Amendment #2 to Patheon Manufacturing Services Agreement



 Exhibit 10.4 
 AMENDMENT #2 TO 
 PATHEON MANUFACTURING SERVICES
AGREEMENT 
 This Amendment #2 (hereinafter referred to as this “Amendment”), dated as of the 29th day of
July, 2009 (the “Amendment Date”), is made by and between Patheon Inc., a corporation existing under the laws of Canada (“Patheon Canada”), Patheon Pharmaceuticals Inc., a corporation existing under the laws of
Delaware (hereinafter referred to as “Patheon”), and Pivot Acquisition, Inc., a Delaware corporation formerly known as Transcept Pharmaceuticals, Inc. (hereinafter referred to as “Client”) and a wholly-owned
subsidiary of Transcept Pharmaceuticals, Inc. (a publicly-traded Delaware corporation hereinafter referred to as “Transcept”). Patheon Canada, Patheon and Client are sometimes referred to herein individually as a
“Party” or collectively as the “Parties”. 
 WHEREAS, the Parties have entered into that
certain Manufacturing Services Agreement dated October 6, 2006, as amended on January 1, 2008, pursuant to which Patheon agreed to supply quantities of Products to Client in the Territory (the “MSA”); 
 WHEREAS, Transcept has entered into that certain United States License and Collaboration Agreement dated as of the date hereof with Purdue
Pharma L.P., a Delaware limited partnership having a place of business at One Stamford Forum, 201 Tresser Boulevard, Stamford, Connecticut 06901-3431 (hereinafter referred to as “Purdue” and such agreement the “Collaboration
Agreement”), pursuant to which, among other matters, Transcept has granted Purdue exclusive rights with respect to the commercialization of Products solely in the United States; 
 WHEREAS, Patheon and Purdue desire to enter into an agreement setting forth the terms and conditions of Patheon’s manufacture and
supply of a Product for Purdue solely with respect to the United States (the “Purdue MSA”); 
 WHEREAS, Patheon
and Transcept desire to amend the MSA so that Purdue may enter into such agreement with Patheon solely with respect to the United States; 
 WHEREAS, Patheon and Transcept desire for Client to retain all rights under the MSA with respect to the Territory excluding the United States and its territories and possessions; and 
 WHEREAS, the rights granted by Transcept to Purdue under the Collaboration Agreement do not come into effect until such time as the approved
NDA for a Product is transferred to Purdue pursuant to Section 4.2(c) of the Collaboration Agreement (hereinafter referred to as the “NDA Transfer”). 
 NOW, THEREFORE, the Parties agree as follows: 
 1. Capitalized Terms. All capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings given to them in the MSA. 







 2. Effective Date. This Amendment shall be effective as of the Effective Date. As
used herein, “Effective Date” means the date of Patheon’s deemed receipt (in accordance with Section 13.9 of the MSA) of the written notice from Transcept to Patheon pursuant to which Transcept notifies Patheon that the
NDA Transfer has occurred, such notice to be substantially in the form attached hereto as Exhibit A. 
 3.
Territory. Effective as of the Effective Date, the defined term “Territory” in Section 1.1 of the MSA shall be deleted in its entirety and amended as follows: 
 “Territory” means worldwide, except for the United States and its territories and possessions. 
 Notwithstanding the foregoing, effective upon any termination of the Purdue MSA, any and all rights with respect to the United States and its territories
and possessions shall revert to Client and the United States and its territories and possessions shall be included in the Territory under the MSA. Client and Transcept shall not be liable for any acts or omissions of Purdue under any such Purdue MSA
or otherwise. 
 4. Miscellaneous. 
 (a) Entire Agreement. This Amendment constitutes the entire agreement among the Parties with respect to the amendment of the MSA, and supersedes all prior agreements and understandings, both
written and oral, among the Parties with respect to the amendment and addition of the same. 
 (b) No Further Amendment; No
Conflict. The MSA shall remain in full force and effect except solely to the extent modified by this Amendment. In the event of a conflict between the MSA and this Amendment, this Amendment shall control. 
 (c) Governing Law. This Amendment shall be construed and enforced in accordance with the laws of the State of New York and the laws
of the United States applicable therein, without regard to any conflicts-of-law principle that directs the application to another jurisdiction’s law. The Parties expressly agree that the UN Convention on Contracts for the International Sale of
Goods shall not apply to this Agreement. 
 (d) Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute one instrument. 
  

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 IN WITNESS WHEREOF, this Amendment has been executed by the Parties hereto as of the
Amendment Date. 
  

									
	 Patheon Inc.
	 		 	Pivot Acquisition, Inc.
					
	By:	 	 /s/ Robert L. Zinger
	 		 	 By:
	 	 /s/ Glenn A. Oclassen

					
	 Name:
	 	 Robert L. Zinger
	 		 	 Name:
	 	 Glenn A. Oclassen

					
	 Title:
	 	 Exec. Dir. Tech. Svcs. and Bus. Mgt. N.D.
	 		 		 	 CEO and President

				
	 Patheon Pharmaceuticals Inc.
	 		 		 	
					
	By:	 	 /s/ Francis P. McCone
	 		 		 	
					
	 Name:
	 	 Francis P. McCone
	 		 		 	
					
	 Title:
	 	 Secretary
	 		 		 	

  

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 Exhibit A 
 NOTICE OF EFFECTIVE DATE 
                             , 2009 
 Patheon Inc. 
 4721 Emperor Blvd. 
 Suite 200 
 Durham, NC 27703 
 Attention: President, North America and Chief Commercial Officer 
 Patheon Pharmaceuticals Inc. 
 2110 East Galbraith Road 
 Cincinnati, Ohio 45237-1625 
 Attention: Director of
Legal Services 
  

	 	Re:	Manufacturing Services Agreement between Patheon Inc., Patheon Pharmaceuticals Inc. and Pivot Acquisition, Inc., dated October 6, 2006, as amended on
January 1, 2008 and July 29, 2009. 

 Pursuant to the terms and conditions of the Manufacturing Services Agreement
between Patheon Inc. (“Patheon Canada”), Patheon Pharmaceuticals Inc. (“Patheon”) and Pivot Acquisition, Inc., dated October 6, 2006, as amended on January 1, 2008 and July 29, 2009 (the
“Agreement”) this letter serves as written notice from Transcept Pharmaceuticals, Inc. to Patheon Canada and Patheon that the NDA Transfer (as defined in Amendment #2 of the Agreement) has occurred. 
 Regards, 
 Transcept Pharmaceuticals, Inc.

 Name:                                      
                        
 Title: