exv10w40






EXHIBIT 10.40




Third Amendment to 

Drug Product Production and Clinical Supply Agreement




     This Third Amendment (the “Third Amendment”) is entered into and effective as of
November 25, 2008 (the “Third Amendment Date”) by and between Altus Pharmaceuticals Inc.,
a Delaware corporation (“Altus”), and Althea Technologies, Inc., a Delaware corporation
(“Althea”).



     Whereas, Altus and Althea are parties to that certain Drug Product Production and
Clinical Supply Agreement dated August 15, 2006 (the “Original Agreement”), as amended by that
certain First Amendment dated June 25, 2007 and that certain Second Amendment dated March 12, 2008
(collectively, the “Agreement”). Capitalized terms used but not otherwise defined herein shall
have the meanings provided in the Agreement;



     Whereas, Altus desires that Althea perform, and Althea is willing to perform, certain
development and production services relating to the Drug Product that are in addition to the
activities contemplated by Schedule 1 to the Agreement; and



     Whereas, the Parties desire to amend the Agreement in order to provide for the
performance of such additional services by Althea and to set forth the compensation to be paid by
Altus for such additional services, on the terms and subject to the conditions of the Agreement, as
amended by this Third Amendment.



     Now, Therefore, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:


1. Additional Schedule. A new Schedule 1A is hereby added to, and incorporated by reference in,
the Agreement. Schedule 1A shall read in its entirety as set forth in Exhibit A to this Third
Amendment (the “Additional Schedule”). For purposes of clarification, the activities specified in
the Additional Schedule are in addition to those contemplated by the Agreement as it exists
immediately prior to the Third Amendment Date, and the Additional Schedule is not intended to amend
or replace, and shall not be construed as amending or replacing, Schedule 1 to the Agreement.
Althea and Altus hereby agree to perform their respective obligations under the Additional Schedule
in accordance with, and subject to, the terms and conditions of the Agreement, as amended by this
Third Amendment. The Parties agree that performance of the activities set forth in the Additional
Schedule and substantial compliance with the timelines by the Parties in the Additional Schedule
are material obligations of the Parties under the Agreement, as amended by this Third Amendment.




Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment

under Rule 24b-2 of the Exchange Act




1









 







2. Additional Payments. In consideration for the activities to be performed by Althea pursuant to
the Additional Schedule, Altus agrees to make payment to Althea in the amounts and on the schedule
set forth in the Additional Schedule. For purposes of
clarification, the payments set forth in the Additional Schedule are in addition to any and all
payments contemplated by the Agreement as it exists immediately prior to the Third Amendment Date.
Any amount paid by Altus as a prepayment for a particular category of services, as set forth in the
Payment Schedule in the Additional Schedule, shall be applied against the first payment(s) due to
Althea for such category of services until such prepayment is fully applied; provided, however,
that if Altus cancels the work described in the Additional Schedule or terminates the Agreement
before all of such prepayments have been applied, the [*] shall be [*], and Althea will [*]. All
payments contemplated by this Third Amendment shall be subject to the provisions of Sections 5.8,
5.9, 5.11 and 5.12 of the Agreement.



3. Payment on Termination. For the avoidance of doubt, the Parties acknowledge and agree that the
provisions of Section 6.3 of the Original Agreement shall apply to all payments made pursuant to,
or contemplated by, this Third Amendment.



4. Effectiveness of Agreement. Except as specifically amended by this Third Amendment, the terms
and conditions of the Agreement shall remain in full force and effect.



5. Counterparts. This Third Amendment may be executed in counterparts, each of which shall be
deemed an original document, and all of which, together with this writing, shall be deemed one
instrument.




[SIGNATURE PAGE FOLLOWS]




Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment

under Rule 24b-2 of the Exchange Act




2









 








     In Witness Whereof, the Parties hereto have duly executed this Third Amendment as of
the Third Amendment Date.



	 	 	 	 	 	 	 
	Altus Pharmaceuticals Inc. 	 	Althea Technologies, Inc.
	 
	 	 	 	 	 	 
	By:

	 	/s/ Burkhard Blank
	 	By:
	 	/s/ W. Alan Moore
	 

	 	 
	 	 	 	 
	Name:

	 	Burkhard Blank
	 	Name:
	 	W. Alan Moore
	 

	 	 
	 	 	 	 
	Title:

	 	Executive Vice President
	 	Title:
	 	Executive Vice President and CBO
	 

	 	 
	 	 	 	 





Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment

under Rule 24b-2 of the Exchange Act




3









 








Exhibit A




Additional Schedule (Schedule 1A to the Agreement)




See attached.




Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment under

Rule 24b-2 of the Exchange Act




 









 








[*]




	 	 	 	 	 	 	 
	Altus Pharmaceuticals Inc. 	 	Althea Technologies, Inc.
	 
	 	 	 	 	 	 
	By:

	 	/s/ Burkhard Blank
	 	By:
	 	/s/ W. Alan Moore
	 

	 	 
	 	 	 	 
	Name:

	 	Burkhard Blank
	 	Name:
	 	W. Alan Moore
	 

	 	 
	 	 	 	 
	Title:

	 	Executive Vice President
	 	Title:
	 	Executive Vice President and CBO
	 

	 	 
	 	 	 	 





Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment under

Rule 24b-2 of the Exchange Act




 









 








[*]




Portions of this Exhibit are omitted and have been filed separately with the Secretary of the

Commission pursuant to the Registrant’s application requesting confidential treatment under

Rule 24b-2 of the Exchange Act