Unassociated Document


    


    EXHIBIT
      10.38.4

     

    CONFIDENTIAL
      TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF 

    THIS
      DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY 

    FILED
      WITH THE COMMISSION.***

     

    MARKETING
      AND PROMOTION AGREEMENT

     

    THIS
      MARKETING AND PROMOTION AGREEMENT
      (this
“Agreement”)
      is
      entered into and effective as of this 8th day of September, 2005 (the
“Effective
      Date”),
      by
      and between KING PHARMACEUTICALS, INC., a Tennessee corporation (“King”),
      and
      INYX, INC., a Nevada corporation (“Inyx”).

     

    WHEREAS,
      King
      owns certain technology and proprietary materials related to the drugs Intal
      and
      Tilade; 

     

    WHEREAS,
      Inyx is
      a developer and manufacturer of pharmaceutical aerosol products;
      and

     

    WHEREAS,
      the
      parties have entered that certain Collaboration Agreement, dated as of the
      date
      hereof (the “Collaboration
      Agreement”),
      for
      the purpose of pursuing a collaboration relating to the development, marketing,
      and promotion of Products (as defined herein); 

     

    NOW,
      THEREFORE,
      in
      consideration of the mutual covenants and agreements set forth in this
      Agreement, and for other good and valuable consideration, the receipt and
      sufficiency of which are hereby acknowledged, the parties hereto agree as
      follows:

     

    
      	
              1.

            	
              DEFINITIONS

            


    

     

    
      	 	
              (a)

            	
              Definitions.
                (b)
                Unless otherwise specifically defined in this Agreement, each capitalized
                term used herein will have the meaning assigned to such term in the
                Collaboration Agreement. 

            


    

     

    
      	 	
              (c)

            	
              In
                addition to the terms defined elsewhere herein, as used in this Agreement,
                the following terms have the meanings specified below when used in
                this
                Agreement: 

            


    

     

    “Agreement”
      means
      this Agreement, together with all appendices, exhibits, and schedules referenced
      herein or attached hereto, and as the same may be amended or supplemented from
      time to time hereafter pursuant to the provisions hereof.

     

    “Baseline
      Amounts”
      has the
      meaning set forth in Section 8.1(a)(i).

     

    “Collaboration
      Agreement”
      has the
      meaning set forth in the recitals.

     

    “Commercially
      Reasonable Efforts”
      means
      efforts and resources normally used by a party for a product owned by it or
      to
      which it has rights, which product is of similar market potential at a similar
      state in its development or product life, taking into account issues of safety,
      efficacy, product profile, the competitiveness of the marketplace, the
      proprietary position of the product, the regulatory structure involved, the
      profitability of the applicable products, and other relevant commercial
      factors.

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    “Copromotion
      Date”
      has the
      meaning set forth in Section 3.2.

     

    “Detail(s)”
      or
“Detailing”
      means a
      face-to-face contact by a sales representative with a Physician, for the primary
      purpose of delivering a sales message related to the Products, during which
      time
      the Product is discussed for either the longest period of time during the
      contact or, at a minimum, discussed no less than the second longest period
      of
      time during the contact. Further, the discussion of the Product must be specific
      to include at a minimum the Product name, FDA or Regulatory Authority by country
      approved indication, key attribute tied to a patient benefit, and a request
      by
      the sales representative that the Physician prescribe the Product for an
      appropriate patient type.

     

    “Detail
      Cost”
      means
      the fully allocated cost per Detail to be established by the AMC each year
      and
      included in the Marketing Plan and Budget for such year. For purposes hereof,
      “fully allocated” shall include all costs associated with Details, including
      salaries, bonuses, and benefits (including automobile expenses) of sales
      representatives, allocations of sales managers with respect to oversight of
      Detailing, the fully allocated cost of services overhead directly related to
      Details, and allocation of all administrative and general expenses directly
      related to Details. Detail Costs shall be determined by GAAP, applied on a
      consistent basis. 

     

    “Details
      Shortfall”
      has the
      meaning set forth in Section 8.3.

     

    “Effective
      Date”
      has the
      meaning set forth in the recitals.

     

    “Electing
      Party”
      has the
      meaning set forth in Section 8.3.

     

    “Excess
      Details”
      has the
      meaning set forth in Section 8.3.

     

    “Exaeris”
      has the
      meaning set forth in Section 2.3.

     

    “Initiation
      Date”
      means
      the later to occur of (i) the Regulatory Approval of the NDA, or foreign
      counterpart, for a particular Product or (ii) the Copromotion Date.


     

    “Inyx”
      has the
      meaning set forth in the recitals.

     

    “Inyx
      Detail Report”
      has the
      meaning set forth in Section 3.4.

     

    “King”
      has the
      meaning set forth in the recitals.

     

    “King
      Detail Report”
      has the
      meaning set forth in Section 4.3(a).

     

    “King
      Summary Sales Report”
      has the
      meaning set forth in Section 4.3(b).

    


    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


    “Marketing
      Data”
      has the
      meaning set forth in Section 4.1(b).

     

    “Marketing
      Materials”
      has the
      meaning set forth in Section 5.2(a).

     

    “Minimum
      Targeted Details”
      has the
      meaning set forth in Section 8.3.

     

    “Nonelecting
      Party”
      has the
      meaning set forth in Section 8.3.

     

    “Nonperforming
      Party”
      has the
      meaning set forth in Section 9.5(a).

     

    “Offset
      Amount”
      has the
      meaning set forth in Section 8.2(c).

     

    “PDMA”
      means
      the Prescription Drug Marketing Act, as amended, and the implementing rules
      and
      regulations thereunder.

     

    “Performing
      Party”
      has the
      meaning set forth in Section 9.5(a).

     

    “Physicians”
      means
      primary care physicians (i.e.,
      general
      practitioners, family practitioners, internal medicine physicians, and doctors
      of osteopathy), allergists, pediatricians, pulmonologists, and other prescribers
      of asthma therapy, including allied health professionals such as physician
      assistants and nurses, and consistent with the Marketing Plan and Budget, in
      each case who are authorized by applicable law to prescribe the
      Products.

     

    “Primary
      Detail(s)”
      means a
      Detail with respect to a Product during which such Product is in the first
      position of the sales call and discussion of such Product takes up no less
      than
      two thirds of the time of the entire sales call. 

     

    “Subject
      Quarter”
      has the
      meaning set forth in Section 8.3.

     

    “Term”
      has the
      meaning set forth in Section 9.1.

     

    “Trademark”
      means
      any trademarks and trade names, whether or not registered, and any trademark
      applications, registrations, renewals, extensions, or modifications thereto
      in
      the Territory together with all goodwill associated therewith, trade dress,
      and
      packaging that are applied to or used with Products, and any promotional
      materials relating thereto. 

     

    
      	 	
              1.2

            	
              Interpretation.
                When a reference is made in this Agreement to Articles, Sections,
                Exhibits, or Schedules, such reference will be to an Article or Section
                of
                or Exhibit or Schedule to this Agreement unless otherwise indicated.
                The
                headings contained in this Agreement are for reference purposes only
                and
                will not affect in any way the meaning or interpretation of this
                Agreement. Whenever the words “include,”“includes,” or “including” are
                used in this Agreement, they will be deemed to be followed by the
                words
                “without limitation.” Unless the context otherwise requires, (i) “or” is
                disjunctive but not necessarily exclusive, (ii) words in the singular
                include the plural and vice versa, and (iii) the use in this Agreement
                of
                a pronoun in reference to a party hereto includes the masculine,
                feminine,
                or neuter, as the context may require. The Schedules and Exhibits
                hereto
                will be deemed part of this Agreement and included in any reference
                to
                this Agreement. This Agreement will not be interpreted or construed
                to
                require any Person to take any action, or fail to take any action,
                if to
                do so would violate any applicable
                law.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    


    
      	
              2.

            	
              GRANT
                OF RIGHTS TO INYX

            


    

     

    
      	 	
              2.1

            	
              Copromotion
                Rights.
                King hereby grants to Inyx and its Affiliates, on a non-exclusive
                basis,
                together with King and its Affiliates, the right to promote the Products
                in the Territory during the Term of this Agreement, upon and subject
                to
                the terms and conditions set forth in this Agreement; provided that
                the
                license to promote a particular Product will only be effective on
                the
                Initiation Date of such Product in the applicable country of the
                Territory
                in which such Product has received Regulatory Approval and only for
                so
                long as such Product has Regulatory Approval in such country. The
                parties
                acknowledge and agree that, during the Term, the license granted
                to Inyx
                under Section 4.1 of the Collaboration Agreement will include a
                non-exclusive right under the Technology and Patent Rights to sell,
                offer
                for sale, and import the Products in the Territory, subject to the
                terms
                of this Agreement and the Collaboration
                Agreement.

            


    

     

    
      	 	
              2.2

            	
              Trademark.
                

            


    

     

    
      	 	
              (a)

            	
              Required
                Use and Compliance.
                Inyx will promote the Products only under the Trademarks, which as
                of the
                Effective Date are listed on Schedule 2.2 attached hereto, which
                schedule
                will be updated from time to time during the
                Term.

            


    

     

    
      	 	
              (b)

            	
              Validity
                of Trademarks.
                Inyx acknowledges that King will have sole and exclusive ownership
                of all
                right, title, and interest on a worldwide basis, with full rights
                to
                license or sublicense, subject to the licenses granted Inyx hereunder,
                in
                and to any and all Trademarks. Inyx understands and agrees that it
                will
                not have, assert, or acquire any right, title, or interest in or
                to any of
                the Trademarks.

            


    

     

    
      	 	
              (c)

            	
              Use
                of Trademarks.
                In connection with the subject matter hereof, Inyx will maintain
                quality
                standards for all of its uses of the Trademarks in connection with
                the
                Products that are substantially equivalent to or, at King’s option,
                stricter than those standards used by King in connection with its
                promotion of the Products. Subject to the foregoing, Inyx acknowledges
                and
                agrees that King has the right, at any time, to modify or supplement
                such
                quality standards and that Inyx must implement such new standards
                or
                changes following receipt of notice of such additions or changes.
                In order
                to determine whether Inyx is in compliance with this Section 2.2(c),
                at
                the reasonable written request of King, and at Inyx’s expense, Inyx: (i)
                will provide King with copies, photographs, or representative samples
                of
                its advertising copy, promotional materials, or other materials bearing
                any of the Trademarks; and (ii) upon reasonable notice and during
                normal
                business hours, will provide to King or its representatives access
                to
                Inyx’s premises. Inyx covenants and agrees that it will not use any
                Trademarks in connection with any goods or products other than the
                Products, notwithstanding that such goods or products are dissimilar
                to
                the Products or have a different use.


            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    


    
      	 	
              2.3

            	
              Sublicensee.
                The parties acknowledge that Inyx may sublicense its rights granted
                hereunder to Exaeris Inc. (“Exaeris”);
                provided that Exaeris agrees, in writing, to be bound by the terms
                of this
                Agreement and the applicable terms of the other Collaboration Documents,
                including the confidentiality and assignment provisions thereof;
                and
                provided further that the right to sublicense to Exaeris will immediately
                terminate at such point as Exaeris is no longer a wholly owned subsidiary
                of Inyx. As of the Effective Date, Inyx represents and warrants that
                Exaeris is a wholly owned subsidiary of Inyx. Inyx acknowledges and
                agrees
                that, as provided in Section 4.2 of the Collaboration Agreement,
                Inyx will
                remain liable for all obligations, including obligations to perform,
                under
                this Agreement and for all actions of Exaeris under such sublicense.
                Notwithstanding such sublicense, Exaeris will not be deemed a third
                party
                beneficiary under this Agreement.

            


    

     

    
      	
              3.

            	
              RESPONSIBILITIES
                OF INYX

            


    

     

    
      	 	
              3.1

            	
              Promotion
                by Inyx.
                (a)
                With respect to each Product, commencing as of the Initiation Date
                relating to such Product and continuing throughout the Term, Inyx
                will use
                its Commercially Reasonable Efforts to promote such Product in the
                Territory in accordance with the then current Marketing Plan and
                Budget.
                The nature of the promotion of the Products required as part of Inyx’s
                promotion obligations hereunder will be determined by the AMC and
                set
                forth in then-current Marketing Plan and Budget, but such obligations
                may
                include the following: 

            


    

     

    
      	 	
              (i)

            	
              Detailing
                the Products to Physicians in the
                Territory;

            


    

     

    
      	 	
              (ii)

            	
              meeting
                targeted and minimum quarterly Detail requirements;
                and

            


    

     

    
      	 	
              (iii)

            	
              attendance
                at specified medical conventions to promote the
                Products.

            


    

     

    
      	 	
              (b)

            	
              Until
                the AMC determines otherwise, all Details that Inyx is required to
                perform
                pursuant to this Article 3 shall be Primary Details with respect
                to
                Intal.

            


    

     

    
      	 	
              (c)

            	
              In
                performing its duties hereunder, Inyx will, and will cause its employees
                and the employees of its relevant Affiliates to, comply with all
                regulatory, professional, and legal requirements, including the FDA’s
                regulations and guidelines concerning the advertising of prescription
                drug
                products, the American Medical Associations’ Guidelines on Gifts to
                Physicians, the PhRMA Guidelines for Marketing Practices, and the
                ACCME
                Standards for Commercial Support of Continuing Medical Education,
                which
                may be applicable to the services (including the warehousing, handling,
                and distribution of the Products and Products samples) to be provided
                by
                Inyx hereunder. No employee of Inyx or of any of its relevant Affiliates
                will make any representation, statement, warranty, or guaranty with
                respect to the Products that is not consistent with current labeling
                of
                the Products or promotional materials approved by the AMC, that is
                deceptive or misleading, or that disparages the Products or the good
                name,
                good will, or reputation of King. Inyx represents and warrants that
                its
                services hereunder will be provided in a professional, ethical, and
                competent manner.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    


    
      	 	
              3.2

            	
              Inyx
                Sales Force.
                Inyx agrees that, immediately after the Effective Date, Inyx or its
                Affiliates will begin developing a specialty sales force for purposes
                of
                fulfilling its obligations hereunder consisting of at least *** field
                sales representatives and ancillary sales support staff. Without
                limiting
                the obligations to use Commercially Reasonable Efforts, Inyx must
                demonstrate to the reasonable satisfaction of the AMC, as evidenced
                by
                written approval from the AMC, that such sales force has been developed
                and fully organized and has completed a core training program on
                the
                Products conducted by King, as well as sales effectiveness training
                conducted by King under guidelines agreed by the AMC. After Inyx
                has
                demonstrated the foregoing, Inyx may begin Detailing the Products.
                Beginning on the date of the first such Detail (such date, the
                “Copromotion
                Date”),
                and continuing thereafter throughout the Term, Inyx agrees that it
                will
                have at least *** field sales representatives and ancillary sales
                support
                Detailing the Products and conducting other active promotion in the
                Territory, except as otherwise agreed to by the parties.
                

            


    

     

    
      	 	
              3.3

            	
              Costs
                of Inyx Sales Force. (a)
                Until the Copromotion Date, except as agreed to by the parties, and
                subject to the terms and conditions of this Agreement, Inyx will
                be solely
                responsible for the costs and expenses of establishing and maintaining
                Inyx’s (and its Affiliates’) sales force of the size required by Section
                3.2, and conducting Inyx’s other activities under this Agreement;
                following the Copromotion Date, such costs and expenses of Inyx will
                be
                deemed Collaboration Costs. Notwithstanding the foregoing, Inyx will
                pay
                incentive compensation to its sales representatives having primary
                responsibility for Detailing the Products with respect to sales of
                the
                Products in the Territory in accordance with Inyx’s incentive compensation
                plans for its own products, it being understood that Inyx will determine
                the target payout for the Products in a manner consistent with the
                way in
                which it determines the target payouts for prescription drug products
                of
                comparable commercial potential. In connection with the development
                of
                Inyx’s sales force, (i) all training will be conducted in accordance
                with Section 5.1, (ii) the content and strategic direction
                of any
                training provided by Inyx that relates specifically to the Products
                will
                be coordinated with the AMC, and (iii) all costs with respect to
                training
                Inyx’s sales force with respect to the Products will be deemed
                Collaboration Costs. 

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (b)

            	
              To
                the extent practicable, all written, electronic, and visual communications
                provided to any of Inyx’s (and its Affiliates’) sales representatives
                regarding strategy, positioning, or selling messages for the Products
                will, at the request of the AMC, be subject to review by the AMC
                in
                accordance with
                Section 5.2(a).

            


    

     

    
      	 	
              3.4

            	
              Inyx
                Detail Reports.
                Commencing on the Initiation Date and throughout the Term, Inyx will
                provide the AMC and King with a report (each an “Inyx
                Detail Report”)
                within thirty (30) calendar days after the end of each Calendar Quarter,
                with the first such report due for the Calendar Quarter during which
                the
                Initiation Date occurs, setting forth the following information regarding
                the efforts of Inyx’s sales representatives in promoting and Detailing the
                Products during the preceding quarter (or part thereof): (i) the
                number of Details made and recorded by Inyx’s standard record keeping
                procedures, and approved by the AMC, based on data recorded by the
                sales
                representatives; (ii) the names and addresses of the Physicians
                called upon and the date of the Detail; (iii) the percentage
                of
                Physicians Detailed who were provided with samples of the Products;
                (iv) the actual number of such samples delivered on each Detail
                and
                the dates of such delivery; (v) a breakdown of all information required
                to
                be contained in each report on an individual sales representative
                and
                aggregate basis; and (vi) such other information as may be
                required
                in the then current Marketing Plan and Budget. Each such Inyx Detail
                Report will be in an electronic format and in hard copy form. Inyx
                will
                also provide King on-request access to all call reporting data at
                the
                lowest level of information content, through file extraction or electronic
                query, Detailing and sampling data at the Physician-sales representative
                level, including such measures as prescriptions, decile, target status,
                products Detailed, order of the Detail, products, and quantity sampled.
                This data shall be in the electronic format readily used by analytic
                functions such as market research or business
                analysis.

            


    

     

    
      	
              4.

            	
              RESPONSIBILITIES
                OF KING

            


    

     

    
      	 	
              4.1

            	
              Marketing
                by King. (a)
                With respect to each Product, commencing as of the Initiation Date
                relating to such Product and continuing throughout the Term, King
                will use
                its Commercially Reasonable Efforts to market and promote the Products
                in
                the Territory in accordance with the then current Marketing Plan
                and
                Budget. The nature of the promotion of the Products required as part
                of
                King’s marketing obligations hereunder will be determined by the AMC and
                set forth in then-current Marketing Plan and Budget, but such obligations
                may include the following: 

            


    

     

    
      	 	
              (i)

            	
              marketing
                and promoting the Products to Physicians in the
                Territory;

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (ii)

            	
              meeting
                targeted and minimum quarterly Detail requirements;
                and

            


    

     

    
      	 	
              (iii)

            	
              attendance
                at specified medical conventions to promote the
                Products.

            


    

     

    All
      costs
      and expenses associated with the foregoing and with the support described in
      Section 4.1(b) will be deemed Marketing Costs and, as such, Collaboration
      Costs.

     

    
      	 	
              (b)

            	
              In
                addition, King will provide the following marketing support for the
                Products: (i) direct marketing to Physicians that are high-potential
                primary care prescribers; and (ii) development and maintenance of
                a
                marketing database, which includes contract information, response
                data,
                behavioral data, demographic data, and attitudinal data (collectively,
                “Marketing
                Data”).
                King will provide Inyx with access to the Marketing Data, including
                all
                primary and secondary market data and research, and historical data
                as may
                be reasonably requested by Inyx; provided, however, that the sharing
                of
                any purchased data by King with Inyx will be subject to the approval
                of
                the data sources; and provided further that all such Marketing Data
                will
                be deemed the Confidential Information of
                King.

            


    

     

    
      	 	
              (c)

            	
              In
                performing its duties hereunder, King will, and will cause its employees
                and the employees of its relevant Affiliates to, comply with all
                regulatory, professional, and legal requirements, including the FDA’s
                regulations and guidelines concerning the advertising of prescription
                drug
                products, the American Medical Associations’ Guidelines on Gifts to
                Physicians, the PhRMA Guidelines for Marketing Practices, and the
                ACCME
                Standards for Commercial Support of Continuing Medical Education,
                which
                may be applicable to the services (including the warehousing, handling,
                and distribution of the Products and Products samples) to be provided
                by
                King hereunder. No employee of King or of any of its relevant Affiliates
                will make any representation, statement, warranty, or guaranty with
                respect to the Products that is not consistent with current labeling
                of
                the Products or promotional materials approved by the AMC, that is
                deceptive or misleading, or that disparages the Products. King represents
                and warrants that its services hereunder will be provided in a
                professional, ethical, and competent
                manner.

            


    

     

    
      	 	
              4.2

            	
              Costs
                of King Sales Force. (a)
                From the Effective Date, except as agreed to by the parties and subject
                to
                the terms and conditions of this Agreement, to the extent King elects
                to
                have a sales force, King will be solely responsible for the costs
                and
                expenses of establishing, maintaining, and training such sales force
                of
                King (and its Affiliates); provided that all such costs and expenses
                incurred will be deemed Collaboration Costs. In connection with the
                foregoing, (i) such training will be conducted in accordance with
                Section
                5.1 and (ii) the content and strategic direction of any training
                provided
                by King that relates specifically to the Products will be coordinated
                with
                the AMC. 

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (b)

            	
              To
                the extent practicable, all written, electronic, and visual communications
                provided to any of King’s (and its Affiliates’) sales representatives
                regarding strategy, positioning, or selling messages for the Products
                will, at the request of the AMC, be subject to review by the AMC
                in
                accordance with Section 5.2(a).

            


    

     

    
      	 	
              4.3

            	
              King
                Detail and Sales Reports. (a)
                Commencing on the Initiation Date and throughout the Term, if King
                elects
                to establish, and at such time as King has established, a sales force,
                King will provide the AMC and Inyx with a report (each a “King
                Detail Report”)
                within thirty (30) calendar days after the end of each Calendar Quarter,
                with the first such report due for the Calendar Quarter during which
                such
                sales force has been established, setting forth the following information
                regarding the efforts of King’s sales force in promoting and Detailing the
                Products during the preceding quarter (or part thereof): (i) the
                number of Details made and recorded by King’s standard record keeping
                procedures, and approved by the AMC, based on data recorded by the
                sales
                representatives; (ii) the names and addresses of the Physicians
                called upon; (iii) the percentage of Physicians Detailed who
                were
                provided with samples of the Products; (iv) the average number
                of
                such samples delivered on each Detail; (v) a breakdown of all information
                required to be contained in each report on an individual sales
                representative and aggregate basis; and (vi) such other information
                as may
                be required in the then current Marketing Plan and Budget. Each such
                King
                Detail Report will be in an electronic format and in hard copy
                form.

            


    

     

    
      	 	
              (b)

            	
              Commencing
                on the Initiation Date and throughout the Term, within fifteen (15)
                days
                after the end of each month, King will provide to the AMC and Inyx
                a
                summary report (each a “King
                Summary Sales Report”)
                setting forth the gross sales of the Products in the Territory for
                such
                month, the gross sales of the Products in the Territory since
                January 1 of such year, and the itemized deductions taken
                in
                calculating all Net Sales with respect to such gross sales, the Net
                Sales
                of the Products in the Territory for such month, and the Net Sales
                of the
                Products in the Territory since January 1 of such year. All
                reports
                required by this Section 4.3(b) will be provided to the AMC and Inyx
                either by facsimile or transmitted electronically, in each ease with
                a
                confirmation copy sent by mail.

            


    

     

    
      	 	
              (c)

            	
              Commencing
                on the Initiation Date and throughout the Term, King will furnish
                to the
                AMC and Inyx, within thirty (30) calendar days after the end of each
                Calendar Quarter (including the final Calendar Quarter), a report
                setting
                forth in reasonable detail the calculation of the total Net Sales
                of
                Products in the Territory for such Calendar Quarter in a form approved
                by
                the AMC.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    


    
      	 	
              4.4

            	
              Shipment,
                Billing of the Product.
                King (and its Affiliates) will have the sole responsibility for the
                shipment, distribution, warehousing, billing, and order confirmation
                of
                all Products and for the collection of receivables resulting from
                sales of
                the Products in the Territory. AMC may make recommendations to King
                from
                time to time regarding the price of and pricing strategies for the
                Products during the Term, including, without limitation, price increases
                and decreases and the timing thereof; provided, however, that King
                will
                have the sole authority to determine the price of the Products during
                the
                Term, including price increases and decreases and the timing thereof.
                During the term of the Manufacturing and Supply Agreement, the manufacture
                of the Products and Product samples will be in accordance with the
                terms
                of such agreement, and Inyx will ensure that adequate quantities
                of the
                Products and Product samples are available to meet the anticipated
                demand
                for the Products and Product samples during the Term of this Agreement.
                Thereafter, King will manufacture or cause to be manufactured the
                Products
                and Product samples in accordance with all applicable laws and will
                use
                its Commercially Reasonable Efforts to ensure that adequate quantities
                of
                the Products and Product samples are available to meet the anticipated
                demand for the Products and Product samples during the Term of this
                Agreement.

            


    

     

    
      	 	
              4.5

            	
              Product
                Pricing.
                King (and its Affiliates) will have sole responsibility for setting
                the
                Product price or offering discounts to customers. The AMC will make
                recommendations to King, or its internal pricing committee, on either
                the
                wholesale average costs price or any discount deemed necessary to
                maintain
                an effective market position. King, or its pricing committee, will
                take
                such recommendations under advisement, but King will retain ultimate
                authority with regard to price and
                discounts.

            


    

     

    
      	
              5.

            	
              TRAINING
                AND PROMOTIONAL MATERIAL

            


    

     

    
      	 	
              5.1

            	
              Training. (a)
                Each of the parties agrees to make its sales representatives available
                for
                training with respect to the marketing and sale of the Products.
                The
                parties agree that King will, subject to the AMC’s approval, be
                responsible for developing and conducting training programs for each
                of
                Inyx’s and King’s sales forces, with all costs associated with so
                developing and conducting to be deemed Collaboration Costs. Inyx
                will
                participate in conducting such training to the extent requested by
                King.
                Training will be carried out at a time that is mutually acceptable
                to the
                parties and will be conducted on an ongoing basis to assure a consistent,
                focused promotional strategy. As additional members are added to
                the
                parties’ respective sales forces responsible for marketing or promoting
                the Products, training will be given to groups of the newly selected
                members.

            


    

     

    
      	 	
              (b)

            	
              The
                AMC will decide where the training of each party’s sales representatives
                will occur, and the costs of transporting, housing, and maintaining
                the
                parties’ respective personnel for such training, to the extent included in
                the Marketing Plan and Budget, will be deemed Collaboration Costs.
                Subject
                to the oversight of the AMC, all sales and marketing training materials
                will be prepared and supplied by King, and the cost of such training
                materials will be included as part of the Collaboration
                Costs.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    


    
      	 	
              5.2

            	
              Promotional
                Materials. (a)
                All written sales, sales training, Detailing aids, promotional, and
                advertising materials (“Marketing
                Materials”)
                relating to the Products will be prepared by King, with such materials
                being consistent with standards and guidelines approved by the AMC.
                All
                Marketing Materials developed by King will be reviewed and approved
                in
                accordance with King’s established copy clearance process. Upon final
                approval of all Marketing Materials, King will be responsible for
                printing
                such approved Marketing Materials and providing Inyx with sufficient
                copies thereof. 

            


    

     

    
      	 	
              (b)

            	
              In
                all written or visual materials related to the Products that identify
                either of the parties, the parties will be presented and described
                to the
                medical communities (including, for example, the physician, pharmacy,
                governmental, reimbursement, and hospital sectors) as joining in
                the
                promotion of the Products in the Territory. All such written and
                visual
                materials and all documentary information, promotional material,
                and oral
                presentations (where practical) regarding the promoting of the Products
                will state this arrangement and will display the names and logos
                of the
                parties with equal prominence, as permitted by applicable
                law.

            


    

     

    
      	 	
              (c)

            	
              All
                costs and expenses associated with the preparation and distribution
                of
                such Marketing Materials will be included in the Marketing Plan and
                Budget
                and will be deemed Collaboration
                Costs.

            


    

     

    
      	 	
              (d)

            	
              All
                Marketing Materials will be deemed Improvements and will be subject
                to the
                provisions of Article 5 of the Collaboration Documents.
                

            


    

     

    
      	
              6.

            	
              PRODUCT
                SAMPLES

            


    

     

    
      	 	
              6.1

            	
              Supply,
                Storage, and Distribution of Samples. (a)
                Inyx will provide King, from time to time on a schedule and in such
                quantities to be reasonably determined by the AMC, with samples of
                the
                Products to be used by the parties for marketing and promoting the
                Products in the Territory. Inyx will ship the samples to one central
                warehouse of King, as designated by King, and the risk of loss and
                responsibility for handling and warehousing of the samples will pass
                to
                King upon delivery to such
                warehouse.

            


    

     

    
      	 	
              (b)

            	
              Inyx
                and King will be responsible for distributing the samples of the
                Products
                to their respective sales forces in a timely manner. Each party will
                also
                be responsible for securing the return of and reconciling existing
                sample
                inventories from discontinued field sales representatives.
                

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (c)

            	
              All
                Products samples provided to King and Inyx sales representatives
                hereunder
                will be accompanied by an appropriate Certificate of Analysis of
                the
                Products specifications and an indication of expiration
                dating.

            


    

     

    
      	 	
              6.2

            	
              Use
                of Samples. (a)
                Each party will be responsible for accountability and compliance
                with the
                PDMA, and other applicable federal, state, and local laws and regulations
                relating to such samples or the distribution of same. Inyx and King
                each
                will be responsible for adherence by its respective sales representatives
                to such laws and regulations. Each party or its appointed agents
                will have
                the right to audit the records and/or reports for the Products samples,
                as
                required to be kept by the other party under the PDMA, pursuant to
                the
                provisions of Article 10 of the Collaboration
                Agreement.

            


    

     

    
      	 	
              6.3

            	
              Cost
                of Samples. (a)
                All costs and expenses associated with the manufacture, shipment,
                warehousing, storage, and distribution of Products samples will be
                included in the Marketing Plan and Budget and will be deemed Collaboration
                Costs.

            


    

     

    
      	
              7.

            	
              CERTAIN
                REGULATORY MATTERS

            


    

     

    
      	 	
              7.1

            	
              Licenses.
                Each party hereto will, at its sole cost and expense, maintain in
                full
                force and effect all necessary licenses, permits, and other authorizations
                required by law, regulation, ordinance, or statute to carry out its
                duties
                and obligations under this
                Agreement.

            


    

     

    
      	 	
              7.2

            	
              Regulatory
                Responsibility.
                As provided in Article 9 of the Collaboration Agreement, King will
                be
                responsible for all regulatory matters regarding the Products, subject
                to
                AMC oversight; provided, however, that King will provide Inyx with
                copies
                of all communications received from any Regulatory Authority concerning
                the Products or any Marketing
                Materials.

            


    

     

    
      	 	
              7.3

            	
              Efficacy
                and Safety Information.
                King will furnish Inyx with efficacy and safety information reasonably
                requested by Inyx to assist Inyx in promoting the Products to Physicians
                in the Territory, including relevant clinical and safety data included
                in
                the NDA for the Products and additional information, if any, related
                to
                the efficacy and safety profile of the Products since the Products’
                approval by the applicable Regulatory Authority. King will also provide
                Inyx with updates to annual reports required to be delivered by King
                pursuant to this Agreement. Except for that information that is to
                be
                disclosed to Physicians in connection with conducting Details, such
                information will be treated as the Confidential Information of
                King.

            


    

     

    
      	 	
              7.4

            	
              Returns.
                Any Products returned to Inyx will be shipped directly to King’s or its
                designee’s nearest facility, with shipping and other direct costs to be
                deemed Collaboration Costs. Inyx will incur no liability or any nature
                in
                the handling of such returns unless such Products were stored improperly
                by Inyx.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    


    
      	
              8.

            	
              NET
                SALES SHARING AND EXPENSES

            


    

     

    
      	 	
              8.1

            	
              Net
                Sales Sharing. (a)
                From the Effective Date until the Copromotion Date, King will retain
                all
                Net Sales of Products. Following the Copromotion Date, the parties
                agree
                to share the Net Sales in the following manner:


            


    

     

    
      	 	
              (i)

            	
              with
                respect to annual Net Sales of Products up to and including the amount
                for
                such Calendar Year set forth in Schedule 8.1 attached hereto (the
                “Baseline
                Amounts”),
                King will retain *** of the Net Sales, and Inyx will be entitled
                to the
                remaining ***; and 

            


    

     

    
      	 	
              (ii)

            	
              with
                respect to annual Net Sales of Products above the Baseline Amounts
                for
                such Calendar Year, King will retain *** of the Net Sales, and Inyx
                will
                be entitled to the remaining ***.

            


    

     

    
      	 	
              (b)

            	
              As
                provided in Section 4.3(c), following the Initiation Date, King will
                provide to the AMC an accounting of all Net Sales received by it
                with
                respect to all Products. Within fifteen (15) days thereafter, the
                AMC will
                produce a report setting forth the calculation of Net Sales and its
                allocation between the parties in accordance with this Section 8.1.
                The
                report will also set forth the amount of any payments that King must
                make
                to Inyx in order to achieve such apportionment between the parties.
                All
                such payments, subject to Section 8.2(c), will be made within sixty
                (60)
                days following the end of the applicable Calendar Quarter. As provided
                in
                Section 4.4, King will book all Net Sales, and distribute same to
                Inyx in
                accordance with this Section 8.1, and King will be responsible for
                all
                billing and collection activities with respect to Net Sales.
                

            


    

     

    
      	 	
              (c)

            	
              All
                Net Sales incurred in currencies other than U.S. Dollars will be
                converted
                to U.S. Dollars based on the exchange rate quoted in The Wall Street
                Journal, NY Edition on the last business day of the applicable Calendar
                Quarter.

            


    

     

    
      	 	
              8.2

            	
              Marketing
                Costs. (a)
                In
                accordance with Article 3 of the Collaboration Agreement, King and
                Inyx
                will develop, and the AMC will approve, a Marketing Plan and Budget,
                which
                will include the Collaboration Costs to be incurred by the parties,
                including Marketing Costs. 

            


    

     

    
      	 	
              (b)

            	
              Each
                party understands and acknowledges that all Collaboration Costs incurred
                by a party on and after the Effective Date will *** and that each
                party
                will submit the reports with respect to Collaboration Costs required
                under
                Article 3 of the Collaboration
                Agreement.

            


    

     

    
      	 	
              (c)

            	
              To
                the extent the amounts owed to King for Collaboration Costs, including
                Marketing Costs, with respect to a particular Calendar Quarter exceed
                the
                amounts owed to Inyx for Collaboration Costs with respect to such
                Calendar
                Quarter (such difference, the “Offset
                Amount”),
                King may deduct as credits from payment of Inyx’s portion of Net Sales due
                under Section 8.1 such Offset Amount.


            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    


    
      	 	
              8.3

            	
              Excess
                Detail Costs.
                With respect to any Calendar Quarter during the Term at such time
                as King
                has developed a sales force, if a party (the “Electing
                Party”)
                determines, based on the Inyx Detail Reports or the King Detail Reports,
                as the case may be, that the other party is failing to conduct the
                minimum
                number or percentage of Details (such minimum, the “Minimum
                Targeted Details,”
                and the difference between such minimum and the number of Details
                actually
                conducted, the “Details
                Shortfall”)
                required to be conducted by such other party in such Calendar Quarter
                (the
                “Subject
                Quarter”)
                by the Marketing Plan and Budget for such quarter, then the Electing
                Party, so long as it has conducted its Minimum Targeted Details for
                the
                Subject Quarter, may elect to conduct a greater number of Details
                than the
                Minimum Targeted Details for such Electing Party (such greater number
                of
                Details, the “Excess
                Details”)
                pursuant to the terms of this Section 8.3. In such event, the Electing
                Party will notify the other party (the “Nonelecting
                Party”)
                within ten (10) days of the Electing Party’s receipt of the Inyx Detail
                Reports or King Detail Reports, as applicable, reflecting the Details
                Shortfall. Following such notice, the Nonelecting Party will have
                until
                the end of the Calendar Quarter immediately following the Subject
                Quarter
                to cure its failure by providing a sufficient number of Details to
                meet
                the Nonelecting Party’s Minimum Targeted Details for such immediately
                following Calendar Quarter and make up for such Details Shortfall
                from the
                Subject Quarter. If the Nonelecting Party fails to so cure such Details
                Shortfall within such time period, the Electing Party may conduct
                a number
                of Excess Details in the next succeeding Calendar Quarter equal to
                the
                Details Shortfall of the Nonelecting Party; and, within thirty (30)
                days
                after delivery of notice by the Electing Party of the Excess Details
                so
                conducted, the Nonelecting Party will pay to the Electing Party an
                amount
                equal to the then-current Detail Cost multiplied by the number of
                Excess
                Details. Notwithstanding the foregoing, the prior approval of the
                AMC will
                be required for any payments to an Electing Party under this Section
                8.3
                on Excess Details in excess of *** of the Minimum Targeted Details
                for
                such Electing Party for the Subject Quarter. In addition, at the
                end of
                each Calendar Year, the AMC, after review of the Details conducted
                by, and
                the Minimum Targeted Details allocated to, each party during such
                Calendar
                Year, may require the Nonelecting Party to pay the Electing Party
                for any
                Excess Details conducted by the Electing Party during such Calendar
                Year
                and not previously reimbursed by the Nonelecting
                Party.

            


    

     

    
      	
              9.

            	
              TERM
                AND TERMINATION

            


    

     

    
      	 	
              9.1

            	
              Term
                of Agreement.
                The term of this Agreement (the “Term”)
                will commence as of the Effective Date hereof and will continue until
                the
                later of December 31, 2015 and the last date on which any Approved
                New
                Product is sold, unless terminated sooner or extended as provided
                below.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        14

        
          

        

      

      
        
        

      

    

    


    
      	 	
              9.2

            	
              Termination
                by Either Party. (a)
                Each
                party will have the right to terminate this Agreement at any time
                upon
                written notice to the other party, if such other party breaches in
                a
                material way any of the representations, warranties, covenants, or
                agreements set forth in this Agreement or otherwise materially defaults
                in
                the performance of any of its duties or obligations under this Agreement,
                which breach or default is not cured within sixty (60) days after
                written
                notice is given to the breaching party specifying the breach or default.
                

            


    

     

    
      	 	
              (b)

            	
              Each
                party may, by written notice delivered to the breaching party, terminate
                this Agreement if there are two or more similar or substantially
                similar
                material breaches of this Agreement by the breaching party within
                any
                12-month period, which termination will be effective thirty (30)
                days
                following such written notice; provided, however, that any failure
                of a
                non-breaching party to exercise this termination right with respect
                to
                certain breaches will not be deemed a waiver of the ability of such
                non-breaching party to exercise this right upon any subsequent breach.
                

            


    

     

    
      	 	
              (c)

            	
              To
                the extent permitted by law, each party will have the right to terminate
                this Agreement immediately upon notice to the other party, if such
                other
                party is declared bankrupt or insolvent, if there is an assignment
                for the
                benefit of creditors, or if a receiver is appointed or proceedings
                commenced (and not dismissed within sixty (60) days), voluntarily
                or
                involuntarily, under any bankruptcy or similar
                law.

            


    

     

    
      	 	
              (d)

            	
              Each
                party will have the right to terminate this Agreement at any time,
                at
                will, upon one (1) year’s prior written notice to the other party.
                

            


    

     

    
      	 	
              9.3

            	
              Automatic
                Termination.
                This Agreement will automatically terminate upon the termination
                or
                expiration of the Collaboration Agreement.


            


    

     

    
      	 	
              9.4

            	
              *
                *
                * 

            


    

     

    
      	 	
              9.5

            	
              Failure
                to Meet Detailed Requirements. (a)
                Notwithstanding any provision in this Agreement to the contrary,
                in the
                event that either party (the “Nonperforming
                Party”)
                fails to perform at least *** of the minimum number of Details such
                party
                is required to perform during any Calendar Year and the other party
                (the
                “Performing
                Party”)
                has performed at least *** of the minimum number of Details it is
                required
                to perform during such Calendar Year, such Performing Party will
                have
                sixty (60) days from its receipt of the Nonperforming Party’s final Detail
                Report for such Calendar Year to notify the Nonperforming Party that
                it is
                in breach of such obligations, in which event the Nonperforming Party
                will
                have the opportunity to cure such default (in addition to any right
                to
                cure under Section 8.3 hereof) by providing a sufficient number of
                extra
                Details to make up for such short fall prior to the end of the first
                full
                Calendar Quarter following the Calendar Quarter in which the Performing
                Party provides such breach notice to the Nonperforming Party. In
                the event
                the Nonperforming Party fails to so cure such default, the Performing
                Party may, by providing written notice within thirty (30) days after
                the
                end of such Calendar Quarter, terminate this Agreement on sixty (60)
                days’
                prior notice to the Nonperforming Party.


            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (b)

            	
              If
                the Performing Party fails to give timely notice of the Nonperforming
                Party’s breach or of termination due to the Nonperforming Party’s failure
                to cure such breach in accordance with this Section 9.5, the Performing
                Party will be deemed to have waived its rights under this Section
                9.5 with
                respect to such breach; provided, however, that any such waiver will
                not
                be construed as a waiver of such Performing Party’s rights under this
                Section 9.5 as to any further breaches by the Nonperforming Party.
                Notwithstanding the foregoing, the parties agree that the Nonperforming
                Party will not be in breach of its Detailing obligations for any
                Calendar
                Year hereunder if the Nonperforming Party provides at least *** of
                the
                minimum number of Details it is required to perform during such Calendar
                Year, and, for purposes of determining whether such *** has been
                reached,
                a Nonperforming Party may include any Excess Details (i) that were
                performed by the Performing Party during such Calendar Year pursuant
                to
                Section 8.3 and (ii) for which the Nonperforming Party has paid the
                Performing Party.

            


    

     

    
      	 	
              9.6

            	
              Effects
                of Termination. (a)
                Neither the termination nor expiration of this Agreement will release
                or
                operate to discharge either party from any liability or obligation
                that
                may have accrued prior to such termination or expiration. Any termination
                of this Agreement as provided herein will not be an exclusive remedy
                but
                will be in addition to any remedies whatsoever that may be available
                to
                the terminating party.

            


    

     

    
      	 	
              (b)

            	
              Notwithstanding
                the giving of any notice of termination pursuant to this Article
                9, each
                party will continue to fulfill its obligations under this Agreement
                at all
                times until the effective date of any such
                termination.

            


    

     

    
      	 	
              9.7

            	
              Actions
                Upon Termination.
                Upon the termination or expiration of this Agreement for any reason,
                Inyx
                will immediately cease all of its promotional and Detailing activities
                for
                the Products, discontinue any use of the Trademarks, and return to
                King or
                destroy all sales training, Marketing Materials for the Products
                containing Trademarks, and any remaining Products samples (not already
                distributed or destroyed with destruction certified by Inyx). After
                any
                termination, King will retain the right to use any sales training
                and
                Marketing Materials developed under the auspices of the AMC during
                the
                term of this Agreement, provided, however, that King will have no
                further
                right to use Inyx’s name or logos in connection
                therewith.

            


    

     

    
      	 	
              9.8

            	
              Survival.
                The provisions of Articles 8 (to the extent applicable pursuant to
                Section
                9.9), 9, 10, and 11 and Sections 2.2(b) and 4.3(c) (with respect
                to
                furnishing a final report) will survive any expiration or termination
                of
                this Agreement.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        16

        
          

        

      

      
        
        

      

    

    


    
      	 	
              9.9

            	
              Payments
                Upon Termination. (a)
                The expiration or termination of this Agreement pursuant to this
                Article 9
                will not release either party from any obligation to pay to the other
                party any amounts accrued under Article 8 of this Agreement in connection
                with activities completed, Marketing Costs accrued, and Net Sales
                realized
                with respect to the period prior to the effective date of such expiration
                or termination.

            


    

     

    
      	 	
              (b)

            	
              Within
                thirty (30) days after the expiration or termination of this Agreement,
                Inyx will provide to the AMC and King (i) an Inyx Detail Report
                for
                the month during which such expiration or termination occurs (and
                all Inyx
                Detail Reports for prior months that were required to be submitted
                to the
                AMC and King pursuant to Section 3.4 but were not submitted); (ii) a
                reasonably detailed statement of Marketing Costs incurred by Inyx
                during
                the period of January 1 of the Calendar Year in which such
                expiration
                or termination occurs through the effective date of such expiration
                or
                termination; and (iii) a reasonably detailed statement of
                costs and
                expenses incurred by Inyx in performing Excess Details, if any, during
                such period.

            


    

     

    
      	 	
              (c)

            	
              Within
                thirty (30) days after the expiration or termination of this Agreement,
                King will provide to the AMC and Inyx (i) a King Detail Report
                for
                the month during which such expiration or termination occurs (and
                all King
                Detail Reports for prior months that were required to be submitted
                to the
                AMC and Inyx pursuant to Section 4.3 but were not submitted); (ii) a
                reasonably detailed statement of Marketing Costs incurred by King
                during
                the period of January 1 of the Calendar Year in which such expiration
                or
                termination occurs through the effective date of such expiration
                or
                termination; (iii) a reasonably detailed statement of costs and expenses
                incurred by King in performing Excess Details, if any, during such
                period;
                and (iv) a statement of Net Sales during such
                period.

            


    

     

    
      	 	
              (d)

            	
              Within
                thirty (30) days after receipt of such information from King and
                Inyx, the
                AMC will determine the net amounts due and or payable by Inyx and
                King,
                and such amounts will be paid by the parties within thirty (30) days
                after
                such AMC determination.

            


    

     

    
      	
              10.

            	
              COLLABORATION
                AGREEMENT

            


    

     

    
      	 	
              10.1

            	
              AMC
                and Dispute Resolution. (a)
                The parties acknowledge and agree that the provisions with respect
                to the
                AMC in Article 2 of the Collaboration Agreement, including the dispute
                resolution provisions in Section 2.7 of the Collaboration Agreement,
                will
                apply with respect to the parties activities under this
                Agreement.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        17

        
          

        

      

      
        
        

      

    

    


    
      	 	
              (b)

            	
              In
                addition to the specific matters addressed in the Collaboration Agreement
                and elsewhere in this Agreement, and subject to the other provisions
                of
                the Collaboration Documents, including King’s final decision-making
                authority, as set forth in Section 2.7(c) of the Collaboration Agreement,
                during the Term, the AMC will approve the
                following:

            


    

     

    
      	 	
              (i)

            	
              marketing
                and promotion activities for the
                Products;

            


    

     

    
      	 	
              (ii)

            	
              the
                market definition against which the Products will be
                measured;

            


    

     

    
      	 	
              (iii)

            	
              Products
                production forecasts;

            


    

     

    
      	 	
              (iv)

            	
              Marketing
                Costs;

            


    

     

    
      	 	
              (v)

            	
              targets
                for sales force staffing, number, and frequency of quarterly and
                annual
                Details;

            


    

     

    
      	 	
              (vi)

            	
              Products
                positioning, strategy, and
                objectives;

            


    

     

    
      	 	
              (vii)

            	
              determination
                of the format and quantities of promotional sales, marketing, and
                educational materials for the Products that will be provided to the
                Physicians called upon in the Details by either party’s sales
                representatives; and

            


    

     

    
      	 	
              (viii)

            	
              quantities
                and schedule of delivery of Products samples to be provided to each
                party’s sales representatives and to the Physicians called upon in the
                Details by each party’s sales
                force.

            


    

     

    
      	 	
              10.2

            	
              Recordkeeping
                and Audits.
                The parties acknowledge and agree that the provisions governing
                recordkeeping and audit rights contained in Article 10 of the
                Collaboration Agreement will apply with respect to the parties activities
                under this Agreement and are incorporated
                herein.

            


    

     

    
      	 	
              10.3

            	
              Confidentiality.
                The parties acknowledge and agree that the confidentiality obligations
                set
                forth in Section 12 of the Collaboration Agreement are incorporated
                herein
                in their entirety. 

            


    

     

    
      	 	
              10.4

            	
              Indemnification
                and Insurance.
                The parties acknowledge and agree that the provisions governing
                indemnification and insurance contained in Article 13 of the Collaboration
                Agreement will apply with respect to the parties activities under
                this
                Agreement and are incorporated
                herein.

            


    

     

    
      	 	
              10.5

            	
              Competitor
                Products.
                Inyx acknowledges and agrees that it is subject to the non-competition
                provisions of Section 7.1 of the Collaboration Agreement, which provisions
                will continue throughout the term of the Collaboration Agreement
                notwithstanding the termination or expiration of this
                Agreement.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        18

        
          

        

      

      
        
        

      

    

    


    
      	
              11.

            	
              MISCELLANEOUS
                PROVISIONS

            


    

     

    
      	 	
              11.1

            	
              Notices. Except
                as otherwise specifically provided herein, any notice or other documents
                to be given under this Agreement will be in writing and will be deemed
                to
                have been duly given if sent by registered post, nationally recognized
                overnight courier, or confirmed facsimile transmission to a party
                (followed by hard copy by mail), or delivered in person to a party
                at the
                address or facsimile number set out below for such party or such
                other
                address as the party may from time to time designate by written notice
                to
                the other:

            


    

     

    If
      to
      King:


     

    King
      Pharmaceuticals, Inc.

    501
      Fifth
      Street

    Bristol,
      Tennessee 37620

    Attn:
      President

    Facsimile:
      (423) 989-8006

     

    with
      a
      copy to:


     

    King
      Pharmaceuticals, Inc.

    501
      Fifth
      Street

    Bristol,
      Tennessee 37620

    Attn:
      Executive Vice President and General Counsel

    Facsimile:
      (423) 989-6282

     

    and

     

    Jones
      Day

    222
      East
      41st Street

    New
      York,
      New York 10017

    Attn:
      John J. Hyland, Esq.

    Facsimile:
      (212) 755-7306

     

    If
      to
      Inyx:


     

    Inyx,
      Inc.

    825
      Third
      Avenue

    40th
      Floor

    New
      York,
      New York 10022

    Attn:
      Chairman and CEO

    Facsimile:
      (212) 838-0060

    


    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        19

        
          

        

      

      
        
        

      

    

    


    with
      a
      copy to:


     

    Bennett
      Jones LLP

    10th
      Floor, 10035-105 Street

    Edmonton,
      Alberta

    Canada
      T5J 3T2

    Attn:
      Enzo J. Barichello, Q.C.

    Facsimile:
      (780) 421-7951

     

    Any
      such
      notice or other document will be deemed to have been received by the addressee
      three (3) business days following the date of dispatch of the notice or other
      document by post or, where the notice or other document is sent by overnight
      courier, by hand, or is given by facsimile, simultaneously with the transmission
      or delivery thereof.

     

    
      	 	
              11.2

            	
              Assignment.
                Inyx may not assign or otherwise transfer this Agreement or any interest
                herein or right hereunder without the prior written consent of King,
                and
                any such purported assignment, transfer, or attempt to assign or
                transfer
                any interest herein or right hereunder will be void and of no effect.
                King
                may freely assign and otherwise transfer this Agreement or any interest
                herein or right hereunder without Inyx’s consent. Subject to the
                foregoing, this Agreement will be binding upon and inure to the benefit
                of
                the parties hereto and their respective permitted successors and
                assigns.

            


    

     

    
      	 	
              11.3

            	
              Governing
                Law.
                This Agreement will be construed under and in accordance with, and
                governed in all respects by, the laws of the State of New York, without
                regard to its conflicts of law
                principles.

            


    

     

    
      	 	
              11.4

            	
              Non-Waiver.
                The failure of either party to enforce or to exercise, at any time
                or for
                any period of time, any term of or any right arising pursuant to
                this
                Agreement does not constitute, and will not be construed as, a waiver
                of
                such term or right, and will in no way affect that party’s right later to
                enforce or exercise such term or
                right.

            


    

     

    
      	 	
              11.5

            	
              Entire
                Agreement.
                This Agreement, together with the other Collaboration Documents,
                contains
                all of the terms agreed to by the parties regarding the subject matter
                hereof and thereof and supersede any prior agreements, understandings,
                or
                arrangements between them, whether oral or in writing. This Agreement
                may
                not be amended, modified, altered, or supplemented except by means
                of a
                written agreement or other instrument executed by both of the parties
                hereto. No course of conduct or dealing between the parties will
                act as a
                modification or waiver of any provisions of this
                Agreement.

            


    

     

    
      	 	
              11.6

            	
              Consent
                to Jurisdiction.
                Each of the parties hereby submits to the exclusive general jurisdiction
                of the courts of the State of New York and the courts of the United
                States
                of America for the Eastern District of New York in any action or
                proceeding arising out of or relating to this Agreement and to the
                jurisdiction of the appellate courts to which appeals are required
                to be
                taken from any of the foregoing. Each of the parties waives any defense
                of
                inconvenient forum to the maintenance of any such action or proceeding.
                Any party may make service on any other party by sending or delivering
                a
                copy of the process to the party to be served at the address and
                in the
                manner provided for the giving of notices in Section 11.1 above.
                Nothing
                in this Section 11.6, however, will affect the right of any party
                to serve
                legal process in any other manner permitted by law or
                equity.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        20

        
          

        

      

      
        
        

      

    

    


    
      	 	
              11.7

            	
              Equitable
                Relief.
                Each party acknowledges that a breach by it of the provisions of
                this
                Agreement cannot reasonably or adequately be compensated in damages
                in an
                action at law and that such a breach may cause the other party irreparable
                injury and damage. By reason thereof, each party agrees that the
                other
                party is entitled to seek, in addition to any other remedies it may
                have
                under this Agreement or otherwise, preliminary and permanent injunctive
                and other equitable relief to prevent or curtail any breach of this
                Agreement by the other party; provided, however, that no specification
                in
                this Agreement of a specific legal or equitable remedy will be construed
                as a waiver or prohibition against the pursuing of other legal or
                equitable remedies in the event of such a breach. Each party agrees
                that
                the existence of any claim, demand, or cause of action of it against
                the
                other party, whether predicated upon this Agreement, or otherwise,
                will
                not constitute a defense to the enforcement by the other party, or
                its
                successors or assigns, of the covenants contained in this
                Agreement.

            


    

     

    
      	 	
              11.8

            	
              Severability.
                In the event that any of the provisions or a portion of any provision
                of
                this Agreement is held to be invalid, illegal, or unenforceable by
                a court
                of competent jurisdiction or a governmental authority, such provision
                or
                portion of provision will be construed and enforced as if it had
                been
                narrowly drawn so as not to be invalid, illegal, or unenforceable,
                and the
                validity, legality, and enforceability of the enforceable portion
                of any
                such provision and the remaining provisions will not be adversely
                affected
                thereby.

            


    

     

    
      	 	
              11.9

            	
              Relationship
                of the Parties.
                The parties hereto are acting and performing as independent contractors,
                and nothing in this Agreement creates the relationship of partnership,
                joint venture, sales agency, or principal and agent. Neither party
                is the
                agent of the other, and neither party may hold itself out as such
                to any
                other party. All financial obligations associated with each party’s
                business will be the sole responsibility of such
                party.

            


    

     

    
      	 	
              11.10

            	
              Counterparts.
                This Agreement will become binding when any one or more counterparts
                hereof, individually or taken together, will bear the signatures
                of each
                of the parties hereto. This Agreement may be executed in any number
                of
                counterparts, each of which will be deemed an original as against
                the
                party whose signature appears thereon, but all of which taken together
                will constitute but one and the same
                instrument.

            


    

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    


    
      	 	
              11.11

            	
              Force
                Majeure.
                Neither party will be liable to the other party for any failure to
                perform
                as required by this Agreement if the failure to perform is due to
                circumstances reasonably beyond such party’s control including acts of
                God, civil disorders or commotions, acts of aggression, fire, explosions,
                floods, drought, war, sabotage, embargo, utility failures, material
                shortages, a national health emergency, or appropriations of property.
                A
                party whose performance is affected by a force
                majeure
                event will take prompt action using its reasonable best efforts to
                remedy
                the effects of the force
                majeure
                event. If, as a result of a force
                majeure
                event, a party is unable to fully perform its obligations hereunder
                for
                any consecutive period of one hundred eighty (180) days, the other
                party
                will have the right to terminate this Agreement, upon providing written
                notice to the nonperforming party, such termination to be effective
                thirty
                (30) days from the date of such notice.


            


    

     

    
      	 	
              11.12

            	
              Interpretation.
                The parties hereto acknowledge and agree that: (a) each party and
                its
                representatives have reviewed and negotiated the terms and provisions
                of
                this Agreement and have contributed to its revision; and (b) the
                terms and
                provisions of this Agreement will be construed fairly as to each
                party
                hereto and not in favor of or against either party regardless of
                which
                party was generally responsible for the preparation or drafting of
                this
                Agreement.

            


    

     

    
      	 	
              11.13

            	
              Third
                Party Beneficiaries.
                This Agreement is not intended to confer upon any non-party rights
                or
                remedies hereunder, except as may be received or created as part
                of a
                valid assignment.

            


    

     

    
      	 	
              11.14

            	
              Use
                of Party’s Name.
                Except as expressly provided or contemplated hereunder and except
                as
                otherwise required by applicable law, no right is granted pursuant
                to this
                Agreement to either party to use in any manner the trademarks or
                name of
                the other party, or any other trade name, service mark, or trademark
                owned
                by or licensed to the other party in connection with the performance
                of
                the Agreement. Notwithstanding the above, either party will be permitted
                to use the other party’s name and marks, as may be required under
                applicable law, in connection with securities or other public
                filings.

            


    

     

    [Signatures
      on following page]

     

     

    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        22

        
          

        

      

      
        
        

      

    

    



    IN
      WITNESS WHEREOF, the parties have duly executed this Marketing and Promotion
      Agreement as of the first date written above.

     

    
      	 	 	 
	 	KING
              PHARMACEUTICALS, INC.
	 
 	 
 	 
 
	 	By:  	/s/ Brian
              Markison
	 	
              
Brian
              Markison
	 	President
              and CEO


    

     

    
      	 	 	 
	 	INYX,
              INC.
	 
 	 
 	 
 
	 	By:  	/s/ Jack
              Kachkar
	 	
              
Jack
              Kachkar
	 	Chairman
              and CEO


    

     

     

     

     

    


    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    



    SCHEDULE
      2.2

     

    TRADEMARKS

     

    


    


    
      	
              Country

               

            	
              Mark

               

            	
              Registration
                Number

               

            
	
              U.S.

               

            	
              INTAL

               

            	
              876359

               

            
	
              U.S.

               

            	
              TILADE

               

            	
              1259079

               

            
	
              Canada

               

            	
              INTAL

               

            	
              164043

               

            
	
              Canada

               

            	
              TILADE

               

            	
              394582

               

            


    

    


     

    


    
      
        CONFIDENTIAL
          TREATMENT

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    



    SCHEDULE
      8.1

     

    BASELINE
      AMOUNTS

     

    


     

    
      	
              Calendar
                Year

               

            	
              2005

               

            	
              2006

               

            	
              2007

               

            	
              2008

               

            	
              2009

               

            	
              2010

               

            	
              2011

               

            	
              2012

               

            
	
              Net
                Sales

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            	
              ***

               

            


    

     

    Dollars
      in Millions

    
      


    

    


    
      
        CONFIDENTIAL
          TREATMENT