exv10w1






Exhibit
10.1




SECOND AMENDMENT

TO THE AMENDED AND RESTATED

STRATEGIC ALLIANCE AGREEMENT

BY AND BETWEEN
 PENWEST PHARMACEUTICALS CO

AND
 ENDO PHARMACEUTICALS INC



This Second Amendment (this “Amendment”) to the Amended and Restated Strategic Alliance Agreement
dated as of April 2, 2002, and as amended by the Amendment Agreement dated January 7, 2007 (the
“Agreement”) is entered into by and between Penwest Pharmaceuticals Co (“Penwest”) and Endo
Pharmaceuticals Inc. (“Endo”), effective as of July 14, 2008.



Endo and Penwest agree as follows:



1.
Section 1.23 of the Definitions Exhibit to the Agreement is
amended by deleting Section 1.23 in its entirety and inserting the following new Section 1.23 in its place:





1.23 “Formulated TIMERx Price” shall mean Penwest’s contract manufacturing cost (or, if made
internally, its variable costs plus directly allocable (a) fixed and (b) manufacturing
overhead costs relating to the manufacture or acquisition) of the Formulated TIMERx to be
provided to Endo or its Affiliates or sublicensees hereunder, as shall be determined and
adjusted no more often than annually plus the costs directly relating to the quality
control testing referred to in Section 7.2 hereof plus the allocable indirect costs
and fees referred to in the last two sentences of this Section 1.23; provided,
however, that any amounts paid or payable by Penwest for third-party royalties (or for
materials acquisition costs to the extent attributable to third-party intellectual properties
and essentially equivalent to royalties) which are the responsibility of Penwest under
Sections 9.5.1 or 9.5.2 hereof shall not be counted as part of
the Formulated TIMERx Price.
Costs and fees related to and arising out of patent enforcement litigation ensuing from a
third party certifying against a Penwest Patent or a patent covering Penwest Product
Technology held by Penwest and listed in the FDA’s “Orange
Book”-may (to the extent not
reflected in the Certification Budget and the reconciliations under
Section 3.7 hereof) be
included, at the option of Penwest and without prejudice to its other rights, as part of the
allocable indirect costs of the manufacture or acquisition of any Formulated TIMERx provided
for use in the Product; to the extent that such costs and fees are not reimbursed by Endo to
Penwest pursuant to Section 11.7. If any patent applications are filed or prosecuted by
Penwest on Penwest Product Technology, as provided in Section 6.2 hereof, the reasonable
costs thereof, and of the maintenance of any patents





 









 









that issue therefrom, shall (to the extent not reflected in the Certification Budget and
the reconciliations under Section 3.7 hereof) be part of the
allocable indirect costs of
the manufacture or acquisition of any Formulated TIMERx provided for use in the Product
that would be disclosed in whole or in part in such patent or patent application.


2.
Section 11.7 of the Agreement is amended by deleting
Section 11.7 in its entirety and
inserting the following new Section 11.7 in its place:





Section 11.7 Patent Enforcement Litigation. Notwithstanding the foregoing, in the event that
the parties are notified of (1) the filing by a third party of an abbreviated new drug
application (“ANDA”) with the FDA (or the FDA’s acceptance of an ANDA) relating to the
Product or (2) a third party certifying against the patents covering the Product that are
listed in the FDA’s “Orange Book”, then the parties shall cooperate fully with respect to
any ensuing patent enforcement litigation. The costs and fees incurred by or on behalf of
Penwest relating to or in connection with such matters shall be paid by Endo. Payments for
such costs and fees incurred on or after July 1, 2008 shall be made to Penwest or directly
to the thirty party to which such costs and fees are owed within thirty (30) days after
presentation of each invoice to Endo setting forth such costs and fees.


3. Endo shall reimburse Penwest in a single lump sum of $469,567.00 in full satisfaction of
costs and fees incurred by or on behalf of Penwest through April 30, 2008 in connection with the
matters contemplated by Section 11.7 of the Agreement, which amount shall be paid within ten (10)
days of the date of this Amendment. Endo shall reimburse Penwest for cost and fees incurred by or
on behalf of Penwest between May 1, 2008 and June 30, 2008 in connection with the matters
contemplated by Section 11.7 of the Agreement, which amount shall be paid within 45 days of the
presentation of each invoice to Endo.



4. All other terms and conditions of the Agreement as previously amended are
affirmed and remain in full force and effect. The parties agree that all references in the
Agreement to “this Agreement” shall deem to include the provisions of this Amendment.



5. This Amendment shall be governed by, construed and enforced in accordance
with, the laws of the State of New York without regards to its conflict of laws rules.




* * *




 









 







IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed by their duly authorized
representatives.




	 	 	 	 	 	 	 	 	 	 	 
	Endo Pharmaceuticals Inc.	 	 	 	Penwest Pharmaceuticals Co.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	Daniel
J. Carbery	 	 	 	By:	 	Benjamin L. Palleiko	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	

	 	Title:       Sr. VP, Operation
	 	 	 	 	 	Title: Sr. VP, Corporate
Development	 	 
	

	 	Date: July 16, 2008
	 	 	 	 	 	          and Chief Financial Officer	 	 
	

	 	 	 	 	 	 	 	Date: July 16, 2008