EXHIBIT
10.5


 


CONFIDENTIAL TREATMENT

MANUFACTURING AND SUPPLY AGREEMENT


 


 


 


This Manufacturing and
Supply Agreement (AGREEMENT) is entered into as of June 22, 2000 (EFFECTIVE
DATE) by and between:


 


DSM Capua S.p.A., an
Italian company with registered address Strada Statale Appia, 46-48, Capua,
Italy (DSM)


 


and


 


Cubist Pharmaceuticals,
Inc., a Delaware corporation with registered address 24 Emily Street,
Cambridge, MA 02139, USA (CUBIST).


 


BACKGROUND


 


Cubist is a drug company
focused on the discovery, development and commercialization of novel drugs to
treat infections. Cubist has commenced Phase III clinical trials of its lead
product, Daptomycin, an agent with potential bactericidal activity against life
threatening infections. DSM has expertise in the manufacture of drugs on a
contract basis. DSM is willing to manufacture Daptomycin for Cubist and to sell
clinical and commercial quantities of Daptomycin to Cubist. This Agreement sets
forth the terms under which DSM will manufacture and supply Daptomycin exclusively
to Cubist.


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, DSM and Cubist agree as follows:


 


1.             DEFINITIONS.


 


Capitalized terms used
in this Agreement and not otherwise defined herein shall have the meaning set
forth below.


 


                                                AFFILIATE
means with respect to either party, any Person that, directly or indirectly, is
controlled by, controls or is under common control with such party. For
purposes of this Agreement, CONTROL means, with respect to any Person, the
direct or indirect ownership of more than fifty percent (50%) of the voting or
income interest in such Person or the possession otherwise, directly or
indirectly, of the power to direct the management or policies of such Person.


 


 


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                                                FOB means “Free
on Board”, as that expression is defined in LNCOTERMS 2000, LCIA Publishing
S.A.


 


                                                CONFIDENTIAL
INFORMATION means all data, specifications, training and any other know-how
related to the design, development, manufacture, or performance of the Product,
as well as all other information and data provided by either party to the other
party pursuant to this Agreement in written or other tangible medium and marked
as confidential, or if disclosed orally or displayed, confirmed in writing
within thirty (30) days after disclosure and marked as confidential, except any
portion thereof which: (i) is known to the receiving party, as evidenced by the
receiving party’s written records, before receipt thereof under this Agreement;
(ii) is disclosed to the receiving party by a third person who is under no
obligation of confidentiality to the disclosing party hereunder with respect to
such information and who otherwise has a right to make such disclosure; (iii)
is or becomes generally known in the trade through no fault of the receiving
party; or (iv) is independently developed by the receiving party, as evidenced
by the receiving party’s written records, without access to such information.


 


                                                CONTRACT
YEAR means each twelve (12) month period during the term of this Agreement
beginning on the date of the commencement of commercial production of
Daptomycin in the Facility. Preliminary activities related to Facility
development, validation and product registration which occur in the period
prior to the first Contract Year will be referred to as Year Zero.


 


                                                CUBIST
TECHNOLOGY means individually and collectively the intellectual property rights
embodied or disclosed in (a)(i) the patent application(s) and patents listed in
Exhibit A; (ii) any patent application filed as a continuation, division, or
continuation-in-part of the application(s) described in clause (a)(i), patents
issuing therefrom and reissues, reexaminations and extensions of such patents; (iii)
any foreign counterpart to the application(s) described in clauses (a)(i)-(ii)
(including divisions, continuations, confirmations, additions, renewals or
continuations-in-part of such patent applications), patents issuing therefrom
and extensions thereof; and (iv) any additional patent applications and patents
relating to new processes, compositions, formulations or methods of using
Daptomycin which shall be filed by Cubist or to which Cubist shall obtain
rights and which shall be added to Exhibit A from time to time; and (b) all other
Confidential Information, discoveries, inventions, know-how, techniques,


 


* Confidential treatment
requested: Material has been omitted and filed with the Commission.


 


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                                                methodologies,
modifications, improvements, works of authorship, designs and data (whether or
not protectable under patent, copyright, trade secrecy or similar laws) that
are conceived, discovered, developed, created or reduced to practice or
tangible medium of expression by consultants (other than those consultants that
are also affiliated with DSM in connection with this Agreement) or employees of
Cubist at any time prior to the Effective Date, concurrent with or related to
this Agreement.


 


                                                DAPTOMYCIN,
DAPTOMYCIN PRODUCT OR PRODUCT means Daptomycin (the compound [ ]* whose
structure is detailed in Exhibit B) API bulk drug substance manufactured in
accordance with Exhibit C.


 


                                                EMEA means
the European Medicines Evaluation Agency or any successor entity thereto.


 


                                                FDA means
the United States Food and Drug Administration or any successor entity thereto.


 


                                                FACILITY
means the GMP Drug Production facility in Capua, Italy to be equipped by DSM
for the manufacture of Product pursuant to the provisions of Section 2.


 


                                                FORCE
MAJEURE means any event beyond the reasonable control of the parties,
including, without limitation, fire, flood, riots, strikes, epidemics, war
(declared or undeclared and including the continuance, expansion or new
outbreak of any war or conflict now in existence), embargoes and governmental
actions or decrees.


 


                                                NDA means a
new drug application filed with the FDA to obtain marketing approval for
Product in the United States.


 


                                                PERSON means
any individual, corporation, association, partnership (general or limited),
joint venture, trust, estate, limited liability company, limited liability
partnership, unincorporated organization, government (or any agency or
political subdivision thereof) or other legal entity or organization.


 


                                                PROCESS
means the commercial process employing the anionic exchange column steps and
final endotoxin removal step developed by Cubist for the production of Product
attached to this Agreement as Exhibit C.


 


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                                                PRODUCT
APPROVALS means, those regulatory approvals required for manufacture,
importation promotion, pricing, marketing and sale of the Product in any
particular country.


 


                                                SPECIFICATIONS
means the specifications for the Product attached to this Agreement as Exhibit
D. Such specifications may be modified from time to time to reflect
improvements (if any) by mutual agreement of the parties. Copies of such
modified Specifications shall be maintained by both parties, and shall become a
part of this Agreement as if incorporated herein.


 


                                                OTHER
DEFINED TERMS. Each of the following terms have the meanings ascribed to it in
the section set forth opposite such term


 


	
  DSM

  	
   

  	
  Recitals

  
	
  AGREEMENT

  	
   

  	
  Recitals

  
	
  CUBIST

  	
   

  	
  Recitals

  
	
  EFFECTIVE
  DATE

  	
   

  	
  Recitals

  
	
  FDA
  ACT

  	
   

  	
  Section
  6.3

  
	
  GMPS

  	
   

  	
  Section
  4.3

  
	
  IMPLEMENTATION
  DATE

  	
   

  	
  Section
  3.3

  
	
  INDEMNIFYING
  PARTY

  	
   

  	
  Section
  7.2/7.3

  
	
  LNDEMNITEE(S)

  	
   

  	
  Section
  7.2/7.3

  
	
  LCIA

  	
   

  	
  Section
  9.2

  
	
  LOSSES

  	
   

  	
  Section
  7.2

  
	
  REPRESENTATIVE

  	
   

  	
  Section
  9.1

  
	
  RMA

  	
   

  	
  Section
  3.11 sub b

  
	
  SUPPLY
  FORECAST 

  	
   

  	
  Section
  3.3

  
	
  TARGET
  DATE

  	
   

  	
  Section
  2.1

  



 


2.             CONSTRUCTION OF PRODUCTION FACILITY


2.1                                 FACILITY
CONSTRUCTION. By [ ]* (the Target Date), DSM will (i) carry out the
modifications to the Facility and equip the Facility for the manufacture of
Daptomycin and (ii) qualify the Facility in accordance with the qualification
requirements set forth in Exhibit E.


 


2.2                                 DATE
ADJUSTMENTS. If due to any other reason than the late-, non- or misperformance
by DSM of its obligations hereunder except for reasons of force majeure, the
relevant dates shall be adjusted day-for-day.


 


2.3                                 INSPECTION;
CHANGE PROCEDURES. Cubist will have the right to inspect the progress of work
at the Facility at all reasonable times during the equipment and qualification
process and to confer with 


 


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                                                DSM to
confirm compliance with DSM’s obligations under this Agreement. In addition,
Cubist will be consulted concerning any matters that could cause a delay in
completion of the Facility. DSM acknowledges that time is of the essence for
this Agreement, and that significant delays in the completion of the Facility
caused by DSM’s non-, late or misperformance of its obligations hereunder may
cause Cubist significant harm. Cubist and DSM will, from time to time during
the construction process, confer regarding the quality standards for materials
and layout of operations within the Facility; every reasonable effort
consistent with prudent business practice will be made to minimize the capital
investment without compromising quality or efficiency of Product production
operations. No changes to the Exhibits D and E or the quality standards for
materials and layout will be made without written consent of both parties.


 


3.             PURCHASE OF PRODUCTS AND TERMS OF
SALE.


3.1                                 EXCLUSIVITY.
DSM agrees to manufacture and supply Daptomycin exclusively for Cubist for the
lifetime of this Agreement and the lifetime of any subsequent extensions,
renewals or amendments to this Agreement.


 


3.2                                 PURCHASE
COMMITMENT. During the five Contract Years following the date of the
commencement of commercial production of Daptomycin in the Facility (2002 until
2006), Cubist will purchase an aggregate minimum quantity of [ ]* of Product
from DSM as follows: (a) Contract Year 1 (2002) [ ]*; (b) Contract Year 2
(2003) [ ]*; (c) Contract Year 3 (2004) [ ]*; (d) Contract Year 4 (2005) [ ]*;
and (e) Contract Year 5 (2006) [ ]*. At the end of Contract Year 4 Cubist [ ]*.
During the period prior to the date of the commencement of commercial
production of Daptomycin in the Facility, Cubist shall purchase [ ]*
consistency batches of Product for a price equal to [ ].* The [ ]* consistency batches
shall be considered part of the aggregate minimum purchase of Contract Year One.


 


3.3                                 PURCHASE
FORECASTS. At least [ ]* prior to the anticipated date of the modification of
the Facility (i.e. [ ]* and thereafter, on a [ ]* basis at least [ ]* prior to
the first day of each calendar quarter, Cubist will provide DSM with a
non-binding rolling forecast of its orders of the Product with respect to the
next [ ]* including expected delivery dates (SUPPLY FORECAST). The forecasts
for the first two quarters of any four quarter period shall represent binding
purchase obligations of Cubist with respect to [ ]* of the Product forecast in
the previous quarter’s Supply Forecast. In no event shall a Supply Forecast
exceed the optimal production capacity of the Facility for the period in question.


 


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3.4                                 PRODUCT
ORDERS. Orders shall be placed by written purchase order and submitted by mail
or facsimile, or by other means agreed upon by the parties. No order shall be
binding upon DSM until the same shall have been accepted in writing by DSM. DSM
shall accept or reject all orders within [ ]* following receipt of same and
shall deliver all orders that are accepted in accordance with clauses 3.2, 3.3
and 3.5. It is agreed by the parties that the standard printed terms of
purchase/sale of Cubist and DSM, shall not be applicable. DSM shall deliver
against each such order in accordance with Section 3.5.


 


3.5                                 OBLIGATION
TO SUPPLY. (a) DSM shall use best efforts to accept and fill each order for
Product submitted by Cubist; including orders that exceed the Supply Forecast
for any quarter by [ ]* of the amount in the Supply Forecast for such quarter
delivered to DSM [ ]* days prior to such quarter. DSM shall not be in breach of
this Section 3.5 if DSM’s failure to supply Product is due to a Force Majeure
event.


 


(b)
If DSM is unable to supply the Product ordered by Cubist in accordance with the
terms of this Agreement, then DSM shall [ ]* to remedy the problem or secure an
alternative source of supply within a reasonable time at no cost to Cubist, and
any such alternative source of supply shall be on terms substantially identical
with the terms of this Agreement. If DSM is unable to remedy the problem or
secure an alternative source of supply within [ ]* days after its initial
failure to supply, then DSM shall consult with Cubist and the parties shall work
together to remedy the problem. In such an event, Cubist may at its option, and
upon notice to DSM: (i) draw down units of Product from the back-up supply
established pursuant to Section 3.6 and (ii) in the event that the parties
agree that Cubist will exhaust such back-up supply before DSM is able to resume
supplying Product in sufficient volume, take measures to obtain the Product
through a third party and such purchases shall be counted against the minimum
purchase obligations specified in Section 3.2. Cubist may continue to purchase Product
committed to DSM from third party suppliers until DSM notifies Cubist that it
is again able to supply Cubist’s needs and substantiates such claim to Cubist’s
reasonable satisfaction. Thereafter, Cubist shall commence purchasing Product
from DSM in accordance with the obligations specified in Section 3.2; provided
that: (i) Cubist shall not be required to cancel binding purchase orders with
any third party and (ii) DSM shall pay all cancellation costs incurred by
Cubist in switching its purchases to DSM. 


 


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3.6                                 BACK-UP
INVENTORY. In order to increase the flexibility and to minimize adverse
consequences from any interruption in DSM’s ability to supply Cubist with
Product, DSM shall at all times maintain a back-up supply of raw material for
production of two (2) batches of Product to support Cubist’s forecasted
production needs following any failure of DSM to timely supply Cubist with
Product that conforms to the Specifications. The back-up inventory of raw
materials will be DSM’s property, and no sale or transfer or ownership of such
raw materials in inventory is contemplated herewith. The parties shall mutually
agree upon the exact size of such back-up supply of raw materials. DSM will
promptly notify Cubist if the back-up inventory of raw material falls below the
agreed level, including the reasons for such depletion, and shall restock the back-up
supply as soon as practicable so that the agreed back-up supply is maintained
at all times. The parties shall adjust the size of the back-up supply from time
to time as mutually agreed and as warranted by commercially prudent risk
management practices.


 


3.7                                 CHANGES. DSM
shall not change the specified raw materials vendors, raw materials or the
process without the consent of Cubist; provided that DSM may implement changes
in the process in accordance with Section 5.3(c).


 


3.8                                 PRODUCT
PRICES. (a) Cubist’s price for the Product shall equal [ ]*.


 


(b)
Except as otherwise agreed by the parties or as provided in this Section 3.8,
DSM may not increase the price charged for the Product 


 


(c)
If Cubist’s aggregate purchases of Product from DSM in Contract Year 1 (2002),
Contract Year 2 (2003), and Contract Year 3 (2004) cumulatively exceed [ ]* and
Cubist’s binding orders for Product for Contract Year 4 (2005) and Contract
Year 5 (2006) exceed an aggregate volume of [ ]*, the parties will negotiate in
good faith a reasonable reduction of the price [ ]* that will apply to
purchases during Contract Year 4 and Contract Year 5. In case the binding
orders for Product during Contract Year 4 and 5 have, for whatever reason, not been
supplied and taken, the price per kilogram will be adjusted accordingly retroactively.


 


3.9                                 PAYMENT.
Cubist shall pay for Product within [ ]* days after the date of DSM’s invoice
with respect to Product. Except for income taxes that may be assessed against
DSM, all taxes and charges that may be imposed by any government taxing authority
on the amounts paid by Cubist to DSM under this Agreement shall be paid by [
]*. [ ]* shall 


 


 


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                                                make
payments by wire transfer to a bank identified by [ ]* using the procedure
specified in Section 10.6. All payments shall be stated and paid in United
States Dollars.


 


3.10                           DELIVERY.
DSM shall arrange for shipment and invoicing to Cubist of the Product ordered
by Cubist via common carrier, FOB Naples, Italy. In case, upon request of
Cubist, a quantity of Product ordered by Cubist is stored by DSM, DSM will be
entitled to prepayment of the invoice value pertaining to the amount of Product
stored. DSM shall be responsible for maintaining the Product under storage
conditions that are mutually agreed by the parties. If DSM maintains the agreed
storage conditions, DSM shall not be liable for any degradation of the Product.
Storing of Product shall not constitute any reason for Cubist to deter or
withhold payment of the relevant invoice(s).


 


3.11                           ACCEPTANCE.
(a) Each shipment of Product from DSM to Cubist shall contain such quality
control certificates as described in Exhibit F to show that the Product is in
conformity with the Product Specifications and Product Approvals. Cubist shall
notify DSM within [ ]* of the receipt of a shipment of the Product of any
nonconformity of the Product to the Product Specifications; provided that with
respect to obvious nonconformities, Cubist will promptly notify DSM. If Cubist fails
to so notify DSM or if Cubist processes the Product (or has it processed by a
third party), it will be deemed to have accepted the Product and to have waived
all claims in this respect.


 


(b)
Cubist shall not be required to pay DSM for any Product which has been property
rejected in accordance with clause 3.11 sub (a). Subject to clause 3.11 sub a,
DSM shall at its expense and at no further cost to Cubist replace any Product
that does not conform to the Product Specifications. Initially samples of any
defective Product shall be returned to DSM using the procedure specified in
this Section 3.11(b). Cubist shall notify DSM in writing of its rejection of
Product under Section 3.11(a), shall provide DSM with a sample of the defective
Product along with a reasonably detailed statement of the claimed defect and
proof of date of purchase and shall request a Return Material Authorization
(RMA) number and shall within thirty (30) days of receipt of such RMA number
return such rejected Product to DSM freight prepaid and properly insured. In
the event DSM determines that the sample of Product is defective and properly
rejected by Cubist, DSM shall issue the RMA and replace such defective Product.
The parties will then in mutual consent decide on how to dispose of the
defective Product in the most favorable manner. DSM shall return to Cubist, freight
prepaid, all replaced Product,


 


 


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along
with reimbursement of the shipment charges for return of the samples of
nonconforming Product. In the event, that DSM determines that the returned
sample of Product is not defective and the parties are unable to resolve such
dispute to their mutual satisfaction within [ ]*, DSM shall submit a sample of
such returned Product to an independent laboratory reasonably acceptable to
Cubist for testing against the Specifications and the test results obtained by
such laboratory shall be final and controlling. The fees and expenses of such
laboratory testing shall be done entirely by the party against whom such
laboratory’s findings are made. In the event the test results indicate that the
Product in question does not conform to the Specifications, DSM shall replace
such Product at no additional cost to Cubist within [ ]* after receipt of such
results if replacement Product stock is available, and in any case as soon as
reasonably possible after receipt of such results.


 


4.             REGULATORY COMPLIANCE SYSTEMS,
CERTIFICATES AND ACCESS


4.1                                 GENERAL. DSM
agrees to manufacture Daptomycin bulk drug substance in accordance with the
Good Manufacturing Practice regulations outlined in USC 21 CFR 211, subparts
A-J, where applicable for the production of active pharmaceutical ingredients.
This will include, at a minimum, the maintenance of a separate, dedicated,
appropriately staffed quality control unit that has the responsibility of
accepting or rejecting incoming components, review of batch records, and
approving or rejecting Daptomycin bulk drug substance; the provision of
adequate laboratory facilities for conducting component testing, in-process and
final bulk drug substance testing; assuring that facility personnel have the
appropriate education, training and experience to perform their designated job
responsibilities; assuring that the manufacturing facilities are appropriately
designed and maintained to ensure that Daptomycin bulk drug substance meets
pre-determined specifications and is free of potential contamination; assuring
that the manufacturing and laboratory equipment is adequate for the production
and testing of Daptomycin bulk drug substance and that the equipment is
appropriately maintained; the preparation and maintenance of batch production
and control records; and having written standard operating procedures (SOP’s)
that are adhered to for the following:


 


                                                a.             Receipt and testing of incoming
components


                                                b.             Operational procedures for
manufacturing including sampling and in-process testing


 


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                                                c.             Handling of deviations during the
manufacturing process


                                                d.             Procedures for analytical methods
which are used for component, in-process and final        product testing


                                                e.             Maintenance of manufacturing
facilities as well as equipment used in the               manufacturing
and laboratory facilities


                                                f.              GMP training of manufacturing and
quality control personnel


 


DSM
shall use reasonable best efforts consistent with prudent business practice in
cooperation with Cubist to (a) obtain all necessary approvals required under
Italian law for the production of the Product in the Facility and (b) maintain
such approvals in effect throughout the term of this Agreement.


 


4.2                                 CERTIFICATES
OF ANALYSIS. DSM shall perform, or cause to be performed, sample tests on each
lot of Product purchased pursuant to this Agreement before delivery to Cubist.
Each test report shall set forth the items tested, specifications and test
results in a certificate of analysis, containing the types of information which
shall have been agreed between the parties for each lot delivered. DSM shall
send or cause to be sent such certificates to Cubist prior to delivery of each lot.
The certificate of analysis will be accompanied by a certified batch
manufacturing record signed by DSM’s quality assurance department.


 


4.3                                 CERTIFICATES
OF MANUFACTURING COMPLIANCE. DSM shall provide or cause to be provided, for
each lot of Product purchased pursuant to this Agreement, a certificate of
manufacturing compliance, containing the types of information which shall have
been agreed between the parties, which will certify that the lot of Product was
manufactured in accordance with the Specifications and the current Good
Manufacturing Practices of the FDA, as the same may be amended from time to
time, including without limitation the requirements listed on Exhibit F (collectively,
GMPS). In the event the FDA or other governmental regulatory agency notifies
DSM that it intends to visit or inspect the Facility, DSM shall immediately
provide notice of such visit or inspection to Cubist and Cubist shall have the
right to participate in such visit or inspection. DSM shall advise Cubist
immediately If an authorized agent of the FDA or other governmental regulatory
agency visits the Facility without prior notice, DSM shall furnish to Cubist the
report by such agency of such visit within [ ]* of DSM’s receipt of such
report. In the event DSM fails to meet the GMPs, as a consequence of the non-,
late- or misperformance of its obligations hereunder except for reasons of
Force Majeure DSM will be responsible, at DSM’s expense, for (a) conducting an
investigation to define the probable


 


 


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                                                causes for
the failure, (b) providing an acceptable GMP investigation report to Cubist for
review and written approval and (c) achieving compliance with GMP.


 


4.4                                 ACCESS TO
FACILITY; CUBIST’S RIGHT TO MONITOR. Cubist shall at all times upon reasonable
notice and during normal business hours have the right to inspect the Facility
to ascertain compliance with GMPs. In addition, Cubist shall have the right to
designate a Cubist employee or an independent consultant to monitor the
production process at the Facility, the expenses of which employee or
consultant would be borne by Cubist.


 


4.5                                 PRODUCT
RECALLS. (a) if (i) any regulatory authority withdraws the approval to sell the
Product in such country or issues a directive or request that the Product be
recalled for product safety reasons relating to the Product; or (ii) any
regulatory authority or court of competent jurisdiction issues a request,
directive or order that the Product be recalled; or (iii) Cubist shall
reasonably determine that the Product should be recalled; the parties shall
take all appropriate corrective actions, and shall cooperate in any
governmental investigations surrounding the recall. In the event that such
recall results from the non-, late- or misperformance by DSM of its obligations
hereunder except for reasons of Force Majeure, DSM shall up to an aggregate
maximum amount of [ ]* be responsible for all expenses of the recall (except
that in the event of a contributory fault of Cubist DSM and Cubist shall share
such expenses accordingly) and DSM shall promptly replace such Product at no
additional cost to Cubist consistent with directions received from the
appropriate governmental authority. In all other cases, Cubist shall be
responsible for the expenses of recall, including the cost of replacement
Product. For the purposes of this Agreement, the expenses of recall shall
include, without limitation, the expenses of notification and destruction or return
of the recalled Product and all other costs incurred in connection with such
recall, but shall not include lost profits of either party.


 


(b)
In the event a regulatory authority orders the withdrawal of Product from any
country, Cubist shall not be obligated to purchase the Product or sell the
Product in such country from the date of such withdrawal and until Cubist is
again authorized to sell Product in such country, and DSM shall not be
obligated to supply the Product to Cubist in such country for such period. If
such a withdrawal decision is final and not appealable, the minimum offtake
obligations pursuant to Section 3.2 will be adjusted accordingly.


 


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5.             CONFIDENTIALITY; PROPRIETARY
RIGHTS.


 


                                                5.1.
PUBLICITY. Except as is necessary for governmental notification purposes
relating to the production, importation, marketing or sale of Product or to
enforce their respective rights under this Agreement, or to a party’s legal or
financial advisors, and except as otherwise agreed to by the parties hereto in
writing, the parties shall (a) keep the material terms of this Agreement
confidential, (b) agree upon the text and the exact timing of an initial public
announcement relating to the transactions contemplated by this Agreement as
soon as possible after the Effective Date (such agreement not to be
unreasonably withheld) and (c) agree on the text and the timing of any
subsequent public announcements regarding this Agreement or the transactions contemplated
herein. Neither party shall use the name of the other party or any director,
officer or employee of the other party or any adaptation thereof in any
advertising, promotional or sales literature or publicity without the prior
written approval of the other party. If this Agreement is required to be filed
by either Party with the Securities and Exchange Commission or another
applicable securities regulatory authority, such party shall not file this
Agreement with the Securities and Exchange Commission without seeking
confidential treatment for any provisions of this Agreement that either party believes
would disclose trade secrets, confidential commercial or financial information
that would impair the value of the contractual rights represented by this
Agreement or provide detailed commercial and financial information to
competitors or third parties. Neither party shall use the name of the other
party or any director, officer or employee of the other party or any adaptation
thereof without the prior written approval of the other party.


 


                                                5.2
CONFIDENTIALITY. It is contemplated that in the course of the performance of
this Agreement each party may, from time to time. disclose Confidential
Information to the other. Each party agrees to take all reasonable steps to
prevent disclosure of Confidential Information of the other party and not to
use any Confidential Information of the other party except for the limited
purposes set forth in this Agreement; provided that no provision of this
Agreement shall be construed to preclude such disclosure of Confidential Information
as may be required by valid court or administrative order, or to the extent
necessary and appropriate to divulge such Confidential Information to obtain
governmental approval for marketing the Product; provided notice of such
disclosure is provided to the other party prior to such disclosure. All
Confidential Information made available hereunder, including copies thereof,
shall be returned or destroyed upon the first to occur of (a) termination of
this Agreement or (b) written request by 


 


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                                                the
discloser, except that each party may retain one (1) complete copy of
Confidential Information for archival purposes to assure compliance with this
Agreement. For the purpose of this Article 5, it is agreed that any direct or
indirect Affiliate of DSM shall not be regarded as a third party.


 


                                                5.3
PROPRIETARY RIGHTS. (a) This Agreement does not convey to DSM any ownership
rights in the Cubist Technology or the Process or the Product (or in any
intellectual property rights embodied in such Process or Product) by
implication, estoppel or otherwise except for the rights expressly granted
under this Agreement. Title to the Cubist Technology and the Process and the
Product (and the intellectual property rights embodied in the Process and the
Product) shall at all times remain vested in Cubist or its licensors.


 


                                                (b) This
Agreement does not convey to Cubist any ownership rights in any existing
materials, tools and methodologies that are proprietary to DSM or to third
parties or in any intellectual property rights embodied in such products,
materials, tools and methodologies by implication, estoppel or otherwise. Title
to all such products, materials, tools and methodologies and the intellectual
property rights embodied in such products, materials, tools and methodologies
shall at all times remain vested in DSM or its licensors.


 


                                                (c) DSM will
manufacture the Product according to the Process but will not develop, modify,
enhance or alter the Process; provided, that in the event and to the extent the
parties undertake any development, modification, enhancement or alteration of
the Process they shall enter into a separate agreement containing mutually
acceptable terms covering such activity, including terms that (i) vest
ownership of any improvements to the process that are specific to the Product
in Cubist and (ii) vest ownership of any improvements in the Process that are
not specific to the Product in DSM.


 


                                                (d) Subject
to the terms and conditions of this Agreement, Cubist hereby grants to DSM, and
DSM hereby accepts, a non-exclusive, royalty-free right and license, excluding
the right to grant sublicenses, to practice the Process and Cubist Technology
in order to make, have made, export and sell Product to Cubist.


 


                                                (e) Each
party agrees that any of its employees, affiliates, consultants who are
designated as inventors agree to execute all assignments, powers of attorney or
other patent documents necessary to vest ownership to the other party as
described in Section 5.3 (c) (i).


 


13





















 


5.4                                 PROPRIETARY
RIGHTS NOTICES. DSM shall mark or have marked all containers or packages of
Product in accordance with the patent marking laws of the jurisdiction in which
such units of Product are manufactured.


 


6.             REPRESENTATIONS AND WARRANTIES.


 


6.1                                 AUTHORIZATION;
ENFORCEABILITY. Each of DSM and Cubist represents and warrants to the other
that: (a) it is a corporation duly organized, validly existing and in good
standing under the laws of its incorporating jurisdiction; (b) it has all
requisite corporate power and authority to enter into this Agreement; (c) it is
duly authorized to execute and deliver this Agreement and to perform its
obligations hereunder and consummate the transactions contemplated hereby; and
(d) this Agreement is a valid and binding obligation of such party enforceable
in accordance with its terms.


 


6.2                                 CONFORMITY;
GMP’S. DSM represents and warrants to Cubist that all Product supplied to
Cubist hereunder shall, at the time of delivery: (a) conform to the
Specifications; and (b) be manufactured, labeled, packaged and tested (while in
the possession of, stored by or control of DSM) in accordance with the
applicable GMP’s, and the applicable laws and the regulations in the United
States and the EU relating to the manufacture and testing of the Product as
defined in Exhibit F to this Agreement. THE FOREGOING WARRANTY IS THE SOLE AND
EXCLUSIVE WARRANTY GIVEN BY DSM WITH RESPECT TO THE DAPTOMYCIN PRODUCT, AND DSM
GIVES AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING UNDER TRADE USAGE OR CUSTOM
OR ANY EXPRESS OR IMPLIED WARRANTIES OF PATENT VALIDITY OR FREEDOM OF OR FROM
PATENT INFRINGEMENT.


 


6.3                                 COMPLIANCE
WITH FDA. DSM represents and warrants to Cubist that (a) all Product supplied
to Cubist hereunder shall at the time of such delivery, not be adulterated
within the meaning of the Federal Food, Drug and Cosmetic Act of 1941, as
amended (FDA ACT), as such FDA Act is effective at the time of delivery, and
will not be an article which may not, under the provisions of the FDA Act, be
introduced into interstate commerce.


 


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6.4                                 FDA
DEBARMENT CERTIFICATION. DSM warrants that it shall not knowingly, after due
inquiry, employ, contract with or retain any person directly or indirectly to
perform services under this Agreement, if such person is debarred by the FDA
under 21 USC 335a(k) (Section 306, Federal Food, Drug and Cosmetic Act). Upon
written request from Cubist (including a request made on it’s behalf by Cubist’s
agent), DSM shall, within [ ]*, provide written confirmation that it has
complied with the foregoing obligation.


 


6.5                                 EXCLUSIVE
REMEDY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7 (WITH RESPECT TO THIRD PARTY
CLAIMS), IN THE EVENT ANY PRODUCT PURCHASED BY CUBIST FROM DSM FAILS TO CONFORM
TO THE WARRANTY SET FORTH IN SECTION 6.2, DSM’S SOLE AND EXCLUSIVE LIABILITY
AND CUBIST’S SOLE AND EXCLUSIVE REMEDY SHALL BE, [ ]*, PROVIDED THAT CUBIST
NOTIFIES DSM OF SUCH NONCONFORMITY AND RETURNS A SAMPLE OF THE PRODUCT AND THE
PRODUCT IN ACCORDANCE WITH SECTION 3.11 (A) AND (B).


 


7.             RISK ALLOCATION


7.1                                 LIMITATION
OF LIABILITY. EXCEPT FOR INFRINGEMENT OF CUBIST’S INTELLECTUAL PROPERTY RIGHTS
OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5.1 AND EXCEPT AS
OTHERWISE PROVIDED IN SECTION 7.2 WITH RESPECT TO THIRD PARTY CLAIMS, DSM SHALL
NOT BE LIABLE TO CUBIST FOR LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED,
UNDER ANY THEORY OF LIABILITY. THE AGGREGATE LIABILITY OF DSM FOR DIRECT
DAMAGES OF CUBIST OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE LIMITED TO THE INVOICE VALUE OF THE PRODUCT WITH RESPECT TO WHICH A
CLAIM PERTAINS.


 


7.2                                 DSM
INDEMNIFICATION. Subject to the provisions of Section 7.4 [ ]*, DSM (as
INDEMNIFYING PARTY) shall solely defend, indemnify and hold harmless Cubist,
its subsidiaries, parent corporations, Affiliates, officers, directors,
independent contractors, partners, shareholders, employees, agents, successors
and assigns (each, as an INDEMNITEE) from and against any claim, suit, demand,
loss, damage, expense (including reasonable attorney’s fees of Indemnitee(s)
and those that 


 


 


15





















 


                                                may be
asserted by a third party) or liability (collectively, LOSSES) relating to
personal injuries and/or property damages to the extent arising from Product
Liability legislation. The foregoing Indemnification action shall not apply in
the event and to the extent that such Losses arose as a result of any
Indemnitee’s negligence, intentional misconduct or breach of this Agreement.


 


7.3                                 CUBIST
INDEMNIFICATION. Subject to the provisions of Section 7.4, Cubist (as
INDEMNIFYING PARTY) shall defend, indemnify and hold harmless DSM, its
subsidiaries, parent corporations, Affiliates, officers, directors, independent
contractors, partners, shareholders, employees, agents, successors and assigns
(each, as an INDEMNITEE) from and against any Losses arising from or related to
(a) the negligence or willful misconduct of Cubist, (b) the use, sale or
processing of the Product by Cubist, to the extent not attributable to DSM and
(c) any allegation that the Process or Product infringes any intellectual property
right of any third party, unless caused by DSM’s unauthorized use or
modification of the Process or Product.


 


7.4                                 PROCEDURE.
To receive the benefit of indemnification under Sections 7.2 and 7.3, the
Indemnitee must (a) promptly notify the Indemnifying Party in writing of a
claim or suit (such notice to include a description of such claim or suit and a
copy of such claim or process and all legal pleadings in connection therewith);
(b) provide reasonable cooperation (at the Indemnifying Party’s expense) in the
defense and settlement of the claim or suit; and (c) tender to the Indemnifying
Party (and its insurer) full authority to defend or settle the claim or suit.
The Indemnifying Party shall have no obligation to indemnify Indemnitee in connection
with any settlement made without the Indemnifying Party’s written consent.
Failure to comply with the provisions of Section 7.4(a)-(c) shall relieve the
Indemnifying Party of its indemnification obligations; provided, that failure
to give notice in accordance with Section 7.4(a) shall not relieve the
Indemnifying Party of its indemnification obligations, except where, and solely
to the extent that, such failure actually and materially prejudices the rights
the Indemnifying Party. Notwithstanding the provisions of Section 7.4(b)-(c):
(i) Indemnitee shall have the right to retain its own counsel, with the fees
and expenses to be paid by the Indemnifying Party, if representation of
Indemnitee by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such Indemnitee
and any other party represented by such counsel in such proceedings; and (a) if
an Indemnitee determines that there is a reasonable probability that a claim
may materially and adversely affect it, other than as a result of  


 


16





















 


 


                                                money
payments required to be reimbursed by the Indemnifying Party under this Section
7, the Indemnitee shall have the right to defend, compromise or settle such
claim or suit, provided that such settlement or compromise shall not, unless
consented to in writing by the Indemnifying Party, be relevant as to the
liability of the Indemnifying Party to Indemnitee. 


 


7.5                                 INSURANCE.
(a) DSM shall cause to purchase and maintain in force during the term of this
Agreement, at its expense, premises liability insurance coverage described in
Exhibit G hereto. Certificates of such insurance shall be provided to Cubist
upon the execution of this Agreement.


 


                                                (b) Each
party shall purchase and maintain insurance or self-insurance adequate to cover
its obligations hereunder and which are consistent with normal business
practices of prudent companies similarly situated at all times during which any
Product is being clinically tested with human subjects or commercially
distributed or sold. It is understood that such insurance shall not be
construed to create a limit of either party’s liability.


 


                                                (c) Each
party shall provide the other with written evidence of the insurance required
under Sections 7.5(a) and 7.5(b) (or financial information that describes the
amounts available under any self-insurance facility) upon request. Each party
shall provide the other with written notice at least fifteen (15) days prior to
the cancellation, non-renewal or material change in such insurance or self-insurance
which materially adversely affects the rights of the other party hereunder.


 


8.             TERM AND TERMINATION.


8.1                                 TERM. This
Agreement shall take effect at the Effective Date and shall remain in effect
unto the end of the fifth Contract Year, unless sooner terminated in accordance
with Section 8 or extended in accordance with this Section 8.1. Thereafter,
this Agreement shall automatically renew for consecutive two-year terms, unless
and until terminated by either party by a six month prior written notice of
termination to the other party taking effect at the end of the initial term or
any extension thereof. All applicable terms and conditions of this Agreement
shall remain in effect during such extension term, unless expressly amended by
the parties.


 


8.2                                 TERMINATION.
(a) Either party may terminate this Agreement at any time: (i) upon [ ]* notice
to the other party in the event that the other 


 


17





















 


                                                party shall
have breached any of its material obligations hereunder and shall not have
cured such default prior to the expiration of the [ ]* period; (ii) upon notice
to the other party in the event that a Force Majeure condition has prevented
performance by the other party for more than [ ]*; (iii) upon notice to the
other party in the event that any bankruptcy, insolvency or receivership
proceeding or the like (including out-of-court arrangements involving a party
that cannot pay its debts as they mature) is commenced by or against the other
party unless, in the case of an involuntary proceeding, it is dismissed within
[ ]*.


 


                                                (b) Cubist
may terminate this Agreement at any time, upon [ ]* notice to DSM, if Cubist
finally and irrevocably terminates the manufacture and sale of the Product
(both directly and indirectly). Cubist may also terminate this Agreement in the
event that the FDA refuses to approve the Product. In this event the parties
will reasonably agree upon the disposition of any ongoing orders for Product
and Product which is currently work in progress.


 


                                                (c) The parties
may also terminate this Agreement at any time upon mutual written agreement of
the parties.


 


8.3                                 EFFECT OF
TERMINATION. Upon any termination (including expiration) of this Agreement: (i)
each party will return to the other party or certify in writing to the other
party that it has destroyed all documents and other tangible items it or its
employees or agents have received or created pursuant to this Agreement
pertaining, referring or relating to the Confidential Information of the other
party, except that each party may retain one (1) complete copy of Confidential Information
for archival purposes to assure compliance with this Agreement; and


 


                                                (ii) DSM
shall promptly notify Cubist of the quantity of Product in inventory and Cubist
shall have the obligation to purchase such inventory of Product in accordance
with the provisions of Sections 3.4-3.5 and subject to Sections 3.10-3.11;
provided, that Cubist shall not be obligated to purchase any more than the
quantity of Product specified in Cubist’s then most recent quarterly forecast
for the following four quarters unless the parties had agreed to a larger inventory,
in which case such inventory will be purchased and taken in its entirety by
Cubist. DSM shall also promptly notify Cubist of the quantity of raw materials
in inventory and Cubist shall have the obligation to either reimburse DSM for
the purchase price and inventory costs of DSM relating to such raw materials or
to have DSM manufacture Product thereof and pay the applicable purchase price;


 


18





















 


                                                provided,
that Cubist shall not be obligated to reimburse or purchase any more than the
quantity of raw materials in inventory agreed upon by the parties.


 


                                                (b)
Termination of this Agreement shall not affect rights and obligations of either
party that may have accrued prior to the effective date of termination or any
obligation specifically stated to survive termination. To that extent, all
outstanding payments due by Cubist to DSM, will become payable at once. In
particular the provisions of Sections 1, 4.5, 5.1-5.4, 6-9 and 10 shall survive
any expiration or termination of this Agreement. Neither party shall be entitled
to damages resulting from the termination of this Agreement in accordance with
this Section 8.


 


9.                                       DISPUTE
RESOLUTION.


9.1                                 DESIGNATED
CONTACTS. (a) Each party will designate an individual (REPRESENTATIVE) who will
have the authority to represent such party in all matters concerning the
transactions contemplated by this Agreement. All communications should be
addressed to the designated Representative. The initial Cubist Representative
will be [ ]*. The initial DSM Representative will be [ ]*. 


 


                                                (b) In the
event that any dispute arises relating to this Agreement, the Representatives
shall promptly meet and attempt to resolve same through good faith discussions.
If the Representatives are unable to resolve any dispute to their mutual
satisfaction within [ ]* after they commence discussions regarding same, and do
not agree to extend the time for resolution of the issue at the end of their
meeting, then either party may initiate alternative dispute resolution in
accordance with Section 9.2.


 


9.2                                 ARBITRATION.
(a) Except in the case of a breach of Section 5, any claim, dispute, or
controversy arising out of or relating to this Agreement that is not resolved
in accordance with the provisions of Section 9.1 will be submitted by the
parties to arbitration by the London Court of International Arbitration (LCIA)
under the rules then in effect for the LCIA, as modified herein or by agreement
of the parties. Any such arbitration shall be conducted in London, England by one
or more arbitrators selected in accordance with this Section 9.2. Each party
irrevocably and unconditionally (i) consents to the jurisdiction of any such
proceeding and waives any objection that it may have to personal jurisdiction
or the laying of venue of any such proceeding; and (ii) knowingly and
voluntarily waives its rights to have disputes tried and adjudicated by a judge
and jury except as otherwise expressly provided 


 


19





















 


                                                herein. The
parties will cooperate with each other in causing the arbitration to be held in
as efficient and expeditious a manner as practicable. The parties will attempt
to agree upon a mutually acceptable arbitrator within 30 days of receipt of the
notice of intent to arbitrate. If the parties are unable to agree upon a single
arbitrator within such 30-day period or any extension of time which is mutually
agreed upon, three (3) arbitrators shall be used, one selected by each party
within ten (10) days after the conclusion of the 30-day period and a third
selected by the first two within ten (10) days thereafter. Unless the parties
agree otherwise, they shall be limited in their discovery to directly relevant
documents. Responses or objections to a document request shall be served twenty
(20) days after receipt of the request. The arbitrator(s) shall resolve any
discovery disputes. It is understood that the parties may (but are not required
to) submit disputes concerning any breach of Section 5 to arbitration in
accordance with this Section 9.2. Nothing herein shall prevent the parties from
settling any dispute by mutual agreement at any time.


 


                                                (b) The
arbitrator(s) shall apply the substantive laws of England when construing this
Agreement and attempting to resolve any dispute relating to the transactions
contemplated by this Agreement, without regard for any choice or conflict of
laws rule or principle that would result in the application of the substantive
law of any other jurisdiction. The arbitration shall be of each party’s
individual claims only, and no claim of any other party shall be subject to arbitration
in such proceeding. Except as otherwise required by law, the parties and the
arbitrator(s) shall maintain as confidential all information or documents
obtained during the arbitration process, including the resolution of the
dispute.


 


                                                (c) The
arbitrator(s) shall not have the authority to award exemplary or punitive
damages, and the parties expressly waive any claimed right to such damages. The
arbitrator(s) shall have the authority to award actual money damages (with
interest on unpaid amounts from the date due) and may grant equitable relief as
is just and provided by the LCIA Rules, in each case except as specifically
provided to the contrary herein The costs and expenses of the arbitration, but
not the costs and expenses of the parties, shall be shared equally by the
parties, provided that the non-prevailing party in any arbitration shall pay
the other party’s costs and expenses (including travel expenses) and reimburse
such party for its portion of the arbitration costs. Any award rendered by the
arbitrator(s) shall be final and binding upon the parties. Judgment upon the
award may be entered in any court of competent jurisdiction. If a party fails
to proceed with arbitration, 


 


20





















 


                                                unsuccessfully
challenges the arbitration award, or fails to comply with the arbitration
award, the other party is entitled to costs, including reasonable attorneys’
fees, for having to compel arbitration or defend or enforce the award.


 


                                                (d) In the
case of a breach of Section 5, either party may seek legal or equitable relief
in the court(s) having jurisdiction over such matter.


 


10.           GENERAL PROVISIONS.


10.1                           GOVERNING
LAW. This Agreement shall be governed and construed in accordance with the laws
of England, to the exclusion of both its rules on conflicts of laws and the
provisions of the United Nations Convention on Contracts for the International
Sale of Goods.


 


10.2                           AMENDMENT
AND WAIVER. No provision of or right under this Agreement shall be deemed to
have been waived by any act or acquiescence on the part of either party, its
agents or employees, but only by an instrument in writing signed by an
authorized officer of each party. No waiver by either party of any breach of
this Agreement by the other party shall be effective as to any other breach,
whether of the same or any other tern or condition and whether occurring before
or after the date of such waiver.


 


10.3                           INDEPENDENT
CONTRACTORS. Each party represents that it is acting on its own behalf as an
independent contractor and is not acting as an agent for or on behalf of any
third party. This Agreement and the relations hereby established by and between
DSM and Cubist do not constitute a partnership, joint venture, franchise,
agency or contract of employment. Cubist is not granted, and shall not
exercise, the right or authority to assume or create any obligation or
responsibility on behalf of or in the name of DSM or its Affiliates.


 


10.4                           ASSIGNMENT.
Neither party may assign this Agreement or any of such party’s rights and
obligations hereunder to any third party without the prior written consent of
the other party, which consent shall not be unreasonably withheld. Either party
may assign this Agreement, and such party’s rights and obligations hereunder,
to an Affiliate (including a subsidiary) which controls, is controlled by, or
is under common control with a party so long as the assigning party remains
primarily liable for its obligations hereunder. In addition, either party may assign
this Agreement, and its rights and obligations hereunder, to any third party
that purchases substantially all of the assigning party’s stock or assets
relating to that portion of such party’s business that is related to the
subject of this Agreement. Any attempted 


 


21





















 


                                                assignment,
delegation or transfer in contravention of this Agreement shall be null and
void.


 


10.5                           SUCCESSORS
AND ASSIGNS. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.


 


10.6                           NOTICES.
Unless otherwise provided herein, any notice, report, payment or document to be
given by one party to the other shall be in writing and shall be deemed given
when delivered personally or mailed by certified or registered mail, postage
prepaid (such mailed notice to be effective on the date which is three (3)
business days after the date of mailing), or sent by nationally recognized
overnight courier (such notice sent by courier to be effective one business day
after it is deposited with such courier), or sent by telefax (such notice sent
by telefax to be effective when sent, if confirmed by certified or registered
mail or overnight courier as aforesaid):


 


                                                If to DSM:


                DSM Capua S.p.A.


                Strada
Statale Appla 4fi-48


                Capua, Italy


                Attention:  Eric Lodder


                Phone: 
39.0823.628.325


                Fax:  
39.0823.628.326


 


                If to Cubist:


                Cubist Pharmaceuticals, Inc.


                24 Emily Street


                Cambridge. MA 02139 U.S.A.


                Attention: Alan Watson


                Telefax No.: 
(617) 234-5592


                Telephone No.: 
(617) 576-1999


 


                                                or to such
other place as any party may designate as to itself by written notice to the
other party.


 


10.7                           SEVERABILITY.
In the event any provision of this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or provision hereof. The
parties agree that they will negotiate in good faith or will permit a court or
arbitrator to replace any provision hereof so held invalid, illegal or
unenforceable with a  


 


22





















 


                                                valid
provision which is as similar as possible in substance to the invalid, illegal
or unenforceable provision.


 


10.8                           CONFLICT OR
INCONSISTENCY. In the event of any conflict or inconsistency between the terms
and conditions hereof and any terms or conditions set forth in any purchase
order or other document relating to the transactions contemplated by this
Agreement, the terms and conditions of this Agreement shall prevail.


 


10.9                           CAPTIONS.
Captions of the sections and subsections of this Agreement are for reference
purposes only and do not constitute terms or conditions of this Agreement and
shall not limit or affect the meaning or construction of the terms and
conditions hereof.


 


10.10                     WORD
MEANINGS. Words such as HEREIN, HEREINAFTER, HEREOF AND HEREUNDER refer to this
Agreement as a whole and not merely to a section or paragraph in which such
words appear, unless the context otherwise requires. The singular shall include
the plural, and each masculine, feminine and neuter reference shall include and
refer also to the others, unless the context otherwise requires.


 


10.11                     FURTHER
ASSURANCES. Each party covenants and agrees that, subsequent to the execution
and delivery of this Agreement and without any additional consideration, it
will execute and deliver any further legal instruments and perform any acts
which are or may become reasonably necessary to effectuate the purposes of this
Agreement.


 


10.12                     RULES OF
CONSTRUCTION. The parties agree that they have participated equally in the
formation of this Agreement and that the language and terms of this Agreement
shall not be construed against either party by reason of the extent to which
such party or its professional advisors participated in the preparation of this
Agreement.


 


10.13                     COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.


 


10.14                     FORCE
MAJEURE. Except as otherwise provided in this Agreement, in the event that a
delay or failure of a party to comply with any obligation, other than a payment
obligation, created by this Agreement 


 


23





















 


                                                is caused by
a Force Majeure condition, that obligation shall be suspended during the
continuance of the Force Majeure condition.


 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
duly authorized officers, and have duly delivered and executed this Agreement
under seal as of the date first set forth above.


 


	
  CUBIST
  PHARMACEUTICALS, INC.

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ SCOTT M. ROCKLAGE

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  DSM CAPUA S.p.A

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ E. LODDER

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ C. MANTOVANI

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  



 


LIST OF EXHIBITS


A:            List of Patent and Patent
Applications


B:            Daptomycin Structure


C:            Process


D:            Specifications


E:             Requirements


F:             Qualification Certificates and
cGMPs


G:            Insurance


 


 


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