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 the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.

Ex Input:
Exhibit 10.8 Affiliate Program / Premium Affiliate Management General Terms and Conditions

The following General Terms and Conditions are intended for (i) Web site owners (hereafter, Affiliates) who wish to participate as Affiliates in the Affiliate Program provided by element 5 (governed by II. and IV. in these General Terms and Conditions) on the basis of these General Terms and Conditions and also for (ii) Software Publishers who distribute their software products as downloads using the services of element 5 GmbH, Vogelsanger Strasse 78, 50823 Cologne, Germany and its subsidiaries (together hereafter, element 5) and who wish to make use of the additional service provided by element 5 (hereafter, Affiliate Management, governed under III. and IV. in these General Terms and Conditions) for integration of the Affiliate Program provided by element 5.

I. Object of the Affiliate Program/ Affiliate Management Program for Software Publishers

The object of the Affiliate Program provided by element 5 (hereafter, Program) is to publish electronic advertisements on the Web site of the Affiliate for selected software products offered by element 5 Software Publishers. Instead of fixed compensation, the Affiliate receives result- dependent Advertising Cost Compensation (also known in the element 5 Control Panel as Commission) in exchange for publishing the advertisements. The Advertising Cost Compensation depends on the actual sales generated by end users referred via the electronic advertisement (the Affiliate's link).

Within the context of sales processed from this Program, element 5 acts (to the end user) as a service provider for Software Publisher and handles the sales process by proxy of Software Publisher in accordance with underlying share-it! Developer Agreement. element 5 receives an additional service fee from the participating Publishers for this Affiliate Management.

Under the terms of this Affiliate Management, Software Publisher's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Software Publisher to gain access to Sales data and End User data through a secure online connection and change Software Publisher related settings, e.g. the commission of the Affiliate and activation and deactivation of the Affiliate.

Affiliate's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Affiliate to (i) gain access to referred sales through a secure online connection and (ii) change Affiliate related settings, e.g. input or alteration of personal data, definition of default style within the context of the given technical limitations, and requests for new partnerships with Software Publishers or termination of existing partnerships.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





II. Affiliate Program

§ 1 Affiliate Participation

Participation of an individual Affiliate in the Program is dependent on activation by the Software Publisher. Once the Affiliate has registered, element 5 will send an e-mail to Software Publisher with a request to activate the Affiliate. Once the Affiliate is activated by the Software Publisher, the Affiliate is considered to be a participant in this program and is bound by these General Terms and Conditions.

§ 2 Products under the Agreement

(1) The Products under the Agreement are software products designated by the respective Software Publisher for this purpose and which can be selected by the Affiliate from a product catalog in the Affiliate Control Panel. (2) Following initial activation of a product under the agreement, the Affiliate has the opportunity to choose further software products (including those from other Software Publishers), found in the Affiliate's Control Panel, and offer them on the Affiliate's Web site under these General Terms and Conditions. However, the offering of these new products is dependent on the Software Publisher activating the Affiliate for the respective software.

§ 3 Control Panel

(1) After successfully completing the registration process for participation in the Program, the Affiliate will be sent a user ID and a password to access to the Affiliate Control Panel. With the user ID and password, the Affiliate Control Panel provides the Affiliate access, via a secure online connection, to a secure area on element 5's Web server so that the Affiliate may, at any time, view the number of software sales the Affiliate has referred, as well as change other settings. (2) When using the user ID and password, the Affiliate shall observe the following obligations and precautions: (i) Only the Affiliate may use the user ID and password. (ii) The password shall be kept strictly confidential. The Affiliate shall take due care to ensure that no unauthorized parties learn the password. (iii) If the Affiliate loses its password or if there is a possibility that an unauthorized party has learned the user ID and password, the Affiliate shall immediately report this to element 5, which can then block access by the Affiliate to the Control Panel. All actions carried out with the user ID and password will be attributed to the Affiliate.

§ 4 Integration of the Link

(1) The Affiliate shall integrate the product under the agreement using the appropriate link on its Web site; the link points to the order form operated by element 5. This link is generated by a Link Generator for the respective product under the agreement. The Link

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Generator is located in the secure area of element 5's Web site in the Affiliate Control Panel. The link that is generated contains an individualized affiliate user ID by means of which any sales can be attributed to the Affiliate. Proper technical integration of the link is the responsibility of the Affiliate. If the links do not function, no Advertising Cost Compensation will be paid. (2) The Affiliate shall indicate on its Web site that (i) the Affiliate is acting as an independent partner of the respective Software Publisher by participation in the Affiliate Program provided by element 5 and (ii) The Software Publisher is the seller of the product and the payment process is administered by element 5. (3) The Affiliate shall produce a brief description for each activated product on its Web site. The Affiliate is responsible for the content, the style and the layout of this information. The Software Publisher can provide the Affiliate with graphics and text in an electronic format for use in describing the product, which the Affiliate shall use for the purpose of advertising the Products under the Agreement and links according to the instructions of the Software Publisher. The Affiliate should be aware that the product prices and availability may change at any time. It is not recommended that the price be listed on the Web site of the Affiliate. Maintenance of these product prices is possible only on the Web sites of the Software Publisher and the Publisher's corresponding site operated by element 5.

§ 5 Order Processing

(1) element 5 shall be responsible for the entire order processing for the referred end user according to the terms and conditions of the underlying share-it! Developer Agreement between the Software Publisher and element 5. element 5 shall provide the order forms for the order processing on its Web server; receive payments from the referred end users and forward these payments, less the agreed Advertising Cost Compensation, the service fees and relevant value added tax (VAT) to the Software Publisher; handle refunds and returns according to the provisions of the underlying share-it! Developer Agreement; and provide end user service relating to the administration of the order. The Software Publisher shall provide technical end-user service. (2) element 5 reserves the right to reject queries and orders which do not meet its requirements; including, in particular, orders by referred end users who do not meet credit requirements, who do not authorize direct debiting from their bank account, or who do not present a valid credit card. (3) An agreement by the Software Publisher with the referred end user does not exist until either a written or electronic order confirmation arrives from element 5 in the name of the Software Publisher or when element 5 begins to fulfill the agreement in the name of the Software Publisher. Typographical, printing and computation errors on the Web site of the Affiliate shall be charged to said Affiliate.

§ 6 Advertising Cost Compensation

(1) element 5 will pay Affiliate its advertising costs (including Vat, if any, on presentation of a valid VAT invoice) if an end user arrives via the link integrated in Affiliate's Web site at the order page hosted by element 5 for the respective Software

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Publisher's Product under this Agreement and end user uses the automatic ordering system that carries out the registration and payment processing, so that the Affiliate's link is deemed to be directly causative for the entry of the End User into the agreement with the Software Publisher and End User's payment, proving that all requirements are irrevocably met (agreements arising in a qualified manner). Affiliate is only eligible to earn the Advertising Cost Compensation on sales occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. (2) Insofar as the referred end user accepts cookies when clicking on Affiliate's link, proceeds from orders will be taken into account which do arise within the lifespan (of max. 180 days) of the cookie(s) used and/ or possibly within the lifespan of a special action of the Software Publisher via integrated link. (3) element 5 shall record and compute on a monthly basis the amount of said Advertising Cost Compensation for the Affiliate. (4) The computation basis for determining the value of the Advertising Cost Compensation is calculated by the gross sales price (including taxes, shipping and handling, etc.) actually invoiced to the referred end user. The percentage of the respective Advertising Cost Compensation shall be stipulated by the Software Publisher, but shall not exceed 50% of the effective gross sales price of the software. (5) The Advertising Cost Compensation shall not be paid if and insofar as it is determined that the end user will not meet its payment obligations or will meet them only partially, or if for any other reason the invoice to the end user was cancelled (e.g. in cases where a charge back of a credit card charge, a debit advice or other return or refund of the software product occurs). If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion. (6) The payment of the Advertising Cost Compensation shall occur monthly insofar as the sum due exceeds a value of 100 EUR / 100 USD. If this is not the case, the sum due can be retained until a total value of at least 100 EUR / 100 USD is reached, at the latest, upon termination of the Affiliate's participation in the Program. (7) The payment can be made by wire transfer, Direct Deposit (US only) or check, as chosen by the Affiliate. (8) The invoicing is deemed to be approved if the Affiliate does not object in writing, including a statement of reasons, within four weeks.

III. Affiliate Management for Software Publishers

§ 1 Participation by the Software Publisher

(1) Software Publisher's participation in Affiliate Management indicates that the Software Publisher agrees to these General Terms and Conditions, and that the Software Publisher shall integrate the Affiliate Program into the Web site using a corresponding link. (2) To generate revenue through this Program by means of sales referred by the Affiliate, the Affiliate, after completion of registration, must be activated by the Software Publisher in the Control Panel. The Software Publisher will be informed of the Affiliate's

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





registration per e-mail with a request for the Affiliate's activation from element 5. (3) By configuring the settings in the Control Panel, the Software Publisher determines the amount of the success-based Advertising Cost Compensation. If the Publisher does not configure any settings, then it will accept the default settings proposed by element 5 when activating the Affiliate. Prior to making changes in the Control Panel regarding the amount of the Advertising Cost Compensation, written notification must be given to element 5 and the Affiliate.

§ 2 Integration of the link

(1) element 5 shall make a hyperlink available to the Software Publisher that links to the appropriate registration form for the Affiliate Program. The link can be accessed in the secure Software Publisher Control Panel on element 5's Web site under Affiliate Management. (2) Every Affiliate must complete the registration form once prior to participating in the Program and agree to these General Terms and Conditions by checking the Online checkbox. Afterwards, the Affiliate can also advertise other Products under this Agreement (see above § 3) after activation by the respective Software Publisher.

§ 3 element 5's Service Fee

For each sale administered by element 5 of the Software under this Agreement, element 5 shall receive an additional service fee of 2% of the gross sales price (including taxes, shipping and handling, etc.) as well as the Advertising Cost Compensation defined in II. § 6 (4) and in addition to VAT or sales tax (where applicable). element 5 will pay the Affiliate the Advertising Cost Compensation as defined in II. § 6 . Further invoicing terms are obtained from the existing business relationship, defined in the respective share-it! Developer Agreement between Software Publisher and element 5.

IV. General terms

§ 1 License

Upon activation of the Affiliate, the Software Publisher grants the Affiliate a non-exclusive, revocable right to use provided advertising material, notices and all further presentations (insofar as available - also known hereafter as Material) only for the purpose of designating its Web site as a partner Web site and presenting the designated advertising Material. Under no circumstances may the transferred Material be edited or modified without prior written permission of the Software Publisher. element 5 and the Software Publisher retain all rights with regard to their logos, their trade name or their trademarks and other commercial protection rights. The Software Publisher and element 5 are authorized to revoke the license granted to the Affiliate at any time by written notice.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





§ 2 Changes to these provisions

element 5 RESERVES THE RIGHT TO MODIFY AND TO SUPPLEMENT THESE GENERAL TERMS AND CONDITIONS AT ANY TIME. THE CURRENT VERSION WILL BE MAINTAINED FOR VIEWING AS A HYPERLINK ON element 5's WEB SITE IN THE CONTROL PANEL. MOREOVER, element 5 WILL ANNOUNNOUNCE ANY CHANGES TO THESE TERMS VIA E- MAIL. WHITHIN 14 DAYS OF THE ANNOUNCEMENT OF CHANGED PARTICIPATION TERMS, AFFILIATE AND SOFTWARE PUBLISHER MAY OBJECT TO SUCH CHANGES. IF NO OBJECTION IS RECEIVED DURING THIS TIME, THE PARTICIPANT IS DEEMED TO HAVE ACCEPTED THE CHANGES AND THEY WILL BECOME PART OF THE EXISTING RELATIONS UNDER THE AGREEMENT.

§ 3 Correspondenceont>

Correspondence shall take place preferably via e-mail, which is accorded the same status as postal mail. Qualifying dates are always agreed as Receipt by Recipient, unless otherwise noted. For e-mail, the receipt of the message on the destination mail server is deemed to be the time of reception.

§ 4 Independence of Relations under the Agreement

The parties to the contract shall operate their Web sites independently of one another and are solely responsible for the content, technology used, and design. This agreement may not be construed as establishing between the parties a company or an association, nor does it establish an employment relationship or a commercial agent agreement. The parties to this agreement are not authorized to act in the name of the other party and / or to accept offers or make any statements on behalf of the other party. As an exception to the previous sentence, element 5 is authorized to make statements on behalf of the Software Publisher pursuant to these T&C and the element 5 vendor agreement (formerly known as e-sales contract).

§ 5 Guarantee by the Party to the Agreement for its Web site

(1) The Affiliate shall be responsible for the entire content of its Web site. The Affiliate guarantees in particular that (i) It will integrate advertising Material according to the provisions and instructions of the Software Publisher into that Affiliate's Web site insofar as said Material was transferred to the Affiliate; (ii) The material used the Affiliate's Web site will not contain any representations of violence, sexually related contents or discriminatory statements or representations with regard to race, sex, religion, nationality, handicap, sexual preference and orientation, or age, nor will said Material be unlawful in any way; (iii) The Material used on the Affiliate's homepage will not infringe upon the rights of third parties, particularly patents, copyrights, trademarks or other commercial protection rights as well as general personality rights and cannot be mistaken for the products of the Software Publisher and/or element 5 or a Web site operated by the Software Publisher and/or element 5; (iv) It will not send any e-mail without the express

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





consent of the receiver(s) (no spam e-mails). (2) The Affiliate shall guarantee the above named properties of its Web sites and will pay defense costs and indemnify and keep fully indemnified the Software Publisher and element 5, its subsidiaries and its and their directors, officers, employees and agents upon demand from any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with any breach by Affiliate of its warranty set out in this clause.

§ 6 Limitation of liability

(1) The parties exclude mutual liability for slightly negligent violation of obligations in connection with this agreement, with the exception of § 16 and § 5 (3) of this agreement. This includes in particular the liability exclusion for lost profit, the loss of data or interruption to or errors in the operation of the Web site of the Affiliate. The above liability exclusion also applies to the personal liability of employees, representatives and persons employed to perform the obligations of the parties to the agreement. The limitation of liability does not apply to claims arising through initial incapacity or in case of justifiable impossibility. (2) Any possible product liability claims are unaffected by the above limitations. Insofar as element 5 or the Software Publisher violates an essential obligation under the agreement, the obligation to pay restitution is limited to the damages that typically arise. (3) element 5 makes no guarantees in regard to the Software Publisher's software products offered via its Web site. Moreover, element 5 does not guarantee the Affiliate that the operation of its Web sites will be maintained without interruptions and without errors. Liability is expressly excluded for the consequences of such interruptions or errors.

§ 7 Agreement period / Cancellation

The term of this Agreement will begin upon acceptance of Affiliate's Program application and will end when terminated by either party of this Agreement. This Agreement is entered into for an unlimited period of time. Either party may cancel this Agreement at any time, with or without supplying a reason, through written notification or by making suitable settings in the respective Control Panel.

§ 8 Termination of the agreement

(1) When the agreement ends, all usage rights of the Affiliate and Software Publisher accorded by this agreement with regard to the provided logos or Web site contents expire. (2) Upon termination of the relationship under this agreement, the Affiliate is obligated to undertake all of the technical measures necessary to delete from its Web site all links that refer to the Web sites of element 5 or to the Software Publisher. The same applies upon termination of Affiliate Management for links of the Software Publisher that were established in connection with the participation in Affiliate Management on its Web site. (3) element 5 is authorized to retain final payment for a reasonable time, minimum for 30 days after the end of the respective quarter, to ensure that the correct amount is paid.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005





Affiliate is only eligible to earn the Advertising Cost Compensation on sales of Software Publishers Products occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion.

§ 9 Final provisions

(1) Force majeure If a party is unable to fulfill its obligations under the agreement for reason of force majeure, it shall immediately inform the other party thereof and do everything in its power to resume normal operations as quickly as possible. In such case, the affected party shall not be deemed to be in breach of contract and cannot be held liable. (2) Provision for written form Additional agreements, changes or additions are valid only if element 5 has confirmed them in writing. The same applies to the warranting of properties. (3) Severability clause If any provision of this agreement is or becomes invalid, the validity of the remaining provisions shall not be affected. Insofar as a provision is invalid, the parties will agree on a new provision which comes as close as possible to the intent of the invalid provision and which is legally valid. (4) Applicable law and jurisdiction Even in case of agreements with foreign (non-German) Software Publishers and Affiliates, the law of the Federal Republic of Germany applies. The place of jurisdiction for all claims arising in connection with this business relationship is Cologne, Germany.

Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

Ex Output:
18644


Ex Input:
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)?

Ex Output:
43109


Ex Input:
Exhibit (13)(c)

AMENDED AND RESTATED UNCONDITIONAL CAPITAL MAINTENANCE AGREEMENT BETWEEN AMERICAN INTERNATIONAL GROUP, INC. AND AMERICAN GENERAL LIFE INSURANCE COMPANY

This Amended and Restated Unconditional Capital Maintenance Agreement (this Agreement), is made, entered into and effective as of February 18, 2014, by and between American International Group, Inc., a corporation organized under the laws of the State of Delaware (AIG), and American General Life Insurance Company, a corporation organized under the laws of the Texas (the Company).

WITNESSETH:

WHEREAS, the Company is a life insurer subject to certain capital requirements of the insurance laws and regulations of Texas (the Domiciliary State);

WHEREAS, the Company is an indirect wholly owned subsidiary of AIG;

WHEREAS, AIG has an interest in unconditionally maintaining the Company's financial condition; and

WHEREAS, AIG and the Company executed that certain Unconditional Capital Maintenance Agreement, dated March 30, 2011 (as amended, the 2011 CMA), and the parties have agreed to amend and restate such 2011 CMA as provided in this Agreement:

NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows:

  1.   Capital Contributions. In the event that the Company's Total Adjusted Capital for each of the Company's first and third fiscal quarters (as determined based on the Company's first and third fiscal quarterly filed statutory financial statements, respectively, subject to any adjustments or modifications thereto required by the Domiciliary State's insurance department or the Company's independent auditors) falls below the Specified Minimum Percentage of the Company's projected Company Action Level RBC (in each case as estimated by the Company as of the end of each such first and third fiscal quarters, as the case may be, taking into account (for purposes of such estimation) facts and circumstances occurring after the end of such fiscal quarter but before such time as AIG would be obligated pursuant to paragraph 3 to make a contribution), AIG shall, within the respective time periods set forth under paragraph 3, in accordance with paragraph 4 and in compliance with applicable law, provide to the Company cash, cash equivalents, securities or other







      instruments that qualify (as admitted assets) for purposes of calculating the Company's Total Adjusted Capital, as a contribution and not as a loan, in an amount such that the Company's Total Adjusted Capital as of the end of each of the Company's second and fourth fiscal quarter, as the case may be, will be projected to be at least equal to the Specified Minimum Percentage of the Company's Company Action Level RBC. Notwithstanding the foregoing, AIG may, at any time as it deems necessary in its sole discretion and in compliance with applicable law, make a contribution to the Company in such amount as is required for the Company's Total Adjusted Capital to equal a percentage of its Company Action Level RBC determined to be appropriate by the Company and AIG.

  2.   Defined Terms. For the avoidance of doubt, the terms Total Adjusted Capital and Company Action Level RBC shall have the meanings ascribed thereto under the insurance laws and regulations of the Domiciliary State, or, if not defined therein, shall have the meanings ascribed thereto in the risk-based capital (RBC) instructions promulgated by the National Association of Insurance Commissioners (NAIC). The term Specified Minimum Percentage shall be equal to the percentage set forth on Schedule 1 attached hereto, which shall be agreed to by AIG and the Company at least once every year beginning upon the date of the filing of the Company's 2014 Annual Statement with the Domiciliary State's insurance department and following review against the capital adequacy standards and criteria (Agency Criteria) of each of Standard & Poor's Corp. (S&P), Moody's Investors Service (Moody's) and A.M. Best Company (A.M. Best). Notwithstanding the obligation of the Company and AIG to review the Specified Minimum Percentage on an annual basis, the parties hereto agree to review and revise the Specified Minimum Percentage on a more frequent basis, if the parties agree it is appropriate, to take into account (a) any material changes after the date hereof to any Agency Criteria adopted by any of S&P, Moody's or A.M. Best, on the one hand, or to the law of the Domiciliary State or NAIC RBC rules or instructions, on the other hand, which causes the results under the Agency Criteria to diverge from that under the law of the Domiciliary State or NAIC RBC rules or instructions, (b) the Company completes a material transaction that is treated materially differently by the Agency Criteria, on the one hand, and the NAIC RBC rules or instructions, on the other hand, or (c) any other material development or circumstance affecting the Company which AIG and the Company agree merits a reevaluation of the Specified Minimum Percentage then in effect.

  3.   Timing of Capital Contributions. The Company and AIG agree that any contribution to be made under paragraph 1 will take place within the following two time periods per year, as applicable: (a) during the time beginning on the first business day after the filing of the Company's first

2







      fiscal quarterly statutory financial statements and ending on the last business day prior to the end of the Company's second fiscal quarter; and (b) during the time beginning on the first business day after the filing of the Company's third fiscal quarterly statutory financial statements and ending on the last business day prior to the end of the Company's fourth fiscal quarter. Notwithstanding the foregoing, in compliance with applicable law, any capital contribution provided for under paragraph 1 may be made by AIG after the close of any fiscal quarter or fiscal year of the Company but prior to the filing by the Company of its statutory financial statements for such fiscal quarter or fiscal year, respectively, and contributions of this nature shall be recognized as capital contributions receivable as of the balance sheet date of the yet to be filed quarterly or annual financial statement (as the case may be), pursuant to paragraph 8 of Statement of Statutory Accounting Principles No. 72, to the extent approved by the Domiciliary State.

  4.   Funding Mechanics. At the time that any contribution is due under paragraph 3, AIG agrees that it will either (a) make such contribution to the Company's direct parent and cause such direct parent to then contribute such funds, securities or instruments so contributed by AIG to the Company, or (b) make such contribution directly to the Company without receiving any capital stock or other ownership interest in exchange therefor. All contributions contemplated under this Agreement shall be approved and made in compliance with applicable law, including, without limitation, approval by the board of directors of each applicable entity and any prior notice or approval requirements specified under applicable rules and regulations.

  5.   AIG Policies. Subject to the requirements of applicable law and the approval, to the extent required, by any or all of the Company's senior management, relevant management committees, board of directors, and of any insurance regulator, the Company hereby acknowledges that, in a manner consistent with past practice and any other reasonable requirements of AIG, it will comply with all financial and budgetary planning, risk mitigation, derisking or pricing, corporate governance, investment, informational and procedural requirements set forth by AIG.

  6.   No Failure to Claim. AIG hereby waives any failure or delay on the part of the Company in asserting or enforcing any of its rights or in making any claims or demands hereunder.

  7.   Termination. Unless earlier terminated in accordance with this paragraph 7, this Agreement shall continue indefinitely. AIG shall have the absolute right to terminate this Agreement upon thirty (30) days' prior written notice to the Company, which notice shall state the effective date of termination (the Termination Date); provided, however, that AIG agrees not to terminate this Agreement unless (a) AIG significantly modifies the

3







      corporate structure or ownership of the Company, or (b) AIG sells the Company to an acquirer, in each case, (i) having a rating from at least one of S&P, Moody's, A.M. Best or a substitute agency, which is a nationally recognized statistical rating organization, that is at least equal to the lower of (x) AIG's then-current rating from such agency or (y) the Company's then-current rating as supported by this Agreement from such agency; or (ii) such that, immediately on the effective date of the modification of corporate structure or sale by AIG of the Company, the Company's capitalization is consistent with the minimum capital adequacy standards and criteria of at least one of S&P, Moody's, A.M. Best or a substitute agency, which is a nationally recognized statistical rating organization, for a rating that is equal to or better than the Company's then-current rating on the date immediately preceding such modification of corporate structure or sale. To the extent not terminated previously by AIG pursuant to the foregoing, this Agreement will terminate automatically one year after the closing of any sale of the Company by AIG, and all provisions hereof will be of no further force and effect. For the avoidance of doubt, the termination of this Agreement pursuant to this paragraph 7 shall not relieve either party of any obligation it may owe to the other party hereunder that existed prior to, and remains outstanding as of, the Termination Date.

  8.   Policyholder Rights. Any policyholder holding a policy issued by the Company prior to the termination of this Agreement shall have the right to demand that the Company enforce the Company's rights under paragraphs 1, 3 and 4 of this Agreement, and, if the Company fails or refuses to take timely action to enforce such rights or the Company defaults in any claim or other payment owed to any such policyholder when due, such policyholder may proceed directly against AIG to enforce the Company's rights under paragraphs 1, 3 and 4 of this Agreement; provided, however, that no policyholder of the Company may take any action authorized under this paragraph 8 unless and until (a) such policyholder has given AIG written notice of its intent to enforce the terms of this Agreement as provided in this paragraph 8, which notice shall specify in reasonable detail the nature of and basis for the policyholder's complaint and (b) AIG has failed to comply with this Agreement within sixty (60) days after such notice is given; and, provided, further, that upon termination of this Agreement in accordance with paragraph 7 hereof, the rights of any policyholder as provided for under this paragraph 8 shall terminate effective as of the Termination Date, except with respect to the obligation of AIG (if any) to make capital contributions to the Company pursuant to paragraphs 1, 3 and 4 of this Agreement solely to the extent such obligation arose prior to, and remained unsatisfied as of, the Termination Date (it being understood that upon AIG's satisfaction of all such obligations after the Termination Date, no such policyholder shall have any rights against the Company or AIG, as the case may be, under this paragraph 8).

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  9.   No Indebtedness; No Policyholder Recourse Against AIG. This Agreement is not, and nothing herein contained and nothing done pursuant hereto by AIG shall constitute or be construed or deemed to constitute, an evidence of indebtedness or an obligation or liability of AIG as guarantor, endorser, surety or otherwise in respect of any obligation, indebtedness or liability, of any kind whatsoever, of the Company. This Agreement does not provide, and is not intended to be construed or deemed to provide, any policyholder of the Company with recourse to or against any of the assets of AIG.

  10.   Notices. Any notice, instruction, request, consent, demand or other communication required or contemplated by this Agreement shall be in writing, shall be given or made or communicated by United States first class mail, addressed as follows:

If to AIG:

American International Group, Inc. 175 Water Street New York, New York 10038 Attention: Secretary

If to the Company:

American General Life Insurance Company

2919 Allen Parkway Houston, Texas 77019 Attention: Chief Financial Officer

with a copy (which shall not constitute notice) to:

American General Life Insurance Company c/o AIG Life and Retirement 1999 Avenue of the Stars, 27t h Floor Los Angeles, CA 90067 Attention: General Counsel

  11.   Successors. The covenants, representations, warranties and agreements herein set forth shall be mutually binding upon and inure to the mutual benefit of AIG and its successors and the Company and its successors.

  12.   Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York, without giving effect to the principles of conflict of laws.

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  13.   Severability. If any provision of this Agreement shall be declared null, void or unenforceable in whole or in part by any court, arbitrator or governmental agency, said provision shall survive to the extent it is not so declared and all the other provisions of this Agreement shall remain in full force and effect unless, in each case, such declaration shall serve to deprive any of the parties hereto of the fundamental benefits of or rights under this Agreement.

  14.   Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussion, whether oral or written, of the parties. This Agreement may be amended at any time by written agreement or instrument signed by the parties hereto.

  15.   Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

  16.   Counterparts. This Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties.

[signature page follows]

6







IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.           AMERICAN INTERNATIONAL GROUP, INC.               By:  /s/ Charles S. Shamieh

Name: Charles S. Shamieh       Title: Senior Vice President and Chief Corporate Actuary              AMERICAN GENERAL LIFE INSURANCE COMPANY               By:  /s/ Mary Jane Fortin

Name: Mary Jane Fortin       Title: Executive Vice President & Chief Financial Officer







SCHEDULE 1

The Specified Minimum Percentage shall equal 385% of the Company's Company Action Level RBC. 
Question: Highlight the parts (if any) of this contract related to Minimum Commitment that should be reviewed by a lawyer. Details: Is there a minimum order size or minimum amount or units per-time period that one party must buy from the counterparty under the contract?

Ex Output:

3516