Exhibit 10.1


 


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


 


2009 LIVESTOCK PRODUCTS
DISTRIBUTION AGREEMENT


 


This Livestock Products Agreement (“Agreement”)
effective as of January 1, 2009 (“Effective Date”) is made by and between Pfizer Inc., 812 Springdale Drive, Exton, PA 19341 (“Pfizer”)
and, MWI Veterinary Supply, 651 South Stratford Drive, Suite 100,
Meridian, Idaho 83642 (“MWI”).


 


WHEREAS, MWI is in the business of buying and selling
animal health products and servicing customers for those products, and


 


WHEREAS, MWI and Pfizer wish to set forth the terms of
their relationship related to the purchase and supply of such products,


 


NOW, THEREFORE, in consideration of the promises and
covenants contained herein, the parties hereby agree as follows:


 


Definitions:


 


“PARTICIPATING CUSTOMERS” shall mean customers from
the list of customers approved by Pfizer who have entered into a Leaders Edge
Agreement with Pfizer.


 


“Products” shall mean the Pfizer cattle and swine
products sold to MWI by Pfizer pursuant to this Agreement (and referenced in
Schedule A to this Agreement).


 


“Sales Out” shall mean the reported sales by MWI to Covansys
and accepted by Pfizer.


 


“Strategic Accounts” shall mean all those
PARTICIPATING CUSTOMERS listed in Schedule B hereto.


 


1.             (a)           Pfizer shall continue to promote its Products to
certain select customers in the livestock field. The parties agree that each
time a PARTICIPATING CUSTOMER selects MWI as their supplier and to service that
customer’s account, Pfizer shall send to MWI a Pfizer Suggested Resale Price
List which shall specify the Pfizer Products and the Pfizer suggested resale
prices quoted to such PARTICIPATING CUSTOMER (hereafter “SUGGESTED RESALE PRICE
LIST). Each such SUGGESTED RESALE PRICE LIST shall be incorporated into and
become part of this Agreement. Please find the current SUGGESTED RESALE PRICE
LIST listed on Schedule C hereto. Also included on Schedule C is the current
Pfizer Livestock Distributor Pricing. The Products and suggested resale prices
are subject to change at any time in Pfizer’s sole discretion upon thirty (30)
days prior written notice.


 


(b)           Pfizer reserves the
right to add or delete PARTICIPATING CUSTOMERS or Strategic Accounts at any
time at Pfizer’s sole discretion. Pfizer will provide written notice to MWI of
any changes. Pfizer will notify MWI of any (i) additions to the Strategic
Accounts list within twenty-four (24) hours of Pfizer’s receipt of the customer
contract and (ii) removals from the Strategic Accounts list within four (4) business
days prior to the removal effective date.


 


2.             (a)           MWI represents and warrants that for the
purposes of this Agreement, it is in the business of purchasing Products from
Pfizer for the sole purpose of resale and distribution, is registered within
the state(s) with which it does business, is compliant with all pharmacy
and distribution licensing requirements within the state(s) with which it
does business, and is compliant with and capable of participating in Electronic
Data Interchange (EDI).


 


(b)           MWI
agrees to purchase from Pfizer, at credit terms agreed to between the parties
and as may be further set forth on Pfizer’s invoices, Products sufficient to
fulfill demand from all customers to whom MWI will sell Products in the
quantities desired by the customers.


 


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(c)           MWI
agrees to maintain an inventory of Products equal to /**/ Demand, but excluding all Products indicated on
Schedule A as ineligible for RSA payments. For purposes of this Agreement “Demand” shall mean /**/.


 


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All Products shall count towards the amount held
in inventory by MWI. MWI and Pfizer agree to act in good faith to resolve any
material differences in the on hand inventory calculations.


 


(d)           Pfizer reserves the
right to allocate purchases such that MWI may not purchase more than two (2) months
MWI’s average of the most current Moving Annual Total sales purchases.
Exceptions must be approved by Pfizer’s New York headquarters.


 


(e)           MWI agrees that all
sales of Pfizer Products from MWI to a PARTICIPATING CUSTOMER shall reflect the
specific prices for each Product provided for in that PARTICIPATING CUSTOMER’S most recent SUGGESTED RESALE
PRICE LIST. In the event that the price listed on a PARTICIPATING CUSTOMER’S
most recent SUGGESTED RESALE PRICE LIST for any particular Product is lower (at
the time of consummation of a sale of such particular Products between MWI and
that PARTICIPATING CUSTOMER) than the price paid by MWI to Pfizer for such
Product, Pfizer agrees to credit MWI’s account for the amount of such
difference.


 


3.             Nothing herein contained shall create or be deemed
to create any relationship between the parties other than as specifically
provided for herein. No employment, partnership, specific or general agency
relationship shall exist unless specifically provided for in writing between
the parties. MWI shall not represent, directly or indirectly, expressly or by
implication, that any such relationships exist and/or that MWI has any
authority except as set forth in this Agreement.


 


4.             MWI shall use commercially reasonable efforts to
provide appropriate service to the customers to whom MWI will sell hereunder.
For customers serviced pursuant to this Agreement, MWI shall:


 


(a)           Store its inventory of
Pfizer Products under conditions (including refrigeration where appropriate) in
accordance with package labeling or other written instructions from Pfizer to
ensure that such Products retain their potency, purity, quality, and identity;


 


(b)           Provide to Covansys by
the close of business on Friday of each week an inventory report covering all
Product inventory purchased from Pfizer and setting forth in dollars at MWI’s
acquisition cost from Pfizer the amount of inventory by species. MWI agrees
that Pfizer shall have the right, upon reasonable advance notice and during
business hours to audit inventory in the possession of MWI to confirm
compliance with this paragraph 4(b) and to confirm the accuracy of the
data contained in the report;


 


(c)           Provide to Covansys
its Health Industry Number, Customer Health Industry Number, Pfizer Product
number, transaction date, ship to zip code, number of units and price with
respect to each sale of Product, and unit inventories on each Pfizer Product
sku that MWI sells;


 


(d)           Provide Sales Out
data, which shall include Leaders Edge and Non-Leaders Edge sales, to Covansys
within ten (10) working days of the date of each invoice. MWI will use its
best efforts to ensure Sales Out data integrity and timeliness;


 


(e)           Submit all orders to
Pfizer via EDI. EDI report 867 is the acceptable format;


 


(f)            Establish any service
fee or other charge or discount to any customer including PARTICIPATING
CUSTOMERS for Pfizer Products independently and at its sole discretion;


 


(g)           Provide regularly
scheduled delivery service to its customers and use commercially reasonable
efforts to anticipate its customers’ requirements for Pfizer Products. In the
event Pfizer delivers any product order to PARTICIPATING CUSTOMERS (drop ship),
no consideration shall be payable to MWI for that order under paragraph 5
below, provided that Pfizer will pay MWI for any drop ship if such shipment is
made necessary by the unavailability of Pfizer Products;


 


(h)           MWI agrees that credit
limits established by Pfizer shall be subject to change upon written notice by
Pfizer in its sole discretion and that no Product shipments will be made to MWI
in excess of the established credit limits;


 


(i)            Invoice
customers in an accurate and timely manner;


 


(j)            Refer to that
PARTICIPATING CUSTOMERS SUGGESTED RESALE PRICE LIST on each invoice for Pfizer
Products;


 


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(k)           Take no action,
whether or not identified above, that would harm the Goodwill or name of
Pfizer, or damage the interests of Pfizer or the Products, other than where
supported by sound factual evidence, including, but not limited to, the
diversion of Products and statements of false information. For purposes of this
Agreement “Goodwill” shall mean the marketplace advantage of customer patronage
and loyalty developed with continuous business under the same name over a
period of time; and


 


(l)            Make payment to Pfizer
for all Products purchased from Pfizer /**/.
In the event MWI fails to maintain the inventory levels specified in paragraph
2(c) above Pfizer shall have the right, upon /**/ written notice to MWI, to receive payment from
MWI /**/.


 


5.             In
consideration of MWI undertaking the obligations set forth herein Pfizer shall
make payments to MWI in accordance with Schedule D hereto.


 


6.             All sales of Products to PARTICIPATING CUSTOMER
or Strategic Accounts for whom a SUGGESTED RESALE PRICE LIST has been
incorporated into this Agreement are covered by this Agreement with regard to
compensation payable to MWI hereunder. Any transaction involving Products with
any customer including a PARTICIPATING CUSTOMER for which MWI has not been
selected by that PARTICIPATING CUSTOMER as the distributor are not covered by
this Agreement with regard to compensation payable hereunder.


 


7.             (a)           MWI shall not be provided with any rebate,
discount or other compensation for Products handled under this Agreement unless
specifically set forth herein. MWI will NOT be eligible to collect an RSA on
any lateral sales to an unauthorized Pfizer distributor. (It is MWI’s
obligation to confirm with Pfizer, prior to making a sale, as to whether a
distributor is an authorized distributor.) All sales by Pfizer to MWI shall be
at the then current Pfizer list price but subject to appropriate credits in
accordance with paragraph 2(e). Pfizer shall have the right to raise or change
the price of any or all Products to MWI on /**/
prior written notice. Pfizer shall be free to limit sales of any or all
Products to MWI in advance of any price increase.


 


(b)           The parties agree that Pfizer shall not be
obligated to issue credits for any returns that exceed the current average of
returns of distributors as specified below unless such returns are the subject
of a recall or made at the request of Pfizer. The current average of returns of
distributors for the calendar year of the contract timeline January 1,
2009 to December 31, 2009 shall be: /**/


 


8.             The payments described in Schedule D hereto
constitute full and complete compensation for MWI.


 


9.             All returns shall be approved by Pfizer and
subject to Pfizers Returned Goods Policy, attached
hereto as Schedule F. MWI may not offset payment to Pfizer of invoice amounts
as credit for any compensation payable hereunder. Pfizer shall make bi-monthly
payments of appropriate fees to MWI.


 


10.           MWI and Pfizer agree that, under the specific
circumstances delineated in this Section 10, Pfizer, at Pfizers sole
discretion, may recoup the sums outstanding to it from MWI against those sums
which may become due from Pfizer to MWI, in that the obligations arise from
mutual transactions. The specific circumstances which will enable Pfizer to
initiate recoupment are:


 


(a) MWI becomes insolvent, which shall be defined
as:


 


(i)            the sum of MWI’s debts
is greater than all of MWI’s property (“Balance Sheet Test”); or


 


(ii)           MWI is generally not
paying its debts as they come due; or


 


(iii)          MWI has failed to act
in good faith for a period in excess of six (6) months to resolve any
outstanding invoice or purchase order issues or reconciliations.


 


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(b)           MWI commences a liquidation of its operations by
means of a sale of its assets in their entirety or piecemeal; or


 


(c)           MWI ceases its business operations whether or
not such cessation is voluntary or involuntary; or;


 


(d)           MWI files a proceeding pursuant to the U.S.
Bankruptcy Code or any state court proceeding, including an Assignment for the
Benefit of Creditors.


 


11.           Nothing in this Agreement shall be deemed to
preclude MWI from negotiating a service fee or any other consideration from, or
providing any discount or rebate to, any customer, including PARTICIPATING
CUSTOMERS for any services provided by MWI.


 


12.           MWI shall distribute Pfizer Products only under
the labeling provided by Pfizer or as otherwise approved in writing by Pfizer;
prescribe, recommend, suggest, and advertise each Product for use only under
the conditions stated in the labeling provided by Pfizer; and observe all
federal, state, and local laws governing the distribution of the Products.


 


13.           Nothing in this Agreement shall be deemed to
limit Pfizer’s ability to sell any Product at any time to any customer
including PARTICIPATING CUSTOMERS or any other party. Transactions consummated
directly between Pfizer and any such customer or other party shall not qualify
for any of the compensation payable to MWI hereunder. Nothing in this Agreement
shall be deemed to limit MWI’s ability to sell non-Pfizer products at any time
to any customer including PARTICIPATING CUSTOMERS or any other party. MWI’s
active promotion or sale of products not made by Pfizer will not be considered
harmful to the Goodwill or name of Pfizer, or the Products, provided that the
Pfizer Products are not maligned in any way as prohibited under Section 4(k) of
this Agreement.


 


14.           EXCEPT AS SET FORTH IN THIS AGREEMENT, IN THE
LABELING OF THE PRODUCTS SOLD HEREUNDER, OR AS OTHERWISE SPECIFIED IN WRITING
BY PFIZER, PFIZER MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE
PRODUCTS.


 


(a)           Pfizer shall defend,
indemnify, and hold MWI harmless from all liabilities, claims, demands,
damages, costs and expenses, or money judgments incurred by MWI or rendered against
it resulting from (a) any breach by Pfizer of this Agreement, (b) third
party claims or actions for personal injury or property damage which arise out
of the distribution or sale of Pfizer products or the failure to warn, except
to the extent that such personal injury or property damage arises out of the
negligence or willful misconduct of MWI, and (c) any claim that the
Products, as sold by Pfizer, were defective. In the event Pfizer is found by
any court of competent jurisdiction to be liable for any claim based in
products liability, then Pfizer shall reimburse MWI’s reasonable legal fees
incurred in the course of cooperating with Pfizers defense. To be covered by
this defense and indemnity, MWI must: promptly notify Pfizer of any such claim;
allow Pfizer to fully control the defense and/or resolution of the claim; and
cooperate fully with Pfizer in the matter. This defense, indemnity and payment
for legal fees shall not apply to claims alleging: MWI alteration, negligent
handling or improper storage of the Products; sale of outdated Products; sale
or recommendation of the Products for uses or in a manner not set forth in
either the labeling supplied by Pfizer or as otherwise specified by Pfizer in
writing; or sale of the Products after receipt of written notice from Pfizer
that such sales should be halted.


 


(b)           In no event shall
either party be liable to the other party for special, collateral, incidental,
punitive or consequential damages in connection with or arising out of this
Agreement. Except as provided under subparagraph 14(a), above, total damages
recoverable against Pfizer by MWI shall be exclusively limited to the purchase
price of the Products with respect to which damages are claimed.


 


15. MWI and Pfizer acknowledge that in the performance
of their duties hereunder each may obtain access to “Confidential Information”
(as defined below) of the other. MWI and Pfizer agree that during the term of
this Agreement and for a period of three (3) years after the termination
of this Agreement, unless specifically permitted in writing by the other party,
which permission shall not be unreasonably withheld, especially in connection
with a sale of all or a substantial portion of MWI’s business, to (a) retain
in confidence and not disclose to any third party and (b) use only for the
purpose of carrying out their duties hereunder, any such Confidential
Information. As used herein the term “Confidential Information” means any
information, or data, whether of a business or scientific nature and whether in
written, oral or tangible form,


 


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relating to Pfizers and MWI’s business or potential
business or its research and development activities,
not generally available to or known to the public, and not otherwise known to
the receiving party, that is disclosed to or learned by the other party
pursuant hereto. “Confidential information” does not mean or include any
information: (a) which is, at the time of disclosure, available to the
general public; or (b) which following disclosure becomes available to the
general public through no fault of the recipient; or (c) which recipient
can demonstrate was in its possession before receipt; or (d) which is
disclosed to recipient without restriction on disclosure. Upon written request
from either party after completion of the work provided for hereunder or other
termination of this Agreement each party will return to the other party any
documents, or copies thereof, or any product samples, containing or
constituting Confidential Information disclosed to or generated by either party
in connection with this Agreement.


 


16.           All notices or communications given hereunder by
one party to the other shall be sent by hand or by first class prepaid
registered or recorded delivery post or by facsimile addressed to such party as
follows:


 


If to Pfizer:


Pfizer, Inc.


Attention: President, Animal Health 235 East 42nd
Street


New York, NY 10017


 


If to MWI:


MWI Veterinary Supply


Attention: President, CEO


651 South Strafford Drive, Suite 100 Meridian,
Idaho 83642


 


Either party may change its address by giving written
notice to the other party.


 


17.           This Agreement shall be effective as of January 1,
2009 and shall continue in force until December 31, 2009. This Agreement
may be terminated by either party upon thirty (30) days prior written notice.
Such termination may be without cause. This Agreement may be terminated
immediately by either party upon written notice in the event of a material
breach by the other. In the event MWI takes any action that harms or damages
the interests of Pfizer or the Products, other than where supported by sound
factual evidence, including, but not limited to, the diversion of Products and
statements of false information, Pfizer may terminate this Agreement
immediately upon written notice.


 


18.           This Agreement shall governed by the laws of the
State of New York applicable to contracts made and performed therein. This
Agreement is not assignable without the express written consent of the other
party, and may be modified or amended only in writing signed by both parties.


 


19.           This Agreement and documents referred to herein
embody the entire understanding between the parties hereto, will supersede
prior agreements relating to the Products. No activities conducted pursuant to
this Agreement or related thereto, including but not limited to the future
planning activities of the parties, shall be deemed to give rise to any
obligations on the part of either party other than as expressly provided for
herein.


 


IN WITNESS WHEREOF, intending to be legally bound, the
parties have executed this Agreement.


 


	
  MWI

  	
   

  	
  Pfizer Inc.

  
	
   

  	
   

  	
   

  
	
  By 

  	
  /s/
  Mary Pat Thompson

  	
   

  	
  By 

  	
  /s/
  Clinton A. Lewis, Jr.

  
	
   

  	
   

  	
  Clinton A. Lewis, Jr.

  
	
   

  	
   

  	
  President, U.S. Operations

  
	
   

  	
   

  	
  Pfizer Animal Health

  
	
   

  	
   

  	
   

  
	
  Date 12/8/08

  	
   

  	
  Date 12/11/08

  
					



 


 


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