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 LIVESTOCK PRODUCTS
DISTRIBUTION AGREEMENT
This Livestock Products Agreement
(“Agreement”) effective as of January 1, 2009
(“Effective Date”) is made by and between Pfizer
Inc., 812 Springdale Drive, Exton, PA 19341
(“Pfizer”) and, MWI Veterinary Supply, 651 South
Stratford Drive, Suite 100, Meridian, Idaho 83642
(“MWI”).
WHEREAS, MWI is in the business of
buying and selling animal health products and servicing customers
for those products, and
WHEREAS, MWI and Pfizer wish to set
forth the terms of their relationship related to the purchase and
supply of such products,
NOW, THEREFORE, in consideration of
the promises and covenants contained herein, the parties hereby
agree as follows:
Definitions:
“PARTICIPATING
CUSTOMERS” shall mean customers from the list of customers
approved by Pfizer who have entered into a Leaders Edge Agreement
with Pfizer.
“Products” shall mean
the Pfizer cattle and swine products sold to MWI by Pfizer pursuant
to this Agreement (and referenced in Schedule A to this
Agreement).
“Sales Out” shall mean
the reported sales by MWI to Covansys and accepted by
Pfizer.
“Strategic Accounts”
shall mean all those PARTICIPATING CUSTOMERS listed in Schedule B
hereto.
1.
(a)
Pfizer shall continue to promote its Products to certain select
customers in the livestock field. The parties agree that each time
a PARTICIPATING CUSTOMER selects MWI as their supplier and to
service that customer’s account, Pfizer shall send to MWI a
Pfizer Suggested Resale Price List which shall specify the Pfizer
Products and the Pfizer suggested resale prices quoted to such
PARTICIPATING CUSTOMER (hereafter “SUGGESTED RESALE PRICE
LIST). Each such SUGGESTED RESALE PRICE LIST shall be incorporated
into and become part of this Agreement. Please find the current
SUGGESTED RESALE PRICE LIST listed on Schedule C hereto. Also
included on Schedule C is the current Pfizer Livestock Distributor
Pricing. The Products and suggested resale prices are subject to
change at any time in Pfizer’s sole discretion upon thirty
(30) days prior written notice.
(b)
Pfizer reserves the right to add or delete PARTICIPATING CUSTOMERS
or Strategic Accounts at any time at Pfizer’s sole
discretion. Pfizer will provide written notice to MWI of any
changes. Pfizer will notify MWI of any (i) additions to the
Strategic Accounts list within twenty-four (24) hours of
Pfizer’s receipt of the customer contract and
(ii) removals from the Strategic Accounts list within four
(4) business days prior to the removal effective
date.
2.
(a) MWI
represents and warrants that for the purposes of this Agreement, it
is in the business of purchasing Products from Pfizer for the sole
purpose of resale and distribution, is registered within the
state(s) with which it does business, is compliant with all
pharmacy and distribution licensing requirements within the
state(s) with which it does business, and is compliant with
and capable of participating in Electronic Data Interchange
(EDI).
(b)
MWI agrees to purchase from Pfizer, at credit terms agreed to
between the parties and as may be further set forth on
Pfizer’s invoices, Products sufficient to fulfill demand from
all customers to whom MWI will sell Products in the quantities
desired by the customers.
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(c)
MWI agrees to maintain an inventory of Products equal to /**/
Demand, but excluding all Products indicated on Schedule A as
ineligible for RSA payments. For purposes of this Agreement
“Demand” shall mean /**/.
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All Products shall count towards the
amount held in inventory by MWI. MWI and Pfizer agree to act in
good faith to resolve any material differences in the on hand
inventory calculations.
(d)
Pfizer reserves the right to allocate purchases such that MWI may
not purchase more than two (2) months MWI’s average of
the most current Moving Annual Total sales purchases. Exceptions
must be approved by Pfizer’s New York
headquarters.
(e)
MWI agrees that all sales of Pfizer Products from MWI to a
PARTICIPATING CUSTOMER shall reflect the specific prices for each
Product provided for in that PARTICIPATING CUSTOMER’S most
recent SUGGESTED RESALE PRICE LIST. In the event that the price
listed on a PARTICIPATING CUSTOMER’S most recent SUGGESTED
RESALE PRICE LIST for any particular Product is lower (at the time
of consummation of a sale of such particular Products between MWI
and that PARTICIPATING CUSTOMER) than the price paid by MWI to
Pfizer for such Product, Pfizer agrees to credit MWI’s
account for the amount of such difference.
3.
Nothing herein contained shall create or be deemed to create any
relationship between the parties other than as specifically
provided for herein. No employment, partnership, specific or
general agency relationship shall exist unless specifically
provided for in writing between the parties. MWI shall not
represent, directly or indirectly, expressly or by implication,
that any such relationships exist and/or that MWI has any authority
except as set forth in this Agreement.
4.
MWI shall use commercially reasonable efforts to provide
appropriate service to the customers to whom MWI will sell
hereunder. For customers serviced pursuant to this Agreement, MWI
shall:
(a)
Store its inventory of Pfizer Products under conditions (including
refrigeration where appropriate) in accordance with package
labeling or other written instructions from Pfizer to ensure that
such Products retain their potency, purity, quality, and
identity;
(b)
Provide to Covansys by the close of business on Friday of each week
an inventory report covering all Product 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, upon reasonable advance notice and
during business hours to audit inventory in the possession of MWI
to confirm compliance with this paragraph 4(b) and to confirm
the accuracy of the data contained in the report;
(c)
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 Product sku that MWI
sells;
(d)
Provide Sales Out data, which shall include Leaders Edge and
Non-Leaders Edge sales, to Covansys within ten (10) working
days of the date of each invoice. MWI will use its best efforts to
ensure Sales Out data integrity and timeliness;
(e)
Submit all orders to Pfizer via EDI. EDI report 867 is the
acceptable format;
(f)
Establish any service fee or other charge or discount to any
customer including PARTICIPATING CUSTOMERS for Pfizer Products
independently and at its sole discretion;
(g)
Provide regularly scheduled delivery service to its customers and
use commercially reasonable efforts to anticipate its
customers’ requirements for Pfizer Products. In the event
Pfizer delivers any product order to PARTICIPATING CUSTOMERS (drop
ship), no consideration shall be payable to MWI for that order
under paragraph 5 below, provided that Pfizer will pay MWI for any
drop ship if such shipment is made necessary by the unavailability
of Pfizer Products;
(h)
MWI agrees that credit limits established by Pfizer shall be
subject to change upon written notice by Pfizer in its sole
discretion and that no Product shipments will be made to MWI in
excess of the established credit limits;
(i)
Invoice customers in an accurate and timely manner;
(j)
Refer to that PARTICIPATING CUSTOMERS SUGGESTED RESALE PRICE LIST
on each invoice for Pfizer Products;
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(k) &
