Exhibit 10.4
* * – 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.
COMPANION ANIMAL SELECT BRANDS
DISTRIBUTION AGREEMENT
This Agreement dated and effective
as of January 1, 2009 is made by and between Pfizer
Inc., 235 East 42nd Street, New York, NY 10017 (hereinafter,
“PFIZER”) and MWI Veterinary Supply, 651 South
Stratford Drive, Suite 100, Meridian, Idaho 83642
(hereinafter, “MWI”).
Definitions:
“Products”: Zeniquin,
Temaril-P, Antirobe, Doxirobe, Medrol, Dexdomitor, and
Antisedan
1.
PFIZER hereby appoints MWI, and MWI
hereby accepts appointment, as a contract distributor for
PFIZER’s 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 veterinarians who have and
maintain a veterinary/client/patient relationship and who prescribe
products for dogs or cats within that relationship, 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
non-veterinarians, other distributors, internet pharmacies, human
pharmacies or non-employee agents or through brokers.
3.
Accordingly, MWI shall:
(a)
use its reasonable best efforts to
sell the Products by focusing its efforts at reselling to
veterinarians only with a client patient relationship.
(b)
maintain a full-time outside and
inside sales force that will personally and actively solicit sales
of the Products and to pay such sales representatives reasonable
commission;
(c)
store and handle its inventory of
Products under conditions that will ensure that the Product retains
its potency, purity, quality, and identity;
(d)
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;
(e)
allow PFIZER’s representatives
to attend and actively participate in meetings of MWI’s sales
representatives;
(f)
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. MWI will make payment to PFIZER for all Products
shipped /**/;
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(g)
take no action, -whether or not
identified above, that would harm the goodwill of the
Products;
(h)
MWI shall immediately notify PFIZER
in the event MWI obtains information indicating that 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;
(i)
MWI shall not, under any
circumstances, be liable for special, collateral, incidental or
consequential damages, and PFIZER’s sole remedy for any such
damages shall be in accordance with Paragraph 7(e).
4.
PFIZER shall:
(a)
sell the Products to MWI at the
prices in effect in the then current published PFIZER Animal Health
Ethical Distribution Price Memo (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;
(b)
retain sole responsibility for the
advertising and promotion of the Products and collaborate with MWI
in the development of activities appropriate for ethical
distribution regarding the Products;
(c)
compensate MWI in accordance with
Exhibits A and B attached hereto. PFIZER shall have the right to
audit MWI sales data to confirm appropriate payment in accordance
with Exhibits A and B;
(d)
allow MWI credit on prepaid returns
in accordance with PFIZER’s Outdated Products Policy which is
in effect at the time;
(e)
If MWI has more than one location
then MWI must combine purchases of all locations to determine
attainment level for incentives. In the event that MWI acquires or
combines with another PFIZER agreement holder, the purchase
objectives will be adjusted accordingly for the purpose of
determining incentives earned;
(f)
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.
Nothing in this Agreement shall be
deemed to limit PFIZER’s ability to sell Products to any
other party.
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6.
All purchases by MWI pursuant to
this Agreement shall be in accordance with the terms of
PFIZER’s Pricing and Shipping Policies, as may be amended by
PFIZER from time to time. Unless the parties agree otherwise,
shipments shall be made to either MWI’s central warehouse
point o
