TO AN ORDER HEREUNDER, IF
OCCASIONED BY ANY CIRCUMSTANCE OR CONDITION BEYOND THE CONTROL OF THE PARTY SO
FAILING, SHALL NOT SUBJECT THE FAILING PARTY TO ANY LIABILITY TO THE OTHER AND,
AT THE OPTION OF EITHER PARTY, THAT ORDER OR PORTION THEREOF NOT DELIVERED MAY
BE CANCELED;
(H)
ACCEPTANCE OF MWI'S ORDER BY PFIZER IS
EXPRESSLY MADE CONDITIONAL UPON MWI'S ACCEPTANCE OF THE CONDITIONS OF SALE AS
SET FORTH HEREIN, AND THE PRICES, TERMS AND CONDITIONS OF THE PRICE LIST THEN IN
EFFECT, NOTWITHSTANDING ACKNOWLEDGMENT OR RECEIPT OF MWI'S PURCHASE ORDER
CONTAINING ADDITIONAL OR DIFFERENT PROVISIONS, OR CONFLICTING ORAL
REPRESENTATIONS BY ANY AGENT OF PFIZER;
(I)
IN NO EVENT SHALL MWI BE LIABLE TO
PFIZER FOR SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THE PURCHASE, RESALE, OR USE OF THE PRODUCTS.
8.
MWI SHALL NOT DELEGATE ITS DUTY OF
PERFORMANCE OR ASSIGN ITS OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF PFIZER.
9.
THIS AGREEMENT SHALL NOT BE BINDING
UPON PFIZER UNTIL IT IS APPROVED BY PFIZER AT ITS NEW YORK, NEW YORK
HEADQUARTERS.
10.
THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE
DATE FIRST WRITTEN ABOVE AND SHALL CONTINUE IN FORCE UNTIL DECEMBER 31, 2010
(HEREINAFTER, "CONTRACT TERM"). FOR THE PURPOSE OF CALCULATING THE YEAR END
REBATES SET FORTH IN EXHIBIT A AND THE CUSTOM MARKETING PROGRAM FUNDS SET FORTH
IN EXHIBIT B, THE CONTRACT TERM WILL BE DIVIDED INTO TWO ONE-YEAR TERMS AS
FOLLOWS: JANUARY 1, 2009 TO DECEMBER 31, 2009 (HEREINAFTER, "CONTRACT YEAR
2009") AND JANUARY 1, 2010 TO DECEMBER 31, 2010 (HEREINAFTER, "CONTRACT YEAR
2010"). PFIZER MAY TERMINATE THIS AGREEMENT PRIOR TO THE EXPIRATION DATE WITH OR
WITHOUT CAUSE, UPON THIRTY (30) DAYS WRITTEN NOTICE TO MWI. EITHER PARTY MAY
TERMINATE THIS AGREEMENT IMMEDIATELY UPON WRITTEN NOTICE, IN THE EVENT OF A
MATERIAL BREACH BY THE OTHER PARTY. UPON ANY TERMINATION OF THIS AGREEMENT FOR
ANY REASON PRIOR TO THE EXPIRATION DATE PFIZER SHALL HAVE THE RIGHT TO BUY BACK
FROM MWI ALL INVENTORY OF THE PRODUCTS OWNED BY MWI AT THE TIME OF TERMINATION
AT A PRICE EQUAL TO MWI'S PURCHASE PRICE FROM PFIZER OF SUCH INVENTORY.
11.
MWI AND PFIZER AGREE THAT, UNDER THE
SPECIFIC CIRCUMSTANCES DELINEATED HEREIN, 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.
A.
THE SPECIFIC CIRCUMSTANCES WHICH WILL
ENABLE PFIZER TO INITIATE RECOUPMENT ARE:
I.
MWI BECOMES INSOLVENT WHICH SHALL BE
DEFINED AS:
(A)
THE SUM OF MWI'S DEBTS IS GREATER THAN ALL
OF MWI'S PROPERTY ("BALANCE SHEET TEST"); OR
(B)
MWI IS GENERALLY NOT PAYING ITS DEBTS AS
THEY COME DUE; OR
(C)
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.
II.
MWI COMMENCES A LIQUIDATION OF ITS
OPERATIONS BY MEANS OF A SALE OF