In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

EXHIBIT 10.6

                                  EXHIBIT 10.06

                          WATCHGUARD TECHNOLOGIES, INC.                               DISTRIBUTOR AGREEMENT

This Agreement is made and entered into effective as of November 5, 1997 (the effective Date), by and between WatchGuard Technologies, Inc., a Delaware corporation (WGT), and European Micro (Distributor). WGT and Distributor agree as follows:

Section 1. Definitions

Add-On Software Modules means those computer software programs that (a) provide additional functionality and may be integrated with the existing Hardware and other Software, (b) may be legally exported to the Territory without any export license and (c) WGT elects to include in Exhibit A at a mutually agreed discount percentage.

Distributor Cost means the purchase price payable by Distributor for each Product at the discount from WGT's then current WatchGuard Price List, as such discount is set forth in Exhibit A.

Documentation means any and all manuals, user guides, end-user license agreement, limited hardware warranty, on-line help files, on-line menus and other in program printed text regarding the Product prepared by or for WGT in connection with the Product.

Gross Purchases means the gross purchase price Distributor pays WGT for the Product, excluding any taxes or pass through charges and net of any credits or returns.

Guaranteed Minimum Purchases means the guaranteed minimum purchase amounts set forth in Exhibit A.

Hardware means the hardware identified on Exhibit A, together with any Updates to such hardware. WGT reserves the right to add to or delete hardware from Exhibit A and to modify the hardware during the Term.

Product means the combination of Hardware, Software and Documentation together as part of the same product package (including any Add-On Software Modules and any Updates thereto), in all cases carrying the WatchGuard Trademark.

Quarter means any period of three (3) consecutive calendar months that begins on January 1, April 1, July 1 or October 1, during the Term.

Software means the computer programs identified on Exhibit A, in object code only, together with any Updates to such programs. WGT reserves the right to add or delete Software from Exhibit A and to modify the Software during the Term.

Term means the period of time determined in accordance with Section 5.

Territory means the geographic area described in Exhibit A.

Trademarks means the trademarks and trade names of WGT identified in Exhibit A.

Update means any minor modification, minor upgrade or minor enhancement of the Product (excluding any new version of the Product) that WGT publishes and elects to make available to Distributor via BBS, FTP site or other reasonable means. WGT is not obligated to make or release any update.

Section 2. Relationship of the Parties

2.1  Appointment. Subject to and in accordance with the provisions of this      Agreement, WGT hereby appoints Distributor, and Distributor hereby accepts      WGT's appointment, as a nonexclusive distributor of the Product to      resellers in the Territory during the Term, as long as Distributor makes      the Guaranteed Minimum Purchases pursuant to Section 4.

2.2  License Grant. Subject to the terms and conditions of this Agreement, WGT      grants to Distributor a nontransferable license to do the following in the      Territory during the Term:

(a)  market and distribute the Product to resellers;

(b)  demonstrate the Product to potential resellers;

(c)  use the Product internally for the sole purpose of providing this product      support specified in paragraph 4.1(c);

(d)  use and display the Trademarks in connection with marketing and      distributing the Product in the Territory pursuant to paragraphs (a) and      (b) above.

2.3  No Exclusivity. Distributor's appointment and the rights granted hereunder      are nonexclusive. WGT may, at its sole option, appoint other distributors      of the Product in the Territory at any time during the Term and expressly      reserves the right to license the Product directly or indirectly to





     end-users, third party original equipment manufacturers or other hardware      bundlers, value-added resellers or other resellers for sublicense or resale      in the Territory.

Section 3. Compensation

3.1  Support services. As full compensation for the support services described      in Exhibit C and provided during the Term, Distributor will pay WGT the      Support Fee set forth in Exhibit A. Payment of the Support Fee is due and      payable upon execution of this Agreement by wire transfer of immediately      payable funds to the bank and account set forth in paragraph 3.4, and then      annually by invoice from WGT on the anniversary of the execution of the      Agreement.

                                       2

3.2  Price. Distributor will pay WGT for each Product Distributor orders an      amount equal to WGT's then current WatchGuard Price List in effect on the      date of receipt by WGT of Distributor's order, subject to the applicable      discount set forth in Exhibit A. WGT may, from time to time, change its      WatchGuard Price List, provided that any such change will not be effective      under this Agreement unless and until the expiration of forty-five (45)      days after WGT gives Distributor written notices of the change.

3.3  Guaranteed Minimum Purchases. During the Term, Distributor will make Gross      Purchases in an amount at least equal to the cumulative Guaranteed Minimum      Purchase amounts through committed orders placed pursuant to paragraph 3.5      and calling for shipment on or before the dates set forth in Exhibit A.

3.4  Invoices. WGT will issue invoices for the Products ordered by Distributor      and all other amounts payable to WGT under this Agreement. Distributor will      pay WGT the full amount invoiced within thirty (30) days after the date of      WGT's invoice, unless provided otherwise on the applicable invoice, in the      lawful money of the United States of America to WGT by wire transfer of      immediately available funds to WGT's bank account number 1141139, at the      Commerce Bank of Washington, 601 Union Street, Suite 3600, Seattle, WA      98101, ABA routing number 125008013.

3.5  Orders. Distributor will place orders for the Product from WGT by      completing, signing and submitting to WGT a written order for the same, in      a form acceptable to WGT, via facsimile, mail or other means. Distributor      shall submit such order at least thirty (30) days in advance of the      delivery date set forth in each order. All orders will be subject to      acceptance by WGT through written acceptance or shipment of the Product      subject to the order.

Section 4. General Obligations of the Parties.

4.1  Obligations of Distributor. Distributor will use its best efforts      aggressively to develop sales of the Product in the Territory. In      furtherance thereof, Distributor will:

(a)  keep on hand a reasonable inventory of the Product sufficient to allow for      prompt delivery of the Product to resellers;

(b)  establish a program to market the Product, including, but not limited to,      participating regularly in local and regional trade shows, conventions or      like events in the Territory, and conducting regular local promotional and      other marketing efforts for the Product;

(c)  provide quality product support to resellers, including, but not limited      to, providing appropriate installation and application advice and prompt      follow-up service and advice to resellers of the Product upon request;

 (d) provide a support center to resellers, including, but not limited to, a      hotline service to answer reseller questions and to receive and track      complaints and any reports of claimed errors in the Product;

                                       3

(e)  provide quality product technical and sales training to resellers;

(f)  respond promptly to sales leads or referrals furnished by WGT or by other      distributors or dealers of WGT;

(g)  have a designated number of employees attend such technical and sales      training programs as set forth in Exhibit C;

(h)  maintain and furnish periodically, as WGT may reasonably request, complete      and accurate records of each sale or other distribution of each Product      sold or distributed by Distributor (e.g., showing the date of sale, Zip      code of the customer, the Product serial number and the applicable Product      license key(s)) under this Agreement;

(i)  promptly advise WGT of each complaint that Distributor may receive or      becomes aware of concerning the Product or any portion thereof (including,      but not limited to, warranty claims). Distributor will promptly investigate      all such complaints and will give immediate attention to and use its best      efforts to promptly, courteously and equitably respond to, adjust and      settle (without incurring any obligation or liability on behalf of WGT) all





     complaints received by Distributor from any customer, potential customer or      anyone else arising out of or in connection with Distributor's sale of any      Product, or the performance of any services. In handling any complaints,      Distributor will use its best efforts to maintain and promote good public      relations for WGT;

(j)  secure and maintain, in the name of WGT, any and all registrations,      permits, licenses, approvals and other governmental actions required to      import, handle, market, sell, demonstrate, use and distribute the Product      in the Territory, provide to WGT quarterly progress reports on such action,      and provide WGT copies of all registrations, permits, licenses, approvals,      certificates, correspondence and other documentation related to such      action;

(k)  hire, train, coordinate and maintain a qualified staff of sufficient size      and with a level and mix of capabilities as are reasonably necessary to      accomplish the goals contemplated under this Agreement;

(l)  avoid deceptive, misleading or unethical conduct which are or might be      detrimental to WGT or its Product, and refrain from making any      representation, warranty or guarantee to any reseller with respect to      specifications, features or capabilities of the Product that is      inconsistent with the literature distributed by WGT or this Agreement;

(m)  conduct its business in a manner under its own control, provided that      Distributor will at all times comply with all applicable laws and      regulations and will not engage in, or permit its employees or agents to      engage in, any activities or practices which could reflect negatively upon      the reputation or prospects of WGT or the Product or expose WGT to any      liability of any nature whatsoever; and

4.2 Obligations of WGT, WGT will:

                                       4

(a)  provide Distributor with sixty (60) days advance notice in the event that      it discontinues production of any Product;

(b)  provide Distributor with the training and product support services      described in Exhibit C; and

(c)  furnish Distributor with such demonstration Product, promotional      literature, data, information and other items as WGT deems appropriate for      Distributor's promotion, marketing and sale of the Product. WGT will use      such items only for the purpose of performing its obligations under this      Agreement.

4.3  Forecasts. Distributor's forecast of Product purchases for the Term is set      forth on Exhibit D. At least fifteen (15) days before the beginning of each      Quarter during the Term, Distributor will furnish WGT with a rolling      revised forecast of Product orders for the remainder of the Term.

Section 5. Term and Termination.

5.1  Term. The Term will commence on the Effective Date of this Agreement and      will remain in effect, unless sooner terminated under paragraphs 5.2, 5.3,      or 5.4, until the termination date specified in Exhibit A.

The Term will automatically renew for successive additional periods of one (1) year each, provided that: (a) Distributor has made all Guaranteed Minimum Purchases and has complied with the marketing requirements under paragraph 4.1(b); (b) the parties have agreed in writing upon the Guaranteed Minimum Purchase amounts and Product price discounts for the next subsequent one (1) year renewal period; (c) neither party provided the other party with notice of such party's intention not to renew this Agreement at least thirty (30) days prior to any year's Expiration Date; and (d) neither party provided the other party with such notice as may be required pursuant to paragraphs 5.2, 5.3 or 5.4.

5.2  Termination by WGT. Upon the occurrence of any of the following, WGT may      terminate the Term by giving Distributor written notice of such termination      for:

(a)  any failure of Distributor to comply with the marketing requirements under      paragraph 4.1(b);

(b)  any material change in the general management, ownership or control of      Distributor, including without limitation the sale, transfer or      relinquishment by Distributor of any substantial interest in the ownership      of the business to be carried on by Distributor under this Agreement,      unless such change is approved in advance and in writing by an officer of      WGT;

(c)  any assignment or attempted assignment of this Agreement by Distributor      without the prior written consent of WGT;

(d)  any solicitation by Distributor for the sale of the Product to resellers      located outside the Territory;

                                       5





(e)  the insolvency of Distributor, the filing of a petition in bankruptcy by or      against Distributor, the appointment of a receiver for Distributor or      Distributor's property, the execution of an assignment by Distributor of      all or substantially all of its assets for the benefit of its creditors, or      the conviction of Distributor or any principal or manager of Distributor      for any crime tending to adversely affect the ownership or operation of      Distributor's business;

(f)  any failure by Distributor to perform any of its other obligations under      this Agreement where such failure continues for thirty (30) days after      written notice thereof by WGT to Distributor; or

(g)  WGT giving Distributor ninety (90) days' advance written notice of      termination at any time after the expiration of the Initial Term.

5.3  Failure to Make Guaranteed Minimum Purchases. Upon any failure by      Distributor to make Gross Purchases in sufficient amounts to meet or exceed      the applicable cumulative Guaranteed Minimum Purchases, WGT may, at its      sole option and effective upon notice to Distributor, terminate this      Agreement. Distributor shall pay WGT fifty percent (50%) of the unpaid      balance of cumulative Guaranteed Minimum Purchase amounts as liquidated      damages. The parties acknowledge and agree that it would be difficult or      impossible to calculate WGT's actual damages arising from Distributor's      failure to timely pay all of the Guaranteed Minimum Purchases. Therefore,      the parties have agreed upon the above payment of liquidated damages in      lieu of WGT's claim for actual damages from such breach.

5.4  Termination by Distributor. Upon the occurrence of any of the following,      Distributor may terminate the Term by giving WGT written notice of such      termination;

(a)  the insolvency of WGT, the filing of a petition by or against WGT, the      appointment of a receiver for WGT or WGT's property, or the execution of an      assignment by WGT of all or substantially all of its assets for the benefit      of its creditors;

(b)  any failure by WGT to perform any of its obligations under this Agreement      where such failure continues for thirty (30) days after written notice      thereof by Distributor to WGT; or

(c)  for convenience whether or not extended beyond the Initial Term, provided      Distributor gives WGT thirty (30) days' advance written notice and, within      such thirty (30) day period, Distributor pays to WGT a lump-sum payment      equal to fifty (50%) of the unpaid balance of cumulative Guaranteed Minimum      Purchase amounts.

5.5  Effect of Termination. Any termination pursuant to paragraphs 5.2, 5.3, or      5.4 will be without prejudice to any other right or remedy afforded to      either party under this Agreement or any applicable law (e.g., in the case      of any breach or default by the other party), and will not affect any      rights or obligations which have arisen prior to the date of such      termination. In the event of termination, Distributor will:

                                       6

(a)  immediately cease to demonstrate, market, sublicense and distribute the      Product in the Territory;

(b)  cease use of all Trademarks of WGT;

(c)  return to WGT within twenty (20) days following the expiration or      termination of the Term, any and all (i) demonstration Product provided to      Distributor; (ii) Products not already paid for in full by Distributor; and      (iii) promotional literature, data, information and other items received by      Distributor under this Agreement; and

(d)  furnish WGT with such information relating to the marketing, sale or      distribution of the Product in the Territory as WGT may reasonably request      (including, but not limited to, information as to calls or the status of      any negotiations for the sale of the Product, or any sales or service      records).

Upon the expiration or termination of the Term, the license granted under Section 2 of this Agreement will terminate. Any end-user licenses of the Software granted under the terms of this Agreement will survive the end of the Term in accordance with the terms of the applicable end-user license agreement.

5.6  Acknowledgment. Any expiration or termination of the Term will be final and      absolute. Except as expressly set forth in paragraphs 5.3 and 5.5(c),      Distributor waives any right, either express or implied by applicable law      or otherwise, to the renewal of this Agreement or to any damages or      compensation for any expiration or termination of the Term in accordance      with this Section 5. Each of the parties have considered the possibility of      such expiration or termination and the possibility of loss and damage      resulting therefrom in making expenditures pursuant to the performance of      this Agreement. It is the express intent and agreement of the parties that      neither will be liable to the other for damages, except as expressly set      forth in paragraphs 5.3 and 5.5(c), or otherwise by reason of the      expiration or termination of the Term as provided for herein.

6.0  Force Majeure. Neither party will be liable for, or be considered to be in      breach of or default under this Agreement on account of, any delay or





     failure to perform as required by this Agreement (other than for payment      under Section 3), as a result of any cause or condition beyond such party's      reasonable control.

7.0  Entire Agreement. This Agreement is subject to the provisions of WGT's      Standard Distributor Terms attached hereto as Exhibit B and by this      reference incorporated into and as part of this Agreement. This Agreement      is also subject to any additional terms or licenses executed by WGT and      Distributor and attached as Exhibits, including any Special Terms and      Conditions specified in Exhibit A. This Agreement sets forth the entire      agreement, and supersedes any and all prior agreements, among the parties      related to the Product. WGT will not be bound by, and specifically objects      to, any term, condition, or other provision that is different from or in      addition to the provisions of this Agreement (whether or not it would      materially alter this Agreement) and that is proffered by Distributor or      otherwise appears in any order, receipt, acceptance, confirmation,      correspondence, or otherwise, unless WGT specifically agrees to such      provision in a written instrument signed by WGT. No

                                       7

     modifications of any of the provisions of this Agreement will be valid      unless set forth in a written instrument signed by both parties. Any remedy      by WGT set forth in this Agreement is in addition to any other remedy      afforded to WGT under any other contract, by law, or otherwise.

IN WITNESS THEREOF, the parties have executed this Agreement as of the date first above written.

Distributor:                               WatchGuard Technologies, Inc.

By: /s/ LAURENCE GILBERT                   By: /s/ WATCHGUARD    -------------------------                  ------------------------------

Title: MANAGING DIRECTOR                   Title: VP/SALES

Date Signed: NOVEMBER 5, 1997              Date Signed: NOVEMBER 3, 1997

Address:  20/24 Church Street              Required Signature:           Altrincham, Cheshire           WA14 4DW, ENGLAND                By:                                                 -------------------------------                                            Title: Executive Vice-President Sales

                                           Date Signed:                                                          ---------------------

                                           Address:  316 Occidental Avenue South                                                      Suite 300                                                      Seattle, Washington  98104

                                       8

                    FULL SERVICE MASTER DISTRIBUTOR SCHEDULE                                     EXHIBIT A

PRODUCTS:

Distributor will be entitled to order the following products (which includes hardware and software) at the following discounts of WGT's then current WatchGuard Price List:

- -------------------------------------------------------------------------------                                                        DISCOUNT FROM WGT'S                                  PRODUCT                  THEN CURRENT                                                       WATCHGUARD PRICE LIST - ------------------------------------------------------------------------------- WatchGuard Security System                             40% plus additional                                                        10% on the remaining                                                  undiscounted amount, i.e., 46%

- ------------------------------------------------------------------------------

EXCHANGE FEE:                                      $10 per CD SUPPORT FEE:                                       $25,000 per year

                                                                  CUMULATIVE                                                                   GUARANTEED                                                                     MINIMUM                                                                    PURCHASES                               DATE OF ORDER                     (U.S. DOLLARS) - -------------------------------------------------- --------------------------- Upon contract signing                              $100,000.00 1st subsequent Quarter-end, Sept. 30, 1997         $100,000.00 2nd subsequent Quarter-end, Dec. 31, 1997          $167,000.00 3rd subsequent Quarter-end, Mar. 31, 1997          $234,000.00 4th subsequent Quarter-end, Jun 30, 1997           $300,000.00





TERMINATION DATE:                                           September 30, 1997 TRADEMARKS:

/bullet/  WatchGuard(TM)

/bullet/  WatchGuard(TM) Technologies

/bullet/  WatchGuard(TM) SchoolMate

/bullet/  Firebox(TM)

TERRITORY:

/bullet/  Europe

SPECIAL TERMS AND CONDITIONS

                                       9

These Special Terms and Conditions are part of the Distributor Agreement between WatchGuard Technologies, Inc. (WGT) and Distributor (collectively, the Agreement). Terms that are defined in the Distributor Agreement will have the same meaning when used in these Special Terms and Conditions.

Section A.1 By joint agreement between WGT and Distributor, Distributor may engage in end user sales in the Territory.

If it is agreed that Distributor may engage in end user sales, Distributor may distribute, license and sell up to 20% of the Product purchased from WGT directly to end-users in the Territory. Further, Distributor agrees that high end-users satisfaction is a condition of its continued authorization by WGT. To ensure high end-user satisfaction, Distributor shall: (a) provide quality first level support to its end-user customers; (b) promptly report to WGT all suspected and actual problems with any WGT product; (c) assist WGT in tracing WGT Products to particular end users to distribute critical WGT Product information, locate WGT Products for safety reasons, or to be discover unauthorized marketing or infringing acts; (d) avoid deceptive, misleading or unethical conduct which are or might be detrimental to WGT or its WGT product; and (e) refrain from marking any representation, warranty or guarantee to end users with respect to the specifications, features or capabilities of the WGT Product that is inconsistent with the literature distributed by WGT or this Agreement.

Section A.2 Distributor is legally organized under the jurisdiction of a country belonging to the European Union.

If Distributor is organized under the jurisdiction of the country belonging to the European Union, the following clause is hereby appended to Section 1(c) of the Standard Distributor Terms:

         PROVIDED HOWEVER, the foregoing restriction is not intended to          preclude Distributor from fulfilling, and Distributor may fulfill,          unsolicited orders for Product received from outside the Territory but          within the European Union (and Distributor shall provide WGT written          notice of any such Sales);

Section A.3 As a Full Service Master Distributor, Distributor agrees to sign up a minimum of 10 new WatchGuard resellers in the Territory within the Initial Term of the Agreement.

- -------------------------------------------- --------------------------------- Distributor:                                 WatchGuard Technologies, Inc.:

By:  /s/ LAURENCE GILBERT                    By:  /s/ WATCHGUARD      --------------------------                   ----------------------------- Title: MANAGING DIRECTOR                     Title: SENIOR VICE PRESIDENT/SALES                                                      Date Signed:  NOVEMBER 5, 1997               Date Signed:  NOVEMBER 3, 1997  -------------------------------------------- ---------------------------------

                                       10

                           STANDARD DISTRIBUTOR TERMS                                     EXHIBIT B

These Standard Distributor Terms are part of the Distributor Agreement between WatchGuard Technologies, Inc. (WGT) and Distributor (collectively, the Agreement). Terms that are defined in the Distributor Agreement will have the same meaning when used in these Standard Distributor Terms.

 1.  Reservation of Rights. The Software is licensed, not sold, to Distributor.      PARAGRAPH 2.2 LICENSE GRANT of the Distributor Agreement sets forth the      entirety of Distributor's rights to use, market, distribute, demonstrate      and otherwise deal with the Product. All rights in and to the Product not      expressly granted to Distributor under this Agreement are hereby expressly      reserved to WGT without restriction. Without limiting the generality of the      foregoing, Distributor will comply with the following:

(a)  Distributor will distribute the Product to resellers only pursuant to a      reseller agreement that substantially conforms to the term of this





     Agreement;

(b)  Distributor will not market, demonstrate or distribute the Product outside      the Territory and Distributor will not supply the Product to any reseller      that Distributor knows or has reason to know (i) intends to distribute the      Product outside the Territory or (ii) intends to use or install the Product      outside the Territory;

(c)  Distributor will market, sell and distribute the Product only in its      original, unopened package as received from WGT under the terms of the      end-user license agreement and limited hardware warranty, as applicable,      originally included in the Product package;

(d)  Distributor will not modify or make copies of the Product or translate or      port the Software into any other computer or human language;

(e)  Distributor will not disassemble, reverse engineer, decompile or repackage      all or any component of the Product or otherwise attempt to discover any      portion of the source code or trade secrets related to the Product;

(f)  Distributor will not remove, alter, distort, cover or modify any notice of      copyright, trademark or other proprietary right appearing in or on any item      included with the Product or its packaging; and

(g)  Distributor will not register, attempt to register or assist anyone else to      register, directly or indirectly, the Trademarks or any copyright or other      proprietary rights associated with the Product in the Territory or      elsewhere other than in the name of WGT, without WGT's prior written      consent.

2.   Protection Against Unauthorized Use. Distributor will promptly notify WGT      of any unauthorized use of the Product or the Trademarks which comes to      Distributor's attention. In

                                       11

     the event of any such unauthorized use by Distributor's employees, agents      or representatives, Distributor will use its best efforts to terminate such      unauthorized use and to retrieve any copy of the Product in the possession      or control of the person or entity engaging in such unauthorized use.      Distributor will immediately notify WGT of any legal proceeding initiated      by Distributor in connection with such unauthorized use. WGT may, at its      option and expense, participate in any proceeding and, in such event,      Distributor will provide such authority, information and assistance related      to such proceeding as WGT may reasonably request to protect WGT's      interests.

3.   Use of Trademarks. WGT reserves all rights in and to the Trademarks and all      other trademarks and trade names used by WGT in connection with the      Products, but WGT grants to Distributor the nonexclusive right to use and      display the Trademarks during the Term to promote and identify the Product      in the Territory in connection with this Agreement. Distributor will comply      with the trademark guidelines and procedures established by WGT in      Distributor's use of the Trademarks including without limitation use of the      trademark and copyright symbols as specified by WGT from time to time. When      using the Trademarks, Distributor will include a statement acknowledging      that the Trademarks are owned by WGT. Distributor hereby acknowledges that      the goodwill associated with its use of the Trademarks inures solely and      exclusively to WGT and that Distributor does not acquire any rights in the      Trademarks as a result of such use. Distributor will not use the Trademarks      or any confusingly similar name, marks, logos, designs or artwork as part      of Distributor's name, trade name, trademark or artwork without WGT's prior      written consent.

 4.  Independent Contractor. Distributor is an independent contractor, not an      employee, agent or franchisee of WGT. Distributor will not represent or      hold itself out as an employee, agent or franchisee of WGT. Distributor      does not have any authority to, and will not, create or assume any license,      warranty or other obligation, express or implied, on behalf of WGT. This      Agreement will not be interpreted or construed as creating or evidencing      any association, joint venture or partnership between the parties or as      imposing any partnership or franchisor obligation or liability on either      party.

 5.  Delivery. WGT will deliver all Products ordered by Distributor F.O.B.      carrier at WGT's shipping location as determined by WGT from time to time,      on or before the delivery date set forth in each accepted order.      Distributor will pay or reimburse WGT for all shipping charges, premiums      for freight insurance, inspection fees, duties, import and export fees,      assessments, transportation and other costs incurred by WGT to transport      the Product to the shipping destination.

 6.  Resale. Distributor represents that all Products acquired under this      Agreement are acquired solely for demonstration, licensing or sale (as      applicable) and distribution to resellers or end-users in the Territory      without intervening use by Distributor. Distributor acknowledges that the      prices set forth in this Agreement have been established in reliance upon      such representation and that different prices may apply to any Products      acquired for any other purpose. Upon WGT's request, Distributor will      furnish WGT evidence of such resale (including but not limited to      satisfactory evidence of exemption from retail sales, use or similar taxes      that may otherwise apply to transactions under this Agreement).





                                       12

7.   Software Update Exchange. Once each Quarter during the Term of this      Agreement, Distributor shall have the right to exchange any prior version      of the Software then in Distributor's inventory for an equivalent quantity      of Software containing Updates, subject to Distributor paying WGT an      Exchange Fee set forth in Exhibit A, for each copy of the Software      exchanged hereunder. WGT will invoice Distributor for and Distributor shall      pay all Exchange Fees as provided in Exhibit A. WGT will deliver all such      exchanged Software Updates in accordance with paragraph 5. Distributor      shall return to WGT the copies of the prior versions of the Software      exchanged under this paragraph 7 at Distributor's expense.

8.   Records; Audit. During the Term and for twenty-four (24) months thereafter,      Distributor will keep and maintain accurate accounts and records regarding      the Products sold and Product license keys delivered to resellers and      end-users under this Agreement. Upon WGT's request, Distributor will      provide access to such records for examination, reproduction, and audit by      WGT or its representatives. Any such audit will be conducted at such times      and in such a manner so as not to unreasonably interfere with Distributor's      normal operations. If any such audit discloses that Distributor is      deficient in its compliance with the terms and conditions of this      Agreement, Distributor will immediately pay to WGT any deficiency, plus      interest at the rate of one and one-half percent (1.5%) per month running      from the date originally due until the date paid. Acceptance of any payment      by WGT will be without prejudice to WGT's rights to an audit under this      paragraph 8 or any other rights or remedies afforded to WGT under any other      provision of this Agreement or applicable law.

9.   Taxes. The Guaranteed Minimum Purchases and other amounts specified in this      Agreement do not include sales, use or value added taxes, customs fees,      duties or other governmental taxes or charges. Distributor will pay all      such taxes and charges. In the event Distributor is required under any      applicable law to withhold any taxes or duties from the amounts specified      under this Agreement, payment of the amounts specified under this Agreement      will be net of such withholding taxes or duties. Distributor will pay the      amount of all such withholding taxes and duties and supply WGT with      information concerning the amount and type of tax withheld and any      certificates concerning payments of such withholding taxes.

10.  Interest. Any amount not paid when due will be subject to finance charges      at the rate of one and one-half percent (1.5%) per month or the maximum      rate permitted by applicable law; whichever is less, determined and      compounded on a daily basis from the date due until the date paid. Payment      of such finance charges will not excuse or cure Distributor's breach or      default for late payment. If WGT retains a collection agency, attorney or      other person or entity to collect overdue payments, all collection costs,      including but not limited to reasonable attorney's fees, will be payable by      Distributor.

11.  Confidentiality. Any information received by Distributor in performance of      this Agreement relating to the business affairs, customers, markets,      finances, methods, Product, technology, trade secrets or proprietary rights      of WGT will be treated as confidential and proprietary information of WGT.      Distributor will not disclose such information, unless the information is      in the public domain at the time of disclosure through no fault of      Distributor or WGT consents to the disclosure in writing. Distributor will      disclose such information only to its

                                       13

     employees whose duties justify their need to know such information and who      have agreed to copy with Distributor's confidentiality obligations      hereunder.

12.  Ownership. The Product involves valuable patent, copyright, trade secret,      trade name, trademark and other proprietary rights of WGT. No title to or      ownership of such proprietary rights is transferred to Distributor under      this Agreement or by use of any trademark, copyright or other proprietary      right. WGT reserves all of its copyright, trade secret and other      proprietary rights in the Product. Distributor will not infringe, violate      or contest and will take appropriate steps and precautions for the      protection of, such proprietary rights.

13.  Implementation. Distributor will take at WGT's expense, all action during      or after the Term that is reasonably requested by WGT for the      implementation of the ownership provisions of this Agreement or to      evidence, perfect or protect WGT's ownership of this Product and the      proprietary rights associated with ownership of the Product (including,      without limitation, the execution, acknowledgment and delivery of      instruments of conveyance, patent, copyright, trademark or other      proprietary rights registration applications or other documents.)

14.  Warranty; Returns. WGT will permit Distributor and end-users purchasing      through resellers to return any defective Product in accordance with the      limited warranty contained in the applicable end-user license agreement or      limited hardware warranty, as applicable, provided that the Distributor and      end-user have compiled with the applicable warranty terms and conditions.      In order to receive the remedy provided for hereunder, Distributor shall





     deliver to WGT a sample of the Product which Distributor finds to be      defective in workmanship or materials, or damaged in shipment prior to      Distributor assuming the risk of loss or damage , along with a written      explanation of the alleged defect within thirty (30) days from the later of      Distributor's initial receipt of such Product from WGT or from the delivery      of such Product to an end-user. In the event WGT verifies a defect reported      by Distributor and such defect affects more than one (1) Product, then at      WGT's option, Distributor shall either certify destruction of all defective      Products or return all Products which it alleges are defective to WGT.      Distributor, reseller or the end user will be responsible for      transportation charges for such Product units sent to WGT's facilities for      service. Provided that WGT is able to verify the presence of the reported      defect in such units, transportation charges, via a mode of transportation      chosen by WGT, shall be borne by WGT to return the Product units from WGT's      location to the Distributor, reseller or the end-user's location. Upon      verification of a defect in one or more Products returned in accordance      with the foregoing, or upon Distributor's certification that it has      destroyed any defective Product in compliance with WGT's instructions, WGT      will, at its option, either issue a credit to Distributor in the amount of      the purchase price paid or payable for such Product by Distributor or      replace the defective Product with an identical (non-defective) Product.      Such remedy will be exclusive and in full satisfaction of Distributor's      claims hereunder. WGT does not warrant that the Products are free form all      bugs, errors, defects, design flaws or omissions. The warranties in this      Agreement apply only to the latest version of each Product made available      by WGT to Distributor. Such warranties will not apply to any Product which      WGT determines has been subject to misuse, neglect, improper installation,      repair, alteration or damage by Distributor, reseller or an end-user or any      other individual or entity, or modification by any such individual or      entity except with the prior express authorization of WGT. WGT's      obligations

                                       14

     under this paragraph will not apply to the extent arising out of any use or      combination of the Product with any other products, goods, services or      other items furnished by Distributor or anyone other than WGT, or to any      modification or change of the Product not made by WGT. The foregoing      warranties and rights may be asserted by Distributor only and not by      Distributor's resellers.

15.  Infringement. WGT will defend and indemnify Distributor against any      judicial proceeding based upon infringement of any U.S. patent or US.      copyright by the Product to the extent that such proceeding arises from or      in connection with a component of the Product manufactured or developed by      WGT and not any third party, provided that Distributor notifies WGT of such      proceeding promptly after Distributor receives notice thereof, WGT has      control over the defense and settlement of the proceeding, Distributor      provides such assistance in the defense and settlement of the proceeding as      WGT may reasonably request, and Distributor complies with any settlement or      court order made in connection with such proceeding (e.g., as to the future      use of any infringing Product). WGT's obligations under this paragraph will      not apply to any infringement to the extent arising out of any use or      combination of the Product with any other products, goods, services or      other items furnished by Distributor or anyone other than WGT or to any      modification or change of the Product not made by WGT.

16.  Disclaimer and Release. THE WARRANTIES OF WGT AND THE REMEDIES OF      DISTRIBUTOR SET FORTH IN PARGRAPHS 14 AND 15 ARE EXCLUSIVE AND IN      SUBSTITUTION FOR, AND DISTRIBUTOR HEREBY WAIVES, RELEASES AND DISCLAIMS.      ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF WGT AND ALL OTHER      RIGHTS, REMEDIES AND CLAIMS OF DISTRIBUTOR, EXPRESS OR IMPLIED, ARISING BY      LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY OR NONCONFORMITY      IN ANY PRODUCT OR OTHER ITEM FURNISHED BY OR ON BEHALF OF WGT UNDER THIS      AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF      MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; IMPLIED WARRANTY      ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USEAGE OF TRADE;      ANY OBLIGATION, LIABLITY, RIGHT, REMEDY OR CLAIM IN TORT (INCLUDING      NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABLITY, STRICKT      LIABILITY OR OTHER THEORY; AND CLAIM OF INFRINGEMENT.

17.  Representations. Distributor will be solely responsible for any      representations or warranties Distributor may make to any reseller with      respect to the Product or any products, goods, services or other items      provided by Distributor. Except to the extent inconsistent with paragraph      15, Distributor releases and will defend, indemnify and hold harmless WGT      and its officers, directors, employees, agents and representatives from any      and all claims, losses, damages, liens, liabilities, costs and expenses      (including, but not limited, reasonable attorneys' fees) incurred or      asserted by any reseller or otherwise arising out of or in connection with      (a) any misrepresentation, negligent or tortious act or omission, or breach      of or default under this Agreement by Distributor or by anyone else acting      for or on behalf of Distributor in connection with the promotion,      distribution or other dealings with respect to the Product; (b) any      reseller or end-user's use of the Product or any products or services of

                                       15





     Distributor; or (c) any representations and warranties made by Distributor      that are inconsistent with or in addition to the warranties made in WGT's      end-user license agreement or limited hardware warranty, as applicable,      accompanying each copy of the Product.

18.  Limitations of Liability. EXCEPT AS PROVIDED IN PARAGRAPH 15, WGT'S      LIABILITY(WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER      ACTIVE, PASSIVE, IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER      THEORY) UNDER THIS AGREEMENT OR WITH REGARD TO ANY PRODUCT OR OTHER ITEMS      FURNISHED UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE COMPENSATION      PAID TO WGT CONCERNING SUCH PRODUCT UNDER THIS AGREEMENT.

19.  Consequential Damages. IN NO EVENT WILL WGT BE LIABLE, WHETHER IN CONTRACT,      WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED),      PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), TO DISTRIBUTOR OR TO      ANY RESELLER OF DISTRIBUTOR, END-USER OR OTHER PERSON OR ENTITY FOR COST OF      COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES      (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA)      ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE      USE OF, INABIILTY TO USE OR RESULTS OF USE OF THE PRODUCT.

20.  Compliance with Laws. In performing this Agreement, Distributor will comply      with all applicable laws, regulations and other requirements, now or      hereafter in effect, of government authorities having jurisdiction.

21.  Export. Without limiting anything else herein, Distributor will not export      or re-export, directly or indirectly, the WGT Product to any country to      which export or re-export of such items is prohibited by the U.S. Export      Administration Act, regulations of the U.S. Department of Commerce and      other export controls of the U.S., as they may be amended without first      obtaining an appropriate written authorization from the U.S. Office of      Export Licensing or its successor. At the time of execution of this      Agreement, Distributor is prohibited from exporting or re-exporting ,      directly or indirectly, the WGT Product to the following countries: Cuba,      Libya, North Korea, Iran, Iraq, Ruwanda, Sudan, Syria and the Federal      Republic of Yugoslavia (Serbia and Montenegro). Notwithstanding the      foregoing list, Distributor is not relieved from its obligations to comply      with the foregoing export control laws, as such laws may be amended from      time to time. Distributor shall also comply with all other foreign or local      governmental export and import control laws, regulations and rules.

22.  Government Approvals. Distributor will obtain at its expense all licenses,      permits and other governmental approvals; will provide all notices; and      will pay all duties, taxes and other charges required for the license,      export, re-export and import of the Product distributed by the Distributor;      the license of the Software distributed by Distributor; and the      implementation of this Agreement.

                                       16

23.  Nonwaiver. The failure of either party to insist upon or enforce strict      performance of any of the provisions of this Agreement or to exercise any      rights or remedies under this Agreement will not be construed as a waiver      or relinquishment to any extent of such party's right to assert or rely      upon any such provisions, rights or remedies in that or any other instance;      rather, the same will be and remain in full force and effect.

24.  Assignment. Distributor will not assign all or any part of this Agreement      or any of its rights under this Agreement without the prior written consent      of WGT. Subject to the foregoing, this Agreement will be fully binding      upon, inure to the benefit of and be enforceable by the parties and their      respective successors and assigns.

25.  Survival. Paragraphs 1, 2, 3, 13 through 23 and all accrued obligations to      pay, together with all other provisions of this Agreement which may      reasonably be interpreted or construed as surviving the expiration or      termination of the Term, will survive the expiration or termination of the      Term.

26.  Notices. Any notice or other communication under this Agreement given by      either party to the other will be in writing and delivered either (a) in      person or by first-class, registered or certified mail or a recognized      overnight delivery service, return receipt requested, postage prepaid or      (b) by facsimile and then acknowledged as received by return facsimile by      the intended recipient. Notices will be deemed received only upon actual      receipt. Notices will be directed to the intended recipient at the address      specified below its signature on the signature page of this Agreement.      Either party may change its address by giving the other party notice of      such change in accordance with this paragraph.

27.  No Conflict. Distributor represents and warrants to WGT that Distributor is      free to enter into and perform this Agreement without thereby being in      breach of or default under the terms of any other contract, commitment or      understanding.

28.  Interpretation. The English language of this Agreement will govern any      interpretation of or dispute regarding the terms of this Agreement.      Paragraph captions are for convenience of reference and do not alter or      limit the terms of this Agreement. The parties hereto have expressly      required that the present Agreement and its Exhibits be drawn up on the      English language. / Les parties aux presentes ont expressement exige que la      presente conventions et se Annexes solent redigees en la langue anglaise.





29.  Governing Law; Venue. This Agreement will be governed by and interpreted in      accordance with the local laws of the State of Washington, U.S.A., without      regard to its conflicts of law provisions and not including the provisions      of the 1980 U.N. Convention in Contracts for the International Sale of      Goods. Distributor irrevocably consents, and submits to the jurisdiction of      the Federal and State courts of and located in King County, in the State of      Washington, U.S.A. Distributor will not commence or prosecute any suit,      claim, or proceeding arising under this Agreement other than in the courts      identified in the preceding sentence. Any remedy of WGT set forth in this      Agreement is in addition to any other remedy afforded to WGT under this      Agreement, any other contract, by law or otherwise.

                                       17

                         SUPPORT SERVICES AND PROCEDURES                                     EXHIBIT C

SUPPORT SERVICES:

WGT will provide the following training and product support programs to Distributor:

A.   Training.

Promptly after execution of this Agreement, WGT will conduct a one day technical and sales training program for three (3) of Distributor's employees. Such training will be held at Distributor's facilities. Distributor will be responsible for all costs and expenses incurred by Distributor's personnel in attending, receiving or securing training provided by WGT.

B.   Product Support Services.

WGT will provide the following product support services to Distributor for the Term of the Agreement:

1.   Telephone Support. Reasonable telephone and electronic mail support for the      Software will be available in response to a request from Distributor during      WGT's normal business hours (6:00 a.m. to 5:00 p.m., Monday through Friday,      Pacific Standard Time), excluding holidays that WGT recognizes. Only      Distributor's designated, approved personnel will communicate with WGT's      customer support specialists.

2.   Submitting a Service Request. To submit a request for service, Distributor      has two service options:

(a)  over the phone, the Distributor will dial WGT's service number as supplied      to Distributor by WGT. When a support specialist answers the phone,      Distributor will be prepared to discuss the problem with the support      specialist.

(b)  via electronic mail as supplied to Distributor by WGT, whereby a service      request can be submitted to WGT's electronic mail system.

In order to submit a service request, either telephonically or electronically, Distributor will employ the following procedures:

(a)  provide a clear description that fully explains what the problem is, and      when the problem occurs;

(b)  provide a diagnostic trace, sample code or file of the failure symptom that      has been recorded on the user's system; and

(c)  describe the steps taken to resolve the problem.

                                       18

3.   Priority. WGT will respond to problems with the Software in accordance with      the following priority schedule:

Priority One (P-1) is reserved for critical and severe Software problems which cause the Software to fail or act in a manner which causes the Software to be unusable.

Priority Two (P-2) is reserved for Software problems which cause a major component of the Software to become unusable but the overall Software continues to function.

Priority Three (P-3) is reserved for Software problems which cause minimal disruption to normal operations of the Software and can be avoided with a simple work-around process.

Priority Four (P-4) is reserved for all other problems of lesser severity.

4.   Response Time: Upon receipt of a service request, a WGT customer support      specialist will contact Distributor's designated, approved personnel within      the following response times to discuss the problem:

P-1 - respond within two (2) hours (subject to WGT's normal business hours) of





receipt of a P-1 problem and use all commercially reasonable and diligent efforts to create a fix or work-around as soon as practicable considering the nature of the problem.

P-2 - respond within four (4) hours (subject to WGT's normal business hours) of receipt of a P-2 problem and use all commercially reasonable and diligent efforts to create a fix or work-around as soon as practicable considering the nature of the problem.

P-3 - respond within twenty-four (24) hours (subject to WGT's normal business hours) of receipt of a P-3 problem and use all commercially reasonable efforts to create a fix or work-around which may be included in the next Update.

P-4 - respond within five (5) business days (subject to WGT's normal business hours) of receipt of a P-4 problem and target a fix in a future Update.

WGT will make any corrections available to Distributor via BBS, FTP site or other reasonable means.

                                       19

                             DISTRIBUTOR'S FORECAST                                     EXHIBIT D

Quarter 1: ____________, 19__ through ____________, 19__      $__________

Quarter 2: ____________, 19__ through ____________, 19__      $__________

Quarter 3: ____________, 19__ through ____________, 19__      $__________

Quarter 4: ____________, 19__ through ____________, 19__      $__________

                                       20 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
Distributor will not register, attempt to register or assist anyone else to      register, directly or indirectly, the Trademarks or any copyright or other      proprietary rights associated with the Product in the Territory or      elsewhere other than in the name of WGT, without WGT's prior written      consent.

EXHIBIT 10.1

PROMOTION AGREEMENT

This Promotion Agreement (Agreement)  is entered into as of February 3, 2010 (Effective Date)  by and between  MiddleBrook Pharmaceuticals, Inc. (MBRK) ,  a Delaware corporation with offices at 7 Village Circle, Suite 100,  Westlake, TX 76262 and DoctorDirectory.com, Inc.  (DD) ,  a South Carolina Corporation, with offices at One Page  Avenue, Suite 280, Asheville, NC 28801.

WHEREAS DD provides advertising, promotion and marketing services to pharmaceutical companies that seek to  market their products to physicians and other allied medical professionals including nurses, nurse practitioners, and  physician assistants; and

WHEREAS MBRK markets prescription drug products, including its product known as MOXATAG® (MOXATAG)  to  licensed physicians, nurses, nurse practitioners, and physician assistants in the United States (US)  whose clinical  practice is consistent with MOXATAG's approved labeling; and

WHEREAS MBRK seeks to have MOXATAG promoted to as many licensed US physicians, nurse practitioners and  physician assistants whose clinical practice is consistent with MOXATAG's approved labeling as is possible and  practical.

THEREFORE, for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the  Parties agree that DD will promote MOXATAG to certain US physicians and others as identified in this Agreement  subject to the terms and conditions as set forth below:

Section 1 — Definitions

The terms as used in this Agreement will have the meanings as follows:

(a)  Actual DD Target Segment MOXATAG TRx means the total actual number of MOXATAG prescriptions filled in  the US during the applicable Promotional Measurement Period and written by DD Target Segment Prescribers as  stipulated by the Prescriber Data.    (b)  Actual DD Target Segment MOXATAG TRx Tablets  means the average number of tablets contained in all  MOXATAG TRx during the applicable Promotional Measurement Period as stipulated by the Prescriber Data  including the tablet quantities as reported by IMS NPA weekly EUTRx (tablets) data, multiplied by Actual DD Target  Segment MOXATAG TRx.    (c)  Change of Control means the change of control of MBRK, as defined by any of the following events: A) any third  party acquires directly or indirectly the beneficial ownership of any voting security of MBRK representing fifty  percent (50%) of the total voting power of the then outstanding voting securities of MBRK; B) the consummation of a  merger, consolidation, recapitalization, or reorganization of MBRK with or by a third party which







    would result in fifty percent (50%) or more of the total voting power of MBRK stock being transferred to a third party;  or C) the stockholders or equity holders of MBRK approve a plan of complete liquidation of MBRK or an agreement for  the sale or disposition of all or substantially all the assets of MBRK.

(d)  Coupons means those coupons or vouchers provided by MBRK and distributed through a MBRK designee and  whose redemption is tracked by a MBRK designee, and redeemed by patients filling MOXATAG prescriptions  written by DD Target Segment Prescribers.    (e)  Cost of Coupon Redemption Amount means the redemption amount and the costs associated with printing  and processing those Coupons redeemed during the applicable Promotion Measurement period.    (f)   Cost of Samples Amount means the cost of manufacturing and delivering (including, without limitation, all  applicable freight, packaging and shipping costs) and costs of any third party vendors used in connection with  manufacturing and fulfillment of MOXATAG samples.    (g)  Deposit means that amount which MBRK shall deposit with DD upon the Promotion Commencement Date and as  subject to the adjustment outlined in Section 5.    (h)  DD Target Segment Prescribers means the licensed prescribers as defined in EXHIBIT 1.    (i)   Early Termination Fee means that amount equal to the most recent month's Promotion Fee prior to  termination, multiplied by the number of unexpired months remaining in the current year of the Agreement.    (j)   End of Agreement Fee  means the fee, in addition to any other amounts due, payable to DD (when this  Agreement is terminated as further described in Section 18(f)) that is equal to two (2) times the last month's  Promotional Fee earned by DD during the last month of the Agreement.    (k)  FDA means the federal Food and Drug Administration.    (l)   Gross Margin Per Tablet  means the Gross Margin calculated in accordance with GAAP and which excludes  those non-recurring and unusual items that the Parties agree are not resulting from activities under this Agreement  (GM Adjustment Items)  divided by the actual number of MOXATAG tablets (as report by IMS Health Rx data)  during the applicable Promotional Period. By way of example, these GM Adjustment Items where appropriate may  include inventory write-offs, changes to prior period reserve balances or foreign exchange gains or losses. MBRK agrees to provide a summary of any GM Adjustment Items to DD. The calculation of Gross Margin Per Tablet will  be based on U.S. sales of MOXATAG only. For periods after September 30, 2010, if the Gross Margin per Tablet is  less than $3.50, the Parties agree to re-evaluate the viability of the Agreement and if deemed necessary will use  commercially reasonable efforts to re-negotiate an amendment to the Agreement.







(m)  Gross Margin Per TRx  means the Gross Margin per MOXATAG Rx as calculated in accordance with GAAP  and which exclude GM Adjustment Items. The calculation of Gross Margin Per TRx will be based on U.S. sales of  MOXATAG only. For the period from the Effective Date through September 30, 2010, the Gross Margin per TRx  shall be $36.50.    (n)   Intellectual Property Rights  means any and all patents, copyrights, trade secrets, trademarks, and any and  all other intellectual property rights or interests.    (o)   Medical Professionals means licensed nurses, nurse practitioners, and physician assistants.    (p)   MOXATAG  means the prescription drug known as MOXATAG® (amoxicillin extended-release) Tablets 775 mg,  approved by the FDA, having NDC numbers 110442-142-03 and 110442-142-02 which is marketed in the US,  including currently and subsequently approved formulations, strengths, concentrations and delivery mechanisms.    (q)   MOXATAG Labeling shall mean (a) the FDA-approved full prescribing information for MOXATAG, including any  required patient information, and (b) all labels and other written, printed or graphic matter upon any container,  wrapper or any package insert or outsert utilized with or for MOXATAG.    (r)   Parties means DD and MBRK collectively.    (s)   Prescriber Data means the prescriber data supplied by a nationally recognized prescription data provider where  permitted under federal and state law, which is currently provided to MBRK by IMS Health.    (t)   Promotion Commencement Date means the first day of the month in which DD commences its promotion of  MOXATAG under this Agreement.    (u)   Promotion Fees means the Promotion Fees payable to DD by MBRK for the promotion services provided under  this Agreement as is calculated by and stipulated in Section 5, which represent fair market value for such services.    (v)   Promotional Materials shall mean all MBRK-approved and available sales representative training materials and  all MBRK-approved and available written, printed, graphic, electronic, audio or video matter, including, but not  limited to, journal advertisements, sales aids, formulary binders, reprints, direct mail, direct-to-consumer advertising, Internet postings, broadcast advertisements and sales reminder aids (for example, scratch pads, pens  and other such items), in each case created by a party or on its behalf and used or intended for use by DD and  MBRK in connection with any promotion of MOXATAG hereunder, or disease state or indication for which  MOXATAG is approved for treatment but excluding MOXATAG Labeling.    (w)   Promotional Measurement Period  means that month during which prescription activity for MOXATAG is  measured.    (x)   Territory shall mean the US, including all US territories, possessions and protectorates.    (y)   Up-Front Payment means the one-time payment of $50,000 to be made by MBRK to DD upon execution of this  Agreement.







Section 2 — Term

This Agreement shall commence as of the Effective Date and shall continue in full force and effect for an initial term of  three (3) years from the Promotion Commencement Date, divided into three one-year periods. Unless terminated in  accordance with the provisions of Section 18, this Agreement shall automatically renew for each subsequent one-year  term.

Section 3 — Obligations of DD

3.1 DD will promote MOXATAG to DD Target Segment Prescribers using its full suite of promotion solutions where DD  and MBRK deem appropriate, including but not limited to DD's a)  eSampling Platform, b) eLearning / eDetailing, c) Educational Email, d) Direct-to-Physician Bulletin Services, e)  Physician Portal Promotions, f) Patient Portal Promotions, g) Direct Mail Advertising, h) Coupon Promotions, i)  Consumer Condition Content, j) Search Engine Marketing and k) Mini Web Site Promotions where appropriate and with  prior written approval from MBRK. MBRK shall have final approval as to the promotion solutions utilized by DD in the  promotion of MOXATAG and DD will not deploy any promotion solution without such approval from MBRK. Such  promotion solutions are as listed in EXHIBIT 4. In the event that the Parties mutually agree on the provision of additional  services beyond those listed in EXHIBIT 4, such additional promotional solutions shall be approved by MBRK and  additional Appendices numbered sequentially (1, 2, 3, 4 etc.) setting forth in detail the additional services shall be duly  signed by authorized representatives of the Parties and attached to EXHIBIT 4 and incorporated herein. The services  contained in EXHIBIT 4 and any related modifications thereto represent those services that are reasonably necessary to  accomplish the promotion of MOXATAG. No services shall be provided by DD, or paid for by MBRK, except as agreed  to in writing by the Parties.

3.2. Notwithstanding any other provision of this Agreement, all Promotional Materials relating to MOXATAG that will be  utilized by DD, as well as the use and placement of such Promotional Materials, are subject to written approval by  MBRK prior to such use. DD agrees to provide draft and final versions of all Promotional Materials to MBRK for MBRK's  review and approval prior to DD's use of such Promotional Materials, provided such materials are developed or modified  by DD. MBRK has the authority to perform the final review of all Promotional Materials developed by DD. All Promotional  Materials are subject to MBRK's legal, medical and regulatory review and approval process. DD agrees to make all the  necessary changes and/or modifications requested by MBRK. DD shall not use Promotional Materials for any purpose  outside of this Agreement without prior written authorization from MBRK.

3.3. Notwithstanding any other provision of this Agreement, all MOXATAG sample request forms (hereinafter Sample  Request Forms)  utilized by DD to document a prescriber's request for MOXATAG samples are subject to written  approval by MBRK. DD agrees to provide draft and final versions of all Sample Request Forms to MBRK for MBRK's  review and approval prior to DD's use of such Sample Request Forms. MBRK has the authority to perform the final  review of all Sample Request Forms developed by DD or used in conjunct. All Sample Request Forms are subject to  MBRK's legal, medical and regulatory review and approval process. DD agrees to make all the necessary changes  and/or modifications requested by MBRK. DD shall not use Sample Request Forms for any purpose outside of this  Agreement without prior written authorization from MBRK.







3.4. Notwithstanding any other provision of this Agreement, DD shall not offer or provide any item to a DD Target  Segment Prescriber, without prior written approval by MBRK. The provision of any items shall be subject to MBRK's  legal, medical and regulatory review and approval process. In the event that MBRK authorizes the provision of items of  nominal value to a DD Target Segment Prescriber, DD shall track and record the item provided, the associated value,  the date of the transaction, and the recipient DD Target Segment Prescriber, including his or her credentials and the  state in which he or she is licensed, where possible.

3.5 DD shall use commercially reasonable efforts to promote MOXATAG to DD Target Segment Prescribers and agrees  to efficiently perform the services as described in EXHIBIT 4 in compliance with MBRK's policies and procedures, and  all applicable federal and state laws and regulations, including, without limitation, federal and state anti-kickback  statutes, regulations contained in 21 CFR (Code of Federal Regulations) as they pertain to promotional activity of an  FDA-approved pharmaceutical product and the US Department of Health and Human Services Office of Inspector General's (OIG) Compliance Program Guidance for Pharmaceutical Manufacturers (2003). DD agrees that it shall not  directly or indirectly offer, pay or transfer anything of value, in cash or in-kind, to induce DD Target Segment Prescribers  to purchase, order, or recommend MOXATAG, nor shall DD exert undue influence on the medical decision-making of  DD Target Segment Prescribers.

3.6. Both Parties agree to assign sufficient resources and personnel to discharge their respective responsibilities under  this Agreement in a timely manner and at all times operating using a professional standard of work as consistent with  industry standards.

3.7. DD shall select and shall have full and complete control of and responsibility for all actions of its agents, affiliates,  officers, directors, employees or subcontractors (hereinafter Representatives) and none of DD's Representatives are, or  shall be deemed to be, the Representatives of MBRK for any purpose whatsoever by virtue of this Agreement. MBRK  has no duty, liability or responsibility of any kind, to or for the acts or omissions of DD or any of DD's Representatives.  DD hereby acknowledges and agrees that DD shall cause each of DD's Representatives who participate in rendering the  services to comply with the terms of this Agreement. DD hereby acknowledges and agrees that DD is responsible for  the failure of any of DD's Representatives to comply with the terms of this Agreement.

3.8. DD shall be responsible for obtaining the necessary contracts and releases with or from all parties whose names,  likenesses, testimonials, scripts, musical compositions or similar materials, assets or rights are used in MBRK's  advertising, promotional, publicity or other materials prepared and produced by DD under this Agreement, except where  MBRK undertakes to be responsible for obtaining the same. Notwithstanding the foregoing, without the prior written  consent of MBRK, DD is not authorized hereunder or otherwise to enter into any contract or agreement in respect of the foregoing with a third party if such contract or agreement, directly or indirectly, imposes any obligations on MBRK.

3.9. All records maintained by DD pertaining to DD's services to MBRK pursuant to this Agreement shall be provided to  MBRK within 48 hours of MBRK's request. DD shall also make its records and other documents relevant to MBRK and  this Agreement available for audit or review by MBRK upon MBRK's request at a mutually agreed upon time. Upon  termination or expiration of this Agreement, if specifically requested by MBRK, DD shall provide originals or copies of  such records to MBRK.







Section 4 — Costs to Deliver DD Promotion

All costs incurred by DD to deploy its services to promote MOXATAG to DD Target Segment Prescribers will be the  responsibility of DD, except as provided in Section 6.

Section 5 — Up-Front Payment, Deposit and Promotion Fees

5.1. MBRK will pay DD an Up-Front Payment of $50,000 upon execution of this Agreement.

5.2. Additionally, MBRK shall pay a Deposit to DD equal to $100,000 upon the Promotion Commencement Date. Each  month the Parties will review the amount of the Deposit and where necessary MBRK will make an additional deposit  payment to DD in order to maintain a total Deposit with DD of at least two (2) times the current month's Promotion  Fees. For example, if in a month Promotion Fees are $105,000, then MBRK will increase the Deposit to two (2) times  $105,000, equal to $210,000. The Parties agree to meet via conference call within five (5) business days of the end of  each month to determine the necessary adjustment, if any, to the Deposit. If it is determined that the Deposit must be  increased, within ten (10) business days of the date upon which the new Deposit is determined, MBRK shall send to  DD the funds necessary to increase the Deposit. Notwithstanding the above, if during years 2 and 3 of this Agreement,  in the event MBRK's then current annual form 10-K filed with the SEC does not contain an audit opinion that expresses  doubt about MBRK's ability to continue as a going concern, then MBRK's requirement to maintain a Deposit is waived.  In all cases the Deposit amount will be used to settle any outstanding amounts due to DD by MBRK at the end of the  Agreement or at the time the Deposit requirement is waived.

5.3. Additionally, on or before the last day of each month, DD will invoice MBRK for the Promotion Fees due for the prior  month. Such Promotion Fees shall be calculated by:

(a) the following formula for the period from the Effective Date through September 30, 2010:

For example: if during the month of March 2010 (a) (A) above was 2,000 TRx and (B) above was $36.50 then MBRK  would be remit $36,500.00 to DD.

OR

(b) the following formula for the period from October 1, 2010 through termination of this Agreement:

  (A)   the Actual DD Target Segment MOXATAG TRx for the Promotional Measurement Period multiplied by:      (B)   the applicable Gross Margin Per TRx multiplied by:      (C)   50%.

  (A)   the Actual DD Target Segment MOXATAG TRx Tablets for the Promotional Measurement Period multiplied by:      (B)   the applicable Gross Margin Per Tablet multiplied by:      (C)   50%.







For example: if during the month of November 2010:

MBRK would remit $89,425.00 to DD:

These Promotion Fees represent fair market value payment for such services rendered.

The Parties recognize that Promotion Fees are to be settled on a monthly basis which requires the use of an estimated  Gross Margin Per Tablet amount until the actual Gross Margin Per Tablet for an applicable quarter can be determined.  Accordingly, to facilitate the calculation and settlement of monthly Promotion Fees for periods after September 2010,  the Parties agree that the Gross Margin Per Tablet used to settle the monthly Promotion Fees will be that as calculated  using the previous calendar quarter's Gross Margin Per Tablet data and current period's Actual DD Target Segment MOXATAG TRx. Such Promotion Fees for the three months in any calendar quarter will be subject to a true-up process  which will occur by the 15th of the second month of the following quarter. By way of example, Promotion Fees for each  of the months of April, May and June will be settled using the Gross Margin Per Tablet amount that has been calculated  for the quarter ended March 31 and will be subject to a true-up process to occur by August 15 with any adjustment to  such Promotion Fees being settled between the parties within 15 days thereafter.

5.4 In the event MBRK shall discontinue detailing prescribers in a territory that is not included in the then current DD  Target Segment Prescribers set forth in EXHIBIT 1 to this Agreement or any amendments thereto (New DD Target  Segment Prescribers), the Parties shall negotiate in good faith the Promotion Fee payable to DD should MBRK desire  that DD add those New DD Target Segment Prescribers to the DD Target Segment Prescribers.

5.5. The Promotion Fees shall be paid to DD by MBRK fifteen (15) days after the receipt of an invoice from DD by  MBRK.

5. 6. The basis for determining the Promotion Fees will be the Prescriber Data provided by MBRK to DD.

5.7. DD agrees to submit invoices to MBRK at the following address:

Attn: Accounts Payable  MiddleBrook Pharmaceuticals, Inc.  7 Village Circle, Suite 100  Westlake, TX 76262

  (A)=  Actual DD Target Segment MOXATAG TRx (5,000) x an average tablet amount for the month of (9.8 tablets)=  49,000      (B)=  3.65      (C)=  50%







Section 6 — Obligations of MBRK

6.1. Subject to the terms of confidentiality set forth in Section 10, MBRK agrees to make available to DD to the best of  its ability the items as stipulated in EXHIBIT 2. These items include the relevant portions of its marketing and  communications plan, approved sales promotion materials in electronic format where available, sales and training aids  relevant to MOXATAG and promotional items and packages for appropriate licensed physicians, nurses, nurse  practitioners and physician assistants. Additionally, MBRK or its authorized designee shall be responsible for the provision of MOXATAG samples in response to a prescriber's request as documented on a Sample Request Form and  MBRK or its authorized vendor shall be solely responsible for sample fulfillment in quantities agreed to by MBRK. At no  time shall DD take physical possession of or title to MOXATAG samples.

6.2. Notwithstanding any other provision of this Agreement, MBRK shall have the sole right and authority and in its sole  discretion shall take any actions that it deems appropriate with respect to MOXATAG as would normally be done in  accordance with accepted business practices and federal and state legal requirements to maintain the authorization  and/or ability to market MOXATAG in the US, including, without limitation, the following:

(a)  manufacturing, storage, and distribution of MOXATAG trade and sample product;    (b)  the scope and strategies with respect to the marketing and promotion of MOXATAG, including, without limitation,  any labeling or claims in connection therewith;    (c)  booking sales and distribution of MOXATAG hereunder and performance of related services;    (d)  handling all aspects of order processing, invoicing and collection, inventory and receivables;    (e)  providing customer support, including handling medical queries, and performing other functions consistent with  consumer practice for prescription pharmaceuticals;    (f)   responding to product and medical complaints relating to MOXATAG;    (g)  handling all returns of MOXATAG trade and sample product;    (h)  handling all voluntary recalls and market withdrawals of MOXATAG. In such a situation, DD will make available to  MBRK, upon request, all of DD's pertinent records on MOXATAG. Any and all reasonable and documented costs  and expenses incurred by DD in the conduct of any such recall or market withdrawal of MOXATAG shall be  reimbursed by MBRK, except to the extent such recall or market withdrawal was the direct result of the negligence  or failure of DD to comply with its obligations under this Agreement;    (i)   communicating with any governmental agencies and satisfying their requirements regarding all regulatory approvals  of MOXATAG; including the filing of marketing and promotion materials approved by MBRK under this Agreement  with the FDA in compliance with all FDA pharmaceutical marketing regulations;    (j)   reporting adverse reaction reports to US regulatory authorities as required by applicable US law or regulation;







6.3 Notwithstanding any other provision herein to the contrary, MBRK shall have the sole right and responsibility for  establishing and modifying the terms and conditions with respect to the sale of MOXATAG, including, without limitation,  the price at which MOXATAG will be sold, any discounts attributable to payments on receivables and distribution of  MOXATAG.

6.4. MBRK shall be responsible for the costs of obtaining, tracking, processing, formatting and reporting Prescriber  Data.

6.5. The Cost of Samples Amount and the Cost of Coupon Redemption Amount shall be paid by MBRK.

Section 7 — Independent Contractor

In the performance of DD's obligations under this Agreement, DD shall at all times act as and be deemed an  independent contractor. Nothing in this Agreement shall be construed to render DD or any of its employees, agents, or  officers, an employee, joint venturer, agent, or partner of MBRK. As an independent contractor, DD fees and expenses  are limited to those expressly stated in this Agreement. DD is not authorized to assume or create any obligations or  responsibilities, express or implied, on behalf of or in the name of MBRK, except as specifically defined herein. It is understood that the employees, methods, facilities, and equipment of DD shall at all times be under DD's exclusive  direction and control. DD shall not participate in MBRK's fringe benefit plans or any other compensation or benefit plans  MBRK maintains for its own employees.

Section 8 — Representations and Warranties

8.1. MBRK represents and warrants that it has the rights and authorizations required by federal and state agencies,  including but not limited to the FDA granting it the right to market MOXATAG in the US.

8.2. Each Party represents and warrants that it shall comply in all material respects with any and all applicable federal,  state, and local laws and regulations and industry guidances and standards applicable to the conduct of business and  the execution of any and all marketing and promotional services or activities pursuant to this Agreement, including but  not limited to: the federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b); federal Food, Drug and Cosmetic Act and  relevant regulations; FDA promotional guidelines; FDA's Guidance on Industry-Supported Scientific and Educational  Activities (1997); US Department of Health and Human Services OIG Compliance Program Guidance for Pharmaceutical  Manufacturers (2003); the Pharmaceutical Research and Manufacturers of America (PhRMA)  Code on Interactions  With Healthcare Professionals; and ethics opinions of the American Medical Association (AMA).

(k)  reporting significant losses and thefts of MOXATAG to the appropriate state and federal regulatory authorities, as  required. In such a situation, DD will make available to MBRK, upon request, all of DD's pertinent records on  MOXATAG. Any and all reasonable and documented costs and expenses incurred by DD in the conduct of such  activities shall be reimbursed by MBRK, except to the extent such reporting obligations were the direct result of the  negligence or failure of DD to comply with its obligations under this Agreement; and

(l)  negotiating any and all agreements with managed care organizations, payers, wholesalers, group purchasing  organizations, and the like, regarding MOXATAG.







8.3. Each Party represents and warrants that it shall comply with any and all applicable federal, state, and local laws  and regulations related to the request and receipt of MOXATAG samples, including, but not limited to, the Prescription  Drug Marketing Act of 1987 (PDMA) of 1987, as amended, and the regulations promulgated thereunder.

8.4. Each Party represents and warrants that it shall comply with any and all applicable federal, state, and local laws  and regulations including, but not limited to, health, safety and security rules and regulations and all privacy laws and  regulations, including but not limited to applicable state privacy laws and regulations and the privacy requirements set  forth in the Health Insurance Portability and Accountability Act (HIPAA).

8.5. DD represents and warrants that (i) it shall comply with all applicable MBRK policies and procedures, including  MBRK policies governing interactions with physicians and other Medical Professionals; and (ii) it has the specific  industry knowledge, experience and expertise to perform all of its obligations hereunder in good faith and to industry  standards.

8.6. DD represents and warrants that neither DD nor, to DD's knowledge, any person DD employs in connection with  the services to be performed under this Agreement (i) have been debarred, suspended, proposed for debarment,  declared ineligible or voluntarily excluded from participation in this transaction by any federal or state law, regulation, or  action including, but not limited to, 21 U.S.C. § 335(a) and (b); (ii) have been convicted of a criminal offense related to healthcare; and (iii) have been listed by a federal department or agency as debarred, excluded, or otherwise ineligible for  participation in federal healthcare programs as set forth in 42 U.S.C. § 1320a-7, or any similar state law or regulation.  DD shall notify MBRK in writing immediately if it or any person it employs in connection with this Agreement or any  obligations performed hereunder, including any of its employees or other representatives or member of its senior  management, is debarred, is in the process of being debarred, , or if any action, suit, claim, investigation, or legal or  administrative proceeding is pending or is threatened, relating to the debarment or conviction of DD or any person it  employs in connection with this Agreement or any obligations performed hereunder.

Section 9 — Indemnification

9.1. DD shall indemnify and hold MBRK and its Representatives harmless from and against any and all claims, losses,  demands, causes of action, and any and all related costs and expenses including, but not limited to reasonable  attorneys'  fees, costs, and expenses, incurred by them in connection with any claim, suit or proceeding (hereinafter  Legal Claims), arising out of or in connection with: (1) any negligent or willful act or omission or error of DD, or any of  its Representatives, to the extent such Legal Claim does not arise from the negligent or willful act or omission of MBRK  or any of its Representatives; (2) any violation by DD, or any of its Representatives of any law, statute, ordinance or  regulation; (3) any breach by DD of any of its representations, warranties or obligations under this Agreement; or (4)  statements or representations by DD, or its Representatives, that are contrary to the MOXATAG Labeling or the approved Promotional Materials and/or outside the FDA-approved indication(s) for MOXATAG.







9.2. DD warrants that any Promotional Materials developed by DD or its Representatives under this Agreement, do not  infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party, and agrees to protect,  indemnify and hold harmless MBRK and its Representatives against any and all claims, losses, demands, causes of  action, and any and all related costs and expenses including, but not limited to reasonable attorneys'  fees, costs, and  expenses, incurred by them in connection with any assertion for such infringement, misappropriation or breach.

9.3. DD warrants that any promotional services rendered by DD or its Representatives under this Agreement, do not  infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party, and agrees to protect,  indemnify and hold harmless MBRK and its Representatives against any and all claims, losses, demands, causes of  action, and any and all related costs and expenses including, but not limited to reasonable attorneys'  fees, costs, and  expenses, incurred by them in connection with any assertion for such infringement, misappropriation or breach.

9.4. MBRK warrants that MOXATAG does not infringe, misappropriate or otherwise violate any Intellectual Property  Rights of any third party, and agrees to indemnify and hold harmless DD and its Representatives against any and all  claims, losses, demands, causes of action, and any and all related costs and expenses including, but not limited to  reasonable attorneys'  fees, costs, and expenses, incurred by them in connection with any assertion for such  infringement, misappropriation or breach.

9.5. MBRK shall indemnify and hold DD harmless from and against any damages, loss or expenses, including  reasonable attorneys'  fees, DD may sustain or incur as the result of any Legal Claims made, brought, or threatened  against DD, arising out of: (1) any negligent or willful act or omission of MBRK, or any of its Representatives, to the  extent that such Legal Claim does not arise from the negligent or willful act or omission of DD, or any of its  Representatives; (2) any adverse events relating to the use of MBRK products; (3) assertions made in Promotional  Materials, provided MBRK approved such Promotional Materials prior to implementation, including those that DD  prepared for MBRK, and there are no deviations in such Promotional Material from the time MBRK provides DD with  approval of such Promotional Material to the time that such Promotional Material is produced, printed and/or distributed  by DD or on behalf of DD or MBRK; or (4) any breach by MBRK of any of its representations, warranties or obligations  under this Agreement.

9.6. A party seeking indemnification hereunder (an indemnified party)  shall promptly notify the other party (the  indemnifying party) of any claim for which it intends to seek indemnification pursuant to this Section 9 (an Indemnified  Claim) ,  upon becoming aware thereof, shall permit the indemnifying party at the indemnifying party's cost to defend  against such Indemnified Claim and to control the defense and disposition (including, without limitation, all decisions to  litigate, settle subject to the settlement conditions set forth below, or appeal) of such Indemnified Claim and shall  cooperate in the defense thereof. The indemnified party may, at its option and expense, have its own counsel participate  in any such proceeding and shall cooperate with the indemnifying party and its insurer in the disposition of any such  matter. Except with the prior consent of the indemnified party, which consent shall not be unreasonably withheld or  delayed, the indemnifying party may not enter into any settlement of any Indemnified Claim unless such settlement  includes an unqualified release of the indemnified party.

9.7. The provisions of this Section 9 shall survive the termination of this Agreement.







9.8. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, UNDER  ANY LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND,  SUFFERED BY OR OTHERWISE COMPENSABLE TO SUCH OTHER PARTY, ARISING OUT OF, UNDER OR  RELATING TO THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH.

Section 10 —Confidentiality

Both Parties agree to be bound by the Confidentiality Agreement executed by DD and MBRK on December 8, 2009,  and which is incorporated by reference as part of this Agreement.

Section 11 — Intellectual Property

11.1. All materials (including Promotional Materials), documents, information, descriptions and suggestions of every  kind supplied to DD by MBRK or any other affiliate of MBRK in connection with and/or pursuant to this Agreement or  relationship established between DD and MBRK (including, without limitation, any such materials (including Promotional  Materials), documents, information, descriptions and suggestions supplied to DD by MBRK prior to the execution of this  Agreement) shall be the sole and exclusive property of MBRK and MBRK shall have the right to make whatever use it deems desirable of any such materials, documents, information, descriptions and suggestions. Upon termination or  expiration of this Agreement, DD shall promptly return such items, including all copies thereof, to MBRK or dispose of  such items as directed by MBRK.

11.2. DD agrees that any Intellectual Property Rights associated with Promotional Materials developed under this  Agreement shall be the exclusive property of MBRK.

11.3. Prior to presentation to MBRK of any work or work product produced by DD pursuant to this Agreement, DD, at its  own expense, shall insure that all such work or work product does not violate or infringe upon the Intellectual Property  Rights of any third party.

11.4. All trademarks, service marks or logos developed under this Agreement shall be the exclusive property of MBRK.

11.5. DD will not have the right to use the name of MBRK, MOXATAG, or MBRK's trademarks, service marks, logos, or  other similar marks in any manner except with the prior written approval of MBRK; provided that the foregoing shall not  prohibit DD's use of MBRK's names or marks in connection with the performance of the services in a manner consistent  with this Agreement. Nothing in this Agreement shall be construed to assign or license any rights to DD.

Section 12 — Assignment of Work Product

12.1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DD hereby  sells, assigns and transfers to MBRK and MBRK shall be the exclusive owner, assignee, and transferee of the entire  right, title and interest, including all renewals for the entire world, in and to all work performed and work product  developed or produced under this Agreement, including, but not limited to, materials (including Promotional Materials),  writings, documents or other information conceived or reduced to practice or







authored by DD or any of DD Representative's, either solely or jointly with others, in connection with and/or pursuant to  this Agreement or the relationship established between DD and MBRK or with information, materials (including  Promotional Materials) or facilities of MBRK received or used by DD or DD's Representatives during the period in which  DD is retained by MBRK.

12.2. In the event DD retains the service of a third party to perform any of DD's obligations hereunder DD shall, prior to  commencement of any work by such third party, obtain the third party's written acknowledgement that all work done by  such third party shall be deemed work made for hire and that the copyright in such material shall rest and remain with  MBRK, or secure from such third party written assignment of all right, title and interest in and to the copyright in any  material created by such third party.

Section 13 — Governing Law / Choice of Forum

The Parties agree that the venue for any action, injunctive application or dispute determinable by a court of law arising  out of this Agreement and that this Agreement shall be governed by and construed and enforced in accordance with the  laws of the State of North Carolina, without giving effect to choice of law or arbitration provisions, and that the federal  and state courts therein shall have jurisdiction over the subject matter and the Parties.

Section 14 — Survival of Certain Provisions

The terms, provisions, representations, and warranties contained in Sections 3.7, 3.9, 9, 10, 11, 12, and 13 of this  Agreement by their terms are intended to survive the performance thereof by either party or both Parties hereunder shall  so survive the completion of performance, expiration, termination or cancellation of this Agreement.

Section 15 — Entire Agreement / Amendments

This Agreement, together with any exhibits and attachments hereto and any orders issued hereunder, constitutes the  entire agreement between the Parties hereto and shall supersede and take the place of any and all agreements,  documents, minutes of meetings or letters concerning the subject matter hereof that may, prior to the Effective Date, be  in existence. Furthermore, this Agreement shall supersede any and all pre-printed terms on any orders, invoices, and  other related documents and any and all orders issued by DD. This Agreement may only be amended by a statement in  writing to that effect signed by duly authorized representatives of MBRK and DD.

Section 16 — Severability

If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of  this Agreement shall continue in full force and effect. The Parties shall negotiate in good faith to substitute a valid, legal,  and enforceable provision that reflects the intent of such invalid or unenforceable provision.







Section 17 — Non Waiver

Either party's failure to enforce any of the terms or conditions herein or to exercise any right or privilege, or either party's  waiver of any breach under this Agreement shall not be construed to be a waiver of any other terms, conditions, or  privileges, whether of a similar or different type.

Section 18 — Termination and Fees

This Agreement may be terminated as follows:

(a) Either party hereto shall have the right to terminate this Agreement after thirty (30) days written notice to the other in  the event the other is in breach of this Agreement unless the breaching party cures the breach before the expiration of  such period of time. Each such notice shall set forth in reasonable detail the specifics of the breach.

(b) Either party shall have the right to terminate this Agreement effective upon written notice to the other party in the  event the non-notifying party becomes insolvent or makes an assignment for the benefit of creditors, or in the event  bankruptcy or insolvency proceedings are instituted against the non-notifying party or on the non-notifying party's behalf.

(c) Either party shall have the right to terminate this Agreement as per Section 19 below.

(d) MBRK may terminate this Agreement upon 60 days notice for a Change of Control subject to the Fees outlined in  paragraph (f) of this Section 18.

(e) Upon the termination or expiration of this Agreement, all obligations and rights of both MBRK and DD hereunder  shall terminate, except all obligations and rights (i) to make or receive payments becoming due prior to the date of  termination or expiration, (ii) to pay or receive payments for any damages from any breach of the Agreement and (iii)  otherwise provided in Section 14 of this Agreement. In addition to the foregoing, upon termination or expiration of this  Agreement for any reason, each party shall continue to maintain accurate records necessary to demonstrate  compliance with applicable laws, regulations and guidelines, including, without limitation, records relating to MOXATAG  promotion to DD Target Segment Prescribers.

(f) Termination for Change of Control and Fees — If MBRK terminates this Agreement in the first year of the Agreement  for any reason, then MBRK will pay DD a) an Early Termination Fee plus b) the End of Agreement Fee. If MBRK  terminates the Agreement in years 2 or 3 prior to the period 60 days before the anniversary date, then MBRK will pay  DD only the Early Termination Fee. If the Agreement is terminated in years 2 or 3 by MBRK providing notice to DD  within 60 days of the then current anniversary date of its intent not to renew, then MBRK will pay DD the End of  Agreement Fee but no Early Termination Fee.

Section 19 — Force Majeure

Each party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement  by reason of any extraordinary, unexpected and/or unavoidable event, such as acts of God, fire, flood, explosion,  earthquake, or other natural forces, war, civil unrest, accident, destruction or other casualty, any lack or failure of  transportation facilities, any lack or







failure of supply of raw materials, any strike or labor disturbance, or any other event similar to those enumerated above.  Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in  performance and provided that the party has not caused such event(s) to occur. Notice by the failing party of such  party's failure or delay in performance due to force majeure must be given to the other party within ten (10) calendar days after its occurrence. All delivery dates under this Agreement that have been affected by force majeure shall be  tolled for the duration of such force majeure. In no event shall any party be required to prevent or settle any labor  disturbance or dispute. Notwithstanding the foregoing and except as otherwise provided in Section 18 above with  respect to MBRK's right to terminate this Agreement in the event that there is an inability to manufacture MOXATAG  due to force majeure events, should the event(s) of force majeure suffered by a party extend beyond a ninety (90) day period, the other party may then terminate this Agreement by written notice to the non-performing party.

Section 20 — Notices

All notices or other communications, which are required or permitted hereunder shall be in writing and sufficient if  delivered personally, sent by overnight courier with tracking capabilities, sent by first-class, registered or certified mail or  sent by confirmed facsimile transmission.

If notices to DD, to:

Jay Grobowsky  CEO  DoctorDirectory.com, Inc.  One Page Avenue, Suite 280  Asheville, NC 28801  Telephone: 888-796-4491 ext.101 Facsimile: 828-255-0442

If notices to MBRK, to:

John Thievon  CEO  MiddleBrook Pharmaceuticals, Inc.  7 Village Circle — Suite 100  Westlake, TX 76206  Telephone: 817-837-1200 Facsimile: 817-582-0410

With copy to:

Brad Cole  General Counsel  MiddleBrook Pharmaceuticals, Inc.  7 Village Circle — Suite 100  Westlake, TX 76206  Telephone: 817-837-1215 Facsimile: 817-582-0400







Section 21 — Disputes/Arbitration

21.1. In the event of any controversy or claim arising from or relating to any provision of this Agreement, or any term or  condition hereof, or the performance by a party of its obligations hereunder, or its construction or its actual or alleged  breach, the Parties will try to settle their differences amicably between themselves in negotiations between the Parties'  respective Presidents or their executive level designees. If the dispute has not been resolved to the mutual satisfaction  of the Parties within sixty (60) days after delivery of written notice of such dispute, either party may request binding  arbitration.

21.2. Any dispute which is not resolved by executive level negotiations will be settled by final and binding arbitration  before a single arbitrator in Asheville, NC and such arbitration will be conducted pursuant to then current rules of  arbitration of commercial disputes of the American Arbitration Association. Judgment upon the award rendered by the  arbitrator may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to recover from the losing party reasonable attorney's fees, expenses and costs. In no event will the arbitrator have any right or power to  award punitive or exemplary damages.

Section 22 — Assignment/Change of Control

This Agreement shall bind the Parties hereto and their successors and assigns, provided that neither party shall have  the right to assign this Agreement or any part thereof to a third party without the prior written consent of the other party,  however such consent will not be unreasonably withheld.

[Signature Page to Follow]







IN WITNESS WHEREOF, the Parties hereto, each by a duly authorized representative, have executed this Agreement  as of the date first written above.

[Signature Page to Promotion Agreement]

                          DoctorDirectory.com, Inc.    MiddleBrook Pharmaceuticals, Inc.                         By: /s/ Jay Grobowsky   By: /s/ John Thievon

 Name: Jay Grobowsky      Name: John Thievon     Title:  CEO      Title:  President & CEO      Date:  February 3, 2010      Date:  February 3, 2010







EXHIBIT 1

TO AGREEMENT BETWEEN  DOCTORDIRECTORY.COM, INC. AND MBRK PHARMACEUTICALS, INC.  DATED FEBRUARY 3, 2010

DD TARGET SEGMENT PRESCRIBERS

The Parties agree that the list of DD Target Segment Prescribers (hereinafter, DD Target List) will be provided to  MBRK by DD. MBRK shall have final approval of the DD Target List. MBRK receipt and approval of the DD Target List  shall be documented in writing by the Parties. DD Target Segment Prescribers shall consist of only those licensed  prescribers whose clinical practice is consistent with MOXATAG's approved labeling, uses, and indication.

It is anticipated that the DD Target List may exclude at MBRK's discretion, those prescribers that MBRK includes it its  called upon healthcare practitioners, telemarketing program and as communicated to DD prior to the DD Target List  being approved by MBRK. Any subsequent modifications to the DD Target List will be as approved in writing by the  Parties.







EXHIBIT 2

TO AGREEMENT BETWEEN  DOCTORDIRECTORY.COM, INC. AND MBRK PHARMACEUTICALS, INC.  DATED FEBRUARY 3, 2010

MBRK DELIVERABLES

MBRK agrees to provide DD, to the best of its ability, with the following:

The Cost of Samples Amount and the Cost of Coupon Amount shall be at the expense of MBRK.

  •  Relevant portions of its MOXATAG marketing and communications plan,      •  MBRK-approved MOXATAG sales promotion materials in electronic format where available,      •  MOXATAG sales and training aids, including any eDetailing web site or relevant product materials,      •  All applicable MBRK policies and procedures that MBRK requires DD to comply with, including MBRK  policies governing interactions with physicians and other Medical Professionals,      •  Analysis where available regarding promotion effectiveness of prior promotions,      •  Any available market research concerning MOXATAG,      •  Direct mail collateral pieces as shall be used from time to time by MBRK to promote MOXATAG to DD Target  Segment Prescribers,      •   Timely review and approval of DD provided draft promotion material for use by DD,      •   The availability of MOXATAG Coupons and MOXATAG samples and the related fulfillment services as agreed  to in advance by MBRK,      •  Monthly reporting, detailed by prescriber of redemption of MOXATAG Coupons, and      •  Monthly and quarterly attendance at status meetings, as appropriate, which may be via telephone, web based  meeting/portal or face to face.







EXHIBIT 3

TO AGREEMENT BETWEEN  DOCTORDIRECTORY.COM, INC. AND MBRK PHARMACEUTICALS, INC.  DATED FEBRUARY 3, 2010

PRESCRIBER DATA

For purposes of this Agreement, Prescriber Data will be the prescription data for the activity within the U.S. for the USC  Level 2 #15151 — Aminopenicillins category, in sufficient detail to identify periodic prescribing activity of MOXATAG.  Such prescriber activity will be the basis for DD to calculate the Promotion Fees due as per Section 5 for the applicable  Promotion Measurement Period.







EXHIBIT 4

TO AGREEMENT BETWEEN  DOCTORDIRECTORY.COM, INC. AND MBRK PHARMACEUTICALS, INC.  DATED FEBRUARY 3, 2010

PROMOTION SOLUTIONS

DD will provide promotional solutions to promote MOXATAG to DD Target Segment Prescribers as approved by MBRK.  These services may include the following:

eSampling Platform — DD has created an eSampling platform that provides eligible prescribers with a virtual sample  closet. Eligible prescribers will be determined through an analysis of prescribers selected from the DD Target  Segment. Only those prescribers who possess a valid state license to prescribe MOXATAG and practice in a clinical  area consistent with MOXATAG's approved labeling will be eligible to receive MOXATAG samples. This closet will  provide a vehicle for these prescribers to order MOXATAG samples utilizing business rules created by MBRK. DD will  promote the availability of samples to agreed upon prescribers and all fulfillment of samples will be conducted by  MBRK's designated sample fulfillment provider in accordance with MBRK policies and procedures.

eLearning/eDetailing — DD may create an interactive learning platform that includes content of both an educational  and promotional nature. All content would be consistent with MOXATAG's approved labeling and product positioning.  The use of quizzes and interactive case presentations will be created to educate prescribers and promote interest in  the eLearning platform. DD will link and/or incorporate a MOXATAG eDetail into the learning platform, if available. DD  will attempt to use existing approved content for inclusion into the learning platform to expedite the MBRK approval  process. All content will be as approved by MBRK.

Educational Email — DD's philosophy is to use science to support the promotion of MOXATAG. Therefore, the  promotional program could include a series of educational messages that focus on clinical results and studies. These  messages may be non-branded or partially branded depending on the nature of the content and shall be consistent  with MOXATAG's approved labeling. New educational messages may be created and added as a result of ongoing  understanding of prescribers' attitudes and perceptions. All content shall be approved by MBRK.

Direct-to-Physician Bulletin Services — Promotional emails may be used to communicate the primary, secondary  and tertiary messages to the appropriate DD Target Segment Prescribers. The appropriate interval and frequency of  messaging needed to ensure high response rates and interest level will be determined in consultation with MBRK.







Promotional emails generally include one or more calls-to-action such as online sample offers, clinical data reprint  offers, and links to product website, eLearning Platform and/or a product eDetail, if available. Promotional emails shall  comply with the CAN-SPAM Act of 2003 (15 U.S.C. 7701 et. seq.).

Physician Portal Promotions — DD may place MOXATAG-specific promotion in the DD Professional site within  www.DoctorDirectory.com. Prescribers are required to logon or use an existing electronic communication to enter the  site, which allows DD to target specific promotion to those prescribers whose practice area is consistent with  MOXATAG's approved labeling. Promotion is in the form of rotating/flash tile ads and text links within the appropriate disease-state education and MOXATAG sample content areas. All Promotional Materials and their respective  placement shall be approved by MBRK.

Patient Portal Promotions — Where appropriate, DD may place standard banner ads on the DD website  www.DoctorDirectory.com that can be made visible to patients researching physicians. The site can accommodate  static and flash banners and business rules developed in conjunction with MBRK guide the number of ads served  based upon the number of banner ads within the Directory. In addition to the Directory's landing page, banners can be  also served within the appropriate prescriber search and return pages. Such banner ads will be linked only to those prescribers whose practice area is consistent with MOXATAG's approved labeling. All banner ads and their respective  placement shall be approved by MBRK.

Direct Mail Advertising — DD may use print mail to reach selected DD Target Segment Prescribers. Existing mail  creative concepts may be used or if needed, DD may create new mail concepts in concert with and as approved by  MBRK. At MiddleBrook's request, all direct mail advertising will include an opt-out option for recipient prescribers.

Coupon Promotions — DD may deploy a program to promote and distribute Coupons to appropriate targets as  determined by both DD and the MBRK. Coupons can be made available via email promotion, print mail, site  promotion, and within the online sample closet. All coupon promotion will be as approved by MBRK and shall not be  valid for purchases that are reimbursed in whole or in part by Medicare, Medicaid, or similar federal and state  programs), or for residents of Massachusetts if the purchase is reimbursed by a health care insurer.

Consumer Condition Content — DD may create pages of static disease and condition information consistent with  MOXATAG's approved labeling that are appropriate for consumers. Pages may include PDF documents for printing of  approved content such as take along pieces for patient office visits. All content will be as approved by MBRK.

Search Engine Marketing — DD may explore the use of specific search terms and phrases that can be used to  promote the product website and/or eLearning platform. Search terms shall be consistent with MOXATAG's approved  labeling. All search terms and sponsored link content will be as approved by MBRK.

Web Mini Site Promotion — DD may develop and deploy content rich mini sites that consist of static content but  offer additional web properties in which to promote MOXATAG. Such mini sites may also be deployed as part of a  search engine strategy as small content rich sites generally score well within search engine algorithms and place  high within the natural return list. All content will be as approved by MBRK.

DD will not deploy any promotional service relating to MOXATAG without prior written approval from MBRK. All related  Promotional Materials and associated content, as well as the use and placement of such Promotional Materials, are  subject to MBRK's legal, medical and regulatory review and approval process. 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?
If MBRK  terminates the Agreement in years 2 or 3 prior to the period 60 days before the anniversary date, then MBRK will pay  DD only the Early Termination Fee.

ENDORSEMENT AGREEMENT

         THIS AGREEMENT, made and entered into as of this 1st day of January, 2000, by and between MOSSIMO, INC., 2450 White Road, 2nd Floor, Irvine, California 92614 (Company), and DAVID DUVAL ENTERPRISES, INC. c/o International Management, Inc., IMG Center, 1360 East 9th Street, Suite 100, Cleveland, Ohio 44114 (Licensor):

                                   WITNESSETH:

         WHEREAS, David Duval (Duval) is recognized as a highly skilled professional golfer.

         WHEREAS, Company desires to obtain the rights to use the name, fame, image and athletic renown of Duval in connection with the advertisement and promotion of its products as provided herein;

         WHEREAS, Duval has licensed all such rights to Licensor, along with the right to sublicense such rights to third parties.

         NOW, THEREFORE, the parties agree as follows:

         1.       DEFINITIONS.  As used herein, the following terms shall be defined as set forth below:

         (a)      Contract Period shall mean that period of time commencing on                   January 1, 2000 and concluding December 31, 2003, unless                   terminated sooner as provided herein.

         (b)      Contract Year shall mean the consecutive 12-month period                   beginning on any January 1st during the Contract Period.

         (c)      Products shall mean casual apparel consisting of men's                   pants, shirts, sweaters, windshirts and raingear.

         (d)      Duval Identification means the right to use, subject to the                   provisions hereof, Duval's name, fame, nickname, initials,                   autograph, voice, video or film portrayals, facsimile                   signature, photograph, likeness and image or facsimile image,                   and any other means of endorsement by Duval used in connection                   with the advertisement and promotion of Company's Products.

         (e)      Contract Territory shall mean worldwide.

         (f)      Outerwear shall mean the golf shirts, sweaters, windshirts                   and raingear worn by Duval when he plays professional golf.

                                      -1-

         (g)      Exempt Status shall mean Duval has earned full playing                   privileges on the PGA Tour each year of the contract term.

         2. GRANT OF RIGHTS. In consideration of the remuneration to be paid to Licensor pursuant hereto, Licensor grants to Company the right and license during the Contract Period to use the Duval Identification solely in connection with the advertisement and promotion of Company's Products within the Contract Territory as set forth herein. Licensor agrees not to grant the right to use the Duval Identification to anyone other than Company in connection with the advertisement and promotion of Products. It is understood that Company may not use the Duval Identification in connection with any items for sale or resale, other than Company Products as specified herein.

         3. PRIOR APPROVAL. Company agrees that no use of the Duval Identification nor any item used in connection with the Duval Identification will be made hereunder unless and until the same has been approved by Licensor. Licensor agrees that any material, advertising or otherwise, submitted for approval as provided&sbsp;herein may be deemed by Company to have been approved hereunder if the same is not disapproved in writing within ten (10) business days after receipt thereof. Licensor agrees that any material submitted hereunder will not be unreasonably disapproved and, if it is disapproved, that Company will be advised of the specific grounds therefor. If Company desires immediate approval of advertising material hereunder, Company shall have the right to directly contact Licensor's authorized agent to obtain such approval. Company agrees to protect, indemnify and save harmless Licensor, Duval and their authorized agent, or any of them, from and against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, arising out of, or in any way connected with, any advertising material furnished by, or on behalf of, Company.

         4. REMUNERATION. (a) In consideration of the rights herein granted hereunder, Company shall pay to Licensor the annual fee set forth in the schedule below (the Annual Fee).

                 Year                           Annual Fee                  ----                           ----------







                 2000                            $850,000                  2001             $850,000 plus amounts paid under Section                                                  5 in 2000                  2002             $850,000 plus amounts paid under Section                                              5 in 2000 and 2001                  2003             $850,000 plus amounts paid under Section                                                5 in 2000-2002

One-half of the Annual Fee will be due on or before January 1 and July 1 of each Contract Year.

         (b) As additional remuneration hereunder, Company agrees to pay Licensor an Additional License Fee of One Million Five Hundred Thousand Dollars ($1,500,000) to be paid

                                      -2-

in quarterly installments on or before January 1, April 1, July 1 and October 1 of the first Contract Year.

         (c)      Licensor agrees that Duval must achieve and maintain Exempt                   Status on the PGA Tour throughout each Contract Year and must                   participate as a player in a minimum of fifteen (15) official                   PGA Tour events each Contract Year (Minimum Annual Performance                   Requirements). Licensor also agrees that the Additional                   License Fee set forth in Section 4 (b), is an advance payment                   earned at a rate of $375,000 on each annual anniversary date                   beginning December 31, 2000. In the event Duval does not meet                   the Minimum Annual Performance Requirements for a Contract                   Year, $375,000 of the Additional License Fee will be deemed to                   be unearned. Any unearned Additional License Fee is fully                 &bbsp; refundable and due Company no later then January 31st of the                   following year. In the event the Company terminates the                   Agreement in accordance with Section 16, any unearned                   Additional License Fee will be fully refundable and due the                   Company as set forth in Section 16.

         5. ADDITIONAL REMUNERATION. It is agreed that should Duval achieve any of the accomplishments set forth in the following schedule during the Contract Period, then Company will pay Licensor the additional remuneration set forth below for each such accomplishment due to the increased value in the Duval Identification.

                                 Accomplishment                    Additional Remuneration                                  --------------                    -----------------------

                                                                 PGA Tour Win                                                               $25,000 PGA Tour 2-5 place finish                                                  $10,000

World Championship Event Win                                               $40,000 World Championship Event 2-5 place finish                                  $15,000

Major Win (Masters, U.S. Open, British Open, PGA Championship)            $100,000 Major 2-5 place finish                                                     $25,000

Named to Ryder Cup or President's Cup Team                                 $15,000

Player of the Year                                                         $40,000

All additional remuneration will be due within thirty (30) days of each such accomplishment. Company agrees that all additional remuneration earned by Licensor during each Contract Year will be added to the Annual Fee for each remaining Contract Year during the Contract Period.

         6. PAYMENTS. Licensor may elect to have payments made by check, wire transfer, or bank transfer. Unless such election has been made in writing, all payments shall be made by check drawn to the order of David Duval Enterprises, Inc. and delivered to c/o IMG Center,

                                      -3-

1360 East 9th Street, Cleveland, Ohio 44114, Attention: Treasurer. Past due payments hereunder shall bear interest at the rate of (a) one and one-half percent (1-1/2%) per month, or (b) the maximum interest rate permissible under law, whichever is less. All amounts herein are in United States Dollars.

         7. MARKETING COMMITMENT. Company agrees that it will aggressively promote Duval and his association with Company and Company Products each Contract Year during the Contract Period.

         8. SERVICES OF DUVAL. (a) If Company desires to utilize the services of Duval as a model in connection with Company advertising to promote its products or for personal appearances to promote Company, Licensor agrees, at the request of Company to provide the services of Duval upon a reasonable number&bbsp;of days as mutually agreed upon and at places reasonably convenient to his schedule. Company agrees that it will reimburse Licensor for all reasonable travel, lodging and meal expenses incurred by Licensor or Duval in connection with such





services. Company further understands that failure to utilize services of Duval pursuant to this section shall not result in any reduction in payments to Licensor hereunder nor may the obligation to provide services be carried forward or backward to any Contract Year. The obligations of Licensor to provide services of Duval hereunder are subject to the condition that payments to Licensor are current and up to date.

         (b) Should Company use Duval in television advertising to promote Company's Products, Company will make all applicable required union scale and pension and welfare payments. Company and Licensor will mutually agree on the portion of the Annual Fee that shall be allocated for such broadcast services.

         (c) Licensor agrees to cause Duval to wear Company's Products sold by Company when playing professional golf, and while participating in golf exhibitions and outings, upon the condition that Company supply Duval with such amounts of properly fitting Products, in fabrics and styles approved by Duval and Company, as Duval may reasonably request which are suitable for his use in tournament competition. Company agrees to pay all charges in connection with the delivery of such Products to Duval, including shipping charges, air freight charges and customs charges. Company agrees to reimburse Licensor's authorized agent for all such expenses incurred by it in connection with the transfer of such Products to Duval.

         (d) Licensor agrees that Duval will consult with Company as reasonably requested regarding the development of a Company golf line of Products or a Duval Signature Line of Products as mutually agreed upon. Company agrees that Licensor will receive additional remuneration in connection with such golf line or signature line, whether as a royalty or otherwise, as mutually agreed upon.

         9. COMPANY IDENTIFICATION. (a) It is agreed that the logo or name of Company (or Company's subsidiaries as mutually agreed upon) (the Company Logo) shall be affixed to mutually agreed upon locations of Duval's Outerwear, excluding the right sleeve which is reserved for one of Licensor's other sponsors, which he wears when he plays professional golf.

                                      -4-

Company agrees that it will be responsible for, and the cost of, affixing the Company Logo on all such Outerwear. Furthermore, Company understands that if Duval participates in a special team event where there is an official uniform, then Duval is permitted to wear such uniform during such event (e.g. Ryder Cup, President's Cup, etc.).

         (b) Company shall provide and maintain, at its own expense, commercial general liability insurance and advertising injury coverage, with limits of not less than One Million Dollars ($1,000,000.00), and shall cause such policy to be endorsed to state that Duval is an additional named insured thereunder. A certificate of insurance evidencing such coverage shall be furnished to Duval within thirty (30) days of the full execution of this Agreement. Such insurance policy shall provide that the insurer shall not terminate or materially modify such policy or remove Duval as an additional named insured without prior written notice to Duval at least twenty (20) days in advance thereof.

         10. AUTHORIZED AGENT. Licensor hereby designates International Management, Inc., IMG Center, 1360 East 9th Street, Suite 100, Cleveland, Ohio 44114, Attention: Charley Moore as its authorized agent for all purposes hereunder. All notices or submissions to be made or delivered by Company to Licensor pursuant to this Agreement shall be delivered to said address free of all charges such as, for example, shipping charges and customs charges. In the event that any such charges are paid by Licensor or by its authorized agent, Company agrees to make prompt reimbursement.

         11. DEFAULT. (a) If either party at any time during the Contract Period shall (i) fail to make any payment of any sum of money herein specified to be made, or (ii) fail to observe or&bbsp;perform any of the covenants, agreements or obligations hereunder (other than the payment of money), the nondefaulting party may terminate this Agreement as follows: as to (i) if such payment is not made within ten (10) days after the defaulting party shall have received written notice of such failure to make payment, or as to (ii) if such default is not cured within thirty (30) days after the defaulting party shall have received written notice specifying in reasonable detail the nature of such default. In order to be a sufficient notice hereunder, any such written notice shall specify in detail each item of default and shall specify the provision of this Agreement which applies to each item of default, and shall specify in detail the action the defaulting party is required to take in order to cure each item of default. The termination rights set forth in this section shall not constitute the exclusive remedy of the nondefaulting party hereunder, however, and if default is made by either party hereunder, the other may resort to such other remedies as said party would have been entitled to if this section had been omitted from this Agreement, subject to the terms of this Agreement. Termination under the provisions of this section shall be without prejudice to any rights or claims which the terminating party may otherwise have against the defaulting party, and if Company is the defaulting party, Company shall be responsible for any and all payments due under the terms of this Agreement in addition to other liabilities set forth above.

         (b) If Company shall become bankrupt or insolvent, or if Company's business shall be placed in the hands of a receiver, assignee or trustee, whether by voluntary act of Company or otherwise, the Contract Period shall, at the election of Licensor, immediately terminate.

                                      -5-





         12. USE OF DUVAL IDENTIFICATION AFTER TERMINATION. From and after the termination of the Contract Period all of the rights of Company to the use of the Duval Identification shall cease absolutely and Company shall not thereafter use or refer to the Duval Identification in advertising or promotion in any manner whatsoever. It is further agreed that following termination of the Contract Period, Company shall not advertise, promote, distribute or sell any item whatsoever in connection with the use of any name, figure, design, logo, trademark or trade name similar to or suggestive of the Duval Identification.

         13. TRADEMARKS. Company agrees that it will not file, during the Contract Period or thereafter, any application for trademark registration or otherwise obtain or attempt to obtain ownership of any trademark or trade name within the Contract Territory or in any other country of the world which consists of the Duval Identification or any mark, design or logo intended to make reference to Duval or to identify products endorsed by Duval. In the event that, prior to commencement of the Contract Period, Company has filed one or more applications for registration of any such trademark, or otherwise has obtained any rights to such trademark, Company agrees to cause such applications and/or trademarks to be assigned and transferred to Licensor forthwith.

         14. RESERVATION OF RIGHTS. All rights not herein specifically granted to Company shall remain the property of Licensor to be used in any manner Licensor deems appropriate. Company understands that Licensor has reserved the right to authorize others to use Duval Identification within the Contract Territory and during the Contract Period in connection with all tangible and intangible items and services other than Products themselves.

         15. INDEMNITY. Company agrees to protect, indemnify and save harmless Licensor, Duval and their authorized agent, or any of them, from and against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, including reasonable attorneys' fees, arising out of, or in any way connected with, actions or omissions of Company, any advertising material furnished by, or on behalf of, Company or any claim or action for personal injury, death or other cause of action involving alleged defects in Company's Products or services. Company agrees to provide and maintain, at its own expense, general commercial and product liability insurance with limits no less than Three Million Dollars ($3,000,000) and naming Licensor and Duval as additional named insureds. Within thirty (30) days from the date hereof, Company will submit to Licensor evidence of such policy, requiring that the insurer shall not terminate or materially modify such without written notice to Licensor at least twenty (20) days in advance thereof.

         16. SPECIAL RIGHT OF TERMINATION. Company shall have the right to terminate this Agreement upon written notice to Licensor if the commercial value of the Duval Identification is substantially reduced because Duval (i) has engaged in illegal or immoral conduct resulting in a felony conviction; or (ii) fails an officially sanctioned drug test or is criminally convicted of any drug related offense. Any termination pursuant to this paragraph shall become effective on the 30th day next following the date of receipt by Licensor of Company's written notice to so terminate.

                                      -6-

         17. LIMITED LIABILITY. Notwithstanding anything to the contrary herein, in the event Company incurs any expenses, damages or other liabilities (including, without limitation, reasonable attorneys' fees) in connection with the performance or non-performance of any term or provision hereof, Licensor's liability to Company shall not exceed the remuneration, excluding reimbursement of expenses, actually paid to Licensor by Company. In no event will Licensor be liable for any indirect, incidental, reliance, special or consequential damages arising out of the performance or non-performance of this Agreement, whether or not Licensor had been advised of the possibility of such damages. It is understood that Duval is not a party hereto and has no liability hereunder but is an intended specific third party creditor beneficiary hereof.

         18. WAIVER. The failure of either party at any time or times to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and each may at any time demand strict and complete performance by the other of said terms, covenants and conditions. Any waiver of such rights must be set forth in writing.

         19. SEVERABILITY. If any provision of this Agreement shall be declared illegal, invalid, void or unenforceable by any judicial or administrative authority, the validity of any other provision and of the entire Agreement shall not be affected thereby.

         20. ASSIGNMENT. This Agreement shall bind and inure to the benefit of Licensor, and the successors and assigns of Licensor. The rights granted Company hereunder are personal to it, shall be used only by it or its affiliate and shall not without the prior written consent of Licensor be transferred or assigned to any other party. In the event of the merger or consolidation of Company with any other entity, Licensor shall have the right to terminate the Contract Period by so notifying Company in writing within sixty (60) days following Licensor's receipt of notice of such merger or consolidation.

         21. ARBITRATION/GOVERNING LAW. This agreement shall be governed by, and its provisions enforced in accordance with, the laws of the State of Ohio, without regard to its principals of conflicts of laws. In the event a dispute arises under this agreement which cannot be resolved, such dispute shall be submitted to arbitration and resolved by a single arbitrator (who shall be a lawyer not employed by or associated with either party to this agreement) in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. All such arbitration shall take place at the office





of the American Arbitration Association located in Cleveland, Ohio. Each party is entitled to depose one (1) fact witness and any expert witness retained by the other party, and to conduct such other discovery as the arbitrator deems appropriate. The award or decision rendered by the arbitrator shall be final, binding and conclusive and judgment may be entered upon such award by any court.

         22. SIGNIFICANCE OF HEADINGS. Section headings contained herein are solely for the purpose of&bbsp;aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Agreement. Accordingly, in case of any question with respect to the

                                      -7-

construction of this Agreement, it is to be construed as though such section headings had been omitted.

         23. NO JOINT VENTURE. This Agreement does not constitute and shall not be construed as constituting an association, partnership, joint venture or relationship of principal and agent or employer and employee between Licensor and Company. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and, except as expressly set forth herein, nothing herein contained shall give, or is intended to give, any rights of any kind to any third person.

         24. ENTIRE AGREEMENT. This writing constitutes the entire agreement between the parties hereto and may not be changed or modified except by a writing signed by the party or parties to be charged thereby.

         25. EXECUTION AND DELIVERY. This instrument shall not be considered to be an agreement or contract nor shall it create any obligation whatsoever on the part of Licensor and Company, or either of them, unless and until it has been personally signed by a representative of Licensor and by a representative of Company and delivery has been made of a fully signed original. Acceptance of the offer made herein is expressly limited to the terms of the offer.

         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

MOSSIMO, INC.                                  DAVID DUVAL ENTERPRISES, INC.

By:      /s/ Edwin Lewis                       By:  /s/ David Duval    -------------------------------                ------------------------------      Name: Edwin Lewis                              Name: David Duval      Title: President and CEO

                                       -8- 
Question: Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?

It is understood that Duval is not a party hereto and has no liability hereunder but is an intended specific third party creditor beneficiary hereof.