EXHIBIT 10.9
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 to the Employment Agreement dated as of September
16, 1994 (the "Employment Agreement"), by and between AQUAPENN SPRING WATER
COMPANY, INC., a Pennsylvania business corporation (the "Employer") and Xxxxxxxx
X. Xxxxxxxxxx ("Employee"), is made as of this 27th day of October, 1997.
Intending to be legally bound hereby, and in consideration of the
mutual covenants contained herein, the parties hereto agree as follows:
1. Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Employment Agreement.
2. Amendments to Employment Agreement. The Employment Agreement is
hereby amended as follows:
(a) Section 1A is hereby added to the Employment Agreement to
immediately follow Section 1 and to read in full as follows:
1A. Termination. In the event that Employee's employment by
Employer terminates at any time (including a termination which results
from Employee's or Employer's failure to renew the Employment
Agreement), but excluding a termination of Employee by Employer with
Cause, Employer shall continue to pay Employee's base salary and
benefits for two years from the date of termination to be paid at the
same regular intervals as Employer's normal payroll.
"Cause" shall be determined by the Employer's Board of Directors in
the exercise of good faith and reasonable judgment, and shall include
the occurrence of any one or more of the following:
(i) The willful and continued failure by the Employee to
substantially perform his duties of employment,
provided that Employer gives Employee at least 30 days
prior notice and an opportunity to cure such failure;
(ii) The Employee's commission of an act of fraud,
embezzlement, theft or other act constituting a felony
involving moral turpitude;
(iii) The willful engaging by the Employee in gross
misconduct or the willful violation of an Employer
policy;
(iv) The Employee's insobriety or unlawful use of a
controlled substance during business hours;
(v) The breach by the Employee of any covenants contained
in Sections 12 or 13 of this Agreement;
(vi) Gross negligence of the Employee; or
(vii) Dishonest conduct by the Employee.
(b) Section 12 is hereby added to the Employment Agreement to read in
full as follows:
12. Confidentiality. During the term of his employment and
indefinitely thereafter, Employee shall not use any proprietary or
confidential information of the Company acquired during the course of
his employment for his own benefit, nor shall he disclose it to any
other person or organization except as authorized in writing by the
Employer.
(c) Section 13 is hereby added to the Employment Agreement to read in
full as follows:
13. Covenant Not To Compete.
a. During the term of Employee's employment and for two
(2) years thereafter, Employee shall not become employed by, act as
consultant for, contract with, obtain a beneficial ownership interest
in or otherwise enter into any form of business relationship with any
person, firm, company, partnership, association, organization or other
legal entity, for the purpose of offering or providing services or
products substantially similar to the Employer's services and products
in the territories in which Employer markets and sells its services
and products.
b. During the term of Employee's employment and for two
(2) years thereafter, Employee shall not, directly or indirectly,
render services to or contact or attempt to solicit business with
regard to the business of bottling and selling water from any customer
of Employer on Employee's own behalf or on behalf of any other person,
firm, company, partnership, association or other organization.
c. During the term of Employee's employment and for two
(2) years thereafter, Employee shall not employ, engage the services
of or solicit any employee or representative of Employer to terminate
his or her employment or representation or to otherwise seek to engage
the services of such employee or representative.
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3. Miscellaneous.
(a) All terms, conditions, provisions and covenants in the
Employment Agreement, shall remain unaltered and in full force and effect except
as modified or amended hereby.
(b) This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any facsimile signature
of any party hereto shall constitute a legal, valid and binding execution hereof
by such party.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the day and year first written above.
AQUAPENN SPRING WATER COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, III
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Xxxxxx X. Xxxxx, III
President
WITNESS: EMPLOYEE:
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxxxxxxx (SEAL)
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Xxxxxxxx X. Xxxxxxxxxx
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