Exhibit 4.1


 


MWI
VETERINARY SUPPLY CO.


 


NON-DISCLOSURE
AND NON-COMPETITION  AGREEMENT



WITH



JOHN FRANCIS


 


Pursuant to the offer letter
dated September 10, 2006, and the compensation stated therein, effective September 28,
2006, John Francis (“Employee”), and
MWI Veterinary Supply Co., an Idaho corporation (the “Company”), as part of Employee’s employment
with the Company  agree as follows:


 


ARTICLE 1.

FAIR COMPETITION COVENANTS


 


1.1          Noncompetition Covenant.  Employee agrees that Employee will not, directly
or indirectly, during the term of Employee’s employment with the Company and
for one year following the termination (for any reason) of Employee’s
employment with the Company (the “Noncompete
Period”), compete, either directly or indirectly, with the Company
in the sale, marketing, distribution, warehousing, manufacturing, fabrication
or shipping of animal health products for the customers of the Company.  Competition includes owning an interest in or
being employed by, acting as a consultant to, or otherwise participating,
associating, rendering services to, or engaging in, a proprietorship,
partnership, corporation, limited liability company, or other entity or
organization, or a business unit, division, subsidiary, or other component of
such an entity or organization in any business that the Company conducts or has
specific plans to conduct as of the date the employment of Employee is
terminated.  Nothing herein shall
prohibit Employee from being a passive investor of not more than 5% of the
outstanding stock of any class of capital stock of a corporation which is
publicly traded, so long as Employee has no active participation in the
business of such corporation.


 


1.2          Nonsolicitation Covenant.  During the Noncompete Period, Employee shall
not, directly or indirectly through another entity, (i) induce or attempt
to induce any employee of the Company or any Affiliate to leave the employment
of the Company or such Affiliate, or in any way interfere with the relationship
between the Company or any Affiliate and any employee thereof, (ii) hire
any person who was an employee of the Company or any Affiliate at any time
during the Employee’s employment or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation
of the Company or any Affiliate to cease doing business with the Company or
such Affiliate, or in any way interfere with the relationship between any such
customer, supplier, licensee, licensor, franchisee or business relation and the
Company or any Affiliate.


 


1.3          Nondisparagement Covenant.  Employee shall not make statements injurious
to the business reputation or good will of the Company or any of the members of
its board, its officers or employees.


 


1.4          Breach of Covenants.  If, at the time of enforcement of Sections
1.1, 1.2, and 1.3 of this Agreement, a court holds that the restrictions stated
herein are unreasonable under circumstances then existing, the parties hereto
agree that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated 


 

















 


period,
scope or area.  Because Employee’s
services are unique and because Employee has access to Confidential Information
and Work Product, the parties hereto agree that money damages would not be an
adequate remedy for any breach of this Agreement.  Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).  In addition, in the event of an alleged
breach or violation by Employee of Sections 1.1, 1.2, and 1.3, the Noncompete
Period shall be tolled until such breach or violation has been duly cured.  Employee agrees that the restrictions
contained in Sections 1.1, 1.2, and 1.3 are reasonable.


 


1.5          Noncompetition Payment.  If Employee’s employment with the Company is
terminated, other than by (i) the Company for Cause, or (ii) pursuant
to a voluntary termination by Employee which is not within 90 days of a Good
Reason Event, then the Company shall continue to pay Employee at a rate equal
to Employee’s base salary at the time of such termination for the
Noncompetition Period, provided that such payments shall be made pursuant to
the Company’s normal payroll practices and shall be subject to any required or
authorized withholding and declarations. 
Notwithstanding the foregoing, the Company shall not be obligated to
make such noncompetition payments if the Company gives Employee written notice,
within 15 days after the date of the termination of employment, that the Company
has elected to waive the provisions of Section 1.1 hereof and thus not pay
the noncompetition payment described above.


 


1.6          Definitions.


 


1.6.1               “Cause”  means (i) the continued failure by
Employee to perform duties as reasonably directed by the Employee’s supervisor
of the Company which such failure continues for ten days after written notice
of such failure provided to Employee, (ii) willful misconduct by Employee
in the performance of Employee’s duties, (iii) gross negligence by
Employee in the performance of Employee’s duties which materially harms the
Company, (iv) Employee’s commission of a felony or other offense involving
dishonesty toward the Company or its subsidiaries or moral turpitude, or (v) any
breach by Employee of Employee’s obligations set forth in Sections 1.1, 1.2,
and 1.3.


 


1.6.2               “Confidential Information” includes, but is not limited to,
any information relating to organizational structure, personnel data, marketing
philosophy and objectives, project plans, business strategies, business
initiatives, trade secrets, system design, methodologies, processes,
competitive advantages and disadvantages, financial information and results,
audit reports and materials related to same, marketing strategies, business
plans, systems, operations, technology, existing or potential customer lists
and addresses, product development, advertising or sales programs, and any
other information which would give the Company or any Affiliate an opportunity
to obtain an advantage over its competitors or which the Company or any
Affiliate is ethically obligated to protect from unauthorized sources.  Confidential Information shall not include (i) such
information that is otherwise available to the Employee from a source other
than the Company, (ii) such information that becomes generally known to
and available for use by the public other than as a result of Employee’s acts
or omissions, or (iii) disclosure of such information is required by law.


 


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1.6.3               “Good Reason
Event”  means (i) relocation
of Employee out of Idaho, or (ii) a material reduction by the Company of
Employee’s employment responsibilities or compensation.


 


1.6.4               “Work
Product”  means all
inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports and all similar or related information (whether or
not patentable) which relate to the Company’s or any of its Affiliates’ actual
or anticipated business, research and development of existing or future
products or services and which are conceived, developed or made by Employee
while employed by the Company and its Affiliates.


 


1.7          Not An Employment Contract.  Employee agrees that this Agreement is not an
employment contract for any particular term and that Employee has the right to
resign and the Company has the right to terminate Employee’s employment at
will, at any time, for any or no reason, with or without cause.


 


1.8          Certification.             By his signature below,
Employee hereby certifies to the Company that he is not currently subject to
any noncompetition or similar covenant with any previous employer or other
third party that would prevent him from accepting employment with the Company.


 


ARTICLE 2.

INTERPRETATION


 


2.1          Governing Law and
Amendments.  The laws of the State of
Idaho shall govern the interpretation and enforcement of this Agreement.  This Agreement may be amended, and any term
of this Agreement may be waived, only by a written agreement signed by Employee
and the President of the Company.


 


2.2          Nonwaiver of Remedies  The failure or neglect of a party to enforce
any remedy available by reason of the failure of another party to observe or
perform a term or condition set forth in this Agreement shall not constitute a
waiver of the term or condition.  A
waiver by a party (i) shall not affect any term or condition other than
the ones specified in the waiver, (ii) shall waive a specified term or
condition only for the time and in the manner specifically stated in the
waiver, and (iii) shall waive a specified term or condition only for the
parties expressly named in the waiver and no other parties.


 


2.3          Entire
Agreement.  This
Agreement constitutes the full and entire
understanding and agreement between the parties regarding the subject matter of
this Agreement.


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: September 28, 2006

  	
  /s/ John J. Francis

  
	
   

  	
  John Francis, Vice President & General Manager

  



 


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  MWI VETERINARY SUPPLY CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:  September 28, 2006

  	
  By:

  	
  /s/ Jim Cleary

  
	
   

  	
   

  	
  Jim Cleary, President & CEO

  
	
   

  	
   

  



 


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