EMPLOYMENT AGREEMENT
Exhibit 10.51
First Amendment to
This First Amendment to Employment Agreement (the “Amendment”) is made effective and amends the Prior Agreement (as defined below) as of the day of April, 2002, by and between EpicEdge, Inc. (the “Company”), of 0000 Xxxxxxx 000 Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and XXX XXXXXXX (the “Employee”), of 000 Xxxxx Xxxxxxx Xxxxxx, #000, Xxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company and the Employee entered into that certain Employment Agreement dated and effective as of April 15th, 2000 (the “Prior Agreement”), by and between the Company and the Employee; and
WHEREAS, the Company and Employee wish to amend the Prior Agreement to modify the incentive bonus portion of Employee’s compensation, to restate and confirm that the Employee is covered by the Company’s standard form of covenant not to compete and to modify the termination clause.
NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 3. Section 3 of the Prior Agreement, is hereby amended to include the following paragraph.
Subject to approval by the Company’s Board of Directors and shareholders, the Employee will be eligible to participate in a bonus pool (the “Bonus Pool”). The Employee will be eligible for 9.042% of the Bonus Pool, subject to the terms of the definitive documents representing and governing the Bonus Pool. The exact terms of the Bonus Pool shall be contained in the definitive documents representing the Bonus Pool, and such documents shall be subject to the approval of the Company’s Board of Directors, in addition to approval by the Company’s shareholders at the next shareholder meeting. The final terms of the Employee’s participation shall be subject to the completion of the final documentation and the approvals listed above. This Amendment, in its entirety, shall be null and void if completion of the final documentation and the approvals listed above are not completed.
Section 3 of the Prior Agreement shall be further amended to add the following paragraph following the revised paragraph relating to the bonus pool:
Additionally, the employee will receive a one-time stock option grant of 932,857 shares of Common Stock of the Company with vesting in 1/3 increments each year for three years as governed by the Company’s 2002 Stock Option Plan.
2. AMENDMENT TO SECTION 13, NON-COMPETE AGREEMENT. Section 13 of the Prior Agreement is hereby amended and restated in its entirety as follows:
13. Non-Compete; No Interference with the Business of Company.
(a) Non-Compete Agreement. Recognizing that the Company’s Information constitutes a special and unique asset of the Company, Employee agrees and covenants that during the term of this Agreement and for a period of six (6) months following the effective date of the termination of this Agreement, whether such termination is voluntary or involuntary, Employee shall not, anywhere in the United States, directly or indirectly engage in any business competitive with the Company without the written consent of an officer of Company. “Directly or indirectly engaging in any business competitive with the Company” includes, but is not limited to: (i) being employed by, serving as director of, consultant or advisor to, owning or otherwise being connected with, any entity primarily engaged in providing services or products substantially similar to any services or products provided, developed or under development by the Company, where the disclosure of the Company’s Confidential Information or trade secrets is likely to occur as a result of such relationship with such entity; (ii) soliciting or providing competitive services or products to any customer that the Employee performed work for at the direction of the Company in the six (6) month period immediately preceding the effective date of the termination of this Agreement; or (iii) making or holding any investment in any business that competes directly with the Company, whether such investment be by way of loan, purchase of stock or otherwise, except for investments in the capital stock of a publicly traded company that represents less than 2% of that company’s outstanding capital stock.
(b) Customers. Employee hereby agrees that during Employee’s employment hereunder and for a period of six (6) months thereafter, Employee will not, directly or indirectly, attempt to induce any customers or clients of the Company to terminate contracts or otherwise divert from the Company any business being conducted by such customers or clients with the Company pursuant to such contracts; and, during Employee’s employment and for six (6) months thereafter, Employee will not directly or indirectly solicit from, or otherwise agree to provide any competitive services or products to, any customer or client to which the Company has provided any products or services during the twelve (12) months preceding the termination of Employee’s employment, or any party whose identity or potential as a customer or client was confidential or learned by Employee during Employee’s employment with the Company.
(c) Employees. Employee hereby agrees that during Employee’s employment hereunder and for a period of six (6) months thereafter, Employee will not (i) directly or indirectly recruit, solicit or otherwise induce or influence any other employee of the Company to discontinue such employment relationship with the Company, or (ii) employ, seek to employ or cause any other business to employ or seek to employ as an employee or independent contractor any person who is then (or was at any time within
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six (6) months prior to the date Employee or such other business employs or seeks to employ such person) employed by the Company.
(d) Enforcement. If, at the time of enforcement of Sections 13 26 and 27 (Inventions and Trade Secrets), a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because Employee’s services are unique and because Employee has access to Information, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Agreement, 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).
(e) Additional Acknowledgements. Employee acknowledges that the provisions of this Section 13 are in consideration of: (i) employment with Company, (ii) the issuance of stock options and bonus plan units in the Company and (iii) additional good and valuable consideration as set forth in this Agreement. In addition, Employee agrees and acknowledges that the restriction contained in Sections 13 , 26 and 27 do not preclude Employee from earning a livelihood, nor do they unreasonably impose limitations on the Employee’s ability to earn a living. In addition, Employee acknowledges (A) that the business of the Company or any subsidiaries will be international in scope and without geographical limitation, (B) notwithstanding the state of incorporation or principal office of the Company or any subsidiaries, or any of their respective Employees or employees (including the Employee), it is expected that the Company will have business activities and have valuable business relationships within its industry throughout the world and (C) as part of his responsibilities, Employee will be traveling around the world in furtherance of the Company’s business and its relationships. In addition, Employee agrees and acknowledges that the potential harm to the Company of the non-enforcement of Sections 13 26 and 27 outweighs any potential harm to Employee of its enforcement by injunction or otherwise. Employee acknowledges that he has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement, and is in full accord as to their necessity for the reasonably and proper protection of the Confidential Information of the Company now existing or to be developed in the future. Employee expressly acknowledges and agrees that (i) each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area and (ii) nothing contained in Sections 13 26 and 27 hereof shall eliminate, reduce or otherwise impair any obligation Employee might have to any prior the Company or business relation of Employee.
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3. AMENDMENT TO SECTION 16, TERM/TERMINATION. Section 16 of the Prior Agreement is hereby amended and restated in its entirely as follows:
Notwithstanding any provision(s) in this Agreement to the contrary, Employee’s employment with the Company shall be on an “at will” basis, meaning that either party hereto may terminate the Employee’s employment with the Company at any time and for any reason; provided, that, the terminating party provides at least sixty (60) days advance written notice. Upon termination of Employee’s employment hereunder for any reason whatsoever, all obligations of the Company hereunder shall cease upon such termination, except (a) its obligation to pay the base salary set forth in Section 3 through the date of such termination prorated through the date of such termination, and (b) its obligations to provide the benefits set forth in Section 6 through the date of such termination and to comply with any and all state and federal laws and regulations applying to such benefits. In addition to the foregoing, in the event of a termination of Employee’s employment with the Company for any reason other than for cause (as defined below) or the resignation of Employee, in addition to the other obligations payable to Employee pursuant to the preceding sentence, Employee shall be entitled to receive as severance hereunder his base salary for an additional sixty (60) days from the date of termination. For purposes hereof, the term “cause” shall mean : (i) the Employee’s theft or falsification of any the Company’s documents or records; (ii) the Employee’s improper use or disclosure of the Company’s Information; (iii) any action by the Employee which has a detrimental effect on the Company’s reputation or business; (iv) the Employee’s failure or inability to perform any reasonable assigned duties after written notice from the Company of, and a reasonable opportunity to cure, such failure or inability; (v) any material breach by the Employee of any agreement between the Employee and the Company related to the Employee’s employment with the Company, which breach is not cured pursuant to the terms of such agreement; or (vi) the Employee’s conviction (including any plea of guilty or nolo contendere) of any felony or criminal act involving moral turpitude which impairs the Employee’s ability to perform his or her duties with the Company.
4. AMENDMENT TO SECTION 17, TERMINATION FOR DISABILITY. Section 17 of the Prior Agreement is herby deleted in its entirety and replaced with the words “Intentionally Omitted”.
5. INVENTIONS. The Prior Agreement is hereby amended to add the following Section 26:
Inventions. Employee shall treat as for the sole benefit of the Company and promptly disclose and assign to the Company, without additional compensation therefore, all ideas, discoveries, designs, copyright or trademark materials, inventions and improvements, patentable or not, which, while Employee is so retained under this Agreement are made, conceived or reduced to practice by Employee, alone or with others, during or after usual work hours, either on or off the job, and which are related to the products, processes, projects or the business interests of the Company or which involve the use of the time, material or facilities of the Company. During his employment, Employee shall keep the Company informed of the development of all such ideas, discoveries, designs, copyright or trademark materials, inventions and improvements
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made, conceived or reduced to practice by Employee, in whole or in part, alone or with others, which either result from any work Employee may do for or at the request of the Company, or are related to the Company’s present or contemplated activities, investigations or obligations. Employee agrees, at the expense of the Company, at any time during or within a reasonable time after the termination of this employment relationship, to sign all papers and do such other acts and things the Company deems necessary or desirable and may be reasonably required to protect the rights of the Company to such ideas, discoveries, designs, copyright or trademark materials, inventions and improvements. Consistent with Texas law and laws of other states, the Company hereby notifies Employee that this Agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates to (i) the business of the Company or (ii) the Company’s actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by Employee for the Company.
6. TRADE SECRETS. The Prior Agreement is hereby amended to add the following Section 27:
Trade Secrets. Employee agrees that Employee will not, during or after the term of this Agreement with the Company, disclose the specific terms of the Company’s relationships or agreements with significant vendors or customers or any other significant and material trade secret of the Company, to any person, firm, partnership, corporation or business for any reason or purpose whatsoever.
7. AMENDMENT. This Amendment may be modified or amended, if the amendment is made in writing and is signed by both parties.
8. APPLICABLE LAW. This Amendment shall be governed by the laws of the State of Texas.
9. INCORPORATION OF THE PRIOR AGREEMENT. All capitalized terms which are not defined hereunder shall have the same meanings as set forth in the Prior Agreement. To the extent any terms and provisions of the Prior Agreement are inconsistent with the amendments set forth herein, such terms and provisions shall be deemed superseded hereby. Except as specifically set forth herein, the Prior Agreement shall remain in full force and effect and its provisions shall be binding on the parties hereto.
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Company: |
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EpicEdge |
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By: |
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Xxxxxxx Xxxxxx, CEO |
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AGREED TO AND ACCEPTED. |
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Employee: |
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By: |
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Xxx XxXxxxx |
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