**Exhibit 10.8**

 

****— CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELYWITH THE COMMISSION.  CONFIDENTIALTREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.**

 

**2010 - 2011 MERIAL /**/ INDEPENDENT SALESAGENT****AGREEMENT**

 

THIS 2010 — 2011 MERIAL /**/ INDEPENDENTSALES AGENT AGREEMENT (“Agreement”), is executed as of this 25th day of February, 2010 andeffective as of the “Commencement Date” as defined below, by and between MERIAL LIMITED, a company limited by sharesregistered in England and Wales (registered number 3332751) with a registered office atP.O. Box 327, Sandringham House, SandringhamAvenue, Harlow Business Park, Harlow, Essex CM19 5QA, England, anddomesticated in Delaware, U.S.A. as MERIAL LLC, with a place of business at 3239 Satellite Boulevard, Duluth, Georgia 30096-4640 USA (hereinafter “MERIAL”) andMWI Veterinary Supply Co., with a place ofbusiness at 651 S. Stratford Drive, Suite 100, Meridian, Idaho 83642 (hereinafter called “IndependentSales Agent”).

 

W I T N E S S E T H:

 

WHEREAS, MERIAL is a companythat researches, develops, manufactures and distributes pharmaceutical and biological productsfor animal health use, including products for companion animals;

 

WHEREAS, Independent Sales Agentemploys sales representatives (“Sales Agent Representatives”) who call uponveterinarians, in person and via telephone, to sell products to be used for companion animals;

 

WHEREAS, MERIAL desires toappoint Independent Sales Agent to sell, market and provide servicesrelated to MERIAL companion animal products; and

 

WHEREAS, Independent Sales Agentaccepts such appointment under the terms and conditions hereinafter set forth;

 

NOW THEREFORE, in exchangefor the promises and covenants described in the Agreement, and other good and valuableconsideration, the receipt and adequacy ofwhich are hereby acknowledged, MERIAL and Independent Sales Agent hereby agree as follows:

 

1.  DEFINITIONSANDINTERPRETATION

 

1.1           Definitions

 

In this Agreement and anySchedules incorporated herein, each expression below shall have the following meaning unless expressly stated otherwise:

 

(a)           “Affiliate” shall mean (i) any businessentity fifty percent (50%) or more of which is owned directly or indirectly by aParty to this Agreement; (ii) anybusiness entity which directly or indirectly owns fifty percent (50%) or more of a Party to this Agreement; or (iii) anybusiness entity under the direct or indirectcontrol of any business entity as described in (i) or (ii) above.

 

(b)           “AMA” shall mean an Authorized Merial Account.

 

(c)           “Business Day” shall mean a day (except aSaturday or Sunday) on which banksin the U.S.A. are open for the normal range of banking business;

 

(d)           “Commencement Date” shall mean January 1,2010;

 

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(e)           “Confidential Information” shall have themeaning given in paragraph 14.6hereof; 

 

(f)            “EDI” shall mean Electronic Data Interchange System;

 

(g)           “EDI Information” shall mean EDI andprocedures set forth in Schedule C,attached hereto and incorporated herein, such information including MERIAL companion animal product salesand AMA information consisting at a minimum of the customer’s name, address and accountnumber as well as MERIAL companion animalproduct purchase information, including MERIAL companion animal product name and quantity of MERIAL companionanimal product purchased by package size and units;

 

(h)           “Interest Rate” shall mean the interest ratethat is two percent (2%) aboveCitibank- New York branch’s prevailing prime rate in existence in the U.S.A.;

 

(i)            “Named Sales Agent” shall mean the IndependentSales Agent that is designatedon an order by an Independent Sales Agent code;

 

(j)            “Named Sales Agent Sale(s)” shall mean a saleto an AMA in the NamedSales Agent’s Territory generated by placement of an order with MERIAL by (i) the Named Sales Agent; (ii) anAMA designating a Named Sales Agent; or (iii) an authorized MERIAL representativedesignating the Independent Sales Agentas the Named Agent;

 

(k)           “Net Sales” shall mean sales net of alldiscounts, rebates (including, but not limited to, free goods, consumer coupons,and free dose offers) and returns;

 

(l)            “NHO” shall mean Network Hospital Organization;

 

(m)          “Other Products” shall mean the finishedMERIAL companion animal products, jointly and severally, in such sizes andpresentation forms as set forth in ScheduleD, attached hereto and incorporated herein.  The list of Other Products setforth in Schedule D may be amended as specified in Section 2.5 of this Agreement, as MERIAL in its sole discretiondetermines necessary, to (i) includeother products which MERIAL may hereafter develop, manufacture, or market, or (ii) deleteOther Products;

 

(n)           “Party” shall mean MERIAL or Independent SalesAgent;

 

(o)           “Products” shall mean the finished MERIALcompanion animal products, jointlyand severally, in such sizes and presentation forms as set forth in Schedule A, attached hereto and incorporated herein.  The list of Products set forth in Schedule A may be amended as specified inSection 2.4 of this Agreement, asMERIAL in its sole discretion determines necessary, to (i) include other products which MERIAL may hereafterdevelop, manufacture, or market, or (ii) deleteProducts;

 

(p)           “Product Literature” shall mean alladvertising, promotional and technical literature, label and packagingtext, package inserts or other material that bears a Trademark or that is used in thepromotion of the Products and/or Other Products;

 

(q)           “Property” shall have the meaning given inparagraph 9.1 hereof;

 

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(r)            “Sales Agent Representatives” shall have themeaning given in the second whereas clause.

 

(s)           “Term” shall mean the duration of thisAgreement as defined in paragraph 3.1herein and any renewal(s) hereof;

 

(t)            “Termination Fee” shall have the meaning givenin paragraph 3.2 hereof; 

 

(u)           “Territory” shall mean the following geographic area: United States

 

(v)           “Trademarks” shall mean all designatedproprietary trademarks, and associated trade dress, tradenames, symbols, brand names,package designs and the like nowor hereafter owned, acquired, used or registered by MERIAL in theTerritory to identify (i) the Products of MERIAL, set forth in attached Schedule A, and which are to be used only on orin relation to the Products and (ii) the Other Products of MERIAL, set forth inattached Schedule D, and which are to be used only on or in relation to the Other Products;

 

(w)          “United States” or “U.S.A” shall mean the fifty(50) states and the District of Columbiathat make up the United States of America;

 

(x)           “Veterinary Trade” shall mean practicingveterinarians and animal hospitals thatare in compliance with the rules of the American Veterinary Medical Association.

 

1.2           Interpretation

 

In this Agreement, unless expressly stated otherwise:

 

(a)           a reference to any Party includes that Party’sexecutors, administratorsand permitted assigns, or being a company, its successors and permitted assigns;

 

(b)           the singular includes the plural and vice versa; 

 

(c)           a reference to a gender includes each gender;

 

(d)           areference to a person includes an individual, firm, body, corporation, association (whether incorporated or not) and authority oragency (whether governmental, semi- governmental or local);

 

(e)           a reference to time of day is to the timeapplicable at the relevant date in the Eastern time zone in the U.S.A.;

 

(f)            the inclusion of headings, clause numbers,italics, bold print and underlining isfor convenience of reference only and shall not affect the interpretation ofthis Agreement;

 

(g)           the schedules attached hereto are incorporatedherein and deemed a part of this Agreement;

 

(h)           a reference to any agreement or document is tothat agreement or document(and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;

 

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(i)            a reference to any statute, regulation, rule orother legislative provision includesany amendment to, statutory modification or re-enactment of, legislative provision substituted for, and anystatutory instrument issued under that statute, regulation, rule or otherlegislative provision;

 

(j)            where the performance of an obligation underthis Agreement falls on a day otherthan a Business Day, this Agreement shall be construed as requiring that obligation to be performed on the nextBusiness Day;

 

(k)           unless otherwise expressly stated herein, anyreference to dollars or money shallmean the lawful currency of the United States;

 

(l)            the word “writing” includes typewriting,printing, lithography, photography and other modes of visibly representing wordsand the word “written” has a correspondingmeaning.

 

2.             RIGHTS GRANTED

 

2.1           Subject to the terms and conditions hereof,MERIAL hereby appoints IndependentSales Agent to sell, market and provide services related to theProducts to the Veterinary Trade in the Territory during the Term.  Independent Sales Agent hereby accepts MERIAL’sappointment and agrees to use its bestefforts to promote the sale of the Products to the Veterinary Trade in theTerritory.  Independent Sales Agentfurther agrees to perform such services and other independent sales agent functions inthe Territory as MERIAL may from timeto time reasonably request.  Furthermore:

 

(a)           Independent Sales Agent is authorized toobtain orders on behalf of MERIAL for theProducts from established AMAs in the Territory and from new accountswithin the Veterinary Trade within the Territory, after MERIAL has approved such account(s) asan AMA(s).  MERIAL shall pay commissions on the Net Sales oforders for Products from new and established AMAs within the Territoryaccording to the schedule and terms outlined in Schedule B, attachedhereto and incorporated herein by this reference.

 

(b)           Independent Sales Agent is authorized toobtain orders on behalf of MERIAL forthe Products from established NHOs within the Territory.  MERIAL shall pay commissions on theNet Sales of orders for Products from NHOs within the Territory accordingto the schedule and terms outlined in Schedule B.

 

2.2           Subject to the terms and conditions hereof,MERIAL hereby appoints IndependentSales Agent to sell, market and provide services related to the OtherProducts to the Veterinary Trade in the Territory during the Term.  IndependentSales Agent hereby accepts MERIAL’s appointment.  Furthermore:

 

(a)           Independent Sales Agent is authorized toobtain orders for the Other Products from established AMAs in theTerritory and from new accounts within the Veterinary Trade within the Territory,after MERIAL has approved such account(s) asan AMA(s).  MERIAL shall pay commissions on the Net Sales of ordersfor Other Products from new and established AMAs within the Territory,which are transmitted to MERIAL viaEDI, according to the schedule and terms outlined in Schedule B.  No feewill be paid to Independent Sales Agent by MERIAL for orders within theTerritory which are not transmitted to MERIAL via EDI, as required hereunder.

 

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(b)           Independent Sales Agent is authorized toobtain orders for the Other Products from NHOs in the Territory.  MERIAL shall pay commissions on the Net Sales of orders for Other Productsfrom NHOs within the Territory, which are transmitted toMERIAL via EDI, according to the schedule and terms outlined in Schedule B.

 

2.3           It is expressly understood and agreed that theIndependent Sales Agent is anindependent contractor and Independent Sales Agent shall have no authority, and shall not represent thatit has any authority, to bind MERIAL to anyobligation, to act for or on behalf of MERIAL, to extend any warranty or make any representation on behalf of MERIAL,or otherwise to assume, create or enlarge any obligation orresponsibility on behalf of MERIAL or inMERIAL’s name.  This Agreement does notconstitute appointment of IndependentSales Agent as a distributor or franchisee or authorize the same toact as an agent for MERIAL for any purposes other than those that are expressly provided for herein.

 

2.4           Independent Sales Agent expressly acknowledgesand agrees that during the Term, MERIAL may, upon fourteen (14) dayswritten notice, amend Schedule A, asMERIAL in its sole discretion determines necessary, to (i) include additional products which MERIAL may hereafterdevelop, manufacture, or market, or (ii) deleteProducts, and such addition or deletion of products shall not be a breachof this Agreement or be considered termination of this Agreement.

 

2.5           Independent Sales Agent expressly acknowledgesand agrees that during the Term, MERIAL may, upon fourteen (14) dayswritten notice, amend Schedule D, asMERIAL in its sole discretion determines necessary, to (i) include additional products which MERIAL may hereafter develop,manufacture, or market, or (ii) deleteOther Products, and such addition or deletion of products shall notbe a breach of this Agreement or be considered termination of this Agreement.

 

2.6           Independent Sales Agent expressly acknowledgesand agrees that nothing contained herein authorizes Independent SalesAgent to appoint or create otheror sub independent sales agents in the Territory without the priorwritten consent of MERIAL.  MERIALreserves the right to expand or reduce the Territory upon thirty (30) days’ writtennotice to Independent Sales Agent and to authorize other independent sales agents tosell MERIAL Products and/orOther Products, with or without commission or transaction fee, in theTerritory.  The expansion or reduction inthe geographic boundaries of the Territory shall not be a breach of thisAgreement or be considered a termination of this Agreement.

 

2.7           Independent Sales Agent shall refrain, inrelation to the sale and promotion of Products or Other Products, fromestablishing any branch or distribution depot outside the United States and fromactively seeking customers or ordersoutside the United States, without the prior written consent of MERIAL.

 

2.8           Independent Sales Agent shall sell the Product(s) and/orOther Product(s) only to those AMAs or Veterinary Tradeaccounts in which the veterinariandispenses the Product(s) and/or Other Product(s) to clients with whomtheveterinarian has an existing veterinarian-client-patient relationship and which accounts comply with other MERIALcriteria as communicated from time to time by MERIAL to Independent Sales Agent in writing.

 

2.9           If Independent Sales Agent becomes aware orMERIAL notifies Independent Sales Agentthat any AMA or Veterinary Trade account does not comply with any criteria

 

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setforth pursuant to Paragraph 2.9 (giving reasons if so requested), Independent Sales Agent shall promptlycease to sell to that account and shallnot resume sales until MERIAL is satisfied that MERIAL criteria are met.  MERIAL’sdecision as to whether an AMA or Veterinary Trade account complies with MERIAL criteria shall be final.

 

3.             TERM AND TERMINATION

 

3.1           This Agreement will be deemed to havecommenced on the Commencement Date and, subject to its terms andconditions, shall continue in full force and effect from the Commencement Date throughand until 31 December 2011.  This Agreement may be renewed forsuccessive terms by mutual agreement expressed in writing and signed by MERIALand Independent Sales Agent.

 

3.2           Either Party may terminate this agreementwithout cause and without penalty upon one hundred twenty (120) days’ priorwritten notice.  In the event that either Party terminates this Agreementwithout cause upon less than onehundred twenty (120) days’ prior written notice, such Party will be obligated topay a sum equal to the total commissions earned by Independent Sales Agentduring the preceding six (6) month period (the “Termination Fee”); provided,however, that MERIAL’s obligation to pay the Termination Fee shall be subject toits rights under paragraph 7.1(c).  Exceptas otherwise provided in this Agreement, this Agreement shallterminate thirty (30) days after (i) eitherParty gives the other Party written notice of the other Party’s default of any of its material obligations under thisAgreement, and (ii) the other Party fails to cure such defaultwithin such thirty (30) day period.

 

3.3           MERIAL may terminate this Agreementimmediately by giving written notice ofsuch termination to Independent Sales Agent, and such termination shall takeeffect upon receipt of such notice, in the event of any of the following:

 

(a)           Independent Sales Agent informs MERIAL inwriting or its creditorsgenerally that Independent Sales Agent is insolvent or is otherwise unableto meet its obligations;

 

(b)           an application is made to a court for thewinding up of Independent Sales Agent’sbusiness;

 

(c)           an order is made or a petition is issued or aresolution is passed for the windingup of Independent Sales Agent’s business;

 

(d)           execution is levied against Independent SalesAgent by creditors, debenture holdersor trustees under a floating charge;

 

(e)           Independent Sales Agent enters into a schemeof arrangement or composition with itscreditors;

 

(f)            a receiver, manager or administrator isappointed to control the assets, orany part of the assets, of Independent Sales Agent, or a petitionfor an administration order or a petition for the appointment of a receiver is issued;

 

(g)           Independent Sales Agent seeks protection fromits creditors in a bankruptcy court ortakes advantage of any other law or procedure for theprotection of creditors;

 

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(h)           Independent Sales Agent makes any assignmentfor the benefit of creditors; or

 

(i)            there is a change in the beneficial interestin the shareholding of IndependentSales Agent, or all or substantially all of the assets of Independent Sales Agent are acquired by any other entity, or thereis a change in the management of Independent Sales Agent which hasthe effect of altering the effective control of Independent Sales Agent, without the prior consent inwriting of MERIAL, which consent shall not be unreasonably withheld.

 

3.4           MERIAL may terminate this Agreement at anytime before its expiration by giving thirty (30) days notice in writingto Independent Sales Agent in the event that any representation or warranty given ormade pursuant to this Agreement by Independent Sales Agentshall prove to have been incorrect or untrue in any respect.

 

3.5           Independent Sales Agent shall strictly complywith all applicable state, federaland other laws and regulations, including those relating to animal drugs,biologicals and pesticides.  IndependentSales Agent agrees that its failure to strictly complywith such laws and regulations shall resultin automatic termination of this Agreement without the need for any prior notice by MERIAL.  In addition, either Party may terminate this Agreement immediately bysending written notice to the other Partyif the other Party’s actions under this Agreement conflict in any way with its obligations regarding EthicalBusiness Practices, as set forth in paragraph 16.

 

3.6           Upon the effective date of expiration ortermination of this Agreement by either Party, all Products, OtherProducts, Product Literature and promotional items in the possession ofIndependent Sales Agent shall be (a) returned by Independent SalesAgent to MERIAL; (b) delivered to such agent as MERIAL may designate; or (c) disposed of according to MERIAL’sinstructions.  Transportationof such Products, Other Products, Promotional Literature andpromotional items shall be at MERIAL’s sole expense in the event thisAgreement is terminated by MERIAL without Independent Sales Agent’s default or breach under any provision ofthis Agreement.  Upon termination or expiration of this Agreement, IndependentSales Agent shall promptly remove fromits letterhead, advertising, literature and place of business and from all telephone and business directories andall commercial registries of any kind, allreference to MERIAL and the Products and/or Other Products.  Independent SalesAgent shall not thereafter use any confusingly similar corporate name, trade nameor trademarks, tending to give the impression that any relationshipcontinues to exist between MERIAL and Independent Sales Agent for theProducts and/or the Other Products.

 

3.7           Merial shall have no obligation to IndependentSales Agent arising from expiration or termination of this Agreement, norshall Independent Sales Agentbe entitled to compensation from Merial by reason of the expiration or termination of this Agreement.  Expiration or termination shall not extinguish obligations and liabilitiesaccrued prior to expiration or termination.  However,in the event of expiration or termination, Merial shall not be liable for any claims of lost future sales,profits, or commissions, consequential damages of any type or on account ofexpenditures, investments, leases or othercommitments relating to the business of goodwill of Independent Sales Agent.

 

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4.             REMEDIES

 

INDEPENDENTSALES AGENT EXPRESSLY ACKNOWLEGES AND AGREES THATMERIAL SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE (INCLUDING LOST COMMISSIONS, OR PROFITSOR OTHER CONSEQUENTIALOR INCIDENTAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISEDIRECTLY OR INDIRECTLY FROM THIS AGREEMENT.  To the extent liability cannot by law be waived in itsentirety, Independent Sales Agent expressly acknowledges and agrees that itshall not be entitled to any lost commissions, or profits or any otherconsequential or incidental damages orlosses, and that its sole remedy under this Agreement shall in no event exceedthe amount of the total commission payment generated hereunder whichmay be in dispute.

 

5.             ORDERS

 

5.1           All orders will be obtained at prices and uponterms established by MERIAL and will be submitted to MERIAL by IndependentSales Agent for acceptance.  MERIAL shall only accept an orderobtained by Independent Sales Agent whichcomplies with the terms and conditions hereof, and MERIAL will ship theProducts and the Other Products ordered directly to the AMA.  MERIAL will promptly provide Independent SalesAgent with notice of any orders which fail to comport with the terms andconditions of this Agreement and aretherefore not accepted.

 

5.2           MERIAL agrees to use reasonable efforts tofill orders obtained and submitted by the Independent Sales Agent for theProducts and/or Other Products as soon aspossible, subject to availability, the total requirements of MERIAL customers, and production facility capacity, but shallnot be liable in any way for any loss of trade or profit or commission or otherdamage or cost incurred by Independent Sales Agent in the event ofany rejection of any order or any suspension,cancellation or delay in acceptance or delivery of any order.  Independent SalesAgent shall utilize EDI as the primary means for transmitting orders from AMAs or Veterinary Tradeaccounts to MERIAL and shall adhere to the provisions outlined in the attachedEDI Policy for Independent Sales Agents (Schedule C, attached hereto andincorporated herein by this reference)for all orders placed with MERIAL via EDI.

 

6.             PERFORMANCEBY INDEPENDENT SALES AGENT

 

6.1           Independent Sales Agent expressly acknowledgesand agrees that its principalobligation is to fully develop the market and provide excellent customer service for Products and Other Productsin the Territory.  To this end, Independent Sales Agent agrees that itsresponsibilities shall include, but shall not be limited to, the following:

 

(a)           Independent Sales Agent shall be responsiblefor promoting sales growth of the Products and Other Products in theTerritory.  Independent Sales Agent specifically agrees to:

 

(i)            Use all reasonable efforts to have AMAs andVeterinary Trade accounts activelyendorse the Products and prominently merchandise, display and promote the fullline of Products to achieve maximum sales potential;

 

(ii)           Use best efforts to solicit orders forProducts and Other Products from AMAs and Veterinary Trade Accounts; For purposes of logistical efficiency and to ensure clinic inventories are sufficient to meet consumer demand on a routine basis,Independent Sales Agent will

 

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implementan action plan before February 15, 2007 (the“Action Plan”), designed to elevate total orders at or in excess of 20 cartons for FRONTLINE® and HEARTGARD®brand products.  The ActionPlan will include but not be limited to educationalprograms for order entry personnel, reminder systems to help maintain focus onthis initiative and incentive programs funded from the promotional allowance designed toprovide support for achievement of specific salesobjectives outlined in the Action Plan.

 

(iii)          Plan and execute periodic market developmentcampaigns with prior written approvalby MERIAL; vigorously support MERIALpromotional, educational, and advertising activities to increase sales of Products and Other Products;provide AMAs and the VeterinaryTrade with agreed allowances, samples if any, point-of-sale materials and MERIAL Product literature;maintain a trained sales force toexecute these activities and educate AMAs and Veterinary Trade accounts; providetraining for Independent Sales Agent’skey personnel, including inside and outside salesrepresentatives, in the proper procedure for placing AMA orders with MERIAL and administering MERIAL’sReturned Good Policy (which policyMERIAL reserves the right to change, modify oramend at any time without prior notice); and assist MERIAL in providing AMAs in IndependentSales Agent’s Territory full access toall MERIAL promotional allowances, marketing programs, point-of- purchase materials, and Product Literature;

 

(iv)          Work with MERIAL representatives to develop a businessplanto ensure that key veterinary customers in each MERIAL sales territory, as determined by MERIAL, implement merchandisinginitiatives to place such items as product displays, point of purchase materials, consumer coupons,etc., in such designated practices.

 

(v)           Independent Sales Agent shall provide adequatesales representation to contact and solicitorders from all AMAs and Veterinary Trade accounts in the Territory.  IndependentSales Agent shall submit orders withintwo hours of receipt from the AMA or Veterinary Trade account throughEDI or such other communicationsmethod designated and scheduled by MERIAL.

 

(b)           Independent Sales Agent shall submit to MERIAL,via EDI in accordancewith Schedule C hereof, a current roster of its sales agent representatives at least once each quarter.

 

(c)           Independent Sales Agent shall educate andtrain its sales personnel with material and courses suppliedby MERIAL and/or ensure their attendance at MERIAL training sessionsto ensure a satisfactory level of knowledgeabout Products and Other Products and cooperate with MERIAL to offer suitable training andeducation to the AMAs and Veterinary Trade accounts.  MERIAL shall cover all reasonable expenses for those sales personnel ofIndependent Sales Agent who attend suchtraining, including reasonable pre-approved travel expenses.

 

(d)           Independent Sales Agent will distinguishMERIAL Products and Other Products from other products it carries by:

 

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conveyingto Independent Sales Agent’s sales and marketing organizations the strategic importance ofMERIAL and its Products and Other Products; recommending the Productsand Other Products as the preferred products in their respectivemarket categories to AMAs and the Veterinary Trade; offering sales representativesfinancial incentives to sell Products and Other Products, asdesignated in Schedule B hereto, thatare comparable or greater than the incentivesoffered by Independent Sales Agent to sell any other supplier’s products that compete directly withProducts or Other Products;

permittingno negative selling against any Products or Other Products; makingno affirmative efforts to shift sales of Products or Other Products tocompeting products;

regularlyfeaturing Products and Other Products in daily detailing andsales campaigns and mailings;

utilizingMERIAL sales and technical support to increase and maintain sales support;

providingMERIAL up to quarterly access to its sales personnel for Product, Other Product and sales training;

providing /**/ spaceallocation in publications for Product and Other

Productadvertisements; and

providingto MERIAL preferred participation in regional and national sales meetings.

 

(e)           Provide MERIAL with “preferred” vendor status,including, but not limited to, access to Independent Sales Agent’s salesmanagement, Sales AgentRepresentatives, inside sales management and inside sales representatives on a preferred basis.  For the purposes of field sales andfield sales management performance, measurement and compensation of sales of MERIAL parasiticide productshereunder will count as “core” or “buy/sell”business.

 

(f)            Ensure compliance with the Robinson-Patman Actand all other applicable laws.  Independent Sales Agent agrees that it shallnot rebate or otherwise provide any part of the commission payment, either directlyor indirectly, to any AMA or Veterinary Trade account.

 

(g)           Independent Sales Agent agrees for itself andall others acting on itsbehalf, either directly or indirectly:(i) Not to publish, repeat, utter orreport any statement or comment, nor to take, encourage, induce or voluntarily participate in any action,that would negatively commenton, disparage, defame or call into question the business operations, policies,conduct, products or services of MERIAL or itsAffiliates or employees; (ii) Not to act in any way with respect to MERIAL’sbusiness operations, policies, conduct, products or services that would damage MERIAL’s reputation, business relationshipsor present or future business, or thereputation of MERIAL’s past or presentexecutives, agents, employees or affiliates; and (iii) Not to comment about MERIAL to any person or entity,including, but not limited to, MERIAL’s customers or vendors concerning MERIAL’sbusinessoperations, policies, conduct, products or services.  The foregoing shall not apply to theextent disclosures are necessary in the enforcement of the Agreement, as required by law or are truthful or factual statements that MWI is required to make ordisclose to its shareholders or as a public company. In the event that MWI breaches this obligation and does not cure such breach within fourteen (14)days of receipt of notice thereof from MERIAL, MERIAL shall have theright to immediately terminate the Agreement without further liability.

 

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(h)           Immediately notify MERIAL upon being madeaware of any adverse reaction, injury, damage,claim or lawsuit involving a Product orOther Product, whether or not directly attributable to the Product or OtherProduct.  Independent Sales Agent, at therequest and expense of MERIAL, shall doall such things as may be reasonably required to assist MERIAL in resolving such matters.

 

(i)            Indemnify and hold MERIAL, its parent companies,officers, directors, employees and representativesharmless from and against all expenses,claims, damages, losses, liabilities or money judgments,including legal fees, incurred by MERIAL arising out of any act or omissionby Independent Sales Agent including from the negligence or fault of Independent Sales Agent, fromIndependent Sales Agent’sadvertising or promotion of the Products or Other Products, or Independent Sales Agent’s failure tocomply with the terms of this Agreement, including promotion of theProducts or Other Products outside thescope of MERIAL’s safety and efficacy claims for the Products or Other Products, as the case may be,except to the extent that said claimarises out of any act or omission of MERIAL.

 

(j)            Independent Sales Agent will have no authorityto bind MERIAL to any act or representation unless specifically soauthorized in writing.  IndependentSales Agent shall indemnify and hold MERIAL harmless from and againstall claims arising out of any breach of this subsection.

 

(k)           Independent Sales Agent records, which shallinclude but not be limited to accounting records, customer records,customer purchase orders and invoices, written policies and procedures,reports, correspondence,memoranda or any other documentation relating to the marketing andsale of the Products or Other Products or any other matter relating to thisAgreement, shall be open to inspection and subject to audit and/orreproduction, during normal business working hours, by MERIAL or its authorized representative tothe extent necessary to adequately evaluate Sales Agent Representative commissions or customer informationsubmitted by Independent Sales Agentor desirable for any other valid business purpose.  For the purpose of such audits, inspections,examinations and evaluations,MERIAL or its authorized representative shall have access to saidrecords beginning on the Commencement Dateand continuing for five (5) years following the termination orexpiration of this Agreement and any renewal thereof.  For all audits, MERIAL may elect toengage an audit firm or perform the audit using appropriate MERIAL personnel.  If the audit shows Independent Sales Agentreceived more than is due hereunder,Independent Sales Agent shall pay to MERIAL both the cost of the audit as well as thediscrepancy in funds.

 

(l)            Provide MERIAL with timely, complete andaccurate data on market conditions in Independent Sales Agent’s Territory.

 

7.             PERFORMANCEBY MERIAL

 

7.1           MERIAL agrees that it shall:

 

(a)           Use reasonable efforts to fill orderssubmitted by Independent Sales Agentsas soon as possible, giving consideration to the quantity of the Products available

 

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atthe time, the total requirements of MERIAL customers and the capacity of production facilities.

 

(b)           Be responsible for all collection actions and expenses.  Independent Sales Agentwill assist in obtaining payment from AMAs and Veterinary Trade accounts with overdueinvoices when requested to do so by MERIAL.

 

(c)           Pay Independent Sales Agent, as full and totalcompensation for all services renderedunder this Agreement, certain commissions for the sales of Products and Other Products as outlined in Schedule B.  At all times, commissions will be calculated on NetSales.  An earnings statementreporting invoiced sales, Net Sales, and earnings (including commissions) will be provided monthly toIndependent Sales Agent.  IndependentSales Agent also expressly acknowledges and agrees that MERIAL has the right to apply commissionsearned by Independent SalesAgent against any amounts past due owed by Independent Sales Agent to MERIAL hereunder or under any distributor agreementwith MERIAL.

 

(d)           Make available for the purposes of securing sales fromAMAs and Veterinary Trade accounts all national and/or regional dealsand sales promotion programs designed for AMAs and applicable to Products.

 

(e)           Work with Independent Sales Agent to conductbusiness planning to increase sales opportunities and results and to maximizethe use of available resources for MERIAL Products.

 

(f)            Increase awareness and usageof Products in Independent Sales Agent’s Territory by means that MERIAL determinesto be reasonable, which may include:

 

i.           Conducting national and regional consumermarketing and promotional campaigns.

 

ii.          Conducting sales promotions, disease and productawareness campaigns, and client educationprograms for AMAs and Veterinary Trade accounts.

 

iii.         Providing marketing assistance programs to developprofessionalpromotional and educational programs, workshops, and seminars as mutually agreed between MERIALand Independent Sales Agent.

 

iv.        Providing product and skills training toIndependent Sales Agent which may include the following:

 

salestraining for Independent Sales Agent’s field and telemarketing sales organizations;

sales management training forIndependent Sales Agent’s managers;

technicaltraining in the Products and the diseases whichare controlled or prevented by them;

conductingmeetings to inform Independent Sales Agent’s salesforce about sales promotions and the use of campaign detail materials,

sales tools, andpoint-of-purchase merchandising aids;

participatingin account presentations to AMAs; and

 

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handling customer complaints andinquiries and providing consultationsto promote and maintain customer satisfaction.

 

(g)           Indemnify and hold Independent Sales Agentharmless from and against any and all claims, damages, losses, andliabilities directly caused by the use of Products or Other Products, exceptto the extent that said claim arisesout of any statement, act, or omission by Independent Sales Agent.

 

7.2           MERIAL shall maintain a MERIAL territory-basedSales Agent Representativetrip program as described in Schedule B. The value, duration, and location ofany such trip shall be left to the sole discretion of MERIAL.

 

8.             REPRESENTATIONSAND WARRANTIES OF INDEPENDENT SALES AGENT

 

8.1           Independent Sales Agent hereby represents andwarrants to MERIAL as follows:

 

(a)         Independent Sales Agent is an entity dulyorganized and validly existing under the laws of the State of Idaho andhas full power and authority to enter into and perform its obligationsunder this Agreement.

 

(b)         Independent Sales Agent shall maintain abusiness establishment, facilitiesand resources, and sales staff adequate to handle all sales, service and promotion obligations required of Independent Sales Agent under this Agreement.

 

9.             RESTRICTION

 

9.1           Independent Sales Agent expressly acknowledgesand agrees that MERIAL’s exclusiveproperty (the “Property”) includes:

 

(a)           all trademarks, including those listed inSchedule A, Schedule D attachedhereto, and all trade dress and tradenames now or hereinafter associated with Products and OtherProducts, registered or unregistered;

 

(b)           formulations of all Products and OtherProducts; and

 

(c)           all MERIAL logos, labels, package designs,literature, promotional pieces, data sheets, brochures and otherprinted matter now or hereafterassociated with Products and Other Products.

 

9.2           Independent Sales Agent is authorized on a non-exclusive basis to use theProperty solely in association with the marketing, promotion and sale of thecorresponding Products and/or Other Products, solely in the Territory, and solely during the Term, so long asIndependent Sales Agent uses the Property inaccordance with MERIAL’s standards, specifications, and instructions.  IndependentSales Agent shall afford MERIAL a reasonable opportunity toinspect and monitor Independent Sales Agent’s use of the Property.  All use of the Property shall clearly identify MERIAL as the owner of suchProperty and shall meet all requirements of the United States Patent andTrademark Office and any other applicable agency.  This authorization of use does not constitute a grant to Independent SalesAgent of any property right or interestin any Property.  Independent Sales Agentwill have no right to delegate or assign rights granted to it under this,or any other, provision hereof.  Independent Sales Agent shall use the Propertyonly to the extent necessary to enable Independent Sales Agent to carry outits obligations under this Agreement.

 

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Independent Sales Agent specifically agrees that after the Term, it shall not formulate, produce, distribute,wholesale, sell or use within the Territoryproducts, formulas, or trademarks embodying or identified with the Property.  Independent Sales Agent representsthat it has not sought or obtained and agrees not to seek or obtain, in theTerritory or elsewhere, any trademark orcopyright registration or any patent embodying the Property and it further agrees to discontinue all use of theProperty after termination or expiration ofthis Agreement.

 

9.3           Independent Sales Agent agrees that it willnot register or use any trademark which, in the opinion of MERIAL, isconfusingly similar to the Trademarks or to any other trademarks registered or used byMERIAL.

 

9.4           Independent Sales Agent agrees to use its best efforts to prevent other personsfrom seeking or obtaining any patents, trademarks or copyrights embodying theProperty.  Independent Sales Agent agreesto notify MERIAL immediately of any potentialinfringement or imitation of the Property which comes to the attention ofIndependent Sales Agent during the Term. Independent SalesAgent will render all reasonable assistance sought by MERIAL in connection with any action taken byMERIAL to protect or enforce its Trademarks.  All decisions about such action, includingthe determination whether to initiate action or to settle, will beunder the sole control of MERIAL.  MERIALwill not be liable for any attorney’sfees or expenses unless Independent Sales Agent incurs such fees and expenses at the written request of MERIAL and only to theextent that MERIAL determines such feesto be reasonable.

 

9.5           Independent Sales Agent may not use theProperty as a part of its trade name, unless such use is expresslyauthorized by MERIAL in writing, and shallnever use it in a manner to indicate that Independent Sales Agent is anything other than an independent contractor, asdistinguished from an agent or employee of MERIAL, and shall never usesuch Property in a manner detrimentalto the image or reputation of MERIAL or otherwise harmful to MERIAL interests.

 

9.6           Independent Sales Agent agrees that all usesof Trademarks and any enhancement inthe value of Property, in the Territory or elsewhere, which result from efforts of Independent Sales Agent, shall inureto MERIAL’s sole benefit.

 

10.           ASSIGNMENT

 

10.1         IndependentSales Agent shall not, without the written consent of MERIAL, directly or indirectly in any manner assign,transfer, encumber or subcontract its rights and obligations under thisAgreement to any third party.

 

10.2         MERIALmay assign, transfer or subcontract its rights and obligations hereunder without the approval ofIndependent Sales Agent.

 

11.           STATUS OF INDEPENDENT SALES AGENT/TAXES

 

IndependentSales Agent is not a joint or co-venturer, partner, employee or agent of MERIAL and does not have any power orauthority, directly or indirectly or through its directors, employees or agents,to bind MERIAL to any agreement with any person.  Independent Sales Agent agrees that it shall comply with all relevant laws relatingto applicable payroll taxes and any otherrequired taxes.  Independent Sales Agentshall indemnify MERIAL against any andall claims arising from Independent

 

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SalesAgent’s failure to pay any of said expenses, salaries or taxes, or to comply with any laws relating to employment.

 

12.           GOVERNINGLAW

 

This Agreement shall be governed by, interpreted, construed, and therespective rights of the Parties hereto determined and all claims and disputes,whether in tort, contract or otherwise, resolved according to the laws of the State of Georgia notwithstanding anyconflict of law principles to the contrary. In the event of any controversy or claim arising out of or relatingto this Agreement, performance hereunder, termination hereof, or relationshipcreated hereby, each Party submits to the exclusive jurisdiction of the courts of Georgia for the purposes of any suit,action or other proceeding arising out ofthis Agreement or transactions contemplated hereby.  Each Party furtheragrees that service of any process, summons, notice or document by U.S.  registeredmail to such Party’s respective address set forth in Article 13.2 shallbe effective service of process for any action, suit or proceeding in Georgiawith respect to matters relating to this Agreement, and hereby waives any objection to the laying of venue in thecourts of Georgia and that any suchaction was brought in an inconvenient forum. In the event of any dispute arising from this Agreement or any acts of anyParty, the prevailing Party in such disputeshall be entitled to recover reasonable costs and attorneys’ fees.  Notwithstandingthe foregoing, MERIAL shall have the right to seek interim injunctive relief from any court ofcompetent jurisdiction wherever situated in the event of a threatened disclosure inviolation of this Agreement to prevent suchdisclosure pending resolution of the merits of the dispute.  This paragraphshall survive the termination of this Agreement.

 

13.           NOTICES

 

13.1         Anotice, approval, direction, consent, offer, demand or other communication in connection with this Agreement shall bein writing and shall be signed by an authorized officer of the relevantParty and given to the recipient Party either by (a) hand delivery; (b) registeredor certified mail, return receipt requested; or (c) express mailcapable of being tracked.

 

13.2         Deliveriesmade, and mail sent, pursuant to paragraph 13.1 shall be to theaddress of the recipient Party set out below, and in each case, shall be markedfor the attention of the person specified below in relation to the recipient Party:

 
| To MERIAL:      |   | Executive Director of  Sales, Pets U.S. |
|-----------------|--------|-----------------------------------------|
| Address:        |   | Merial Limited                          |
|            |   | 3239 Satellite Boulevard                |
|            |   | Duluth, Georgia 30096-4640              |
|            |   |                                    |
| Fax:            |   | (678) 638-8956                          |
|            |   |                                    |
| With a copy to: |   | General Counsel, North America          |
|            |   | Merial Limited                          |
|            |   | 3239 Satellite Boulevard                |
|            |   | Duluth, Georgia 30096-4640              |
|            |   |                                    |
| Fax:            |   | (678) 638-3350                          |

 

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| To Independent Sales Agent: |   | Mr.  James Cleary       |
|-----------------------------|--------|------------------------------|
| Address:                    |   | 651 S.  Stratford Drive |
|                        |   | Meridian, ID 83642           |
| Phone Number:               |   | 1-800-762-4800               |

 

13.3         A Partymay from time to time change any of the details specified in paragraph 13.2 by giving not less than ten (10) daysprior written notice to the other Party.

 

14.           MISCELLANEOUS

 

14.1         This Agreement,together with any referenced attachments and amendments, embodies the entire agreementof the Parties in relation to the subject matter of sales agency forProducts listed in Schedule A and Other Products listed in Schedule D, and supersedesall previous agreements,arrangements and understandings, verbal or otherwise, in relation thereto.  No variation, modification or waiver of anyprovision of this Agreement nor consent to any departure by any Party therefrom,shall be in any event of any force or effect unless the same shall be confirmedin writing signed by the Parties, and then such variation, modification, waiveror consent shall be effective only to the extent to which it may be madeor given.  The Agreement may beamended only in writing signed by both Parties.

 

14.2         Nowaiver of any of the provisions of this Agreement, including any term,condition or provision set forth in any schedule attached hereto, or of any breach thereof will establish a precedent forany other instance or with respect to any other provision.  No failure, delay, relaxation or indulgenceof any Party in exercising any power or right conferredupon such Party in the terms of this Agreement shall operate as a waiver ofsuch power or right, nor shall any singleexercise of any such power or right preclude any other or future exercise thereof, or the exercise of anyother power or right under this Agreement.

 

14.3         If anyprovisions of this Agreement shall be deemed invalid and not enforceablein accordance with their terms, all other provisions which are self-sustaining and capable of separate enforcementwithout regard to the invalid provisions, shall continue to bevalid and enforceable in accordance withtheir terms.

 

14.4         Allinformation and materials relating to AMA customer databases, AMA sales volume and Product and Other Product formulationusage information and general AMA account information, as itpertains to transactions between MERIALand AMAs and Veterinary Trade Accounts and the sale of Products andOther Products, is the sole and confidential property of MERIAL and may notever be disclosed by Independent Sales Agent to any third party without theprior written consent of MERIAL.  NeitherParty shall at any time during the Termor for a period of five (5) years following the expiration or terminationof thisAgreement disclose to any third party Confidential Information, as defined in paragraph 14.6, it has gained through itsassociation with the other.

 

14.5         Independent Sales Agent acknowledges that all sales data, market analysis, and customer information providedby Independent Sales Agent to MERIAL underthis Agreement shall become the sole property of MERIAL and is deemed confidential and may not be disclosed byIndependent Sales Agent to any thirdparty without the prior written consent of MERIAL.  Independent Sales Agentfurther acknowledges that MERIAL may use any such information for sales andpromotional purposes, including, but not limited to, establishing a databasefor direct marketing purposes, and

 

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IndependentSales Agent hereby certifies that it has the right to convey such information to MERIAL.

 

14.6         Both Parties shall use Confidential Information for the sole purpose of fulfillingthe obligations of this Agreement.  “ConfidentialInformation,” as used in this Agreement, shall mean all information,documentation, and devices disclosed ormade available by one Party to the other, including but not limited to, theexistence of discussions between the Parties, business plans, present andfuture products or formulas, trademarks, policies, procedures, processes,manufacturing or distribution plans, whether written or oral.  No rights or licenses, expressed or implied, arehereby granted to either Party under anypatents, copyrights, trademarks, service marks or trade secrets belonging to theother as a result of or related to this Agreement.  Both Parties agree to return any and all Confidential Information, andall other records and copies thereof, to the other upon the termination or expirationof this Agreement.  The obligations of this paragraph shall not apply to suchinformation which:

 

(a)         at the time of the initial disclosure wasdemonstrably already in the possession of the receiving Party withoutany applicable obligation ofconfidentiality; or

 

(b)         at the time of disclosure is, or at some timethereafter becomes, through no fault of the receiving Party, publicknowledge, or

 

(c)         is required by law to be disclosed to a publicbody or regulatory agency, in which case the Party being requiredto make the disclosure shall promptlygive notice to the other Party so that the other Party shall have time to oppose such disclosure.

 

Theterms of this Agreement shall remain strictly confidential.  The Parties to this Agreement shall not disclose any ofthe terms of this Agreement, whethergenerally or specifically, to any third party, except as may be required by a Party’s accountants or insurers, or by order ofa court of competent jurisdiction.  To the extent that either Party is obligatedto file this Agreement with theSecurities and Exchange Commission (“SEC”), such Party shall seek confidential treatment of the tradesecret, commercial and/or financial information contained herein; the filing Party shallseek the input and approval of the non-filing Party in determiningwhat portions of this Agreement must be identified for such confidential treatment.

 

14.7         The provisions of paragraphs 3.2, 3.6, 3.7, 4, 6.1(i), 6.1(k), 7.1(g),9.1-9.6, 11, 12, 14.4, 14.5 and 14.6 shall survive the termination orexpiration of this Agreement.

 

15.           FORCE MAJEURE

 

Salesmay be suspended or canceled by MERIAL in the event of Act of God, terrorism, war, riot, fire, explosion,accident, flood, sabotage, inability to obtainfuel, power, raw materials, labor, containers or transportation facilities, governmental laws,regulations, orders or action, breakage or failure of machinery or apparatus, nationaldefense requirements or any other event beyond the reasonable control of MERIAL orin the event of labor trouble, strike,lockout or injunction (whether or not such labor event is within the reasonable control of MERIAL), whichevent prevents the manufacture, shipment or acceptance of Products.  Deliveries suspended under this paragraph 15 shall be canceled withoutliability, but this Agreement shall otherwise remain unaffected.

 

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16.           ETHICAL BUSINESS PRACTICES

 

16.1         Practices

 

MERIALand Independent Sales Agent shall adhere to business practicesin connection with this Agreement which are in accordance with the letter andspirit of applicable laws and ethical principles.  Independent Sales Agent and MERIAL represent andwarrant to the other that all transactions inconnection with this Agreement will be accurately reflected in their respective books and records, and that no funds orother assets will be paid directly orindirectly to government officials (or persons acting on their behalf) for thepurpose of influencing government decisions or actions with respect to Productsor Other Products.  Violation of thispolicy will result in the immediatetermination of this Agreement.

 

16.2         Employees

 

Noemployee of MERIAL will have authority to give any direction, either written or oral, relating to the making of anycommitment by Independent Sales Agent or its agents to any third party inviolation of the terms of this Section 16.

 

17.           ANNOUNCEMENTS

 

Exceptas required by law, no announcements will be made in connection with the subject matter of this Agreement, by oron behalf of Independent Sales Agentwithout the prior approval of MERIAL.  Suchapproval will not be unreasonably with held or delayed.

 

18.           COUNTERPARTS

 

18.1         ThisAgreement may be executed in any number of counterparts, and by theParties in separate counterparts, but shall not be effective until each Party has executed at least one counterpart.

 

18.2         Each counterpartshall constitute an original of this Agreement, but all the counterparts shall together constitute the same instrument.

 

**[Signatures on following page(s)]**

 

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IN WITNESS WHEREOF theParties hereto have duly executed this Agreement.

 

 
| MERIAL LIMITED |                     | MWI VETERINARY SUPPLY CO. |
|----------------|--------------------------|---------------------------|
|           |                     |                      |
|           |                     |                      |   |   |
| By:            | /s/ Thomas Zerzan        |                      | By: | /s/ Jim  Cleary |
|           |                     |                      |   |   |
| Name:          | Thomas Zerzan       |                      | Name: | Jim Cleary |
|           |                     |                      |   |   |
| Title:         | Head of Merial U.S. |                      | Title: | President and CEO |
|           |                     |                      |   |   |
| Date:          | February 25,  2010  |                      | Date: | January 18,  2010 |

 

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**Schedule A**

**MERIAL /**/Independent Sales Agent Agreement**

**2010 Companion AnimalProducts**

 

**Flea and Tick Control Products**

FRONTLINE® Plus for Dogs andPuppies 6 and 3 doses/pack (up to 22 lbs,23-44 lbs, 45-88 lbs, 89-132 lbs) 

FRONTLINEPlus for Cats and Kittens 6 and 3doses/pack (All Weights)

FRONTLINETOP SPOT® forDogs and Puppies 6 and 3 doses/pack (up to 22 lbs,23-44 lbs, 45-88 lbs, 89-132 lbs) 

FRONTLINETOP SPOT for Cats and Kittens 6 and 3doses/pack (All Weights)

FRONTLINESpray 250 mL and 500 mL 6 bottles/carton (All Weights)

 

**Heartworm Preventives**

*HEARTGARD® (ivermectin)and HEARTGARD Plus (ivermectin/pyrantel)*

HEARTGARDPlus Chewables for Dogs and Puppies 12 and 6 doses/pack(68 mcg, 136 mcg, 272 mcg) 

HEARTGARDChewables for Dogs and Puppies 6 doses/pack(68 mcg, 136 mcg, 272 mcg)

HEARTGARDfor Cats and Kittens 6 doses/pack (55 mcg, 165 mcg)

 

**Feline Vaccines**

PUREVAX® Feline Rabies (rRabies)(25 x 1 dose/tray) 

PUREVAXFeline Respiratory 2 (RC) (25 x 1 dose/tray)

PUREVAXFeline Respiratory 3 (RCC) (25 x 1dose/tray) 

PUREVAXFeline 3 (RCP) (25 x 1 dose/tray)

PUREVAXFeline 4 (RCCP) (25 x 1 dose/tray)

PUREVAXFeline 3/Rabies (RCP + rRabies) (25 x1 dose/tray) 

PUREVAXFeline 4/Rabies (RCCP + rRabies) (25 x1 dose/tray) 

PUREVAXRecombinant Leucemia (rFeLV) (25 x 1 dose/tray)

 

**Ferret Vaccines**

PUREVAXFerret (rDistemper) (10 x 1 dose/tray)

 

**Canine****Vaccines**

RECOMBITEK® C3 (rDAP) (25 x 1 dose/tray) 

RECOMBITEKC4 (rDAPP) (25 x 1 dose/tray) 

RECOMBITEKC4/CV (rDAPPC) (25 x 1 dose/tray) 

RECOMBITEKC6 (rDAPP-L) (25 x 1 dose/tray) 

RECOMBITEKC6/CV (rDAPPC-L) (25 x 1 dose/tray)

RECOMBITEKLyme (rLyme) (20 x 1 dose/tray, 50 x 1dose/tray) 

RECOMBITEKCanine Parvo (50 x 1 dose/tray)

RECOMBITEKCanine Corona-MLV (25 x 1 dose/tray) 

RECOMBITEKCanine Parvo + Corona-MLV (25 x 1 dose/tray) 

RECOMBITEK KC2 (Bb + Pi) (20 x 1 dose/tray)

 

**Rabies****Vaccines**

IMRAB® 3 (5 x 10 doses/box) 

IMRAB3 TF(50 x 1 doses/tray) 

IMRAB1 (5 x 10 doses/box) 

IMRAB1 TF (50 x 1 doses/tray)

 

**PAIN MANAGEMENT**

*PREVICOX*® *(firocoxib)*

PREVICOX(S) (57mg 1 x 60ct bottle) 3bottles 

PREVICOX(L) (227mg 1 x 60ct bottle) 3 bottles 

PREVICOX(S) (57mg 6 x 30ct blister) 1tray 

PREVICOX(L) (227mg 6 x 30ct blister) 1 tray 

PREVICOX(S) (57mg 10 x 10ct blister) 1tray 

PREVICOX(L) (227mg 10 x 10ct blister) 1 tray 

PREVICOX(S) 57mg 10 x 3ct blister) 3 kits

PREVICOX(L) 227mg 10 x 3ct blister) 3 kits

 

**DENTAL:**

ORAVET® Professional Kit

 

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ORAVETBarrier Sealant Cartridges (30 cartridges/carton)

ORAVETPlaque Prevention Gel Home Care Kits (10 8-week Home Care Kits)

 

Allmarks are the property of Merial.

 

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**Schedule B**

 

**MWI Veterinary Supply Co. IndependentSales Agent Earnings**

 

**Co****mm****issionRat****e****s - N****e****tSal****e****s of P****r****oductsto****AMAs**

 

**Independent Sales Agent MonthlyCommission Rate**

 

/**/

 

**I.****              ****Co****mm****issionsEa****r****n****e****dfo****r**** Sal****e****sof P****r****oducts to****AMAs**

 

IndependentSales Agent earns commissions on the Net Sales of Products to AMAs in the Territory when the order is placedwith MERIAL by the Independent Sales Agent orby an AMA which indicates a Named Sales Agent.

 

Nocommissions are paid for products not listed on Schedule A or for sales outside of Independent Sales Agent’s Territory.

 

ForNamed Sales Agent Sales, Independent Sales Agent Monthly Commission will be paid to Independent Sales Agent within thirty(30) days of the last business day ofeach month in which MERIAL receives a qualifying order.

 

IndependentSales Agent agrees to commit /**/ of commissioned sales (“Promotional Allowance Funds”) to fund certain growth initiatives,e.g., advertising initiatives, executive training, salespersonnel incentives, and the like.  Proposed uses for such funds shall be submitted to MERIAL in writing utilizingthe appropriate Promotional Allowance Funds request forms.  Any such proposals shall be approved in advance by MERIAL, in accordance with itssole discretion.  Earned Promotion Allowance funds shall not rollover;Promotional Allowance Funds accrued during 2010 must be used by Independent SalesAgent, for approved activities, by no later than March 31, 2011, unlessotherwise approved in writing by MERIAL.  Promotional Allowance Funds accrued in2011 must be used by Independent SalesAgent by no later than December 31, 2011 unless otherwise approved by MERIAL.  Suchfunds shall be remitted by MERIAL to reimburse Independent Sales Agent for approved activities within thirty (30)days after MERIAL’s receipt of a detailed invoice of the expenses incurred by Independent Sales Agent in connectionwith such activities.

 

ASales Agent Representative is an individual who, working as an agent oremployee of the Independent SalesAgent, solicited and placed the qualifying order.  TheIndependent Sales Agent will provide MERIAL a list of its Sales Agent Representatives with address, telephone number, and SARcode (number) within fourteen (14) days ofthe Commencement Date and within fourteen (14) days of any change in theIndependent Sales Agent’s sales force.  IndependentSales Agent shall pay its Sales AgentRepresentatives a minimum of /**/ of commissioned sales for their sales of the Products. Independent Sales Agent shall also utilize a minimum of /**/ of commissionedsales for compensation of Inside Sales Representatives; should an order be creditedby MERIAL to Independent Sales Agent, then such /**/ will beaccrued in the Promotional Allowance Funds.  Any adjustment to the payment ofcommissions to Sales Agent Representatives orInside Sales Representatives

 

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mustreceive the prior approval of Merial.  TheIndependent Sales Agent must not makeany deductions from amounts due Sales Agent Representatives or Inside Sales Representatives.

 

**II.****             ****Co****mm****issionspaid fo****r**** Sal****e****sof****O****th****er**** P****r****oducts**

 

IndependentSales Agent earns full commission on the Net Sales of Other Products toAMAs in the Territory when the order is placed with MERIAL by Independent SalesAgentvia EDI.

 

Nocommissions are paid for products not listed on Schedule D or for sales outside ofIndependent Sales Agent’s Territory.  Thecommissions will only be paid inconnection with those orders which are transmitted to MERIAL via EDI.  Suchcommission will be paid to Independent Sales Agent within thirty (30) days of the lastbusiness day of the month in which MERIAL receives a qualifying order.

 

**BO****NUS****OPPO****R****T****UNI****T****Y**

 

Inaddition to the total commission payment described above, Independent Sales Agentmay earn an additional /**/ bonus on the Net Sales of FRONTLINE® and HEARTGARD® products should such sales maintain a /**/ share of Independent Sales Agent’s commissioned dose sales of monthlyFlea/Tick and Heartworm products through 2010.  Combination products that treatFlea/Tick and Heartworm will count as two doses forpurposes of the bonus calculation.  Thedose share calculation is inclusive of salesagency and distribution sales to Merial commissioned AMAs.  The bonus shall be calculated quarterlyand paid within forty- five (45) days of the end of each quarter.  Independent Sales Agent can earn /**/on past quarters’ Net Sales of FRONTLINE and HEARTGARD products in a catch-up fashion shouldthe share target be achieved on a YTD basis.

 

/**/

 

**CA****L****CU****L****A****T****I****O****NS**

 

Thecommission and bonus payments will be calculated by MERIAL, and shall not besubject to review by Independent Sales Agent. For the avoidance of doubt, all suchpayments shall be subject to audit pursuant to Section 6(k) of the Agreement.

 

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**Schedule****C**

 

**EDI POLICY FOR INDEPENDENT SALES AGENT**

 

1.     The termsof the MERIAL Independent Sales Agent Agreement (“Agreement”) entered into by Independent Sales Agentand MERIAL govern all purchase orders issuedby Independent Sales Agent to MERIAL by telephone, purchase order forms or electronically (EDI).  Independent Sales Agent shall use EDI as theprimary method of transmitting purchase orders to MERIAL made pursuant to theAgreement.  The EDI format to be utilizedfor transmitting electronic purchase orders from Independent Sales Agent to MERIAL shall be ASCX12 EDIformat, as defined by MERIAL.  MERIAL reserves the right to modify thisformat as it, in its sole discretion, deems necessaryupon thirty (30) days prior notification to Independent Sales Agent.

 

2.     IndependentSales Agent shall transmit purchase orders to the MERIAL EDI Network within two (2) hours ofplacement of any such orders with Independent Sales Agent by an AMA.  MERIAL shall use its best efforts to retrieveEDI purchaseorders frequently on every business day the Agreement is in effect.  Independent Sales Agent shall utilize its best effortsin transmitting EDI purchase orders to insure that purchase orders are availableto be collected by MERIAL from the MERIAL EDI Network at the above-statedretrieval times.

 

3.     IndependentSales Agent shall maintain the necessary equipment and personnel to process theASCX12 997 Functional Acknowledgment, defined by MERIAL.  Independent SalesAgent shall notify the MERIAL EDI contact by telephone if Independent Sales Agent does not receive a 997 FUNCTIONAL ACKNOWLEDGMENT within twenty-four (24) hours of placementof EDI purchase order by Independent Sales Agent with MERIAL to insure properreceipt by MERIAL of the transmittedpurchase order.

 

4.     MERIALagrees to utilize a Value Added Network (i.e., Sterling, Advantis, etc.) toprovide Value Added Network Services, and the costs of this system shall be sharedequally by Independent Sales Agent and MERIAL.  However, MERIAL reserves theright to utilize other communication methods such as the World Wide Web or FTP (file transfer protocol).

 

5.     IndependentSales Agent shall re-transmit within four (4) hours, at MERIAL’s request, any EDI purchase order placed within theprevious fourteen (14) business days.  IndependentSales Agent shall maintain adequate system support and personnel for data back-up and retransmissioncapabilities.  In case of a serviceinterruption where Independent SalesAgent cannot transmit or MERIAL cannot retrieve EDI purchase ordertransmittals, Independent Sales Agent agrees to place purchase orders bytelephone or facsimile transmission to MERIAL within four (4) hours of initialEDI service interruption.

 

6.     Independent Sales Agent shall receive and process the 855 Purchase Order Acknowledgmentfrom MERIAL in the ASCX12 format as defined by MERIAL.

 

7.     IndependentSales Agent shall use its best efforts to convey backorder information tothe AMA within (4) hours of transmission of this EDI data from MERIAL.  Further,Independent Sales Agent agrees to act as a single point of contact for the AMA for backorder inquiries andcontact MERIAL for any issues relative to anysuch backorders on behalf of the AMA.

 

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8.     IndependentSales Agent shall maintain backordered product information (productcode and release date) within its system. Independent Sales Agent shall advise AMAs of such items and dates at thetime of order, beginning no later than two (2) hoursafter receipt of the first 855 PO 

 

Acknowledgment.  Independent SalesAgent will also update its internal system if anew release date is transmitted by MERIAL.

 

9.     IndependentSales Agent shall transmit a 997 FUNCTIONAL ACKNOWLEDGMENT toMERIAL as defined by MERIAL within twenty-four (24) hours of receipt of the855 PO Acknowledgment.

 

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**Schedule E**

**MERIAL Independent Sales Agent Agreement**

**2010 Other Products**

 

**PHARMACE****U****TICALS**

 

IMMITICIDE® Sterile Powder *(melarsominedihydrochloride)*(5 vials/box)

TRESADERM® (*thiabendazole-dexamethasone-neomycinsulfate)*(size 7.5 mL and 15.0 mL 12 bottles/box)

 

All marks are the property of MERIAL.

 

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