Exhibit 10.2
CONFIDENTIAL
TREATMENT
AMENDMENT NO. 3
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. 3 (“
Amendment No. 3 ”), to that certain Manufacturing
and Supply Agreement (as amended to date pursuant to Amendments
Nos. 1 and 2, the “ Agreement ”) entered into as
of September 30, 2001, is made this 20 th day of
October, 2005,(“Amendment 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. 3, including
definitions in the preamble and recitals hereto.
WHEREAS , Cubist and ACSD desire to amend the Agreement
as set forth in this Amendment No. 3;
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
inserting the following definition in between the definitions for
“Certificate of Analysis (COA)” and “Change
Order”:
“Change of
Control” shall
mean, with respect to ACSD:
(a)
the acquisition of ownership through
a corporate acquisition, reorganization, sale or otherwise,
directly or indirectly, beneficially or of record, by any third
party(ies) of shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding
capital stock of ACSD;
(b)
a merger or similar combination
after which 50% or more of the voting stock of the surviving
corporation is held by persons who were not stockholders of ACSD
immediately prior to such merger or combination;
(c)
any other acquisition by any third
party(ies) of the power to directly or indirectly direct or cause
the direction of the management or policies of ACSD, whether
through the ability to exercise voting power, by contract or
otherwise; or
(d)
ACSD’s sale or other
disposition of that part of ACSD’s business that includes the
Facility.
2.
Amendment of
Section 4.3 .
The Agreement is hereby amended by deleting Section 4.3
thereof in its entirety.
*Confidential Treatment Requested. Omitted
portions filed with the Commission.
3.
Amendment of
Section 5.1 . The Agreement is hereby amended by
replacing the [ ]* in the table included at the end of
Section 5.1 of the Agreement with [ ]* and by replacing
the total of [ ]* with [ ]*
4.
Amendment of
Section 5.2 . The Agreement is hereby amended by
deleting “ / Payment of Product Price Premiums ”
from the heading to Section 5.2 thereof and deleting the first
sentence of such Section.
5.
Amendment of
Section 6.1. The
Agreement is hereby amended by deleting Section 6.1 thereof in
its entirety and replacing it with the following
Section 6.1:
6.1
Product Price
(a) subject to the provisions
of Sections 5, 6 and 7, Cubist will purchase Product from ACSD at a
price of [ ]*.
Provided that ACSD hires and so long
as ACSD maintains [ ]* new full time employees
(“FTEs”) dedicated to the manufacture and supply of
Product to Cubist hereunder consistent with the organizational
chart and parameters set forth in Exhibit F, an
additional [ ]* shall be added to the Product Price for 2005
through 2010 only. Upon request, ACSD shall supply Cubist with
periodic work schedules and payroll records for the FTEs for the
purpose of monitoring compliance with FTE requirements set forth
herein. ACSD shall also provide notice to Cubist upon any
termination or resignation of an FTE and shall use its best efforts
to replace such FTE promptly with an individual with equivalent
skills. In each calendar year beginning in 2005 and ending in 2010,
once the cumulative quantity of Product ordered has reached the
applicable [ ]* quantity for such year, as provided in
Section 5.1 herein, Cubist will immediately stop paying the
additional [ ]* for any additional Product purchased and
supplied in such year, and will pay [ ]* of Product, for such
additional Product.
6.
Amendment of
Section 6.2 .
The Agreement is hereby amended by deleting Section 6.2
thereof in its entirety and replacing it with the following
Section 6.2:
6.2
Product Price
Premiums
Cubist will pay ACSD [ ]
* on the price of all Product (the “Product Price
Premium”) actually purchased and supplied up to the purchase
[ ]* requirements established in Section 5.1 and the
other terms and conditions of this agreement. Payment of the
Product Price Premium shall continue until cumulative Product Price
Premium payments equal [ ]*. In each calendar year
beginning in 2005 and ending in 2010, once the cumulative Product
Price Premium payments have reached the applicable “Total
Product Price Premium” for such year, Cubist will immediately
stop paying the Product Price Premiums for any additional Product
purchased and supplied in such year, and will pay [ ]* of
Product, as provided in Section 6.1 herein, for such
additional Product. For the avoidance of doubt, once the
cumulative Total Product Price Premium has reached [ ]*,
Cubist shall not pay a Product Price Premium for any additional
Product purchased in that year and thereafter. In addition,
if in any year Cubist orders a sufficient quantity of Product to
meet the purchase [ ]*, but ACSD supplies less than the
purchase [ ]* for such year (such shortfall, as measured in
kgs, below the purchase [ ]* shall be referred to herein as
the “ACSD Shortfall”), Cubist shall have satisfied the
purchase [ ]* for such year, and the
*Confidential Treatment Requested. Omitted
portions filed with the Commission.
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