In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
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Question: Exhibit 10.34

*** Text Omitted and Filed Separately Confidential Treatment Requested Under 17 C.F.R. 200.80(b)(4) and 203.406

DEVELOPMENT AGREEMENT

This Development Agreement (Development Agreement) is entered into on April 15 , 2010 (EffectiveDate) by and between Cargill, Incorporated through its Bio Technology Development Center, having its principal place of business at 15407 McGinty Road West, Wayzata, Minnesota 55391 USA (Cargill) and Bioamber S.A.S., having a place of business at Route de Bazancourt, F-51110, Pomacle France (Bioamber). Bioamber and Cargill shall be referred to individually as Party and collectively as Parties, as required by text.

Background

Cargill and Bioamber mutually agree as follows:

Cargill Confidential - 1 - * Confidential treatment requested

A. Cargill has developed a yeast strain designated CB1 (CB1) for fermenting dextrose and/or mixed sugar streams and related research tools for modifying CB1,which are protected by Licensed Patents (as defined in Section 2.5 below).

B. Bioamber desires to engage Cargill to further develop or modify CB1 with the goal of fermenting dextrose and/or mixed sugar streams to produce succinic acid and salts thereof.

C. The Parties desire to grant each other certain rights to use the further developed or modified CB1 as well as other technology that is developed in the course of the work as provided in this Development Agreement for research purposes only.

1. Scope of Work Plan 1.1 Cargill agrees to perform the services to develop or modify CB1 to produce succinic acid and salts thereof using dextrose (defined as glucose) and/or sucrose as the fermentation feedstock (Work Plan). The Work Plan is more fully described in Exhibit A, which is hereby incorporated by reference into this Development Agreement. CB1 that has been further developed or modified (or the like) under the Work Plan shall be referred to as Modified CB1. Any changes to the Work Plan must be in writing and signed by both Cargill and Bioamber and may be subject to incremental fees depending on resource requirements.

1.2 In agreeing to perform the Work Plan, Cargill represents and warrants that:

1.2.1 Cargill has the capability, experience, and means necessary to perform the Work Plan, and the Work Plan will be performed using personnel, equipment, and material qualified and suitable to perform the Work Plan requested;

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1.2.2 Cargill will provide properly trained and informed personnel, and Cargill will be solely responsible for the negligent acts, errors and omissions of its employees, subcontractors, and agents and for any other person performing services under this Development Agreement at the direct request of Cargill;

1.2.3 Cargill will perform the Work Plan in a workmanlike manner with reasonable skill and care ordinarily exercised by members of the profession practicing under similar conditions and in accordance with accepted industry practices and professional guidelines;

1.2.4 Subject to Section 13.1, Cargill has in effect and will maintain in effect all permits, licenses and other authorizations necessary to perform the Work Plan; and

1.2.5 No other party has rights to its services as described in the Work Plan, and that a work assignment from any third party shall not be accepted, or work by Cargill aloneshall not be conducted, to develop CB1 or other microorganisms that will be used to (a) directly produce succinic acid and salts thereof, or (b) indirectly produce succinic acid and salts thereof (for example, Cargill may develop microorganisms to produce precursors of succinic acid, such as fumaric acid and malic acid, so long as such precursors are not converted to succinic acid, such as by chemical modification), for the Term (as defined in Section 10.1) of this Development Agreement. For purposes of clarity, and as examples, Cargill may sell dextrose as fermentation feedstock to third parties, who may use such dextrose to produce succinic acid; also, Cargill may modify starches to make succinic acid starch derivatives.

2. Fees and Milestones 2.1 Bioamber shall pay Cargill Two Hundred Fifty Thousand U.S. Dollars ($250,000.00) within thirty (30) days of the execution of this Development Agreement.

2.2 In addition to the payment in Section 2.1, Bioamber shall pay Cargill a total of [***] U.S. Dollars ($[***] per year per full-time equivalent (FTE) person to perform the Work Plan, and Cargill will make available up to [***] FTE persons per year to perform the work as outlined in the Work Plan. Such total is subject to change based on an annual review of the needs and requirements of the Work Plan. The actual number of FTEs assigned at any given time will be a function of the Work Plan and will be subject to agreement amongst the Parties. In addition, Bioamber will pay for reasonable expenses incurred by Cargill, including travel. Cargill shall cover ordinary and customary [***]. Cargill shall submit to Bioamber a monthly invoice for costs owed by Bioamber, accompanied by a report summarizing Cargill's activities in relation to actual hours worked and expenses incurred. Bioamber will pay Cargill's costs within thirty (30) days of receipt of invoice and supporting documentation. Bioamber shall have the right to audit Cargill time sheets from time to time. Such audit shall occur once per year during reasonable business hours by an independent third party agreed to by both parties, who shall be under obligations of confidentiality.

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2.3 Bioamber shall also pay Cargill within thirty (30) days of achieving each of the milestones summarized below and more fully described in the Work Plan found in Exhibit A. For purposes of clarity, payment is triggered [***]. Further, each of the Milestones and Target Dates may be changed according to the needs of the Work Plan and upon written agreement by the parties.

Milestone Target Date Payment Milestone 1: Proof of Concept 12 months after Effective Date US $250,000.00 Milestone 2: CB1 Strain Development 30 months after Effective Date US $300,000.00 Milestone 3: CB1 Strain Optimization 42 months after Effective Date US $500,000.00

2.4 Missed Milestones.

2.4.1 In the event Cargill does not achieve a given Milestone provided in Section 2.3 by the Target Date listed in Section 2.3 or modified Milestone and modified Target Date as agreed to by the Parties, and subsequently achieves such milestone as per the criteria described in Exhibit A, the payment for such missed milestone shall be due [***] and the amount due shall be [***] for every [***] beyond the Target Date. The Target Date for subsequent Milestones will be adjusted to reflect the date on which the Milestone was actually achieved. If a subsequent Milestone is achieved by the original Target Date listed in Section 2.3, Bioamber will pay Cargill the amount [***]. For purposes of clarity and as examples, if Milestones 1 and 2 were not delivered by the Target Dates, but Milestone 3 is delivered by or before the Target Date, then the total payments due to Cargill at that time would be [***] (a total payment of $[***]). Another example is if [***], the payment due at that time would be a total of $[***].

2.4.2 In the event Cargill does not achieve a given Milestone provided in Section 2.3 by the Target Date listed in Section 2.3 or modified Milestone and modified Target Date as agreed to by the Parties, and Bioamber decides to commercialize Modified CB1, any outstanding milestone payments shall immediately become due such that the total payment due Cargill under this Development Agreement equals One Million Fifty Thousand U.S. Dollars (US $1,050,000.00).

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2.4.3 Provided that Cargill has respected its undertakings set out in Section 1.2 of this Development Agreement, no other damages shall accrue to Cargill for not achieving a given Milestone other than provided in Sections 2.4.1, 2.4.2, and 2.5.

2.5 Option to Research License. In the event Cargill (i) is unable to achieve a given milestone described in Section 2.3 by the Target Date, or (ii) terminates this Agreement pursuant to Section 10.2, Bioamber shall have the option to obtain a license during the term of this Development Agreement to the patent applications and patents listed in Exhibit B (including any continuations, continued prosecutions, continuations- in-part, reissues, reexaminations, divisions or substitutions thereof) (collectively Licensed Patents), the tool kit listed in Exhibit C (Licensed Tool Kit), and Cargill Improvements if any (as defined in Section 5.2 below), for research use only and for additional monetary consideration (Research License). Except for financial terms paid by third parties for [***], the Research License shall be offered to Bioamber at [***]. Such research use shall be for the development and optimization of CB1 for the production of succinic acid and salts thereof using dextrose or sucrose as the fermentation feedstock. The Research License shall be provided to Bioamber only, with no rights to sublicense and with no have made rights. Notwithstanding the preceding, Bioamber will be permitted to outsource development work as outlined in the Work Plan and according to the Research License to third parties that have been approved by Cargill, and such approval shall not be unreasonably withheld. In considering whether or not to outsource such development work to third parties, the Parties recognize that it is in their mutual interest to protect CB1, Modified CB1, Cargill Confidential Information (as defined in Section 4.1), and Know-How and Licensed Patents (as those terms are defined under the Commercial License Agreement) and, therefore, the Parties shall undertake joint evaluations of third parties who have been identified by Bioamber to perform such development work, including, for example and not by limitation, a risk assessment of the geography in which such development work will occur, and whether or not such third parties have similar guiding principles as Cargill (a copy of Cargill's Guiding Principles and Compliance Policy on Intellectual Property is attached as Exhibit F). Such development work shall not be conducted by such third parties in circumstances where Cargill's intellectual property is at an unacceptable risk as determined by Cargill based on the joint evaluations of such third parties. The terms and conditions of such Research License shall be negotiated between the Parties and shall include the terms described in this Section 2.5 and terms addressing ownership and rights to use of any intellectual property developed. Further, this Development Agreement shall serve as the framework for the Research License.

2.6 Technology Transfer. In the event Milestone 3 is achieved, Cargill will provide up to [***] to assist in a successful transfer of the Modified CB1 technology to Bioamber in order to allow subsequent scale-up at the same FTE rate set forth in Section 2.2. For clarity, [***] per FTE per year equals US$[***] for this technology transfer).

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2.7 Scale-Up. Following the successful technology transfer, upon request by Bioamber and subject to Cargill's availability of appropriate resources, Cargill will enter at its sole discretion into a services agreement with Bioamber to assist in the fermentation scale-up of using Modified CB1 obtained under Milestones 2 and 3 for producing succinic acid and salts thereof at a single Bioamber facility or a facility designated by Bioamber. Cargill shall invoice Bioamber [***] U.S. Dollars (US$[***]) per man-day provided, not inclusive of taxes or other governmental fees, and further adjusted for inflation at the time it goes into effect. Cargill shall have no obligation to perform scale-up work at Cargill facilities.

3. Alternative Feedstock. Bioamber also desires the right to further develop CB1 to utilize cellulosic biomass as the fermentation feedstock. Cargill hereby grants Bioamber the option to modify or convert the Work Plan to include the development or modification of CB1 capable of fermenting such cellulosic feedstock (Modified Work Plan). If such option is exercised, (a) the terms and conditions of this Development Agreement shall apply to the Modified Work Plan except (i) new, additional up-front and milestone payments shall apply as provided below, and (ii) any development work performed under the Modified Work Plan will be at a FTE rate which will be equivalent to the FTE rate provided in Section 2.2 above and further adjusted for inflation at the time it goes into effect; and (b) the commercial license attached as Exhibit D shall be expanded to include the resulting strain developed out of the Modified Work Plan with no additional change in the financial terms. Additionally, the additional up-front fee [***].

Milestone using Alternative Feedstock Target Date Payment Up-front Payment TBD US $[***] Milestone 1: Proof of Concept TBD US $[***] Milestone 2: CB1 Strain Development TBD US $[***] Milestone 3: CB1 Strain Optimization TBD US $[***]

4. Confidentiality. To carry out the Work Plan, Cargill may receive from, and provide to, Bioamber certain Confidential Information, as defined below. Such Confidential Information will be disclosed by one Party (the Disclosing Party) to the other Party (the Receiving Party) on the following terms and conditions:

4.1 Confidential Information means all business, technical, and financial information related to the Work Plan, the terms and discussions relating to the Term Sheet executed by the parties on December 3, 2009 and December 4, 2009, and to any aspect of the business of each Party that is material to the Work Plan, including, without limitation, Licensed Tool Kit, products, product compositions, raw materials, specifications, formulae, equipment, business plans and strategies, customer lists, supplier lists, know-how, samples, drawings, pricing informationand other financial information, inventions, ideas, research information, packaging, manufacturing processes, and other information, or its potential use, that is owned by or in possession of either Party. For purposes of clarity, the parties shall not disclose to each other any Confidential Information that is not material to the Work Plan, such as, by way of example and without limitation, processes and other information relating to post-fermentation activities. Confidential Information shall not include information that: (a) is in the public domain prior to disclosure by Disclosing Party; (b) becomes part of the public domain, by publication or otherwise, through no unauthorized act or omission by the Receiving Party; (c) is lawfully in the Receiving Party's possession prior to disclosure by the Disclosing Party; or (d) is independently developed by an employee(s) of the Receiving Party with no access to the disclosed Confidential Information.

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4.2 The Receiving Party agrees to take and maintain proper and appropriate steps to protect Confidential Information of the Disclosing Party. The Receiving Party agrees to disclose the Confidential Information of the Disclosing Party only to employees or agents of the Receiving Party who are directly involved with the Work Plan contemplated by this Development Agreement, and even then only to such extent as is necessary and essential to perform the Work Plan. The Receiving Party agrees to inform such employees and agents of the confidential nature of the information disclosed hereunder and to cause all such employees and agents to abide by the terms of this Development Agreement.

4.3 The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any unauthorized party without the Disclosing Party's prior express written consent or unless required by court order or order of a similar governmental entity. If a Party is required by court order or order of a similar governmental entity to disclose the other's Confidential Information, they shall give the other Party prompt notice of such requirement so that an appropriate protective order or other relief may be sought.

4.4 The Receiving Party will use Confidential Information only in connection with the Work Plan. Both Parties have reserved all rights to their respective Confidential Information not expressly granted herein. All documents and/or tangible materials containing or comprising Confidential Information of the Disclosing Party will remain the property of the Disclosing Party. Upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party and any documents prepared by the Receiving Party using Confidential Information of the Disclosing Party and the Receiving Party agrees to provide confirmation of such destruction in writing. The Receiving Party may, however, keep one copy of any such document in the files of its legal department or outside counsel for record purposes only.

4.5 Notwithstanding any other provision of this Development Agreement, each Receiving Party acknowledges that a breach of confidentiality and use as provided in this Section may result in irreparable harm and damages to the Disclosing Party in an amount difficult to ascertain and that cannot be adequately compensated by a monetary award. Accordingly, in addition to any other relief to which the Disclosing Party may be entitled at law or in equity, the Disclosing Party shall be entitled to seek a temporary and/or permanent injunctive relief from any breach or threatened breach by the Receiving Party.

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4.6 The obligations imposed by this section, including but not limited to non-disclosure and non-use, however, will endure so long as the Confidential Information of the Disclosing Party does not become part of the public domain.

4.7 The existence of and the terms of this Development Agreement, including its Exhibits, are confidential and are not to be disclosed without the prior written approval of Cargill.

4.8 Neither Party may make any public announcement concerning this Development Agreement, its subject matter, and the activities and actions it contemplates without the other Party's express written consent. 4.9 This Section 4 supercedes and replaces the Mutual Confidentiality Agreement between the Parties, which was effective July 17, 2009. All Confidential Information that was subject to that Mutual Confidentiality Agreement is hereby made subject to the terms and conditions of this Section 4.

5. Intellectual Property 5.1 Each party shall retain ownership of all intellectual property that it owned prior to the Effective Date.

5.2 Improvements. Any invention or discovery relating to the Work Plan, in whole or in part, that is conceived during the term of this Development Agreement shall be an Improvement. The scope for Improvements will be limited to the CB1 strain itself and the [***] (the Field), but shall exclude [***]. Bioamber will own any Improvement in the field of succinic acid and salts thereof and such Improvement shall be designated Bioamber Improvements. Cargill will own any Improvement in all fields other than the field of succinic acid and salts thereof, subject to the rights provided in Section 5.2.1 below, and such Improvement shall be designated Cargill Improvements. In the event it is not clear as to ownership of any Improvement as described in this Section 5.2, in other words, if it is not clear whether an invention or discovery is either a Bioamber Improvement or a Cargill Improvement, such Improvement shall be [***] and such Improvement shall be designated Joint Improvements. For purposes of clarity, as examples, Cargill Improvements are those inventions relating to fumaric acid and malic acid. Additionally, where an Improvement has applications both in the Field and outside the Field, then such Improvement, as it applies to the Field, shall be a Bioamber Improvement and, as it applies outside the Field, such Improvement shall be a Cargill Improvement.

5.2.1 Cargill hereby grants Bioamber, and Bioamber hereby accepts, an exclusive, royalty-free license to Cargill Improvements and Joint Improvements for use in the Field during the term of this Development Agreement with a reservation of right for Cargill to practice such Cargill Improvements and Joint Improvements for use in the field of succinic acid and salts thereof during the term of this Development Agreement. Such use shall be for research purposes only with no rights to sublicense and with no have made rights. Cargill shall also grant a commercial license to Bioamber for Cargill Improvements and Joint Improvements under the terms and conditions of Exhibit D.

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5.2.2 Bioamber hereby grants Cargill, and Cargill hereby accepts, an exclusive, worldwide, royalty-free license with an unlimited right to sublicense under and to Bioamber Improvements for use outside the Field during the term of this Development Agreement. Such use shall be for research purposes only.

5.2.3 Cargill shall have the first option to prepare, file, prosecute, and maintain patent applications and issued/granted patents on Bioamber Improvements and Joint Improvements, which option may be waived in whole or in part. Cargill shall bear all costs incurred in connection with such preparation, filing, prosecution, and maintenance of U.S. and foreign application(s) and issued/granted patents directed to Bioamber Improvements and Joint Improvements. Cargill shall provide Bioamber a copy of any proposed patent application covering Bioamber Improvements and Joint Improvements in advance of the submission of the proposed patent application to any patent office. However, Cargill shall be entitled to file provisional patent applications without seeking Bioamber's approval. If Cargill waives its option, Bioamber shall have the option to prepare, file, prosecute, and maintain patent applications and issued patents on Bioamber Improvements and Joint Improvements. Cargill shall provide, when requested by Bioamber, all information in its possession, or true copies thereof, pertaining to Bioamber Improvements and Joint Improvements which may be necessary or useful in the preparation, filing, and prosecution of patent applications covering the Bioamber Improvements and Joint Improvements. Such information shall be treated as Confidential Information.

5.2.4 If Cargill waives its option to prepare and prosecute a patent application in accordance with Section 5.2.3 and elects not to file such a patent application or elects to allow any such patent application or issued/granted patent to become abandoned or lapse, Cargill shall give Bioamber notice of such election promptly and at least two (2) months prior to the first date that action must be taken to avoid such abandonment or lapse. Bioamber shall have the right to take over at its sole expense the filing, prosecution or maintenance of any such patent application and Bioamber shall keep Cargill informed of Bioamber's filing, prosecution, and maintenance activities. All out-of-pocket expenses of Cargill shall be reimbursed by Bioamber. Bioamber shall have no liability to Cargill for Bioamber's acts or failure to act with respect to such patent application or issued/granted patent.

5.2.5 Cargill shall have the sole power to bring and/or settle suits for infringement of any and all patent applications and/or patents on Improvements, regardless of ownership; provided, however, if required by law, Cargill shall join Bioamber, and Bioamber shall be joined, in such suits. Cargill shall control any such suits and shall bear all expenses related to any such suits. Bioamber shall provide any assistance reasonably requested in prosecuting and enforcing any and all patent applications and/or patents on Improvements. In the event Cargill elects not to initiate and prosecute suits for infringement of any patent application/and or patent onImprovement within the Field, then with sixty (60) days prior written notice to Cargill, Bioamber shall be entitled to initiate and prosecute such suits. For purposes of clarity, within such sixty (60) day period, Cargill shall be entitled to initiate and prosecute such suits.

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5.2.6 Cargill shall have the sole power to settle suits for infringement of the Licensed Patents. Cargill will in good faith consider enforcement requests from Bioamber.

5.2.7 Improvements are to be considered Confidential Information of the owning Party subject to the terms and conditions of Section 4, provided that the Party authorized hereunder to file and prosecute patent applications for an Improvement may make disclosure of that Improvement to outside patent counsel and to relevant patent offices as reasonably necessary for filing and prosecution of a patent application.

5.3 In consideration of the ownership rights granted to Bioamber under this Section 5, and the licenses granted to Bioamber under this Section 5 and the Commercial License attached as Exhibit D, Bioamber agrees to the payment terms and its other obligations contained in the attached Commercial License.

6. WRF Patents. Washington Research Foundation (WRF) is the owner of several patents relating to the expression of polypeptides in yeast (WRF Patents). Prior to transferring CB1 or any other yeast strain to Bioamber, Bioamber shall provide to Cargill a letter from WRF stating that Bioamber has a license to the WRF Patents (Bioamber-WRF License). Upon receipt of such letter, Cargill will transfer CB1 to Bioamber for Bioamber's use of the strain commensurate with and in accordance with the Bioamber-WRF License. Cargill shall have no liability to Bioamber for Bioamber's acts or failure to act with respect to the WRF Patents. 7. Warranties. Except as provided in Section 1.2 of this Development Agreement, Cargill makes no representations or warranties, express or implied, with respect to the services provided under this Development Agreement and with respect to the subject matter of this Development Agreement. The services are provided as is and Bioamber acknowledges that it bears all responsibility and accountability for evaluating, approving, and implementing any of results resulting from this Development Agreement.

8. Indemnification. Bioamber and Cargill agree to waive any and all claims against each other for consequential, punitive, incidental, special, or other forms of exemplary losses whether arising in contract, warranty, tort (including negligence), strict liability, or otherwise, including any losses relating to lost use, lost profits, lost business, damage to reputation, or lost or diminished financing unless such claims are based on a Party's gross negligence or willful misconduct. 9. Notices. All notices or other communication must be in writing and delivered by (a) personal delivery, (b) reputable overnight delivery service, or (c) facsimile or e-mail, confirmed under clause (a) or clause (b), and addressed in each case as set forth below:

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If to Cargill: If to Bioamber:

Cargill, Incorporated Bioamber S.A.S. Bio Technology Development Center 1250 Rene-Levesque West 15285 Minnetonka Blvd. Suite 4110 Minnetonka, Minnesota 55345 USA Montreal, Quebec Canada H3B 4W8 Fax: 952-742-0540 Fax: 514-844-1414 Attention: Pirkko Suominen Attention: Laurent Bernier

With copy to: Cargill, Incorporated Law Department / Mailstop 24 15407 McGinty Road West Wayzata, Minnesota 55391 USA Fax: 952-742-6349 Attention: Bio TDC IP Lawyer

With copy to: Boivin Desbiens Senecal, g.p. 2000-2000 McGill College Suite 2000 Montreal, QC, Canada H3A 3H3 Fax: 514-844-5836 Attention: Thomas Desbiens

10. Term and Termination.

10.1 This Development Agreement will begin on the Effective Date and continue for four (4) years unless earlier terminated pursuant to Section 10.2, or unless the parties extend the term by mutual written Development Agreement (Term). 10.2 Either Party may terminate this Development Agreement by giving written notice to the other Party, (a)in the event the other Party's bankruptcy, insolvency, or the filing of a petition therefore; and (b) the other Party materially defaults in the performance of its obligations hereunder. This Development Agreement shall also terminate upon mutual written agreement by the Parties. Further, in the event there is a dispute as to whether or not Cargill has missed a certain Milestone, then the Target Date for that Milestone shall be tolled until the Parties, acting in good faith, have settled such dispute in writing between themselves or through an independent expert.

11. Independent Contractor. Nothing in this Development Agreement is to be construed to deem the relationship between the parties to be one of master/servant, principal/agent, or employer/employee. To the contrary, the relationship of Cargill to Bioamber is that of independent contractor, and Cargill will have no authority to (i) make any binding decision for, or on behalf of, Bioamber or (ii) commit Bioamber to any contract, obligation, debt, or other liability. None of Cargill's employees will be deemed to be employees of Bioamber. 12. Publicity. Any public statements related to work performed under this Development Agreement, including public statements related to the existence of this Development Agreement itself, will only be made after the prior written consent of both Parties concerning timing, content, and audience.

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13. Miscellaneous.

13.1 Third Party Patents. In addition to the WRF Patents as described more fully in Section 6, the CB1 Team of the Bio Technology Development Center of Cargill represents that, to the best of its knowledge as of the Effective Date, the patents and patent applications of third parties that could impact the Work Plan and the commercialization thereof are provided in Exhibit E (Third Party Patents). Cargill shall have no liability to Bioamber for Bioamber's acts or failure to act with respect to such Third Party Patents. The Parties shall meet regularly throughout the Term of this Development Agreement to determine whether or not licenses to Third Party Patents are needed to perform or continue to perform the Work Plan and the next steps if such licenses are needed.

13.2 Governing Law. This Development Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, United States of America, disregarding its conflicts of law rules.

13.3 Assignment. Neither Party shall assign this Development Agreement or the obligations contained herein without the express written consent of the other Party.

13.4 Waiver. The failure of either Party to insist in any one or more instances upon performance of any terms or conditions of this Development Agreement, is not to be construed as a waiver of future performance of any such term, covenant, or condition, but the obligations of either Party with respect thereto will continue in full force and effect. No waiver will be effective unless in writing and signed by the waiving Party.

13.5 Amendment. No amendment, modification, or waiver of the terms of this Development Agreement shall be binding unless placed in writing and duly executed by the Parties' authorized representatives. 13.6 Severability. All provisions contained herein are severable, and in the event any of them is held to be invalid by any competent court or arbitrator, this Development Agreement is to be interpreted as if such invalid provision were not contained herein.

13.7 Survivability. Sections 4 (Confidentiality), 5 (Intellectual Property), 6 (WRF Patents), 7 (Warranties), 8 (Indemnification), 13.2 (Governing Law), and 13.7 (Survivability) will survive the expiration or earlier termination of this Development Agreement.

13.8 Entire Agreement. This Development Agreement supersedes all previous understandings between Cargill and Bioamber concerning the subject matter of this Development Agreement, including but not limited to the Term Sheet executed by the Parties on December 3, 2009 and December 4, 2009, and the Mutual Confidentiality Agreement between the Parties which was effective July 17, 2009, and, together with its attachments, including the Commercial License Agreement attached hereto as Exhibit D executed concurrently with this Development Agreement, contains the entire agreement between the parties with respect to the subject matter hereof, and may not be amended, modified, or supplemented except in writing and signed by both Parties specifically referring to this Development Agreement and the Commercial License Agreement.

13.9 Bioamber Non-Compete Commitment. Bioamber will not itself or with or through third parties engage in the development of biocatalysts other than E. coli for the production of succinic acid or salts thereof, except for the development activities under the terms and conditions of this Development Agreement. This obligation endures for the Term of this Development Agreement. Notwithstanding the above, Bioamber shall be permitted to evaluate other biocatalysts, but shall not undertake development of such biocatalysts. The purpose of such evaluations shall be to identify and eventually secure alternative technologies, in the event that the CB1 development program is not successful. As such, Bioamber shall cease within 30 days any further funding and development of a biocatalyst, including but not limited to the genetic modification or the optimization of fermentation conditions, when such biocatalyst has demonstrated the ability to produce succinic acid at a concentration above [***] grams per liter. This restriction shall apply to any succinic acid biocatalyst other than E. coli, be it a biocatalyst developed in-house, licensed-in, or under development at a third party lab that is funded by Bioamber or to which Bioamber has secured a future right or right of first refusal through direct payment, in kind contribution, grant, gift, differed payment or commitment to a future payment.

The Parties, through their authorized representatives, hereby agree to the terms and conditions of this Development Agreement.

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CARGILL, INCORPORATED Bio Technology Development Center BIOAMBER S.A.S.

/s/ Jack Staboch /s/ Jean-Francois Huc Signature Signature

VP BioTDC Director General Title Title

4/16/10 April 15, 2010 Date Date

Exhibit A Work Plan Milestones

[***]

MILESTONE 1

[***] Time to achieve: Month 12

MILESTONE 2

[***] Time to achieve: Month 30

MILESTONE 3

[***] Time to achieve: Month 42 Cargill Confidential - 13 - * Confidential treatment requested

Exhibit B Cargill Patents and Patent Applications

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Publication # Title Filing Date Expiration Date

[***]

Publication # Title Filing Date Expiration Date

[***]

Publication # Title Filing Date Expiration Date

[***]

Publication # Title Filing Date Expiration Date

[***]

Publication # Title Filing Date Expiration Date

[***]

Publication # Title Filing Date Expiration Date

[***]

Exhibit C Licensed Tool Kit

Basic Package Content:

Additional Fee Option Content:

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[***] [***] [***] [***] [***]

The price will be negotiated, but as of the Effective Date of this Agreement, the fair market value is base package price of US $[***]

Genome sequence of CB1, including assembly and annotations as is Cargill's state of the art at the time of the request.

The price will be negotiated, but as of the Effective Date of this Development Agreement, the fair market value is price of US $[***]

EXHIBIT D

COMMERCIAL LICENSE AGREEMENT Cargill Confidential - 16 - * Confidential treatment requested

EXHIBIT E Third Party Patents relating to the Work Plan

Third Party Patents relating to Modified Work Plan

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Publication number and title Assignee [***]

Publication number and title Assignee [***]

EXHIBIT F Cargill's Guiding Principles

Cargill's Compliance Policy on Intellectual Property

[*** 2 pages omitted.] Cargill Confidential - 18 - * Confidential treatment requested

Cargill will comply with the laws of all countries to which it is subject. Cargill will not knowingly assist any third party to violate any law of any country, by creating false documents or by any other means. Cargill will not pay or receive bribes or participate in any other unethical, fraudulent, or corrupt practice. Cargill will always honor all business obligations that it undertakes with absolute integrity. Cargill will keep its business records in a manner that accurately reflects the true nature of its business transactions.

Cargill managers and supervisors will be responsible that employees, consultants and contract workers under their supervision are familiar with applicable laws and company policies and comply with them. Further, they will be responsible for preventing, detecting, and reporting any violations of law of Cargill policies. Cargill employees will not become involved in situations that create a conflict of interest between the company and the employee. Every year, all Cargill employees sign an agreement to live these principles.
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.

Answer: Bioamber and Cargill agree to waive any and all claims against each other for consequential, punitive, incidental, special, or other forms of "exemplary" losses whether arising in contract, warranty, tort (including negligence), strict liability, or otherwise, including any losses relating to lost use, lost profits, lost business, damage to reputation, or lost or diminished financing unless such claims are based on a Party's gross negligence or willful misconduct.

Question: 1

EXHIBIT 10.26

CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

SPONSORSHIP AGREEMENT

This agreement (Agreement) is entered into as of the 23rd day of September 1998 (Effective Date), by and between Excite, Inc., a Delaware corporation, located at 555 Broadway, Redwood City, California 94063 (Excite), and Vitamin Shoppe Industries Inc., a New York corporation, located at 4700 Westside Avenue, North Bergen, New Jersey 07047 (Client).

RECITALS

A. Excite maintains sites on the Internet at http://www.excite.com (the Excite Site), http://www.webcrawler.com (the WebCrawler Site) and http://www.excite.co.jp (the Excite Japan Site), and owns, manages or is authorized to place advertising on affiliated sites on the Internet worldwide (collectively, the Excite Network) which, among other things, allow its users to search for and access content and other sites on the Internet. For purposes of this Agreement, the parties hereby acknowledge that the Excite Network does not include the site on the Internet located at http://home.netscape.com and/or other URLs or locations designated by Netscape Communications Corporation.

B. Within the Excite Site and the WebCrawler Site, Excite currently organizes certain content into topical channels (the Channels).

C. Client is engaged in the business of selling vitamins, minerals, nutritional supplements, herbs, sports nutrition formulae, homeopathic remedies and other health related products (Vitamins) at its site on the Internet located at http://www.vitaminshoppe.com (the Client Site).

D. Client wishes to promote its business to users of the Excite Network through promotions and advertising in various portions of the Excite Network.

Therefore, the parties agree as follows:

1. SPONSORSHIP ON THE WEBCRAWLER HEALTH CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Health Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Health Channel on the WebCrawler Site during the term of this Agreement. For purposes of this Agreement, Client's Competitors means those merchants identified in Exhibit D attached hereto. Client may update

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this list in writing not more than once every six (6) months by adding other merchants whose primary business is reselling Vitamins upon the mutual agreement of Excite. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network. Client's preferred and dominant status as a reseller of Vitamins will be extended on the terms stated in this Section l(a) to its presence within future departments within the WebCrawler Health Channel, when launched, which may include, but are not limited to, the alternative medicine and senior living departments.

b) The parties will cooperate in good faith to identify and implement appropriate promotional opportunities for Client to be displayed in rotation on the home page of the WebCrawler Health Channel during the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in the Nutrition & Vitamins department of the WebCrawler Health Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section l(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) The parties will cooperate in good faith to identify and implement other appropriate promotional opportunities for Client on the WebCrawler Health Channel including (if and when launched) but not limited to, the alternative medicine and senior living departments during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

e) Excite is in the process of developing a Sponsorship Strip for the WebCrawler Health Channel consisting of a row of graphic links to sponsors' Web sites. Excite will display a graphic link to the Client Site on the Sponsorship Strip (consistent with the format used on similar links on the same strip) in the pages of the WebCrawler Health Channel for the duration of the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(e) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

f) Excite and Client acknowledge that neither party to this Agreement possesses any right to control the content or promotional programming displayed on any third party

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site. However, Excite will work with Client in good faith to evaluate the display of any Excite co-branded pages one level deep that directly link from the WebCrawler Health Channel to determine whether the non-banner display of modules related to Client's Competitors on those pages materially and adversely affect the aggregate value of Client's promotional placements on the WebCrawler Health Channel as described in this Agreement. Under such circumstances, Excite will then exert commercially reasonable efforts to modify such co-branded pages to reduce such material and adverse effects.

2. SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Shopping Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Shopping Channel or the WebCrawler Site. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network.

b) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in rotation on the first page of the health & fitness department of the WebCrawler Shopping Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed under the health foods category on the first page of the health & fitness groceries department of the WebCrawler Shopping Channel. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

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3. ADDITIONAL SPONSORSHIP

a) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client in the Nutrition & Vitamins department of the Health Channel on the Excite Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. The parties hereby acknowledge that Client will be sharing such opportunities in the Nutrition & Vitamins department of the Excite Health Channel with one other reseller of vitamins.

b) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client on the Excite Japan Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placements described in this Section 3(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) Excite estimates, but does not guarantee, delivery of a total of [*****] impressions of the Client promotional placements described in Sections 3(a) and 3(b) during the term of this Agreement.

4. DeliverE MESSAGE PROMOTIONS

a) Excite and Client will cooperate in developing and delivering MatchLogic DeliverE message campaigns during the term of the Agreement as described in Exhibit B. The MatchLogic DeliverE is an opt in email service providing the opportunity to distribute messages to highly targeted audiences on the Web via email. All such message campaigns will comply with Excite's then current privacy policy which is located at http://www.excite.com/privacy_policy and is subject to change from time to time. If the privacy policy changes in a manner that has a material adverse effect on the value, functionality or implementation of the DeliverE message campaign for Client, Excite will notify Client, which will then have the option to cancel future DeliverE campaigns and both parties will be relieved of their obligations related to those canceled DeliverE campaigns, if Client, in its sole but reasonable discretion, finds such changed privacy policy objectionable.

b) Excite estimates, but does not guarantee, delivery of [*****] impressions of the email messages described in this Section 4 during [*****] of the term of this Agreement and [*****] impressions during [*****] of the term of the Agreement.

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c) Excite and Client agree that Client may purchase additional DeliverE messages during the term of this Agreement at a rate of [*****] impressions (CPM), subject to availability.

5. ADVERTISING ON THE EXCITE NETWORK

a) Excite will display Client's banner advertising on [*****] in response to the keywords set forth in Exhibit A as amended from time to time by Client, and with additional keywords related to Vitamins, subject to availability, during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(a) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

b) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(b) during [*****] of the term of the Agreement and [*****] such during [*****] of the term of the Agreement.

c) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

6. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING

a) Client and Excite will use reasonable efforts to implement the display of the promotional placements and advertising described in the Agreement by October 1, 1998 (the Scheduled Launch Date). The parties recognize that the Scheduled Launch Date can be met only if Client provides final versions of all graphics, text, keywords, banner advertising, promotional placements, other promotional media and valid URL links necessary to implement the promotional placements and advertising described in the Agreement (collectively, Impression Material) to Excite fourteen (14) days prior to Scheduled Launch Date.

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b) In the event that Client fails to provide the Impression Material to Excite fourteen (14) days in

advance of the Scheduled Launch Date, Excite may, at its sole discretion (i) reschedule the Scheduled Launch Date at the earliest practicable date according to the availability of Excite's engineering resources after delivery of the complete Impression Material or (ii) commence delivery of Impressions based on Impression Material in Excite's possession at the time.

c) Client and Excite agree that the day the promotional placements and advertising described in this Agreement are first displayed on the Excite Network will be the Launch Date for purposes of this Agreement.

d) Excite will have sole responsibility for providing, hosting and maintaining, at its expense, the Excite Network. Excite will have sole control over the look and feel of the Excite Network including, but not limited to, the display, appearance and placement of the parties' respective names and/or brands and the promotional links, but such control shall not permit Excite to modify Client's logos and trademarks and it does not relieve Excite from its obligations regarding Client's preferred and dominant sponsorship status as set forth elsewhere in this Agreement.

e) Advertising banners will be served, tracked and reported by Excite's subsidiary, MatchLogic, Inc. (MatchLogic) as described in Exhibit B. MatchLogic will also provide Client with feedback as to comparisons of the performance of (i) the different creative messages supplied by Client for the advertising banners, (ii) the placements of those advertising banners on the Excite Network as set forth in this Agreement and (iii) through the implementation of MatchLogic's Closed Loop transaction reporting system on the Client Site, will report on correlations between transaction activity by users referred to the Client Site from the Excite Network and the various promotional placements and advertising displayed on the Excite Network, all as described in Exhibit B. Promotional placements, including text links, will be served, tracked and reported by Excite. These promotional placements will be tracked and reported by MatchLogic when this implementation becomes available. Excite will provide Client with monthly reports substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network.

f) As soon as such third party auditing is available to Excite, Excite will provide Client with monthly reports, including certified reports by a third party auditing firm substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network. When available, such third party audit reports will be at Excite's cost and expense.

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7. FEES; REVENUE SHARE

a) Client will pay Excite sponsorship and advertising fees of [*****] for the first twelve (12) month period following the Launch Date ([*****]). These fees will be paid in twelve (12) equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis thereafter.

b) Client will pay Excite sponsorship and advertising fees of [*****] for the twelve (12) month period following the first anniversary of the Launch Date ([*****]). These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent

installments will be due on a monthly basis thereafter.

c) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

d) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

e) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

f) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]

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[*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

g) Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****]. Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****] of the term of the Agreement. For purposes of this Agreement Net Revenue means gross revenue recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network minus sales tax, sales returns and allowances. Client will pay Excite these revenue share payments within thirty (30) days after the close of the financial quarter in which Client recognizes the Net Revenue on these transactions.

h) The fees and revenue share payments are net of any agency commissions to be paid by Client.

i) Client will maintain accurate records with respect to the calculation of all payments due under this Agreement. Once per year, the parties will review these records to verify the accuracy and appropriate accounting of all payments made pursuant to the Agreement. In addition, Excite may, upon no less than thirty (30) days prior written notice to Client, cause an independent Certified Public Accountant to inspect the records of Client reasonably related to the calculation of such payments during Client's normal business hours. The fees charged by such Certified Public Accountant in connection with the

inspection will be paid by Excite unless the payments made to Excite are determined to have been less than ninety-five percent (95%) of the payments actually owed to Excite, in which case Client will be responsible for the payment of the reasonable fees for such inspection.

8. PUBLICITY

Unless required by law, neither party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other. Notwithstanding the foregoing, either party may issue an initial press release regarding the relationship between Excite and Client, the timing and wording of which will be mutually agreed upon, and nothing herein shall preclude Client from promoting the Client Site.

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9. TERM AND TERMINATION

a) Unless terminated earlier in accordance with the specific terms of this Agreement, the term of this Agreement will begin on the Launch Date and will not end until Excite displays a total of [*****] impressions of the Client advertising banners and promotional placements on the Excite Network as described in this Agreement and pushes [*****] emails using the email vehicles specified in Exhibit B. Regardless of Excite's actual delivery of impressions, the term of this Agreement will not be shorter than [*****] after the Launch Date, unless the Agreement is terminated earlier in accordance with the specific terms of this Agreement.

b) Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the notice to the breaching party of the breach.

c) All undisputed payments that have accrued prior to the termination or expiration of this Agreement will be payable in full within thirty (30) days thereof.

d) The provisions of Section 12 (Confidentiality and User Data), Section 13 (Indemnity), Section 14 (Limitation of Liability) and Section 15 (Dispute Resolution) will survive any termination or expiration of this Agreement.

e) Excite guarantees to deliver the annual impressions totals set forth in Exhibit C hereto. If Excite fails to deliver the indicated number of impressions required during any annual period, Client may suspend (but not eliminate) its payments specified in Section 7 for a maximum of sixty (60) days (the Make-Good Period) during which Excite will deliver the shortfall of such impressions. The parties agree to cooperate in good faith to evaluate the quality and performance of the placements used to deliver the impressions during the Make-Good Period. Until such shortfall is delivered, no impressions will be deemed delivered for the next annual period. If Excite has not achieved the required annual impression delivery by the end of the Make-Good Period, Client may then terminate this Agreement upon written notice within ten (10) days following the end of the Make-Good Period. Client's termination of the Agreement in accordance with the previous sentence will not relieve Excite of its obligation to deliver any previously paid for but undelivered impressions. If Excite achieves the annual impression delivery goal at any time during the Make-Good Period, the term of this Agreement will continue and Client shall immediately resume payment of the sponsorship and advertising fees specified in Section 7.

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10. TRADEMARK OWNERSHIP AND LICENSE

a) Client will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Excite hereunder.

b) Excite will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Client hereunder.

c) Each party hereby grants to the other a non-exclusive, limited license to use its trademarks, service marks or trade names only as specifically described in this Agreement. All such use shall be in accordance with each party's reasonable policies regarding advertising and trademark usage as established from time to time. Client agrees to obtain Excite's written consent prior to use of Excite's logo and trademarks.

d) Upon the expiration or termination of this Agreement, each party will cease using the trademarks, service marks and/or trade names of the other except:

i) As the parties may agree in writing; or

ii) To the extent permitted by applicable law.

11. OWNERSHIP

a) Client will retain all right, title and interest in and to the Client Site worldwide including all intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof. Any intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof, created by changes made by Excite to Impression Materials are the sole property of Client.

b) Excite will retain all right, title, and interest in and to the Excite Network worldwide including, but not limited to, ownership of all copyrights, look and feel and other intellectual property rights therein.

12. CONFIDENTIALITY AND USER DATA

a) For the purposes of this Agreement, Confidential Information means information about the disclosing party's (or its suppliers') business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as confidential or

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proprietary or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.

b) Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independent of any information originating from the disclosing party.

c) Each party agrees (i) that it will not disclose to

any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

d) The usage reports provided by Excite to Client hereunder will be deemed to be the Confidential Information of Excite.

e) The terms and conditions of this Agreement will be deemed to be Confidential Information and will not be disclosed without the written consent of the other party.

f) For the purposes of this Agreement, User Data means all information submitted by users referred to the Client Site from the Excite Network during the term of the Agreement. Such User Data includes, but is not limited to, the number of purchase requests requested by such users, the number of purchase requests completed, the number of purchases completed and the dollar values of completed purchases The parties acknowledge that any individual user of the Internet could be a user of Excite, WebCrawler and/or Client through activities unrelated to this Agreement and that user data gathered independent of this Agreement, even from individuals who are users of both parties' services, will not be deemed to be User Data for the purposes of this Agreement.

g) User Data will be owned by Client, and subject to the limitations contained herein, Client grants to Excite a non-exclusive license to use the User Data for the purposes of this Agreement.

h) In order to facilitate optimization of Client's sponsorship program, Client will make good faith efforts to develop tracking and reporting capabilities to correlate information regarding transaction activity by users referred to the Client Site from the Excite Network to the various promotional placements and advertising banners displayed on the Excite Network. Client will provide to Excite all User Data and

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user transaction reports collected by Client within thirty (30) days following the end of each calendar month during the term of this Agreement in a mutually-determined electronic format.

i) Client will not use User Data to specifically target any Excite and/or WebCrawler users, as distinct from all users of the Client Site, for solicitations (except as specifically provided in this Agreement), either individually or in the aggregate, during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement.

j) Neither party will sell, disclose, transfer or rent any User Data which could reasonably be used to identify a specific named individual (Individual Data) to any third party nor will either party use Individual Data on behalf of any third party without the express permission of the individual user. Where user permission for dissemination of Individual Data to third parties has been obtained, each party will use commercially reasonable efforts to require the third party recipients of Individual Data to provide an unsubscribe feature in any email communications generated by, or on behalf of, the third party recipients of Individual Data.

k) Notwithstanding the foregoing, each party may disclose Confidential Information or User Data (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a

need-to-know basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.

13. INDEMNITY

a) Client will indemnify, defend and hold harmless Excite, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim that Client's Impression Material infringes or violates any third party's copyright, patent, trade secret, trademark, right of publicity or right of privacy or contain any defamatory content; or

iii) Any claim that Client's Impression Material and/or its display on the Excite Network violates any federal, state or local laws, regulations or statutes, including but not limited to restrictions on the sale, advertisement or promotion of vitamins, nutritional supplements, drugs or other health-related products; or

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iv) Any claim of personal injury or product liability with respect to products or services sold, advertised or otherwise offered to consumers or third parties through display of Client's Impression Material on the Excite Network or links to the Client Site; or

v) Any claim arising from content displayed on the Client Site.

Excite will promptly notify Client of any and all such claims and will reasonably cooperate with Client with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Excite in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Excite's written consent (not to be unreasonably withheld or delayed) and Excite may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

b) Excite will indemnify, defend and hold harmless Client, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim arising from the Excite Network other than content or services provided by Client.

Client will promptly notify Excite of any and all such claims and will reasonably cooperate with Excite with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Client in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Client's written consent (not to be unreasonably withheld or delayed) and Client may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.

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14. LIMITATION OF LIABILITY

EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.

15. DISPUTE RESOLUTION

a) The parties agree that any breach of either of the parties' obligations regarding trademarks, service marks or trade names, confidentiality and/or User Data would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names or confidentiality, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

b) In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, the parties will first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to a mutually acceptable mediator.

c) In the event that disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, cannot be resolved through good faith negotiation and mediation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes.

16. GENERAL

a) Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld or delayed), except that no such consent will be required in connection with (i) a merger, reorganization or sale of all, or substantially all, of such party's assets or its

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Internet business assets (ii) either party's assignment and/or delegation of its rights and

responsibilities hereunder to a wholly-owned subsidiary or affiliate or joint venture in which the assigning party holds an interest. Any attempt to assign this Agreement other than as permitted above will be null and void.

b) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of Excite or Client.

c) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email or five (5) days after deposit in the mail. Notices will be sent to a party at its address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section.

d) No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.

e) Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.

f) Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

h) Counterparts. This Agreement may be executed in counterparts, each of which will serve to evidence the parties' binding agreement.

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VITAMIN SHOPPE INDUSTRIES INC. EXCITE, INC.

By: [SIG] By: [SIG] -------------------------------- --------------------------------

Name: J. Howard Name: Robert C. Hood ------------------------------ ------------------------------

Title: President/CEO Title: EVP/CFO ----------------------------- -----------------------------

Date: 9/23/98 Date: 9/29/98 ------------------------------ ------------------------------

4700 Westside Avenue 555 Broadway North Bergen, New Jersey 07047 Redwood City, California 94063 650.568.6000 (voice) 650.568.6030 (fax)

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EXHIBIT A

KEYWORDS

acidophilus cholesterol greentree obesity medicine acids chondroitin healing omega aromatherapy adhd chromium picolinate health organic bodybuilding aids co q 10 herb pinnacle diet alternative medicine coenzyme q10 herb tea pms fitness amino acids complimentary herbal pregnant herbs andrew weil energy herbal extracts pregnancy health andro complex enzymmatic herbal tea prenatal homeopathic androstat therapy herbal teas prevention multivitamins Androstat 100 essential oils herbs protein nutrition androstat 6 ester hiv protein powders stress Androstene exercise holistic ripped vitamins androstenedione extract holistic healing rna vitamin antioxidant fat holistic medicine saint john's wort wellness antioxidants fatty acids homeopathic saw palmetto weightloss anxiety fen phen homeopathic schiff aphrodisiac phen fen natrol sex aphrodisiacs fiber nature sexual enhancer aroma fitness natural steroids aromatherapy garry null natural food solaray atkins ginkgo supplements source natural bodybuilder ginkgo biloba natural healing sports nutrition bodybuilders ginseng natural medicine st. johns wort bodybuilding glucosamine natures way st john's wort calcium green tea nature's way stress cancer green tree nutrition sulfate cats claw greentea nutritional alternative

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medicine remedies coq10 homeopathy supplement country life iron supplements creatine kal tablets creatine kava teas monohydrate depression kava kava twinlab diet lactose vegetarian dietary magnesium vegetarians dione melatonin viagra disease mental alertness vitamin dna MetRx vitamins dr. andrew weil mother nature vitasave dr. atkins mother's nature weight lifting dr. weil msm weight loss dr. wiel msm sulphur weightlifting eas multivitamins weightloss echinacea natrol wellness yohimbe

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EXHIBIT B

MATCHLOGIC SERVICES

AD MANAGEMENT, MEASUREMENT & OPTIMIZATION Ad Management, Measurement and Optimization refers to the suite of services and technologies to be used to measure and evaluate variables contributing to the performance of client marketing messages within the Excite Network. Descriptions of the services and technologies to be leveraged throughout the

optimization process are highlighted below.

CENTRALIZED AD SERVING Through its proprietary centralized ad serving infrastructure, MatchLogic will facilitate the trafficking, delivery, tracking and reporting of Client's banners throughout the Excite Network. During the ad management process, MatchLogic will employ TrueCount(sm) cache counting techniques as the underlying measurement technology for the reporting of client campaign performance data. Basic campaign performance data including primary impressions, clicks, click %, cache impressions and total impressions will be supplied to Client daily through an online interface.

TRUEFFECT(sm) TruEffect(sm) refers to the process of establishing, tracking and communicating the relationship between locations from which users have interacted with Client's marketing messages and the activities they engaged in at the Client Site as a result of these interactions. TruEffect(sm) measurement will allow Client to directly relate user activity within the Client Site to marketing messages within the Excite Network. As a result of these measurements, Client will have the ability to optimize campaigns in order to drive actual user activities or transactions. Client will be able to identify the number of unique visitors coming to the Client Site or promotional areas, from which message and area they originated, and the number of measurable transactions these visitors performed. Additionally, measurements of reach and frequency will accompany this analysis.

Upon successful implementation of TruEffect(sm), performance reporting will be available to Client on a daily basis through an online interface.

LANDSCAPE(sm) LandscapE(sm) demographic profile reports will afford Client an effective means of understanding the visitor segments exposed to Client's messages or interacting with Client sponsored content areas within the Excite Network. All of the information contained within the demographic profiles is derived from consumers who have been both exposed to an advertising campaign and are also within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer database). When a subset of unique visitors taken from all visitors exposed to a Client's marketing message or content area are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile

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each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm) TrueSelect(sm) is MatchLogic's centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords slated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm) DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

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are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm)

TrueSelect(sm) is MatchLogic' centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords stated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm)

DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 7 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 13 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

Above listed DeliverE(sm) services are to be allocated to meet Client's needs and overall production schedule.

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EXHIBIT C

ANNUAL IMPRESSION DELIVERY SCHEDULE

Vitamin Shoppe Industries WC/Excite Placement Details *LINE ITEM PLACEMENTS AND IMPRESSIONS ARE ESTIMATES ONLY AN WILL CHANGE OVER TIME

EXHIBIT C

Products Description Item # [*****] Estimated [*****] Estimated TOTALS in IMPS IMPS Contract Excite Integrated Links Excite Japan Sponsorship/Promotion Positions #3b [*****] [*****] [*****] Excite Nutrition & Vitamins Sponsorship/Promotion Positions #3c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- Excite Links, subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Banners NONE - ---------------------------------------------------------------------------------------------------------------------------- Excite Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Integrated Links WC Health Home Page Home Page Rotation #1b [*****] [*****] [*****] WC Nutrition & Vitamin Sub Channel Link #1c [*****] [*****] [*****] WC Health Channel Promotional Opportunities, [*****] [*****] [*****] i.e., alternative medicine #1d WC Health Channel Sponsorship Strip #1e [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness Sub Channel #2b [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness/ Groceries Sub Channel #2c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links Subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banners

WC Keywords Search #5a [*****] [*****] [*****] WC Health Channel Channel Rotation #5b [*****] [*****] [*****] WC Health Channel Mutually determined departments #5c [*****] [*****] [*****] WC General Rotation General Rotation across WC site #5d [*****] [*****] [*****] 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- 0 - ---------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- S&P Links Total [*****] [*****] [*****] S&P Banner Total [*****] [*****] [*****]

- ---------------------------------------------------------------------------------------------------------------------------- Grand Total [*****] [*****] [*****] - ----------------------------------------------------------------------------------------------------------------------------

Vitamin Shoppe E Sponsorship Agr/bja Version 980918

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During the term of the Agreement, the parties agree to cooperate in good faith and use commercially reasonable efforts to evaluate the quality and performance of the placements used to deliver the impressions described in the Agreement and to modify such placements in an effort to reach the objectives set forth in this Agreement.

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EXHIBIT D

CLIENT'S COMPETITORS

Acta Pharmacal Nutritional Warehouse All Vitamins Phillips Nutritional Austin Nutritional Puritans Pride BenSalem Naturals Reach4life B-Vital Realtime Chayas Chemical-Free S. Shiraishi Office, Inc. Cherokee Naturals, Inc Shop Vitamins Club Vitamin The Herb Shop GNC The Herb Shoppe Good Life Nutrition The Nickel and Thyme Shoppe Green Tree The Vitamin Source Green Turtle Bay Vitamin The Vitamin Tree Greenshack Direct US Health Distributors, Inc Health and Vitamin Express Vita Save Health Depot VitaCare Infinity 2 VitaFit Jamieson Natural Sources Vital Life Karemore Vitamin Company Vitamin Depot Kava Systems Vitamin Express L & H Vitamins Vitamin House Life Plus Vitamins Vitamin House MineralNet Vitamin Shack Mother Nature's General Store Vitamin Warehouse, Inc. Mountain Naturals Vitamins Vitamins for Life My Vitamins Vitamins Online Nature Sunshine Vitamins.com Nature Sunshine Herb and Vitamins Vitanet Noah's Ark Vitawise Nutritional Direct Wholesale Vitamins

24
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.

Answer: EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.

Question: 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)?

Answer:
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.