Attached files
***Text Omitted and Filed Separately
with the Securities and Exchange Commission.
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4) and Rule 24b-2 of
the
Securities Act of 1934, as amended.
Exhibit 10.9
SECOND ADDENDUM TO THE NIAGEN®
SUPPLY AGREEMENT
BETWEEN
NECTAR7 LLC AND CHROMADEX, INC.
This Second Addendum (the “Second Addendum”),
effective and binding as of the last date of signing of this Second
Addendum (“Second Addendum
Effective Date”), is attached to and forms part of the SUPPLY
AGREEMENT (the “Agreement”) dated August 28, 2015 and
the First Addendum dated September 30, 2015, made by and between
ChromaDex, Inc., a California corporation, having a principal place
of business at 10005 Muirlands Blvd, Suite G, Irvine, CA 92618
(“Seller”) and Nectar7 LLC, a Delaware limited liability
company, with principal
offices located at 12526 High Bluff Drive, Suite 210, San Diego, CA
92130 (“Buyer”). To the
extent that any of the terms or conditions contained in this Second
Addendum may contradict or conflict with any of the terms or
conditions of the Agreement or the First Addendum, it is expressly
understood and agreed that the terms of this Second Addendum shall
take precedence and supersede the Agreement and First
Addendum.
RECITALS
WHEREAS, the parties desire to
further amend the Agreement and First Addendum as provided
herein;
NOW THEREFORE, for good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1.
Amend the
Definitions for “Excluded Field” and “Excluded
Products” by replacing them in their entirety with the
following definitions:
“Excluded Field” means the
Doctor Channel, the Multi-Level Marketing Channel and the Direct
Response Channel and the following retailers or their applicable
operating affiliates (each a “Retailer”): Costco
Wholesale Corporation (“Costco”), Wal-Mart Stores, Inc.
(“Walmart”), Walgreens Boots Alliance, Inc.
(“Walgreens”), Meijer, Inc. (“Meijer”),
Shopko Stores Operating Co., LLC (“Shopko”), Publix
Super Market’s, Inc. (“Publix”), Ahold U.S.A.,
Inc. (“Ahold”), QVC, Inc. (“QVC”), eVine
Live, Inc. (“eVine”), HSNi, LLC (“HSN”),
Target Corporation (“Target”), but excluding CVS
locations in Target Stores, The Kroger Co. (“Krogers”),
Wegmans Food Markets, Inc. (“Wegmans”), Ulta Salon,
Cosmetics & Fragrance, Inc. (“Ulta”), Vitacost.com,
Inc. (“VitaCost”),
the “Doctor
Channel” is defined herein as the sale of nutritional
supplements through licensed healthcare practitioners. The
“Multi-Level
Marketing Channel” is defined herein as the sale of
the Finished Products through a network of independent marketing
representatives. The “Direct Response Channel”
is defined here in as the marketing and advertising of the Finished
Product through direct response television and radio advertisements
of any length or format intended to reach one or more potential
consumers asking such consumers to purchase from or respond
directly to Buyer or Buyer’s agents via a website, telephone
number or other medium to purchase the Finished Products.
Additional channels may be added to this definition of
“Excluded Field” at any time by the Seller, in its sole
discretion, upon thirty (30) days prior written notice to
Buyer.”
“Excluded Products” means
topical skincare or cosmetics products, any and all dietary
supplements in the form of an energy shot or a melt (melting or
dissolvable tablet or delivery system), the combination of
NIAGEN® with
pterostilbene, the combination of NIAGEN® with Choline
and/or Betaine and/or dimethylglycine (DMG) (all forms), unless the
Finished Product is a multi-vitamin, and Finished Products with
“Methyl Donor” claims. Seller may add additional
products to this definition of “Excluded Products”, in
its sole discretion, upon written notice to Buyer; provided, that, such added products do
not impair the rights of Buyer to purchase the Product for the
applications set forth on Exhibit B."
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2.
Amend Section 2 of
the Agreement by adding Section 2.3 which states the
following:
“2.3
Right to Sell Limitation. For
ninety (90) days from January 8, 2016, Buyer agrees not to have any
discussions with retailers regarding Finished Products. As
consideration for Buyer’s agreement, for one (1) year from
the Second Addendum Effective Date, Buyer shall receive
[…***…] percent
([…***…]%) of revenue Seller generates from
NIAGEN®
sales to
[…***…].”
3.
Amend Exhibit B -
Exclusivity Rights for Finished Products in the First Addendum, as
they pertain to the Product Application for the combination of
NIAGEN®
and collagen. The Minimum
Revenues/Obligations “Minimum Revenues” are amended in
that the Minimum Revenue requirement for 2016 is
$[…***…] instead of $[…***…].
4.
Amend Exhibit B -
Exclusivity Rights for Finished Products, as it pertains to the
Product Application for wound healing. The Minimum
Revenues/Obligations “Minimum Revenues” are replaced in
its entirety with the language set forth below and the Term
increased from five (5) to ten (10) years.
***Confidential Treatment
Requested
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EXHIBIT
B
Exclusivity
Rights
|
Product
|
|
Product Application
|
|
Term
|
|
Exclusivity Area/Region
|
|
Minimum
Revenues/Obligations
“Minimum Revenues”
|
|
|
|
|
|
|
|
|
|
|
|
NIAGEN®
|
|
Finished Products for wound healing, including prevention and
treatment, with the exception of cosmetics, prescription drugs
and Over-the-Counter (OTC) therapeutic category subtopics:
Acne; Dandruff; Seborrheic Dermatitis; Psoriasis; Skin Protectant;
Sunscreen.
|
|
Ten (10) years
|
|
The world
|
|
2016: Minimum Revenues are
waived but Buyer must continue development and demonstrate proof of
concept to the reasonable satisfaction of Seller by year
end.
2017: Minimum Revenues are
waived but Buyer must launch at least one (1) Finished Product
containing the Product.
2018: Minimum Revenue of
$[…***…]
2019: Minimum Revenue of
$[…***…]
2020: Minimum Revenue of
$[…***…]
2021: Minimum Revenue of
$[…***…]
2022: Minimum Revenue of
$[…***…]
2023: Minimum Revenue of
$[…***…]
2024: Minimum Revenue of
$[…***…]
2025: Minimum Revenue of
$[…***…]
Every year thereafter shall be negotiated in good
faith.
|
5.
Amend Exhibit B -
Exclusivity Rights for Finished Products, as it pertains to the
Product Application for Dietary Supplement in the form of a table
or capsule. Indonesia shall be added as a country for exclusivity.
The Exclusivity Area/Region shall include the language set forth
below.
***Confidential Treatment
Requested
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EXHIBIT B
Exclusivity Rights
|
Product
|
|
Product Application
|
|
Term
|
|
Exclusivity Area/Region
|
|
Minimum
Revenues/Obligations
“Minimum Revenues”
|
|
|
|
|
|
|
|
|
|
|
|
NIAGEN®
|
|
Dietary Supplement in the form of a tablet or capsule
|
|
Seller launches product within 1 year of Effective Date in each
country or loses exclusivity for that specific country
|
|
Philippines, Taiwan, Hong Kong (not all of China), Singapore,
Indonesia
|
|
For 6 months from Second Addendum Effective Date, Minimum Revenues
are waived but Buyer must launch at least one Finished Product
containing the Product:
$[…***…] for Year 1 (Year 1 begins 6 month after the
Effective Date)
$[…***…] for Year
2
$[…***…] for Year
3
$[…***…] for Year
4
$[…***…] for any
single twelve (12) month period between the Second Addendum
Effective Date and 2020.
|
6.
Amend Exhibit B -
Exclusivity Rights for Finished Products, by adding a Product
Application for pets. Buyer shall have exclusivity rights to sell
Finished Products to pets, provided that there is also one (1)
third party entitled to sell Finished Products within the Product
Application for pets.
***Confidential Treatment
Requested
-4-
EXHIBIT B
Exclusivity Rights
|
Product
|
|
Product Application
|
|
Term
|
|
Exclusivity Area/Region
|
|
Minimum
Revenues/Obligations
“Minimum Revenues”
|
|
|
|
|
|
|
|
|
|
|
|
NIAGEN®
|
|
Finished Products for pets, with the exception of one (1) third
party who may also sell Finished Products within this Product
Application
|
|
Three (3) years
|
|
The world
|
|
2016: Minimum Revenues of
$[…***…]
2017: Minimum Revenues of
$[…***…]
2018: Minimum Revenue of
$[…***…]
Every year thereafter shall be negotiated in good
faith.
|
7.
Amend Exhibit B -
Exclusivity Rights for Finished Products, as it pertains to the
Product Application for sports hydration beverages to include
energy drinks and waters, including vitamin waters.
***Confidential Treatment
Requested
-5-
EXHIBIT B
Exclusivity Rights
|
Product
|
|
Product Application
|
|
Term
|
|
Exclusivity Area/Region
|
|
Minimum
Revenues/Obligations
“Minimum Revenues”
|
|
|
|
|
|
|
|
|
|
|
|
NIAGEN®
|
|
Sports hydration beverages, energy drinks, and waters, including
vitamin waters all with a Nutrition Facts label and a net quantity
contents greater than 2 oz.
|
|
1 Year
|
|
United States
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|
Meet with 1 potential customer and have made meaningful progress
toward deal to the reasonable satisfaction with Seller within 90
days of the Second Addendum Effective Date.
Exclusivity rights and obligation for each category will be
negotiated in good faith upon signed supply deal.
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8.
All other terms and
conditions of the Agreement and First
Addendum remain the same.
9.
This
Second Addendum may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together
shall constitute one and the same instrument. Facsimile,
Portable Document Format (PDF) or photocopied signatures of the
Parties will have the same legal validity as original
signatures.
IN WITNESS WHEREOF, the parties have executed this Second Addendum
by their duly authorized representatives for good and valuable
consideration.
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CHROMADEX,
INC.
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|
NECTAR7
LLC
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|
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By: /s/ Troy Rhonemus
Name: Troy Rhonemus Title: COO
Date: 1/28/2016
|
|
By: /s/ David
D’Arcangelo
Name: David
D’Arcangelo
Title: Manager
Date: 1/28/16 |
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