Exhibit
10.1


CONFIDENTIAL
TREATMENT


FIRST
AMENDMENT TO DEVELOPMENT AND SUPPLY AGREEMENT


THIS FIRST AMENDMENT TO DEVELOPMENT AND SUPPLY
AGREEMENT (this “First Amendment”) is entered into as of the 1st day of
June 2006 by and between Cubist Pharmaceuticals, Inc., a Delaware corporation (“Cubist”)
and Hospira Worldwide, Inc., a Delaware corporation (“Hospira”) to amend
the terms of that certain Development and Supply Agreement dated the third day
of April, 2000 between Abbott Laboratories, predecessor in interest to Hospira,
and Cubist (the “Agreement”).


RECITALS


The parties desire to amend the Agreement to set
forth amended purchase and supply volume commitments, to amend Product pricing,
and to extend the Term of the Agreement through December 31, 2013.


The parties also desire to recognize that
Hospira succeeded to the interests of Abbott Laboratories under the Agreement
by virtue of the spin-off of Hospira from Abbott Laboratories into an
independent public company on May 1, 2004, and that all rights and obligations
of Abbott Laboratories under the Agreement are now rights and obligations of
Hospira.  Therefore, all instances of “Abbott
Laboratories” in the Agreement shall be replaced by “Hospira Worldwide, Inc.”,
and all instances of “Abbott” in the Agreement shall be replaced by “Hospira.”


AGREEMENT


1.     Incorporation
of the Agreement.  The Recitals set forth above are hereby
incorporated herein.  All capitalized
terms which are not defined herein shall have the same meanings as set forth in
the Agreement, and the Agreement, as amended by this First Amendment, is
incorporated herein by this reference as though the same was set forth in its
entirety.  Except as specifically set
forth herein, the Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto; provided,
that the parties agree that development activities described in
Articles 2 through 5 of the Agreement have been completed and the provisions in
these Articles have no further applicability.


2.               Amendment
of the Agreement.  The
Agreement is hereby amended as follows:


a.               Amendment
of Section 1.4.  Section 1.4
is hereby deleted and replaced with the following:


1.4                                 “Contract
Year” shall mean: (a) for the period commencing on the Effective Date and
ending on December 31, 2005, the twelve-month period commencing on the first
day of the month after the month of Cubist’s first bona fide sale of Product to
a non-affiliate customer after Product has received an approved NDA from the
FDA and/or a corresponding government marketing approval in an international
market; and (b) for the period commencing on January 1, 2006, each twelve-month
calendar year thereafter through December 31, 2013.


b.              Amendment
of Section 1.9.  Section 1.9
is hereby deleted and replaced with the following:


 


 


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









 



 


1.9                                 “Term”
shall mean the period commencing on the Effective Date and ending on December
31, 2013, unless this Agreement is sooner terminated in accordance with
Paragraph 11.2 or 11.3 or extended in accordance with Paragraph 11.1.


c.               Amendment
of Section 8.1.  Section 8.1
is hereby deleted in its entirety and replaced with the following:


8.1                                 Purchase
and Sale of Product.
 


8.1.1                        Cubist
shall place purchase orders with Hospira and Hospira shall manufacture Product
for Cubist, all in accordance with the volume schedule outlined in Exhibit
8.5.1, amended below, and deliver such Product to Cubist in accordance with
Section 8.6.  The initial volume schedule
is defined in Exhibit 8.5.1 under the column labeled “Volume (1)”.  In the event that Cubist provides Hospira
with sufficient quantities of Bulk Drug [ ]*to allow Hospira to validate
Cubicin® in the [ ]* lyophilizer of the expansion of the McPherson, Kansas
facility “Lyophilizer [ ]*”, Hospira shall complete [ ]* validation runs of
Lyophilizer [ ]* by [ ]* with the cost of validation runs, testing and
validation reports for Lyophilizer [ ]* to be paid by [ ]* (except that [ ]* shall
pay for any testing of the Product performed by a third party), and, if such
validation runs are successfully completed, the volume schedule for [ ]* will
be defined by the column labeled “Volume (2)”.




If Cubist also provides Hospira with sufficient quantities of Bulk Drug [ ]* to
allow Hospira to validate the manufacture of Cubicin® in the first [ ]*
lyophilizer, “Lyophilizer [ ]*”, at the McPherson, Kansas facility, at [ ]* own
cost, with a batch size designed to fill that chamber, and if such validation
is successfully completed, then the volume schedule will continue to be defined
by the column labeled “Volume (2)” for [ ]*. 
In the event that Lyophilizer [ ]* is not validated by [ ]*, the volumes
for [ ]* will be the volume (under either the Volume (1) column or the Volume
(2) column, as determined above) for [ ]*, provided that,
Cubist ordered at least such volume to be manufactured in [ ]*.  If Cubist did not order at least such volume,
the volume for [ ]* will be the volume actually ordered by Cubist to be
manufactured in [ ]*.  Nothing herein
shall require Cubist to provide the Bulk Drug for the validation of Lyophilizer
[ ]* or Lyophilizer [ ]*.  




In the event that Cubist requires more volume than that set forth in the
applicable column of Exhibit 8.5.1, Cubist may formally request an
increase through its forecast. 
Notwithstanding any provision to the contrary in the Agreement, Hospira
[ ]* purchase orders that would cause the volume of Product delivered in any Contract
Year to exceed the applicable volume for such Contract Year, as set forth in Exhibit
8.5.1, but Hospira will [ ]* to satisfy Cubist’s request for additional
volume to the extent that Hospira [ ]*, it being understood and agreed by the
parties that Hospira [ ]* to satisfy Cubist’s requests for additional volume.


 


 


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



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8.1.2                        Hospira
shall manufacture Product in accordance with the Product Specifications, as may
be amended from time to time by mutual written agreement of the parties without
the necessity of amending this Agreement; provided that,
Hospira shall not unreasonably withhold or delay its agreement to any amendment
to the Specifications requested by Cubist or required by the FDA or a
corresponding regulatory agency in another country.  In addition, Cubist shall be responsible for
any studies, testing or other administrative costs resulting from such change
in the Specifications.  If the change in
the Specifications results in an increase in Hospira’s cost to manufacture
Product, the parties shall agree on an appropriate increase in pricing that is
reflective of such change in manufacturing costs.


d.              Amendment
of Section 8.2.  Section 8.2
is hereby deleted in its entirety and replaced with the following:


8.2                                 Minimum
Firm Order Requirement.  In the event
Cubist does not provide purchase orders for at least [ ] of the applicable
amount of Product set forth in Exhibit 8.5.1 for any of the Contract
Years [ ]* and Hospira certifies in writing that it was willing and able to
manufacture at least [ ]* of such amount in such Contract Year, Hospira shall
invoice Cubist after the end of such Contract Year for the difference between
the amount of Product actually ordered by Cubist to be manufactured in such Contract
Year and [ ]* the amount of Product required to be manufactured in Exhibit
8.5.1, and Cubist shall pay Hospira for such difference within [ ]* after
receipt of Hospira’s invoice.


e.               Amendment
of Section 8.4.2.  The second
sentence of Section 8.4.2 is hereby deleted in its entirety and replaced with
the following:


Hospira’s
responsibilities for replacing lost, damaged or otherwise unusable Bulk Drug
pursuant to this Subparagraph 8.4.2 shall
in no event exceed [ ]* for the [ ]* of Product lost, damaged or otherwise made
unusable in whole or in part pursuant to this Subparagraph 8.4.2 during any
Contract Year and [ ]* for any [ ]* lost, damaged or otherwise made unusable in
whole or in part in such Contract Year.


f.                 Amendment
of Section 8.4.8(a).  Section 8.4.8(a)
is hereby amended by inserting the following new sentence immediately following
the sixth sentence of such Section:


In
the case of such audits that are mandated by a regulatory authority or to
respond to regulatory authority questions, Cubist shall [ ]*for additional
audit days or additional auditors unless the audits are due to a [ ]*.


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



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g.              Amendment
of Exhibit 8.5.1.


Schedule and Prices




	
  Year

  	
   

  	
  Volume (1)

  	
   

  	
  Volume (2)

  	
   

  	
  Price per [ ]*

  	
   

  	
  Price per[ ]*

  	
   

  	
  Price per [ ]*

  	
   

  
	
  2006

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2007

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2008

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2009

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2010

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2011

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2012

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  2013

  	
   

  	
  [ ]*

  	
   

  	
  [ ]*

  	
   

  	
  [ ]*

  	
   

  	
  [ ]*

  	
   

  	
  [ ]*

  	
   

  






[ ]*


h.              Amendment
of Section 8.7.5.  Section
8.7.5 is hereby deleted in its entirety and replaced with the following:


8.7.5                        Purchase
Order Acceptance.  Subject to
this Section 8.7.5, Hospira shall accept the volume of Product ordered in all
firm purchase orders from Cubist that would cause the total of Product
manufactured in any Contract Year to be [ ]* for such Contract Year as
specified in Exhibit 8.5.1, provided that,
the ordered volume for each month does not exceed [ ]* of the total volume for
the Contract Year.  The parties
acknowledge that while Cubist is obligated to purchase from Hospira the volume
of Product set forth in Exhibit 8.5.1 and Hospira is obligated to supply
Cubist with such volume of Product, the delivery dates for quantities of
Product ordered [ ]* scheduled in accordance with [ ]*; provided
that, Hospira shall be required to deliver Product within [ ]* of
the delivery date specified for the second quarter of a firm purchase order if
the quantity ordered for such second quarter is within the volumes specified in
Exhibit 8.5.1 and between [ ]* and [ ]* of the quantity forecasted for
the same quarter in the prior quarter’s forecast (i.e., the third quarter
forecasted in the prior quarter’s forecast).


 


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



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Within [ ]*after receipt
of Cubist’s firm purchase orders for Product pursuant to Section 8.7.4, Hospira
shall advise Cubist in writing if it is able to accept a firm purchase order
for any quantity of Product [ ]* the applicable volumes for the Contract Year
in which such Product is ordered to be delivered and whether Hospira is able to
meet the delivery dates specified by Cubist. 
If Hospira accepts a firm purchase order for Product that would cause
the amount of Product delivered in any Contract Year to [ ]* the applicable
volume in Exhibit 8.5.1, Hospira shall be obligated to supply such
amount as if it was included in the volumes in Exhibit 8.5.1.


i.                  Amendment
of Section 8.8.5.  Section
8.8.5 is hereby amended by deleting “based upon a breach of Abbott’s
representations or warranties set forth in Subparagraph 8.8.3” and replacing
such language with: “subject to indemnification by Hospira pursuant to Section
8.8.4 hereto”.


j.                  Amendment
to Section 11.1.  Section 11.1
is hereby amended by deleting “at the end of the fifth Contract Year” and
replacing such language with: “on December 31, 2013.”


k.               Amendment
to Section 11.2.  Section 11.2
is hereby deleted in its entirety and replaced with the following:


11.2         Termination for Convenience.  [
]* after June 30, 2010, either party may terminate this Agreement [ ]* by
giving the other party [ ]* prior written notice.  Following any such notice of termination,
Cubist shall be obligated to purchase and Hospira shall be obligated to supply
only the volume of Product that has been forecasted up to the effective date of
such termination pursuant to a rolling forecast submitted by Cubist pursuant to
Section 8.7.4.


l.                  Amendment
to Section 11.4.  Section 11.4
is hereby amended by adding the following language directly in between “Article
11,” and “Cubist shall reimburse”: “except if such termination is by Cubist
pursuant to Section 11.3”.


m.            Amendment
to Section 13.2.  Section 13.2
is hereby amended by deleting the contact information contained therein in its
entirety and replacing it with the following:


To:          Cubist Pharmaceuticals, Inc.


65 Hayden Avenue

Lexington, MA 02421 

U.S.A.

Attention: Senior Vice President, Technical Operations

Facsimile: (781) 860-1498


With
a copy to:    General Counsel


Cubist Pharmaceuticals,
Inc.

65 Hayden Avenue

Lexington, MA 02421

U.S.A.

Facsimile : (781) 860-1407


 


 


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



 5
 






 



 


To :           HospiraWorldwide, Inc.


H1-3, Dept 988

275 N. Field Drive

U.S.A

Attention : V.P. and G.M. Contract Manufacturing

Facsimile : (224) 212-3210


With a copy to :  General Counsel


Hospira Worldwide, Inc.

H1-2, Dept. NLEG

275 N. Field Drive

U.S.A

Facsimile : (224) 212-2088



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n.              Amendment
to Exhibit 1.2.  Exhibit 1.2
is hereby deleted in its entirety and replaced with the following:


Bulk Drug Specifications


 




	
  Process Step

  	
   

  	
  Parameter

  	
   

  	
  Method

  	
   

  	
  Limit

  	
   

  
	
  [ ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  [ ]*

  	
   

  	
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  ]*

  	
   

  	
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  [ ]*

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


 


 


 


 


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



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o.              Amendment
to Exhibit 1.8.  Exhibit 1.8
is hereby deleted in its entirety and replaced with the following:


Product Specifications


 




	
  Description

  	
   

  	
  Method

  	
   

  	
  Specification

  	
   

  
	
  [ ]*

  	
   

  	
  [
  ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  [ ]*

  	
   

  	
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  ]*

  	
   

  	
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  [ ]*

  	
   

  	
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  [ ]*

  	
   

  	
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  [ ]*

  	
   

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



 8
 






 



 


p.
Amendment to Exhibit 8.4.7.  Exhibit 8.4.7 is hereby deleted
in its entirety and replaced with the following:


Test Methods


 




	
  Test

  	
   

  	
  Method*

  	
   

  
	
  [ ]*

  	
   

  	
  [
  ]*

  	
   

  
	
  [ ]*

  	
   

  	
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  ]*

  	
   

  
	
  [ ]*

  	
   

  	
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  ]*

  	
   

  
	
  [ ]*

  	
   

  	
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  [ ]*

  	
   

  	
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[ ]*


3.               Effectuation.  The
amendment to the Agreement contemplated by this First Amendment shall be deemed
effective as of the date first written above upon the full execution of this
First Amendment and without any further action required by the parties hereto.  There are no conditions precedent or
subsequent to the effectiveness of this First Amendment.


 


 


 


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



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4.               Counterparts.  This First Amendment may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.  One or more counterparts of this First
Amendment may be delivered by facsimile, with the intention that delivery by
such means shall have the same effect as delivery of an original counterpart
thereof.


        IN
WITNESS WHEREOF, the parties hereto have duly executed this First Amendment as
of the date first above written.


 


	
  HOSPIRA WORLDWIDE, INC.

  	
   

  	
  CUBIST PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
  By 

  	
  /s/ John Arnott

  	
   

  	
   

  	
  By 

  	
  /s/ Lindon M. Fellows

  	
   

  
							



 


	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
  John Arnott

  	
   

  	
   

  	
  Name

  	
  Lindon M. Fellows

  	
   

  
	
   

  	
  (type or print)

  	
   

  	
   

  	
   

  	
  (type or print)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title 

  	
  S.V.P.
  Commercial Operations

  	
   

  	
   

  	
  Title

  	
  S.V.P. Technical Operations

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
  June 9, 2006

  	
   

  	
   

  	
  Date

  	
  01 June 2006

  	
   

  



 


 



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