**Exhibit 10.2**

 

*** * –CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITHTHE COMMISSION.  CONFIDENTIAL TREATMENTHAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.**

 

**COMPANION ANIMAL AAHA MARKETLINK MANAGEMENT AGREEMENT**

 

ThisAgreement dated and effective as of March 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 S. Stratford Drive, Ste 100, Meridian,ID 83642 (“MWI”).

 

1.                                       PFIZER herebyagrees to supply MWI as a designated product supplier for the PFIZER companionanimal Products set forth on Exhibit A (the “Products”), to purchase fromPFIZER and to resell to certain selected Veterinary Hospitals serviced by MWIwho are members of the AAHA/MarketLink arrangement and listed in Exhibit Ehereto, subject to the following terms and conditions.

 

2.                                       MWI recognizesand agrees to the following:

(a)                                  PFIZER haselected to work with MWI as a designated supplier to MWI serviced hospitals atthe request of MWI. MWI agrees to work closely with PFIZER to coordinatelogistics for the supply of Products to such hospitals;

(b)                                 PFIZER intends tosell to MWI as the logistics supplier for the hospitals. MWI understands andagrees that PFIZER has, and may in the future, run promotions and otheractivities that would be seriously prejudiced if MWI resells the Products todistributors or veterinarians who will resell the Products as a distributor.Incentive payments under Exhibit D hereto will only be paid by PFIZER toMWI for Sales to the hospitals listed on Exhibit B below or such customerswho are added to Exhibit B by mutual agreement of PFIZER and MWI.

 

3.                                       MWI agrees to:

(a)                                  use itsreasonable best efforts to sell the Products by focusing its primary effort atreselling to veterinary hospitals associated with MWI and to pet ownerpharmaceutical customers of MWI serviced hospitals;

(b)                                 store and handleits inventory of Products under conditions that will ensure that such Productsretain their potency, purity, quality, and identity;

(c)                                  accept shipmentsfrom PFIZER of Product at MWI 12 warehouse locations and provide allappropriate shipment and delivery options to the accounts serviced by MWI underthis Agreement;

(d)                                 not sell theProducts to distributors, manufacturers or to veterinarians who will resell anyPFIZER Companion Animal Products outside an establishedveterinary/client/patient relationship, nor shall MWI sell the Products throughbrokers or non-employee agents;

(e)                                  set its resaleprices for the Products independently and at its sole discretion;

(f)                                    provide PFIZER aprojected monthly purchase schedule by the end of the second 

 

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weekof each month;

(g)                                 cooperate fullywith PFIZER by actively participating in such strategy sessions as PFIZERreasonably may require, for the purpose of developing programs to increase useof the Products; and to cooperate fully with PFIZER in implementing allpromotions and Sales campaigns for the Products;

(h)                                 distribute theProducts only under the labeling provided by PFIZER; prescribe, recommend,suggest, and advertise each Product for use only under the conditions stated inthe labeling provided by PFIZER; and observe all federal, state, and local lawsgoverning the distribution of animal drugs. In the case of Products bearing thelegend, “CAUTION: FEDERAL LAW RESTRICTS THIS DRUG TO USE BY OR ON THE ORDER OFA LICENSED VETERINARIAN,” or any similar legend, sell such Products only to oron the order of a licensed veterinarian for use in the course of his or herprofessional practice or to another person or entity regularly and lawfullyengaged in the use, distribution or dispensing of such legend drugs;

(i)                                     MWI agrees thatcredit limits established by PFIZER shall be subject to change by PFIZER in itssole discretion and that no shipments will be made to MWI in excess of theestablished credit limits;

(j)                                     take no action,whether or not identified above, that would harm the goodwill or name ofPFIZER, or damage the interests of PFIZER or the Products;

(k)                                  MWI shallimmediately notify PFIZER in the event MWI obtains information indicating thatany of the Products may have to be recalled either by virtue of applicable lawor regulation or good business judgment. PFIZER shall control all effortsnecessary to conduct any such recall. MWI shall cooperate with PFIZER, atPFIZER’s expense, and MWI agrees to maintain adequate records to conduct suchrecall, including the name, address and Product purchases of all purchasers ofPFIZER Products;

(l)                                     Make payment toPFIZER for all product purchased from PFIZER /**/;

(m)                               Provide to PFIZERby the close of business on the last business day of each PFIZER AccountingPeriod (as set forth in Exhibit F hereto) an inventory report covering allinventory purchased from PFIZER.

(n)                                 Provide PFIZERwith a monthly accounting of Sales via EDI for purposes of allowing PFIZERproper credit to its sale professionals and provide to Covansys by the close ofbusiness on the last day of each PFIZER Accounting Period an inventory reportcovering all Product inventory purchased from PFIZER and setting forth indollars at MWI’s acquisition cost from PFIZER the amount of inventory byProduct. MWIagrees thatPFIZER shall have the right, upon reasonable advance notice and during businesshours to audit inventory in the possession of MWI to confirm compliance withthis paragraph 4(n) and to confirm the accuracy of thedata contained in the report.

(o)                                 Provide toCovansys its Health Industry Number, Customer Health Industry Number, PFIZERProduct number, transaction date, ship to zip code, number of units and pricewith respect to each sale of Product,and unit inventories on each PFIZER Product skuthat MWI sells.

(p)                                 MWI will alsoprovide to PFIZER the information, services and opportunities set forth in Exhibit Bhereto. MWI represents and warrants to PFIZER that it will only provide data toPFIZER, including 

 

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specificpatient and animal owner information that is allowable by law.

 

4.                                       PFIZER shall:

(a)                                  sell the Productsto MWI at the prices provided for in Exhibit A. PFIZER shall have theunrestricted right to revise the prices, terms and conditions of the PriceList, and to add or delete Products or package sizes, at anytime, and therevisions shall be effective on all orders submitted after the effective dateof the price revisions. In all cases of orders received for other thanimmediate shipment, the price for the Products shall be that in effect at thetime of shipment. Nothing herein shall prohibit PFIZER from raising or amendingprices for Products. PFIZER agrees to provide MWI /**/ notice of any price increases. PFIZER shall befree to limit Sales of Products to MWI in advance of any price increases;

(b)                                 Compensate MWI inaccordance with Exhibit D hereto;

(c)                                  allow MWI crediton prepaid returns in accordance with PFIZER’s Outdated Products Policy whichis in effect at the time;

 

5.                                       Nothing in thisAgreement shall be deemed to limit PFIZER’s ability to sell Products to anyother party.

 

6.                                       All purchases byMWI pursuant to this Agreement shall be in accordance with the terms of PFIZER’sPricing and Shipping Policies, as may be amended by PFIZER from time to time.

 

7.                                       The followingstandard conditions shall apply to all Sales under this Agreement:

(a)                                  all orders aresubject to acceptance by PFIZER’s Home Office. Title to the goods shall pass toMWI once they have been properly delivered to the address designated by MWI.Products requiring temperature control will be shipped F.O.B. destination;

(b)                                 any tax or othercharge upon the sale and/or shipment of the goods now or hereafter imposed byfederal, state or municipal authorities (other than PFIZER’S income taxes)shall be paid by MWI. In the event that the price of any article includestransportation charges, any increase or decrease in transportation chargesshall be for MWI’s account;

(c)                                  EXCEPT AS SETFORTH IN THIS AGREEMENT, OR IN THE LABELING OF THE PRODUCTS SOLD HEREUNDER,PFIZER MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS;

(d)                                 PFIZER shalldefend, indemnify, and hold MWI harmless from all liabilities, claims, demands,damages, costs and expenses, or money judgments incurred by MWI or renderedagainst it resulting from (a) any breach by PFIZER of this Agreement, (b) thirdparty claims or actions for personal injury or property damage which arise outof the distribution or sale of PFIZER products or the failure to warn, exceptto the extent that such personal injury or property damage arises out of thenegligence or willful misconduct of MWI, and (c) any claim that theProducts, as sold by PFIZER, were defective, or (d) any claim that aProduct or its associated labeling or advertising prepared by PFIZER infrinqesany patent, trademark, 

 

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trademark,copyright or other intellectual property riqht of any third party. PFIZER shallassume the defense of each such claim promptly after written notice from MWI. In the eventPFIZER is found by any court of competent jurisdiction to be liable for anyclaim based in products liability, then PFIZER shall reimburse MWI’s reasonablelegal fees incurred in the course of cooperatingwith PFIZER’s defense. To be covered by thisdefense and indemnity, MWI must: promptly notify PFIZER of any such claim;allow PFIZER to fully control the defense and/or resolution of the claim; andcooperate fully with PFIZER in the matter. This defense,indemnity and payment forlegal fees shall not apply to claims alleging: MWI alteration, negligenthandling or improper storage of the Products; sale of outdated Products; saleor recommendation of the Products for uses or in a manner not set forth ineither the labeling supplied by PFIZER or as otherwise specified by PFIZER inwriting; or sale of the Products after receipt of written notice from PFIZERthat such Sales should be halted;

(e)                                  in no event shalleither party be liable to the other for special, collateral, incidental, orconsequential damages in connection with or arising out of the purchase,resale, or use of the Products. Except as provided under subparagraph 7(d),above, total damages recoverable against PFIZER by MWI shall be exclusivelylimited to the purchase price of the Products with respect to which damages areclaimed;

(f)                                    failure of PFIZERto make or of MWI to take, when due, any delivery (or portion thereof) pursuantto an order hereunder, if occasioned by any circumstance or condition beyondthe control of the party so failing, shall not subject the failing party to anyliability to the other and, at the option of either party, that order orportion thereof not delivered may be canceled;

(g)                                 acceptance of MWI’sorder by PFIZER is expressly made conditional upon the MWI’s acceptance of theconditions of sale as set forth herein, and the prices, terms and conditions ofthe Price List then in effect, notwithstanding acknowledgment or receipt of MWI’spurchase order containing additional or different provisions, or conflictingoral representations by any agent of PFIZER.

(h)                                 All orders to MWIwill receive free shipping regardless of order size.

(i)                                     Payment Due Date:/**/. PaymentDiscount: /**/.

 

8.                                       This Agreementshall not be binding upon PFIZER until it is approved by PFIZER at its NewYork, New York headquarters.

 

9.                                       This Agreementshall be effective as of the date first written above and shall continue inforce (hereinafter, the “Contract Term”) until August 31, 2009. Eitherparty may terminate this agreement prior to the expiration date of the ContractTerm (i) with or without cause, upon thirty (30) days written notice tothe other party, or (ii) immediately upon written notice, in the event ofa material breach by the other party. Notwithstanding the above, PFIZER mayterminate this Agreement at any time on 15 days . written notice to MWI in theevent that PFIZER determines, in its sole discretion, that MWI has failed tocomply with one or more of the terms and conditions set forth in paragraph 3above. In addition, at its election, PFIZER may terminate this Agreement, uponthirty (30) days written notice to MWI, in the event that MWI fails to meet thelevel of Sales identified in Chart B of Exhibit D for two consecutivemonths.

 

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10.                                 MWI and PFIZERacknowledge that in the performance of their duties hereunder MWI and PFIZERmay obtain access to “Confidential Information” (as defined below) of eachother. MWI and PFIZER agree that during the term of this Agreement and for aperiod of three (3) years after the termination of this Agreement, unlessspecifically permitted in writing by the other party, to (a) retain inconfidence and not disclose toany third party and (b) use only for the purpose of carrying out theirduties hereunder, any such Confidential Information. As used herein the term “ConfidentialInformation” means any information, or data, whether of a business orscientific nature and whether in written, oral or tangible form, relating toPFIZER’s and MWI’s business or potential business or its research anddevelopment activities, not generally available to or known to the public, andnot otherwise known to the receiving party, that is disclosed to or learned bythe other party pursuant hereto. Upon completion of the work provided forhereunder or other termination of this Agreement each party will return to theother party any documents, or copies thereof, or any product samples,containing or constituting Confidential Information disclosed to or generatedby either party in connection with this Agreement.

 

11.                                 This Agreementshall be governed by the laws of the State of New York applicable to contractsto be fully performed therein. This Agreement is not assignable without theexpress written consent of PFIZER, and may be modified or amended only inwriting signed by the party to be bound.

 

12.                                 This Agreementand documents referred to herein embody the entire understanding between theparties hereto, will supersede prior agreements relating to the Products, andmay be modified only in writing and signed by the parties to be bound. Noactivities conducted pursuant to this Agreement or related thereto, includingbut not limited to the future planning activities of the parties, shall be deemedto give rise to any obligations on the part of either party other than asexpressly provided for herein.

 

INWITNESS WHEREOF, intending to be legally bound, the parties have executed thisAgreement.

 

 
| MWI  VETERINARY SUPPLY CO. |                | PFIZER  INC. |
|----------------------------|---------------------|--------------|
|                       |                |         |
| BY:                        | /s/ Jim Cleary      |         | BY: | /s/ Clinton A.  Lewis, Jr. |
|                       |                |         |   | Clinton  A. Lewis, Jr. |
| Print Name:                | Jim Cleary          |         |   | President |
|                       |                |         |   | U.S.  Operations, PFIZER Animal  Health |
| Title:                     | President           |         |   |   |
|                       |                |         |   |   |
| Date:                      | March 13, 2009 |         | Date: | 3/24/09 |

 

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