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Exhibit 10.51
Confidential Materials omitted and filed
separately with the
Securities and Exchange Commission. Asterisks
denote omissions.
THIRD AMENDMENT TO LICENSE, SUPPLY AND
DISTRIBUTION AGREEMENT
THIS THIRD AMENDMENT TO LICENSE, SUPPLY AND DISTRIBUTION
AGREEMENT is made and entered into as of this 19th day of December,
2006 (Effective Date) by and between F.Hoffmann-La Roche Ltd.
("FHLR") having a principal office at Grenzacherstrasse 124, Basel,
Switzerland and 454 Life Sciences Corporation ("454") having a
principal office at 20 Commercial Street, Branford, CT 06405,
USA.
RECITALS
WHEREAS, the Parties have entered into a written License, Supply
and Distribution Agreement dated May 11, 2005, as amended by
the First Amendment to License, Supply and Distribution Agreement
dated December 19, 2005 and the Second Amendment to License,
Supply and Distribution Agreement dated October 27, 2006
("License Agreement"); and
WHEREAS, the Parties desire to sell a refurbished Rev.
1.0 (Rev. 1.0 is currently marketed under the product name "GS 20")
instrument as a Licensed Product under the Agreement.
NOW THEREFORE, in consideration of the covenants and
mutual promises set forth herein, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. According to Section 3.3 (b) of the License
Agreement the Parties hereby amend Exhibit 2 by adding as
Licensed Product a Refurbished GS20 instrument ("GS 20-R"), with an
initial estimated Average Sales Price of $[**] (US):
(See attached document.)
GS 20-R has the same Specification as Rev 1.0 instrument and
will be assembled by 454 by adding a new camera to a Rev 1.0 (GS20)
instrument returned as part of an Upgrade to a GS FLX instrument.
It is agreed between the Parties that all Exhibits of the License
Agreement referring to Rev. 1.0 instrument shall equally apply to
GS 20-R.
2. The third paragraph of Section 3.3 (e) is
deleted in its entirety and replaced by:
"Based on its 2006 forecast, FHLR has ordered [**] Rev. 1.0
instruments from 454. The Parties agree that 454 will fill the
order with GS 20-R in accordance with the terms of the License
Agreement. GS 20-R is warranted by 454 to FHLR for [**] from the
date of delivery. This warranty may be extended by FHLR or its
Affiliates to the customer.
An Upgrade of a GS 20-R to a GS FLX as provided in the first two
paragraphs of this Section 3.3. (e) will be available to
customers after one year of ownership, except that the initial
estimated AUUP for the Upgrade of a Refurbished GS20 shall be [**]
US Dollars (US $ [**]) instead of [**] US Dollars (US $ [**])."
Section 3.4 (d) of the Original
Agreement is amended to read as follows:
"During the Initial Term of this Agreement FHLR shall pay
minimum royalties on the 30th day of the first Contract Year and
before the last day of the Contract Year prior to each of the three
subsequent Contract Years as follows:
1st Contract Year: US$ [**] (Payment before January 30
th 2006)
2nd Contract Year: US$ [**] (Payment before December 31
st 2006)
3rd Contract Year: US$ [**] (Payment before December
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