AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT is dated as of March 19 , 2010 (this
“Amendment”),
by and between EMERALD
DAIRY INC. (f/k/a
Amnutria Dairy Inc.), a Nevada corporation (the “Company”), and XXX XXXXXX, a Virginia
resident (the “Executive”).
Capitalized terms used and not otherwise defined herein are used as defined in
the Employment Agreement (as defined below).
RECITALS:
WHEREAS, the Company and the
Executive are parties to that certain Employment Agreement, dated as of November
1, 2007 (the “Employment
Agreement”); and
WHEREAS, the parties desire to
amend the Employment Agreement as further set forth in Section 1
below.
NOW, THEREFORE, in
consideration of the premises and the other mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendment
to Employment Agreement. Section 3(c) of the Employment Agreement is
hereby amended by deleting such section in its entirety and substituting the
following therefor:
“(c)
During the Employment Period, the Executive shall devote substantially all of
his business time, attention and energy to performing his duties and
responsibilities hereunder and shall have no other employment and no other
outside business activities whatsoever; provided, however, that the
Executive shall not be precluded from (i) making passive investments which do
not require the devotion of any significant time or effort and/or (ii) serving
as a director on the Board of Directors of a company that is not engaged in a
Competing Business, provided that it does not interfere with the Executive’s
duties and responsibilities hereunder, as determined in the sole discretion of
the Company’s Board of Directors. For purposes hereof, a “Competing Business”
shall mean any business substantially similar to the Business, as defined in
Section 10(b) hereof.”
2. Employment
Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Employment Agreement shall remain in full force
and effect and is hereby ratified and confirmed as so amended. The
parties hereto agree to be bound by the terms and conditions of the Employment
Agreement as amended by this Amendment, as though such terms and conditions were
set forth herein and therein in full. Each reference in the
Employment Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or
words of similar import shall mean and be a reference to the Employment
Agreement as amended by this Amendment, and each reference herein shall mean and
be a reference to the Employment Agreement as amended and modified by this
Amendment.
3. Miscellaneous.
(a) The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the
Employment Agreement, nor constitute a waiver of any provision of the Employment
Agreement. This Amendment shall not preclude the future exercise of
any right, remedy, power or privilege available to the parties whether under
the Employment
Agreement, at law or otherwise.
(b) This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto or thereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own
facsimile signature and that it accepts the facsimile signature of
each other party. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction
of any of the provisions hereof or thereof. Whenever the context and
construction so require, all words herein in the singular number herein shall be
deemed to have been used in the plural, and vice
versa, and the masculine gender shall
include the feminine and neuter and the neuter shall include the masculine and
feminine.
(c) This
Amendment may not be changed, amended, restated, waived, supplemented,
discharged, canceled, terminated or otherwise modified
orally or by any course of dealing or in any manner other
than as provided in the Employment Agreement. This Amendment shall be
considered part of the Employment Agreement. In the event of any
inconsistency between this Amendment and the Employment Agreement, the terms of
this Amendment shall control.
(d) This
Amendment and the Employment Agreement constitute the final, entire agreement
and understanding between the parties with respect to the subject matter hereof
and thereof and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements between the parties, and shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto and
thereto. There are no unwritten oral agreements between the parties
with respect to the subject matter hereof and thereof. If any
provision of this Amendment is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of
this Amendment which shall be given effect so far as possible.
(e) This
Amendment and the rights and obligations of the parties hereunder shall be
governed by and construed and interpreted in accordance with the choice of law
provisions set forth in the Employment Agreement.
(f) Each
party shall execute and deliver such other documents, certificates and/or
instruments and
take such other actions as the other party may reasonably request in
order more effectively to consummate the transactions contemplated
hereby.
IN
WITNESS WHEREOF,
the parties have caused this Amendment to be executed as of the
date first above
written.
| COMPANY: | |||
| EMERALD DAIRY INC. | |||
|
|
By:
|
/s/ Xxxx Xxxx Shan | |
| Name: | Xxxx Xxxx Shan | ||
| Title: | Chief Executive Officer | ||
| EXECUTIVE: | |||
| /s/ Xxx Xxxxxx | |||
| Xxx Xxxxxx | |||
