exv10w2



 






Exhibit 10.2




CONFIDENTIAL TREATMENT REQUESTED




First Amendment to the Distribution Agreement




between




CEPHEID AND INFECTIO DIAGNOSTIC (I.D.I) INC. of November 4, 2003



This is the first amendment (“Amendment”) to the Distribution Agreement between Cepheid and
lnfectio Diagnostic (I.D.I.) of November 4, 2003 (hereinafter the “2003 Agreement”). This Amendment
is made as of the January 24, 2005 (the “Effective Date”) and is by and between Cepheid, a
California corporation with its principal place of business at 904 Caribbean Drive, Sunnyvale, CA
94089 (“Cepheid”) and GeneOhm Sciences, Inc., a Delaware corporation with its principal place of
business at 6146 Nancy Ridge Drive San Diego, CA 92121 (“GeneOhm”). GeneOhm has recently merged
with IDI and stands in the shoes of IDI as to performance under the 2003 Agreement. Cepheid and
GeneOhm are sometimes referred to herein individually as a “Party”, and collectively as the
“Parties.”



WHEREAS, the Parties wish to expand the purposes for which GeneOhm may sell SmartCycler
Instruments,



NOW THEREFORE, the Parties agree as follows:





	 	1.	 	Paragraph 1.10 of the 2003 Agreement is deleted in its entirety and is replaced
by the following:






	 	1.10	 	“Smart Cycler Instruments” means the Smart Cycler® I
and II Systems instruments manufactured and sold by Cepheid that are used to
perform Real Time PCR (and that include a computer), the Smart Cycler Reaction
Tubes to be used with such Smart Cycler Systems, the Cepheid Smart Cycler
Software (and any improvements and upgrades thereof) when sold in conjunction
with the sale by GeneOhm of a Smart Cycler I or II System, and any new
generation of the Smart Cycler Instruments, which instruments do not include
integrated sample preparation. (Software upgrades and Smart Cycler add on
blocks offered by Cepheid to its then existing Smart Cycler customers to be
used with those customers’ already purchased Smart Cycler Instruments, i.e.
aftermarket software upgrades and aftermarket add ons, shall also be available
for sale by GeneOhm to upgrade each Smart Cycler instrument sold by GeneOhm
that has not been provided with such software or block originally, provided
that with respect to upgrades that they are relevant to the Nonexclusive
Distribution Right in Paragraph 2.1.1.)






	 	2.	 	Paragraph 2.1.1 of the 2003 Agreement is deleted in its entirety and is
replaced by the following:






	 	2.1.1	 	Nonexclusive Distribution Right. Cepheid hereby
appoints GeneOhm to act as its nonexclusive, distributor of Smart Cycler
Instruments in the United States and Canada solely for use with IDI Assays, its
customers’ home brew tests for human in vitro diagnostics, its customer’s uses
in







 




			
	The symbol [***] is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.	 	 




 









 











performing assays using Analyte Specific Reagents (as that term is defined
by the U.S. Food and Drug Administration) for human in vitro diagnostics,
its customer’s uses in clinical research for human in vitro diagnostics, and
its customer’s uses with assays manufactured and marketed by or for Cepheid,
and outside the United States and Canada, solely for use with IDI Assays.
IDI covenants and agrees that it will not apply, sell, offer to sell, or
cause to be sold, assays for use with the Smart Cycler Instrument, other
than those described above, or induce its customers to use the Smart Cycler
Instrument for other than the assays described above.




	 	3.	 	The first two sentences of Paragraph 4.2 of the 2003 Agreement are deleted in
their entirety and are replaced by the following:






	 	4.2	 	Prices. Cepheid will transfer the Smart Cycler
Instruments to IDI at the following pricing: For annual orders of 1 — 199 Smart
Cycler Instruments, the transfer price will be Cepheid’s Manufacturing Cost
plus [***] percent ( [***] %) for each such instrument
ordered with software capable of running IDI assays only, plus [***]
dollars ($ [***] ) for each such instrument ordered with software
capable of running both IDI or Cepheid assays and general purpose real time PCR
assays (hereinafter Multipurpose Software) (including home brews and Analyte
Specific Reagents (as that term is defined by the U.S. Food and Drug
Administration)). (By way of explanation, for Smart Cycler Instruments ordered
with the Multipurpose Software, the Multipurpose Software is provided at an
additional transfer price of $ [***] for each Smart Cycler system
ordered, whether that system has one block, two blocks or up to six blocks,
which is the maximum number of blocks that can be run on one computer, i.e.
each Multipurpose Software package purchased by GeneOhm can be used for only
one Smart Cycler computer system.) For annual orders of 200 Smart Cycler
Instruments or more, the transfer price will be Cepheid’s Manufacturing Cost
plus [***] percent (43%) for such instruments ordered with software
for running IDI assays only, plus [***] dollars ($ [***] ) if
ordered with Multipurpose Software. Regardless of the annual sales volume,
aftermarket software upgrades shall have a transfer price to GeneOhm equal to
the Cepheid list price minus [***] %. (Balance of Paragraph as
before).




The Parties, through their authorized officers, have executed this Agreement as of the Effective
Date.




	 	 	 	 	 	 	 
	CEPHEID	 	GeneOhm Sciences, Inc.
	 
	 	 	 	 	 	 
	By:

	 	/s/ Joseph H. Smith
	 	By:
	 	/s/ Peter Klemm
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Name: Joseph H. Smith	 	Name: Peter Klemm
	 
	 	 	 	 	 	 
	Title: Sr. Vice President & General Counsel	 	Title: CEO
	 
	 	 	 	 	 	 
	Date Signed: 04/06/05	 	Date Signed: 03/30/05








 




			
	The symbol [***] is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.