SUPPLY AGREEMENT

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 under the laws of Illinois with offices located at 625 Cleveland Avenue, Columbus, OH 43215 (including predecessor and successor entities, subsidiaries, divisions and Affiliates, “PURCHASER”), and Martek 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 March 31 ^st , 2000, which License Agreement is amended by this Agreement solely to the extent expressly provided for herein (as so amended, the “License Agreement”), wherein SELLER has granted to PURCHASER in the Territory (as defined therein) certain rights under Licensed Patents (as defined therein) and Technology (as defined therein) (A) to produce the Licensee Product (as defined therein), (B) to use and make the Martek Products (as defined therein) for purposes of making and having made the Licensee Product and (C) to use, market and distribute the Licensee Product, 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 License Agreement and as otherwise set forth herein; and

     WHEREAS, such purchase and supply of the Martek Products shall be subject to the terms and conditions set forth in this Agreement.

     NOW, THEREFORE, in consideration of the foregoing premises and of the mutual undertakings herein contained, the parties agree as follows:

ARTICLE 1. DEFINITIONS

     Unless defined herein, all capitalized terms will have the meaning stated in the License Agreement, as amended hereby. References herein to SELLER and PURCHASER shall also be deemed as references 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 modified by written agreement of the parties.

     1.2 * shall mean* as such * may be modified by written agreement of the parties.

     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 products marketed to and intended for use by children from twelve (12) through thirty-six (36) months of age.

     1.6 “Martek Product Specifications” shall mean the specifications for the Martek Products to be supplied hereunder, as set forth in Exhibit C attached hereto, as such Exhibit may be modified by 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 the License Agreement, during the Term and subject to the terms of this Agreement including without limitation Section 2.7, PURCHASER shall purchase, and/or shall direct the Designee(s) (as defined in Exhibit B hereto) to purchase, from SELLER, PURCHASER’s total requirements of DHA and ARA as required by PURCHASER for use in the manufacture of Infant Formula Products in the Territory in accordance 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 ARA for research and development purposes, or * to the extent not prohibited by this Agreement or the License Agreement. For purposes hereof, * includes the * of each formulation of each Licensee Product 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 Agreement shall be used solely for purposes of manufacture and production of Licensee Products, or for research 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 the Effective Date, the provisions of Sections 2.4(i) and 4.1(vi) of the License Agreement shall be deleted and of no further force or effect, and shall be replaced by the following provisions, which shall survive termination of this Agreement until any later termination or expiration of the License Agreement:

	(i)		SELLER agrees that (A) the price per Unit of Martek Products and the corresponding price per kilogram, for the same volume of Martek Products for use in Infant Formula Products, charged to PURCHASER have been, since the effective date of the 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, unless consented 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 agreed replacement 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 shall not apply with respect to any company that is an * with respect to Infant Formula Products operating in * as of the Effective Date, or to any company that has received a written 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 of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the remainder of the current calendar year. Not later than September 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees 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 provide SELLER with a forecast (a “Rolling Forecast”) of PURCHASER’s requirements for the Martek Products for 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 considered a 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”) at least sixty (60) but no more than ninety (90) days in advance of the date on which PURCHASER or the Designee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * of the relevant volumes specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts shall be accepted and filled by SELLER as is commercially reasonable.

     2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of

the parties. SELLER shall acknowledge all Purchase Orders submitted in accordance with this Agreement 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 on who placed the Purchase Order, shall pay for the Martek Products that it orders and receives delivery of in accordance with the terms of this Agreement, at the prices determined in accordance with Exhibit A attached hereto (the “Purchase Price”). Since the Purchase Price per Unit of Martek Product is based on an annual volume purchase level, the Purchase Price invoiced for Martek Products purchased hereunder during a given calendar year shall be set using the annual forecasts submitted to SELLER by PURCHASER on September 30 ^th of the prior calendar year in accordance with Section 2.2.1, subject to adjustments, if applicable, as provided in Section 2.3.2. Notwithstanding the foregoing, if PURCHASER’s relevant September 30 forecast indicates an annual volume that is * below the volume required for the next lower pricing tier, such lower price will be utilized for the invoiced Purchase Price for the relevant calendar year, subject to adjustments, if applicable, as provided in Section 2.3.2.

     2.3.2 Adjustments . If the quantity used to determine the invoiced Purchase Price as provided in Section 2.3.1 is greater than the quantity actually purchased during the relevant calendar year, and, as a result, the Purchase Price paid per Unit of Martek Product should have been 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 the total Purchase Price paid and the total Purchase Price payable for the quantity of Martek Products actually purchased from SELLER as specified in Exhibit A. Alternatively, if the quantity actually purchased during the relevant calendar year exceeds the quantity used to determine the invoiced Purchase Price as provided in Section 2.3.1 for such calendar year, and, as a result, the Purchase Price paid per Unit of Martek Product should have been lower in accordance with Exhibit A, then SELLER shall credit against future purchases of the Martek Products by PURCHASER from SELLER an amount equal to the difference, if any, between the total Purchase Price payable for the quantity actually purchased as specified in Exhibit A and the total Purchase Price paid by PURCHASER. Any credit due to PURCHASER shall be made available within thirty (30) days after the end of such calendar year. In the event this Agreement terminates or is cancelled prior to the end of a calendar year, then the payments or, in lieu of credits for future purchases, reimbursements required to effectuate the foregoing shall be made within thirty (30) days of the date following such termination or cancellation.

     2.3.3 Collaboration . In each calendar year (or prorated portion thereof) during the Term, SELLER agrees to provide, as requested by PURCHASER, up to* man hours (or prorated portion thereof in the event of less than a full calendar year) of reasonable assistance to PURCHASER in PURCHASER’s efforts to identify efficiencies in PURCHASER’s shipping and handling of the Martek Products and in other areas as mutually agreed. As to any efficiencies in shipping and handling that may be attained pursuant to the foregoing sentence, * of any resulting savings shall accrue to PURCHASER, and, as to any other efficiencies, the parties shall mutually negotiate and agree in good faith on an apportionment of any savings resulting therefrom prior to undertaking such collaborative efforts.

     2.3.4 Taxes . The Purchase Price for the Martek Products is exclusive of any and all national, state or local sales, use, value added or other similar taxes, customs duties and similar tariffs and fees which SELLER or its Affiliates may be required to pay or collect upon the delivery of the Martek Products, or otherwise. Should any such tax or levy be made, PURCHASER agrees to pay such 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 correct invoices 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 of delivery of the invoiced Martek Products in accordance with Section 2.4.1 below. Invoices to Designees shall not reference any Martek Product other than that being delivered for the benefit of PURCHASER hereunder. For any invoices containing invoicing errors, payment shall not be due with respect to the incorrect portions of the invoice only until the invoicing errors are corrected and a new invoice, with respect to the incorrect portions on the original invoice, is received by PURCHASER. In order to induce SELLER to fill orders for the Martek Products placed by the Designees, PURCHASER hereby agrees to * to ensure the timely payment of, and to assist in the collection of, amounts due from the Designees following receipt from SELLER of written notice of nonpayment of correctly invoiced amounts due hereunder from a Designee. Notwithstanding any other provision of this Agreement or the License Agreement, SELLER, at its reasonable discretion, shall have the right to revoke its approval of a particular Designee on sixty (60) days prior written notice to PURCHASER due to SELLER’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 PURCHASER shall provide following each such request, samples for up to six (6) SKUs of the Licensee Products from PURCHASER’s international markets. Reasonable expenses of filling any such requests shall be borne by SELLER. SELLER shall not resell or distribute such Licensee Products and shall use them only 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 or its 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 or its 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 C attached hereto, and *, with respect to all Martek Product delivered hereunder.

     2.4.4 In connection with ordering and delivering the Martek Products hereunder, SELLER and PURCHASER and/or its Designees may employ their standard forms, but nothing in such forms shall be construed to bind SELLER or PURCHASER or its Designees or to modify or amend the terms of this Agreement, 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 require the recall, destruction or withholding from market of any Martek Product or Licensee Product sold hereunder or pursuant hereto (a “Recall”), then SELLER shall bear the costs and expenses of such Recall to the extent such Recall is the result of the fault or omission of SELLER or its agents or subcontractors, including, by way of example only and not limitation, supplying Martek Product that is not in compliance with the Martek Product Specifications *, and PURCHASER shall bear the costs and expenses of such Recall to the extent such Recall is the result of the fault or omission of PURCHASER or its agents or subcontractors.

     2.5.2 Product Complaints . If SELLER receives a complaint from any Third Party, or if SELLER’s quality assurance group, infant formula business unit managers, or senior management otherwise 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 of the complaint, within twenty-four (24) hours.

     2.6 Capacity and Supply .

     2.6.1 SELLER shall manage its manufacturing capacity through process improvement, capital expansion, and/or subcontracting with a Third Party to ensure it has the necessary capacity to manufacture 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 notice prior to contracting with a SELLER TPM, (ii) disclose the identity and manufacturing location of the SELLER TPM, (iii) ensure that the SELLER TPM is bound to perform the relevant obligations of SELLER set forth pursuant to this Agreement, and (iv) before use of such SELLER TPM to supply Martek Product to PURCHASER, the SELLER TPM must be qualified pursuant to PURCHASER’s reasonable qualification 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 Martek Product. In order to help achieve this goal, SELLER shall use reasonable commercial efforts to provide, within six (6) months after the Effective Date, contingency plans for the manufacture by SELLER 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 of the volumes of Martek Product specified in a Rolling Forecast or any outstanding Purchase

Order, then within * of SELLER’s receipt of the relevant Rolling Forecast pursuant to Section 2.2.1, or the occurrence of the event (e.g., a force majeure event or some other event that may interrupt SELLER’s operations) causing such supply concern, SELLER shall in good faith notify PURCHASER in writing of the quantity and timing of any expected shortfall, but any such notification shall not be deemed to be considered a firm commitment or result in any liability or obligation on the part of SELLER except as otherwise expressly set forth in this Agreement.

     2.7 Failure to Supply . In the event that SELLER (a) indicates pursuant to Section 2.6.4 that it is unable to satisfy PURCHASER’s requirements for Martek Product, or (b) fails to supply all of PURCHASER’s requirements for Martek Product pursuant to Purchase Orders accepted and acknowledged in accordance with Sections 2.2.2 and 2.2.3 (a “Shortfall Situation”), then Section 2.7.1 shall apply and, provided that PURCHASER is then in material compliance with the terms of this Agreement, PURCHASER shall be released from the obligation to purchase all of its requirements of 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 that SELLER is capable of supplying, provided that SELLER may allocate Martek Product among its customers so long as SELLER treats PURCHASER*, and in no event shall PURCHASER receive, pursuant to Purchase Orders placed in accordance with the terms of this Agreement, less than that percentage share of available supply capacity that is directly proportionate to PURCHASER’s average percentage of 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 contingency plans established or subsequently developed by the parties that are designed with the objective of ensuring the continuity of uninterrupted supply of Martek Products as ordered by PURCHASER and its Designees and to otherwise overcome as soon as possible the cause for the inability of SELLER to fulfill PURCHASER’s and its Designees’ purchase orders for Martek Product. SELLER shall work collaboratively with PURCHASER to consider and pursue all other reasonable contingency options and plans.

     2.7.2 If a failure to supply occurs during any * of the Term such that SELLER fails to supply at 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 by PURCHASER, (y) PURCHASER may itself manufacture up to the Shortfall Quantity (as defined below) of DHA and/or ARA, as relevant, and/or (z) PURCHASER may obtain any remaining Shortfall Quantity of DHA and/or ARA, as relevant, from other sources by utilizing PURCHASER’s license and sublicensing rights as set forth in the License Agreement.

(a)

PURCHASER may obtain ARA and/or DHA via the foregoing rights for such period of time as is reasonably necessary for PURCHASER to obtain reasonable cover for SELLER’s failure to provide quantities of the Martek Products ordered hereunder by PURCHASER and its Designees, and to the extent otherwise consistent with PURCHASER’s rights under the License Agreement and this Agreement, but without an obligation to pay a Royalty. For purposes hereof, the “Shortfall Quantity” shall mean a monthly quantity that is * of (A) the maximum monthly shortfall amount

reasonably specified by SELLER in any relevant notice given pursuant to Section 2.6.4, or (B) the maximum amount actually ordered by PURCHASER and its Designees pursuant to Purchase Orders placed in accordance with the terms of this Agreement which is not delivered by SELLER in any of the * prior to PURCHASER becoming eligible to exercise its rights under this Section 2.7.2, as relevant.

(b)

Notwithstanding the foregoing subpart (a),

	(i)		In negotiating any such contract for cover, PURCHASER shall reasonably consult with SELLER as to terms being offered and cooperate in good faith with SELLER in SELLER’s reasonable efforts to ensure it can resume its supply of PURCHASER’s total requirements of Martek Product hereunder upon SELLER’s resumption of its ability to supply such requirements. In any event, PURCHASER shall ensure that any contract for cover can be unilaterally terminated by PURCHASER on no more than * notice, unless otherwise agreed in writing by SELLER, such agreement to not be unreasonably withheld.
	(ii)		PURCHASER will use commercially reasonable efforts to minimize the volume requirements and duration of any contract with a Third Party reasonably entered into to obtain cover as permitted herein. In connection with the foregoing sentence, provided SELLER agrees in writing to * PURCHASER for any difference in the price necessary to obtain lesser volumes, a shorter term, and/or a shorter notice period for a unilateral right to terminate early without cause, as applicable, as compared to a lower price that has been offered to PURCHASER in writing by a Third Party for other commercially reasonable terms consistent with PURCHASER’s rights to cover herein, PURCHASER shall agree to accept such higher price in exchange for such obligation of SELLER.

In the event that it is necessary for PURCHASER to contract for more than the Shortfall Quantity in order to obtain cover hereunder pursuant to reasonable commercial terms, PURCHASER shall, following written notice to SELLER of such event, be permitted, subject to the above provisions in this Section 2.7.2, to contract for a reasonable amount in addition to such Shortfall Quantity, provided that, notwithstanding any other provision of this Agreement, PURCHASER shall be required to pay to SELLER the Royalty as provided in the License Agreement (prior to any amendment made hereunder) on Infant Formula Product derived from any such quantity in excess of the Shortfall Quantity. For clarity, if any Shortfall Situation only relates to DHA or ARA, and not both, the rights as provided 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 (including due to the force majeure provision in this Agreement), any amounts obtained by PURCHASER in accordance with this Section 2.7 in order to cover for SELLER’s failure to supply hereunder shall be 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.

     2.7.4 PURCHASER’s exercise of the rights granted in this Section 2.7 shall not be a breach of this Agreement by PURCHASER, and SELLER shall not pursue patent infringement actions against PURCHASER or any Third Party suppliers to the extent their actions are consistent with PURCHASER’s rights 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 manufacturing practices and in accordance with the characteristics, composition, stability and other requirements included 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 to this Agreement will, at the time of such delivery, not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the “ Act ”) or within the meaning of any applicable state or municipal law in which the definitions of adulteration and misbranding are substantially the same as those contained in the Act, as such Act and such laws are constituted and effective at the time of delivery and will not be an article that may not be introduced into interstate commerce.

     3.1.3 If any Martek Products fail to conform to the warranties set forth in Sections 3.1.1 and 3.1.2 above, SELLER, *, shall either replace the nonconforming Martek Products or refund to PURCHASER or its Designee, as applicable, the Purchase Price paid by PURCHASER or its Designee, as applicable, for the nonconforming Martek Products (including duty, freight, insurance charges, and other similar related expenses).

     3.1.4 To the knowledge of any of SELLER’s senior management (which includes SELLER’s General Counsel), as of the signing of this Agreement, there are no valid and enforceable Third Party patents that are infringed by SELLER’s manufacture or sale, in the Territory, of the Martek Products.

     3.2 SELLER’s Disclaimers .

     3.2.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE TECHNOLOGY OR THE MARTEK PRODUCTS. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AND HAS NO DUTY TO ENSURE THAT THE TECHNOLOGY OR THE MARTEK PRODUCTS ARE USABLE WITH THE LICENSEE PRODUCT OR CAN BE INCORPORATED SAFELY INTO THE LICENSEE PRODUCT. IT IS HEREBY ACKNOWLEDGED AND AGREED THAT IT SHALL BE PURCHASER’S RIGHT AND OBLIGATION TO DETERMINE THE SAFETY AND UTILITY OF THE USE OF THE

MARTEK PRODUCTS WITH EACH LICENSEE PRODUCT; PROVIDED, HOWEVER, THAT THIS PROVISION DOES NOT SERVE TO RELIEVE MARTEK OF ITS OBLIGATIONS AS OTHERWISE SET FORTH IN THIS AGREEMENT.

     3.2.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER FURTHER DISCLAIMS ANY WARRANTY RELATING TO THE PATENTABILITY OF, OR THE VALIDITY OF ANY PATENTS RELATING TO, THE TECHNOLOGY, OR THE MARTEK PRODUCTS AND MAKES NO REPRESENTATIONS WHATSOEVER WITH REGARD TO THE SCOPE OF ANY LICENSED PATENTS OR THAT ANY LICENSED PATENTS MAY BE COMMERCIALLY EXPLOITED WITHOUT INFRINGING OTHER PATENTS.

     3.3 Mutual Warranties . SELLER and PURCHASER, as to its respective self, each represents and warrants to the other as follows:

     3.3.1 That its execution and delivery of this Agreement and its performance of the transactions 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 not constitute a breach or violation of any other agreement or understanding, written or oral, to which it or its Affiliates is a party.

     3.3.3 To the best of its knowledge after the exercise of reasonable diligence, as of the Effective Date, no actions have been threatened in writing or are pending before any court or governmental agency or other tribunal that would affect its ability to perform its obligations under this Agreement.

ARTICLE 4. TERM; TERMINATION

     4.1 Term . This Agreement shall commence on the Effective Date and, subject to possible earlier termination of this Agreement in accordance with the terms hereof, shall terminate on the tenth (10 ^th ) anniversary of the Effective Date (the “Term”).

     4.2 Termination .

     4.2.1 Termination in Case of Material Breach; Opportunity to Cure . Either party to this Agreement may terminate this Agreement upon thirty (30) days prior written notice if the other party shall commit a material breach of this Agreement and shall not cure such breach within such thirty (30) day period. Any such written notice to terminate shall include a detailed statement as to the notifying party’s claimed material breach by the notified party.

     4.2.2 Termination in Case of Infringement . PURCHASER shall have the right to terminate this Agreement in a particular jurisdiction within the Territory if a court or other tribunal of competent jurisdiction determines by final order that the Technology or the Martek Products infringe upon the patent or other proprietary rights of any Third Party in such jurisdiction; provided, however, that if, prior to any such termination, SELLER develops a non-infringing

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 commercially reasonable manner as permitted in this Agreement or the License Agreement in connection with the Licensee Products at no additional cost or expense to PURCHASER beyond that expressly provided in this 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 this Agreement may terminate this Agreement upon giving notice to the other, should the other commit an act of bankruptcy, declare bankruptcy, be declared bankrupt, enter into an arrangement for benefit of creditors, enter into a procedure of winding up or dissolution, or should a trustee or receiver be appointed for the other or upon the expropriation, takeover or nationalization of the other party or a majority portion of its assets by governmental action.
	(ii)		In the event of any assignment of this Agreement pursuant to Section 9.7 by SELLER 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 any other entity carrying on an infant formula business substantially similar to the businesses on an equivalent or greater scale to that carried on by any of such named entities, PURCHASER shall be entitled to terminate this Agreement by providing written notice 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 which PURCHASER desires any such termination to become effective shall be indicated in its notice 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 terminate this Agreement effective as of or after the fifth (5 ^th ) anniversary of the Effective Date 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 its Affiliates and Designees may continue, for a period of up to six (6) months, to manufacture and produce Licensee Products containing the Martek Products purchased hereunder, and to thereafter use, market, offer for sale, sell, promote and distribute, to the extent lawful, any such Licensee Products. 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 from PURCHASER 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 shall purchase such Martek Products.

     4.4 Effect on License Agreement . Except to the extent specified in the second sentence of this Section 4.4, the provisions of this Agreement, including without limitation the provisions 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 License Agreement, and such amendments shall survive any termination of this Agreement, and the parties hereby ratify the terms of the License Agreement as amended by this Agreement. Upon termination of this Agreement, notwithstanding any other provision hereof, the License Agreement shall continue in accordance with the terms in effect as amended by this Agreement, except that (a) the amendments in this Agreement to Sections 4.1(iii) through 4.1(vi) of the License Agreement, and (b) the amendment to the License Agreement that is in Section 6 of Exhibit B to this Agreement, shall each be of no further 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 License Agreement shall be deemed deleted in their entirety and replaced with Sections 5.3, 5.4 and 5.5 below.

     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 and agrees that it shall conduct all of its operations dealing with the Technology, the Martek Products and the Licensee Product, in material compliance with all applicable laws, regulations and other requirements 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, the regulations and other requirements of the United States Food and Drug Administration, similar state laws and regulations or similar laws and other requirements in the Territory, including any and all amendments, 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 regulatory approvals for Licensee Products in the Territory that may be necessary in connection with exercise by PURCHASER of the rights granted to it under this Agreement; provided, however, that PURCHASER shall not be obligated to take any specific action or measure to seek regulatory approval for or to market Licensee Products. In connection with the immediately foregoing sentence, PURCHASER shall not intentionally impair SELLER’s ability to obtain any regulatory approval of the Martek Products by the competent governmental authorities in any Territory and for any product that SELLER may elect to pur