Exhibit 10.1


 


CONFIDENTIAL TREATMENT


 


Amendment # 3


 


OsoBioPharmaceuticals
Manufacturing, LLC (OsoBio) and Cubist Pharmaceuticals, Inc., (Cubist) are
parties to a processing Agreement dated August 11, 2004, as amended by
Amendment No.1 dated May 23, 2005, and Amendment No. 2 dated April 18,
2007 (the “Agreement”).


 


The
parties now desire to amend the Agreement as set forth upon the terms and
conditions set forth in the Agreement.


 


Therefore,
in consideration of the mutual conditions and covenant set forth herein, OsoBio
and Cubist Agree as follow:


 


1.               “Cardinal Health” shall be
replaced by “OsoBio” in each instance where “Cardinal Health” appears in the
Agreement.


 


2.               Exhibit B-1 of the
Agreement is deleted in its entirety and replaced with the revised Exhibit B-1
Pricing attached to this Amendment No. 3.


 


3.               Amendment No. 2 shall
be deleted in its entirety and its terms shall have no force or effect.


 


4.               Section 3.1 shall be
amended such that the third sentence of Section 3.1 is deleted in its
entirety and replaced with the following sentence: “Cubist will use []* to
supply API and reference standards []* not later than []* before the scheduled
Processing Date upon which such API will be used by OsoBio hereunder.”


 


5.               Section 4.6 shall be
amended such that the following sentence shall be inserted between the current
first and second sentences of Section 4.6: “In addition, if Cubist
appropriately rejects Product due to OsoBio’s breach of its obligations
hereunder to provide Product conforming to the Specifications and Applicable
Laws []*, Cubist shall have the right, at Cubist’s sole discretion, to
withdraw, without penalty or causing a breach, any or all Purchase Orders which
have been submitted at the time of such []*.”


 


6.               Section 5.1 shall be
amended such that the fourth sentence of Section 5.1 shall be deleted in
its entirety and replaced with the following sentence: “OsoBio will use []* to
provide Cubist with an accurate and complete Batch Record and Certificate of
Analysis for each Batch Processed within []* after OsoBio’s completion of
Processing.”


 


7.               Section 5.1 shall be
amended such that the following language shall be added to the end of the
eighth sentence of Section 5.1: “or other disposition of a Batch if such
Batch is rejected by Cubist.”


 






*Confidential Treatment Requested.  Omitted portions filed with the Securities
and Exchange Commission (the “Commission”).


 

















 


8.     Section 6.2
shall be deleted in its entirety and replaced with the following language:


 


Section 6.2:  Storage of Product.


 


(a)          OsoBio will store Product in accordance with storage
specifications provided by Cubist. 
OsoBio will store finished Product for up to []* following finished
Product release or Batch rejection (“Disposition”) by Cubist.  If Cubist fails to take delivery of any Product
by the last day of such []* period (the “Storage Date”), OsoBio shall
store such Product as Cubist’s agent, and Cubist shall be invoiced on the first
day of each month following the Storage Date for reasonable administration and
storage costs, in accordance with the schedule below, for the period commencing
on the Storage Date and ending on the date of Cubist’s (or Cubist’s carrier’s)
pick up of Product, as requested and scheduled by Cubist.


 


Storage Charges


 


No
charge for the first []*
following Disposition of a Batch by Cubist. OsoBio shall charge the
following storage fees for Product stored beyond []* following Disposition of
the batch by Cubist:


 


·      Room temperature
storage: $[]* per pallet* per month


·      Refrigerated
Storage: $[]* per pallet* per month


·      Frozen storage:
$[]* per pallet* per month


*Or portion of one (1) pallet


 


(b)         For all such stored Product, Cubist agrees that: (1) Cubist
has made a fixed commitment to purchase such Product, (2) title and risk
of loss for such Product passes to Cubist on the Storage Date, (3) such
Product shall be on a bill and hold basis for legitimate business purposes, and
(4) Cubist will be responsible for any decrease in market value of such
Product that relates to factors and circumstances outside of OsoBio’s
control.  Within five (5) days
following a written request from OsoBio, Cubist shall provide OsoBio with a
letter confirming items (1) through (4) of this Section for all
stored Product.


 


(c)          For the avoidance of doubt, OsoBio shall in no
instance destroy or otherwise dispose of a Batch, whether released or rejected,
other than in accordance with Cubist’s written instructions.


 


9.               Section 9.1 shall be
amended such that the first clause (up until the first semicolon) of the first
sentence of Section 9.1 shall be deleted in its entirety and replaced with
the following sentence: “OsoBio will use []* to provide Cubist with properly
completed copies of Batch records prepared in accordance with the
Specifications within []* following completion of Processing of each batch;”.


 


10.         Section 16.1 of the
Agreement is hereby amended by adding “[]*” within the parenthetical,
immediately before “[].”


 






*Confidential Treatment Requested.  Omitted portions filed with the Commission.


 


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11.         Article 17
shall be amended such that the contact information for notices to OsoBio shall
read as follows:


 


If to OsoBio:


OSO BioPharmaceuticals Manufacturing, LLC


4401 Alexander Blvd. NE


Albuquerque,
NM  87107


Attention: 
Vice President, Business Development


 


With Copy to:


OSO BioPharmaceuticals Manufacturing, LLC


4401 Alexander Blvd. NE


Albuquerque, NM 
87107


Attention: 
Contracts Manager


 


12.         Exhibit A of the
Agreement is deleted in its entirety and replaced with the revised Exhibit A
attached to this Amendment No. 3.


 


Any
conflict between the provision of this Amendment and the Agreement shall be
resolved in favor of this Amendment and capitalized terms used in this
Amendment No. 3 shall have the same meaning given to them in the
Agreement, unless otherwise defined in this Amendment No. 3.


 


This
Amendment No. 3 shall be effective January 1, 2010 (“Amendment No. 3
Effective Date”).  Unless otherwise
expressly set for the herein, all other terms and conditions set forth in the
Agreement shall remain in full force and effect.  Following the Amendment No. 3 Effective
Date, the term “Agreement” shall be deemed a reference to the Agreement as amended
by this Amendment No. 3.


 


This
Amendment No. 3 may be signed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute but one and
the same instrument, and such counterpart


 


	
  CUBIST PHARMACEUTICALS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Lindon M. Fellows

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Lindon
  M. Fellows

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Senior
  Vice President, Technical Operations

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  OSO BIOPHARMACEUTICALS, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Milton Boyer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Milton
  Boyer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice
  President — Business Development

  	
   

  	
   

  



 






*Confidential Treatment Requested.  Omitted portions filed with the Commission.


 


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EXHIBIT A


 


[]*


 






*Confidential Treatment Requested.  Omitted portions filed with the Commission.


 


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EXHIBIT B-1


 


[]*


 






*Confidential Treatment Requested.  Omitted portions filed with the Commission.


 


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