Exhibit 10.51




 




First Amendment to




EMPLOYMENT AGREEMENT




 




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 5508 Highway 290 West, Suite 300, Austin, Texas 78735 and SAM DIPAOLA  (the “Employee”), of 911 South Charles Street, #300, Baltimore,

Maryland 21230.




 




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:


  
	

   


  	

  EpicEdge


  
	

   


  	

   


  
	

   By:


  	

   


  	

   


  
	

   


  	

  Richard Carter, CEO


  
	

   


  	

   


  
	

  AGREED TO AND ACCEPTED.


  
	

   


  	

   


  
	

   


  	

  Employee:


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  
	

   


  	

  Sam DiPaola


  





 




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