Exhibit 10.23


 


REAL-TIME
INSTRUMENT PATENT LICENSE AGREEMENT


 


First
Amendment


 


This Amendment, effective June 27,  2006, is
made by and between Applera Corporation, a corporation of the State of
Delaware, through its Applied Biosystems Group, having an office at 850 Lincoln
Centre Drive, Foster City, California 94404 and Celera Diagnostics, LLC, an
indirectly wholly owned subsidiary of the Applera Corporation (“Applera”), and Cepheid, a corporation of
the State of California having an office at 904 Caribbean Drive, Sunnyvale,
California 94089 (“Licensee”) (each
of Applera and Licensee, a “Party” and, collectively, the “Parties”). This
Amendment is the first amendment to the Real-Time Instrument Patent License
Agreement between the Parties having the Effective
Date of April 5, 2004 (hereinafter “the 2004 Agreement”).


 


Whereas, Licensee would like to expand the scope of its license to
include the fields of HIV and HCV; and


 


Whereas, Applera has agreed to expand that scope.


 


Now therefore, the Parties agree as follows:


 


1.               Paragraph 1.5 of the 2004 Agreement is hereby
deleted in its entirety, and is replaced by the following:


 


1.5        “HIVD Field” shall mean the field of human in
vitro diagnostic applications for the clinical management of
patients.


 


2.               Paragraph 2.4 of the 2004 Agreement is hereby
deleted in its entirety, and is replaced by the following:


 


2.4.     The grants under Sections 2.1, 2.2 and 2.3 include no right, immunity,
authorization or license, either expressly or by implication, under any patent
or patent application other than the Real-Time Apparatus Patent Rights and the
Amplification System Patent Rights. Without limiting the foregoing, no license
is granted pursuant to this Agreement under any patent claim or patent
application claim to a real-time process, reagent or method.


 


3.              In Paragraph 5.1 of the 2004 Agreement, the “NOTICE
TO PURCHASER” is hereby deleted and replaced by the following notice:


 


NOTICE TO PURCHASER


 


This real-time thermal cycler is
licensed for use in research, diagnostics and all other applied fields under
Applera’s U.S. Patent


 


[***] indicates material
that has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and Exchange
Commission.


 


1

















 


 


No. 6,814,934, European Patent
No. EP 0 872 562, Japanese Patent No. JP 3136129 and patents pending.


 


No rights are conveyed expressly,
by implication or estoppel to any patents on real-time methods, including but
not limited to 5’ nuclease assays, or to any patent claiming a reagent or kit.


 


Applied Biosystems does not
guarantee the performance of this instrument or endorse its use in any
application.


 


4.               Paragraph 7.1 of the 2004 Agreement is hereby
deleted in its entirety, and is replaced by the following:


 


7.1        Unless and until Applera reasonably instructs differently, in advertisements,
catalogs, brochures, sales literature and promotional literature for Licensed
Real-Time Thermal Cyclers, Licensee, Affiliates and distributors shall state
the following prominently in type and location:


 


Cepheid’s [Real-time thermal cycler model(s)] (is a)
(are) licensed real-time thermal cycler(s) under Applera’s U.S. Patent No. 6,814,934,
European Patent No. EP 0 872 562, Japanese Patent No. JP 3136129 and
patents pending.


 


Such notice may also include the clause “for all
fields including human in vitro diagnostics” or the clause “for human in vitro
diagnostics” at Cepheid’s option.


 


5.              This Amendment shall have retroactive effect
as to all instruments previously licensed under the 2004 Agreement, and Applera
agrees that Licensee may replace the previous “NOTICE TO PURCHASER” with the
notice provided in Paragraph 3 of this Amendment.


 


6.              In consideration for the rights granted in
this Amendment, Licensee shall pay [***] to
Applera within 15 days of the effective date of this Amendment.


 


7.              Except as expressly amended herein, all terms
and conditions of the 2004 Agreement remain in full force and effect.


 


[***] indicates material
that has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and Exchange
Commission.


 


2

















 


 


IN WITNESS WHEREOF, the Parties hereto have duly
executed this Agreement on the date(s) indicated below.


 


	
  APPLERA

  	
   

  	
  CEPHEID

  
	
   

  	
   

  	
  (LICENSEE)

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
    Joseph H. Smith

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  Sr. Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
							



 


[***] indicates material
that has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and Exchange
Commission.


 


3