Exhibit 10.1





Exhibit 10.1






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




EXCLUSIVE AGREEMENT




THIS EXCLUSIVE AGREEMENT (“Agreement”) is made and entered into by and between Abbott Point of
Care Inc., a Delaware corporation, having its principal place of business at 400 College Road East,
Princeton, NJ 08540 (“Abbott”), and Abaxis, Inc., a Delaware corporation with offices at 3240
Whipple Road, Union City, CA 94587 (“Abaxis”), and effective as of May 1, 2009 (“Effective Date”).



RECITALS




WHEREAS, Abbott is a manufacturer of diagnostic health care equipment and reagents and desires
to obtain an OEM distributor of Products (as hereinafter defined) in the Field (as hereinafter
defined) in the Territory (as hereinafter defined);



WHEREAS, Abaxis is a manufacturer and distributor of various products in the Field in the
Territory; and



WHEREAS, in accordance with the terms and conditions hereof, Abbott is willing to appoint
Abaxis as its exclusive distributor of Products in the Territory, and Abaxis is willing to accept
such appointment.



NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
upon the terms and subject to the conditions set forth below, Abaxis and Abbott hereby agree as
follows:



ARTICLE 1

DEFINITIONS




As used in this Agreement, the following terms shall have the meanings set forth below:



1.1 “Abaxis Trademarks” shall mean the Abaxis-owned trademarks and trade names set forth on
Exhibit 1.1.



1.2 “Abbott Trademarks” shall mean the Abbott-owned trademarks and trade names set forth on
Exhibit 1.2.


 


 









 





1.3 “Affiliate” shall mean, with respect to a Party, any other business entity which directly
or indirectly controls, is controlled by, or is under common control with, such Party. A business
entity or party shall be regarded as in control of another business entity if it owns, or directly
or indirectly controls, at least fifty percent (50%) of the voting stock or other ownership
interest of the other business entity, or if it directly or indirectly possesses the power to
direct or cause the direction of the management and policies of the other business entity by any
means whatsoever.



1.4 “Analyzer” shall mean the i-STAT® 1 device.



1.5 “Base Target” shall mean, for each Contract Year, the minimum unit number of Product
purchases required to be made by Abaxis and its Affiliates during such Contract Year.



1.6 “Cartridge” shall mean the disposable test component of a particular Product that contains
one or more sensor chips and fluid handling channels and operates on an Analyzer.



1.7 “Confidential Information” shall mean any proprietary, confidential or non-public
information, including without limitation information relating to products, End Users, suppliers,
data, processes, prototypes, samples, plans, marketing plans, reports, forecasts, technical or
commercial information, patents, patent applications, research, research results and other trade
secrets, strategies, Know-How (as hereinafter defined) or intellectual property rights disclosed in
writing by one Party to the other Party under this Agreement, as well as information disclosed
orally and disclosed to be “Confidential Information” at the time of disclosure, to the extent such
oral disclosure is reduced to writing, marked “Confidential” and provided to the receiving Party
within [ * ] after oral disclosure. “Confidential Information” shall not include any information
which:




	 	(a)	 	Is known to the receiving Party before receipt thereof under
this Agreement, as evidenced by the receiving Party’s written records;
	 
	 	(b)	 	Is disclosed to the receiving Party without restriction by a
Third Party (as hereinafter defined) not under an obligation of nondisclosure
to the disclosing Party;
	 
	 	(c)	 	Is or becomes part of the public domain other than through a
breach of this Agreement by the receiving Party;







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(d)	 	Is disclosed by the disclosing Party to a Third Party without a
duty of confidentiality;
	 
	 	(e)	 	Is independently developed by or for the receiving Party
without use of the disclosing Party’s Confidential Information, as evidenced by
the receiving Party’s records; or
	 
	 	(f)	 	Is disclosed by the receiving Party with the disclosing Party’s
prior written approval.





1.8 “Contract Quarter” shall mean each calendar quarter during the Initial Term or any Renewal
Term (as defined in Section 8.1).



1.9 “Contract Year” shall mean the twelve (12) month period from January 1 through December 31
of each year during the Term, provided that the first Contract Year shall mean the period beginning
on the Effective Date and ending on December 31, 2009.



1.10 “Dealer” shall mean a natural person, corporation, partnership, trust, joint venture,
government authority or other legal entity or organization in the Territory, other than Abaxis or
Abbott and/or their respective Affiliates, which purchases Products from Abaxis for the purpose of
resale to End Users for use in the Field.



1.11 “End User” shall mean a natural person, corporation, partnership, trust, joint venture,
government authority or other legal entity or organization in the Field in the Territory, other
than Abaxis or Abbott and/or their respective Affiliates, that purchases Products under this
Agreement for its own use or consumption in the Field, and excluding any Third Party use in the
human healthcare market.



1.12 “Field” shall mean the animal health care market, including laboratory animal research
and specifically excluding the human health care market.



1.13 “Know-How” shall mean any and all data and information, including but not limited to
ideas, designs, engineering drawings, methodologies of preparation or manufacturing, processes,
instructions for use, formula enhancements, raw material specifications, raw material standards,
and sources of raw material procurements, relating to the manufacture of Products.



1.14 “Products” shall mean the products manufactured by or for Abbott listed on Exhibit 1.14.








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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1.15 “Product Purchases” shall mean, for each Contract Year, the Products purchased by Abaxis
and its Affiliates from Abbott. For the purposes of this definition, a Product shall be considered
purchased in the Contract Year in which it was delivered after having been duly ordered in
accordance with the terms and conditions hereunder.



1.16 “Product Sales” means the Products Sold in the Field in the Territory by Abaxis directly
to: (a) Dealers (as hereinafter defined) for resale to End Users; or (b) End Users; net of
returns. Notwithstanding the foregoing, Products returned as a result of non-compliance with the
warranties set forth in Section 3.4(f) shall be counted as Product Sales, it being understood that
any replacement Products corresponding to such returned Products shall not be included in Product
Sales.



1.17 “Purchase Price” shall mean the price for Analyzers, Cartridges and other Products
purchased by Abaxis and its Affiliates from Abbott hereunder, as set forth on Exhibit 1.17 and more
fully described in Section 3.3.



1.18 “Sale”, “Sell” or “Sold” shall mean to sell, hire, let, rent, lease or otherwise dispose
of Product to a Third Party or Affiliate, provided such Affiliate is an End User of Products for
commercial purposes for monetary or other valuable consideration. “Sale”, “Sell” or “Sold” shall
not include a transaction where samples of Product are supplied without charge to a Third Party or
Affiliate for marketing or demonstration purposes or in connection with clinical or other
experimental trials.



1.19 “Term” shall mean the “Initial Term” and any “Renewal Term”.


1.20 “Territory” shall mean the entire world except Japan.



1.21 “Third Party” shall mean a natural person, corporation, partnership, trust, joint
venture, governmental authority or other legal entity or organization other than the Parties and/or
their Affiliates.



ARTICLE 2

APPOINTMENT AND AUTHORIZATION




2.1 Appointment.




	 	(a)	 	Initial Non-Exclusive Appointment. As of the Effective Date, Abbott hereby appoints Abaxis and its Affiliates as Abbott’s non-exclusive
distributor of Products in the Field in the Territory until October 31,
2009, and Abaxis hereby accepts such appointment. Abaxis shall have the
non-exclusive right to Sell and distribute Products in the Territory until
October 31, 2009.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(b)	 	Exclusive Appointment. As of November 1, 2009, and subject to
Sections 2.1(d) and 2.5 below, Abbott hereby appoints Abaxis and its
Affiliates for the Term as its exclusive distributor of Products in the
Field in the Territory, and Abaxis hereby accepts such appointment from
Abbott. As exclusive distributor in the Field in the Territory, Abaxis
shall have the sole and exclusive right (even as to Abbott) to Sell and
distribute Products in the Territory for use in the Field.







	 	(c)	 	Abbott Restriction. For so long as Abaxis is the exclusive
distributor of Products in the Field in the Territory in accordance with the
terms and provisions of this Agreement and subject to Section 2.1(d) below,
Abbott shall not Sell or, directly or indirectly (e.g., through Affiliates
or Third Parties) distribute Products, in the Field in the Territory. Upon
reasonable prior notice and at mutually agreeable times, Abaxis may, at
Abaxis’ expense, retain an independent third party auditor to audit Abbott’s
books and records relating to Abbott’s Sales of Products solely to verify
Abbott’s compliance with its obligations under this Section 2.1(c), provided
that such independent third party auditor shall execute a customary
confidentiality agreement with the audited party with respect to the
information received in connection with such audit that is not broader in
scope or more burdensome than the confidentiality obligations contained in
this Agreement. Notwithstanding this subsection 2.1(c) or subsections
2.1(a) and 2.1(b) above, Abbott may maintain certain consultative and
technical staff, at Abbott’s expense, to assist Abaxis in connection with
such marketing, promotion, sales and distribution efforts. Other than
Section 3.2(b), nothing contained in this Agreement shall limit
or be interpreted to limit Abbott or Abbott’s Affiliates from selling
products not listed on Exhibit 1.14 in the Territory.










	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(d)	 	Exceptions to Exclusivity. Notwithstanding anything else
provided in this Agreement, any right of Abaxis hereunder to exclusively
distribute Products shall be subject to the following exceptions: (I) Abbott
shall be permitted to sell Products to [ * ], but only to [ * ], and (II)
Abbott and/or its authorized distributors shall be permitted to sell
Products [ * ] for [ * ].






2.2 Non-Exclusive Appointment in Japan. As of the Effective Date, Abbott hereby
appoints Abaxis and its Affiliates for the Term as Abbott’s non-exclusive distributor of Products,
other than the BNP Cartridge, in the Field in Japan, and Abaxis hereby accepts such appointment.
Abaxis shall have the non-exclusive right to Sell and distribute Products in Japan for use in the
Field other than the BNP Cartridge which Abaxis agrees not to Sell or distribute in Japan.



2.3 Authorization. Abbott hereby authorizes Abaxis to represent itself as Abbott’s
exclusive authorized distributor of Products in the Field in the Territory using Abbott Trademarks.



2.4 Minimum Purchase and Sales Requirements.




	 	(a)	 	Minimum Purchase Requirement. Abaxis shall achieve
Product Purchases greater than or equal to the Base Target as set forth in the
following Table 2.4(a) (“Minimum Purchase Requirement”). The Parties shall
meet and negotiate in good faith to establish the Minimum Purchase Requirement
for any Renewal Terms occurring beyond the years specified in Table 2.4(a).







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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Table 2.4(a)




	 	 	 	 	 
	 	 	Base Target
	 	 	Base	 	 
	 	 	Cartridge	 	Base
	Contract	 	Purchases	 	Analyzer Purchases
	Year	 	(USD)	 	(Units)
	[ * ]
	 	  [ * ]	 	[ * ]
	[ * ]
	 	$[ * ]	 	[ * ]
	[ * ]
	 	$[ * ]	 	[ * ]
	[ * ]
	 	$[ * ]	 	[ * ]
	[ * ]
	 	$[ * ]	 	[ * ]
	[ * ]
	 	$[ * ]	 	[ * ]







	 	(b)	 	Minimum Sales Requirement. Abaxis shall achieve
Product Sales of at least [ * ] of Product Purchases with respect to the number
of units purchased by Abaxis from Abbott and, in turn, Sold by Abaxis, within
each Contract Year (“Minimum Sales Requirement”). To achieve the Minimum Sales
Requirement in a given Contract Year with respect to Cartridges, [ * ] must
equal at least [ * ]. To achieve the Minimum Sales Requirement in a given
Contract Year with respect to Analyzers, [ * ] must equal at least [ * ].





2.5 Failure to Achieve Minimum Purchase and Sale Requirements. Abbott’s sole remedies
for Abaxis’ failure to achieve the Minimum Purchase Requirement and Minimum Sales Requirement set
forth in Section 2.4 above in any Contract Year shall be to convert Abaxis’ status as exclusive
distributor of Products in the Field in the Territory to non exclusive distributor of Products in
the Field in the Territory effective upon [ * ] prior written notice, and/or to terminate this
Agreement upon [ * ] prior written notice.



2.6 Annual Product Purchases Calculation. Following each Contract Year, the number of
Product Purchases for such Contract Year shall be determined as set forth in Subsections 2.6(a)
and/or 2.6(b) below and the Parties shall execute and attach to this Agreement the “Annual Product
Purchase Calculation” form set forth on Exhibit 2.6 completed for such Contract Year.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(a)	 	Abbott Provides Abbott Calculation. Within [ * ] after
the end of each Contract Year, Abbott may provide Abaxis with Abbott’s written
calculation of Abaxis’ Product Purchases in such Contract Year (the
Abbott Calculation”). If Abaxis disagrees with the Abbott Calculation, if
any, Abaxis shall have [ * ] after receipt of the Abbott Calculation to
respond in writing, with (a) Abaxis’ estimate; (b) the difference between
Abaxis’ estimate and the Abbott Calculation; and (c) purchase order level
detail so that Abbott may verify the Abbott Calculation. If Abbott
disagrees with Abaxis’ calculation and Abaxis requests, in writing, purchase
order level detail for the Abbott Calculation, Abbott shall provide such
information. If the exchange of such information does not resolve the
dispute, the Parties shall negotiate in good faith to determine the actual
Product Purchases in such Contract Year and, if such dispute is not resolved
within [ * ], the dispute shall be resolved pursuant to Section 9.11.
	 
	 	(b)	 	Abbott Does Not Provide Abbott Calculation. If Abbott
does not provide Abaxis with the Abbott Calculation within [ * ] after the end
of a given Contract Year, Abaxis shall provide Abbott with Abaxis’ written
calculation of Abaxis’ Product Purchases in such Contract Year (the “Abaxis
Calculation”) within [ * ] after the end of such Contract Year. If Abbott
disagrees with the Abaxis Calculation, Abbott shall have [ * ] after receipt of
the Abaxis Calculation to respond, in writing, with (i) Abbott’s estimate, (ii)
the difference between Abbott’s estimate and the Abaxis Calculation, and (iii)
purchase order level detail so that Abaxis may verify the Abaxis Calculation.
If Abaxis disagrees with Abbott’s calculation and Abbott requests, in writing,
purchase order level detail for the Abaxis Calculation, Abaxis shall provide
such information. If the exchange of such information does not resolve the
dispute, the Parties shall negotiate in good faith to determine the actual
Product Purchases in such Contract Year and, if such dispute is not resolved
within [ * ], the dispute shall be resolved pursuant to Section 9.11.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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2.7 Annual Product Sales Calculation. Abaxis shall provide Abbott with Abaxis’
written calculation of Abaxis’ Product Sales in each Contract Year in conjunction with its annual
reporting obligations set forth in Section 3.8 of this Agreement.



2.8 Promotional Materials. Abaxis shall not disseminate or publish any written
promotional materials or advertisements intended for customer distribution referencing the Products
without Abbott’s prior written approval, which approval shall not be unreasonably withheld. Abaxis
shall forward any written promotional materials or advertisements requiring Abbott’s approval
pursuant to the terms of this Section 2.8 to the attention of Divisional Vice President, Marketing,
Abbott Point of Care, 400 College Road East, Princeton, NJ 08540. Abbott shall review and comment
on such written promotional materials or advertisements within [ * ] after receipt thereof from
Abaxis. If Abbott does not respond during such [ * ] period, such promotional materials shall be
deemed approved.



ARTICLE 3

SALES, MARKETING AND SUPPORT




3.1 Sales and Promotional Activities.




	 	(a)	 	Marketing. Abaxis shall, at its own expense, use
commercially reasonable efforts to market and promote the Products in the
Territory. Abaxis’ promotional activities shall include, but shall not be not
limited to: (a) including the Products in its appropriate catalogs, promotional
mailings and like publications; (b) developing, preparing and placing
advertising concerning the Products in appropriate media or through appropriate
direct mail; (c) exhibiting the Products at appropriate trade shows and
exhibitions; (d) conducting commercially reasonable and appropriate market
research; and (e) rendering other services customarily rendered by a
distributor of veterinary medical products. By [ * ] of each Contract Year,
Abaxis shall provide Abbott with a list of all proposed trade shows and
exhibitions that it plans to attend in the next Contract Year. Abaxis may
develop printed sales and promotional materials relating to the Products in the
local language at its own expense. Abaxis 







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	 	 	shall provide such materials, if any, which have not been previously approved to Abbott
for Abbott’s review and approval, which approval shall not be unreasonably
delayed or withheld. Abbott shall review such materials within [ * ], and
Abbott’s failure to object to any materials within such [ * ] of sending
shall be deemed approval. If Abbott objects to the material, Abaxis shall
modify such materials accordingly.
	 
	 	(b)	 	Sales Personnel. Abaxis, at its sole cost and expense,
shall engage, compensate, supervise, train and maintain such competent,
qualified personnel as may be reasonably required to, deliver, promote, market,
sell, distribute, provide technical service and support for the Products, and
End User complaint handling in the Territory.
	 
	 	(c)	 	Sales Effort. Abaxis shall use a degree of effort to
market, promote and Sell the Products in the Field in the Territory [ * ].
	 
	 	(d)	 	Fees and Commission. Abaxis shall not [ * ]. Abaxis
shall not [ * ], including [ * ].
	 
	 	(e)	 	Appointment of Dealers. Abaxis shall have the right to
appoint Dealers for the sale of the Products in the Field in the Territory.
Abaxis shall within [ * ] of this agreement update Abaxis’ written Distributor
Policy to include language that [ * ] and shall communicate the same to its
then-existing dealers. Abaxis agrees that, if it enters into a new agreement
or arrangement, following the Effective Date, with any dealer to allow such
dealer to offer for Sale, Sell, have Sold, use, have used, market, have
marketed, distribute, have distributed, import and have imported Products in
the Field in any country or region of the Territory, Abaxis shall [ * ], and
further by subjecting them to the Distributor Policy described in the foregoing
sentence.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(f)	 	Technical Support. Abaxis shall be responsible as the
first point of contact for technical support with the End User, including the
establishment of species-specific reference ranges. Abaxis will further
provide technical support on the usage of Products by the End Users based upon information supplied by Abbott, [ * ]. The term “Technical Support”
shall mean problem resolution, explanation of functionality and collection
of incident reports. Abbott will provide technical support to Abaxis [ * ].
	 
	 	(g)	 	Modified and New Products. Abaxis shall provide timely
comprehensive information to its Dealers or End Users, as appropriate, with
respect to newly available Products, discontinuance of Products and changes in
existing Products, including, but not limited to, performance specification
changes and required software upgrades in Analyzers (which may or may not be
coupled to specific lots of Cartridges). Abaxis shall use commercially
reasonable efforts to ensure that each End User in the Territory makes any such
performance specification changes and software upgrades in a timely manner.
Abbott shall inform Abaxis in writing of newly available Products, the
discontinuance of Products, or changes in existing Products at least [ * ]
prior to the availability of such new Products or the effectiveness of such
discontinuance or change, as the case may be.
	 
	 	(h)	 	Warranty Services. Abaxis shall provide a technical
liaison and assistance to End Users for warranty service of the Products, [ * ]. In
addition, at the written request of Abbott, Abaxis shall perform certain
warranty repairs pursuant to the warranty set forth in Section 3.4(f) of
this Agreement during the term of such warranty, which shall be billed to
and paid by Abbott at mutually agreed upon labor rates and using replacement
parts furnished by Abbott at its sole cost.
	 
	 	(i)	 	Customer Service. Abaxis acknowledges and agrees that
it shall be responsible for all customer service, training, and education
within the Territory relating to the operation and use of the Products. All
such services shall be performed in accordance with Abbott’s standards and
specifications, as notified by Abbott to Abaxis from time to time during the
continuance of this Agreement. As part of its customer service obligations, Abaxis shall maintain a twenty-four (24) hour answering service
to assist Customers with all Product inquiries.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(j)	 	Strategy Meetings. Periodically during the Term (but
not less than [ * ]), Abaxis and Abbott shall review topics which may include
Abaxis’ marketing and selling strategy, potential collaboration in the
development of new Product assays or configurations to meet needs or
opportunities in the Field, training of End Users, inventory, and other
practices with a view toward maximizing End Users’ use of and satisfaction with
Products.
	 
	 	(k)	 	Quality Assurance Audit by Abbott. Abbott shall, upon
giving not less than [ * ] notice to Abaxis, have the right, during normal
business hours, to retain an independent third party to visit or assess all
locations where Abaxis maintains, ships, or repairs inventory of Products to
conduct a quality assurance audit of such facilities and/or an on-site
surveillance of its inventory storage tracking, provided that such independent
third party shall execute a customary confidentiality agreement with the
audited party with respect to the information received in connection with such
audit that is not broader in scope or more burdensome than the confidentiality
obligations contained in this Agreement. Provided further that some or all of
such audit activities may be undertaken directly by Abbott upon the prior
mutual written agreement of the Parties. In the event that an audit reveals
matters that Abbott determines should be corrected by Abaxis, Abbott shall
provide, in writing, within [ * ] of such audit, a list of such matters and any
proposed corrective action to be taken by Abaxis. Abaxis shall respond within
[ * ] of receiving Abbott’s notification of the corrective action to be taken
and an estimated complete date.








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(l)	 	Quality Assurance Audit by Abaxis. Abaxis shall, upon
giving not less than [ * ] notice to Abbott, have the right, during normal
business hours, to retain an independent third party to visit or assess all
locations where Abbott manufactures, maintains, ships, or repairs inventory of
Products to conduct a quality assurance audit of such facilities and/or an
on-site surveillance of its inventory storage tracking, provided that such
independent third party shall execute a customary confidentiality agreement
with the audited party with respect to the information received in
connection with such audit that is not broader in scope or more burdensome
than the confidentiality obligations contained in this Agreement. Provided
further that some or all of such audit activities may be undertaken directly
by Abaxis upon the prior mutual written agreement of the Parties. In the
event that an audit reveals matters that Abaxis determines should be
corrected by Abbott, Abaxis shall provide, in writing, within [ * ] of such
audit, a list of such matters and any proposed corrective action to be taken
by Abbott. Abbott shall respond within [ * ] of receiving Abaxis’
notification of the corrective action to be taken and an estimated complete
date.
	 
	 	(m)	 	Compliance Audit. Upon reasonable prior notice and at
mutually agreeable times, Abbott may, at Abbott’s expense, retain an
independent third party auditor to audit Abaxis’ books and records pertaining
to its business in the Field, to the extent such books and records are relevant
to Abaxis’ compliance with its obligations under this Section 3.1, solely to
verify Abaxis’ compliance with its obligations under this Section 3.1, provided
that such independent third party auditor shall execute a customary
confidentiality agreement with the audited party with respect to the
information received in connection with such audit that is not broader in scope
or more burdensome than the confidentiality obligations contained in this
Agreement.





3.2 Diversion and Counterfeiting.




	 	(a)	 	Resellers — Obligations of Abaxis. Abaxis shall not
promote or market any Product for use outside the Field, [ * ]. Abaxis shall
not [ * ]. Abaxis shall [ * ]. Recognizing the end use of the Products in
healthcare, Abaxis shall not [ * ]. Abaxis shall [ * ]. Upon Abbott’s
request, if and to the extent Abaxis or its dealers Sell Products to customers
outside the Field, Abaxis shall [ * ]. The Cartridge units Sold outside the Field shall not be
included in Cartridge Purchases for the purpose of meeting the Minimum
Purchase Requirement or the Minimum Sales Requirement contained in Section
2.4. Without Abbott’s specific written consent, Abaxis may not [ * ].







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


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	 	(b)	 	Resellers — Obligations of Abbott. This Section
3.2(b) is subject to the limitations set forth in Section 2.1(d). Neither
Abbott nor its Affiliates shall promote or market any Product for use in the
Field, [ * ]. Neither Abbott nor its Affiliates shall [ * ]. Abbott shall [ *
]. Abbott and its Affiliates shall not [ * ]. Abbott shall [ * ]. Without
Abaxis’ specific written consent, neither Abbott nor its Affiliates may [ * ].
	 
	 	(c)	 	Counterfeit Products. Abaxis shall purchase Products
for distribution and Sale in the Field in the Territory exclusively from
Abbott. If Abaxis is offered the opportunity to purchase or otherwise becomes
aware of any counterfeit products similar in appearance and/or function to the
Products manufactured by an entity other than Abbott (“Counterfeit Products”),
Abaxis shall promptly notify Abbott thereof. Abaxis covenants and agrees not
to purchase any Counterfeit Products, and the failure of Abaxis to comply with
the foregoing covenant and agreement shall constitute grounds for immediate
termination of this Agreement by written notice to such effect sent by Abbott.
Such termination of this Agreement shall be effective as of the date of receipt
of any such notice by Abaxis. In addition, Abaxis acknowledges that its
purchase of Counterfeit Products will cause Abbott irreparable harm and that
Abbott shall have the right to equitable and injunctive relief, in addition to
money damages, in the case of such action by Abaxis.
	 
	 	(d)	 	Corrupt Practices. Abaxis shall not use any
compensation hereunder as payment to any government official or employee of any
country in the Territory for the purpose of influencing such person’s decisions
or actions regarding the Products.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.









 


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	 	(e)	 	Abbott Compliance Audit. Upon reasonable prior notice
and at mutually agreeable times, Abbott may, at Abbott’s expense, retain an
independent third party auditor to audit Abaxis’ books and records relating to
Abaxis’ Sales of Product solely to verify Abaxis’ compliance with its
obligations under this Section 3.2, provided that such independent third party
auditor shall execute a customary confidentiality agreement with the audited
party with respect to the information received in connection with such audit
that is not broader in scope or more burdensome than the confidentiality
obligations contained in this Agreement.
	 
	 	(f)	 	Abaxis Compliance Audit. Upon reasonable prior notice
and at mutually agreeable times, Abaxis may, at Abaxis’ expense, retain an
independent third party auditor to audit Abbott’s books and records relating to
Abbott’s Sales of Products solely to verify Abbott’s compliance with its
obligations under this Section 3.2, provided that such independent third party
auditor shall execute a customary confidentiality agreement with the audited
party with respect to the information received in connection with such audit
that is not broader in scope or more burdensome than the confidentiality
obligations contained in this Agreement.





3.3 Purchase Prices. Abaxis’ Purchase Prices for the Products as of the Effective
Date are set forth in Exhibit 1.17, attached hereto and incorporated herein. All Purchase Prices
for the Products and payments therefor shall be in U.S. dollars.




	 	(a)	 	Price Adjustments. The Purchase Price for each Product
shall [ * ], upon [ * ] prior written notice, Abbott may adjust the Purchase
Prices for the Products, provided such increase may not exceed [ * ]. “PPI”
shall mean the most current final Producer Price Index for Manufacturing,
Analytical and Scientific Instruments Except Optical, (industry code 334516-0),
not seasonally adjusted, as published by the United States Department of Labor,
Bureau of Labor Statistics; provided, that if the United States Department of
Labor, Bureau of Labor Statistics, or a successor agency, ceases to publish the
foregoing PPI, the index that will most nearly accomplish the purpose thereof and the use thereof by the parties hereto
with respect to price increases under this Agreement shall be used in lieu
of the foregoing PPI. Notwithstanding the foregoing, Abbott may adjust the
Purchase Price for a Product at any time during the Term of this Agreement
in the event that [ * ], in the event of such an increase, [ * ].







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


15









 










	 	(b)	 	[ * ]. Abaxis shall have the right to purchase up to [ * ]
Cartridges from Abbott per Calendar Year at a [ * ] to be used for [ * ]. Such
purchases of Product for [ * ] purposes in accordance with this subsection will
not count towards the Minimum Purchase Requirement and will not incur premium
charges.
	 
	 	(c)	 	Rebate. Abaxis will receive a [ * ] rebate on Purchase
Prices for purchases that exceed the Minimum Purchase Requirement in any
Contract Year, [ * ]. This rebate will be paid to Abaxis within [ * ] of the
end of any calendar quarter during the Calendar Year in which the Minimum
Purchase Requirement is exceeded.
	 
	 	(d)	 	Resale Prices. Abbott price increases to Abaxis are in
no way contingent upon Abaxis agreeing to increase prices to its customers nor
its effectiveness in increasing prices to its customers. Abaxis shall set its
own prices for resale of the Products to customers provided that Abbott may, at
its option, suggest resale prices to Abaxis.
	 
	 	(e)	 	Taxes; Import Fees. All Purchase Prices for the
Products do not include insurance, freight, customs, duties, taxes, any
foreign, federal, state or local taxes that may be applicable to Products
including, without limitation, sales, excise, value-added, withholding, and
other taxes. Customs duties and charges, if any, shall be borne by Abaxis. Any
and all export and import licenses or approvals shall be obtained by Abaxis at
its expense. When Abbott has the legal obligation to collect such taxes, the
appropriate amount shall be added to Abaxis’ invoice and paid by Abaxis unless
Abaxis provides Abbott with a valid tax exemption certificate authorized by the
appropriate taxing authority.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.









 


16









 










3.4 Other Terms and Conditions of Sale. Abaxis’ purchase of Products from Abbott
hereunder shall also be subject to the following terms and conditions of sale:




	 	(a)	 	Payment Terms. Payment terms for all shipments of
Products to Abaxis shall be net [ * ] from the date of receipt of Abbott’s
invoice to Abaxis for each shipment of Products. All payments shall be made
without set-off or counterclaim and free and clear of and without deduction for
any other charges of any kind, other than amounts that are the subject of a
reasonable good faith dispute. The invoiced amount shall be paid by Abaxis to
Abbott by: (a) wire transfer to the bank specified by Abbott, or (b) certified
bankers check. Abbott reserves the right to change the payment or credit terms
at any time upon [ * ] prior notice to Abaxis. Any invoiced amount not
received within [ * ] of the date the payment was due shall be subject to a
service charge of the lesser of [ * ] per month or the maximum rate permitted
by law.
	 
	 	(b)	 	Order Entry. Abaxis shall order Products on purchase
orders consistent with the process set forth in Section 3.5 and, for co-branded
Products only, subject to the minimum order requirements set forth on Exhibit
3.4(b). All purchase order forms shall specify the quantities of each Product
ordered, requested delivery dates, the identity of Products ordered, Product
price, and delivery and shipping instructions including carrier selected. All
orders will be governed by the terms of this Agreement. Any other terms and
conditions stated on such purchase orders shall not be applicable to purchases
hereunder.
	 
	 	(c)	 	Delivery. All shipments of Products to Abaxis shall be
shipped F.O.B. Abbott’s facilities. Abbott shall select the carriers for all
shipments of Products hereunder following consultation with Abaxis, provided
that [ * ] Abaxis shall be responsible for shipping charges for the Products,
which shall be added to Abbott’s invoices to Abaxis. Title and risk of loss
shall pass to Abaxis upon delivery of the Products to the carrier for shipment.








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


17









 






	 	(d)	 	Acceptance of Product. Abaxis shall inspect all
Products upon delivery in a commercially reasonable manner. Failure by Abaxis
to give notice of defective or damaged Product within the time periods
specified in Section 3.4(e) shall be deemed a waiver of Abbott’s obligations as
stated herein, with respect to such defect or damage only. Notwithstanding the
foregoing, this Section 3.4(d) is not intended to limit Abaxis’ rights under
Section 7.3 with respect to defective or damaged Product.
	 
	 	(e)	 	Defective and Improper Delivery; Product Returns. If
Abaxis or a Dealer or End User claims that: (a) incorrect Product was shipped;
or (b) there was a shortage in the shipment, and notice in writing of such
incorrect shipment or shortage is provided to Abbott within [ * ] of receipt of
the shipment then, upon receipt of such notice, Abbott’s sole obligation shall
be to either replace any incorrectly shipped Product, make up any shortfall, or
refund any Purchase Price paid by Abaxis, at Abbott’s option. If any Product
is claimed by Abaxis, a Dealer or End User to be defective and Abbott is
notified in writing of such defect within [ * ] of receipt of the Product by
the End User or, in the case of a latent defect, Abbott is notified in writing
within [ * ] of discovery of such latent defect within the warranty period
stated in Section 3.4(f), then Abbott’s sole obligation shall be to either
repair or replace any Product found by Abbott to be defective or determined to
be defective by a Third Party laboratory as provided below. If Abaxis claims a
credit pursuant to this Section 3.4(e), such claim shall be accompanied by the
original invoice issued by Abaxis to the End User or Dealer returning the
Product. Upon request by Abbott, Abaxis shall deliver to Abbott, at Abaxis’
cost, any returned Product with regard to which the credit is claimed. Abbott
shall determine [ * ]. Any disagreements between the parties as to which a
returned Product is defective shall, at the request of either party, be
resolved by a mutually acceptable independent third party laboratory after








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


18









 










	 	 	 	analysis of the relevant Products. Such third party laboratory shall determine
whether such Products are defective, and the parties agree that such laboratory’s
determination on this issue shall be final, binding, and determinative. The
party against whom the third party laboratory rules shall bear all costs of
such third party testing. All sales of the Products are final and there
will be no Product returns accepted except as set forth in this Section
3.4(e) without Abbott’s prior written consent.
	 
	 	(f)	 	Warranty. Abbott warrants that (i) each Product sold
hereunder will, at the time of shipment, comply with the then-current
specifications for such Product and be free and clear of any and all
encumbrances, liens, or other third party claims; (ii) Products (including
refurbished Analyzers) shall comply with Abbott’s standard warranty therefor,
as set forth in Exhibit 3.4(f). ABBOTT MAKES NO OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, AND ABBOTT EXCLUDES AND DISCLAIMS ANY OTHER WARRANTIES
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. ABBOTT SHALL HAVE NO LIABILITY FOR INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RELATING TO THE SALE OR USE OF THE
PRODUCTS, INCLUDING LOST PROFITS.





3.5 Rolling Forecasts. [ * ] after the Effective Date, Abaxis shall provide Abbott
with a monthly forecast of its requirements of the Products for the first full Contract Year. On
or before the [ * ] prior to the beginning of each subsequent calendar month during the Term,
Abaxis shall provide Abbott with a rolling [ * ] forecast, the first [ * ] of which will be firm
purchase orders binding on Abaxis, the last [ * ] of each shall consist of Abaxis’ best estimate
forecast of its requirements of Products. Abaxis shall also provide, with each monthly forecast, a
[ * ] rolling unit and dollar sales history detail for each individual Product, major customer type
(Dealer and End User), United States and each major international area (e.g. Western Europe, Asia),
the quantities and prices of Products Sold by Abaxis, the aggregate total dollar sales
volume for purchases on a Product group-by-Product group basis and such other information relating
to the Sales and distribution of Products by Abaxis as Abbott may reasonably request.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


19









 










3.6 Inventory. Abaxis shall use commercially reasonable efforts to maintain a level
of inventory of all Products that Abaxis distributes in the Territory sufficient to ensure that
Abaxis is able to fill at least [ * ] of customers’ orders within [ * ] of Abaxis’ receipt of such
orders. Abaxis shall store Product inventory in its distribution centers in a manner appropriate
for maintaining such Products in good and saleable condition as required on Product labeling and
consistent with the Product dating and storage conditions specified by Abbott. All Abaxis
distribution centers shall conform to the temperature control requirements set forth on Product
labeling, and shall be subject to periodic audit by Abbott by no more than three (3) Abbott
representatives per audit at mutually agreeable reasonable times and upon reasonable prior notice.
Abaxis’ current list of distribution centers is set forth in Exhibit 3.6, attached hereto and
incorporated herein, and Abaxis shall promptly notify Abbott in writing of any changes to this list
at least [ * ]. Abaxis shall maintain a distribution record system reasonably sufficient to enable
Abbott and/or Abaxis to promptly notify Distributors and End Users of Product safety information or
issues. If required by applicable laws or regulations, Abaxis shall establish and maintain an
auditable distribution record system including an accurate, traceable lot number control system
which is traceable to End Users for such Products purchased from Abaxis.



3.7 Export Regulations. Abaxis will not take any action which would, or
fail to take
any action where such failure would, directly or indirectly result in or constitute a violation by
Abaxis or Abbott of any applicable law, treaty, ruling or regulation, including, without
limitation, laws and regulations relating to the export, resale and distribution of the Products.
In performing Abaxis’s obligations, Abaxis or any person acting on its behalf must not seek,
accept, offer, promise or give any payments, fees, loans, services or gifts from or to any person
or firm as a condition or result of doing business with Abaxis or Abbott. In performing its
obligations under this Agreement, neither Abaxis nor any person acting on Abaxis’s behalf shall
make, directly or indirectly, any offer or promise or authorization of a bribe, kickback, payoff or
any other payment or gift intended to improperly influence an agent, government official, political
party or candidate for public office to exercise their discretionary authority or influence in
order to assist in the sale, marketing, promotion, importation, licensing or distribution of the
Products.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


20









 









3.8 Annual Reporting; Books and Records. Abaxis shall provide to Abbott
annually
within [ * ] following the end of each Contract Year, a report that provides Cartridge unit Sales
to Dealers and End Users that Abaxis Sells to directly, aggregated monthly in each country or
region, and the calculation of the percentage of Cartridges Sold to customers by country or region.
Abaxis shall maintain books and records in keeping with standard industry practice relating to the
Sale of Products hereunder including monthly Cartridge unit Sales to Dealers and End Users that
Abaxis Sells to directly, aggregated monthly in each country or region, and shall retain such
records during the Term and for [ * ] thereafter. Such books and records shall be in accordance
with generally accepted accounting principles reflecting each Product’s unit Sales and per country
or region in the Territory. Upon [ * ] prior written notice to Abaxis, Abaxis’ books and records
relating to the Sale of Product hereunder shall be open for inspection in accordance with the
following terms. To conduct such inspection, Abbott shall retain, at its own expense, an
independent certified public accountant reasonably acceptable to Abaxis. Such examination shall
occur at Abaxis’ principal place of business during normal business hours for the sole purpose of
verifying the accuracy of financial calculations hereunder. Such independent accountant shall be
required to execute a mutually acceptable confidentiality agreement and shall report to Abbott only
the amount of any discrepancy, if any, in the calculations. Abbott shall bear the cost of such
audit, unless the audit reveals inaccurate annual reporting of unit Sales greater than [ * ] or a
value of [ * ] (whichever is greater), in which case Abaxis shall reimburse Abbott for its
reasonable expenses incurred in connection with such audit.



3.9 Product Recalls and Complaints. Upon Abbott’s request, Abaxis shall assist Abbott
in identifying Dealers and End Users for notification in connection with any Product recalls.
Within [ * ] of Abaxis’ own receipt of notice (at Abaxis headquarters) of any End User technical
questions, complaints or actual or alleged Product defects, Abaxis shall notify Abbott thereof
orally, followed promptly by a written notice using the “Abbott Laboratories Product Complaint
Inquiry Form”, the current form of which is set forth in Exhibit 3.9, attached hereto and
incorporated herein.



3.10 Billing and Collections. Abaxis shall have sole responsibility for billings to
and collections from customers for Abaxis’ sales of Products.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


21









 





3.11 Abbott Trademarks. Abaxis acknowledges that Abbott Trademarks are valid
trademarks and trade names and the sole property of Abbott, and Abaxis shall not disparage or
challenge the validity of Abbott Trademarks during the Term. Abaxis shall promptly notify Abbott
of any actual or alleged infringements of Abbott Trademarks of which Abaxis becomes aware during
the Term. Nothing contained herein shall be construed to authorize Abaxis: (a) to use any Abbott
Trademarks as a style or name, or as a part of the style or name, of any firm, partnership or
corporation; (b) to apply Abbott Trademarks to any goods other than the Products; or (c) at any
time after the termination of this Agreement, to apply Abbott Trademarks to goods or to any other
use whatsoever.



3.12 Non-Competition Obligations. During the Term, Abaxis and its Affiliates shall
not promote or sell any products that are competitive with the Products (“Competitive Products”) in
the Field in the Territory, and shall use its best efforts to ensure compliance with the provisions
of this Section 3.12 by all Abaxis employees, subject to the following exceptions and conditions:




	 	(a)	 	Excluded Competitive Products. Competitive Products
shall exclude the products referenced in Exhibit 3.12(a) attached hereto and
incorporated herein by reference (“Excluded Competitive Products”). Abaxis and
its Affiliates shall have the right to promote and sell Excluded Competitive
Products. Exhibit 3.12(a) may be amended only by mutual written agreement of
the Parties.
	 
	 	(b)	 	Exception for Recall or Withdrawal. If any Product is
the subject of a recall, withdrawal or interruption of Product supply for a
period in excess of [ * ], or a Product is not available for resale due to
Abbott’s inability to supply such Products, Abaxis may, at its option, purchase
and resell reasonably comparable replacement products for the duration of such
recall or withdrawal or Product unavailability, provided that (i) [ * ]; (ii) [
* ]; (iii) Abaxis shall return to selling recalled, withdrawn or unavailable
Products or Abbott Alternative Products and discontinue selling competitor’s
products within [ * ] of the availability of such Products or Alternative
Abbott Products; 





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


22









 










	 	 	 	(iv) Abbott shall notify Abaxis in writing at least [ * ] prior to the availability of such Products or Abbott Alternative
Products to enable Abaxis to commence reduction of competitive product
stock. In the event that Abaxis does not cease selling replacement products
and resume selling Products or Abbott Alternative Products as set forth
above within [ * ] of such Products becoming available, Abbott shall have
the right, without prejudice to any other rights or remedies available to
it, to terminate this Agreement upon [ * ] prior written notice to Abaxis.
	 
	 	(d)	 	EU Commission Directive. In accordance with the EU
Commission Directive on Vertical Agreements, the covenant not to sell
Competitive Products set forth in this Section 3.12 for countries in the
European Union (“EU”) shall be for no longer than [ * ] after the
Effective Date. Abaxis agrees that if Abaxis has maintained exclusivity as set
forth in Sections 2.4 and 2.5 during the Term, that Abaxis shall arrange to
meet with Abbott to negotiate in good faith the terms, if any, under which the
covenant not to sell competitive products in the EU may be extended.
	 
	 	(e)	 	Compliance Audit. Upon reasonable prior written notice
to Abaxis and at mutually agreeable times, Abbott may, at Abbott’s expense,
retain an independent third party auditor to audit Abaxis’ sales records,
branch inventory and any other records necessary to verify Abaxis’ compliance
with its obligations under this Section 3.12, provided that such independent
third party auditor shall execute a customary confidentiality agreement with
the audited party with respect to the information received in connection with
such audit that is not broader in scope or more burdensome than the
confidentiality obligations contained in this Agreement. In the event that any
such audit reveals that Abaxis is non-compliant with the provisions of this
Section 3.12 or that Abaxis has given to Abbott false sales data or other
information concerning the purchase or sale of Products, Abbott shall notify
Abaxis of the results of such audit and Abaxis shall have [ * ] to cure any
identified deficiencies. In the event that Abaxis does not cure any identified
deficiencies within such [ * ] period, Abbott may in its sole discretion terminate this Agreement on [ * ]
notice to Abaxis.







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


23









 






3.13 Regulatory Approvals. If and solely to the extent required by local laws, Abaxis
shall, [ * ], obtain and maintain in effect all registrations, permits, licenses and approvals
(collectively, “Approvals”) necessary or appropriate for the importation of the Products into, and
the distribution, sale, resale, and use of the Products within the Territory. Abaxis shall
promptly forward all copies of all such Approvals to Abbott’s Regulatory Affairs Department. Abbott
shall provide Abaxis with Product test results and other technical information required to obtain
and maintain the Approvals. Abaxis shall inform Abbott within a reasonable period of time of any
changes to the Approval process or the vigilance reporting requirements within the Territory.
Abaxis shall forward any questions or correspondence from regulatory authorities related to such
Approvals within the Territory to Abbott for response. To the extent permitted by applicable law,
such Approvals shall be [ * ]. If, however, applicable law requires [ * ], Abaxis shall, [ * ].
Abaxis represents and warrants that it has and shall maintain at all times during the term of this
Agreement, all Approvals necessary or appropriate for performing its obligations hereunder. Should
Abaxis fail to obtain or maintain such Approvals during the term of this Agreement, Abbott shall
have the right to immediately terminate this Agreement upon written notice to Abaxis.



In the event that Abaxis does not obtain or maintain in effect the Approvals necessary to
perform its obligations hereunder, Abbott shall have the right but is not obligated to repurchase
at the price paid by Abaxis for such Products up to [ * ] inventory of Products which shall mean a
quantity not exceeding [ * ] of the total number of each Product sold by Abbott to Abaxis under
this Agreement over the previous [ * ] or since the date hereof, whichever is shorter; provided,
that any such inventory of Products shall be of saleable condition and the same quality as
originally shipped to Abaxis and shall have at least [ * ] shelf-life remaining on the date Abaxis
delivers the Products to Abbott or its designated recipient. Such re-purchased Products shall be
delivered to Abbott at the sole cost of Abaxis. Abaxis shall destroy any Products not re-purchased
by Abbott and provide Abbott with a certificate of destruction certified by an independent Third
Party appointed by Abbott. Abbott shall pay Abaxis for only such properly returned or re-purchased
Products upon receipt by Abbott upon the same payment terms as set out for purchase of Products by Abaxis in this Agreement. The aggregate amount to be paid to
Abaxis under this provision may be offset by Abbott against claims it has against Abaxis or any
sums owed by Abaxis to Abbott.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


24









 










3.14 Legal Environment. Abaxis shall immediately advise Abbott if Abaxis becomes
aware of any legislation, rule, regulation or other law (including, but not limited to, all health
and safety, custom, trade, tariff or other import laws, approvals process or vigilance reporting
requirements) which is in effect or which may come into effect after this Agreement becomes
effective and which affects the importation of the Products into, or the distribution, sale, or use
of the Products within the Territory and/or Japan, and shall use commercially reasonable efforts to
remain informed of all such legislation, rules, regulations or other laws.



3.15 Contacts with Authorities. Abaxis shall notify Abbott of any correspondence
exchanged with local authorities regarding the distribution of the Products in the Territory.



3.16 Debarment and Exclusion. Abaxis represents and warrants that, to the best of its
knowledge, neither it, nor any of its employees or agents providing services under this Agreement,
has ever been, is currently, or is the subject of a proceeding that could lead to that Party
becoming, as applicable, a Debarred Individual or Debarred Entity. A “Debarred Individual” is an
individual who has been debarred by the U.S. Food and Drug Administration (“FDA”) pursuant to Title
21 United States Code §335a (a) or (b), or by any other competent authority, including, without
limitation, any local competent authority, from providing services in any capacity to a person that
has an approved or pending drug product application. A “Debarred Entity” is a corporation,
partnership or association that has been debarred by FDA pursuant to Title 21 United States Code
§335a (a) or (b), or by any other competent authority, including, without limitation, any local
competent authority, from submitting or assisting in the submission of any abbreviated drug
application, or a subsidiary or affiliate of such a corporation, partnership or association.
Abaxis further covenants, represents and warrants that if, during the term of this Agreement, it
becomes aware that it, or any of its employees or agents providing services under this Agreement,
becomes or is the subject of a proceeding that could lead to that Party becoming, as applicable, a
Debarred Individual or Debarred Entity, Abaxis shall immediately notify Abbott, and Abbott shall
have the right to immediately terminate this Agreement.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


25









 









3.17 Customer Communication. Abaxis shall promptly inform Abbott of any Product
quality-related communication (i.e., Product information, customer letters, device correction).
Abaxis shall follow the reasonable actions requested by Abbott regarding quality-related matters
and, at Abbott’s request, provide any reasonable quality-related information without delay to its
customers.



3.18 Promotional Materials. At no cost to Abaxis, Abbott shall provide Abaxis
with such promotional materials relating to the Products as Abbott deems appropriate in such
quantities as may be mutually agreed for Abaxis’ use hereunder. Such documents shall be in the
English language, and may be in other languages to the extent already available. As required by
local regulatory laws or regulations, Abaxis shall, at its own cost, arrange for translation of
documents relating to the Products by a professional translator into the local language(s) of
Customers and shall revise such translation in accordance with the changes to the Documents that
may be made from time to time by Abbott. Such translation shall at a minimum meet all regulatory
requirements of the Territory and be of a standard deemed appropriate for medical products and
comparable with that provided for other products sold into the health care industry in the
Territory. Abaxis will provide any documents translated into the local language to Abbott for
review and shall revise such translation according to Abbott’s comments.



3.19 Training For Abaxis and End Users. Abbott shall provide Abaxis personnel such
training, at Abbott’s expense, as Abaxis may request in writing and that Abbott, at its sole
discretion, deems reasonable. Notwithstanding the above, all expenses incurred by Abaxis’
personnel in connection with such training, including without limitation, travel and other per diem
expenses shall be borne by Abaxis. Abaxis, prior to shipment of Products to an End User, shall
provide to each such End User Product storage and use instructions. Abaxis shall use commercially
reasonable efforts to ensure that all necessary and adequate introductory training is made
available to End Users within [ * ] after receipt of Analyzers and Cartridges; further, Abaxis
shall provide its End Users with necessary and adequate training and support within [ * ] after
delivery of the first shipment of Products to an End User. Upon Abaxis’ written request, Abbott
may provide follow-up training, at its sole discretion, at Abaxis’ facility. Abbott shall pay for
its employees’ salaries and their travel and travel-related expenses, including meals,
lodging and other living expenses. For training situations not covered by this Section 3.19, and
the Parties shall discuss how to equitably share the travel and related expenses.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


26









 










ARTICLE 4

INTELLECTUAL PROPERTY




4.1 Markings. Product distributed by Abaxis hereunder shall include both the Abaxis
Trademarks and the Abbott Trademarks. Abaxis shall not omit or alter patent numbers, trade names
or trademarks, numbers or series or any other Abbott markings affixed on the Products obtained from
Abbott or alter Product labeling. Abaxis shall be entitled to mark the following Products with its
trademark or trade name in prominent place, subject to Abbott’s prior written approval, not to be
unreasonably withheld: Analyzer and outer Cartridge box, provided that Cartridge labels and pouches
will not carry Abaxis’ mark. Abaxis is not authorized to use the trademark and trade name “Abbott”
or any other trademark or trade name of Abbott in any manner except to indicate that Abbott is the
manufacturer of the Products and, consistent with the provisions of Section 4.2 and during the Term
of this Agreement and only in the Field in the Territory, that Abaxis is an independent distributor
for Abbott and is selling Abbott’s Products. Abaxis shall acquire no rights in the Abbott
trademark and trade name, or any other trademark owned by Abbott.



4.2 Use of Trademarks and Tradenames. Abbott hereby authorizes Abaxis to use, on a
nonexclusive basis for the Term, without cost to Abaxis other than payment for the Products, the
Abbott Trademarks, solely to identify Abbott as the manufacturer of the Products and for Abaxis’
distribution of Products and related performance under this Agreement. The Abbott Trademarks and
the goodwill associated therewith are and shall remain the exclusive property of Abbott. Abaxis
shall not: (a) use the Abbott Trademarks as part of any composite mark including any elements not
approved in advance in writing by Abbott; (b) challenge the validity or enforceability of the
Abbott Trademarks (unless such restriction is illegal); or (c) acquire any proprietary rights in
the Abbott Trademarks by reason of any activities under this Agreement or otherwise. All uses of
the Abbott Trademarks by Abaxis and any additional goodwill created thereby shall inure to the
exclusive benefit of Abbott. Abbott, at all times during the Term on reasonable notice, shall have the right to inspect the materials and services on or in
connection with which the Abbott Trademarks are used in order to assure Abbott that its quality
standards relating to the Products and Abaxis’ servicing and other provisions of this Agreement
pertinent to the Abbott Trademarks are being observed. If at any time Abbott shall reasonably
object to any use to which the Abbott Trademarks are put, Abaxis shall promptly cease any such use.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


27









 











4.3 License to Use Computer Software. All software, on whatever media and in whatever
form, Abbott shall deliver to Abaxis hereunder (the “Software”) is and shall remain the property of
Abbott and its suppliers and licensors thereof and shall only be used in accordance with the terms
of this Agreement and any End User License Agreements (each, a “EULA”) distributed therewith. The
Software contains copyrighted and proprietary trade secrets of Abbott (and its suppliers and
licensors), and Abaxis shall keep the Software in confidence. Abaxis shall not copy, use or
disassemble the Software unless agreed by Abbott. Abaxis shall have the right to reproduce
Software only for: (a) one backup/archival copy; and (b) installation on and use with equipment
designated by Abbott as suitable therefor and for use solely with the Products distributed by
Abaxis. Abaxis shall reproduce the copyright and other proprietary notices of Abbott and Third
Parties present in the Software delivered to Abaxis. Abaxis’ license to use and distribute the
Software shall terminate on the earlier of: (w) termination of this Agreement; (x) discontinuance
of use of the designated equipment for the Software; (y) discontinuance of payment of periodic
license and maintenance fees, if any; or (z) breach by Abaxis of any of the above given terms;
provided, that End Users’ license rights shall continue in accordance with each EULA. All copies
of Software with respect to which the license hereunder is terminated shall be returned to Abbott
within [ * ] after such termination. Abaxis shall deliver to each End User a copy of Abbott’s
EULA, which shall inform them that such Software is and shall remain the property of Abbott and its
suppliers and licensors. Copies of the translated materials shall be provided by Abaxis to Abbott
for inclusion in the technical file before any CE marked Product is distributed in Abaxis’
territory in the Field.



ARTICLE 5

CONFIDENTIALITY




5.1 Confidential Information. It is contemplated that in the course of the
performance of this Agreement each Party may, from time to time, disclose Confidential Information to the
other Party. The Confidential Information may be in any form whatsoever and shall be owned, or
legally acquired by either Party hereto without restriction on dissemination or licensing, and
shall be transferred to the other Party in connection with this Agreement pursuant to the
respective rights and obligations hereunder.




	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


28









 










5.2 Term of Confidentiality. Except to the extent expressly authorized by this
Agreement or otherwise agreed to in writing, during the term of this Agreement and for a period of
[ * ] following the termination of this Agreement, the receiving Party shall take such reasonable
measures to maintain such Confidential Information as confidential as it takes to protect its own
proprietary and confidential information, shall not use for its own benefit or the benefit of
others, and shall not publish or otherwise disclose such Confidential Information of a similar
nature except that each Party shall be each permitted to disclose portions of Confidential
Information to the extent reasonably necessary to such Party’s attorneys, accountants and other
professional advisors under an obligation of confidentiality to such Party.



5.3 Disclosure Due to Judicial or Administrative Processes. In the event that a
receiving Party is required by judicial or administrative process to disclose Confidential
Information, it shall promptly notify the disclosing Party and allow the disclosing Party, at its
sole cost and expense, a reasonable time to oppose such process and/or seek a protective order to
limit exposure to and dissemination of said Confidential Information.



5.4 Disclosure Mandated by Law. To the extent any disclosure is required by law or
regulation, including but not limited to securities or other laws or regulations of any country,
the Parties shall consult with each other regarding the contents of such disclosure prior to such
disclosure, and the disclosing Party in any event shall provide to the other Party a draft copy of
the information to be disclosed for approval at least [ * ] prior to such disclosure, such approval
not to unreasonably withheld.



5.5 Publicity. Neither Party shall make any public announcement concerning this
Agreement, nor make any public statement which includes the name of the other Party or any of its
Affiliates, or otherwise use the name of the other Party or any of its Affiliates in any public
statement or document, except as may be required by law or judicial order, without the written
consent of the other Party, which written consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Abaxis shall have the right, without obtaining Abbott’s
consent, to make a public announcement within [ * ] after the Effective Date that solely
communicates the fact that Abaxis has filed a legally required disclosure with the Securities and
Exchange Commission relating to the execution of this Agreement, provided that Abbott shall have an
opportunity to review and comment on such disclosure at least [ * ] before such disclosure is
filed.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


29









 









5.6 Terms of the Agreement. The terms of this Agreement are confidential and shall be
treated as Confidential Information hereunder.



5.7 Return of Confidential Information. Upon expiration or termination of this
Agreement, or at any time upon request by Abbott, Abaxis shall promptly return to Abbott all
Confidential Information disclosed by Abbott to Abaxis (including any and all copies thereof).
Upon request, Abaxis shall certify to Abbott that such action has been taken.



ARTICLE 6

REPRESENTATIONS AND WARRANTIES




Each Party hereby represents and warrants to the other Party as follows:



6.1 Corporate Existence and Power. Such Party (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state in which it is incorporated, (b)
has the corporate power and authority and the legal right to own and operate its property and
assets, to lease the property and assets it operates under lease, and to carry on its business as
it is now being conducted and as it is proposed to be conducted hereunder, and (c) is in compliance
with all requirements of applicable laws and regulations, except as previously disclosed to the
other Party or to the extent that any noncompliance would not have a material adverse effect on the
properties, business, or financial condition of such Party and would not materially and adversely
affect such Party’s ability to perform its obligations under this Agreement.



6.2 Authorization and Enforcement of Obligations. Such Party (a) has the corporate
power and authority and the legal right to enter into this Agreement and to perform its obligations
hereunder, and (b) has taken all necessary corporate action on its part to authorize the execution
and delivery of this Agreement and the performance of its obligations hereunder. This
Agreement has been duly executed and delivered on behalf of such Party, and constitutes a
legal, valid, binding obligation, enforceable against such Party in accordance with its terms.




	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


30









 








6.3 Consents. All necessary consents, approvals and authorizations of all
governmental authorities and other persons required to be obtained by such Party in connection with
the execution, delivery and performance of this Agreement have been obtained.



6.4 No Conflict. The execution and delivery of this Agreement and the performance of
such Party’s obligations hereunder (a) do not conflict with or violate any requirement of
applicable laws or regulations and (b) do not conflict with, violate or breach or constitute a
default or require any consent under, any contractual obligation of such Party.



6.5 Compliance With Laws. Each Party shall perform its obligations hereunder in
compliance with all applicable laws, including without limitation federal, state and local laws,
regulations and accepted industry guidelines.



ARTICLE 7

INDEMNIFICATION AND INSURANCE




7.1 Abaxis Indemnification. Abaxis shall defend, indemnify and hold harmless Abbott, its
Affiliates, and the officers, directors, employees and agents of Abbott and its Affiliates, from
and against any and all liabilities, damages, claims, demands, costs, or expenses (including
reasonable attorneys’ fees) claimed by any Third Party for any property or other economic loss or
damage or injury or death suffered by it to the extent the same is determined to have been caused
by [ * ], other than [ * ], but only if [ * ], or [ * ].



7.2 Insurance. During the Term, Abaxis and Abbott shall maintain general business
liability insurance coverage, including, if applicable, self-insurance, in the minimum aggregate
amount of [ * ].



7.3 Abbott Indemnification. Abbott shall defend, indemnify and hold harmless Abaxis,
its Affiliates, and the officers, directors, employees and agents of Abaxis and its Affiliates,
from and against any and all liabilities, damages, claims, demands, costs, or expenses (including
reasonable attorneys’ fees) claimed by any Third Party for any property or other economic loss or
damage or injury or death suffered by it to the extent the same is determined to
have arisen out of or been attributable to: [ * ]. Abbott’s obligations hereunder will apply
only when the applicable Product is unmodified by Abaxis, lawfully used in the Field, lawfully
dispensed or lawfully distributed all in accordance with the terms and conditions of this
Agreement, and used in accordance with the applicable operator’s manual, product insert or as
otherwise instructed in writing by Abbott. Any other use of the applicable Product will not be
subject to this indemnity.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


31









 










7.4 Conditions of Indemnifications. If Abbott seeks indemnification from
Abaxis
pursuant to Section 7.1 or Abaxis seeks indemnification from Abbott pursuant to Section 7.3, the
Party seeking indemnification shall (a) notify the other Party in writing of the claim or suit for
which indemnification is sought within [ * ] after the date the Party seeking indemnification
itself receives notice of such claim or suit and (b) allow the other Party to control the defense
or settlement of such claim or suit, provided that the Party seeking indemnification may, at its
own option and expense, participate in the defense or settlement of such claim or suit, and
provided further that the indemnifying Party shall not enter into any binding settlement, consent
to any judgment or otherwise resolve any such claim or suit pursuant to which the other Party would
be obligated to take or refrain from taking any action or to make any payments or admissions,
without the other Party’s prior written consent.



ARTICLE 8

TERM AND TERMINATION




8.1 Expiration. Unless terminated earlier by written agreement of the Parties or in
accordance with the provisions of this Agreement, the term of this Agreement shall commence on the
Effective Date and continue until the conclusion of [ * ] Contract Years thereafter (“Initial
Term”). UPON EXPIRATION OF THE INITIAL TERM, THE AGREEMENT SHALL CONTINUE AUTOMATICALLY FOR
ADDITIONAL SUCCESSIVE ONE (1) YEAR PERIODS (EACH ONE (1) YEAR PERIOD A “RENEWAL TERM”) UNLESS
TERMINATED BY EITHER PARTY BY GIVING WRITTEN NOTICE TO THE OTHER PARTY NOT LESS [ * ] PRIOR TO
EXPIRATION OF THE INITIAL TERM OR ANY RENEWAL TERM. The Initial Term and Renewal Terms shall be
defined as the “Term” of the Agreement.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


32









 









8.2 Early Termination. This Agreement may be terminated as set forth below and
following provision of written notice:




	 	(a)	 	Bankruptcy. A Party may terminate this Agreement if
the other Party becomes insolvent, is adjudged bankrupt, applies for judicial
or extra-judicial settlement with its creditors, makes an assignment for the
benefit of its creditors, voluntarily files for bankruptcy or has a receiver or
trustee (or the like) in bankruptcy appointed by reason of its insolvency, or
in the event an involuntary bankruptcy action is filed against the other Party
and not dismissed within [ * ], or if the other Party becomes the subject of
liquidation or dissolution proceedings or otherwise discontinues business.
	 
	 	(b)	 	Default. A Party may terminate this Agreement if the
other Party commits a material breach of this Agreement and the Party alleged
to be in breach fails to (i) cure such breach or (ii) commence dispute
resolution proceedings under Section 9.11 contesting whether a breach has
occurred and/or whether such breach is a material breach within [ * ] after
receipt of written notice from the Party asserting the breach. For purposes of
this Section, a material breach by Abaxis shall include, but is not limited to,
any material breach by Abaxis of its non-competition obligations pursuant to
Section 3.12.
	 
	 	(c)	 	Change of Control. In the event that a Third Party,
directly or indirectly, acquires at least fifty percent (50%) of the
controlling interest in or assets of Abaxis, whether in a single transaction or
otherwise, including any sale of assets, sale of shares, mixed sale of assets
and shares, merger, consolidation or other form of business combination
transaction (“Change of Control”), Abaxis shall give written notice of such
Change of Control to Abbott within [ * ] of the effective date of such Change
of Control. Within [ * ] of a Change of Control, [ * ] shall have the right to
terminate this Agreement upon written notice to [ * ]. Within [ * ] of a
Change of Control, [ * ].





8.3 Effect of Termination. Upon the termination of this Agreement:




	 	(a)	 	The Parties shall immediately cease the use of any Confidential Information of the other Party and, in the case of Abaxis, of the Abbott
Trademarks, except as permitted in Section 8.3(b) below.








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


33









 






	 	(b)	 	Unless this Agreement is terminated by Abbott for Abaxis’
breach or bankruptcy, and subject to Abbott’s rights as provided in this
Section 8.3, (i) [ * ], and (ii) [ * ].
	 
	 	(c)	 	Abbott shall have the right (but not the obligation), upon
prior written notice to Abaxis given within [ * ] after termination to purchase
from Abaxis all or any portion of the Products in its inventory, for the same
Purchase Prices paid for such products by Abaxis, at the time of such
termination for credit against outstanding invoices, or for cash refund to the
extent there are no invoices then outstanding.
	 
	 	(d)	 	Abaxis shall return to Abbott all promotional and sales
training materials provided to Abaxis by Abbott under this Agreement.
	 
	 	(e)	 	To the extent permitted by law, Abaxis shall [ * ].
	 
	 	(f)	 	Abaxis shall not, in the final [ * ] of any notification of
termination (or such actual time after notice and before actual termination, if
shorter), undertake any actions intended or designed to cause End Users to
purchase higher than normal levels of inventory of Products.





8.4 Continuing Obligations. Upon any termination of this Agreement (except
termination for cause by Abaxis due to Abbott’s breach), at Abbott’s election and in accordance
with Abbott’s instructions, Abaxis shall: (a) [ * ]; and (b) [ * ]. Following termination of this
Agreement for any reason, Abaxis shall have no further obligations to End Users with respect to
Software updates and maintenance or technical support. Nothing in this Agreement shall be
construed as preventing Abaxis from soliciting End Users for other products following the
termination of this Agreement.



8.5 Post-Termination Obligations. Termination or expiration of this Agreement through
any means and for any reason shall not relieve the Parties of any obligations accruing prior
thereto, and shall be without prejudice to the rights and remedies of either Party with respect to
any breach of any of the provisions of this Agreement.



8.6 Survival. The following Articles and Sections shall survive termination or
expiration of the Agreement: [ * ]. In addition, all provisions that expressly survive
termination, that are irrevocable or that arise due to termination shall survive in accordance with
their terms. Any other provisions of this Agreement contemplated by their terms to pertain to a
period of time following termination or expiration of this Agreement shall survive only for the
specified period of time.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


34









 










ARTICLE 9

MISCELLANEOUS




9.1 Force Majeure. Neither Party shall be held in breach of this Agreement for
failure to perform any of its obligations hereunder and the time required for performance shall be
extended for a period equal to the period of such delay, provided that such delay has been caused
by or is a result of any acts of God; acts of the public enemy; civil strife; wars declared or
undeclared; embargoes; labor disputes, including strikes, lockouts, job actions or boycotts; fires;
explosions; floods; shortages of material or energy; events caused by reason of laws or regulations
or orders by any government, governmental entity or instrumentality or by any other supervening
unforeseeable circumstances beyond the reasonable control of the Party so affected. The Party so
affected shall: (a) give prompt written notice to the other Party of the nature and date of
commencement of the force majeure event and its expected duration; and (b) use its commercially
reasonable efforts to relieve the effect of such cause as rapidly as possible.



9.2 Assignment. This Agreement may be assigned by Abbott to an Abbott Affiliate
without consent. In addition, (a) any Party may without the consent of the other Party assign its
rights to payments under this Agreement and (b) any Party may without the consent of the other
Party assign its rights and delegate performance of its obligations under this Agreement in
connection with a sale of all or substantially all of that portion of the business of the assigning
Party to which this Agreement relates (whether such sale is structured as a sale of assets, sale of
shares, mixed sale of assets and shares, merger, consolidation or other form of business
combination transaction). The assigning Party shall provide a written notice to the other Party of
any assignment pursuant to clause (b) above as of the date of the assignment. Following any
assignment pursuant to clause (b) above, the assigning Party shall continue to be responsible for
the performance of all obligations arising under this Agreement prior to the date of assignment,
and the assignee shall be responsible for the performance of all obligations arising under
this Agreement on or after the date of the assignment.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


35









 








Except as otherwise provided in this Section 9.2, no Party shall assign its rights or delegate
performance of its obligations under this Agreement to any Third Party without the prior written
consent of the other Party, and any attempted assignment without such consent shall be void. This
Agreement shall inure to the benefit of and shall be binding upon and enforceable by, the Parties
and their successors and permitted assigns.




9.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
each of the Parties and its successors and permitted assigns.



9.4 Waiver. No waiver or modification of any of the terms of this Agreement shall be
valid unless in writing and signed by authorized representatives of both Parties. Failure by
either Party to enforce any of its rights under this Agreement shall not be construed as a waiver
of such rights nor shall a waiver by either Party in one or more instances be construed as
constituting a continuing waiver or as a waiver in other instances.



9.5 Severability. Any provision of this Agreement that in any way contravenes the law
of any state or country in which this Agreement is effective shall, in that state or country, to
the extent the law is contravened, be considered separable and non-applicable and shall not effect
any other provision or provisions of this Agreement. Parties shall cooperate to mitigate the
effects of any such contravening clause/term.



9.6 Relationship of the Parties. The relationship of the Parties under this Agreement
is that of independent contractors. Nothing contained in this Agreement is intended or is to be
construed so as to constitute the Parties as partners, joint ventures, or either Party as an agent
or employee of the other. Neither Party has any express or implied right under this Agreement to
assume or create any obligation on behalf of or in the name of the other, or to bind the other
Party to any contract, agreement or undertaking with any Third Party, and no conduct of the Parties
shall be deemed to infer such right.



9.7 Entire Agreement; Modifications. This Agreement, together with any exhibits
hereto, constitute the entire agreement between the Parties relating to the subject matter hereof.
It may not be modified or amended except in a writing and signed by both Parties. All previous
agreements or arrangements between the Parties, written or oral, relating to the subject matter
hereof are hereby canceled and superseded.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


36









 










9.8 Compliance with Law. In performing this Agreement, each Party shall comply with
all applicable laws, regulations and guidelines and shall not be required to perform or omit to
perform any act required or permitted under this Agreement if such performance or omission would
violate the provisions of any such law, regulation or guideline.



9.9 Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which shall be considered an original and all of which together shall
constitute one and the same instrument.



9.10 Governing Law. All disputes arising in any manner out of or in relation to this
Agreement shall be resolved in accordance with the laws of Illinois, without reference to its
choice of laws provisions. Each Party hereby disclaims the application to this Agreement of the
United Nations Convention on the International Sale of Goods.



9.11 Alternative Dispute Resolution. Any dispute that arises in connection with this
Agreement shall be binding on the Parties and resolved by binding Alternative Dispute Resolution
(“ADR”) in the manner described in Exhibit 9.11.



9.12 Notices. Any notice, report, payment or statement required or permitted under
this Agreement shall be considered to be given when in writing sent by certified mail (return
receipt requested), postage prepaid, or faxed then mailed, or if sent via courier and addressed to
the Party for whom it is intended at its address of record. The record address of the Parties is
as follows:



	 	 	 	 	 
	 

	 	If to Abaxis:
	 	Abaxis, Inc.
	 

	 	 	 	Vice President, Veterinary Marketing and Sales
	 

	 	 	 	3240 Whipple Road
	 

	 	 	 	Union City, CA 94587
	 

	 	 	 	Fax: 510-441-6150
	 
	 	 	 	 
	 

	 	with copy to:
	 	Cooley Godward Kronish LLP
	 

	 	 	 	101 California Street
	 

	 	 	 	5th Floor
	 

	 	 	 	San Francisco, CA 94111-5800
	 

	 	 	 	Attn: Nan Wu, Esq.
	 

	 	 	 	Fax: 415-693-2222








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


37









 









	 	 	 	 	 
	 

	 	If to Abbott:
	 	Divisional Vice President, Business Development
	 

	 	 	 	Abbott Point of Care
	 

	 	 	 	400 College Road East
	 

	 	 	 	Princeton, NJ 08540
	 

	 	 	 	Tel: 609-454-9437
	 

	 	 	 	Fax: 609-419-9376
	 
	 	 	 	 
	 

	 	with copy to:
	 	Divisional Vice President, Commercial Legal Operations
	 

	 	 	 	Abbott Laboratories
	 

	 	 	 	AP6A-2
	 

	 	 	 	100 Abbott Park Road
	 

	 	 	 	Abbott Park, IL 60064-6049
	 

	 	 	 	Fax: (847) 938-1206






9.13 Expenses. Unless otherwise specifically provided for herein, all costs and
expenses incurred with connection with this Agreement and the transactions contemplated hereby
shall be paid by the Party that shall have incurred the same, and the other Party shall no
liability thereto.



9.14 Interpretation. When a reference is made in this Agreement to Sections,
Subsections, Tables or Exhibits, such references shall be to a Section, Subsection, Table or
Exhibit to this Agreement unless otherwise indicated. The words “include,” “includes” and
“including” when used herein shall be deemed in each case to be followed by the words “without
limitation.” The table of contents and headings, if contained in this Agreement, have been
inserted for convenience of reference only and shall not be relied upon in construing this
Agreement. Use of any gender herein to refer to any person shall be deemed to comprehend
masculine, feminine, and neuter unless the context clearly requires otherwise.




	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


38









 









IN WITNESS WHEREOF, each Party has caused this Agreement to be signed by its duly authorized
representative as of the Effective Date.



	 	 	 	 	 	 	 	 	 
	ABBOTT POINT OF CARE INC.	 	ABAXIS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	By: 

	/s/ Greg Arnsdorff
 

	 	By: 
	/s/ Martin Mulory
 

	 	 
	 	Name: 	Greg Arnsdorff
	 	 	Name: 
	Martin Mulory	 	 
	 	Title: 	President
	 	 	Title: 
	Vice President Sales & Marketing	 	 









	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.





 


39









 







List of Exhibits




	 	 	 
	Trademarks
	 	 
	Abaxis
	 	1.1
	Abbott
	 	1.2
	 
	Products
	 	1.14
	 
	Purchase Prices
	 	1.17
	 
	Annual Product Purchase Calculation
	 	2.6
	 
	Parts and Components
	 	3.3(a)
	 
	Minimum Order Quantities
	 	3.4(b)
	 
	i-STAT®1 Warranty
	 	3.4(f)
	 
	Abaxis Distribution Centers
	 	3.6
	 
	Product Complaint Inquiry Form
	 	3.9
	 
	Excluded Competitive Products
	 	3.12(a)
	 
	Alternative Dispute Resolution
	 	9.11








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 1.1




Abaxis Trademarks




[ * ]







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 1.2




Abbott Trademarks




[ * ]







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 1.14




Products




[ * ]







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 1.17



Purchase Price




[ * ]






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









Exhibit 1.17



Purchase Price

(Continued)




[ * ]







	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









Exhibit 2.6




Annual Product Purchase Calculation




	 	 	 	 	 	 	 	 	 	 	 
	Contract Year:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Abbott Calculation:

	 	 	 	 	 	date provided to Abaxis:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Approved by Abaxis:

	 	
 _____ 

Yes /
 _____ 

No*
	 	 	 	date approved by Abaxis:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	* if No:
	 	 	 	 	 	 	 	 	 	 
	Abaxis Estimate:

	 	 	 	 	 	date provided to Abbott:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Approved by Abbott:

	 	
 _____ 

Yes /
 _____ 

No **
	 	 	 	date approved by Abbott:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	** if No:
	 	 	 	 	 	 	 	 	 	 
	Agreed Calculation:

	 	 	 	 	 	date agreed:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 






Official Determination of Product Purchases




For Contract Year                      is                                         .




	 	 	 	 	 	 	 	 	 	 	 	 
	Abbott
	 	 	 	 	Abaxis	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	By:	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	Name:	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	Title:	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	Date:	 	 	 








	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









Exhibit 3.3(a)




Parts and Components




[ * ]






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





Exhibit 3.4(b)




Minimum Product Order Quantities




[ * ]





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 3.4(f)




Abbott i-STAT®1




Warranty




(An electronic copy of this form will also be provided to Abaxis.

A snap shot sample is below.)



1-1

Introduction


Art: 715003-01H Rev. Date: 03/03/08



1



1-2 Art: 715003-01H Rev. Date: 03/03/08



This manual describes the i-STAT o  Portable Clinical Analyzer, the Philips Medical
Systems* Blood Analysis Module, i-STAT Cartridges and the i-STAT Central Data
Station Version 5 program. Related sections are grouped behind tabs. The i-
STAT Portable Clinical Analyzer and Philips Blood Analysis Module perform the
same basic functions, although some elements of the Blood Analysis Module’s
user interface have been adapted for a patient monitoring environment. Except
were noted, operating instructions apply
to both pieces of equipment. For specific
information on the Blood Analysis Module,
refer to the Blood Analysis Module section
of this manual.



The i-STATo1 Analyzer is described in a
separate manual.




	 	 	 
	*	 	Formally distributed by Hewlett-Packard
and Agilent Technologies.




This Manual
Overview of
the i-STAT System



The i-STAT System incorporates a comprehensive group of components needed to
perform blood analysis at the point of care. A handheld Portable Clinical Analyzer
or a Blood Analysis Module, a cartridge with the required tests, and 2 to 3 drops
of blood will allow the caregiver to view quantitative test results for blood gas
and chemistry tests in approximately 2 minutes as well as quantitative times for
coagulation tests.



Portable printers and infrared communication devices allow all patient information
obtained at the bedside to be printed on demand and transmitted to centralized
information systems for record keeping and billing.




The Central Data Station (CDS) program provides system management tools.



Intended Use The i-STAT Portable Clinical Analyzer and
Philips Blood Analysis Module are intended
for use with i-STAT cartridges for the in
vitro quantification of various analytes and coagulation times in whole blood.
Analyzers and cartridges should be used
by healthcare professionals trained to use
the system and should be used according
to the facility’s policies and procedures.





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 






In the USA, for the purpose of CLIA compliance, the i-STAT CHEM8+ cartridge is
categorized as Waived. All other i-STAT cartridges are categorized as moderate
complexity. Please note that the CHEM8+ cartridge can only be run on the
i-STAT 1 Analyzer.



Components The i-STAT System consists of:



o i-STAT Cartridges



o Abbott MediSense Precision PCx and PCx Plus Blood Glucose Test Strips
(for i-STAT1 Analyzer)



o i-STAT Portable Clinical Analyzer



o i-STAT 1 Analyzer



o Philips Medical Systems Blood Analysis Module (used in conjunction with
Philips CMS and 24/26 Patient Monitors)


Rev.  Date: 03/03/08 Art: 715003-01H 1-3



o Portable Printer



o Quality Assurance Materials



o Electronic Simulator



o Control Solutions



o Calibration Verification Set



o Data Management System



o Downloader and/or Downloader/Recharger for i-STAT 1 Analyzer



o IR Link for Portable Clinical Analyzer



o Data Manager



o Central Data Station Version 5, software for cartridge
management



o QC Manager software for PCx glucose tests strip management



o Data Manager Printer



o i-STAT Central Data Station



o Central Data Station, version 4, software for cartridge management



o LIS/HIS Interface Software



Summary of the
Procedure



To perform cartridge testing, the operator fills a cartridge with sample, seals
the cartridge with its snap closure, and inserts the cartridge into the analyzer.
Inserting the cartridge activates the analyzer. The unit-use cartridge contains all
components necessary to perform one or more tests including: calibrating solution
for blood gas and chemistry tests or reagents for coagulation tests, a sample
handling system, and sensors. The analyzer automatically controls all steps in the
testing cycle, which may include: fluid movement, calibration, reagent mixing, and
thermal control. Quality checks are performed continuously throughout the testing
cycle. Operator and patient IDs and patient chart information can be entered.
When the test cycle is completed, results are displayed and the test record is
stored. This degree of automation, along with the ability to test fresh whole blood,
eliminates many sources of error as well as time-consuming and costly steps
inherent in other methods.



Data Management Test records can be transmitted to the Data Manager or Central Data Station where
they can be printed and/or transmitted to the Laboratory Information System or
Hospital Information System. An optional portable printer enables the operator to
print results at the point of care.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





Selection of Components



The selection of components is dependent on factors unique to each facility such as:



o Types of tests to be performed




o Number of testing sites




o Number of tests per site




o System administrative requirements




Interfacing The Central Data Station can be interfaced to a Laboratory Information System
(LIS) or Hospital Information System (HIS) to automate billing and patient record
keeping.




1-4 Art: 715003-01H Rev. Date: 03/03/08




Symbols Symbols can be helpful in reducing the necessity for translating important
information into multiple languages, particularly where space is limited. The
following symbols may be found on components of the i-STAT System.




Note Regarding
System Reliability




The i-STAT System automatically runs a comprehensive set of quality checks of
analyzer and cartridge performance each time a sample is tested. This internal quality
system will suppress results if the analyzer or cartridge does not meet certain internal
specifications (see Quality Control section in System Manual for detailed information).
To minimize the probability of delivering a result with medically significant error the
internal specifications are very stringent. It is typical for the system to suppress a
very small percentage of results in normal operation given the stringency of these
specifications. If however the analyzer or cartridges have been compromised,
results may be persistently suppressed, and one or the other must be replaced to
restore normal operating conditions. Where unavailability of results while awaiting
replacement of analyzers or cartridges is unacceptable, Abbott Point of Care Inc.
recommends maintaining both a backup i-STAT System analyzer and cartridges
from an alternate lot number.




Symbol Definition




Attention: See instructions for use.




Caution: Risk of electrical shock.




Laser radiation hazard symbol.




Biological Risks.




Temperature limitations. The upper and lower limits for storage are adjacent
to upper and lower arms.




Upper
limit of temperature. The upper limit for storage is adjacent to the upper arm
Use by or expiration date.




An expiration date expressed as YYYY-MM-DD means the last day the
product can be used.




An expiration date expressed as YYYY-MM means the product cannot be
used past the last day of the month specified.




Manufacturer’s lot number or batch code. The lot number or batch will
appear adjacent to this symbol.




Catalog number, list number, or reference number. The number adjacent to
this symbol is used to reorder the product.




Serial number. The serial number will appear adjacent to this symbol.




Rev. Date: 03/03/08 Art: 715003-01H 1-5




Symbol Definition




MN Model number. The model number will appear adjacent to this symbol.




Date of manufacture.




Manufacturer




In vitro diagnostic medical device.




Authorized Representative for Regulatory Affairs in the European
Community.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









Contains sufficient for < n > tests.




Direct Current (DC)




Alternating Current (AC)




Class II Construction




Consult instructions for use or see System Manual for instructions.




control Control




Signifies that the product bearing the ETL Listed mark complies with both
U.S. and Canadian product safety standards:




UL 61010A-1




CAN/CSA C22.2 No. 1010.1-92




i/immuno: Cartridges bearing this symbol must be run on i-STAT analyzers
that also bear this symbol.




Battery: i-STAT 1 Analyzer low battery icon (flashes on lower left side of
display screen).




Separate waste collection for this electrical/electronic item indicated.




Separate waste collection for this electrical/electronic item indicated;




Equipment manufactured / put on the market after 13 August 2005; Indicates
compliance with Article 10(3) of Directive 2002/96/EC (WEEE) for the
European Union (EU).




1-6 Art: 715003-01H Rev. Date: 03/03/08




Symbol Definition




BODxxxx-xx




Born On Date: the label BODxxxx-xx defines the year and month of
manufacture.




Do not reuse.




This symbol is used for compliance with the China RoHS regulation(s). It
indicates in years the Environmentally Friendly Use Period (EFUP) for the
labeled electronic medical device product




Symbol The following symbols are used on the i-STAT 1 keypad.




SCAN Key used to scan information into the analyzer.




ABC Key used to enter letters.




Key used to enter information.




MENU Key used to access the analyzer’s menu.




Key used to print a test record.




Key used to turn the analyzer off and on.




Symbol The following symbols are used on the i-STAT Portable Clinical Analyzer Keypad




DIS Key used to activate the display.




ENT Key used to enter information.




PRT Key used to print a test record.




CLR Key used to clear an incorrect entry.




Symbol The following symbols are used on i-STAT Value Assignment Sheets
Mean




R Range




Rev. Date: 03/03/08 Art: 715003-01H 1-7




Symbol TEST




Na Sodium




K Potassium




Cl Chloride




Glu Glucose




Lac Lactate






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









Crea Creatinine




pH pH




PCO2 Partial pressure of carbon dioxide.




PO2 Partial pressure of oxygen.




iCa Ionized Calcium




BUN/UREA Urea nitrogen/Urea




Hct Hematocrit




ACTc




Celite ACT




Activated Clotting Time with Celite® activator.




ACTk




Kaolin ACT




Activated Clotting Time with Kaolin activator.




PT/INR Prothrombin Time / International Normalized Ratio




Hb Hemoglobin




TCO2 Total carbon dioxide concentration.




HCO3 Bicarbonate




BE (b&ecf) Base excess (b for blood, ecf for extra cellular fluid)




AnGap Anion Gap




sO2 Oxygen saturation




cTnI Cardiac Troponin I




CK-MB Creatine Kinase MB Isoenzyme




BNP B-type Natriuretic Peptide




1-8 Art: 715003-01H Rev. Date: 03/03/08




Abbott Point of Care Inc. warrants this medical product (excluding disposable
or consumable supplies) against defects in materials and workmanship for
one year from the date of shipment. If Abbott Point of Care Inc. receives
notice of such defects during the warranty period, Abbott Point of Care
Inc. shall, at its option, either repair or replace products which prove
to be defective. With respect to software or firmware, if Abbott Point of
Care Inc. receives notice of defects in these products during the warranty
period, Abbott Point of Care Inc. shall repair or replace software media and
firmware which does not execute their programming instructions due to
such defects. Abbott Point of Care Inc. does not warrant that the operating
of the software, firmware or hardware shall be uninterrupted or error free.
If Abbott Point of Care Inc. is unable, within a reasonable time, to repair or
replace any product to a condition as warranted, Buyer shall be entitled to a
refund of the purchase price upon return of the product to Abbott Point of Care
Inc.




Note: Warranty rights may vary from state to state, province to province and
country to country.




Warranty
Limitations of Warranty




The foregoing warranty shall not apply to defects resulting from:




1 Improper or inadequate maintenance by Buyer or an unauthorized person,




2 Using accessories and/or consumables that are not approved by Abbott
Point of Care Inc.,





	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









3 Buyer-supplied software or interfacing,




4 Unauthorized repairs, modifications, misuse, or damage caused by
disposable batteries, or rechargeable batteries not supplied by Abbott
Point of Care Inc.




5 Operating outside of the environmental specifications of the product, or




6 Improper site preparation or maintenance.




 THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER WARRANTY,
WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. ABBOTT
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OR MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.




Selling or Leasing
the i-STAT System




If you sell an i-STAT analyzer, please notify Abbott Point of Care Inc. so that we
can enter the new owner into our software update database. If you rent an i-STAT
analyzer and do not intend to provide software updates to the lessee, please
notify Abbott Point of Care Inc. so that we can enter the lessee into our software
database.




End of Warranty.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









EXHIBIT 3.6




Abaxis Distribution Centers




Abaxis, Inc.

3240 Whipple Road, Union City, CA 94587




Other sites may be added upon written mutual consent.






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 3.9




Product Complaint Inquiry Form



If an End-User is experiencing difficulty with the performance of an i-STAT®1 cartridge or
analyzer, a complaint will be opened by Abbott and Abbott will request the products be returned for
investigation.



Abaxis will be provided with the Abbott Customer Contact Form for Business Partners document
electronically. Abaxis may also use the Abbott technical support contact information listed below
which can be found on the Abbott website.



(An electronic copy of this form will also be provided to Abaxis. A snap shot sample is below.)




PART A — CUSTOMER CONTACT REPORT

(TO BE COMPLETED FOR ALL INCIDENTS)




1. General Information




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Date of	 	Date entered into	 	Date closed in
	 	 	 	 	Customer	 	business partner	 	business partner
	 	 	Incident #	 	Contact	 	complaint system	 	complaint system
	Business Partner
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Abbott Point of Care
	 	 	 	 	 	 	 	 






	 	 	 
	Business
Partner Information	 	Customer
Information
	Name:

	 	Name:
	Street:

	 	Street:
	City:

	 	City:
	Post Code:

	 	Post Code:
	Country:

	 	Country:
	Contact Name:

	 	Contact Name:
	Phone:

	 	Phone:









	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 





EXHIBIT 3.9

(Continued)




Customer Assistance




Troubleshooting and Frequently Asked Questions




	 	 	 	 	 
	• Technical Support

	 	techsvc@i-stat.com
	 	800.366.8020, Option 1 
	 
	 	 	 	 
	• Customer Service

	 	custsvc@i-stat.com
	 	800.366.8020, Option 2 






Technical Support



Online Service & Support for product information and technical help. Please
enter your Identification and Password in the sign-in area below.




Abbott POC ID:                               




          Password:                               






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.



 


 









 









EXHIBIT 3.12(a)




Excluded Competitive Products




[ * ]






	 	 	 
	[ * ]	 	 = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.





 


 









 







EXHIBIT 16.11




ALTERNATE DISPUTE RESOLUTION (ADR)




[ * ]






	 	 	 
	[ * ] 	 	= Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.