Exhibit
10.1


 


AMENDMENT NO. 4


to
the


MANUFACTURING
AND SUPPLY AGREEMENT


entered
into as of September 30, 2001


by
and between


ACS Dobfar, SpA and Cubist Pharmaceuticals, Inc.


This AMENDMENT NO. 4 (“Amendment No. 4”), to that certain
Manufacturing and Supply Agreement (as amended to date pursuant to Amendments
Nos. 1, 2 and 3, the “Agreement”) entered into as of September 30, 2001,
is made this 22nd day of September, 2006 (“Amendment No. 4 Effective Date”), by
and between ACS Dobfar, SpA, an Italian corporation (“ACSD”), and Cubist
Pharmaceuticals, Inc., a Delaware corporation (“Cubist”). Unless
otherwise defined herein, capitalized terms used but not defined herein shall
have the meaning set forth in the Agreement, and the Agreement shall be amended
to incorporate any additional definitions provided for in this Amendment No. 4,
including definitions in the preamble and recitals hereto.


WHEREAS,
Cubist and ACSD desire to amend the Agreement as set forth in this Amendment
No. 4;


NOW, THEREFORE,
in consideration of the foregoing and the mutual promises made herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend the Agreement as
follows:


1.             Amendment of Section 1.  The Agreement is hereby amended by deleting
the definitions of “CIP” and “Contract Year.”


2.             Amendment
of Section 5.1.  The
Agreement is hereby amended by deleting the table included in Section 5.1 of
the Agreement and by replacing “the following yearly purchases:” at the end of
the first paragraph of Section 5.1 with the following:


minimum purchases in the
amount of [ ]* in each calendar year until [ ]*.


3.                                       Amendment of Section 5.7. 
The Agreement is
hereby amended by:


(a)           Replacing “Payment Schedule” in the heading of Section 5.7 of the
Agreement with “Invoicing”; and


(b)           deleting the
remainder of Section 5.7, starting with “ will follow promptly behind the
invoicing...” and replacing such language with the following:


 “, as well as any other Product supplied under
this Agreement, shall be in accordance with Section 6.3(a).”


4.             Amendment
of Section 6.1.  The
Agreement is hereby amended by inserting the word “base” in between “at a” and
“price” in the first paragraph of Section 6.1 of the Agreement and by adding the
following language at the end of such first paragraph, immediately preceding
the period:


through [ ]* and [ ]* in [
]* ( the “Base Price”), and the Base Price shall [ ]*. [ ]*


Notwithstanding anything in
the foregoing to the contrary, from [ ]* until [ ]*, Cubist shall pay [ ]* for
every [ ]* hereunder.  On or around [ ]*
after the Amendment No. 4 






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









 



Effective Date, the parties
will discuss in good faith whether any adjustment to the above is
appropriate.  In addition, if the [ ]*
above or below [ ]* on or after [ ]*, the parties shall discuss in good faith
whether an adjustment to the Base Price is appropriate.


The
second paragraph of Section 6.1 is hereby amended by inserting the words “the
Base Price of” in between “will pay” and [ ]* in the second-to-last line of
such second paragraph and by adding the following language at the end of such
second paragraph, immediately preceding the period:


, subject to the first paragraph of this
Section 6.1.


5.             Amendment of Section
6.3(a).  The Agreement is
hereby amended by deleting “receipt by Cubist of” in the first line of Section
6.3(a) of the Agreement and by replacing “Certificate of Analysis, Batch
Records, and Manufacturing Compliance Reports as required by Exhibit D with
respect to such Product.” in the first sentence of such Section with “provided  that, Cubist
shall not have an obligation to pay an invoice [ ]*.”


6.             Amendment of Section 6.4.
The Agreement is hereby amended by deleting the first three sentences of
Section 6.4 of the Agreement and the following language at the beginning of the
fourth paragraph: “Notwithstanding the above, for calendar year 2005 only,” and
by replacing both instances of the word “Milan” with “Agnani”, such that
Section 6.4 shall begin “The Product will be delivered “Ex works” Agnani, ...”


7.             Amendment
of Section 12.1. The Agreement is hereby amended by deleting
Section 12.1 thereof in its entirety and replacing it with the following
Section 12.1:


12.1        Term


This Agreement shall take
effect as of the Effective Date and shall remain in effect until December 31,
2015, unless sooner terminated in accordance with Section 12.2 or extended in
accordance with this Section 12.1. Unless, not later than [ ]*, Cubist notifies
ACSD in writing that Cubist does not desire to extend the term of Agreement,
the term of the Agreement will be extended for an additional two years; provided, that, ACSD and Cubist have negotiated in good
faith a revision to the prices charged for Product, pursuant to Section 6.1
hereof, based on ACSD’s then current costs to manufacture Product. All
applicable terms and conditions of this Agreement shall remain in effect during
the extension term, unless expressly amended in writing by the parties. Cubist
may renew this Agreement for additional two-year extension terms by


 providing written renewal notice to ACSD not
later than twelve (12) months prior to the expiration of the then current
extension term.


8.             Amendment
to Exhibits.  The
Agreement is hereby amended by replacing Exhibits C-1 (Master Product
Specifications) and D (Quality Requirements) with the attached Exhibits C and
D.  The parties intend to amend Exhibit D
in the near future.


9.             No Other
Amendments.  Except to the
extent amended hereby, all of the definitions, terms, provisions and conditions
set forth in the Agreement are hereby ratified and confirmed and shall remain
in full force and effect.  The terms and
conditions herein and subject matter hereof shall at all times be 






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



 2
 






 



considered
Confidential Information of Cubist, as defined in the Agreement. The Agreement
and this Amendment No. 4 shall be read and construed together as a single
agreement and the term “Agreement”






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



 3














 


shall
be deemed a reference to the Agreement as amended by this Amendment No. 4.  This Amendment No. 4 may be signed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute but one and the same instrument.  In making proof of this Amendment No. 4 it
shall not be necessary to produce or account for more than one such
counterpart.


IN
WITNESS WHEREOF, this
Amendment No. 4 has been executed under seal by the parties hereto to be
effective as of the day and year first above written.


	
  

  	
  ACS DOBFAR SpA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marco Falciani

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Marco
  Falciani

  
	
   

  	
   

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
  Date: 9/22/06

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CUBIST
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael W. Bonney

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Michael W.
  Bonney

  
	
   

  	
   

  
	
   

  	
  Title: President
  & CEO

  
	
   

  	
   

  
	
   

  	
  Date: 9/22/06