AMENDED AND RESTATED EXCLUSIVE PATENT LICENSE AGREEMENT SCOLR PHARMA, INC. AND ARCHER-DANIELS-MIDLAND COMPANY

Exhibit 10.2

AMENDED AND RESTATED

EXCLUSIVE PATENT LICENSE AGREEMENT

SCOLR PHARMA, INC.

AND

ARCHER-DANIELS-MIDLAND COMPANY

TABLE OF CONTENTS

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AMENDED AND RESTATED

EXCLUSIVE PATENT LICENSE AGREEMENT

THIS AMENDED AND RESTATED EXCLUSIVE PATENT LICENSE AGREEMENT (" Agreement ") made as of August 10, 2006 by and between SCOLR Pharma, Inc., a Delaware corporation formerly known as Nutraceutix, Inc. (hereinafter referred to as " SCOLR "), and Archer-Daniels-Midland Company, a Delaware corporation (hereinafter referred to as " ADM ").

W I T N E S S E T H:

WHEREAS, SCOLR and ADM are parties to an Exclusive Patent License Agreement dated as of March 8, 2002 (the " Existing Agreement "), pursuant to which SCOLR granted to ADM a license to manufacture, use, sell and offer to sell Licensed Products and Inventions (as each such term is defined in the Existing Agreement) in the Territory (as defined in the Existing Agreement) pursuant to the terms and conditions set forth in the Existing Agreement; and

WHEREAS, SCOLR and ADM desire to modify the terms of the license granted by SCOLR to ADM under the Existing Agreement by amending and restating the Existing Agreement on the terms hereof.

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

For the purposes of this Agreement, unless the context clearly or necessarily requires otherwise, the following terms shall have the meanings set forth below:

• " Affiliate " of a Party shall mean any company, corporation, partnership, syndicate or other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. " Control " shall mean ownership of fifty-one percent (51%) or more of the voting rights or equity in the specified entity.

  " Effective Date " shall mean the date when this Agreement is fully executed by the Parties.

  " Improvements " shall mean any discovery, concept, trade secret, art, clinical data, idea or other information, whether or not patentable, that relates to or arises out of the subject matters disclosed in the Licensed Patent, as well as any foreign patents or foreign patent applications corresponding thereto, and any continuations, continuations-in-part, divisionals, reissues, reexaminations, extensions or additions thereof, whether or not for use in the Licensed Field of Use.

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• " Intellectual Property " shall mean all forms of intellectual property existing on or after the date of this Agreement under the laws of any state or country, including, but not limited to, inventions, designs and plants, in each case, whether or not patentable, patent rights, copyrightable works, mask works, trademarks, service marks, trade secrets, know-how and trade dress.

  " Knowledge of ADM " shall mean the knowledge of the corporate officers of ADM and the officers of the ADM Natural Health & Nutrition Division on the Effective Date.

  " Licensed Field of Use " shall mean a sustained release oral solid dosage form product comprising a nutraceutical, a dietary supplement or a combination thereof, comprising isoflavones; provided , that any additional nutraceutical ingredient or dietary supplement used in such product (excluding the isoflavones in such product and any nutraceutical ingredient contained as part of an isoflavone concentrate included in the specifications set forth in Exhibit 1 ) shall not be present in an amount of more than 35% of the weight of the product. As used in this definition, "dietary supplement" means the terms "dietary supplement" as defined in the Dietary Supplement Health and Education Act of 1994, as amended, irrespective of whether a product is manufactured, marketed, sold or used in the United States.

  " Licensed Patent " shall mean United States Patent Number 6,090,411 and patent rights with respect to Improvements, as well as rights to any other U.S. or foreign patents or foreign patent applications corresponding thereto, any continuations, continuations-in-part, divisionals, reissues, reexaminations, extensions or additions thereof.

  " Licensed Products " shall mean any product or part thereof in the Licensed Field of Use, the manufacture, use, sale, offer for sale, or importation of which (i) is covered by one or more claims of the Licensed Patent or (ii) utilizes an Improvement invented, conceived, made, developed, discovered, first reduced to practice or created by SCOLR prior to the Effective Date.

  " Parties " shall mean both SCOLR and ADM, and the " Party " shall mean either of them.

  " Qualified Offering " shall mean the sale of SCOLR’s capital stock in a transaction that results in net proceeds to SCOLR (after deduction of fees and expenses related to such offering) of not less than US$10,000,000.

  " Territory " shall mean worldwide.

ARTICLE 2

GRANT OF LICENSE

2.1. SCOLR Licensed Patent . While this Agreement is in effect, and subject to the terms and conditions hereof, SCOLR hereby grants to ADM an exclusive, royalty-free license,

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with the right to grant sublicenses, to manufacture, have manufactured on its behalf, use, sell and offer to sell the Licensed Products in the Territory. While this Agreement is in effect and ADM is performing its obligations hereunder, SCOLR shall not grant other licenses under the Licensed Patent in the Territory for the Licensed Field of Use or itself manufacture, have manufactured, use, sell, market, offer for sale or import Licensed Products in the Territory. All other rights are retained by and reserved to SCOLR.

2.2. Improvements . SCOLR shall promptly disclose to ADM any Improvements that are invented, conceived, made, developed, discovered, first reduced to practice or created by SCOLR, its employees or agents, during the term of this Agreement and that apply to Licensed Products. ADM shall have the option to obtain a license with respect to the Intellectual Property embodied in any such Improvements and any patents or patent applications therefor with respect to the Licensed Field of Use, and if ADM so exercises its option then the same shall come under this Agreement and be subject to the terms and provisions hereof. SCOLR may file for patent protection for any such Improvements as it sees fit at its cost. If SCOLR fails to pursue patent protection to the extent desired by ADM, and ADM exercises its option hereunder, then ADM may pursue such patent protection, at its cost, in the name of SCOLR after providing SCOLR with thirty (30) days advance written notice thereof and SCOLR failing to take such action itself during such period of time. Each Party shall provide cooperation to the other Party to execute any documents necessary to effectuate such patent protection. Notwithstanding the foregoing, SCOLR shall have no obligation to develop any Improvements or seek patent protection for any such Improvement.

2.3. Termination of Other Rights . Except as set forth in this Agreement, all other grants, licenses and other rights, including Intellectual Property rights, granted to ADM pursuant to the terms of the Existing Agreement are hereby terminated.

ARTICLE 3

PAYMENTS

In consideration for ADM agreeing to amend and restate the Existing Agreement on the terms hereof, which amendments include the termination of certain Intellectual Property rights previously granted by SCOLR to ADM, SCOLR hereby agrees to make the following payments to ADM:

3.1. Initial Payment . On the Effective Date, SCOLR shall pay US$200,000 to ADM by wire transfer of immediately available funds to an account to be designated by ADM.

3.2. Subsequent Payment . On the earlier of (i) the one year anniversary of the Effective Date, or (ii) the date on which SCOLR consummates a Qualified Offering, SCOLR shall pay US$250,000 to ADM by wire transfer of immediately available funds to an account to be designated by ADM.

3.3. Books and Records . ADM acknowledges that SCOLR has certain royalty obligations to third parties arising out of the Licensed Patent. Accordingly, ADM shall keep and retain, for not less than three (3) years, full, complete and accurate books of account and records

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relating to the manufacture, use and sale or other disposition of the Licensed Products by or for ADM in such detail as will enable SCOLR to evidence what royalties are payable to any such third party. Such books and records shall be consistent with ADM’s overall financial statements and in compliance with generally accepted accounting principles and practices in the United States, consistently applied. ADM shall, during business hours and upon reasonable notice, permit an independent accounting firm (retained by SCOLR) that has entered into a secrecy agreement reasonably acceptable to the parties access to such books and records for the sole purpose of verifying any such royalty obligations of SCOLR. The verification will take place at SCOLR’s expense.

ARTICLE 4

INFRINGEMENT

4.1 Notification . In the event that ADM or SCOLR has reason to believe that a third party is infringing upon the Licensed Patent, such party shall promptly notify the other party in writing of such alleged infringement.

4.2 Infringement Actions .

• (a) Upon notification of potential infringement pursuant to Section 4.1 , ADM shall have the option to enforce the Licensed Patent in the Licensed Field of Use itself or request SCOLR to enforce the Licensed Patent in the Licensed Field of Use. In the event ADM elects to enforce the Licensed Patent, the reasonable costs of such action shall be borne by ADM. In the event ADM elects to have SCOLR enforce the Licensed Patent, ADM shall provide SCOLR with written notice thereof, and to the extent deemed reasonably necessary by ADM, SCOLR shall commence an infringement action, in which event the reasonable costs of such action shall be borne equally by the Parties.

  (b) Notwithstanding Section 4.2(a) , SCOLR shall have the right (but not the obligation) to enforce the Licensed Patent in the Licensed Field of Use if ADM opts to enforce the Licensed Patent pursuant to Section 4.2(a) but, in the reasonable determination of SCOLR after not less than 30 days’ prior written notice to ADM, ADM has failed to take reasonable action to enforce the Licensed Patent. In the event that SCOLR elects to enforce the Licensed Patent, the reasonable costs of such action shall be borne by SCOLR.

  (c) The benefits of any damages recovered from an action relating to enforcement of the Licensed Patent in the Licensed Field of Use (after each Party recovers any share of its costs of such action) shall be distributed to ADM.

  (d) In any such infringement action, the Party commencing the action (the " Participating Party ") shall keep the other Party (the " Non-participating Party ") advised of the progress of the litigation and shall provide the Non-participating Party with drafts of the pleadings, discovery, motions, and briefs prior to filing for the Non-participating Party’s review and comment. In addition, the Participating Party shall consult with the Non-participating Party with regard to every material decision required to be made during the litigation. The

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• Participating Party shall adopt the Non-participating Party’s comments and recommendations during the litigation except to the extent they may materially impact the Participating Party’s commercial best interests, as determined by the Participating Party. In any such infringement action or claim brought, the Non-participating Party shall upon the Participating Party’s request, cooperate with the Participating Party in all respects, and make available to the Participating Party all relevant information and witnesses who are employees or within the control of the Non-participating Party. To the extent necessary, each Party agrees to be joined as a party in any litigation where it is an indispensable party.

ARTICLE 5

LIMITED WARRANTY AND INDEMNIFICATION

5.1. Limited Warranty .

• (a) SCOLR represents and warrants to ADM as follows:

  • • (i) SCOLR possesses the full legal right, authority and