Exhibit 10.8


 


**
— 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.


 


2010 - 2011 MERIAL /**/ INDEPENDENT SALES
AGENT AGREEMENT


 


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


 


W I T N E S S E T H:


 


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


 


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


 


WHEREAS, MERIAL desires to
appoint Independent Sales Agent to sell, market and provide services
related to MERIAL companion animal products; and


 


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


 


NOW THEREFORE, in exchange
for the promises and covenants described in the Agreement, and other good and valuable
consideration, the receipt and adequacy of
which are hereby acknowledged, MERIAL and Independent Sales Agent hereby agree as follows:


 


1.  DEFINITIONS
AND
INTERPRETATION


 


1.1           Definitions


 


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


 


(a)           “Affiliate” shall mean (i) any business
entity fifty percent (50%) or more of which is owned directly or indirectly by a
Party to this Agreement; (ii) any
business entity which directly or indirectly owns fifty percent (50%) or more of a Party to this Agreement; or (iii) any
business entity under the direct or indirect
control 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 a
Saturday or Sunday) on which banks
in the U.S.A. are open for the normal range of banking business;


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


(j)            “Named Sales Agent Sale(s)” shall mean a sale
to an AMA in the Named
Sales Agent’s Territory generated by placement of an order with MERIAL by (i) the Named Sales Agent; (ii) an
AMA designating a Named Sales Agent; or (iii) an authorized MERIAL representative
designating the Independent Sales Agent
as the Named Agent;


 


(k)           “Net Sales” shall mean sales net of all
discounts, 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 finished
MERIAL companion animal products, jointly and severally, in such sizes and
presentation forms as set forth in Schedule
D, attached hereto and incorporated herein.  The list of Other Products set
forth in Schedule D may be amended as specified in Section 2.5 of this Agreement, as MERIAL in its sole discretion
determines necessary, to (i) include
other products which MERIAL may hereafter develop, manufacture, or market, or (ii) delete
Other Products;


 


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


 


(o)           “Products” shall mean the finished MERIAL
companion animal products, jointly
and 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 in
Section 2.4 of this Agreement, as
MERIAL in its sole discretion determines necessary, to (i) include other products which MERIAL may hereafter
develop, manufacture, or market, or (ii) delete
Products;


 


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


 


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


 


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


 


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


 


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


 


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


 


(v)           “Trademarks” shall mean all designated
proprietary trademarks, and associated trade dress, tradenames, symbols, brand names,
package designs and the like now
or hereafter owned, acquired, used or registered by MERIAL in the
Territory to identify (i) the Products of MERIAL, set forth in attached Schedule A, and which are to be used only on or
in relation to the Products and (ii) the Other Products of MERIAL, set forth in
attached 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 Columbia
that make up the United States of America;


 


(x)           “Veterinary Trade” shall mean practicing
veterinarians and animal hospitals that
are 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’s
executors, administrators
and 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)           a
reference to a person includes an individual, firm, body, corporation, association (whether incorporated or not) and authority or
agency (whether governmental, semi- governmental or local);


 


(e)           a reference to time of day is to the time
applicable 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 is
for convenience of reference only and shall not affect the interpretation of
this Agreement;


 


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


 


(h)           a reference to any agreement or document is to
that 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 or
other legislative provision includes
any amendment to, statutory modification or re-enactment of, legislative provision substituted for, and any
statutory instrument issued under that statute, regulation, rule or other
legislative provision;


 


(j)            where the performance of an obligation under
this Agreement falls on a day other
than a Business Day, this Agreement shall be construed as requiring that obligation to be performed on the next
Business Day;


 


(k)           unless otherwise expressly stated herein, any
reference to dollars or money shall
mean the lawful currency of the United States;


 


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


 


2.             RIGHTS GRANTED


 


2.1           Subject to the terms and conditions hereof,
MERIAL hereby appoints Independent
Sales Agent to sell, market and provide services related to the
Products to the Veterinary Trade in the Territory during the Term.  Independent Sales Agent hereby accepts MERIAL’s
appointment and agrees to use its best
efforts to promote the sale of the Products to the Veterinary Trade in the
Territory.  Independent Sales Agent
further agrees to perform such services and other independent sales agent functions in
the Territory as MERIAL may from time
to time reasonably request.  Furthermore:


 


(a)           Independent Sales Agent is authorized to
obtain orders on behalf of MERIAL for the
Products from established AMAs in the Territory and from new accounts
within the Veterinary Trade within the Territory, after MERIAL has approved such account(s) as
an AMA(s).  MERIAL shall pay commissions on the Net Sales of
orders for Products from new and established AMAs within the Territory
according to the schedule and terms outlined in Schedule B, attached
hereto and incorporated herein by this reference.


 


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


 


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


 


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


 


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


 


2.3           It is expressly understood and agreed that the
Independent Sales Agent is an
independent contractor and Independent Sales Agent shall have no authority, and shall not represent that
it has any authority, to bind MERIAL to any
obligation, 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 or
responsibility on behalf of MERIAL or in
MERIAL’s name.  This Agreement does not
constitute appointment of Independent
Sales Agent as a distributor or franchisee or authorize the same to
act as an agent for MERIAL for any purposes other than those that are expressly provided for herein.


 


2.4           Independent Sales Agent expressly acknowledges
and agrees that during the Term, MERIAL may, upon fourteen (14) days
written notice, amend Schedule A, as
MERIAL in its sole discretion determines necessary, to (i) include additional products which MERIAL may hereafter
develop, manufacture, or market, or (ii) delete
Products, and such addition or deletion of products shall not be a breach
of this Agreement or be considered termination of this Agreement.


 


2.5           Independent Sales Agent expressly acknowledges
and agrees that during the Term, MERIAL may, upon fourteen (14) days
written notice, amend Schedule D, as
MERIAL in its sole discretion determines necessary, to (i) include additional products which MERIAL may hereafter develop,
manufacture, or market, or (ii) delete
Other Products, and such addition or deletion of products shall not
be a breach of this Agreement or be considered termination of this Agreement.


 


2.6           Independent Sales Agent expressly acknowledges
and agrees that nothing contained herein authorizes Independent Sales
Agent to appoint or create other
or sub independent sales agents in the Territory without the prior
written consent of MERIAL.  MERIAL
reserves the right to expand or reduce the Territory upon thirty (30) days’ written
notice to Independent Sales Agent and to authorize other independent sales agents to
sell MERIAL Products and/or
Other Products, with or without commission or transaction fee, in the
Territory.  The expansion or reduction in
the geographic boundaries of the Territory shall not be a breach of this
Agreement or be considered a termination of this Agreement.


 


2.7           Independent Sales Agent shall refrain, in
relation to the sale and promotion of Products or Other Products, from
establishing any branch or distribution depot outside the United States and from
actively seeking customers or orders
outside the United States, without the prior written consent of MERIAL.


 


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


 


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


 


5

















 


set
forth pursuant to Paragraph 2.9 (giving reasons if so requested), Independent Sales Agent shall promptly
cease to sell to that account and shall
not resume sales until MERIAL is satisfied that MERIAL criteria are met.  MERIAL’s
decision 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 have
commenced on the Commencement Date and, subject to its terms and
conditions, shall continue in full force and effect from the Commencement Date through
and until 31 December 2011.  This Agreement may be renewed for
successive terms by mutual agreement expressed in writing and signed by MERIAL
and Independent Sales Agent.


 


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


 


3.3           MERIAL may terminate this Agreement
immediately by giving written notice of
such termination to Independent Sales Agent, and such termination shall take
effect upon receipt of such notice, in the event of any of the following:


 


(a)           Independent Sales Agent informs MERIAL in
writing or its creditors
generally that Independent Sales Agent is insolvent or is otherwise unable
to meet its obligations;


 


(b)           an application is made to a court for the
winding up of Independent Sales Agent’s
business;


 


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


 


(d)           execution is levied against Independent Sales
Agent by creditors, debenture holders
or trustees under a floating charge;


 


(e)           Independent Sales Agent enters into a scheme
of arrangement or composition with its
creditors;


 


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


 


(g)           Independent Sales Agent seeks protection from
its creditors in a bankruptcy court or
takes advantage of any other law or procedure for the
protection of creditors;


 


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


 


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


 


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


 


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


 


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


 


3.7           Merial shall have no obligation to Independent
Sales Agent arising from expiration or termination of this Agreement, nor
shall Independent Sales Agent
be entitled to compensation from Merial by reason of the expiration or termination of this Agreement.  Expiration or termination shall not extinguish obligations and liabilities
accrued 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 of
expenditures, investments, leases or other
commitments relating to the business of goodwill of Independent Sales Agent.


 


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4.             REMEDIES


 


INDEPENDENT
SALES AGENT EXPRESSLY ACKNOWLEGES AND AGREES THAT
MERIAL SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE (INCLUDING LOST COMMISSIONS, OR PROFITS
OR OTHER CONSEQUENTIAL
OR INCIDENTAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE
DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT.  To the extent liability cannot by law be waived in its
entirety, Independent Sales Agent expressly acknowledges and agrees that it
shall not be entitled to any lost commissions, or profits or any other
consequential or incidental damages or
losses, and that its sole remedy under this Agreement shall in no event exceed
the amount of the total commission payment generated hereunder which
may be in dispute.


 


5.             ORDERS


 


5.1           All orders will be obtained at prices and upon
terms established by MERIAL and will be submitted to MERIAL by Independent
Sales Agent for acceptance.  MERIAL shall only accept an order
obtained by Independent Sales Agent which
complies with the terms and conditions hereof, and MERIAL will ship the
Products and the Other Products ordered directly to the AMA.  MERIAL will promptly provide Independent Sales
Agent with notice of any orders which fail to comport with the terms and
conditions of this Agreement and are
therefore not accepted.


 


5.2           MERIAL agrees to use reasonable efforts to
fill orders obtained and submitted by the Independent Sales Agent for the
Products and/or Other Products as soon as
possible, subject to availability, the total requirements of MERIAL customers, and production facility capacity, but shall
not be liable in any way for any loss of trade or profit or commission or other
damage or cost incurred by Independent Sales Agent in the event of
any rejection of any order or any suspension,
cancellation or delay in acceptance or delivery of any order.  Independent Sales
Agent shall utilize EDI as the primary means for transmitting orders from AMAs or Veterinary Trade
accounts to MERIAL and shall adhere to the provisions outlined in the attached
EDI Policy for Independent Sales Agents (Schedule C, attached hereto and
incorporated herein by this reference)
for all orders placed with MERIAL via EDI.


 


6.             PERFORMANCE
BY INDEPENDENT SALES AGENT


 


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


 


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


 


(i)            Use all reasonable efforts to have AMAs and
Veterinary Trade accounts actively
endorse the Products and prominently merchandise, display and promote the full
line of Products to achieve maximum sales potential;


 


(ii)           Use best efforts to solicit orders for
Products 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


 


8

















 


implement
an 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 Action
Plan will include but not be limited to educational
programs for order entry personnel, reminder systems to help maintain focus on
this initiative and incentive programs funded from the promotional allowance designed to
provide support for achievement of specific sales
objectives outlined in the Action Plan.


 


(iii)          Plan and execute periodic market development
campaigns with prior written approval
by MERIAL; vigorously support MERIAL
promotional, educational, and advertising activities to increase sales of Products and Other Products;
provide AMAs and the Veterinary
Trade with agreed allowances, samples if any, point-of-sale materials and MERIAL Product literature;
maintain a trained sales force to
execute these activities and educate AMAs and Veterinary Trade accounts; provide
training for Independent Sales Agent’s
key personnel, including inside and outside sales
representatives, in the proper procedure for placing AMA orders with MERIAL and administering MERIAL’s
Returned Good Policy (which policy
MERIAL reserves the right to change, modify or
amend at any time without prior notice); and assist MERIAL in providing AMAs in Independent
Sales Agent’s Territory full access to
all MERIAL promotional allowances, marketing programs, point-of- purchase materials, and Product Literature;


 


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


 


(v)           Independent Sales Agent shall provide adequate
sales representation to contact and solicit
orders from all AMAs and Veterinary Trade accounts in the Territory.  Independent
Sales Agent shall submit orders within
two hours of receipt from the AMA or Veterinary Trade account through
EDI or such other communications
method designated and scheduled by MERIAL.


 


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


 


(c)           Independent Sales Agent shall educate and
train its sales personnel with material and courses supplied
by MERIAL and/or ensure their attendance at MERIAL training sessions
to ensure a satisfactory level of knowledge
about Products and Other Products and cooperate with MERIAL to offer suitable training and
education to the AMAs and Veterinary Trade accounts.  MERIAL shall cover all reasonable expenses for those sales personnel of
Independent Sales Agent who attend such
training, including reasonable pre-approved travel expenses.


 


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


 


9






 












 


conveying
to Independent Sales Agent’s sales and marketing organizations the strategic importance of
MERIAL and its Products and Other Products; recommending the Products
and Other Products as the preferred products in their respective
market categories to AMAs and the Veterinary Trade; offering sales representatives
financial incentives to sell Products and Other Products, as
designated in Schedule B hereto, that
are comparable or greater than the incentives
offered by Independent Sales Agent to sell any other supplier’s products that compete directly with
Products or Other Products;


permitting
no negative selling against any Products or Other Products; making
no affirmative efforts to shift sales of Products or Other Products to
competing products;


regularly
featuring Products and Other Products in daily detailing and
sales campaigns and mailings;


utilizing
MERIAL sales and technical support to increase and maintain sales support;


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


providing /**/ space
allocation in publications for Product and Other


Product
advertisements; and


providing
to 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 sales
management, Sales Agent
Representatives, inside sales management and inside sales representatives on a preferred basis.  For the purposes of field sales and
field sales management performance, measurement and compensation of sales of MERIAL parasiticide products
hereunder will count as “core” or “buy/sell”
business.


 


(f)            Ensure compliance with the Robinson-Patman Act
and all other applicable laws.  Independent Sales Agent agrees that it shall
not rebate or otherwise provide any part of the commission payment, either directly
or indirectly, to any AMA or Veterinary Trade account.


 


(g)           Independent Sales Agent agrees for itself and
all others acting on its
behalf, either directly or indirectly:
(i) Not to publish, repeat, utter or
report any statement or comment, nor to take, encourage, induce or voluntarily participate in any action,
that would negatively comment
on, disparage, defame or call into question the business operations, policies,
conduct, products or services of MERIAL or its
Affiliates or employees; (ii) Not to act in any way with respect to MERIAL’s
business operations, policies, conduct, products or services that would damage MERIAL’s reputation, business relationships
or present or future business, or the
reputation of MERIAL’s past or present
executives, 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’s
business
operations, policies, conduct, products or services.  The foregoing shall not apply to the
extent 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 or
disclose 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 the
right to immediately terminate the Agreement without further liability.


 


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(h)           Immediately notify MERIAL upon being made
aware of any adverse reaction, injury, damage,
claim or lawsuit involving a Product or
Other Product, whether or not directly attributable to the Product or Other
Product.  Independent Sales Agent, at the
request and expense of MERIAL, shall do
all 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 representatives
harmless from and against all expenses,
claims, damages, losses, liabilities or money judgments,
including legal fees, incurred by MERIAL arising out of any act or omission
by Independent Sales Agent including from the negligence or fault of Independent Sales Agent, from
Independent Sales Agent’s
advertising or promotion of the Products or Other Products, or Independent Sales Agent’s failure to
comply with the terms of this Agreement, including promotion of the
Products or Other Products outside the
scope of MERIAL’s safety and efficacy claims for the Products or Other Products, as the case may be,
except to the extent that said claim
arises out of any act or omission of MERIAL.


 


(j)            Independent Sales Agent will have no authority
to bind MERIAL to any act or representation unless specifically so
authorized in writing.  Independent
Sales Agent shall indemnify and hold MERIAL harmless from and against
all claims arising out of any breach of this subsection.


 


(k)           Independent Sales Agent records, which shall
include 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 and
sale of the Products or Other Products or any other matter relating to this
Agreement, shall be open to inspection and subject to audit and/or
reproduction, during normal business working hours, by MERIAL or its authorized representative to
the extent necessary to adequately evaluate Sales Agent Representative commissions or customer information
submitted by Independent Sales Agent
or 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 said
records beginning on the Commencement Date
and continuing for five (5) years following the termination or
expiration of this Agreement and any renewal thereof.  For all audits, MERIAL may elect to
engage an audit firm or perform the audit using appropriate MERIAL personnel.  If the audit shows Independent Sales Agent
received more than is due hereunder,
Independent Sales Agent shall pay to MERIAL both the cost of the audit as well as the
discrepancy in funds.


 


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


 


7.             PERFORMANCE
BY MERIAL


 


7.1           MERIAL agrees that it shall:


 


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


 


11

















 


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


 


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


 


(c)           Pay Independent Sales Agent, as full and total
compensation for all services rendered
under 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 Net
Sales.  An earnings statement
reporting invoiced sales, Net Sales, and earnings (including commissions) will be provided monthly to
Independent Sales Agent.  Independent
Sales Agent also expressly acknowledges and agrees that MERIAL has the right to apply commissions
earned by Independent Sales
Agent against any amounts past due owed by Independent Sales Agent to MERIAL hereunder or under any distributor agreement
with MERIAL.


 


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


 


(e)           Work with Independent Sales Agent to conduct
business planning to increase sales opportunities and results and to maximize
the use of available resources for MERIAL Products.


 


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


 


i.           Conducting national and regional consumer
marketing and promotional campaigns.


 


ii.          Conducting sales promotions, disease and product
awareness campaigns, and client education
programs for AMAs and Veterinary Trade accounts.


 


iii.         Providing marketing assistance programs to develop
professional
promotional and educational programs, workshops, and seminars as mutually agreed between MERIAL
and Independent Sales Agent.


 


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


 


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


sales management training for
Independent Sales Agent’s managers;


technical
training in the Products and the diseases which
are controlled or prevented by them;


conducting
meetings to inform Independent Sales Agent’s sales
force about sales promotions and the use of campaign detail materials,


sales tools, and
point-of-purchase merchandising aids;


participating
in account presentations to AMAs; and


 


12

















 


handling customer complaints and
inquiries and providing consultations
to promote and maintain customer satisfaction.


 


(g)           Indemnify and hold Independent Sales Agent
harmless from and against any and all claims, damages, losses, and
liabilities directly caused by the use of Products or Other Products, except
to the extent that said claim arises
out of any statement, act, or omission by Independent Sales Agent.


 


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


 


8.             REPRESENTATIONS
AND WARRANTIES OF INDEPENDENT SALES AGENT


 


8.1           Independent Sales Agent hereby represents and
warrants to MERIAL as follows:


 


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


 


(b)         Independent Sales Agent shall maintain a
business establishment, facilities
and 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 acknowledges
and agrees that MERIAL’s exclusive
property (the “Property”) includes:


 


(a)           all trademarks, including those listed in
Schedule A, Schedule D attached
hereto, and all trade dress and tradenames now or hereinafter associated with Products and Other
Products, registered or unregistered;


 


(b)           formulations of all Products and Other
Products; and


 


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


 


9.2           Independent Sales Agent is authorized on a non-exclusive basis to use the
Property solely in association with the marketing, promotion and sale of the
corresponding Products and/or Other Products, solely in the Territory, and solely during the Term, so long as
Independent Sales Agent uses the Property in
accordance with MERIAL’s standards, specifications, and instructions.  Independent
Sales Agent shall afford MERIAL a reasonable opportunity to
inspect and monitor Independent Sales Agent’s use of the Property.  All use of the Property shall clearly identify MERIAL as the owner of such
Property and shall meet all requirements of the United States Patent and
Trademark Office and any other applicable agency.  This authorization of use does not constitute a grant to Independent Sales
Agent of any property right or interest
in any Property.  Independent Sales Agent
will have no right to delegate or assign rights granted to it under this,
or any other, provision hereof.  Independent Sales Agent shall use the Property
only to the extent necessary to enable Independent Sales Agent to carry out
its obligations under this Agreement.


 


13

















 


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


 


9.3           Independent Sales Agent agrees that it will
not register or use any trademark which, in the opinion of MERIAL, is
confusingly similar to the Trademarks or to any other trademarks registered or used by
MERIAL.


 


9.4           Independent Sales Agent agrees to use its best efforts to prevent other persons
from seeking or obtaining any patents, trademarks or copyrights embodying the
Property.  Independent Sales Agent agrees
to notify MERIAL immediately of any potential
infringement or imitation of the Property which comes to the attention of
Independent Sales Agent during the Term. 
Independent Sales
Agent will render all reasonable assistance sought by MERIAL in connection with any action taken by
MERIAL to protect or enforce its Trademarks.  All decisions about such action, including
the determination whether to initiate action or to settle, will be
under the sole control of MERIAL.  MERIAL
will not be liable for any attorney’s
fees or expenses unless Independent Sales Agent incurs such fees and expenses at the written request of MERIAL and only to the
extent that MERIAL determines such fees
to be reasonable.


 


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


 


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


 


10.           ASSIGNMENT


 


10.1         Independent
Sales 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 this
Agreement to any third party.


 


10.2         MERIAL
may assign, transfer or subcontract its rights and obligations hereunder without the approval of
Independent Sales Agent.


 


11.           STATUS OF INDEPENDENT SALES AGENT/TAXES


 


Independent
Sales Agent is not a joint or co-venturer, partner, employee or agent of MERIAL and does not have any power or
authority, 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 relating
to applicable payroll taxes and any other
required taxes.  Independent Sales Agent
shall indemnify MERIAL against any and
all claims arising from Independent


 


14

















 


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


 


12.           GOVERNING
LAW


 


This Agreement shall be governed by, interpreted, construed, and the
respective 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 any
conflict of law principles to the contrary. 
In the event of any controversy or claim arising out of or relating
to this Agreement, performance hereunder, termination hereof, or relationship
created 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 of
this Agreement or transactions contemplated hereby.  Each Party further
agrees that service of any process, summons, notice or document by U.S.  registered
mail to such Party’s respective address set forth in Article 13.2 shall
be effective service of process for any action, suit or proceeding in Georgia
with respect to matters relating to this Agreement, and hereby waives any objection to the laying of venue in the
courts of Georgia and that any such
action was brought in an inconvenient forum. 
In the event of any dispute arising from this Agreement or any acts of any
Party, the prevailing Party in such dispute
shall be entitled to recover reasonable costs and attorneys’ fees.  Notwithstanding
the foregoing, MERIAL shall have the right to seek interim injunctive relief from any court of
competent jurisdiction wherever situated in the event of a threatened disclosure in
violation of this Agreement to prevent such
disclosure pending resolution of the merits of the dispute.  This paragraph
shall survive the termination of this Agreement.


 


13.           NOTICES


 


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


 


13.2         Deliveries
made, and mail sent, pursuant to paragraph 13.1 shall be to the
address of the recipient Party set out below, and in each case, shall be marked
for 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

  



 


15

















 


	
  To Independent Sales Agent:

  	
   

  	
  Mr.  James Cleary

  
	
  Address:

  	
   

  	
  651 S.  Stratford Drive

  
	
   

  	
   

  	
  Meridian, ID 83642

  
	
  Phone Number:

  	
   

  	
  1-800-762-4800

  



 


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


 


14.           MISCELLANEOUS


 


14.1         This Agreement,
together with any referenced attachments and amendments, embodies the entire agreement
of the Parties in relation to the subject matter of sales agency for
Products listed in Schedule A and Other Products listed in Schedule D, and supersedes
all previous agreements,
arrangements and understandings, verbal or otherwise, in relation thereto.  No variation, modification or waiver of any
provision 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 confirmed
in writing signed by the Parties, and then such variation, modification, waiver
or consent shall be effective only to the extent to which it may be made
or given.  The Agreement may be
amended only in writing signed by both Parties.


 


14.2         No
waiver 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 for
any other instance or with respect to any other provision.  No failure, delay, relaxation or indulgence
of any Party in exercising any power or right conferred
upon such Party in the terms of this Agreement shall operate as a waiver of
such power or right, nor shall any single
exercise of any such power or right preclude any other or future exercise thereof, or the exercise of any
other power or right under this Agreement.


 


14.3         If any
provisions of this Agreement shall be deemed invalid and not enforceable
in accordance with their terms, all other provisions which are self-sustaining and capable of separate enforcement
without regard to the invalid provisions, shall continue to be
valid and enforceable in accordance with
their terms.


 


14.4         All
information and materials relating to AMA customer databases, AMA sales volume and Product and Other Product formulation
usage information and general AMA account information, as it
pertains to transactions between MERIAL
and AMAs and Veterinary Trade Accounts and the sale of Products and
Other Products, is the sole and confidential property of MERIAL and may not
ever be disclosed by Independent Sales Agent to any third party without the
prior written consent of MERIAL.  Neither
Party shall at any time during the Term
or for a period of five (5) years following the expiration or termination
of this
Agreement disclose to any third party Confidential Information, as defined in paragraph 14.6, it has gained through its
association with the other.


 


14.5         Independent Sales Agent acknowledges that all sales data, market analysis, and customer information provided
by Independent Sales Agent to MERIAL under
this Agreement shall become the sole property of MERIAL and is deemed confidential and may not be disclosed by
Independent Sales Agent to any third
party without the prior written consent of MERIAL.  Independent Sales Agent
further acknowledges that MERIAL may use any such information for sales and
promotional purposes, including, but not limited to, establishing a database
for direct marketing purposes, and


 


16

















 


Independent
Sales 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 fulfilling
the obligations of this Agreement.  “Confidential
Information,” as used in this Agreement, shall mean all information,
documentation, and devices disclosed or
made available by one Party to the other, including but not limited to, the
existence of discussions between the Parties, business plans, present and
future products or formulas, trademarks, policies, procedures, processes,
manufacturing or distribution plans, whether written or oral.  No rights or licenses, expressed or implied, are
hereby granted to either Party under any
patents, copyrights, trademarks, service marks or trade secrets belonging to the
other as a result of or related to this Agreement.  Both Parties agree to return any and all Confidential Information, and
all other records and copies thereof, to the other upon the termination or expiration
of this Agreement.  The obligations of this paragraph shall not apply to such
information which:


 


(a)         at the time of the initial disclosure was
demonstrably already in the possession of the receiving Party without
any applicable obligation of
confidentiality; or


 


(b)         at the time of disclosure is, or at some time
thereafter becomes, through no fault of the receiving Party, public
knowledge, or


 


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


 


The
terms of this Agreement shall remain strictly confidential.  The Parties to this Agreement shall not disclose any of
the terms of this Agreement, whether
generally or specifically, to any third party, except as may be required by a Party’s accountants or insurers, or by order of
a court of competent jurisdiction.  To the extent that either Party is obligated
to file this Agreement with the
Securities and Exchange Commission (“SEC”), such Party shall seek confidential treatment of the trade
secret, commercial and/or financial information contained herein; the filing Party shall
seek the input and approval of the non-filing Party in determining
what 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 or
expiration of this Agreement.


 


15.           FORCE MAJEURE


 


Sales
may be suspended or canceled by MERIAL in the event of Act of God, terrorism, war, riot, fire, explosion,
accident, flood, sabotage, inability to obtain
fuel, power, raw materials, labor, containers or transportation facilities, governmental laws,
regulations, orders or action, breakage or failure of machinery or apparatus, national
defense requirements or any other event beyond the reasonable control of MERIAL or
in the event of labor trouble, strike,
lockout or injunction (whether or not such labor event is within the reasonable control of MERIAL), which
event prevents the manufacture, shipment or acceptance of Products.  Deliveries suspended under this paragraph 15 shall be canceled without
liability, but this Agreement shall otherwise remain unaffected.


 


17

















 


16.           ETHICAL BUSINESS PRACTICES


 


16.1         Practices


 


MERIAL
and Independent Sales Agent shall adhere to business practices
in connection with this Agreement which are in accordance with the letter and
spirit of applicable laws and ethical principles.  Independent Sales Agent and MERIAL represent and
warrant to the other that all transactions in
connection with this Agreement will be accurately reflected in their respective books and records, and that no funds or
other assets will be paid directly or
indirectly to government officials (or persons acting on their behalf) for the
purpose of influencing government decisions or actions with respect to Products
or Other Products.  Violation of this
policy will result in the immediate
termination of this Agreement.


 


16.2         Employees


 


No
employee of MERIAL will have authority to give any direction, either written or oral, relating to the making of any
commitment by Independent Sales Agent or its agents to any third party in
violation of the terms of this Section 16.


 


17.           ANNOUNCEMENTS


 


Except
as required by law, no announcements will be made in connection with the subject matter of this Agreement, by or
on behalf of Independent Sales Agent
without the prior approval of MERIAL.  Such
approval will not be unreasonably with held or delayed.


 


18.           COUNTERPARTS


 


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


 


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


 


[Signatures on following page(s)]


 


18

















 


IN WITNESS WHEREOF the
Parties 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

  



 


19






 












 


Schedule A


MERIAL /**/
Independent Sales Agent Agreement


2010 Companion Animal
Products


 


Flea and Tick Control Products


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


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


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


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


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


 


Heartworm Preventives


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


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


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


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


 


Feline Vaccines


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


PUREVAX
Feline Respiratory 2 (RC) (25 x 1 dose/tray)



PUREVAX
Feline Respiratory 3 (RCC) (25 x 1
dose/tray) 


PUREVAX
Feline 3 (RCP) (25 x 1 dose/tray)


PUREVAX
Feline 4 (RCCP) (25 x 1 dose/tray)


PUREVAX
Feline 3/Rabies (RCP + rRabies) (25 x
1 dose/tray) 


PUREVAX
Feline 4/Rabies (RCCP + rRabies) (25 x
1 dose/tray) 


PUREVAX
Recombinant Leucemia (rFeLV) (25 x 1 dose/tray)


 


Ferret Vaccines


PUREVAX
Ferret (rDistemper) (10 x 1 dose/tray)


 


Canine Vaccines


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


RECOMBITEK
C4 (rDAPP) (25 x 1 dose/tray) 


RECOMBITEK
C4/CV (rDAPPC) (25 x 1 dose/tray) 


RECOMBITEK
C6 (rDAPP-L) (25 x 1 dose/tray) 


RECOMBITEK
C6/CV (rDAPPC-L) (25 x 1 dose/tray)


RECOMBITEK
Lyme (rLyme) (20 x 1 dose/tray, 50 x 1
dose/tray) 


RECOMBITEK
Canine Parvo (50 x 1 dose/tray)


RECOMBITEK
Canine Corona-MLV (25 x 1 dose/tray) 


RECOMBITEK
Canine 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) 


IMRAB
3 TF
(50 x 1 doses/tray) 


IMRAB
1 (5 x 10 doses/box) 


IMRAB
1 TF (50 x 1 doses/tray)


 


PAIN MANAGEMENT


PREVICOX® (firocoxib)


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


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


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


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


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


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


 

















 


ORAVET
Barrier Sealant Cartridges (30 cartridges/carton)


ORAVET
Plaque Prevention Gel Home Care Kits (10 8-week Home Care Kits)


 


All
marks are the property of Merial.


 


2

















 


Schedule B


 


MWI Veterinary Supply Co. Independent
Sales Agent Earnings


 


Commission
Rates - Net
Sales of Products
to AMAs


 


Independent Sales Agent Monthly
Commission Rate


 


/**/


 


I.               Commissions
Earned
for Sales
of Products to AMAs


 


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


 


No
commissions are paid for products not listed on Schedule A or for sales outside of Independent Sales Agent’s Territory.


 


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


 


Independent
Sales Agent agrees to commit /**/ of commissioned sales (“Promotional Allowance Funds”) to fund certain growth initiatives,
e.g., advertising initiatives, executive training, sales
personnel incentives, and the like.  Proposed uses for such funds shall be submitted to MERIAL in writing utilizing
the appropriate Promotional Allowance Funds request forms.  Any such proposals shall be approved in advance by MERIAL, in accordance with its
sole discretion.  Earned Promotion Allowance funds shall not rollover;
Promotional Allowance Funds accrued during 2010 must be used by Independent Sales
Agent, for approved activities, by no later than March 31, 2011, unless
otherwise approved in writing by MERIAL.  Promotional Allowance Funds accrued in
2011 must be used by Independent Sales
Agent by no later than December 31, 2011 unless otherwise approved by MERIAL.  Such
funds 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 connection
with such activities.


 


A
Sales Agent Representative is an individual who, working as an agent or
employee of the Independent Sales
Agent, solicited and placed the qualifying order.  The
Independent Sales Agent will provide MERIAL a list of its Sales Agent Representatives with address, telephone number, and SAR
code (number) within fourteen (14) days of
the Commencement Date and within fourteen (14) days of any change in the
Independent Sales Agent’s sales force.  Independent
Sales Agent shall pay its Sales Agent
Representatives a minimum of /**/ of commissioned sales for their sales of the Products. 
Independent Sales Agent shall also utilize a minimum of /**/ of commissioned
sales for compensation of Inside Sales Representatives; should an order be credited
by MERIAL to Independent Sales Agent, then such /**/ will be
accrued in the Promotional Allowance Funds.  Any adjustment to the payment of
commissions to Sales Agent Representatives or
Inside Sales Representatives


 

















 


must
receive the prior approval of Merial.  The
Independent Sales Agent must not make
any deductions from amounts due Sales Agent Representatives or Inside Sales Representatives.


 


II.              Commissions
paid for Sales
of Other Products


 


Independent
Sales Agent earns full commission on the Net Sales of Other Products to
AMAs in the Territory when the order is placed with MERIAL by Independent Sales
Agent
via EDI.


 


No
commissions are paid for products not listed on Schedule D or for sales outside of
Independent Sales Agent’s Territory.  The
commissions will only be paid in
connection with those orders which are transmitted to MERIAL via EDI.  Such
commission will be paid to Independent Sales Agent within thirty (30) days of the last
business day of the month in which MERIAL receives a qualifying order.


 


BONUS OPPORTUNITY


 


In
addition to the total commission payment described above, Independent Sales Agent
may 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 monthly
Flea/Tick and Heartworm products through 2010.  Combination products that treat
Flea/Tick and Heartworm will count as two doses for
purposes of the bonus calculation.  The
dose share calculation is inclusive of sales
agency and distribution sales to Merial commissioned AMAs.  The bonus shall be calculated quarterly
and 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 should
the share target be achieved on a YTD basis.


 


/**/


 


CALCULATIONS


 


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


 


3

















 


Schedule C


 


EDI POLICY FOR INDEPENDENT SALES AGENT


 


1.     The terms
of the MERIAL Independent Sales Agent Agreement (“Agreement”) entered into by Independent Sales Agent
and MERIAL govern all purchase orders issued
by Independent Sales Agent to MERIAL by telephone, purchase order forms or electronically (EDI).  Independent Sales Agent shall use EDI as the
primary method of transmitting purchase orders to MERIAL made pursuant to the
Agreement.  The EDI format to be utilized
for transmitting electronic purchase orders from Independent Sales Agent to MERIAL shall be ASCX12 EDI
format, as defined by MERIAL.  MERIAL reserves the right to modify this
format as it, in its sole discretion, deems necessary
upon thirty (30) days prior notification to Independent Sales Agent.


 


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


 


3.     Independent
Sales Agent shall maintain the necessary equipment and personnel to process the
ASCX12 997 Functional Acknowledgment, defined by MERIAL.  Independent Sales
Agent 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 placement
of EDI purchase order by Independent Sales Agent with MERIAL to insure proper
receipt by MERIAL of the transmitted
purchase order.


 


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


 


5.     Independent
Sales Agent shall re-transmit within four (4) hours, at MERIAL’s request, any EDI purchase order placed within the
previous fourteen (14) business days.  Independent
Sales Agent shall maintain adequate system support and personnel for data back-up and retransmission
capabilities.  In case of a service
interruption where Independent Sales
Agent cannot transmit or MERIAL cannot retrieve EDI purchase order
transmittals, Independent Sales Agent agrees to place purchase orders by
telephone or facsimile transmission to MERIAL within four (4) hours of initial
EDI service interruption.


 


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


 


7.     Independent
Sales Agent shall use its best efforts to convey backorder information to
the 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 and
contact MERIAL for any issues relative to any
such backorders on behalf of the AMA.


 

















 


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


 


Acknowledgment.  Independent Sales
Agent will also update its internal system if a
new release date is transmitted by MERIAL.


 


9.     Independent
Sales Agent shall transmit a 997 FUNCTIONAL ACKNOWLEDGMENT to
MERIAL as defined by MERIAL within twenty-four (24) hours of receipt of the
855 PO Acknowledgment.


 


2

















 


Schedule E


MERIAL Independent Sales Agent Agreement


2010 Other Products


 


PHARMACEUTICALS


 


IMMITICIDE® Sterile Powder (melarsomine
dihydrochloride) (5 vials/box)


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


 


All marks are the property of MERIAL.