exhibit10_27.htm

EX-10.27 2 exhibit10_27.htm EXHIBIT 10.27 exhibit10_27.htm

EXHIBIT 10.27

CONFIDENTIAL (MWI)

NON-EXCLUSIVE DISTRIBUTOR AGREEMENT

This Non-Exclusive Distributor Agreement (“Agreement”) is effective the 1st day of January 2013 (the “Effective Date”), by and between MWI Veterinary Supply Co., with its principal office at 3041 Pasadena Dr., Boise, ID 83705 (hereinafter called “Distributor”), and ABAXIS, Inc., a California corporation with its principal office at 3240 Whipple Road, Union City, California 94587 (hereinafter called “ABAXIS”).

WHEREAS, ABAXIS is a manufacturer of products for the in vitro analysis of various components in body fluids and whereas ABAXIS desires to further the sale of its products to customers, including veterinarians’ offices, clinics, hospitals;

WHEREAS, Distributor conducts a business which sells medical products to such veterinarian sites as those mentioned above and has the capability and resources to help further the sales of ABAXIS products to those customers; and

WHEREAS, ABAXIS desires to appoint Distributor, and Distributor desires to accept from ABAXIS, the right to market, sell, and distribute ABAXIS products, all on the terms and subject to the conditions stated herein.

NOW, THEREFORE, the parties hereto agree as follows:

1. Definitions

As used in this Agreement, the terms defined below shall have the following meanings;

“Distribute’’, “Distributed” or “Distribution” shall mean to sell, distribute, market, promote, stimulate interest in, solicit orders for and provide services in connection with those activities.

“Distributor Price” shall mean the current ABAXIS provided distributor price list or price on the date of the Order for the applicable Products, unless otherwise agreed to in writing by the parties.

C. “End-User” shall mean any provider of veterinarian medical care that actually uses the Products.

“Order” shall mean a written purchase order that describes Products, including quantities, being purchased by Distributor and the requested delivery date(s).

“Order Terms” shall mean, notwithstanding any conflicting terms set forth on an Order, the terms and conditions contained in this Agreement, and in any modifications thereto as may be agreed in writing by the parties.

MWI Distributor Agreement 1

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“Person” shall mean any individual, partnership, joint venture, limited liability company, corporation, firm, trust, association, unincorporated organization, governmental authority or agency, or any other entity not specifically listed herein.

“Professional Use” shall mean use of Products in connection with care of non- human animals, which use is conducted or supervised by trained veterinary personnel who have the authority under applicable laws, regulations or statutes to use such Products for such purpose. For clarity, Professional Use excludes any and all use in human medical care under any circumstances.

“Products” shall mean the ABAXIS products listed in the ABAXIS distributor price list current as of the date of the Agreement, subject to any additions, removals, or other changes as ABAXIS may from time to time communicate to Distributor in writing.

I. “Instrument” shall mean the analyzer, which is an electromechanical device. J.“Reagent Rotor” shall mean the plastic disk containing chemical reagents.

“Sell-Through Period” shall mean (1) in the event that Distributor terminates this Agreement or elects not to renew the term of this Agreement, the period beginning on the date of the termination of this Agreement and ending on the six month anniversary of such date, or (2) in the event that ABAXIS terminates this Agreement or elects not to renew the term of this Agreement, the period beginning on the date of the termination of this Agreement and ending on the one year anniversary of such date.

“Territory” shall mean the geographical area consisting of those areas in United States serviced by field sales representatives or called on by inside telesales representatives.

“Trademarks”, “Trade Names” and “Copyrights” shall mean the trademarks, trade names and copyrights, respectively, owned or controlled by ABAXIS, whether registered or arising by applicable law, and used in connection with the Products.

2. Appointment; Retained Rights

ABAXIS hereby grants to Distributor the non-exclusive right to Distribute Products to End-Users for Professional Use in the Territory.Distributor is not authorized to sell Products to resellers, other than to a leasing company which leases the Product to End- Users. Distributor is hereby granted the limited, revocable, non-exclusive right to use ABAXIS’ Trade Names, Trademarks and Copyrights solely to Distribute Products to End-Users for Professional Use in the Territory in accordance with this Agreement. Distributor may not appoint any Person as a sub-distributor or to exercise any right under this Agreement in the Territory without prior written consent of ABAXIS, such consent to be given in its sole discretion. By entering into this Agreement, Distributor agrees to

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assist ABAXIS by facilitating the availability of the Products and the availability of proper training and support to the End-Users of the Products.

Nothing in this Agreement prevents ABAXIS or its affiliates from using the Products or the intellectual property therein to make, have made, develop, sell, license, and/or Distribute the Products.Except for the limited Distribution rights expressly granted herein, no right, title or interest with respect to the Products or any intellectual property right of ABAXIS is granted by ABAXIS to Distributor hereunder.

3. Obligations of Distributor; Rights of ABAXIS

Distributor’s obligations under this Agreement shall, without limitation, include the

following:

Distributor shall use commercially reasonable efforts to Distribute Products for veterinary use only in the Territory. No Product shall knowingly be sold for use in human medical care or for use outside of the Territory.

Distributor shall maintain adequate written procedures for warehouse control and Distribution of Products. Distributor shall store and handle all Products in accordance with the applicable requirements as set forth in Appendix A and in compliance with all applicable laws, rules and regulations.To the extent applicable, Distributor shall not sell any Product with an expired shelf life and shall dispose of any such Product with an expired shelf life in the matter required by ABAXIS and in accordance with all applicable laws, rules and regulations. Such disposal of expired Products shall be at Distributor’s sole expense.

Distributor shall maintain accurate and complete books and records of the storage, sale, Distribution and shipment of Products to End-Users for at least two (2) years from the date of sale, or to the end of the useful life of the Products, whichever is longer, and all in accordance with generally-accepted accounting principles or as required by applicable regulatory requirements in the Territory.The written records shall be in such a form as to enable ABAXIS to trace the location of all Products. ABAXIS shall have the right, during reasonable business hours and with reasonable prior notice, to inspect (i) such books and records, and (ii) the facilities of Distributor which are used or provided in connection with Distribution of Products for regulatory affairs reasons.

Distributor shall ensure that any Products which may be returned directly to Distributor shall not be cleaned or otherwise refurbished and re-sold or re-used by Distributor or others, without ABAXIS’ prior written consent, and Distributor shall maintain adequate written procedures designed to prevent such prohibited activities. Distributor further agrees to contact ABAXIS’ Customer Service prior to accepting any return from any End-User for any Instrument. In the case of a used Instrument (i.e., when the packing seal has been broken), ABAXIS will provide a quotation for refurbishing such Instrument for Distributor to sell as a factory refurbished Instrument. If the packing seal for an Instrument has not been broken, ABAXIS may inspect as it deems necessary and will adjust Distributor and ABAXIS installed base records to reflect the return. For the avoidance of doubt, ABAXIS will not accept any returns of Product to ABAXIS except as provided in Section 7.

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Distributor shall submit all advertising and promotional materials for Products to ABAXIS at least ten (10) days prior to use or distribution of such materials, for ABAXIS’ review and approval, such approval not to be unreasonably withheld or delayed. In the event that ABAXIS provides comments or suggests changes within the ten (10) days of the receipt of such materials, Distributor will revise the materials accordingly.

Distributor shall comply with all relevant governmental rules and regulations, and shall obtain all licenses and approvals necessary to Distribute Products in the Territory. Distributor agrees, in its performance of this Agreement, to comply with all applicable laws and shall promptly notify ABAXIS if it becomes aware of any material violations of such applicable laws by Distributor in connection with its performance of this Agreement.

G. Distributor shall make no representations or warranties with respect to the Products other than those specifically authorized in writing by ABAXIS.

Distributor agrees to on-going training and sales meetings as required by ABAXIS so as to be able to adequately describe, demonstrate and sell Products. Without limiting the generality of the foregoing, Distributor agrees to semi-annual meetings held at mutually agreed upon sites and on mutually agreed upon dates. Distributor training and sales meetings shall also be subject to mutual agreement by both parties regarding responsibility for meeting expenses.

Distributor will stock and/or assist End-Users in obtaining proper blood transfer devices. A list of approved devices is described in the ABAXIS Product Operators’ Manual. Other non-approved devices may interfere with Product performance and Distributor shall not recommend to End-Users or assist End- Users with the use of such other devices, or otherwise facilitate End-Users’ use of such other devices, without the written consent of ABAXIS.

J. Distributor agrees to maintain a minimum of thirty (30)-days inventory of Product at Distributor’s warehouse, unless otherwise agreed to in writing by the parties.

Under no circumstances will Distributor in any way alter original manufacturers packaging, sell Product in quantities other than as originally packaged (break boxes) or deface, tamper with or change in any way the Product labeling.

Distributor agrees not to sell or otherwise provide off label or other third party supplied reagents for use with any ABAXIS branded instrument.

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Within five (5) business days of the close of each month, Distributor shall report to ABAXIS electronically (unless otherwise agreed to by ABAXIS), the then current inventory levels of all Products by SKU and description, for all of Distributor’s warehouse locations.

Within five (5) business days of the close of each month, Distributor shall report to ABAXIS or the ABAXIS authorized IT agent, currently Focus Technology Group, in writing (unless otherwise agreed by ABAXIS), clinic level sales data including ship to and bill to information, clinic or facility name, address, city, state, zip, quantities purchased, Product descriptions, Product numbers and other Product sales and marketing data as may be requested by ABAXIS from time to time. The parties agree that the timeliness and accuracy of this data is critical, as it is an integral part of the field sales and sales management monthly performance review and compensation plan. ABAXIS has the unrestricted right to use any or all of such data for any lawful purpose, including in targeted marketing campaigns, for account retention analysis, customer satisfaction benchmarks and product utilization market analysis.

ABAXIS shall have the sole discretion to make a decision for recalling Products in the Territory, and will notify Distributor in a timely manner in connection with any such action. Distributor agrees to provide reasonable assistance to ABAXIS in the event of any recall of Products. For any recall, ABAXIS shall directly pay or reimburse Distributor for all reasonable costs and expenses, if any, incurred by Distributor (including shipping, notification and the repurchase of any recalled Products which are in Distributor’s possession).

To the extent appropriate to cover its activities with respect to this Agreement, Distributor shall obtain and maintain at its own cost and expense commercial general liability insurance including, but not limited to bodily injury, property damage, premises liability and contractual liability insurance.

4. Obligations of ABAXIS

ABAXIS shall have the following obligations under this Agreement:

A. ABAXIS shall provide such marketing direction and guidance to Distributor, as ABAXIS deems desirable at ABAXIS’ discretion.

ABAXIS shall maintain product liability insurance covering the Products in amounts that, in its sole discretion, ABAXIS determines to be commercially reasonable.

ABAXIS shall provide to Distributor such literature, brochures, and other materials as ABAXIS deems desirable in the exercise of selling ABAXIS Products.

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D. ABAXIS shall maintain warranty and post-warranty repair services for the Products pursuant to its then applicable warranty policies for such Products.

ABAXIS shall use commercially reasonable efforts to ship Product within thirty (30) days after receiving and accepting a faxed or mailed Order from Distributor, or by such later date as requested by Distributor and accepted by ABAXIS.

Notwithstanding anything to the contrary herein, ABAXIS shall not be required to supply any Products to the extent that it would require ABAXIS or its affiliates to violate any applicable laws, rules or regulations, or would result in the breach of any agreement or other applicable contractual obligation.

5. Orders

Orders for Products by Distributor shall be placed with ABAXIS by mail or facsimile (or by phone with explicit approval from ABAXIS) at the following address and telephone numbers:

ABAXIS, Inc.

3240 Whipple Road

Union City, CA 94587

Tel: 800-822-2947

Fax: 510-675-6500

B. Orders shall be subject to acceptance by ABAXIS.

ABAXIS reserves the right to reject any Order or to cancel any Order previously accepted if, in ABAXIS’ discretion, ABAXIS determines that it is reasonably likely that such Order will not be paid for in accordance with the Order Terms or that the Products will not be Distributed in accordance with the terms and conditions set forth in this Agreement.Upon a determination that ABAXIS intends to cancel a previously accepted Order, ABAXIS shall give Distributor prompt written notice of such cancellation and ABAXIS will be under no further obligation to deliver Products under that Order, but ABAXIS may at its discretion, if Distributor provides adequate assurances to ABAXIS that Distributor will comply fully with Distributor’s obligations under this Agreement, accept further Orders placed by Distributor.

6. Price and Payment Terms

The price payable by Distributor to ABAXIS for any Product shall be the current Distributor Price. ABAXIS shall be responsible for all taxes, duties and fees, however designated, that are applicable to the Products prior to the sale to Distributor under this Agreement, including without limitation all taxes on ABAXIS’s income, import and export duties, excise fees, license fees, permit fees, transfer fees, privilege fees, value added taxes, and federal, state, local or other taxes or fees. Distributor shall be responsible for all taxes, duties and fees, however designated, that are applicable to the purchase of Product by Distributor as well as any subsequent distribution or sale by Distributor.

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All Orders shall be paid within thirty (30) days of the date of invoice. If payment is not received by ABAXIS within said thirty (30) days, the payment shall bear a late payment charge equal to one and one-half percent (1.5%) per month (or partial month) that the payment is delayed. Payments shall be made in U.S. Dollars and without any deduction, including for taxes, duties, foreign exchange or other conversions.When ABAXIS has the legal obligation to collect any taxes, the appropriate amount shall be invoiced to Distributor and paid by Distributor.

All Products sold and all prices quoted by ABAXIS are EXW (Incoterms 2010) Union City, California or other ABAXIS distribution locations. Distributor shall be responsible for selecting the carrier responsible for transporting Products to Distributor’s warehouse and to Distributor’s customers in accordance with the storage and transportation guidelines set forth in Appendix A.ABAXIS will reasonably work with Distributor to minimize transportation and associated costs.

Distributor shall pay for all transportation costs and all costs for insuring the Product while the Product is in transit, and while the Product is in Distributor’s control.

Title and risk of loss for the Product shall shift from ABAXIS to Distributor when the Product is delivered to the common carrier transportation company for shipment to Distributor.

7. Warranty and Service Policy

A. Instruments

ABAXIS warrants each Instrument to be free from defects in performance for its intended use for a period of one (1) year (the “Warranty Period”) from its initial sale by Distributor to the original End-User.In the event of failure of an Instrument during the Warranty Period, ABAXIS will, at its option, repair or replace such failed Instrument free of charge, except in the circumstances as listed below.

(1)

Any Instrument which has been subject to abuse, accident, alteration, modification, tampering, negligence or misuse;

(2)

Any Instrument which has been repaired or serviced by anyone not authorized by ABAXIS to render such service;

(3)

Any Instrument whose model or serial number has been altered, tampered with, defaced or removed; or

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(4) Any instrument sold outside the Territory or outside of Professional Use.

B. Reagent Rotors

ABAXIS will replace the product or credit the End-User for any Reagent Rotor which the Instrument’s detection system has found to have a manufacturing defect. In the event that the Distributor’s customer finds any Reagent Rotor to be defective (i.e., as determined by the Instrument’s detection system), such End- User must call ABAXIS’ Technical Service immediately to report pertinent information, including the lot number of the defective Reagent Rotor, and for authorization for credit or replacement of the Reagent Rotor. ABAXIS will not be responsible for Reagent Rotors that are mishandled, altered, or stored or shipped improperly.

Additionally, ABAXIS will not be responsible for non-performing Reagent Rotors due to operator error or sample integrity issues.

8. Termination

Distributor’s authorization to Distribute Products shall remain in full force and effect for one (1) year from the Effective Date, and such authorization shall renew automatically for one (1) year successive terms; provided, however, that at any time during the initial term or any renewal term, this Agreement may be terminated as follows:

(1) During any renewal term, by either party without cause, after thirty (30)

days written notice of termination;

(2)

By ABAXIS, upon giving written notice that Distributor is in breach of its obligations under this Agreement, if Distributor fails to cure the breach within ten (10) days after receipt of such notice; or

(3) By ABAXIS with written notice, upon a change of control or ownership of

Distributor as specified in Section 9 below.

Upon the effective date of termination of this Agreement for whatever reason, the right of Distributor to Distribute Products and to use ABAXIS’ Trade Names, Trademarks and Copyrights shall cease, and Distributor shall immediately discontinue all use of ABAXIS’ Trade Names, Trademarks and Copyrights. Distributor shall promptly return to ABAXIS all price lists, catalogs, sales literature, operating and service manuals, advertising literature, operating and other materials relating to the Products.Upon termination of this Agreement, ABAXIS may purchase, but shall not be obligated to purchase, all or part of the Products, that are not obsolete, damaged or expired, remaining in Distributor’s inventory at the ABAXIS selling price to Distributor. Products repurchased from Distributor by ABAXIS pursuant to this Section 8 shall be shipped promptly by Distributor to a location specified by ABAXIS. The Products so delivered shall

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be subject to inspection by ABAXIS and payment therefore shall be made within forty-five (45) days of final acceptance by ABAXIS of such Products.If ABAXIS does not repurchase Distributor’s entire inventory, Distributor will have the right for the applicable Sell-Through Period to sell any Products remaining in Distributor’s inventory to End-Users for Professional Use in the Territory in accordance with this Agreement, and to continue to use the sales literature, manuals and other materials necessary for selling the remaining inventory of Products.

Termination of this Agreement for any reason shall be without prejudice to any rights that shall have accrued to the benefit of any party prior to such termination, including the payment obligations hereunder and any and all damages or remedies arising from any breach hereunder. Upon any termination of this Agreement, the provisions in Sections 1, 7, 8B, 10, 11, 12, 14, 15, 16, 18 and 19-23 shall remain in effect as necessary to carry out the purpose of those Sections after termination. Additionally, to the extent that Distributor is allowed to retain and sell its remaining inventory of the Products pursuant to Section 8B, all provisions of this Agreement shall remain in effect as applicable for said sales of the remaining inventory.

9. Assignment

Distributor may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of ABAXIS, which consent may be withheld at the discretion of ABAXIS.

Immediately following (i) any consolidation or merger of Distributor with or into any other Person, or any other corporate reorganization, in which the capital stock of Distributor immediately prior to such consolidation, merger or reorganization, represents less than seventy-five percent (75%) of the voting power of the surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; or (ii) any transaction or series of related transactions to which Distributor is a party in which more than twenty-five percent (25%) of Distributor’s voting power is transferred to a third party; or (iii) the consummation of a sale of all or substantially all of the assets of Distributor in any transaction or series of related transactions, other than a sale of all or substantially all of the assets of Distributor to an entity, the voting securities of which are owned by shareholders of Distributor in substantially the same proportions as their ownership of Distributor immediately prior to such sale, in any of the foregoing cases ABAXIS may terminate this Agreement upon written notice to Distributor.

10. No Damages Arising From Termination

Distributor acknowledges and agrees that ABAXIS shall be under no obligation to renew or extend this Agreement notwithstanding any Orders placed by Distributor or other actions taken by the parties prior to termination of this Agreement. Upon termination of

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the Agreement, neither party shall be liable to the other for any damages (whether direct, consequential, or incidental and including expenditures, loss of profits or prospective profits of any kind) sustained or ensuring out of, or alleged to have been sustained or to have arisen out of, such termination. The foregoing shall not limit either party’s rights or remedies with respect to a breach of this Agreement by the other party.

11. Warranty Disclaimer

Except for the express warranty concerning Products contained in Section 7 herein, ABAXIS makes no representation or warranty, express or implied (including implied warranties of merchantability and fitness for a particular purpose) concerning any Product or otherwise concerning matters contemplated by this Agreement. Distributor acknowledges and agrees that ABAXIS’ sole responsibility in the case of any breach of warranty shall be for ABAXIS to comply with ABAXIS’ policy as set forth in Section 7 above. In no event shall either party be liable for loss of profits, loss of use, or incidental, consequential or special damages of any kind.

12. Legal Relationship; Indemnity

The relationship between ABAXIS and Distributor is that of supplier and purchaser. Distributor is an independent contractor and is not the legal representative, agent, joint venture, partner, or employee of ABAXIS for any purpose whatsoever. Distributor has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, on behalf of ABAXIS, or to bind ABAXIS in any respect whatsoever.

A party shall indemnify and hold harmless the other party from any third party claims, injuries, and damages, including all reasonable costs and expenses (such as attorneys’ fees) (“Claims”), that directly or indirectly result from the negligence, or willful misconduct of such indemnifying party or its officers, employees or agents. In addition, Distributor shall indemnify and hold harmless ABAXIS, its affiliates and their respective officers, directors and employees from any Claims that result or arise from Distributor’s breach of this Agreement.

Each of the Parties represents and warrants to the other that this Agreement is duly authorized and delivered and that the Agreement does not conflict with or result in a breach of any other contractual or other obligations of such Party.

13. Use of ABAXIS Trademarks and Copyrighted Material

Distributor may use materials furnished by ABAXIS which contain Trademarks, Trade Names and Copyrights only with respect to Distribution of the Products, in accordance with the terms of this Agreement. Any other use by Distributor of Trademarks, Trade Names and Copyrights shall require specific written authorization from ABAXIS, on a case by case basis. Any such use shall be on a non-transferable, non sublicenceable and non-exclusive basis.

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14. Proprietary Rights

ABAXIS will retain and own all of the rights, title and interest in and to all Copyrights, Trademarks, Trade Names, trade secrets, patents, and all other intellectual property embodied in or covering the Products. Except as otherwise expressly provided in this Agreement, Distributor has no right, title or interest in or to the intellectual property embodied in or covering the Products.

15. Patent Marking

Distributor agrees to include on the Products and on all labels, packaging and sales materials such patent marking as is reasonably requested by ABAXIS.

16. Confidential Information

Except as shall be necessary to comply with applicable laws, court orders and regulations including any public filing requirements, and except as otherwise agreed to by ABAXIS in writing, Distributor shall not use for any purpose other than as permitted herein, or disclose to third parties, any communications from ABAXIS made under this Agreement (whether in written, verbal, electronic, or other form) that are designated, or which should reasonably be regarded in the normal commercial view, as constituting confidential information, business secrets or proprietary information of ABAXIS (including the terms of this Agreement, it being understood that the Parties may disclose publicly that it has entered into this Agreement) (collectively, the “Confidential Information”).ABAXIS hereby consents to the use of the Confidential Information and disclosure of the Confidential Information to the employees of Distributor under confidentiality and non- use terms substantially equivalent to those set forth herein, in each case only as is reasonably necessary in order to allow Distributor to perform under this Agreement. In the event that a Distributor must file this Agreement or otherwise disclose any of its terms pursuant to public filing requirements, the Distributor shall seek confidential treatment of those portions of the Agreement as the parties shall mutually agree upon. Prior to the initial public announcement by the Distributor, ABAXIS shall approve the text (including any Form 8-K) relating to the transactions contemplated by this Agreement.Any subsequent public announcements or non-confidential disclosures regarding the terms of this Agreement shall also be approved by ABAXIS in writing prior to any release thereof.In the event that Distributor must disclose any Confidential Information to comply with applicable laws or court orders, Distributor shall give reasonable advance notice to ABAXIS of such disclosure requirement to enable ABAXIS to seek a protective order or other remedy to protect such Confidential Information, and Distributor shall reasonably assist ABAXIS in such efforts.This confidentiality provision shall survive termination of this Agreement.

17. Force Majeure

Except as to the timely payment by Distributor of the purchase price of Products purchased by it under this Agreement, no failure or omission to carry out or observe any of the terms, provisions, or conditions of this Agreement will give rise to any claim by

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one party against the other, or be a breach of this Agreement, if the same is caused by or arises out of one or more of the following force majeure conditions: acts of God; actions of, or changes to regulations or laws of, any government; war; civil commotion; destruction of facilities or materials by fire, earthquake or storm; labor disturbance; epidemic; failure of public utilities or of suppliers; or any other event, matter or thing wherever occurring and whether or not of the same class or kind as those set forth above, which is not reasonably within the control of the affected party. However, the affected party shall promptly notify the other party of such conditions and will endeavor to avoid, remove, or cure all such conditions as soon as is reasonably feasible.

18. Choice of Law; Venue

This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to its rules for conflict of laws. In the event of any action to enforce or construe this Agreement, or any of the provisions contained herein, whether initiated by ABAXIS or by Distributor, such action shall be heard only by a court of competent jurisdiction located in the State of Delaware.

19. Complete Agreement; Amendments

This Agreement constitutes the entire contract between ABAXIS and Distributor. All prior or contemporaneous agreements, proposals, understandings and communications between or involving ABAXIS and Distributor are replaced in their entirety by this Agreement, except that this Agreement shall not relieve either party from making payments which may be due and owing under any agreements or contract made prior to the date hereof. This Agreement may be amended only by a written instrument executed by authorized representatives of ABAXIS and Distributor.

20. Severability

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall remain, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the agreed substitute provision in order to give the most approximate effect intended by the parties.

21. Headings

The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any article, section, appendix, schedule or party references are to this Agreement unless otherwise stated. Neither party nor their counsel shall be deemed to be the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed in accordance with their fair meaning, and not strictly for or against any party.

22. Waiver

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No waiver of any term or condition of this Agreement shall be valid or binding on either party unless agreed in writing by the party to be charged.The failure of a party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of such party to enforce each and every such provision thereafter.

23. Counterparts

This Agreement is signed in two identical counterpart originals each of which is to be considered the original.

[Signatures are on next page.]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate by their duly authorized representatives as of the date set forth below.

MWI Veterinary Supply Co.

By: Mary Pat Thompson

Signature: /s/ Mary Pat Thompson

Title: Chief Financial Officer

Date: September 28, 2012

ABAXIS, Inc.

By: Martin Mulroy

Signature: /s/ Martin Mulroy

Title: Chief Commercial Officer

Date: September 28, 2012

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Appendix A

Storage and Transportation Guidelines for Products

VetScan Reagents

VS2 Rotors, VSpro Cartridges and i-STAT Cartridges

1.0 Reagents must be stored refrigerated at 2-8° C.

2.0

Reagents must be shipped in insulated shipping containers with frozen gel ice packs Cold shipper is to be placed in corrugated shipping box.

Insulated containers may be ice chest type, or any other type Styrofoam configuration, designed to maintain cold temperatures for a minimum of 24 hours. Walls of the Styrofoam containers must be a minimum of 7/8” wall thick, and be enclosed in a corrugated shipping box.

Gel ice packs must be a minimum 1 1/2 lb. in weight. (Generally, smaller sizes will not remain frozen adequately during shipment.)

3.0 Corrugated shipping boxes are to be clearly marked with temperature requirements - “Refrigerate at 2-8° C” - and are to be clearly labeled “Refrigerate Upon Arrival.”

4.0

Any carrier who provides next day delivery services may be used so long as the shipment arrives at its destination within twenty-four (24) hours.

5.0

When the shipment arrives, the product should feel cold to the touch, and the gel packs should be frozen or partially frozen.

6.0

Caution: Under no circumstances are the reagents to be shipped unprotected, either in a corrugated box without Styrofoam, without gel packs, or via any shipping method that takes longer than twenty-four (24) hours.

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