Unassociated Document


    
      EXHIBIT
        10.38.3

       

      CONFIDENTIAL
        TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF 

      THIS
        DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY 

      FILED
        WITH THE COMMISSION.***

       

      TECHNICAL
        TRANSFER AGREEMENT

      


      THIS
        TECHNICAL TRANSFER AGREEMENT is made and entered into this 8th day of September,
        2005 (the “Effective
        Date”), by
        and
        between INYX,
        INC.,
        having
        an address at 825 Third Avenue, 40th
        Floor,
        New York, New York 10022 (“Inyx”)
        and
KING
        PHARMACEUTICALS, INC.,
        having
        an address at 501 Fifth Street, Bristol, Tennessee 37620 (“King”)
        (each
        individually a “Party”
        and
        collectively the “Parties”).

      


      WITNESSETH
        THAT

      


      WHEREAS,
        Inyx has expertise and experience in conducting development and technical
        transfer services related to the formulation and/or finishing of pharmaceutical
        products and has both pilot plant and commercial scale facilities to manufacture
        and package such products and is interested in providing such development,
        technical transfer and manufacturing services to King in the pharmaceutical
        area; 

      


      WHEREAS,
        King has a commercial interest in the manufacture and packaging of certain
        pharmaceutical products presently sold under the Intal® and Tilade® trademarks
        (hereinafter each individually “Product”
        and
        collectively referred to as the “Products”),
        and,
        concurrently herewith, the Parties are executing other Collaboration Documents
        (as defined below) including a definitive Manufacturing and Supply Agreement
        (the “Supply
        Agreement”)
        pursuant to which Inyx would be the manufacturer, packager and supplier of
        the
        Products to King; and 

      


      WHEREAS,
        the parties have entered into that certain Collaboration Agreement between
        King
        and Inyx, dated of even date herewith (the “Collaboration
        Agreement”),
        for
        the purpose of pursuing a collaboration relating to the development, marketing
        and promotion of Products; and

      


      WHEREAS,
        in anticipation of the Supply Agreement and the goods and services that Inyx
        will supply thereunder, the Parties desire to enter into a binding agreement
        pursuant to which Inyx would undertake certain technical transfer services
        for
        King in order to validate and scale up King’s technology package and prepare
        Inyx’s
        facilities for the manufacture and packaging of the Products.

      


      NOW,
        THEREFORE, in consideration of the mutual covenants contained herein, Inyx
        and
        King hereby agree as follows:

      


      ARTICLE
        1

       

      DEFINITIONS

      


      Unless
        otherwise specifically defined in this Agreement, each capitalized term used
        herein will have the meaning assigned to such term in the Collaboration
        Agreement. In addition, the following terms, whether used in the singular
        or
        plural, shall have the meanings assigned to them below for purposes of this
        Agreement:

      
         

        
          
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              TREATMENT

          

          
            
            

            
              

            

          

          
            
            

          

        

      


      “Agreement”
        means this Technical Transfer Agreement, and all schedules and annexes attached
        hereto, as it may from time to time be supplemented or modified by written
        amendment(s) signed by the parties.

      


      “Assignor”
        has the meaning set forth in Section 2.9.

      


      “cGMP
        Regulation” means Current Good Manufacturing Practices (i) as promulgated under
        the Act, at 21 CFR 210 and 211, as the same may be amended or re-enacted
        from
        time to time and (ii) as required by Law in Canada, as applicable.

      


      “Chemicals
        and Materials” means the chemicals (other than Drug Substance) and other
        materials, such as cartons and bottles, required to manufacture the
        Product.

      


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

       

      “Collaboration
        Documents” means, collectively, this Agreement, the Collaboration Agreement, the
        Quality Agreement, the Supply Agreement, the Marketing and Promotion Agreement,
        and the Development Agreement.

      


      “Confidential
        Information” has the meaning set forth in Section 3.1(a).

      


      “Drug
        Substance” means with respect to the Products, the active ingredient cromolyn
        sodium micronized stage 9 for Intal and nedocromil sodium dried stage 11
        for
        Tilade in a form intended for further processing into a pharmaceutical
        formulation, and which contains at least each active ingredient and may contain
        inert ingredients but is not in a final formulation intended for administration
        to patients, and shall not include other Chemicals and Materials.

      


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

      


      “Facility”
        means Inyx’s production facility located in Manati, Puerto Rico or other Inyx
        facilities as mutually agreed upon, and as approved by the FDA.

      


      “Intal”
        means the cromolyn sodium inhaler pharmaceutical product in a
        chloro-fluoro-carbon (CFC) propellant driven inhaler and more particularly
        identified in NDA# 18-887, and amendments thereto.

      


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

      


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

      


      “Laws”
        means all laws, statutes, rules, regulations, ordinances and other
        pronouncements having the effect of law of the United States, any foreign
        country, supranational entity or any domestic or foreign state, province,
        county, city or other political subdivision of any regulatory
        authority.

       

      
        
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      “Manufacturing
        Process” means the process for manufacturing the Product which is developed,
        adapted, validated and/or confirmed during Inyx’s performance of the Services
        hereunder using King’s technology package.

      


      
        	 	
                “Services”
                  mean the services described in Exhibit
                  1.
                  

              


      

      


      “Specifications”
        means the specifications established or otherwise approved by King for the
        Products.

      


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

      


      “Tilade”
        means the nedocromil sodium pharmaceutical product in a chloro-fluoro-carbon
        (CFC) propellant driven inhaler and more particularly identified in NDA#
        19-660,
        and any amendments thereto. 

      


      ARTICLE
        2

       

      SERVICES

      


      2.1    Description
        of Services.
        Inyx
        shall perform the Services (as outlined in Exhibit
        1
        hereto)
        including any modifications and additions thereto agreed upon by the Parties
        to
        develop and confirm the Manufacturing Process, and to establish Specifications
        for manufacturing and packaging Tilade and packaging Intal. Inyx shall use
        its
        commercially reasonable efforts to complete the Services in a timely fashion
        in
        accordance with a schedule agreed upon by the Parties. 

      


      2.2    *
        *
        *

       

      2.3    King’s
        Responsibilities.
        To
        assist Inyx in its performance of this Agreement, King shall provide Inyx,
        in a
        timely fashion, with all relevant information, documentation and data (including
        without limitation information, any documentation and data relating to product
        safety and information, documentation and data, including NDA numbers, NDC
        codes, etc., necessary for Inyx to drug list the product) necessary or
        appropriate for Inyx’s performance hereunder. If requested by Inyx to provide
        support or information, King shall provide such reasonable and necessary
        support
        or information in order to perform the Services under this Agreement (or
        an
        explanation of the legitimate reason for any delay and a projected date by
        which
        such support or information will be provided) within five (5) business days
        of
        Inyx’s request. In the event King is to review or approve any information,
        documentation, data or samples prepared or supplied by or on behalf of Inyx,
        it
        shall complete such review and approval process within five (5) business
        days.
        Inyx shall cooperate with King in the performance of this Agreement and shall
        deal honestly and in good faith with King. It is understood and acknowledged
        by
        the Parties that King shall retain ownership of the NDA to the Products and
        any
        supplements thereto, and is responsible for the NDA submission documents
        and all
        correspondence with the FDA.

      
         

        
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      2.4    Inyx
        Responsibilities.
        Inyx
        shall ensure that any and all Drug Substance, components, and materials supplied
        by Inyx are suitable for use under this Agreement, comply with all applicable
        Laws and regulations (including without limitation those relating to the
        import
        of such materials) and receive all required governmental and regulatory
        approvals, including without limitation customs and FDA approvals. Furthermore,
        Inyx shall provide to King all documentation necessary to support King’s
        submissions to the FDA, or any responses to questions raised by the FDA,
        which
        are necessary for FDA approval of Inyx’s Manati, Puerto Rico site as the
        manufacturing, testing and packaging site for King’s Products. Inyx shall notify
        King promptly if an authorized agent of a regulatory agency visits its
        manufacturing and packaging facility where the Products are being manufactured,
        packaged or quality tested. Inyx shall provide copies of all regulatory
        correspondence related to the Products to King within forty-eight (48) hours
        of
        receipt. King shall have fifteen (15) days to review such correspondence
        and to
        provide comments to Inyx. Should Inyx choose not to include or address King’s
        comments when responding to the regulatory agency, then Inyx shall provide
        King
        a reason in writing as to why King’s comments were not included or addressed.


      


      2.5    Reporting/Transfer
        of Results / Project Managers.
        Inyx
        shall respond to King’s inquiries regarding the status of the Services on an
        ongoing basis, and Inyx shall endeavor to keep King informed of interim results.
        Inyx shall provide copies of all analytical, cleaning, and process validation
        protocols and summaries for King’s review, comments and approval prior to
        implementation and execution. Once such protocols and summaries have been
        approved and executed, copies shall be provided to King. Upon request, Inyx
        shall provide to King an Intal and Tilade development report which summarizes
        the implementation efforts of the Services at the Facility. Inyx and King
        will
        each appoint a Project Manager, who will meet as needed to resolve any issues
        or
        problems associated with the Services. Upon reasonable request by King and
        without unduly interfering with Inyx’s business operations, King shall have the
        right to visit the Inyx manufacturing, packaging and testing site for the
        Products.

      


      2.6    Dispute
        Resolution.
        

      


      (a)    The
        Parties recognize that disputes may arise from time to time during the term
        of
        this Agreement that relate to either Party’s rights and/or obligations
        hereunder. It is the objective of the Parties to establish procedures to
        facilitate the resolution of disputes arising under this Agreement in an
        expedient manner by mutual cooperation. To accomplish this objective, the
        parties agree to follow the procedures set forth in this Section
        2.6
        if and
        when a dispute arises under this Agreement. 

      


      (b)    Unless
        otherwise specifically recited in the Agreement, disputes between the Parties
        under this Agreement shall be first referred to the AMC by either Party as
        soon
        as reasonably possible after such dispute has arisen. If the AMC is unable
        to
        resolve such a dispute within fifteen (15) days of being requested by a Party
        to
        resolve such dispute, either Party may, by written notice to the other, have
        such dispute referred to their respective executive officers designated below
        or
        their designees, for attempted resolution by negotiations within fifteen
        (15)
        days after such notice is received. The designated officers are as
        follows:

      
         

        
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      For
        King: Brian
        Markison, President & CEO

      King
        Pharmaceuticals, Inc.

      501
        Fifth
        Street

      Bristol,
        Tennessee 37620

      Facsimile:
        (423) 989-8006

      


      For
        Inyx:
 Dr.
        Jack
        Kachkar, Chairman & CEO

      Inyx,
        Inc.

      825
        Third
        Avenue, 40th
        Floor

      New
        York,
        NY 10022

      Telephone:
        (212) 838-1111

      Facsimile:
        (212) 838-0060

      Email:
        jkachkar@inyxinc.com

      


      In
        the
        event such designated officers are unable to resolve such dispute, the decision
        of King, with respect to regulatory and manufacturing matters relating to
        the
        Product(s) shall be binding on the parties, as long as Inyx’s cGMP status as to
        regulatory and manufacturing matters is not compromised by such decision.
        Notwithstanding the foregoing, this Paragraph shall not apply to determinations
        as to whether either Party is in breach of any of its obligations under this
        Agreement.

      


      2.7    Ownership
        of Tangible Materials.
        King
        shall retain ownership of all information, documents and materials which
        King
        provides to Inyx in connection with the performance of the Services hereunder,
        and King shall have the right to use, all reports, documents and other tangible
        materials which Inyx provides to King in the performance of the Services.
        Any
        such Confidential Information, documents, and materials shall be subject
        to
Article
        3.
        Furthermore, 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 in the Collaboration Documents, in and
        to
        any and all

      (a)    the
        Products and New Products,

       

      (b)    Technology
        transferred to Inyx’s facilities pursuant to this Agreement,

      


      (c)    Technology
        and Patent Rights as they exist as of the Effective Date, and

      


      (d)    any
        Improvements to the Technology and all associated Patent Rights, developed
        after
        the Effective Date during the Term, whether developed by King or Inyx or
        jointly
        by King and Inyx and any permitted Third Parties, including all rights to
        any
        Technology and Patent Rights related to Excluded New Products;

      


      provided
        that such ownership of right, title, and interest does not extend to the
        Inyx
        Respiratory Products. 

      


      2.8    Inventions
        Disclosure and Generally.
        Each
        Party will promptly provide the AMC with written notice concerning all
        Improvements that are conceived, made, or developed by employees or Consultants
        of either of them or their Affiliates, whether alone or jointly with the
        other
        Party or its Affiliates or with permitted Third Parties. Such notice will
        be
        treated as the Confidential Information of King hereunder. The provisions
        of
Section
        2.7 and 2.8 and 2.9
        will
        apply to rights in Improvements conceived, made, or developed by King or
        Inyx,
        or both, during the course of carrying out the Collaboration
        Program. 

      
        
           

          
            
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                TREATMENT

            

            
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      2.9    Assignment.
        Inyx
        agrees to, and hereby does, and will cause each of its employees, Consultants,
        Affiliates, and permitted sublicensees (collectively with Inyx, the “Assignors”)
        to, transfer, assign, and convey exclusively to King, its successors and
        assigns, forever, the entire right, title, and interest in and to all
        Improvements developed by each such Assignor, alone or jointly with each
        other
        or King, including all intellectual property rights associated therewith.
        Inyx
        further agrees, and will cause the other Assignors, (i) to promptly provide
        King
        with written notice, in sufficient detail, of any Improvements such Assignor
        makes pursuant to the Collaboration Documents and (ii) to provide King with
        such
        additional information and to execute and deliver, and to cause the other
        Assignors to execute and deliver, any documents or take any other actions
        or
        otherwise cooperate with King as may reasonably be necessary, or as King
        may
        reasonably request, to document, enforce, protect, or otherwise perfect King’s
        rights in any Improvement, including filing any applicable patent
        applications.

      


      2.10    Employees.
        Inyx
        agrees to have each employee enter into a written agreement with Inyx that
        includes an assignment to Inyx, or directly to King with respect to all
        Improvements, of all right, title, and interest in and to all work product
        and
        all inventions arising during the course of his or her employment with Inyx
        in
        connection with such Improvements or the Collaboration Program, and all
        intellectual property rights attaching thereto.

      


      2.11    Non-Compete.
        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.

      


      ARTICLE
        3

       

      CONFIDENTIALITY

      


      3.1    Nondisclosure
        Obligations.
        (a)
        Each
        party acknowledges that it may receive confidential or proprietary information
        (the “Confidential
        Information”)
        of the
        other party in the performance of the Collaboration Documents, including
        information obtained or reviewed in connection with any audits or investigations
        performed pursuant to this Agreement. Each party will hold confidential and
        will
        not, directly or indirectly, disclose, publish, or use for the benefit of
        any
        Third Party or itself, except in carrying out its duties under the Collaboration
        Documents, any confidential or proprietary information of the other party
        or
        confidential or proprietary information jointly developed by the parties,
        without first having obtained the furnishing party’s written consent to such
        disclosure or use. “Confidential Information” will include know-how, scientific
        information, clinical data, efficacy and safety data, adverse event information,
        formulas, methods and processes, specifications, pricing information (including
        discounts, rebates, and other price adjustments), and other terms and conditions
        of sales, customer information, business plans, and all other intellectual
        property. The Patent Rights and Technology will be deemed the Confidential
        Information of King. The restrictions in this Article 3 will not apply
        to
        any information that:

       

      
        
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    (i)    is
      or
      becomes part of the public domain other than by unauthorized acts of the
      receiving party or its Affiliates, sublicensees, Consultants, and contractors,
      as applicable;

    


    (ii)    can
      be
      shown by written documentation to have been disclosed to the receiving party
      or
      its Affiliates or sublicensees by a Third Party who was not otherwise prohibited
      from transmitting the information to the receiving party by a contractual,
      legal, or fiduciary obligation of confidence to the disclosing
      party;

     

    (iii)    prior
      to
      disclosure under this Agreement, was already in the possession of the receiving
      party or its Affiliates or sublicensees, provided such information was not
      obtained directly or indirectly from the other party hereto pursuant to a
      confidentiality agreement;

     

    (iv)   can
      be
      shown by written documentation to have been independently developed by the
      receiving party or its Affiliates without breach of any of the provisions of
      this Agreement, including without reference to the Confidential Information
      of
      the disclosing party;

     

    (v)    is
      disclosed by the receiving party pursuant to oral questions, interrogatories,
      requests for information or documents, subpoena, or a civil investigative demand
      of a court or governmental agency; provided, however, that the receiving party
      notifies the other party promptly following receipt thereof so that the other
      may seek a protective order or other appropriate remedy to prevent or limit
      such
      disclosure; and provided further that the receiving party furnishes only that
      portion of the information that it is advised by counsel is legally required
      and
      imposes such obligations of secrecy as are possible in that regard;

     

    (vi)   is
      required or permitted to be disclosed by the receiving party under any
      statutory, regulatory, or similar legislative requirement or any rule of any
      stock exchange to which it or any Affiliate is subject; provided, however,
      that
      the other party will be allowed to review the proposed disclosure and the
      receiving party agrees to consider in good faith any proposed revisions thereof
      provided to the receiving party within two (2) business days of the other
      party’s receipt of the proposed disclosure, and the parties will seek
      confidential treatment for such disclosure as permitted by applicable law;
      or

     

    (vii)   is
      required by authorities to obtain Regulatory Approval.

    


    (b)    The
      receiving party agrees that it will disclose the Confidential Information only
      to its employees and Consultants who need to know such Confidential Information
      for such party to perform its obligations hereunder. The receiving party agrees
      (i) to inform all of its employees and Consultants who receive Confidential
      Information of the confidential nature thereof and to direct all such employees
      and Consultants to treat the Confidential Information confidentially in
      accordance with this Agreement; (ii) to be responsible for any breach of the
      Agreement by any of its employees and Consultants; and (iii) to make all
      reasonable, necessary, and appropriate efforts to safeguard the Confidential
      Information from disclosure other than as permitted hereby, which will include
      requiring all employees and Consultants who have access to Confidential
      Information of the disclosing party to execute written obligations to maintain
      the same in confidence and not to use such information except as expressly
      permitted under the Collaboration Documents. Each party agrees to enforce
      confidentiality obligations to which its employees and Consultants are
      obligated.

     

    
      
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      (c)    Upon
        the
        expiration or termination of this Agreement or upon request of the disclosing
        party, the receiving party will return to the disclosing party any and all
        Confidential Information of the disclosing party and any reproductions
        thereof.

    

    


    (d)    The
      obligations set forth in this Article 3 will survive the termination or
      expiration of this Agreement for a period of five (5) years
      (or, in
      the case of any Confidential Information identified as a trade secret by the
      disclosing party at the time of disclosure, for so long as such trade secret
      Confidential Information is susceptible of remaining a trade
      secret).

    


    3.2    Terms
      of this Agreement.
      The
      Parties agree not to disclose any terms or conditions of this Agreement to
      any
      Third Party without the prior consent of the other Party, except as required
      by
      applicable Laws.

    


    3.3    Injunctive
      Relief.
      The
      Parties hereto understand and agree that remedies at law may be inadequate
      to
      protect against any breach of any of the provisions of this Article 3 and
      Sections 2.8 through 2.10 by either Party or their employees, agents, officers
      or directors or any other person acting in concert with it or on its behalf.
      Accordingly, each Party may be entitled to the granting of injunctive relief
      by
      a court of competent jurisdiction against any action that constitutes any such
      breach of this Article 3 and Sections 2.8 through 2.10.

    


    ARTICLE
      4

     

    INYX’S
      REPRESENTATIONS,

    WARRANTIES
      AND COVENANTS

    


    Inyx
      represents, warrants and covenants to King as follows:

    


    4.1    Commercially
      Reasonable Efforts.
      Inyx
      shall use its commercially reasonable efforts to perform the Services in
      accordance with the agreed upon timeline, which is attached as Exhibit
      2
      (the
“Timeline”).
      In
      the event Inyx is not able to meet the Timeline, Inyx will provide written
      notice to King of such inability as soon as practical, but in any event, within
      seventy-two (72) hours of discovering such inability.

    


    4.2    Qualified
      Personnel and Services.
      Inyx
      shall engage and employ professionally qualified personnel to perform the
      Services contemplated hereunder. Inyx represents and warrants that there is
      no
      claim, suit, proceeding, or other investigation pending, or to the actual
      knowledge of Inyx, overtly threatened against Inyx which is likely to prevent
      or
      materially adversely affect the rights and interests of King hereunder. Inyx
      represents and warrants that neither it nor any member of its staff has been
      disqualified or debarred by the FDA for any purpose. If during the Term of
      this
      Agreement, Inyx becomes aware that Inyx or any member of its staff is or is
      about to become disqualified or debarred, Inyx will provided immediate written
      notice of same to King. Inyx represents and warrants, to the best of its
      knowledge, that neither it nor any member of its staff has been charged with
      or
      convicted under federal law for conduct relating to the development or approval
      of any NDA or Abbreviated New Drug Application (“ANDA”),
      or
      otherwise relating to the regulation of any drug product under any relevant
      statute, law, or regulation. If at any time Inyx or any member of its staff
      is
      charged with or convicted under federal law for conduct relating to the
      development or approval of any NDA or ANDA, or otherwise relating to the
      regulation of any drug product under any relevant statute, law, or regulation,
      Inyx will provide immediate written notice of same to King. Inyx represents
      and
      warrants that it shall comply in all material respects with all Laws applicable
      to the conduct of its business pursuant to this Agreement, including, but not
      limited to, the Act. Inyx hereby warrants that the Services provided for herein
      will be performed in accordance with the cGMP Regulations and applicable
      Laws.

    


    
      
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    4.3    Disclaimer.
      THE
      FORGOING EXPRESS WARRANTIES AND THOSE IN ARTICLE 5 ARE IN LIEU OF ALL OTHER
      WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY
      OF
      MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENTS,
      AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY EACH PARTY.
      

    


    ARTICLE
      5

     

    GENERAL
      REPRESENTATION AND WARRANTIES

    


    Each
      Party represents, warrants and covenants to the other as follows:

    


    5.1    Power
      and Authorization.
      It has
      all requisite power and authority (corporate and otherwise) to enter into this
      Agreement and has duly authorized by all necessary action the execution and
      delivery hereof by the officer or individual whose name is signed on its behalf
      below.

    


    5.2    No
      Conflict.
      Its
      execution and delivery of this Agreement and the performance of its obligations
      hereunder do not and will not conflict with or result in a breach of or a
      default under its organizational instruments or any other agreement, instrument,
      order, Laws or regulations applicable to it or by which it may be
      bound.

    


    5.3    Enforceability.
      This
      Agreement has been duly and validly executed and delivered by it and constitutes
      its valid and legally binding obligation, enforceable in accordance with its
      terms, except as enforcement may be limited by bankruptcy, insolvency or other
      laws of general application relating to or affecting the enforcement of
      creditors’ rights and except as enforcement is subject to general equitable
      principles.

    


    
      
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    5.4    Compliance
      with Applicable Laws.
      Each
      Party shall comply with all applicable Laws in connection with the performance
      of this Agreement.

     

    ARTICLE
      6

     

    INDEMNIFICATION

    


    6.1    Indemnification
      by King.
      Except
      as otherwise provided in Section
      6.2
      below,
      King shall indemnify, defend and hold Inyx, its Affiliates and their respective
      directors, officers, employees, agents, successors and assigns harmless from
      and
      against any Third Party damages, judgments, claims, suits, actions, liabilities,
      costs and expenses (including, but not limited to, reasonable attorneys’ fees)
      arising out of or connected with (a) King’s negligent acts or omissions or
      willful misconduct in connection with King’s activities in support of Inyx’s
      performance of the Services hereunder, (b) King’s material breach of any of
      its warranties, representations, or covenants hereunder, or (c) a claim that
      the
      Services or the manufacture or handling of the Product infringes a United States
      patent or any other proprietary rights, if it is a claim related to the use
      of
      King’s technology and know-how.

    


    6.2    Indemnification
      by Inyx.
      Except
      as otherwise provided in Section 6.1
      above,
      Inyx shall indemnify, defend and hold King, its Affiliates and their respective
      directors, officers, employees, agents, successors and assigns harmless from
      and
      against any Third Party damages, judgments, claims, suits, actions, liabilities,
      costs and expenses (including, but not limited to, reasonable attorneys’ fees)
      resulting from any Third Party claims or suits arising solely out of (a) the
      Services or the handling of the Products; (b) Inyx’s material breach of any
      of its warranties, representations, or covenants hereunder; (c) Inyx’s
      negligent acts or omissions or willful misconduct in its performance of the
      Services or the manufacture, packaging, labeling, or storing of the Product;
      or
      (d) a claim that the Services or the manufacturing or handling of the Products
      infringes a United States patent or any other proprietary rights as the claim
      relates to the use of Inyx technology and know-how. 

    


    6.3    Indemnification
      Procedures.
      A Party
      which intends to claim indemnification under this Article 6
      (the
“Indemnitee”)
      shall
      promptly notify the other Party (the “Indemnitor”)
      in
      writing of any action, claim or other matter in respect of which the Indemnitee
      or any of its Affiliates, or any of their respective directors, officers,
      employees or agents intend to claim such indemnification; provided,
      however,
      the
      failure to provide such notice within a reasonable period of time shall not
      relieve the Indemnitor of any of its obligations hereunder except to the extent
      the Indemnitor is prejudiced by such failure. The Indemnitee, its Affiliates,
      and their respective directors, officers, employees and agents shall cooperate
      fully with the Indemnitor and its legal representatives in the investigation,
      negotiation, compromise, settlement and defense of any action, claim or other
      matter covered by this indemnification. The Indemnitor shall be in charge of
      and
      control of any such investigation, negotiation, compromise, settlement and
      defense and shall have the right to select counsel with respect thereto,
      provided that the Indemnitor shall promptly notify the Indemnitee of all
      developments in the matter. In no event shall the Indemnitor or Indemnitee
      compromise or settle any such matter without the prior written consent of the
      other Party, who shall not be bound by any such compromise or settlement absent
      such prior consent, which shall not be unreasonably withheld or delayed;
      provided that the Indemnitee will have no right to withhold its consent to
      any
      settlement if the settlement involves only the payment of money by the
      Indemnitor or its insurer. The Indemnitee shall have the right, but not the
      obligation, to be represented by counsel of its own selection and at its own
      expense.

    


    
      
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    6.4    Survival
      of Indemnification Obligations.
      The
      provisions of this Article 6
      shall
      survive the expiration or termination of this Agreement.

    


    6.5    Disclaimer
      of Consequential Damages.
      In no
      event shall either Party be liable to the other Party for incidental, special,
      or consequential damages, including, but not limited to, any claims for damages
      based upon lost profits.

    


    ARTICLE
      7

     

    TERM
      AND TERMINATION 

    


    7.1    Term.
      Subject
      to Section
      2.2
      and the
      provisions of this Article
      7,
      this
      Agreement shall remain in full force and effect unless and until terminated
      or
      expired in accordance with the provisions of this Article (the “Term”).

    


    7.2    Termination
      by Mutual Agreement.
      This
      Agreement may be terminated at any time upon mutual written agreement between
      the Parties.

    


    7.3    Termination
      for Default.
      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
      or, if the breach or default is not capable of being cured within sixty days,
      commenced to be cured and diligently pursued, in each case, within sixty (60)
      days after written notice is given to the breaching Party specifying the breach
      or default. 

     

    7.4    Bankruptcy;
      Insolvency.
      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.

    


    7.5    Termination
      by King.
      (a)
      Subject to the terms of Section 7.5(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)    Notwithstanding
      Section 7.5(a) above, if, at least thirty (30) days prior to any Change of
      Control of Inyx, Inyx notifies King of a contemplated Change of Control and
      provides King with a Change of Control Notice, King shall not have the right
      to
      terminate this Agreement upon occurrence of such Change of Control unless it
      notifies Inyx in writing within fifteen (15) days of its receipt of such Change
      of Control Notice of its decision to terminate this Agreement. In the event
      that
      King does notify Inyx, as provided herein, of King’s intent to terminate this
      Agreement upon a Change of Control of Inyx, Inyx shall have seven (7) days
      from
      such notice to terminate the contemplated Change of Control prior to its
      completion and have this Agreement remain in full force and effect; provided
      that any such termination of a Change of Control will not be deemed a waiver
      of
      King’s ability to exercise its rights under this Section 7.5 with respect to any
      future Change of Control of Inyx.

    


    
      
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    7.6    Effects
      of Termination of this Agreement.
      Should
      either King or Inyx exercise their right to terminate this Agreement (but not
      in
      the event of an expiration of this Agreement as set forth in Section 7.9),
      then
      all other Collaboration Documents will concurrently terminate.

    


    7.7    No
      Release.
      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.

    7.8    Obligations.
      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 or expiration.

    


    7.9    Expiration.
      This
      Agreement shall expire and the Supply Agreement shall become effective upon
      King’s approval and release of *** validation lots of the Products for
      commercial sale, and technical transfer shall be considered complete at such
      time. The technical transfer must occur within *** of King’s initial purchase
      order for Products. 

    


    7.10   Rights
      and Duties Upon Termination.
      Upon
      termination of this Agreement and in accordance with Sections
      7.2, 7.3, 7.4, 7.5, and 7.6
      Inyx
      shall, as promptly as practicable, (i) cease work on the Services, and (ii)
      turn
      over to King all results and information obtained during the Services (whether
      in written or electronic form) which are then in Inyx’s possession and which are
      the property of King in accordance with Article
      2
      of this
      Agreement. 

    


    7.11   Payments
      Upon Termination.
      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 this Agreement with respect to the period prior to the effective
      date of such expiration or termination.

     

    ARTICLE
      8

     

    FORCE
      MAJEURE

    


    8.1    Effect
      of 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.

    


    
      
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    8.2    Termination.
      If, as
      a result of force majuere, Inyx is unable to fully perform its obligations
      hereunder for any consecutive period of one hundred eighty (180) days, King
      shall have the right to terminate this Agreement, upon providing written notice
      to Inyx, such termination to be effective thirty (30) days from the date of
      such
      notice. 

    


    ARTICLE
      9

     

    NOTICES

    


    9.1    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

     

    
      
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      If
        to
        Inyx:

    

     

    Inyx,
      Inc.

    825
      Third
      Avenue

    40th
      Floor

    New
      York,
      New York 10022

    Attn:
      Chairman and CEO

    Facsimile:
      (212) 838-0060

     

    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.

     

    ARTICLE
      10

     

    MISCELLANEOUS

    


    10.1    Entire
      Agreement.
      This
      Agreement with the Exhibits and Schedules attached hereto, 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.

    


    10.2    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.

    


    10.3    Publicity.
      Any
      press release, publicity or other form of public written disclosure related
      to
      this Agreement prepared by one Party shall be submitted to the other Party
      prior
      to release for approval, which approval shall not be unreasonably withheld
      by
      such other Party.

    


    10.4    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 shall 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.

    


    
      
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    10.5    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.

    


    10.6    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.

    


    10.7    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.

    


    10.8    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
      10.8,
      however, will affect the right of any Party to serve legal process in any other
      manner permitted by law or equity.

    


    10.9    Headings.
      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.

    


    10.10   Continuing
      Obligations.
      Termination, assignment or expiration of this Agreement shall not relieve either
      Party from full performance of any obligations incurred prior
      thereto.

    


    10.11   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.

    


    
      
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    10.12   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.

    


    10.13   Exhibits,
      Schedules and Attachments.
      Any and
      all exhibits, schedules and attachments referred to herein form an integral
      part
      of this Agreement and are incorporated into this Agreement by such
      reference.

    


    10.14   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.

    


    10.15   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 the Collaboration Documents 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, the Collaboration Documents.

    


    10.16   Certain
      Expenses and Commissions.
      Except
      as otherwise expressly set forth in this Agreement or the other Collaboration
      Documents, the Parties hereto will each pay all their costs and expenses,
      including legal and accounting fees, incurred in connection with the
      preparation, negotiation, execution, and delivery of the Collaboration Documents
      and will indemnify and hold the other harmless from and against any and all
      other claims or liabilities for such costs and expenses incurred by reason
      of
      any action taken by any such Party.

    


    10.17   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.

    


    
      
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    IN
      WITNESS WHEREOF, this Agreement has been executed by the Parties hereto as
      of
      the day and year first written above.

     

    
      	King Pharmaceuticals,
              Inc.	 	 	Inyx, Inc.
	 	 	 	 
	 	 	 	 
	/s/ Brian
              Markison	 	 	/s/ Jack
              Kachkar
	
              
                

              

              Brian Markison

              President and CEO

            	 	 	
              
                

              

              Jack Kachkar

              Chairman and CEO

            


    

     

    
      
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    EXHIBIT
      1

     

    SERVICES

    


    INTAL
      CFC 200 & 112 DOSE

    


    ***

    


    


    


    
      
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    EXHIBIT
      2

     

    TIMELINE

    


    ***

    


    
      
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