Exhibit 10.1
* * – CERTAIN INFORMATION
IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
2009 PFIZER EQUINE PRODUCTS
MARKETING AGREEMENT
This Agreement dated and effective
as of January 1, 2009 is made by and between Pfizer
Inc., 235 East 42nd Street, New York, New York 10017
(hereinafter, “PFIZER”) and MWI Veterinary Supply
Co., 651 South Stratford Drive, Suite 100, Meridian, ID
83642 (hereinafter, “MWI”).
1.
PFIZER hereby appoints MWI, and MWI
hereby accepts appointment, as a contract distributor for PFIZER
Products set forth on Exhibit A (the “Products”),
to purchase from PFIZER and to resell for MWI’s own account
as a distributor, subject to the following terms and
conditions.
2.
MWI recognizes and agrees to the
following:
(a)
PFIZER has elected to work with a
select group of distributors that are committed to maximizing the
sale of the Products and to working closely with PFIZER to identify
market opportunities for both companies. The intent of this
Agreement is to attain that goal;
(b)
PFIZER intends to utilize this group
of distributors to sell the Products to customers below them in the
distribution chain and that PFIZER has, and may in the future, run
promotions and other activities that would be seriously prejudiced
if MWI resells the Products to other PFIZER contract distributors,
non-employee agents or through brokers.
3.
Accordingly, MWI shall:
(a)
use its reasonable best efforts to
sell the Products by focusing its primary effort at reselling to
veterinarians, OTC retailers, and horse owners;
(b)
maintain a full-time outside and
inside sales force that will personally and actively solicit sales
of the Products and pay such sales representatives reasonable
commission as MWI deems appropriate in its sole
discretion;
(c)
store and handle its inventory of
Products under conditions that will ensure that such Products
retain their potency, purity, quality, and identity;
(d)
MWI will provide PDA/EDI with sales
out data on each PFIZER sku MWI sells. MWI will provide to Covansys
its Health Industry Number, Customer Health Industry Number, PFIZER
product number, transaction date, ship to zip code, number of units
and price with respect to each sale of product, and unit
inventories on each PFIZER sku that MWI sells. This information
should be sent to Covansys. Sales out data shall be provided to
Covansys within /**/ of the date of each invoice. MWI will use its
best efforts to insure sales out data integrity and
timeliness;
(e)
set its resale prices for the
Products independently and at its sole discretion;
(f)
cooperate fully with PFIZER by
actively participating in such strategy sessions as PFIZER
reasonably may require, for the purpose of developing programs to
increase use of the Products; and to cooperate fully with PFIZER in
implementing all promotions and sales campaigns for the
Products;
(g)
allow PFIZER’s representatives
to attend and actively participate in meetings of MWI’s sales
representatives;
(h)
MWI agrees that credit limits
established by PFIZER shall be subject to change by PFIZER in its
sole discretion and that no shipments will be made to MWI in excess
of the established credit limits;
(i)
take no action, whether or not
identified above, that would harm the goodwill
or name of PFIZER, or damage the
interests of PFIZER or the Products, other than where supported by
sound factual evidence. For purposes of this Agreement
“Goodwill” shall mean the marketplace advantage of
customer patronage and loyalty developed with continuous business
under the same name over a period of time.
(j)
MWI shall immediately notify PFIZER
in the event MWI obtains information indicating that any of the
Products may have to be recalled either by virtue of applicable law
or regulation or good business judgment. PFIZER shall control all
efforts necessary to conduct any such recall. MWI shall cooperate
with PFIZER and MWI agrees to maintain adequate records to conduct
such recall, including the name, address and Product purchases of
all purchasers of PFIZER Products.
(k)
MWI may make use of the custom
marketing program funding provided for in Exhibit E
hereto.
(l)
Make payment to PFIZER /**/;
and
(m)
Provide to PFIZER by the close of
business on the last business day of each PFIZER Accounting Period
(as set forth in Exhibit G hereto) an inventory report
covering all inventory purchased from PFIZER and setting forth in
dollars at MWI’s acquisition cost from PFIZER the amount of
inventory by species. MWI agrees that PFIZER shall have the right
to audit inventory in the possession of MWI to confirm compliance
with this paragraph 3 (m) and to confirm the accuracy of the
data contained in the report.
4.
PFIZER shall:
(a)
sell the Products to MWI at the
prices in effect in the then current published PFIZER Animal Health
Products Distributor Price List (hereinafter, “Price
List”). PFIZER also shall permit MWI to participate in the
distributor incentive programs offered by PFIZER, in accordance
with the terms of such programs. PFIZER shall have the unrestricted
right to revise the prices, terms and conditions of the Price List,
and to add or delete Products or package sizes, without advance
notice to MWI, and the revisions shall be effective on all orders
submitted after the effective date of the price revisions. In all
cases of orders received for other than immediate shipment, the
price for the Products shall be that in effect at the time of
shipment. PFIZER agrees to give MWI /**/ advance notice of price
increases;
(b)
compensate MWI in accordance with
Exhibits B, D and E hereto. In the event that one Agreement holder
acquires or combines with another Agreement holder, the purchase
objectives will be adjusted accordingly for the purpose of
determining incentives earned; and
(c)
allow MWI credit on prepaid returns
in accordance with PFIZER’s Outdated Products Policy which is
in effect at the time;
(d)
Agreement holders with more than one
location must combine purchases of all locations to determine
attainment level for incentives. In the event that one Agreement
holder acquires or combines with another Agreement holder, the
purchase objectives will be adjusted accordingly for the purpose of
determining incentives earned.
(e)
Direct purchase from PFIZER will be
used to determine the level of purchases achieved. Any
discrepancies must be documented by the Marketing Agreement holder
using copies of PFIZER invoices.
5.
All pur
