least fifty percent (50%) of the voting stock or other ownership interest of the other entity,or if it directly or indirectly possesses the power to direct or cause the direction of themanagement and policies of the other entity by any means whatsoever.          1.5 “**ANDA**” means an Abbreviated New Drug Application and any supplements thereto.          1.6 “**ANDA Product**” means each of the following products (including any future packagingchanges or pack sizes): (a) the *******Products; (b) the *******Products; (c) the *******Products; and (d)the *******Products.          1.7 **“Authorized Product”**means any product that is in the same form as a New Product approvedunder a NDA held by Medicis or its sublicensee but is relabeled and marketed as a generic product.          1.8 “**Confidential Information**” means all non-public materials, information and data concerningthe disclosing party and its operations that is disclosed the disclosing party to the receivingparty pursuant to the Confidentiality Agreement, this Agreement, the License Agreement or theDistribution Agreement (as defined in the License Agreement), orally or in written, electronic ortangible form, or otherwise obtained by the receiving party through observation or examination ofthe disclosing party’s operations. Confidential Information includes, but is not limited to,information about the disclosing party’s financial condition and projections; business, marketingor strategic plans; sales information, customer lists; price lists; databases; trade secrets;product prototypes and designs; techniques, formulae, algorithms and other non-public processinformation. Notwithstanding the foregoing, Confidential Information of a party shall not includethat portion of such materials, information and data that, and only to the extent, the recipientcan establish by written documentation: (a) is known to the recipient as evidenced by its writtenrecords before receipt thereof from the disclosing party, (b) is disclosed to the recipient free ofconfidentiality obligations by a Third Party who has the right to make such disclosure withoutobligations of confidentiality, (c) is or becomes part of the public domain through no fault of therecipient, or (d) the recipient can reasonably establish is independently developed by persons onbehalf of recipient without the use of the information disclosed by the disclosing party.          1.9 **“Confidentiality Agreement”**means the letter agreement dated February 24, 2008 from DavidGreenbaum, counsel for Medicis Pharmaceutical Corporation, to Roger Chin, counsel for ImpaxLaboratories, Inc.          1.10 **“Control”**means with respect to any material, information, or intellectual propertyright, that a party (a) owns such material, information, or intellectual property right, or (b) hasa license or right to use such material, information, or intellectual property right, in each casewith the ability to grant to the other party access, a right to use, a license, or a sublicense (asapplicable) to such material, information, or intellectual property right on the terms andconditions set forth herein, without violating the terms of any agreement or other arrangement withany Third Party.
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          1.11 “**Cost of Sales**” means, on a per ANDA Product basis and for a given calendar quarter, thesum of the Manufacturing Costs, Distribution and Sales Costs, and Third Party IP Costs for suchANDA Product sold during such calendar quarter.          1.12 “**Development Plan**” means the plan for the research and development of the New Product,which plan shall be consistent with Section 2.1, prepared by the parties and periodically updatedupon mutual written agreement of the parties.          1.13 “**Development Program**” means the development program described in Section 2.1.          1.14 “**Diligent Efforts**” means with respect to the research, development or commercializationof a product, as applicable, efforts and resources commonly used in the pharmaceutical industry fora product at a similar stage of research, development or commercialization, and having similarmarket potential. Diligent Efforts shall be determined by taking into account the characteristicsof the product, the technical risk and stage of research, development, or commercialization of theproduct, the cost-effectiveness of efforts or resources applied towards such product, thecompetitiveness of alternative Third Party products that are or are expected to be in the relevantmarketplace, the regulatory and business environment, the likelihood of achieving the goal of suchresearch or of obtaining regulatory approval and product reimbursement (as applicable), theprofitability of the product (without taking into account any payments to be made to other partypursuant to this Agreement) and the relative potential for product liability exposure. DiligentEfforts shall be determined on a product and market basis, and it is anticipated that the level ofefforts and resources will change over time reflecting changes in the status of the product or themarket involved.          1.15 “**Distribution and Sales Costs**” means, on a per ANDA Product basis and for a givencalendar quarter, (a) an amount equal to *******% of Net Sales of such ANDA Product during suchquarter, which amount shall serve as an estimate of the costs for the distribution of such ANDAProduct by Impax for use or sale in the Territory, including freight, insurance and other costs ofshipping such ANDA Product, (b) an amount equal to *******% of Net Sales of such ANDA Product in theTerritory during such quarter, which amount shall serve as an estimate of the costs of marketing,selling and promoting such ANDA Product, and (c) the actual direct cost incurred with respect to*******.          1.16 **“*** NDA”**means the following NDA, which was approved prior to the Effective Date: NDA#*******.          1.17 “***** NDC**” means the following NDCs: *******.          1.18 “***** Products**” means one or more products that are generic equivalents of the productsthat are (a) marketed under the trademark *******and (b) approved pursuant the *******NDA or a supplementthereto and/or sold under a *******NDC, in each case at any strength, dosage or form; provided thatwith respect to any obligations on Impax under Section 5.1.1, “***** Product**” shall mean only the *******strengths and further provided that Impax’s obligations under Section 5.1.2 and *******Product, asdefined below.          1.19 “***** Product**” means the *******Product.
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          1.20 “**Exclusion Lists**” mean: (a) the HHS/OIG List of Excluded Individuals/Entities (availablethrough the Internet at http://www.oig.hhs.gov); and (b) theGeneral Services Administration’s List of Parties Excluded from Federal Programs (availablethrough the Internet at http://www.epls.gov).          1.21 “**FDA**” means the United States Food and Drug Administration or any successor entitythereto.          1.22 “**FD&C Act**” means the United States Federal Food, Drug and Cosmetic Act, as may be amendedfrom time to time.          1.23 “**Gross Profit**” means, on a per ANDA Product basis and for a given calendar quarter, theremainder, if any, that results from Net Sales of such ANDA Product in the Territory minus the Costof Sales of such ANDA Product. *******.          1.24 “**Impax Know-How Rights**” means all trade secret and other know-how rights in and to alldata, information, compositions and other technology (including, but not limited to, formulae,procedures, protocols, techniques and results of experimentation and testing) which are necessaryor useful to make, use, develop or sell the New Product and which Impax Controls as of theEffective Date or during the term of this Agreement; provided, however, that the foregoing shallnot apply to any trade secret or other know-how rights in and to all data, information,compositions or other technology that that (a) is Controlled by an entity that becomes an Affiliateof Impax as a result of such entity’s or its Affiliate’s acquisition of Impax and (b) wasControlled by such entity prior to such acquisition.          1.25 “**Impax IP Rights**” means the Impax Patent Rights and Impax Know-How Rights.          1.26 “**Impax Patent Rights**” means all patents and patent applications (including utility, modeland design patents and certificates of invention) in any country of the world that claim or coverthe New Product or the manufacture or use thereof and that Impax (but not including any entity thatfirst becomes an Affiliate of Impax after the Effective Date) Controls as of the Effective Date orduring the term of this Agreement; provided, however, that the foregoing shall not apply to anypatent or patent application that (a) is Controlled by an entity that becomes an Affiliate of Impaxas a result of such entity’s or its Affiliate’s acquisition of Impax and (b) was Controlled by suchentity prior to such acquisition.          1.27 “**Ineligible Person**” means a person who: (a) is currently excluded, debarred, suspended,or otherwise ineligible to participate in the Federal health care programs or in Federalprocurement or non-procurement programs; or (b) has been convicted of a criminal offense that fallswithin the ambit of 42 U.S.C. § 1320a-7(a), but has not yet been excluded, debarred, suspended, orotherwise declared ineligible.          1.28 **“License Agreement”**means the License and Settlement Agreement between Medicis and Impaxdated as of the Effective Date.          1.29 “**Manufacturing Costs**” means (a) the delivered cost to Impax of an ANDA Product for use orsale in the Territory if a Third Party is the manufacturer of such
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ANDA Product, or (b) where Impax is itself the manufacturer, the sum of Materials Costs, labor costs, Overhead and Freight And Taxesincurred by Impax to produce such ANDA Product foruse or sale in the Territory, including the costs of rejected or failed batches of such ANDAProduct. As used herein, “**Materials Cost”**means Impax’s procurement costs for (i) raw materials(both active and inactive ingredients), and (ii) packaging, labeling and storing materials,incurred in connection with the manufacture, testing, labeling, purchasing and distribution of suchANDA Product; “**Overhead”**means all indirect costs of manufacturing such ANDA Product including,without limitation, insurance, inspection, testing, quality control and quality assurance,depreciation, maintenance and repair costs, all as determined in accordance with the U.S. GAAP, and“**Freight And Taxes**” means all insurance, freight and shipping charges, import taxes and duties andsimilar taxes and duties levied by the United States or other government entity with jurisdiction,and port and loading charges, all to the extent not already deducted under Distribution and SalesCosts.          1.30 “**NDA**” means a New Drug Application as defined in the FD&C Act or FDA Regulations (21CFR).          1.31 “**Net Sales**” means, with respect to a given ANDA Product or New Product, the aggregategross price of such ANDA Product or New Product received, in the case of an ANDA Product, by Impaxor its sublicensees or, in the case of a New Product, by Medicis or its sublicensees (except withrespect to a sublicensee’s sales of Authorized Products), in each case from unaffiliated retailers,distributors or other customers, less the sum of the following items, all of which must directlyrelate to the sale and distribution of such ANDA Product or New Product and be determined inaccordance with GAAP applied in a manner consistent with past practices of the applicable party:(a) returns, credits, rebates, discounts, allowances, promotional payments, free goods, chargebacksand other price reduction programs customary to the trade or required by law, (b) actual packaging,freight and insurance costs incurred in transporting such New Product in final form to customers(this clause (b) shall not apply to ANDA Products, for which an allowance has already beenincorporated into Distribution and Sales Costs), (c) sales, valued-added and other taxes, (d)customs duties, surcharges and other governmental charges, (e) administrative fees, marketing feesand other similar fees, payments or credits paid to unaffiliated third parties customary to thetrade or required by law, and (f) commercially reasonable write-offs for doubtful accounts. Salesbetween or among a party and its Affiliates shall not be included in Net Sales unless such party orits Affiliates are the end user of such ANDA Product or New Product, as applicable.          1.32 “**New Product**” means (a) a product that (i) contains *******and (ii) is to be developed bythe parties under this Agreement with the goal of achieving the Target Product Profile, or (b) anyother product agreed to in writing by the parties to serve as a substitute for the productdescribed in subsection (a) above (in which case the product descried in subsection (a) shall ceaseto be a “New Product”), in each case including any *******.          1.33 “**New Product Technology**” means all discoveries, inventions, improvements and othertechnology that is developed by Impax, Medicis or both in the conduct of the Development Program.
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          1.34 “**Non-Specific Technology**” means any of the New Product Technology (including withoutlimitation manufacturing processes) that is not specific to the New Product.          1.35 **“*** NDA”**means the following NDA, which was approved prior to the Effective Date: NDA#*******.          1.36 “***** NDC**” means the following NDCs: *******.          1.37 **“*** Products”**means one or more products that are generic equivalents of the productsthat are (a) marketed under the trademark *******and (b) approved pursuant the *******NDA or a supplementthereto and/or sold under an *******NDC, in each case at any strength, dosage or form; provided thatwith respect to any obligations on Impax under Sections 5.1.1 and 5.1.2 and *******strength.          1.38 “**Oral Acne Field**” means the treatment or palliation of acne (including acne rosacea)through an oral administration.          1.39 **“Regulatory Approval”**means, with respect to a particular regulatory jurisdiction, theapproval of a NDA or its equivalent in such regulatory jurisdiction by the applicable regulatoryauthority in such regulatory jurisdiction and such other regulatory approvals as are required inorder to market the New Product in such regulatory jurisdiction.          1.40 **“*** NDA”**means the following NDA, which was approved prior to the Effective Date: NDA#*******.          1.41 “***** NDC**” means the following NDCs: *******.          1.42 **“*** Products”**means one or more products that are generic equivalents to the productsthat are (a) marketed under the trademark *******and (b) approved pursuant the *******NDA or a supplementthereto and/or sold under a *******NDC, in each case at any strength, dosage or form; provided thatwith respect to any obligations on Impax under Section 5.1.1 and *******strength.          1.43 “**Steering Committee**” means the committee composed of representatives of Impax and Medicisdescribed in Section 2.3 below.          1.44 “**Target Product Profile**” means the product criteria set forth in Exhibit A.          1.45 **“Territory”**means the United States of America including its territories and possessions.          1.46 **“Third Party**” means any person or entity other than Medicis or Impax.          1.47 **“Third Party IP Costs”**means, on a per ANDA Product basis and for a given calendarquarter, the royalties and other payments (including upfront fees and milestone payments) paid byImpax to a Third Party in consideration for a license or other rights to
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intellectual property necessary or useful for the manufacture, development, commercialization, use, or sale of such ANDAProduct in the Territory.          1.48 “**Valid Claim**” means a claim in an issued patent, whether such patent issues before, on orafter the Effective Date, in the Impax Patent Rights or any issued patent owned by Medicis pursuantto Section 3.3, in each case that has not: (a) expired or been canceled; (b) been declared invalidby a decision of a court or other appropriate body of competent jurisdiction from which no appealhas been timely taken or may be taken (e.g., as a result of denial of a petition for writ ofcertiorari); (c) been admitted to be invalid or unenforceable through reissue or disclaimer,provided that actions taken during reexamination shall not, prior to the issuance of a finalcertificate of reexamination, be construed as admissions of invalidity or unenforceability of theclaims contained in such patent prior to the initiation of such reexamination; or (d) beenabandoned.     2. DEVELOPMENT PROGRAM; STEERING COMMITTEE.          2.1 Overview. The goal of the Development Program is to develop the New Product.Each party’s obligations under the Development Program shall be as set forth in this Section 2.1 oras agreed in writing by the parties after the Effective Date. Each party shall use commerciallyreasonable efforts to timely conduct its obligations under the Development Programs in accordancewith the Development Plan. Subject to Medicis’ payment of the amount set forth in Section 6.1,each party shall bear its own costs to conduct its obligations under the Development Program.Impax shall use commercially reasonable efforts to use its proprietary technology in existence asof the Effective Date to formulate a product that meets or approaches the Target Product Profileand to perform standard in vitro analytic testing upon such resulting New Product to determinewhether it meets the Target Product Profile criteria. Without limiting the generality of theforegoing, Impax shall perform no more than three (3) in vivo pharmacokinetic studies upon such NewProduct to determine whether it meets the Target Product Profile criteria. Impax shall alsoprovide a reasonable amount of technical advice to Medicis with respect to pre-clinicalmanufacturing scale up work for the New Product. For clarity, Impax shall not have any obligationto (i) perform more than three (3) in vivo pharmacokinetic studies in the course of performing theDevelopment Program, (ii) perform any manufacturing scale up work for the New Product, (iii)manufacture the New Product for clinical (except for the 3 pharmacokinetic studies described above)or commercial use, (iv) make any filings with the FDA or any other regulatory agency with respectto the New Product, (v) conduct any clinical trials for the New Product (except for the 3pharmacokinetic studies described above) or (vi) conduct any commercialization-related activitieswith respect to the New Product. Impax shall not incorporate any know-how, patented technology orother intellectual property Controlled by Impax into the New Product, the New Product Technology orthe manufacturing process therefor without notifying Medicis in writing. If Medicis notifies Impaxin writing, within thirty (30) days of Impax’s notice, that Medicis, based on its freedom tooperate analysis, has a good faith concern that the use of such know-how, technology orintellectual property with respect to the New Product may infringe the intellectual property of aThird Party, then the parties will discuss such matter and, if such discussion does not reasonablyresolve Medicis’ concern, then Medicis will notify Impax in writing within thirty (30) days of suchdiscussion and Impax, following receipt of such notice, will not incorporate such know-how,technology or intellectual property into the New Product.
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          2.2 Amendment of Development Plan. The Development Plan may be amended from time totime by mutual written agreement of the parties or by the Steering Committee pursuant to Section2.3.1.          2.3 Steering Committee.               2.3.1 Composition of the Steering Committee. The Steering Committee shall foster thecollaborative relationship between the parties and shall in particular monitor the progress of theDevelopment Program and Impax’s progress with respect to the ANDA Products. The Steering Committeeshall be comprised of two (2) named representatives of Impax and two (2) named representatives ofMedicis. Each party shall appoint its respective representatives to the Steering Committee fromtime to time, and may substitute one or more of its representatives, in its sole discretion,effective upon notice to the other party of such change but shall use commercially reasonableefforts to maintain stability of Steering Committee representation. The Steering Committee shallnot have the power to amend the terms of this Agreement but shall have the power to change theDevelopment Plan upon agreement of at least one (1) representative of the Steering Committee fromeach party.               2.3.2 Meetings. The Steering Committee shall meet not less than four (4) times eachcalendar year, on such dates and at such times and places as agreed to by Impax and Medicis,alternating between Scottsdale, Arizona and Hayward, California or such other locations as theparties shall agree, including without limitation via teleconference. At such meetings, theSteering Committee shall discuss the progress of the Development Program and set prioritiestherefor.               2.3.3 Committee Actions. Any approval, determination or other action agreed to by allof the members of the Steering Committee present at the relevant Steering Committee meeting shallbe the approval, determination or other action of the Steering Committee; provided, however, thatat least one (1) representative of each party is present at such meeting, and that such approval,determination or other action is documented in (a) a writing signed by a representative of eachparty at such meeting or (b) the approved minutes for such meeting. The Steering Committee alsomay act by unanimous written consent without a meeting or between meetings.               2.3.4 Steering Committee Minutes and Reports. One representative of each party shallbe designated to take minutes of each Steering Committee meeting. Within fifteen (15) daysfollowing each Steering Committee meeting during the term of the Agreement, the Steering Committeeshall prepare and provide to each party a reasonably detailed written report which shall summarizethe outcome of the meeting.               2.3.5 Term. The term of the Steering Committee shall commence on the Effective Dateand continue until Impax has completed its obligations under the Development Plan.          2.4 Records. Impax shall maintain complete and accurate records of all work itconducts under the Development Program and all results, data and developments made in connectiontherewith. Such records shall be complete and accurate and shall fully and properly
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reflect all work done and results achieved in the performance of the Development Program insufficient detail and in good scientific manner appropriate for patent and regulatory purposes.Medicis shall have the right to review and copy such records (including raw data and scientificnotebooks) at reasonable times to the extent necessary for Medicis to exercise its rights underthis Agreement with respect to New Product Technology and the development and commercialization ofthe New Product.          2.5 Reports. Within thirty (30) days following the end of each calendar quarterduring the term of the Development Program, Impax shall prepare and deliver to Medicis a writtensummary report which shall describe the research performed to date under the Development Programand all results, analysis and conclusions thereof.     3. INTELLECTUAL PROPERTY.          3.1 Research License. During the term of the Development Program, Medicis herebygrants to Impax a fully paid, non-exclusive, non-transferable (except as permitted in Section 11.6)license (without the right to grant sublicenses), under all patents, know-how and otherintellectual property rights Controlled by Medicis, for the sole purpose of conducting theDevelopment Program. Prior to engaging any subcontractors to perform work under the DevelopmentProgram, Impax shall notify Medicis in writing of the names and addresses of the subcontractors sothat Medicis may screen such subcontractors against the Exclusion Lists and any other legalrequirements. If, within fourteen (14) days following submission of the list to Medicis, Medicisdoes not object to the use of such subcontractors on the basis that such subcontractors fail tocomply with the foregoing requirements or the representations under Section 9.2, Impax may proceedwith use of such subcontractors. The foregoing shall not relieve Impax of its requirements underSection 9.2.          3.2 License Grants.               3.2.1 Subject to the terms and conditions of this Agreement, Impax hereby grants to Medicis anexclusive, royalty-bearing, irrevocable, non-transferable (except as permitted in Section 11.6),worldwide license (with the right to grant sublicenses through multiple tiers) under the Impax IPRights, to make, have made, use, offer for sale, sell and import the New Product.               3.2.2 Subject to the terms and conditions of this Agreement, Medicis hereby grants to Impax aperpetual, royalty-free, fully paid, irrevocable, non-transferable (except as permitted in Section11.6), worldwide exclusive license (with the right to grant sublicenses through multiple tiers)under the patent and other intellectual property rights owned by Medicis pursuant to Section 3.3,to make, have made, use, offer for sale and import the Non-Specific Technology for all uses outsidethe Oral Acne Field.          3.3 New Product Technology. Impax shall promptly disclose to Medicis all New ProductTechnology. Medicis shall solely own all right, title and interest in and to the New ProductTechnology and all patent and other intellectual property rights therein. Impax hereby assigns toMedicis all of its right, title and interest in and to the New Product Technology and all patentand other intellectual property rights therein. Impax shall perform, during and after the
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term of this Agreement, all acts that Medicis reasonably deems necessary or desirable topermit and assist Medicis, at Medicis’ expense, in obtaining, perfecting and enforcing the fullbenefits, enjoyment, rights and title throughout the world in the New Product Technology and allpatent and other intellectual property rights therein. If Medicis is unable for any reason, aftercommercially reasonable efforts, to secure Impax’s signature to any document required to file,prosecute, register or memorialize the assignment of any rights to the New Product Technology asprovided under this Agreement, Impax hereby irrevocably designates and appoints Medicis andMedicis’ duly authorized officers and agents as Impax’s agents and attorneys-in-fact to act for andon Impax’s behalf and instead of Impax to take all lawfully permitted acts to further the filing,prosecution, registration, memorialization of assignment, issuance and enforcement of such rights,all with the same legal force and effect as if executed by Impax. The foregoing is deemed a powercoupled with an interest and is irrevocable. Medicis shall have the world-wide right to controlthe drafting, filing, prosecution, maintenance and enforcement of patents covering the New ProductTechnology.          3.4 No Implied Licenses. Except as explicitly set forth in this Agreement, neitherparty grants to the other party any license, express or implied, under its patents or otherintellectual property.     4. DEVELOPMENT AND COMMERCIALIZATION OF NEW PRODUCT          4.1 Marketing of the New Product. Medicis shall have the sole right to make, use,sell, distribute, market, exploit or otherwise commercialize the New Product. Medicis shall useDiligent Efforts to obtain Regulatory Approval for the New Product in the Territory. Medicis’efforts with respect to the commercialization of the New Product shall be in the sole discretion ofMedicis. Impax acknowledges and agrees that it shall have no right under this Agreement to make,have made, use, sell, distribute, market, exploit or otherwise commercialize the New Product exceptin the course of performing its obligations under the Development Program.          4.2 Exclusive Relationship. The parties acknowledge and agree that Impax will obtainaccess to Confidential Information of Medicis with respect to the Original Products and anydevelopment work relating to the New Product, all of which may provide Impax with a competitiveadvantage. Accordingly, during the term of this Agreement and for three (3) years thereafter(unless this Agreement is terminated on account of Medicis’ uncured material breach of its paymentobligations under this Agreement), Impax shall not, and nor shall Impax directly or indirectlyencourage or assist any Third Party to, develop and/or commercialize any product that containscontrolled release minocycline; provided, however, that such restriction shall not apply to *******.     5. DEVELOPMENT AND COMMERCIALIZATION OF ANDA PRODUCTS          5.1 Development.               5.1.1 General Obligation. Impax shall use Diligent Efforts to obtain RegulatoryApproval in the Territory for each ANDA Product.
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               5.1.2 Specific Obligations. In addition to the obligations set forth in Section5.1.1, Impax shall have the obligations set forth in this Section 5.1.2 solely with respect to the*******Product and the *******Product. *******.          5.2 Commercialization. Following the FDA’s approval of Impax’s ANDA for an ANDAProduct, Impax shall use Diligent Efforts to commercialize such ANDA Product in the Territory;provided, however, that Impax shall not have any obligation to launch or continue commercializationin the Territory of any ANDA Product at any time when Impax does not have either (a) a license toall patents and patent applications in the Territory that may claim such ANDA Product or itsmanufacture or use, unless Impax is able to obtain such license on commercially reasonable terms asdetermined by Impax, or (b) a final, unappealable resolution in Impax’s favor of all claims thatsuch ANDA Product or its manufacture or use infringes a patent in the Territory. Impax shallcomply with all applicable laws and regulations in connection with its research, development andcommercialization activities for each ANDA Product in the Territory.          5.3 Reports. Within thirty (30) days following the end of each calendar quarterduring the term of this Agreement, Impax shall prepare and deliver to Medicis a written summaryreport which shall describe its regulatory and commercialization efforts with respect to the ANDAProducts.          5.4 Right of Negotiation. If Impax decides to develop a product that is a genericequivalent of a product that is marketed under the *******, *******, *******or *******trademark but is not an *******Product, *******Product, *******Product or *******Product, then Impax shall promptly notify Medicis inwriting. If Medicis is interested in co-developing such product with Impax, then Medicis shallprovide Impax, within thirty (30) days after Impax’s notice, with a written proposal of the termsunder which the parties would co-develop such product. Impax shall notify Medicis within thirty(30) days of receipt of Medicis’ proposal whether, based on such proposal, it is interested inengaging in negotiations with Medicis regarding the terms under which the parties would co-developsuch product. Medicis’ right of negotiation pursuant to this Section 5.4 shall expire with respectto a particular product at the earliest of: (1) thirty (30) days after Impax’s first noticepursuant to this Section 5.4, if Medicis has already not provided Impax with the proposal specifiedabove; (2) Medicis’ receipt of notice from Impax that it is not interested in engaging innegotiations with Medicis regarding the terms under which the parties would co-develop suchproduct; (3) sixty (60) days after Medicis’ receipt of notice from Impax that it is interested inengaging in negotiations with Medicis regarding the terms under which the parties would co-developsuch product, if the parties have not entered into a written agreement for such co-development(such agreement, a “Co-Development Agreement”) and (4) the date of the parties’ entry into aCo-Development Agreement.     6. FINANCIAL CONSIDERATIONS.          6.1 Upfront Payment. Within five (5) business days after the Effective Date, Medicisshall pay to Impax a non-creditable, non-refundable payment of Forty Million United States Dollars($40,000,000 USD).
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          6.2 Milestone Payments. Medicis shall pay to Impax the following non-creditable,non-refundable milestone payments set forth in the following table after the first achievement ofthe corresponding milestone:     Milestone Event Milestone Payment(a) *******  ********* **     (b) *******  ********* **     (c) *******  ********* **     (d) *******  ********* **     (e) *******  ********* **     (f) *******  ********* **Each such milestone payment shall be payable only once pursuant to this Section 6.2. Such paymentshall be made within thirty (30) days after the initial achievement of such milestone; provided,however, that Medicis shall not be obligated to make the milestone payment described in subsection(c) above before *******, Medicis shall not be obligated to make the milestone payment described insubsection (d) above before *******, and Medicis shall not be obligated to make either of the milestonepayments described in subsections (e) and (f) above before *******.          6.3 Revenue Sharing for ANDA Products. Subject to the terms and conditions of thisAgreement, within sixty (60) days following the end of each calendar quarter, Impax shall pay toMedicis fifty percent (50%) of all Gross Profit accrued during such calendar quarter. Medicis’right to receive a share of the Gross Profit under this Section 6.3 with respect to an ANDA Productshall expire, on an ANDA Product-by-ANDA Product basis, ten (10) years after the first commercialsale by Impax of such ANDA Product in the Territory after the applicable ANDA has been approved bythe FDA. Each payment made under this Section 6.3 shall be accompanied by a written report statingthe number and description of all ANDA Products sold in the Territory during the relevant calendarquarter; a detailed breakdown of the Cost of Sales associated therewith; the gross sales associatedtherewith; the calculation of Net Sales thereon, including without limitation the amount of anydeduction provided for in the definition of Net Sales; and the calculation of Gross Profitstherefrom.          6.4 Royalty Payments for New Product. Subject to the terms and conditions of thisAgreement, Medicis shall pay to Impax (a) *******, and (b) *******. Impax’s right to receive royaltiesunder this Section 6.4 shall expire, on a New Product-by-New Product basis, eight (8) years afterthe first commercial sale of such New Product in the Territory. All royalties due under thisSection 6.4 shall be paid quarterly within sixty (60) days after the end of the relevant calendarquarter for which royalties are due. Each royalty payment shall be accompanied by a written reportstating the number and description of all New Products sold during the relevant calendar quarter;the gross sales associated therewith; and the calculation of Net Sales thereon, including withoutlimitation the amount of any deduction provided for in the definition of Net
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Sales. Notwithstanding the foregoing, any sales of New Product by Medicis to a distributor orsublicensee for the purpose of creating an Authorized Product and sold by Medicis shall not besubject to the foregoing royalty, but any revenues Medicis receives from the sale of suchAuthorized Product by such distributor or sublicensee shall be subject to the revenue share inSection 6.5 below.          6.5 Revenue Sharing for Authorized Products. Subject to the terms and conditions ofthis Agreement, Medicis shall pay to Impax *******percent (*******%) of all amounts received by Medicis onaccount of the sale of Authorized Products. Impax’s right to receive a share of such amounts shallexpire, on an Authorized Product-by-Authorized Product basis, eight (8) years after the firstcommercial sale of such Authorized Product in the Territory. All payments due under this Section6.5 shall be paid quarterly within sixty (60) days after the end of the relevant calendar quarterfor which royalties are due. Each royalty payment shall be accompanied by a written report statingthe number and description of all Authorized Products sold during the relevant calendar quarter;the gross sales associated therewith; and the amounts received by Medicis on account of such grosssales.          6.6 Taxes. A party responsible for a payment under Sections 6.1, 6.2, 6.3, 6.4 or 6.5(the “**Payor**”) shall be responsible for and may withhold from payments made to the other party (the“**Payee**”) under this Agreement any taxes required to be withheld by the Payor under applicable law.Accordingly, if any such taxes are levied on such payments due hereunder (“**Withholding Taxes**”), thePayor shall (i) deduct the Withholding Taxes from the payment amount, (ii) pay all applicableWithholding Taxes to the proper taxing authority, and (iii) send evidence of the obligationtogether with proof of tax payment to the Payee within sixty (60) days following that tax payment.          6.7 Audit Rights. On no less than five (5) business days notice from the Payee, thePayor shall make all such records, books of account, information and data concerning the applicablepayments owing under Section 6.3, 6.4 or 6.5 (which in the case of payments made pursuant toSection 6.3 shall include records of Impax’s manufacture of ANDA Products or to the extent inImpax’s possession, the manufacture of ANDA Products on behalf of Impax by its Third Party contractmanufacturer), available for inspection during normal business hours, by an independent auditorselected by the Payee and reasonably acceptable to the Payer, for the purpose of an audit todetermine the accuracy of the reports delivered and amounts paid by the Payor pursuant to Section6.3, 6.4 or 6.5; provided that the Payee may not request such inspection more than once in anycalendar year unless a discrepancy has been identified by the Payee and such audit shall be limitedto records, books of account, information and data pertaining to payments made pursuant to Section6.3, 6.4 or 6.5 during the preceding three calendar years. Upon reasonable belief of discrepancyor dispute, the Payee’s external auditors shall be entitled to take copies or extracts from suchrecords, books of account, information and data (but only to the extent related to the contractualobligations set out in this Agreement) during any review or audit. Prior to the initiation of anyaudit pursuant to this Section 6.7, the external auditor shall sign a confidentiality agreementwith the Payor providing that, as between the external auditor and the Payor, such records, booksof account, information and data shall be treated as Confidential Information of the Payor but maybe disclosed to the Payee solely to the extent necessary to document a discrepancy in any reportsdelivered and amounts paid by the Payor pursuant to Section 6.3, 6.4 or 6.5. The Payee shall besolely responsible for its costs in
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making any such audit, unless the Payee identifies a discrepancy in favor of the Payor in thecalculation of the share of Gross Profit or royalty or other payment owed, as applicable, underthis Agreement in any calendar year from those properly payable for that calendar year of fivepercent (5%) or greater, in which event the Payor shall be solely responsible for the reasonablecost of such audit and pay the Payee any underpayment. All information disclosed by the Payorpursuant to this Section shall be deemed Confidential Information of the Payor.     7. TERM AND TERMINATION.          7.1 Term. Subject to Section 7.2 below, this Agreement shall expire on the latest of(a) expiration of Medicis’ obligation to pay royalties to Impax under Section 6.4, (b) expirationof Medicis’ obligation to pay make Authorized Product-based payments to Impax under Section 6.5,and (c) expiration of Impax’s obligation to pay royalties to Medicis under Section 6.3. Thelicense grants under Section 3.2 shall survive any such expiration in accordance with the terms ofSection 3.2.          7.2 Termination for Cause. Either party may terminate this Agreement upon or afterthe material breach of any material provision of this Agreement by the other party if the otherparty has not cured such breach within thirty (30) days after receipt of express written noticethereof by the non-breaching party.          7.3 Effect of Expiration or Termination.               7.3.1 Expiration or termination of this Agreement shall not relieve the parties of anyobligation accruing prior to such expiration or termination.               7.3.2 The provisions of Sections 3.2, 3.3, 4.2 (for the term described therein), 6.7 (forthree years after expiration), 7.3.1, 7.3.2, 8, 10 and 11 shall survive the expiration of thisAgreement.               7.3.3 The provisions of Sections 3.2, 3.3, 4.2 (for the term described therein), 6.2, 6.3 (forthe term described therein), 6.4 (for the term described therein), 6.5 (for the term describedtherein), 6.6 (for the term of the payment obligations pursuant to Sections 6.1 through 6.5), 6.7(for three years after termination), 7.3.1, 7.3.3, 8, 10 and 11 shall survive the termination ofthis Agreement for any reason.     8. CONFIDENTIALITY.          8.1 Confidentiality. Until the last to expire of this Agreement, the LicenseAgreement or the Distribution Agreement (as defined in the License Agreement), and for a period offive (5) years following the expiration or earlier termination hereof or thereof, except withrespect to any Confidential Information constituting a trade secret in which case the receivingparty’s obligation continues in perpetuity, provided such receiving party has been informed as tothe status of such Confidential Information as a trade secret, each party shall maintain inconfidence all Confidential Information disclosed by the other party, and shall not use, grant theuse of or disclose to any Third Party the Confidential Information of the other party other than asexpressly permitted hereby. Each party shall notify the other promptly upon discovery of anyunauthorized use or disclosure of the other party’s Confidential Information.
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          8.2 Permitted Disclosures. Either party may disclose Confidential Information of thedisclosing party (a) on a need-to-know basis, to such party’s directors, officers and employees tothe extent such disclosure is reasonably necessary in connection with such party’s activities asexpressly authorized by this Agreement, and (b) to those agents and consultants, permittedsubcontractors and contract manufacturers who need to know such information to accomplish thepurposes of this Agreement (collectively, “**Permitted Recipients**”); provided such PermittedRecipients are bound to maintain such Confidential Information in confidence at least to the sameextent as set forth in Section 8.1.          8.3 Litigation and Governmental Disclosure. Each party may disclose ConfidentialInformation of the other party to the extent such disclosure is reasonably necessary (a) forprosecuting or defending litigation or complying with a court order, or applicable law,governmental regulations or investigation, and (b) in the case of Medicis as the receiving party toconduct pre-clinical or clinical trials of the New Product, provided that if a party is required bycourt order, law or regulation to make any such disclosure of the other party’s ConfidentialInformation it will give reasonable advance notice to the other party of such disclosurerequirement and will use good faith efforts to assist such other party to secure a protective orderor confidential treatment of such Confidential Information required to be disclosed.          8.4 Limitation of Disclosure. The parties agree that, except as otherwise may berequired by applicable laws, regulations, rules or orders, including without limitation the rulesand regulations promulgated by the United States Securities and Exchange Commission, or anyregulations of any national securities exchange, and except as may be authorized in Section 8.5, noinformation concerning this Agreement and the transactions contemplated herein shall be made publicby either party without the prior written consent of the other.          8.5 Publicity. Neither party shall make any publicity releases, interviews or othernon-confidential dissemination of information concerning this Agreement or its terms, or eitherparty’s performance hereunder, to communication media, financial analysts or others without theprior written approval of the other party, which approval shall not be unreasonably withheld,delayed or conditioned. Notwithstanding anything to the contrary in this Agreement, the partiesunderstand and agree that either party, may, if so required, disclose some or all of theinformation included in this Agreement or other Confidential Information of the other party (a) inorder to comply with its obligations under the law, including the United States Securities Act of1933 and the United States Securities Exchange Act of 1934; (b) in order to comply with the listingstandards or agreements of any national or international securities exchange or the NASDAQ StockMarket or New York Stock Exchange or other similar laws of a governmental authority; (c) to respondto an inquiry of a governmental authority or regulatory authority as required by law; or (d) in ajudicial, administrative or arbitration proceeding. In any such event the party making suchdisclosure shall (i) provide the other party with as much advance notice as reasonably practicableof the required disclosure, (ii) cooperate with the other party in any attempt to prevent or limitthe disclosure, and (iii) limit any disclosure to the specific purpose at issue. In connectionwith any filing of a copy of this Agreement with the Securities and Exchange Commission, the filingparty shall endeavor to obtain confidential treatment of economic and trade secret information, andshall keep the other party informed as the planned filing (including, but not limited to providingthe other party with the proposed filing reasonably
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in advance of making the planned filing) and consider the requests of the other partyregarding such confidential treatment.     9. REPRESENTATIONS AND WARRANTIES.          9.1 Mutual Representations. Each party hereby represents and warrants to the otherparty that:               (a) the person executing this Agreement is authorized to execute this Agreement;               (b) this Agreement is legal and valid and the obligations binding upon such party areenforceable by their terms; and               (c) the execution, delivery and performance of this Agreement does not conflict with anyagreement, instrument or understanding, oral or written, to which such party may be bound, norviolate any law or regulation of any court, governmental body or administrative or other agencyhaving jurisdiction over it.          9.2 Compliance. Impax hereby represents, warrants and covenants to Medicis that:               (a) neither it nor its subcontractors, nor any of its or its subcontractors’ personnel havebeen nor are disqualified or debarred under Section 306 of the Federal Food, Drug and Cosmetic Act(as amended by the Generic Drug Enforcement Act of 1992), 21 U.S.C. § 336;               (b) neither it nor its subcontractors shall use in any capacity the services of any persondebarred, disqualified or under investigation under the provisions of the Section 306 of theFederal Food, Drug and Cosmetic Act (as amended by the Generic Drug Enforcement Act of 1992), 21U.S.C. § 336, and will notify Medicis immediately in the event Impax is made aware of anyinvestigation or proceeding for debarment;               (c) neither its nor its subcontractors’ personnel within five (5) years preceding theEffective Date have been convicted of any offense required to be listed under FDA regulations;               (d) it and its subcontractors shall comply with all applicable laws and regulations in theperformance of its obligations under the Agreement;               (e) neither it nor its subcontractors shall use any Ineligible Person or a person on anExclusion List in connection with the performance of any of its obligations or activities under theAgreement; and               (f) it has filed with the FDA the ANDA listed on Exhibit B.          9.3 Disclaimer of Warranties. Except for those warranties set forth in Sections 9.1and 9.2, neither party makes any warranty, written, oral, express or implied, with
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respect to Development Program, the New Product, the ANDA Products or the Authorized Products.ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT HEREBY ARE DISCLAIMED BYBOTH PARTIES.          9.4 Limitation of Liability. WITH THE EXCEPTION OF DAMAGES RESULTING FROM A PARTY’SBREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT OR A PARTY’S OBLIGATIONS UNDERSECTION 10 (INDEMNIFICATION) OR A BREACH BY IMPAX OF SECTION 4.2, UNDER NO CIRCUMSTANCES SHALLEITHER PARTY BE LIABLE FOR LOSS OF USE OR PROFITS OR OTHER COLLATERAL, SPECIAL, CONSEQUENTIAL,INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH CLAIMS ARE FOUNDEDIN TORT OR CONTRACT.          9.5 Equitable Relief.               9.5.1 Each party acknowledges and agrees that the covenants contained in this Agreementregarding the confidentiality and use of the Confidential Information of the disclosing party arereasonable and necessary to protect the legitimate interests of the disclosing party, that thedisclosing party would not have entered into this Agreement in the absence of such covenants, andthat the receiving party’s breach or threatened breach of such covenants shall cause the disclosingparty significant and irreparable harm, the amount of which shall be extremely difficult toestimate and ascertain, and for which money damages shall not be adequate. Each party furtheracknowledges and agrees that the disclosing party shall have the right to apply to any court ofcompetent jurisdiction for an injunction order restraining any breach or threatened breach of thecovenants contained in this Agreement regarding confidentiality and use of the ConfidentialInformation and specifically enforcing such covenants, without the necessity of posting any bond orsecurity or giving the receiving party an opportunity to cure, in addition to seeking any otherremedy available to the disclosing party in law or equity. Each party agrees that it shall notchallenge any of the foregoing acknowledgements and agreements concerning injunctive relief in anyproceeding brought by a disclosing party.               9.5.2 Impax acknowledges and agrees that the obligations and undertakings of Impax pursuant toSection 4.2 of this Agreement are reasonable and necessary to protect the legitimate interests ofMedicis, that Medicis would not have entered into this Agreement in the absence of such provision,and that Impax’s breach or threatened breach or failure to comply with Section 4.2 of thisAgreement shall cause Medicis significant and irreparable harm, the amount of which shall beextremely difficult to estimate and ascertain, and for which money damages shall not be adequate.Impax further acknowledges and agrees that Medicis shall have the right to apply to any court ofcompetent jurisdiction for an injunction order restraining any breach or threatened breach ofSection 4.2 of this Agreement and specifically enforcing the terms and provisions of such Sectionsof this Agreement, without the necessity of posting any bond or security or giving Impax anopportunity to cure, in addition to seeking any other remedy available to Medicis in law or equity.Impax agrees that it shall not
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challenge any of the foregoing acknowledgements and agreements concerning injunctive relief inany proceeding brought by Medicis.     10. INDEMNIFICATION.           10.1 Medicis Indemnification. Medicis shall indemnify, defend and hold harmless Impaxand its directors, managers, members, officers, employees, authorized subcontractors and agents(collectively the “**Impax Parties**”) from and against any and all liabilities, obligations,penalties, judgments, disbursements of any kind and nature, losses, damages, costs and expenses(including, without limitation, reasonable attorney’s fees and costs) (collectively, “**Losses**”)incurred as a result of any claims, demands, actions or other proceedings by Third Parties againstany of the Impax Parties to the extent arising out of (a) a breach by Medicis of anyrepresentation, warranty or covenant under this Agreement, (b) any failure of Medicis to complywith applicable laws and regulations in the performance of its obligations under this Agreement, or(c) the research, development, regulatory approval or commercialization of the New Product by or onbehalf of Medicis, except to the extent that such Losses arise out of Impax’s breach of anyrepresentation, warranty or covenant under this Agreement.          10.2 Impax Indemnification. Impax shall indemnify, defend and hold harmless Medicisand its directors, managers, members, officers, employees, authorized subcontractors and agents(collectively the “**Medicis Parties**”) from and against any and all Losses incurred as a result ofany claims, demands, actions or other proceedings by Third Parties against any of the MedicisParties to the extent arising out of (a) a breach by Impax of any representation, warranty orcovenant under this Agreement, (b) any failure of Impax to comply with applicable laws andregulations in the performance of its obligations under this Agreement, or (b) the research,development, regulatory approval or commercialization of the ANDA Products by or on behalf ofImpax, except to the extent that such Losses arise out of Medicis’ breach of any representation,warranty or covenant under this Agreement.          10.3 Obligations. A party which intends to claim indemnification under this Section10 (the “**Indemnified Party**”) shall promptly notify the other party (the “**Indemnifying Party**”) inwriting of any claim, demand, action, or other proceeding in respect of which the Indemnified Partyintends to claim such indemnification; provided, however, that failure to provide such noticewithin a reasonable period of time shall not relieve the Indemnifying Party of any of itsobligations hereunder except to the extent the Indemnifying Party is prejudiced by such failure.The Indemnified Party shall permit the Indemnifying Party, at its discretion, to settle any suchaction, claim or other matter. Notwithstanding the foregoing, the Indemnifying Party shall notenter into any settlement that would adversely affect the Indemnified Party’s rights hereunder, orimpose any obligations on the Indemnified Party in addition to those set forth herein, in order forit to exercise such rights, without the Indemnified Party’s prior written consent, which shall notbe unreasonably withheld or delayed. No such action, claim or other matter shall be settledwithout the prior written consent of the Indemnifying Party, which shall not be unreasonablywithheld or delayed. The Indemnified Party shall reasonably cooperate with the Indemnifying Partyand its legal representatives in the investigation and defense of any claim, demand, action, orother proceeding covered by the indemnification obligations of this
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Section 10. The Indemnified Party shall have the right, but not the obligation, to berepresented in such defense by counsel of its own selection and at its own expense.          10.4 Responsible Party. With respect to the prosecution or defense of any litigationor proceeding asserted by or against Impax with respect to any of the ANDA Products, Impax shall besolely responsible for all costs, expenses, damages and other liabilities with respect to suchlitigation or proceeding, except to the extent subject to Section 10.1. With respect to theprosecution or defense of any litigation or proceeding asserted by or against Medicis with respectto the New Product, Medicis shall be solely responsible for all costs, expenses, damages and otherliabilities with respect to such litigation or proceeding, except to the extent subject to Section10.2.     11. GENERAL PROVISIONS.          11.1 Notices. All notices hereunder shall be delivered by facsimile (confirmed byovernight delivery), or by overnight delivery with a reputable overnight delivery service, to thefollowing address of the respective parties: If to Medicis: Medicis Pharmaceutical Corporation7720 North Dobson RoadScottsdale, Arizona 85256Attn: Chief Executive OfficerFacsimile: 480-291-5163  with a copy to: Medicis Pharmaceutical Corporation7720 North Dobson RoadScottsdale, Arizona 85256Attn: General CounselFacsimile: 480-291-5163  If to Impax: Impax Laboratories, Inc.30831 Huntwood AvenueHayward, California 94544Attn: President, Generics DivisionFacsimile: 510-471-1595  With a copy to: Impax Laboratories, Inc.30831 Huntwood AvenueHayward, California 94544Attn: Legal DepartmentFacsimile: 510-476-2092     Notices shall be effective on the day of receipt. A party may change its address listed aboveby notice to the other party given in accordance with this Section 11.1.          11.2 Entire Agreement. The parties hereto acknowledge that this Agreement sets forththe entire agreement and understanding of the parties and supersedes all prior written
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or oral agreements or understandings with respect to the subject matter hereof. Nomodification of any of the terms of this Agreement, or any amendments thereto, shall be deemed tobe valid unless in writing and signed by an authorized agent or representative of both partieshereto. No course of dealing or usage of trade shall be used to modify the terms and conditionsherein. This Agreement shall be binding on each of Impax and Medicis and their respectivepermitted successors and assigns.          11.3 Bankruptcy. All rights granted under this Agreement by Impax to Medicis are andshall be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses ofrights to “intellectual property” as defined under Section 101(52) of the US. Bankruptcy Code. Theparties agree that Medicis, as a licensee of such rights under this Agreement, shall retain and mayfully exercise all of its rights and elections under the U.S. Bankruptcy Code, subject toperformance by Medicis of its pre-existing obligations under this Agreement. The parties furtheragree that, if a bankruptcy proceeding is commenced by or against Impax, Medicis shall be entitledto a complete duplicate of (or complete access to, as appropriate) any such intellectual propertyand all embodiments of such intellectual property, and the same, if not already in Medicis’possession, shall be promptly delivered to Medicis (a) after any such commencement of a bankruptcyproceeding upon request of Medicis, unless Impax elects to continue to perform all of itsobligations under this Agreement, or (b) if not delivered under subsection (a) above, upon therejection of this Agreement by or on behalf of Impax upon written request therefore by Medicis.          11.4 Waiver. None of the provisions of this Agreement (including the Exhibits hereto)shall be considered waived by any party hereto unless such waiver is agreed to, in writing, byauthorized agents of such party. The failure of a party to insist upon strict conformance to anyof the terms and conditions hereof, or failure or delay to exercise any rights provided herein orby law shall not be deemed a waiver of any rights of any party hereto.          11.5 Obligations to Third Parties. Each party warrants and represents that thisAgreement does not conflict with any contractual obligations, expressed or implied, undertaken withany Third Party.          11.6 Assignment. Neither party shall assign this Agreement or any part hereof or anyinterest herein (whether by operation of law or otherwise) to any Third Party without the writtenapproval of the other party; provided, however, that either party may assign this Agreement withoutsuch consent (i) to any Affiliate; and (ii) in the case of a merger, consolidation, change incontrol or sale of all or substantially all of the assets of the Relevant Business Unit of theparty seeking such assignment or transfer and such transaction relates to the business or assetscovered by this Agreement and the resulting entity assumes all of the obligations under thisAgreement. For the purposes of this Section 11.6, the **“Relevant Business Unit”**shall mean, withrespect to Impax, the generics division of Impax, and with respect to Medicis, the medicaldermatology division of Medicis. No assignment shall be valid unless the permitted assignee(s)assumes all obligations of its assignor under this Agreement. No assignment shall relieve anyparty of responsibility for the performance of its obligations hereunder. Any purported assignmentin violation of this Section 11.6 shall be void.
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          11.7 Independent Contractor. Impax and Medicis are acting under this Agreement asindependent contractors and neither shall be considered an agent of, or joint venturer with, theother. Unless otherwise provided herein to the contrary, each party shall furnish all expertise,labor, supervision, machining and equipment necessary for the performance of its obligationshereunder and shall obtain and maintain all building and other permits and licenses required bypublic authorities.          11.8 Governing Law. In any action brought regarding the validity, construction andenforcement of this Agreement, it shall be governed in all respects by the laws of the State ofArizona, without regard to the principles of conflicts of laws. The federal and state courts inthe State of Arizona shall have jurisdiction over the parties hereto in all matters arisinghereunder and the parties hereto agree that the venue will be a state or federal court in the Stateof Arizona.          11.9 Severability. If any term or provision of this Agreement shall for any reason beheld invalid, illegal or unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect any other term or provision hereof, and this Agreement shall beinterpreted and construed as if such term or provision, to the extent the same shall have been heldto be invalid, illegal or unenforceable, had never been contained herein.          11.10 Headings, Interpretation; Construction. The headings used in this Agreement arefor convenience only and are not part of this Agreement. In the event that Medicis makes a claimfor damages based on rescission or breach of this Agreement, nothing in this Agreement shall beconstrued as precluding Medicis from seeking recovery of those amounts paid by Medicis under thisAgreement to the extent such amounts are recoverable under applicable law and Impax’s liability isnot limited by Section 9.4.          11.11 Counterparts. The Agreement may be executed in two or more counterparts, eachof which shall be deemed an original, but all of which together shall constitute one and the sameinstrument.*[Remainder of this page intentionally blank]*
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by theirduly-authorized representatives effective as of the Effective Date.           IMPAX LABORATORIES, INC.MEDICIS PHARMACEUTICAL CORPORATION           By:   By:      Name:     Name:      Title:    Title:   
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EXHIBIT ATarget Product Profile*******.
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EXHIBIT BANDAANDA No. *******; for *******
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