CERTAIN
INFORMATION WITHIN THIS EXHIBIT HAS BEEN OMITTED AND THE NON-PUBLIC
INFORMATION HAS BEEN FILED WITH THE SECURITIES EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
First Amendment to the
Distribution Agreement
INFECTIO DIAGNOSTIC (I.D.I) INC
and CEPHEID of November 4, 2003
This is the
first amendment (“ Amendment ”) to the
Distribution Agreement between Infectio Diagnostic (I.D.I.), Inc.
and Cepheid of November 4, 2003 appointing Cepheid as a
nonexclusive distributor of IDI Manufactured Products (hereinafter
the “ 2003 Agreement ”). This Amendment is made
as of 01 June 2005 (the “ Effective Date ”)
and is by and between GeneOhm Sciences Canada, Inc. (formerly
Infectio Diagnostics, (I.D.I.) Inc.), a wholly owned subsidiary of
GeneOhm Sciences, Inc. and Cepheid who are sometimes referred to
herein individually as a “ Party ,” and
collectively as the “ Parties .”
WHEREAS the
Parties wish to amend the Agreement;
NOW THEREFORE,
the Parties agree as follows:
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1.
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New
Paragraph 2.5 is added as follows:
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2.5 Field
Action or Product Recall . If IDI notifies Cepheid that a field
action or product recall is required, Cepheid agrees that it shall
as expeditiously as possible issue a written field action or
product recall notice to all affected customers. Cepheid will
reasonably cooperate with IDI in regard to any such
notification.
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2.
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New
paragraph 2.6 is added as follows:
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2.6.1 IDI shall
sell IDI Manufactured Products that materially conform to their
published product specifications ordered by Cepheid. IDI will
endeavor to provide Cepheid with the best possible dating based on
purchase orders received and manufacturing schedules.
2.6.2 IDI reserves
the right at any time to change the specification or design of any
IDI Manufactured Product without prior notice or approval. In the
event of any such change in specifications or design for which IDI
submits a regulatory filing, IDI will, to the extent possible,
provide Cepheid prior notice of at
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CONFIDENTIAL
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First Amendment to
Distribution Agreement (IDI Products)
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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.
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least 6 months. IDI shall be
under no obligation to make any change in any IDI Manufactured
Products in the stock of Cepheid or any IDI Manufactured Products
shipped to but not received by Cepheid unless the change is made to
correct a safety or operational deficiency, or is required by the
U.S. Food and Drug Administration (FDA) in which case IDI
shall immediately notify Cepheid of such modification and Cepheid
shall return to IDI all such products in its inventory, or that it
subsequently receives, if requested by IDI and shall cooperate with
IDI to notify and, where appropriate, request the return or
destruction of any affected IDI Manufactured Products already
shipped to Cepheid, and IDI shall immediately replace any such
returned or destroyed products with such modified
products.
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3.
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Paragraph 3.1 shall be deleted
and replaced with the following:
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3.1 Sales
Process . Cepheid shall order IDI Manufactured Products by
submitting written purchase orders to IDI separately for products
that are to be delivered to Cepheid in Sunnyvale, CA (hereinafter
Cepheid US) and Cepheid SA in France, for distribution by those
organizations in their respective territories. Such IDI
Manufactured Products delivered to Cepheid US will not be
re-delivered by Cepheid US to Cepheid SA, without identifying to
IDI the shipment, in order to provide for proper pricing under
Exhibit C. Cepheid will endeavor to specify delivery dates at least
thirty (30) days from the date of the purchase order. IDI will
endeavor to ship, but will not guarantee shipment of, purchase
orders submitted with specified delivery dates less than thirty
(30) days from the date of the purchase order. Purchase orders
shall specify, at a minimum: (a) a description or
identification of the IDI Manufactured Product(s) and the quantity
of each IDI Manufactured Product ordered, (b) the delivery
date (as applicable), (c) the applicable price, and
(d) the instruction for invoicing, including the address to
which invoices shall be sent for payment. All purchase orders shall
be accepted by IDI and no purchase orders shall be modified or
cancelled without written agreement by both Parties. At the
beginning of each month, Cepheid shall provide IDI a revised
12 month rolling forecast, of which the first month will have
a binding minimum purchase obligation of [***] percent
([***
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