OBLIGATION TO CONFIRM WITH PFIZER, PRIOR TO MAKING A
SALE, AS TO WHETHER A DISTRIBUTOR IS AN AUTHORIZED DISTRIBUTOR.) ALL SALES BY
PFIZER TO MWI SHALL BE AT THE THEN CURRENT PFIZER LIST PRICE BUT SUBJECT TO
APPROPRIATE CREDITS IN ACCORDANCE WITH PARAGRAPH 2(E). PFIZER SHALL HAVE THE
RIGHT TO RAISE OR CHANGE THE PRICE OF ANY OR ALL PRODUCTS TO MWI ON /**/ PRIOR
WRITTEN NOTICE. PFIZER SHALL BE FREE TO LIMIT SALES OF ANY OR ALL PRODUCTS TO
MWI IN ADVANCE OF ANY PRICE INCREASE.
(B)
THE PARTIES AGREE THAT PFIZER SHALL NOT BE
OBLIGATED TO ISSUE CREDITS FOR ANY RETURNS THAT EXCEED THE CURRENT AVERAGE OF
RETURNS OF DISTRIBUTORS AS SPECIFIED BELOW UNLESS SUCH RETURNS ARE THE SUBJECT
OF A RECALL OR MADE AT THE REQUEST OF PFIZER. THE CURRENT AVERAGE OF RETURNS OF
DISTRIBUTORS FOR THE CALENDAR YEAR OF THE CONTRACT TIMELINE JANUARY 1, 2010 TO
DECEMBER 31, 2010 SHALL BE:
Distributor Average Returns (credits and exchanges) as a % of sales: /**/
8.
THE PAYMENTS DESCRIBED IN SCHEDULE D
HERETO CONSTITUTE FULL AND COMPLETE COMPENSATION FOR MWI .
9.
ALL RETURNS SHALL BE APPROVED BY PFIZER
AND SUBJECT TO PFIZER'S RETURNED GOODS POLICY, ATTACHED HERETO AS SCHEDULE F.
MWI MAY NOT OFFSET PAYMENT TO PFIZER OF INVOICE AMOUNTS AS CREDIT FOR ANY
COMPENSATION PAYABLE HEREUNDER. PFIZER SHALL MAKE BI-MONTHLY PAYMENTS OF
APPROPRIATE FEES TO MWI.
10.
MWI AND PFIZER AGREE THAT, UNDER THE
SPECIFIC CIRCUMSTANCES DELINEATED IN THIS SECTION 10, PFIZER, AT PFIZER'S SOLE
DISCRETION, MAY RECOUP THE SUMS OUTSTANDING TO IT FROM MWI AGAINST THOSE SUMS
WHICH MAY BECOME DUE FROM PFIZER TO MWI, IN THAT THE OBLIGATIONS ARISE FROM
MUTUAL TRANSACTIONS. THE SPECIFIC CIRCUMSTANCES WHICH WILL ENABLE PFIZER TO
INITIATE RECOUPMENT ARE:
(A)
MWI BECOMES INSOLVENT, WHICH SHALL BE DEFINED
AS:
(I)
THE SUM OF MWI'S DEBTS IS GREATER THAN
ALL OF MWI'S PROPERTY ("BALANCE SHEET TEST"); OR
(II)
MWI IS GENERALLY NOT PAYING ITS DEBTS AS
THEY COME DUE; OR
(III)
MWI HAS FAILED TO ACT IN GOOD FAITH FOR A
PERIOD IN EXCESS OF SIX (6) MONTHS TO RESOLVE ANY OUTSTANDING INVOICE OR
PURCHASE ORDER ISSUES OR RECONCILIATIONS.
(B)
MWI COMMENCES A LIQUIDATION OF ITS
OPERATIONS BY MEANS OF A SALE OF ITS ASSETS IN THEIR ENTIRETY OR PIECEMEAL; OR
(C)
MWI CEASES ITS BUSINESS OPERATIONS WHETHER
OR NOT SUCH CESSATION IS VOLUNTARY OR INVOLUNTARY; OR
(D)
MWI FILES A PROCEEDING PURSUANT TO THE U.S.
BANKRUPTCY CODE OR ANY STATE COURT PROCEEDING, INCLUDING AN ASSIGNMENT FOR THE
BENEFIT OF CREDITORS.
11.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
PRECLUDE MWI FROM NEGOTIATING A SERVICE FEE OR ANY OTHER CONSIDERATION FROM, OR
PROVIDING ANY DISCOUNT OR REBATE TO, ANY CUSTOMER, INCLUDING PARTICIPATING
CUSTOMERS FOR ANY SERVICES PROVIDED BY MWI.
12.
MWI SHALL DISTRIBUTE PFIZER PRODUCTS ONLY
UNDER THE LABELING PROVIDED BY PFIZER OR AS OTHERWISE APPROVED IN WRITING BY
PFIZER; PRESCRIBE, RECOMMEND, SUGGEST, AND ADVERTISE EACH PRODUCT FOR
4
USE ONLY UNDER THE CONDITIONS STATED IN THE LABELING PROVIDED BY