Unassociated Document


    
      EXHIBIT
        10.38.5

       

      CONFIDENTIAL
        TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF

      THIS
        DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY

      FILED
        WITH THE COMMISSION.***

       

      DEVELOPMENT
        AGREEMENT

       

      THIS
        DEVELOPMENT 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

       

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

       

      (b) 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.

       

      “Approved
        New Product”
        has the
        meaning set forth in Section 4.2.

       

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

       

      “development”
        or
“develop”
        means,
        with respect to a Product or Excluded New Product, all research, preclinical,
        pharmaceutical, and clinical activities and other activities undertaken in
        order
        to obtain Regulatory Approval of such Product or Excluded New Product, including
        all preclinical and clinical drug development activities, research, test
        method
        development and stability testing, toxicology, animal studies, statistical
        analysis and report writing, clinical trial design and performance prior
        to
        obtaining Regulatory Approvals, and regulatory affairs related to the foregoing.
        “development”
        will
        also include relevant formulation, process development, manufacturing,
        manufacturing scale-up, current Chemistry and Manufacturing Controls section
        of
        an IND, development-stage manufacturing, quality assurance, and quality control
        development.

       

      
        
          CONFIDENTIAL
            TREATMENT

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


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

       

      “Excluded
        New Product”
        has the
        meaning set forth in Section 4.2.

       

      “Excluded
        New Product Costs”
        has the
        meaning set forth in Section 4.4(b).

       

      “Excluded
        Patent Costs”
        has the
        meaning set forth in Section 4.4(a).

       

      “Excluded
        Product Notice”
        has the
        meaning set forth in Section 4.3(a).

       

      “Excluded
        Regulatory Costs”
        has the
        meaning set forth in Section 4.4(b).

       

      “Good
        Clinical Practices”
        means
        the international ethical and scientific quality standards for designing,
        conducting, recording, and reporting trials that involve the participation
        of
        human subjects. Good Clinical Practices are established through FDA guidances
        (including ICH E6).

       

      “Good
        Laboratory Practices”
        means
        the minimum standards for conducting nonclinical laboratory studies that
        support
        or are intended to support applications for research or marketing permits
        for
        products regulated by the FDA, including food and color additives, animal
        food
        additives, human and animal drugs, medical devices for human use, biological
        products, and electronic products. Good Laboratory Practices are established
        through FDA regulations (including 21 CFR Part 58), FDA guidances, FDA current
        review and inspection standards, and current industry standards.

       

      “Good
        Manufacturing Practices”
        means
        the minimum standards for methods to be used in, and the facilities or controls
        to be used for, the manufacture, processing, packing, or holding of a drug
        to
        assure that such drug meets the requirements of the Federal Food, Drug and
        Cosmetic Act of 1938, as amended, as to safety, and has the identity and
        strength and meets the quality and purity characteristics that it purports
        or is
        represented to possess. Good Manufacturing Practices are established through
        FDA
        regulations (including 21 CFR Parts 210-211), FDA guidance, FDA current review
        and inspection standards, and current industry standards.

       

      “Intal
        HFA Documentation”
        has the
        meaning set forth in Section 5.1. 

       

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

      
         

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

       

      “New
        Product Report”
        has the
        meaning set forth in Section 4.1.

       

      “Offer
        Notice”
        has the
        meaning set forth in Section 4.3(d).

       

      “Plan
        of Execution”
        has the
        meaning set forth in Section 5.2(a)(i).

       

      “Term”
        has the
        meaning set forth in Section 7.1.

       

      *
        * *
        .

       

      “Unmarketed
        Excluded New Product”
        has the
        meaning set forth in Section 4.3(c).

       

      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. 

       

      2.    Development
        RIGHTS

       

      2.1    License.
        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 to perform development work with respect to the Technology and Patent
        Rights in the Territory, subject to the terms of this Agreement and the
        Collaboration Agreement.

       

      2.2    Technical
        Reports.
        Inyx
        will keep the AMC fully informed about the status of Inyx’s development work
        hereunder, including furnishing the AMC with regular reports relating to
        such
        work. In particular, without limitation, Inyx will (a) provide periodic reports
        in reasonable detail to the AMC each Calendar Quarter and as requested from
        time
        to time by the AMC; (b) provide, upon request, King with access to, and copies
        of, all Improvements arising out of such development work; (c) provide King
        with
        copies of all materials furnished to the AMC and such other information
        concerning such development work as King may reasonably request; and (d)
        from
        time to time consult with King, upon request, with respect to Inyx’s development
        work hereunder.

       

      
        
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            TREATMENT

          
          

        

        
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      3.    Improvements

       

      3.1    Ownership
        of Improvements.
        As
        provided in Article 5 of the Collaboration Agreement, King will own all right,
        title, and interest on a worldwide basis in and to any and all Improvements,
        including all Improvements developed pursuant to Inyx’s exercise of its rights
        hereunder.

       

      3.2    Improvements
        Disclosure and Generally.
        As
        provided in Article 5 of the Collaboration Agreement, Inyx will promptly
        provide
        the AMC with written notice concerning all Improvements conceived, made,
        or
        developed during the Term. 

       

      3.3    Record
        Keeping.
        During
        the Term, Inyx will maintain records regarding its development work in
        sufficient detail and in accordance with Good Laboratory Practice, Good Clinical
        Practice, and Good Manufacturing Practice and as will properly reflect and
        document, in a manner appropriate for purposes of supporting the filing of
        potential patent applications and the filing and obtaining of all Regulatory
        Approvals, all work done and results achieved in the performance of Inyx’s
        development work hereunder (including all data in the form required under
        any
        applicable laws). All such records will be deemed Improvements. Inyx hereby
        grants King the right to inspect and copy such records to the extent King
        deems
        necessary for the performance of its obligations or exercise of its rights
        under
        the Collaboration Documents.

       

      4.    New
        Products

       

      4.1    *
        * * 

       

      4.2    *
        * * .

       

      4.3    *
        * *


       

      4.4    *
        * *


       

      5.    Development
        of HFA Products

       

      5.1    Development
        of Intal HFA Documentation.
        Inyx
        will prepare, and provide to King, all documentation necessary for King to
        make
        all required Regulatory Filings with all Regulatory Authorities with respect
        to
        Intal HFA in connection with the development and manufacturing of such Product,
        including documentation necessary to support any responses to questions raised
        by the applicable Regulatory Authority with respect to such filings (such
        documentation, collectively the “Intal
        HFA Documentation”).
        

       

      5.2    Intal
        HFA Payments.
        (a)
        In
        consideration for the development of the Intal HFA Documentation, King will
        make
        the following payments to Inyx in connection with obtaining FDA approval
        of
        Intal HFA in accordance with the following schedule:

       

      (i)    ***
        to be
        paid upon submission by Inyx to King of a detailed plan of execution for
        such
        FDA approval (the “Plan
        of Execution”),
        which
        plan must be reasonably acceptable to King and must describe in sufficient
        detail milestones for achieving such approval and a timetable for such
        achievement;

       


      
        
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      (ii)    ***
        to be
        paid upon submission by Inyx to King of a detailed status report reasonably
        acceptable to King setting forth Inyx’s achievement of at least certain
        milestones set forth in the Plan of Execution. The selection of which milestones
        must be achieved for Inyx to be entitled to such payment will be established
        by
        the AMC following King’s acceptance of the Plan of Execution. Notwithstanding
        successful completion of the milestone described in this clause (ii), this
        payment will in no event become due sooner than *** following completion
        of the
        milestone giving rise to the first payment described in clause (i);

       

      (iii)    ***
        to be
        paid upon submission of the chemistry, manufacturing, and controls (CMC)
        sections for the Intal HFA for filing with the FDA, in a form mutually
        acceptable to King and Inyx;

       

      (iv)    ***
        to be
        paid upon receipt of approval of Intal HFA from the FDA; and

       

      (v)    ***
        to be
        paid upon release of Intal HFA commercially.

       

      (b)    Subject
        to Section 5.2(a)(ii), all payments from King to Inyx pursuant to this Section
        5.2 will be due within thirty (30) days of King’s receipt of Inyx’s invoice
        therefor. All payments due hereunder will be sent to Inyx by wire transfer
        of
        funds via the Federal Reserve Wire Transfer System to ***, or such other
        financial institution as Inyx may designate to King in writing from time
        to time
        in accordance with Section 9.1 hereof. King will notify the following person
        prior to the value date of each wire transfer, or such other person as Inyx
        may
        designate to King from time to time in accordance with Section 9.1
        hereof:

       

      Ms.
        Rima
        Goldshmidt, Vice President of Finance

      Inyx,
        Inc.

      825
        Third
        Avenue, 40th Floor

      New
        York,
        NY 10022

      Telephone:
        (416) 250-0188

      Facsimile:
        (416) 250-2663

      Email:
        rima.goldshmidt@Inyxinc.com

      


      (c)    Neither
        King’s payments pursuant to this Section 5.2 nor Inyx costs associated with the
        development of the Intal HFA Documentation pursuant to Section 5.1 will be
        deemed Collaboration Costs.

       

      5.3    *
        * * .

       

      6.    CERTAIN
        MATTERS

       

      6.1    *
        * * 

       

      
        
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      6.2    *
        * * 

       

      7.    TERM
        AND TERMINATION

       

      7.1    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. 

       

      7.2    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. 

       

      7.3    Termination
        of Collaboration Agreement.
        In the
        event of the termination or expiration of the Collaboration
        Agreement,

       

      (a)    Inyx’s
        license to perform development work with respect to the Technology and Patent
        Rights, as described in Section 2.1, will automatically be
        terminated;

       

      (b)    *
        * *


       

      (c)    King
        will
        assume all oversight responsibilities previously granted to the AMC under
        this
        Agreement, including Section 8.1, and all obligations of Inyx to provide
        notices
        to the AMC or generally to keep the AMC informed will be converted into
        obligations to provide notices to King or generally to keep King
        informed.

       

      
        
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      Furthermore,
        at such time as Inyx has fulfilled its obligations under Article 5, this
        Agreement will automatically terminate. 

       

      7.4    Termination
        by King. (a)
        Subject
        to the terms of Section 7.4(b) below, King will have the right to terminate
        this
        Agreement immediately upon written notice to Inyx if there is a Change of
        Control of Inyx. 

       

      (b)    *
        * *
        .

       

      7.5    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 7, each
        party
        will continue to fulfill its obligations under this Agreement at all times
        until
        the effective date of any such termination.

       

      7.6    Actions
        Upon Termination.
        Upon
        the termination or expiration of this Agreement for any reason, 

       

      (a)    Inyx
        will
        immediately cease all development work hereunder; 

       

      (b)    Inyx
        will
        deliver to King all Improvements and all documents, material, data, records,
        analyses, and information related thereto, including all records described
        in
        Section 3.3 hereof; provided that Inyx may retain copies of the foregoing
        to the
        extent consistent with Inyx’s rights and obligations under the other
        Collaboration Documents then in effect; and 

       

      (c)    *
        **
        .

       

      7.7    Survival.
        The
        provisions of Articles 3, 6, 7, 8, and 9 and Section 4.3(c) (but only to
        the
        extent of ongoing royalty obligations applicable pursuant to Section 7.6(c))
        will survive any expiration or termination of this Agreement. 

       

      7.8    Payments
        Upon Termination. (a)
        The
        expiration or termination of this Agreement pursuant to this Article 7 will
        not
        release either party from any obligation to pay to the other party any amounts
        accrued under Article 4 of this Agreement in connection with activities
        completed, Excluded New Product 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, each
        party will provide to the AMC and the other party (i) a reasonably
        detailed
        statement of Collaboration Costs or Excluded New Product Costs incurred by
        such
        party pursuant to the terms of this Agreement 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
        (ii) any final reports with respect to Net Sales of Unmarketed Excluded
        New
        Products during such period.

       

      
        
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      (c)    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.

       

      8.    Collaboration
        Agreement

       

      8.1    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.

       

      (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 have oversight and approval with respect to the following:


       

      (i)    the
        progress of Inyx in the conduct of its development work hereunder;
        and

       

      (ii)    the
        scope
        and format of pre-clinical and clinical studies and materials.

       

      8.2    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.

       

      8.3    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. 

       

      8.4    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.

       

      8.5    *
        * * .

       

      9.    MISCELLANEOUS
        PROVISIONS

       

      9.1    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:

       

      
        
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      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


      
        
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      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.

       

      9.2    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.

       

      9.3    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.

       

      9.4    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.

       

      9.5    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.

       

      9.6    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 9.1 above. Nothing
        in this Section 9.6, however, will affect the right of any party to serve
        legal
        process in any other manner permitted by law or equity.


      
        
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      9.7    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.

       

      9.8    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.

       

      9.9    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.

       

      9.10   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.

       

      9.11    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. 

       

      
        
          CONFIDENTIAL
            TREATMENT

          
          

        

        
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      9.12    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.

       

      9.13    Further
        Assurances.
        Each of
        Inyx and King agrees to duly execute and deliver, or cause to be duly executed
        and delivered, such further instruments and do and cause to be done such
        further
        acts and things, including the filing of such additional assignments,
        agreements, documents, and instruments, that may be necessary or as the other
        party hereto may at any time and from time to time reasonably request in
        connection with this Agreement or to carry out more effectively the provisions
        and purposes of, or to better assure and confirm unto such other party its
        rights and remedies under, this Agreement.

       

      9.14    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.

       

      9.15    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. 

       

      
        
          CONFIDENTIAL
            TREATMENT

          
          

        

        
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      IN
        WITNESS WHEREOF, the parties have duly executed this Development 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

          
          

        

        
          13