Non-Exclusive Distributor Agreement - Henry Schein and ABAXIS Inc.
NON-EXCLUSIVE DISTRIBUTOR AGREEMENT
This Agreement made and entered into this 5th day of April 2004 by and between
the Veterinary Division of Henry Schein with its principal office at 135 Duryea
Road, Melville, NY 11747, (hereinafter called "Distributor"); and ABAXIS, Inc.,
a California corporation with its principal office at 3240 Whipple Rd, Union
City, California 94587 (hereinafter called "ABAXIS").
WHEREAS, ABAXIS is a manufacturer of products for the in vitro analysis of
various components in body fluids and whereas ABAXIS desires to further the sale
of its products to veterinarians' offices, clinics, hospitals, etc.
WHEREAS, DISTRIBUTOR conducts a business which sells medical products to such
veterinarian sites as those mentioned above and is interested in becoming a
distributor of ABAXIS veterinary products;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the terms defined below shall have the following
meanings;
A. "Distribute", "Distributed" or "Distribution" shall mean to sell,
distribute, market, promote, stimulate interest in, solicit Orders for
and provide services in connection with those activities.
B. "Distributor Price" shall mean the price listed in Appendix A and
Appendix A-1.
C. "End User" shall mean any provider of veterinarian medical care.
D. "Order" shall mean a written Purchase Order that describes Products
being purchased by Distributor.
E. "Order Terms" shall mean, notwithstanding any conflicting terms set
forth on an Order, the terms and conditions contained in this
Agreement, and in any modifications thereto as may be agreed in
writing.
F. "Professional Use" shall mean use of Products in connection with
animal (non-human) care, conducted or supervised by trained
veterinarian personnel who have the authority under applicable laws,
regulations or statutes to use such Products.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
G. "Products" shall mean the ABAXIS products listed in Appendix A and
Appendix A-1 and such other ABAXIS products as ABAXIS and Distributor
shall from time to time agree, in writing, to add to Appendix A and
Appendix A-1.
H. "Instrument" shall mean the VetScan analyzer and HMT Hematology
analyzer, which are electromechanical diagnostic blood chemistry and
cell counting devices.
I "Reagent Rotor" shall mean the plastic disk containing chemical
reagents.
J. "Minimum Purchase Requirements" shall be as set forth in Appendix B.
K. "Territory" shall mean the geographical area served by distributor
branches in the United States of America its protectorates and
territories, as well as Federal Government installations. Expansion of
the territory may occur only after written authorization from ABAXIS
and mutual consent of both parties.
L. "Trademarks", "Trade names" and "Copyrights" shall mean the
trademarks, trade names and copyrights owned or controlled by ABAXIS
whether registered or arising by applicable law, and used in
connection with the Products.
2. Appointment
ABAXIS hereby grants to Distributor the non-exclusive right to Distribute
Products to End Users for Professional Use in the Territory. Distributor is
not authorized to sell ABAXIS Products to resellers, other than to a
leasing company which leases the Product to End Users. By entering into
this Agreement ABAXIS is interested in facilitating the availability of its
Products and the availability of proper training and technical support to
the End Users of its Products.
3. Obligations of Distributor.
Distributor's obligations under this Agreement shall, without limitation,
include the following:
A. Distributor shall use all reasonable efforts to Distribute Products.
B. Distributor shall agree to include Abaxis in their [*].
C. Distributor shall maintain adequate written procedures for warehouse
control and Distribution of Products. Distributor shall maintain
adequate records of shipments to End Users for at least two (2) years
or to the end of the useful life of the Products, whichever is longer.
The written records shall be in such a form as to enable ABAXIS to
trace the location of all Products.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
D. Distributor shall maintain and comply with adequate written procedures
to ensure that all used ABAXIS Products which may be returned directly
to Distributor shall not be cleaned or otherwise refurbished and
re-sold or re-used by Distributor or others, without ABAXIS' prior
written consent.
E. Distributor shall submit all advertising and promotional materials for
Products to ABAXIS prior to use or distribution of such materials. In
the event that ABAXIS provides comments or suggests changes in a
timely manner of the receipt of such materials, Distributor will
revise the materials accordingly.
F. Distributor shall comply with all relevant governmental rules and
regulations in the Territory.
G. Distributor will make no representations or warranties with respect to
the Products other than those specifically authorized in writing by
ABAXIS.
H. Distributor agrees to on going training and sales meetings as required
by ABAXIS so as to be able to adequately describe, demonstrate and
sell Products in the clinic setting.
I. Distributor will stock and/or assist customers in obtaining proper
blood transfer devices. A list of approved devices is described in
ABAXIS Product Operators' Manual. Other devices may interfere with
product performance and should not be used without the written consent
of Abaxis
J. Distributor will provide ABAXIS a monthly forecast of Orders for three
months running, which forecasts shall be given to ABAXIS 30 days prior
to the first day of January, April, July and October of each year
during the term of this Agreement. This will help facilitate
production planning and assure continuity of supply for Distributor.
Absence such forecasting, subjects Distributor to potential product
back orders or shortages. Said forecasts for the first month shall
constitute a binding obligation of Distributor to purchase the
quantities and types of Product as forecast. The forecasts for the
months two and three shall be Distributor's non-binding, best
estimates for future Orders.
K. Distributor agrees to maintain a 30-day inventory of Product (both
Reagent Rotor, HMT reagents and Instruments) at Distributor's
warehouse.
4. Obligations of ABAXIS
ABAXIS shall have the following obligations under this Agreement.
A. ABAXIS shall provide marketing direction and guidance to Distributor.
B. ABAXIS agrees to maintain comprehensive "occurrence" general liability
insurance, including "occurrence" product liability, contractual
liability insurance and advertising injury coverage, with minimum
limits of liability of [*] and to deliver to Distributor a certificate
thereof with Account and its subsidiaries as an additionally named
insured thereon.
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C. ABAXIS shall provide to Distributor a reasonable quantity of
literature, brochures, and other materials.
D. ABAXIS shall maintain warranty and post-warranty repair services for
the Products pursuant to its then applicable warranty policies for
such Products.
E. ABAXIS will supply Reagent Rotors with a minimum of 66% of shelf life
from the date of shipment from ABAXIS which is no less than 6 months
for T4-Cholesterol Rotor and Critical Care Profile Rotor and 8 months
for all other Rotors currently available per Attachment A, provided
that the storage and transportation guidelines in Appendix C are
followed. ABAXIS will make reasonable efforts to provide Product with
the longest dating feasible.
F. ABAXIS will ship Product within 30 days after receiving a faxed or
mailed Order from Distributor as long as Order does not exceed
submitted forecast per Section 3. J. (Obligations of Distributor) by
greater than 10%, in which case Abaxis will have up to an additional
30 days to deliver Product exceeding 10% over the forecast.
5. Orders
A. Orders for Products by Distributor shall be placed with ABAXIS by mail
or facsimile (or by phone with explicit approval from ABAXIS) at the
following address and telephone numbers:
ABAXIS, Inc.
3240 Whipple Road
Union City, CA 94587
Tel: 800-822-2947
Fax: 510-675-6500
B. Orders shall be subject to acceptance by ABAXIS.
C. ABAXIS reserves the right to reject any Order or to cancel any Order
previously accepted in writing if, in ABAXIS' discretion, ABAXIS
determines that such Order will not be paid for in accordance with the
Order Terms or that the Products will not be Distributed in accordance
with the terms and conditions set forth in this Agreement.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Upon a determination that ABAXIS intends to cancel a previously
accepted Order, ABAXIS shall give Distributor, prompt written notice
of such cancellation and ABAXIS will be under no further obligation to
deliver Products under that Order, unless Distributor provides
adequate assurances to ABAXIS that Distributor will comply fully with
Distributor's obligations under this Agreement.
6. Price and Payment Terms
A. The price payable by Distributor to ABAXIS for any Product shall be
the Distributor Price on the date of the Order for such Product as
shown in Appendix and Appendix A-1. Should Distributor sell an
aggregate amount of Instruments equal to or great than shown in the
Table A. below in a given quarter during the first year of the
Agreement, then Abaxis will provide Distributor with margins for
Product reagents purchased and shipped from Abaxis in that given
quarter of the Agreement as follows:
Table A. Qualifiers for Additional Reagent Margins
Agreement Quarters Q1 Q2 Q3 Q4
------------------------------------ ----- ----- ----- -----
Instrument Sales to End User [*] [*] [*] [*]
Reagent Margin % [*] [*] [*] [*]
Annually, Abaxis will adjust the performance targets for the following
4 quarters to include consumable targets starting on the next annual
renewal.
B. All Orders shall be paid within 30 days of the date of invoice. If
payment is not received by ABAXIS within said 30 days, the payment
shall bear a late payment charge equal to 1.5% per month (or partial
month) that the payment is delayed.
C. All Products sold and all prices quoted by ABAXIS are F.O.B. Union
City, California or other ABAXIS distribution locations. Distributor
shall be responsible for selecting the carrier responsible for
transporting Products to Distributor's warehouse in accordance with
the guidelines laid out in Appendix C. ABAXIS will work with
Distributor to minimize transportation and associated costs.
D. Distributor shall pay for all transportation costs and all costs for
insuring the Product while the Product is in transit and while the
Product is in Distributor's control.
E. Title and risk of loss for the Product shall shift from ABAXIS to
Distributor when the Product is delivered to the common carrier
transportation company for shipment to Distributor.
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7. Warranty and Service Policy
A. Instruments
ABAXIS warrants each Instrument to be free from defects in performance
for its intended use for a period of one year (the "Warranty Period")
from its initial sale by Distributor to the original customer. In the
event of failure of an Instrument during the Warranty Period, ABAXIS
will, at its option, repair or replace such failed Instrument free of
charge except in the circumstances as listed below.
(1) Any Instrument that has been subject to abuse, accident,
alteration, modification, tampering, negligence or misuse;
(2) Any Instrument that has been repaired or serviced by anyone not
authorized by ABAXIS to render such service;
(3) Any Instrument whose model or serial number has been altered,
tampered with, defaced or removed.
B. Reagent Rotor
ABAXIS will replace or credit Distributor or Customer for any Reagent
Rotor that the Instrument's detection system has found to have a
manufacturing defect. In the event that the Distributor or Customer
finds any rotor to be defective, Distributor or Customer should call
Abaxis Customer Service immediately to report pertinent information,
including the lot number of the defective Reagent Rotor and for
authorization for credit or replacement. ABAXIS will not be
responsible for Reagent Rotors that are mishandled or stored or
shipped improperly.
C. ABAXIS represents and warrants that: (i) it has the unrestricted right
and authority to enter into this Agreement, and to grant the rights
and licenses contemplated hereunder with respect to the Products and
(ii) it has all rights in and to all patents, copyrights, trademarks,
trade secrets or other proprietary rights associated with the Products
that are necessary to market, distribute, and license the Products.
8. Termination
A. Distributor's authorization to Distribute Products shall remain in
full force and effect for one year from the date of this Agreement,
and such authorization shall renew automatically for one year
successive terms; provided however that at any time during the initial
term or any renewal term, this Agreement may be terminated as follows:
(1) By either party without cause, after sixty (60) days written
notice of termination;
(2) By ABAXIS, at its sole discretion, in the event that Distributor
shall have failed to purchase the Minimum Performance requirement
for any two consecutive quarters as shown in Appendix B (Minimum
Performance Requirements from Abaxis);
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(3) By either party, upon giving notice to the other party that such
other party is in breach of its obligations under this Agreement,
if such other party fails to cure the breach within 10 days after
receipt of written notice of the breach;
B. Upon the effective date of termination of this Agreement for whatever
reason, the right of Distributor to Distribute Products will cease and
Distributor will immediately discontinue all use of ABAXIS' Trade
names, Trade marks and Copyrights. Distributor will return to ABAXIS
all price lists, catalogs, sales literature, operating and service
manuals, advertising literature, operating and other materials
relating to the Products. Upon termination, ABAXIS may purchase, but
shall not be obligated to purchase, all or part of the Products
remaining in Distributor's inventory at the ABAXIS selling price to
Distributor. If ABAXIS does not repurchase all of Distributor's
inventory, Distributor will have the right, for a period not to exceed
120 days, to sell any Products remaining in inventory and to continue
to use the sales literature, manuals and other materials necessary for
selling the remaining inventory of Products.
C. Upon any termination of this Agreement, the provisions in Section 1,
7, 10, 11, 12, 13 14, 16, 18 and 19 shall remain in effect as
necessary to carry out the purpose of those Sections after
termination. Additionally, to the extent that Distributor is allowed
to retain and sell its remaining inventory of the Products, all
provisions of this Agreement shall remain in effect as applicable for
said sales of the remaining inventory.
9. Assignment
Neither party may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party, which
consent will not be commercially unreasonably withheld
10. No Damages Arising From Termination
Distributor acknowledges and agrees that ABAXIS shall be under no
obligation to renew or extend this Agreement notwithstanding any Orders
placed by Distributor or other actions taken by the parties prior to
termination of this Agreement. Upon termination of the Agreement, neither
party shall be liable to the other for any damages (whether direct,
consequential, or incidental and including expenditures, loss of profits or
prospective profits of any kind) sustained or ensuring out of, or alleged
to have been sustained or to have arisen out of, such termination.
11. Warranty Disclaimer and Waiver of Consequential Damages:
EXCEPT FOR THE EXPRESS WARRANTY CONCERNING PRODUCTS CONTAINED IN SECTION 7
HEREIN, ABAXIS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED
(INCLUDING IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A
PARTICULAR PURPOSE) CONCERNING ANY PRODUCT OR OTHERWISE CONCERNING MATTERS
CONTEMPLATED BY THIS AGREEMENT.
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DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT ABAXIS' SOLE RESPONSIBILITY IN THE
CASE OF ANY BREACH OF WARRANTY SHALL BE FOR ABAXIS TO COMPLY WITH ABAXIS'
POLICY AS SET FORTH IN SECTION 7 ABOVE. .
Waiver of Consequential Damages:
IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION LOST PROFITS) REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR
OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY
SUCH DAMAGES IN ADVANCE.
12. Legal Relationship; Indemnity
A. The relationship between ABAXIS and Distributor is that of supplier
and purchaser. Distributor is an independent contractor and is not the
legal representative, agent, joint venture, partner, or employee of
ABAXIS for any purpose whatsoever. Distributor has no right or
authority to assume or create any obligations of any kind or to make
any representations or warranties, whether express or implied, on
behalf of ABAXIS, or to bind ABAXIS in any respect whatsoever.
B. Each party shall indemnify and hold harmless the other party from any
claims, injuries, and damages, including all reasonable costs and
expenses (such as attorneys' fees), as a result, whether direct or
indirect, stemming from the negligence, recklessness, or willful
misconduct of the other party or such other party's officers,
employees or agents.
C. Intellectual Property Indemnification:
ABAXIS agrees to defend, indemnify and hold Distributor harmless from
and against damages, costs, liabilities, expenses (including, without
limitation, reasonable attorneys' fees) and settlement amounts
incurred in connection with any suit, claim or action by any third
party (a "Claim") alleging that the Products when used according to
the documentation accompanying the Products, infringes an intellectual
property right of a third party. The foregoing obligation shall not
extend to any Claims of infringement arising out of or related to (i)
a modification of the Products by anyone other than ABAXIS; or (ii) a
combination of the Products with any third party software or equipment
to the extent that such combination is the cause of such infringement.
ABAXIS' obligation to defend, indemnify and hold Distributor harmless
is subject to Distributor (i) giving ABAXIS prompt written notice of
any such Claim; (ii) giving ABAXIS sole control over the defense and
settlement of any such Claim (provided that ABAXIS may not use any
non-monetary assets of Distributor in a non-monetary settlement
without Distributor's prior written consent); (iii) providing full
cooperation for the defense of any such Claim, at ABAXIS' expense; and
(iv) not entering into any settlement or compromise of any such Claim
without ABAXIS' prior written approval. In the event any Product is
alleged to infringe or is believed by ABAXIS to infringe upon
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any intellectual property right of a third party, ABAXIS may, at its
sole option and expense, elect to (i) modify the Product so that such
Product become non-infringing; (ii) replace the Product with a
non-infringing product which is functionally substantially equivalent
or (iii) obtain a license for Distributor to continue to sell the
Product. The remedies granted to Distributor under this Section shall
be Distributor's sole and exclusive remedies for any infringement by
the Products.
13. Use of ABAXIS Trademarks and Copyrighted Material
Distributor may use materials furnished by ABAXIS which contain ABAXIS
Trademarks, Trade names and Copyrights only with respect to distribution
and sale of said Products, in accordance with the terms of this Agreement.
Any further use by Distributor of ABAXIS Trademarks, Trade names and
Copyrights shall be subject and limited to specific written authorization
from ABAXIS, on a case by case basis. Any such use shall be on a
non-transferable, non sublicenceable, and non-exclusive basis. Distributor
shall not be required to notate, or otherwise credit Abaxis beyond use of
name for individual product trademarks.
14. Proprietary Rights
ABAXIS will retain all of its rights and title to and ownership of all
Copyrights, Trademarks, Trade names, trade secrets, patents, and all other
intellectual property embodied in the Products. Except as otherwise
expressly provided in this Agreement, Distributor will have no right, title
or interest in the intellectual property embodied in the Products,
excepting only Distributor's limited rights to use Trademarks, Trade names
and Copyrights as specified in Section 13 hereof.
15. Patent Marking
Distributor agrees to include on the Products and on all labels, packaging
and sales materials such patent marking as is reasonably requested by
ABAXIS.
16. Confidential Information
Each party agrees that it will maintain the confidentiality of all
electronic, verbal and written communications from the other party which
are designated, or which should reasonably be regarded in the normal
commercial view, as constituting confidential information, business secrets
or proprietary information.
Confidential information shall not include any such information which (i)
is or becomes generally available to the public other than as a result of
unauthorized disclosure by either party; (ii) has been or is made available
to either party from a third party which is not under an obligation of
confidentiality to either party or its affiliates; (iii) was previously
known by the receiving party prior to disclosure by the other party; or
(iv) was developed independently of any disclosures make hereunder. In the
event either party is required to make disclosure of Confidential
Information regarding the other due to legal process, such party shall
immediately notify the other and reasonably cooperate with the owner of
such Confidential Information in any efforts to limit or object to such
disclosures being made.
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This confidentiality provision shall survive termination of this Agreement.
17. Force Majeure
Except as to the timely payment by Distributor of the purchase price of
Products purchased by it under this Agreement, no failure or omission to
carry out or observe any of the terms, provisions, or conditions of this
Agreement will give rise to any claim by one party against the other, or be
a breach of this Agreement, if the same is caused by or arises out of one
or more of the following conditions: acts of God; acts, regulations or laws
of any government; war; civil commotion; destruction of facilities or
materials by fire, earthquake or storm; labor disturbance; epidemic;
failure of public utilities or of suppliers; or any other event, matter or
thing wherever occurring and whether or not of the same class or kind as
those set forth above, which is not reasonably within the control of the
affected party. However, the parties will endeavor to avoid, remove, or
cure all such conditions as soon as is reasonably feasible.
18. Choice of Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without regard to the
New York rules for conflicts of laws.
19. Complete Agreement
This Agreement constitutes the entire contract between ABAXIS and
Distributor. All prior or contemporaneous agreements, proposals,
understandings and communications between or involving ABAXIS and
Distributor are replaced in their entirety by this Agreement, except that
this Agreement shall not relieve either party from making payments which
may be due and owing under any agreements or contract made prior to the
date hereof. This Agreement may be amended only by a written instrument
executed by authorized representatives of ABAXIS and Distributor.
20. Counterparts
This Agreement is signed in two identical counterpart originals each of
which is to be considered the original.
In Witness Whereof, the parties have caused this Agreement to be executed
in duplicate by their duly authorized representatives on the date below
written.
Distribuor ABAXIS, Inc.
By: /s/ Wilson Constantine By: /s/ Richard Schoen
---------------------- ----------------------------
Title: General Manager
Date: 3/29/04 Date: 4/5/04
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX A
MFG. SUG.
CATALOG NO. PRODUCTS DIST. PRICE RETAIL PRICE
-------------- ------------------------------------------------------------------- ----------- ------------
INSTRUMENTS
200-0000 VetScan Chemistry Analyzer - Includes Accessory Kit, [*] [*]
0.1CC Minipette, 0.1CC Disposable Tips (96), Manual, Power
Cord, Power Supply, 10 Heparin Lithium Tubes, Screw Driver,
12/Pk Result Cards
REAGENT ROTORS (Box of 10, unless otherwise noted.)
500-0026 Prep Profile II- ALT, ALP, BUN, CRE, GLU & TP [*] [*]
500-0256 Package of 25 Rotors [*] [*]
500-0002 Diagnostic Profile Plus [*] [*]
ALB, ALP, ALT, AMY, BUN, CA++, CHOL, CRE, GLOB*, GLU, K+, TBIL & TP
500-0052 Package of 25 Rotors [*] [*]
500-0038-10 Comprehensive Diagnostic Profile - ALT, ALB, ALP, AMY, CA++, [*] [*]
PHOS, CRE, GLOB*,GLU, K+, Na+, TBIL, TP & BUN
500-0038-25 Package of 25 Rotors [*] [*]
500-0017 Critical Care Profile- ALT, tCO(2), CRE, GLU, K+, Na & BUN [*] [*]
500-0037 T(4) - Cholesterol - T(4), CHOL [*] [*]
500-0014 Equine Profile - ALB, AST, BUN, CA++, CK, CRE, GLU, GGT, GLOB*, [*] [*]
TBIL, & TP
500-0023 Large Animal Profile (Bovine)- ALB, ALP, AST, CA++, CK, GGT, [*] [*]
GLOB*, MG, PHOS, TP, & BUN
500-0022 Avian/Reptilian Profile - ALB,AST,BUN, Ca++,CK,GLOB*,Glu,K+, [*] [*]
Na+,PHOS,TP,UA *Calculated Value
ACCESSORIES
100-9001 Instrument Carrying Case with wheels [*] [*]
100-8001 Plug Lighter Adapter [*] [*]
200-7001 VetScan Operator's Manual [*] [*]
400-7000 Result Cards, Blank - 12/package [*] [*]
500-9008 Screw Driver (Software Panel) [*] [*]
981-0090 Power Cord [*] [*]
988-0008 Power Supply [*] [*]
Ancillary Products
500-9002 0.1 cc Drummond Capillary pipettes - 100/package [*] [*]
500-9003 Heparin Lithium Tubes (Green top) 100/box [*] [*]
500-9006 Minipet, 0.1 cc, Grey [*] [*]
500-9007 0.1 cc Disposable pipette tips - 96/rack [*] [*]
100-1503 Glucometer strips - 50/box [*] [*]
100-1501 Glucometer - 50/box [*] [*]
** Effective May 1, 2004 Distributor transfer pricing will increase by [*] per
rotor (See Appendix A - 1)
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX A
CONTINUED
MFG. SUG.
CATALOG NO. PRODUCTS DIST. PRICE RETAIL PRICE
------------- ---------------------------------------------------------------- ----------- ------------
INSTRUMENTS
700-0000 VetScan HMT Hematology [*]* [*]
Includes -Operator's Manual, Installation Guide,
Power Cord, Keyboard, Reagent Tubing,
Collection Tube Adapters, Cover Keys and
VetScan DxS Quick Reference Guide
REAGENTS
700-9000 VetScan HMT Reagent Pack [*] [*]
Includes - (1) Thermal Printer Paper Roll,
(2) Clot Filters and (1) Probe Cleaning Wire
700-9003 Dog Control, (1) 2 cc vial [*] [*]
700-9004 Cat Control, (1) 2 cc vial [*] [*]
700-9005 Human Calibrator, (1) 2 cc vial [*] [*]
ACCESSORIES
988-0013 Keyboard [*] [*]
987-0008 Clot Filters 2/pkg [*] [*]
999-0044 Collection tube adapter, Red [*] [*]
999-0045 Collection tube adapter, White [*] [*]
999-0046 Collection tube adapter, Blue [*] [*]
999-0066 Collection tube adapter, Green [*] [*]
700-9002 Reagent Tubing Kit [*] [*]
981-0090 Power Cord [*] [*]
999-0043 Cover Keys [*] [*]
700-7003 Operator's Manual [*] [*]
700-7001 Thermal Printer Paper Roll [*] [*]
(minimum order: 3)
ANCILLARY PRODUCTS
980-0204 HMT-VetScan/Computer Interface Cable [*] [*]
700-1500 Color Printer [*] [*]
980-0206 HMT Printer Cable [*] [*]
700-1501 VetScan Rocker [*] [*]
700-1502 Vortex Mixer [*] [*]
988-0009 Uninterruptible Power Supply [*] [*]
* Quantity Pricing - with the purchase and delivery of [*] or
more VetScan Chemistry Analyzers and VetScan HMT Analyzers in a
single order, Abaxis will sell the VetScan HMT Analyzer for[*]
per unit
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX A - 1 EFFECTIVE MAY 1, 2004 FOR VETSCAN CONSUMABLES
MFG. SUG.
CATALOG NO. PRODUCTS DIST. PRICE RETAIL PRICE
------------- ---------------------------------------------------------------- ----------- ------------
INSTRUMENTS
200-0000 VetScan Chemistry Analyzer - Includes Accessory Kit, [*] [*]
0.1CC Minipette, 0.1CC Disposable Tips (96), Manual, Power
Cord, Power Supply, 10 Heparin Lithium Tubes, Screw Driver,
12/Pk Result Cards
REAGENT ROTORS (Box of 10, unless otherwise noted.)
500-0026 Prep Profile II- ALT, ALP, BUN, CRE, GLU & TP [*] [*]
500-0256 Package of 25 Rotors [*] [*]
500-0002 Diagnostic Profile Plus [*] [*]
ALB, ALP, ALT, AMY, BUN, CA++, CHOL, CRE, GLOB*, GLU, K+, TBIL & TP
500-0052 Package of 25 Rotors [*] [*]
500-0038-10 Comprehensive Diagnostic Profile - ALT, ALB, ALP, AMY, CA++, [*] [*]
PHOS, CRE, GLOB*,GLU, K+, Na+, TBIL, TP & BUN
500-0038-25 Package of 25 Rotors [*] [*]
500-0017 Critical Care Profile- ALT, tCO(2), CRE, GLU, K+, Na & BUN [*] [*]
500-0037 T(4) - Cholesterol - T(4), CHOL [*] [*]
500-0014 Equine Profile - ALB, AST, BUN, CA++, CK, CRE, GLU, GGT, GLOB*, [*] [*]
TBIL, & TP
500-0023 Large Animal Profile (Bovine)- ALB, ALP, AST, CA++, CK, GGT, [*] [*]
GLOB*, MG, PHOS, TP, & BUN
500-0022 Avian/Reptilian Profile - ALB,AST,BUN, Ca++,CK,GLOB*,Glu,K+, [*] [*]
Na+,PHOS,TP,UA *Calculated Value
ACCESSORIES
100-9001 Instrument Carrying Case with wheels [*] [*]
100-8001 Plug Lighter Adapter [*] [*]
200-7001 VetScan Operator's Manual [*] [*]
400-7000 Result Cards, Blank - 12/package [*] [*]
500-9008 Screw Driver (Software Panel) [*] [*]
981-0090 Power Cord [*] [*]
988-0008 Power Supply [*] [*]
Ancillary Products
500-9002 0.1 cc Drummond Capillary pipettes - 100/package [*] [*]
500-9003 Heparin Lithium Tubes (Green top) 100/box [*] [*]
500-9006 Minipet, 0.1 cc, Grey [*] [*]
500-9007 0.1 cc Disposable pipette tips - 96/rack [*] [*]
100-1503 Glucometer strips - 50/box [*] [*]
100-1501 Glucometer - 50/box [*] [*]
Page 13
<PAGE>
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [*]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX B
MINIMUM PURCHASE REQUIREMENTS FROM ABAXIS
VetScan Chemistry VetScan HMT Hematology
----------------- ----------------------
Initial Order [*] [*]
First Quarter [*] [*]
Second Quarter [*] [*]
Third Quarter [*] [*]
Fourth Quarter [*] [*]
Page 14
<PAGE>
APPENDIX C
STORAGE AND TRANSPORTATION GUIDELINES
1.0 Reagent discs must be stored refrigerated at 2-8 degrees C.
2.0 Discs must be shipped in insulated shipping containers with frozen gel ice
packs. Cold shipper is to be placed in corrugated shipping box.
Insulated containers may be ice chest type, or any other type Styrofoam
configuration, designed to maintain cold temperatures for a minimum of 24
hours. Walls of the Styrofoam containers must be a minimum of 7/8" wall
thick, and be enclosed in a corrugated shipping box.
Gel ice packs must be a minimum 1 1/2 lb. in weight. (Generally, smaller
sizes will not remain frozen adequately during shipment.)
3.0 Corrugated shipping boxes are to be clearly marked with temperature
requirements - "Refrigerate at 2-8 degrees C" - and are to be clearly
labeled "Refrigerate Upon Arrival."
4.0 Any carrier who provides next day delivery services may be used. The only
requirement is that the shipment arrive at destination within twenty-four
(24) hours.
5.0 In general, when the shipment arrives, the product should feel cold to the
touch, and the gel packs should be frozen or partially frozen.
6.0 Caution: Under no circumstances are the reagent discs be shipped
unprotected, either in a corrugated box without Styrofoam, without gel
packs, or via any shipping method that takes longer than twenty-four (24)
hours.
Page 15