations ofSELLER set forth pursuant to this Agreement, and (iv) before use of such SELLER TPM to supplyMartek Product to PURCHASER, the SELLER TPM must be qualified pursuant to PURCHASER’s reasonablequalification process, which process PURCHASER shall conduct in a timely manner.     2.6.3 The parties shall cooperate in order to help ensure a continuous supply of MartekProduct. In order to help achieve this goal, SELLER shall use reasonable commercial efforts toprovide, within six (6) months after the Effective Date, contingency plans for the manufacture bySELLER and/or its SELLER TPMs of Martek Product.     2.6.4 If SELLER’s management does not reasonably believe that it will be able to supply all ofthe volumes of Martek Product specified in a Rolling Forecast or any outstanding Purchase -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 6–

 
Order, then within * of SELLER’s receipt of the relevant Rolling Forecast pursuant to Section 2.2.1, orthe occurrence of the event (e.g., a force majeure event or some other event that may interruptSELLER’s operations) causing such supply concern, SELLER shall in good faith notify PURCHASER inwriting of the quantity and timing of any expected shortfall, but any such notification shall notbe deemed to be considered a firm commitment or result in any liability or obligation on the partof SELLER except as otherwise expressly set forth in this Agreement.     2.7 Failure to Supply. In the event that SELLER (a) indicates pursuant to Section2.6.4 that it is unable to satisfy PURCHASER’s requirements for Martek Product, or (b) fails tosupply all of PURCHASER’s requirements for Martek Product pursuant to Purchase Orders accepted andacknowledged in accordance with Sections 2.2.2 and 2.2.3 (a “Shortfall Situation”), then Section2.7.1 shall apply and, provided that PURCHASER is then in material compliance with the terms ofthis Agreement, PURCHASER shall be released from the obligation to purchase all of its requirementsof Martek Product from SELLER, pursuant to Section 2.1.1, to the extent expressly provided below.     2.7.1 In any Shortfall Situation, SELLER shall supply the portion of Martek Product thatSELLER is capable of supplying, provided that SELLER may allocate Martek Product among itscustomers so long as SELLER treats PURCHASER*, and in no event shall PURCHASER receive, pursuant toPurchase Orders placed in accordance with the terms of this Agreement, less than that percentageshare of available supply capacity that is directly proportionate to PURCHASER’s average percentageof SELLER’s capacity used to supply PURCHASER and its Designees during the prior twelve (12)months. SELLER shall use all commercially reasonable efforts to implement appropriate contingencyplans established or subsequently developed by the parties that are designed with the objective ofensuring the continuity of uninterrupted supply of Martek Products as ordered by PURCHASER and itsDesignees and to otherwise overcome as soon as possible the cause for the inability of SELLER tofulfill PURCHASER’s and its Designees’ purchase orders for Martek Product. SELLER shall work collaboratively with PURCHASER to consider and pursue all otherreasonable contingency options and plans.     2.7.2 If a failure to supply occurs during any * of the Term such that SELLER fails to supplyat least * of the amount of Martek Product ordered by PURCHASER and its Designees in the aggregate,or if a Shortfall Situation as described in Section 2.7(a) shall exist, then, as elected byPURCHASER, (y) PURCHASER may itself manufacture up to the Shortfall Quantity (as defined below) ofDHA and/or ARA, as relevant, and/or (z) PURCHASER may obtain any remaining Shortfall Quantity ofDHA and/or ARA, as relevant, from other sources by utilizing PURCHASER’s license and sublicensingrights as set forth in the License Agreement. (a) PURCHASER may obtain ARA and/or DHA via the foregoing rights for such period oftime as is reasonably necessary for PURCHASER to obtain reasonable cover for SELLER’sfailure to provide quantities of the Martek Products ordered hereunder by PURCHASER andits Designees, and to the extent otherwise consistent with PURCHASER’s rights under theLicense Agreement and this Agreement, but without an obligation to pay a Royalty. Forpurposes hereof, the “Shortfall Quantity” shall mean a monthly quantity that is * of(A) the maximum monthly shortfall amount -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 7–

 
   reasonably specified by SELLER in any relevantnotice given pursuant to Section 2.6.4, or (B) the maximum amount actually ordered byPURCHASER and its Designees pursuant to Purchase Orders placed in accordance with theterms of this Agreement which is not delivered by SELLER in any of the * prior toPURCHASER becoming eligible to exercise its rights under this Section 2.7.2, asrelevant. (b) Notwithstanding the foregoing subpart (a), (i) In negotiating any such contract for cover, PURCHASER shallreasonably consult with SELLER as to terms being offered and cooperate in goodfaith with SELLER in SELLER’s reasonable efforts to ensure it can resume itssupply of PURCHASER’s total requirements of Martek Product hereunder uponSELLER’s resumption of its ability to supply such requirements. In any event,PURCHASER shall ensure that any contract for cover can be unilaterallyterminated by PURCHASER on no more than * notice, unless otherwise agreed inwriting by SELLER, such agreement to not be unreasonably withheld.  (ii) PURCHASER will use commercially reasonable efforts to minimizethe volume requirements and duration of any contract with a Third Partyreasonably entered into to obtain cover as permitted herein. In connectionwith the foregoing sentence, provided SELLER agrees in writing to * PURCHASERfor any difference in the price necessary to obtain lesser volumes, a shorterterm, and/or a shorter notice period for a unilateral right to terminate earlywithout cause, as applicable, as compared to a lower price that has beenoffered to PURCHASER in writing by a Third Party for other commerciallyreasonable terms consistent with PURCHASER’s rights to cover herein, PURCHASERshall agree to accept such higher price in exchange for such obligation ofSELLER.In the event that it is necessary for PURCHASER to contract for more than the Shortfall Quantity inorder to obtain cover hereunder pursuant to reasonable commercial terms, PURCHASER shall, followingwritten notice to SELLER of such event, be permitted, subject to the above provisions in thisSection 2.7.2, to contract for a reasonable amount in addition to such Shortfall Quantity, providedthat, notwithstanding any other provision of this Agreement, PURCHASER shall be required to pay toSELLER the Royalty as provided in the License Agreement (prior to any amendment made hereunder) onInfant Formula Product derived from any such quantity in excess of the Shortfall Quantity. Forclarity, if any Shortfall Situation only relates to DHA or ARA, and not both, the rights asprovided herein shall only relate to DHA or ARA, as relevant.     2.7.3 In the event PURCHASER exercises any of its rights above in this Section 2.7 (includingdue to the force majeure provision in this Agreement), any amounts obtained by PURCHASER inaccordance with this Section 2.7 in order to cover for SELLER’s failure to supply hereunder shallbe credited to the volumes in the pricing tiers set forth in Exhibit A for the relevant year(s),solely for the purpose of making any adjustments pursuant to Section 2.3.2. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 8–

 
     2.7.4 PURCHASER’s exercise of the rights granted in this Section 2.7 shall not be a breach ofthis Agreement by PURCHASER, and SELLER shall not pursue patent infringement actions againstPURCHASER or any Third Party suppliers to the extent their actions are consistent with PURCHASER’srights under this Section 2.7 and the License Agreement.**ARTICLE 3.****WARRANTY AND DISCLAIMER**     3.1 SELLER’s Warranties. SELLER represents and warrants that:     3.1.1 All Martek Products will be manufactured in accordance with current good manufacturingpractices and in accordance with the characteristics, composition, stability and other requirementsincluded in the Martek Product Specifications set forth in Exhibit C and *.     3.1.2 All Martek Products manufactured and delivered to PURCHASER or any Designee pursuant tothis Agreement will, at the time of such delivery, not be adulterated or misbranded within themeaning of the Federal Food, Drug and Cosmetic Act, as amended (the “*Act*”) or within the meaning ofany applicable state or municipal law in which the definitions of adulteration and misbranding aresubstantially the same as those contained in the Act, as such Act and such laws are constituted andeffective at the time of delivery and will not be an article that may not be introduced intointerstate commerce.     3.1.3 If any Martek Products fail to conform to the warranties set forth in Sections 3.1.1 and3.1.2 above, SELLER, *, shall either replace the nonconforming Martek Products or refund toPURCHASER or its Designee, as applicable, the Purchase Price paid by PURCHASER or its Designee, asapplicable, for the nonconforming Martek Products (including duty, freight, insurance charges, andother similar related expenses).     3.1.4 To the knowledge of any of SELLER’s senior management (which includes SELLER’s GeneralCounsel), as of the signing of this Agreement, there are no valid and enforceable Third Partypatents that are infringed by SELLER’s manufacture or sale, in the Territory, of the MartekProducts.     3.2 SELLER’s Disclaimers.     3.2.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ANY AND ALLWARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE TECHNOLOGY OR THE MARTEK PRODUCTS. SELLER MAKESNO REPRESENTATIONS OR WARRANTIES AND HAS NO DUTY TO ENSURE THAT THE TECHNOLOGY OR THE MARTEKPRODUCTS ARE USABLE WITH THE LICENSEE PRODUCT OR CAN BE INCORPORATED SAFELY INTO THE LICENSEEPRODUCT. IT IS HEREBY ACKNOWLEDGED AND AGREED THAT IT SHALL BE PURCHASER’S RIGHT AND OBLIGATION TODETERMINE THE SAFETY AND UTILITY OF THE USE OF THE -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 9–

 
MARTEK PRODUCTS WITH EACH LICENSEE PRODUCT; PROVIDED, HOWEVER, THAT THIS PROVISION DOES NOT SERVE TO RELIEVE MARTEK OF ITS OBLIGATIONS ASOTHERWISE SET FORTH IN THIS AGREEMENT.     3.2.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER FURTHER DISCLAIMS ANY WARRANTYRELATING TO THE PATENTABILITY OF, OR THE VALIDITY OF ANY PATENTS RELATING TO, THE TECHNOLOGY, ORTHE MARTEK PRODUCTS AND MAKES NO REPRESENTATIONS WHATSOEVER WITH REGARD TO THE SCOPE OF ANYLICENSED PATENTS OR THAT ANY LICENSED PATENTS MAY BE COMMERCIALLY EXPLOITED WITHOUT INFRINGINGOTHER PATENTS.     3.3 Mutual Warranties. SELLER and PURCHASER, as to its respective self, eachrepresents and warrants to the other as follows:     3.3.1 That its execution and delivery of this Agreement and its performance of thetransactions contemplated hereby have been duly authorized by all necessary corporate actions.     3.3.2 That its performance of any of the terms and conditions of this Agreement will notconstitute a breach or violation of any other agreement or understanding, written or oral, to whichit or its Affiliates is a party.     3.3.3 To the best of its knowledge after the exercise of reasonable diligence, as of theEffective Date, no actions have been threatened in writing or are pending before any court orgovernmental agency or other tribunal that would affect its ability to perform its obligationsunder this Agreement.**ARTICLE 4.****TERM; TERMINATION**     4.1 Term. This Agreement shall commence on the Effective Date and, subject topossible earlier termination of this Agreement in accordance with the terms hereof, shall terminateon the tenth (10th) anniversary of the Effective Date (the “Term”).     4.2 Termination.     4.2.1 Termination in Case of Material Breach; Opportunity to Cure. Either party tothis Agreement may terminate this Agreement upon thirty (30) days prior written notice if the otherparty shall commit a material breach of this Agreement and shall not cure such breach within suchthirty (30) day period. Any such written notice to terminate shall include a detailed statement asto the notifying party’s claimed material breach by the notified party.     4.2.2 Termination in Case of Infringement. PURCHASER shall have the right toterminate this Agreement in a particular jurisdiction within the Territory if a court or othertribunal of competent jurisdiction determines by final order that the Technology or the MartekProducts infringe upon the patent or other proprietary rights of any Third Party in suchjurisdiction; provided, however, that if, prior to any such termination, SELLER develops anon-infringing -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 10–

 
alternative or obtains a license from such Third Party, such that PURCHASER could lawfully use the Technology and/or the Martek Products (as the case may be) in a commerciallyreasonable manner as permitted in this Agreement or the License Agreement in connection with theLicensee Products at no additional cost or expense to PURCHASER beyond that expressly provided inthis Agreement, PURCHASER shall not terminate this Agreement pursuant to this Section 4.2.2. *.     4.2.3 Termination in Case of Insolvency; Change of Control. (i) Notwithstanding any other provisions of this Agreement, either party to thisAgreement may terminate this Agreement upon giving notice to the other, should theother commit an act of bankruptcy, declare bankruptcy, be declared bankrupt, enter intoan arrangement for benefit of creditors, enter into a procedure of winding up ordissolution, or should a trustee or receiver be appointed for the other or upon theexpropriation, takeover or nationalization of the other party or a majority portion ofits assets by governmental action.  (ii) In the event of any assignment of this Agreement pursuant to Section 9.7 bySELLER to any of the following entities, including to any acquirer, successor, assign,or person controlling, or under the common control of, any such named entity, and anyother entity carrying on an infant formula business substantially similar to thebusinesses on an equivalent or greater scale to that carried on by any of such namedentities, PURCHASER shall be entitled to terminate this Agreement by providing writtennotice of such intent to SELLER and to SELLER’s assignee at any time within sixty (60)days of receipt by PURCHASER of such notice of assignment: *. The date on whichPURCHASER desires any such termination to become effective shall be indicated in itsnotice hereunder, and shall in no event be more than three hundred sixty-five (365)days after the date of PURCHASER’s notice.     4.2.4 Early Termination. PURCHASER, with or without cause, unilaterally may terminatethis Agreement effective as of or after the fifth (5th) anniversary of the EffectiveDate of the Agreement, provided that written notice thereof is provided to SELLER at least twelve(12) months prior to the intended effective termination date.     4.3 Effect of Termination. Upon termination of this Agreement, PURCHASER and itsAffiliates and Designees may continue, for a period of up to six (6) months, to manufacture andproduce Licensee Products containing the Martek Products purchased hereunder, and to thereafteruse, market, offer for sale, sell, promote and distribute, to the extent lawful, any such LicenseeProducts. Upon termination of this Agreement on account of SELLER’s breach of this Agreement,PURCHASER shall have the right, but not the obligation, to request SELLER to purchase fromPURCHASER and its Affiliates and Designees, at the cost paid for such Martek Products,PURCHASER’s unused inventories of the Martek Products, and upon such a request SELLER shallpurchase such Martek Products. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 11–

 
     4.4 Effect on License Agreement. Except to the extent specified in the secondsentence of this Section 4.4, the provisions of this Agreement, including without limitation theprovisions of Exhibit A and Exhibit B attached hereto, expressly amend Article I and Sections 1.2,2.1, 2.3, 2.4, 3.4, 4.1(iii), 4.1(iv), 4.1(v), 4.1(vi), 4.4, 6.1, 6.2 and 6.3 of the LicenseAgreement, and such amendments shall survive any termination of this Agreement, and the partieshereby ratify the terms of the License Agreement as amended by this Agreement. Upon termination ofthis Agreement, notwithstanding any other provision hereof, the License Agreement shall continue inaccordance with the terms in effect as amended by this Agreement, except that (a) the amendments inthis Agreement to Sections 4.1(iii) through 4.1(vi) of the License Agreement, and (b) the amendmentto the License Agreement that is in Section 6 of Exhibit B to this Agreement, shall each be of nofurther force or effect from and after the effective date of termination.**ARTICLE 5.****COVENANTS**     5.1 License Agreement. During the Term, Sections 6.1, 6.2 and 6.3 of the LicenseAgreement shall be deemed deleted in their entirety and replaced with Sections 5.3, 5.4 and 5.5below.     5.2 Licensed Patents. It shall be solely SELLER’s responsibility to prosecute,defend, and maintain the Licensed Patents.     5.3 Compliance with Law; Regulatory Approval; Manufacturing Audits.     5.3.1 Each of SELLER and PURCHASER (itself and on behalf of its Affiliates) covenants andagrees that it shall conduct all of its operations dealing with the Technology, the Martek Productsand the Licensee Product, in material compliance with all applicable laws, regulations and otherrequirements which may be in effect from time to time, of all national governmental authorities,and of all states, municipalities and other political subdivisions and agencies thereof, including,without limiting the generality of the foregoing, the Federal Food, Drug, and Cosmetic Act, theregulations and other requirements of the United States Food and Drug Administration, similar statelaws and regulations or similar laws and other requirements in the Territory, including any and allamendments, as may be applicable in any jurisdiction in the Territory in which any Martek Products,or Licensee Product, as applicable, is sold.     5.3.2 It shall be PURCHASER’s, and not SELLER’s, responsibility to secure any regulatoryapprovals for Licensee Products in the Territory that may be necessary in connection with exerciseby PURCHASER of the rights granted to it under this Agreement; provided, however, that PURCHASERshall not be obligated to take any specific action or measure to seek regulatory approval for or tomarket Licensee Products. In connection with the immediately foregoing sentence, PURCHASER shallnot intentionally impair SELLER’s ability to obtain any regulatory approval of the Martek Productsby the competent governmental authorities in any Territory and for any product that SELLER mayelect to pursue, and SELLER shall not intentionally impair PURCHASER’s ability to obtain anyregulatory approval of the Licensee Product by the competent governmental authorities in anyTerritory and for any Licensee Product that PURCHASER may elect to pursue. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 12–

 
     5.3.3 PURCHASER may, with reasonable notice, inspect and/or conduct audits, including, withoutlimitation, Compliance Audits of any SELLER plants used for the manufacture of Martek Producthereunder (“Plants”). In connection therewith, PURCHASER and/or its designated representativesshall have the right to (i) enter those Plants where the Martek Products are manufactured, tested,packaged, stored, handled, or shipped, (ii) examine such facilities and the manufacture and qualitycontrol records relating to Martek Products, and (iii) inspect and audit the ingredients, work inprocess, inventories, premises, documentation, manufacturing methods, testing practices andresults, packaging procedures, and all other matters associated with the manufacture and packagingof Martek Product or otherwise related to SELLER’s performance under this Agreement, in each caseto the extent reasonably related to ensuring SELLER’s compliance with its obligations hereunder.Such inspections and/or audits shall be held during normal business hours and shall be conducted inaccordance with SELLER’s reasonable directions and health and safety and other protocols asapplicable at the relevant Plant or other facility.For the purposes of this Agreement, the term “Compliance Audit” shall mean a review by appropriaterepresentatives of PURCHASER of those portions of each Plant at which the manufacture, packaging,and/or storage of Martek Product being purchased by PURCHASER has been or is then being conducted,for purposes of reasonably reviewing SELLER’s procedures and processes used in the manufacture,packaging, and/or storage of Martek Product, including, but not limited to, production and qualitycontrol records and investigations of quality specifically relating to Martek Product. A SELLERrepresentative shall accompany any of PURCHASER’s representatives, including PURCHASER’s employees,while such individuals are on the premises of SELLER or its Affiliates. In connection with anysuch audit, PURCHASER and its representatives shall comply with those site procedures, instructionsof SELLER’s representatives, and instructions applicable to employees of SELLER of which PURCHASERshall be reasonably notified. SELLER shall cooperate with and provide reasonable assistance toPURCHASER during such audit. All Compliance Audits shall be at PURCHASER’s expense. Visits byPURCHASER representatives to SELLER’s facilities may involve the transfer of ConfidentialInformation and shall be subject to the terms of Article 8 hereof. The results of such audits andinspections shall also be considered Confidential Information under Article 8.PURCHASER shall submit to SELLER a written report outlining its findings, observations, and itemsPURCHASER believes require corrective action from any such Compliance Audit. Within thirty (30)days after receipt of any such report from PURCHASER, SELLER shall respond to PURCHASER in writing,which response shall include a detailed corrective and preventative action plan along with atimetable, reasonably acceptable to PURCHASER for resolution of any matters either identified byPURCHASER as or otherwise deemed to be a material finding. If the parties are unable to agree onthe terms of any corrective and/or preventive actions (including whether or not any is required),or resolve any such matters identified pursuant to this section, such terms or matters shall beshall be resolved in accordance with the Alternative Dispute Resolution process in Exhibit D.SELLER shall use commercially reasonable efforts to obtain similar audit rights for PURCHASER withrespect to any SELLER TPM, as defined in Section 2.6.2. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 13–

 
     5.4 Performance and Product Quality. PURCHASER covenants and agrees that it and itsAffiliates shall exercise a reasonable standard of care and quality control in the testing,manufacturing, marketing, packaging, distribution and sale of each Licensee Product. PURCHASERfurther covenants and agrees that it and its Affiliates shall maintain quality control,provide adequate tests of materials, provide quality workmanship, and do such other things as arereasonably required to help assure high quality production of such Licensee Products.     5.5 Audit Rights.     5.5.1 SELLER covenants and agrees that SELLER shall keep true and accurate records as isreasonably necessary to allow PURCHASER to verify SELLER’s compliance with * this Agreement. Suchrecords shall be made available during business hours upon prior written request by PURCHASER,which request shall be made no more than once in any calendar year, for inspection by a Third Partyindependent accountant who is not the auditor of record for PURCHASER and who is reasonablyacceptable to SELLER and who shall be bound by a confidentiality agreement with SELLER. Suchinspection shall be limited to the extent necessary for the determination of compliance with suchprovisions. Such records shall be retained for a period of three (3) years following the year towhich they relate. Such records shall be limited to those records reasonably necessary to verifySELLER’s compliance with Section 2.1.2 of this Agreement. The accountant shall provide PURCHASERwith a report containing the accountant’s conclusions, but not the inspected records nor theinformation contained therein, and shall concurrently provide SELLER with such report. In theevent the Third Party independent accountant shows non-compliance with Section 2.1.2 and theparties cannot agree on a resolution, then the arbitration provisions of Exhibit D will apply.PURCHASER shall bear the full cost of any such audit: provided that if the audit, as reasonablyagreed by SELLER or as determined via the arbitration provisions of Exhibit D, shows an overpaymentby PURCHASER of * or greater of the amounts audited, and in any event an overpayment of at least *,SELLER shall bear the reasonable out-of-pocket costs paid by PURCHASER to the Third Partyaccountant for the audit.     5.5.2 PURCHASER covenants and agrees that PURCHASER shall keep true and accurate recordsregarding PURCHASER’s compliance with the terms of Section 2.1.1 of this Agreement. Such recordsshall be made available during business hours upon prior written request by SELLER, which requestshall be made no more than once in any calendar year, for inspection by a Third Party independentaccountant who is not the auditor of record for SELLER and who is reasonably acceptable toPURCHASER and who shall be bound by a confidentiality agreement with PURCHASER. Such inspectionshall be limited to the extent necessary for the determination of compliance with such provision.Such records shall be retained for a period of three (3) years following the year to which theyrelate. Such records shall be limited to those records reasonably necessary to verify PURCHASER’scompliance with Section 2.1.1 of this Agreement. The accountant shall provide SELLER with a reportcontaining the audit’s conclusions, but not the inspected records nor the information containedtherein, and shall concurrently provide PURCHASER with such report. In the event the Third Partyindependent accountant shows -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 14–

 
non-compliance with Section 2.1.1 and the parties cannot agree on a resolution, then the arbitration provisions of Exhibit D will apply.**ARTICLE 6.****LIMITATION OF LIABILITY**     6.1 Indirect Damages. EXCEPT AS SET FORTH IN ARTICLE 7, OR UNLESS ARISING FROM THEWILLFUL OR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, IN NO EVENT SHALL EITHER PARTY BELIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGESARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITSOR BUSINESS OPPORTUNITY, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY UPON WHICH ONEPARTY MAY SEEK REMEDIES AGAINST THE OTHER (“INDIRECT DAMAGES”). EXCEPT AS SET FORTH IN ARTICLE 7,IN NO EVENT SHALL A PARTY BE RESPONSIBLE FOR PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR INCONNECTION WITH THIS AGREEMENT.     6.2 Maximum Aggregate Liability. EXCEPT FOR LIABILITY WHICH IS THE SUBJECT OFINDEMNIFICATION AS SET FORTH IN ARTICLE 7, OR UNLESS ARISING FROM THE WILLFUL OR INTENTIONALMISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTYDURING ANY CALENDAR YEAR AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ONBREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL EXCEED THE GREATER OF (I) THE TOTALPURCHASE PRICE OF MARTEK PRODUCT SOLD TO PURCHASER AND ITS DESIGNEES UNDER THIS AGREEMENT DURINGTHE PRIOR CALENDAR YEAR AND (II) *.**ARTICLE 7.****INDEMNIFICATION**     7.1 Indemnity by SELLER. Except to the extent of Losses for which PURCHASER hasagreed to indemnify SELLER pursuant to Section 7.2(ii) and (iii) below, SELLER shall indemnify,defend, and hold harmless PURCHASER, PURCHASER’s Affiliates, and PURCHASER’s and PURCHASER’sAffiliates’ directors, officers, employees, and agents from and against all costs, expenses,damages, losses and liabilities (“Losses”) asserted by a Third Party against PURCHASER, PURCHASER’sAffiliates, or PURCHASER’s or PURCHASER’s Affiliates’ directors, officers, employees, or agents forwhich any of them may become liable or incur or be compelled to pay to the extent such Lossesresult from: (i) SELLER’s or its Affiliates’ breach of any of its obligations, representations orwarranties under this Agreement; (ii) a failure of the Martek Product to conform to the MartekProduct Specifications * or a defect in the Martek Product existing as of delivery of suchMartek Product pursuant to Section 2.4.1 (including latent defects); or (iii) any negligence, grossnegligence, or willful or intentional misconduct of SELLER or any of its Affiliates.     7.2 Indemnity by PURCHASER. Except to the extent of Losses for which SELLER hasagreed to indemnify PURCHASER pursuant to Section 7.1 above, PURCHASER shall indemnify, defend, andhold harmless SELLER, SELLER’s Affiliates, and SELLER’s and -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 15–

 
SELLER’s Affiliates’ directors, officers, employees, and agents from and against all Losses asserted by a Third Party againstSELLER, SELLER’s Affiliates, or SELLER’s or SELLER’s Affiliates’ directors, officers, employees, oragents for which any of them may become liable or incur or be compelled to pay to the extent suchLosses result from: (i) the production, manufacture, use, importation, distribution or sale ofLicensee Products, including, without limitation, product liability claims; (ii) PURCHASER’s or itsAffiliates’ breach of any obligations, representations or warranties under this Agreement; or (iii)any negligence, gross negligence, or willful or intentional misconduct of PURCHASER or any of itsAffiliates.     7.3 Condition to Indemnification. If either party expects to seek indemnificationunder this Article 7, it shall promptly give notice to the indemnifying party of the basis for suchclaim of indemnification. If indemnification is sought as a result of any Third Party claim orsuit, such notice to the indemnifying party shall be given within fifteen (15) days after receiptby the other party of such claim or suit; provided, however, that the failure to give notice withinsuch time period shall not relieve the indemnifying party of its obligation to indemnify except to the extent that itshall be materially prejudiced by the failure. Each party shall fully cooperate with the otherparty in the defense of all such claims or suits. The indemnifying party shall have sole authorityto defend and/or settle such claim or suit; provided, however, that the indemnified party shallhave the right to participate in its defense at its own expense, and no offer of settlement,settlement or compromise shall be binding on a party hereto without its prior written consent(which consent shall not be unreasonably withheld) unless such settlement fully releases such partywithout any liability, loss, cost, or obligation to such party.     7.4 Survival of Indemnity Obligation. The indemnification obligations provided inthis Agreement shall survive the expiration or termination of this Agreement, whether occasioned bythe Agreement’s expiration pursuant to Section 4.1 above or earlier termination pursuant to theother Sections of Article 4 above.**ARTICLE 8.****CONFIDENTIALITY**     8.1 Disclosure of Information. All the Technology and all other information providedhereunder by the parties pursuant to and in execution of their obligations and in exercise of theirrights under this Agreement, including, without limitation, the terms of this Agreement, the MartekProduct Specifications, and *, shall be deemed confidential (“Confidential Information”). SELLERand PURCHASER acknowledge and agree that the value of the Technology, the Martek Products, and theLicensee Products is based, to a large extent, on maintaining the confidentiality of theTechnology, the Martek Products, and the Licensee Products and preventing any unauthorizeddissemination to or use by Third Parties of Confidential Information relating to the Technology,the Martek Products, or the Licensee Products. Confidential Information hereunder shall besafeguarded by the recipient and shall not be disclosed to Third Parties and shall be madeavailable only to the receiving party’s employees, agents or permitted subcontractors who have aneed to know such information for purposes of performing the party’s obligations, or for purposesof exercising the party’s rights, under this Agreement, and such employees, agents or permittedsubcontractors shall have a legal obligation to the party hereunder from whom they receiveConfidential Information not to disclose such information to Third Parties and not to use it in any -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 16–

 
manner other than as permitted herein. Each party shall treat, and PURCHASER shall ensure that itsAffiliates treat, any and all such Confidential Information in a reasonable manner, and in anyevent with no less than the same level of protection as such party maintains its own ConfidentialInformation. These mutual obligations of confidentiality shall not apply to any information to theextent that such information: (i) is or later becomes generally available to the public, such asby publication or otherwise, through no fault of the receiving party; (ii) is obtained from a ThirdParty having the legal right to make such a disclosure without obligations of confidentiality;(iii) is independently developed by a party without access to the Confidential Information, asevidenced by written records; or (iv) is known to the receiving party before receipt thereof underthis Agreement or the License Agreement, as evidenced by the receiving party’s written records.SELLER, PURCHASER or PURCHASER’s Affiliates shall not remove from any communications or otherdocuments delivered by a disclosing party any proprietary notices affixed thereto by the disclosingparty.     Notwithstanding the foregoing, (y) SELLER may issue the press release set forth in attachedExhibit E upon final execution of this Agreement and (z) SELLER and PURCHASER may disclose(including but not limited to disclosure in response to questions, interrogatories, requests forinformation or documents in legal proceedings, subpoenas, civil investigative demand or other similar process) or announce to any Third Person, disclose in any filings under applicablesecurities laws or regulations or otherwise make any public disclosure or issue a press releaseconcerning (a) the fact and the nature of this Agreement and the transactions to be performedpursuant hereto; or (b) any Confidential Information of the other party, as and to the extentrequired by applicable law or government agency of the United States and the countries of theTerritory, including, but not limited to, any applicable disclosure requirements under the federalsecurities laws or regulations thereunder, provided that in the case of each such disclosure,announcement or press release, the disclosing party, upon the advice of outside counsel, in goodfaith deems the disclosure necessary to comply with the foregoing and to the extent practicable andconsistent with applicable laws, gives reasonable prior written notice to the other party and givesthe other party such assistance as the other party may reasonably request, in accordance withapplicable law, in order to prevent, challenge, modify or protect such disclosure. In addition,SELLER and PURCHASER may disclose the fact and the terms of this Agreement to its attorneys andaccountants without notice to the other party, and PURCHASER may deliver a copy of this Agreementto any Affiliate, so long as any such recipient has undertaken, in writing, an obligation tomaintain the terms of this Agreement in confidence.     8.2 Post-Termination Obligations. The mutual confidentiality obligations of theparties under the provisions of this Article 8 shall survive the expiration or termination of thisAgreement for a period of ten (10) years from the date thereof. Upon expiration or termination ofthis Agreement, each party shall promptly return to the other all Confidential Informationdisclosed or delivered to such party pursuant to this Agreement and then in existence, subject tothe retention by such party of one (1) copy thereof for archival purposes only. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 17–

 
**ARTICLE 9.****GENERAL PROVISIONS**     9.1 Dispute Resolution. SELLER and PURCHASER covenant and agree to use their diligentefforts to resolve any disputes that arise between them in the future and are related to thisAgreement through negotiation and mutual agreement and, if good faith efforts to so negotiate andmutually agree are unavailing, through binding arbitration under the procedures set forth herein.When either party determines that there is a dispute subject to arbitration under this Agreement,it shall promptly send written notice of the dispute to the other party. The parties agree thatfor a period of thirty (30) days from the sending of such written notice, they shall in good faithnegotiate to resolve the dispute. Subject to the foregoing, any controversy or claim arising outof or relating to this Agreement or the breach thereof shall be settled pursuant to a bindingdispute resolution procedure as set forth on the attached Exhibit D. Notwithstanding theforegoing, the parties acknowledge and agree that each of them shall have the right to seekimmediate injunctive and other equitable relief through the courts in the event of any materialbreach of this Agreement by the other party that would cause the non-breaching party irreparableinjury for which there would be no adequate remedy at law.     9.2 Information Exchange. During the Term, the parties shall promptly notify eachother of any report of an adverse event associated with the use of Martek Products in any LicenseeProduct. PURCHASER shall have sole discretion in determining what action, if any, is to be takenby PURCHASER in connection with any adverse event relating to a Licensee Product. In addition,PURCHASER may, in its sole discretion, on a semi-annual basis, provide to SELLER market datarelating to the countries in which PURCHASER is selling Licensee Products, the brands under whichsuch products are sold, and whether such products are premium or full line conversions.     9.3 Force Majeure. Neither party to this Agreement shall be liable for damages due todelay or failure to perform any obligation under this Agreement, other than an obligation to makepayments, if such delay or failure results directly or indirectly from circumstances beyond thereasonable control of such party and constituting a force majeure event. A force majeure eventshall include, but shall not be limited to, acts of God, acts of war, acts of terrorism, civilcommotions, riots, strikes, lockouts, acts of the government in either its sovereign or contractualcapacity, perturbation in telecommunications transmissions, inability to obtain suitable equipmentor components or raw materials, accident, fire, water damages, flood, earthquake, or other naturalcatastrophes. Upon occurrence of a force majeure event, the party affected shall promptly notifythe other in writing, setting forth the details of the occurrence, and make reasonable commercialefforts to resume the performance of its obligations as soon as practicable after the force majeureevent ceases. If remittance of U.S. Dollars is prevented or impaired for reasons of force majeure,the party owing the money shall settle such obligations in the manner as reasonably agreed to bythe parties, such agreement of a party not to be unreasonably withheld or delayed. Should theeffect of force majeure continue for more than six (6) consecutive months, the party to whom theperformance is owed may terminate this Agreement without liability (other than for claims arisingprior to the effective date of termination) on thirty (30) days notice to the party impaired byforce majeure. -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance onRule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submittedseparately to the Securities and Exchange Commission.
–Page 18–

 
SELLER expressly acknowledges that under this Agreement SELLER is a strategic and essentialsupplier for PURCHASER’s ongoing business. Accordingly, notwithstanding anything in this Agreementto the contrary, upon the occurrence of a force majeure event affecting SELLER’s ability to supplyMartek Products as ordered by PURCHASER or its Designees in accordance with the terms of thisAgreement, the provisions of Section 2.7 shall apply.     9.4 Insurance. PURCHASER is self-insured with respect to product liability insurancecovering Licensee Products. SELLER, at its sole cost and expense, shall procure and maintain inforce a policy of comprehensive general liability insurance, including bodily injury, death, andproperty damage, and product liability coverage, of not less than Ten Million Dollars($10,000,000.00) per occurrence and Ten Million Dollars ($10,000,000) in the aggregate, coveringSELLER’s performance under this Agreement, including the Martek Products, with PURCHASER named asan additional insured and loss payee and providing for at least thirty (30) days prior writtennotice to PURCHASER of any cancellation, termination or change of such insurance coverage.PURCHASER may request from SELLER a certificate evidencing such insurance and such certificateshall be promptly provided. The minimum insurance coverage set forth above shall be maintained atall times unless changed to equivalent coverage by another carrier upon thirty (30) days priorwritten notice to PURCHASER. Any successor to or permitted assignee of this Agreement shallsimilarly procure and maintain such insurance coverage.     9.5 Notices. Notices required under this Agreement shall be in writing and sent byregistered mail, by facsimile transmission, by nationally recognized overnight courier service, orby hand delivery, with written verification of receipt and date of receipt, to the respectiveparties at the following addresses:     Notices to SELLER:Martek Biosciences Corporation