OCR Document









Exhibit 10.46




EMPLOYMENT AGREEMENT




 




EMPLOYMENT

AGREEMENT, dated this 28th day of February, 2000, between Design Automation

Systems, Inc., a Texas company, currently having its principal place of

business at 3200 Wilcrest, Suite 370, Houston, Texas 77042 (the “Company”), and

Peter Davis (the “Executive”) an individual.




WHEREAS,

the Company desires to employ Executive and Executive desires to be employed by

the Company, as Executive Vice President of the Company.




WHEREAS,

the Executive is willing to enter into an agreement with the Company upon the

terms and conditions herein set forth.




NOW,

THEREFORE, in consideration of the premises and covenants herein contained, the

parties hereto agree as follows:




1.             Term of Agreement.  Subject to the terms and conditions hereof, the term of

employment of the Executive under this Employment Agreement shall be for the

period commencing on the date hereof (the “Commencement Date) and terminating

on February 28, 2003, unless sooner terminated as provided in accordance with

the provisions of Section 5 hereof. 

(Such term of employment is herein sometimes called the “Employment

Term.”)




2.             Employment. 

As of the Commencement Date, the Company hereby agrees to employ the

Executive as Executive Vice President of the Company, and the Executive hereby

accepts such employment and agrees to perform his duties and responsibilities

hereunder in accordance with the terms and conditions hereinafter set forth.




3.             Duties and Responsibilities.




(a)                                  Duties.  Executive shall perform such

duties as are usually performed by an Executive Vice President of a business

similar in size and scope as the Company and such other reasonable additional

duties as may be prescribed from time-to-time by the Company’s board of

directors which are reasonable and consistent with the Company’s operations,

taking into account Executive’s expertise and job responsibilities.  This agreement shall survive any job title

or responsibility change agreed to by Executive.  Executive shall report directly to the board of directors of the

Company regarding implementation of all business matters.  All actions of Executive shall be subject

and subordinate to the review and approval of the board of directors.  No other person or group shall be given

authority to supervise or direct Executive in the performance of his

duties.  The board of directors shall be

the final and exclusive arbiter of all policy decisions relative to the

Company’s business.




(b)                                 Devotion

of Time.  During the term

of this agreement, Executive agrees to devote sufficient time and attention

during normal business hours to the business and affairs of the company to the

extent necessary to discharge the responsibilities assigned to Executive and to

use reasonable best efforts to perform faithfully and efficiently such




 





























 




responsibilities.  During the term of this agreement it shall

not be a violation of this agreement for Executive to (i) serve on the boards

of corporations or charitable institutions (with the permission from the Company’s

board of directors); (ii) deliver lectures, fulfill speaking engagements

to teach at educational institutions; (iii) manage personal investments or

companies in which personal investments are made so long as such activities do

not significantly interfere with the performance of Executive’s

responsibilities with the Company and which companies are not in direct

competition with the Company.  Any

income received by Executive outside the scope of his employment and permitted

pursuant to the provisions hereof, shall inure to the benefit of Executive, and

the Company shall not claim any entitlement thereto.




4.             Compensation and Benefits During the Employment Term:




(a)                                  Base

Compensation.  The

Executive’s base compensation from the Commencement Date through February 28,

2003, shall be at the rate of $11,250 per month, payable in regular

semi-monthly installments in accordance with the Company’s practice for its

executives, less applicable withholding for income and employment taxes as

required by law and other deductions as to which the Executive shall

agree.  Such base compensation shall be

subject to increases as and when determined by the Company’s board of directors

in their sole discretion.




(b)                                 Bonus

Compensation.  In addition to

the Executive’s base compensation, Executive will be entitled to a performance

bonus as follows:




(i)                                     Executive will

be entitled to up to $67,500 ($16,875 quarterly) per year, provided the

Executive successfully implements and meets certain agreed upon management

bonus objectives, as determined by the Company’s board of directors.




(ii)                                  Subsequent

bonuses will be determined by the board of directors.




(c)                                  Expense

Reimbursement.  The

Executive shall be entitled to reimbursement of all reasonable, ordinary and

necessary business related expenses incurred by him in the course of his duties

and upon compliance with the Company’s procedures.




(d)                                 Participation

in Employee Benefit Plans. 

Executive shall be entitled to participate, subject to eligibility and

other terms generally established by the Company’s board of directors, in any

employee benefit plan [including but not limited to life insurance plans, stock

option plans, group hospitalization, health, dental care (which health

insurance shall also cover Executive’s dependents) profit sharing, pension and

other benefit plans], as may be adopted or amended by the Company from

time-to-time.




5.             Termination. 

Subject to the notice and other provisions of this Section 5, the

Company shall have the right to terminate the Executive’s employment with the

Company, and the Executive shall have the right to resign from such employment,

at any time and for no stated reason.




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(a)                                  Disability.  The Company shall have the right to

terminate the employment of the Executive under this Agreement for disability

in the event Executive suffers an injury, illness or incapacity of such

character as to substantially disable him from performing his duties without

reasonable accommodation by the Company hereunder for a period of more than

sixty (60) consecutive days provided that during such 60 day period the Company

shall have given at least ten (10) days written notice of termination; provided

further, however, that if the Executive is eligible to receive disability

payments pursuant to a disability policy paid for by the Company, the Executive

shall assign such benefits to the Company for all periods as to which he is

receiving full payment under this agreement.




(b)                                 Death.  This agreement shall terminate upon the

death of Executive.




(c)                                  With

Cause.  The Company may terminate

this agreement at any time because of::




(i)                                     Executive’s

material breach of any term of this agreement, which is not cured after ten

(10) days written notice from the board of directors.




(ii)                                  the willful

engaging by the Executive in misconduct which is materially injurious to the

Company, monetarily or otherwise; provided, in each case, however, that the

Company shall not terminate this Agreement pursuant to this Section 5(c) unless

the Company shall first have delivered to the Executive, a notice which

specifically identifies such breach or misconduct and the Executive shall not

have cured the same within fifteen (15) days after receipt of such notice,




(iii)                               Executive’s

gross negligence in the performance of his duties, or




(iv)                              commission by

the Executive of a felony or an act of fraud against the Company.




In

the event Executive’s employment with the Company is terminated pursuant to

items 5(a), (b) or (c), Executive or his beneficiary shall be entitled to

receive all base compensation earned by Executive up to the date of

termination, all unreimbursed expenses, and any bonus earned in respect of a

prior year and not yet paid.  For a

termination by the Company without good cause, Executive shall be entitled to

receive the greater of (i) the remaining base salary at the then base

salary rate for the remainder of the Employment Term or (ii) the base

salary rate for the period of six months, and all unreimbursed expenses, any

bonus earned in respect of a prior year and not yet paid, and the pro-rata

portion of any bonus for the current year.




6.             Revealing of

Trade Secrets, etc.  Executive

acknowledges the interest of the Company in maintaining the confidentiality of

information related to its business and shall not at any time during the

Employment Term or thereafter, directly or indirectly, reveal or cause to be

revealed to any person or entity the supplier lists, customer lists or other

confidential business information of the Company; provided, however, that the

parties acknowledge that it is not the intention of this paragraph to include

within its subject matter (a) information not proprietary to the Company,

(b) information which is then in the public domain, or

(c) information required to be disclosed by law.




 




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7.             Arbitration. 

If a dispute should arise regarding this agreement, all claims,

disputes, controversies, differences or other matters in question arising out

of this relationship shall be settled finally, completely and conclusively by

arbitration of a single arbitrator in Houston, Texas, in accordance with the

Commercial Arbitration Rules of the American Arbitration Association (the

“Rules”).  Arbitration shall be

initiated by written demand.  This

agreement to arbitrate shall be specifically enforceable only in the District

Court of Harris County, Texas.  A

decision of the arbitrator shall be final, conclusive and binding on the

Company and the Executive, and judgement may be entered in the District Court

of Harris County, Texas, for enforcement and other benefits.  On appointment, the arbitrator shall then

proceed to decide the arbitration subjects in accordance with the Rules.  Any arbitration held in accordance with this

paragraph shall be private and confidential and no person shall be entitled to

attend the hearings except the arbitrator, Executive, Executive’s attorneys,

and an designated representatives of the Company and their respective

attorneys.  The matters submitted for

arbitration, the hearings and proceedings and the arbitration award shall be

kept and maintained in strictest confidence by Executive and the Company and

shall not be discussed, disclosed or communicated to any persons.  On request of any party, the record of the

proceeding shall be sealed and may not be disclosed except insofar, and only

insofar, as may be necessary to enforce the award of the arbitrator and any

judgement enforcing an award.  The

prevailing party shall be entitled to recover reasonable and necessary

attorneys’ fees and costs from the non-prevailing party.




8.             Covenants Not to Compete.




(a)                                  Executive’s

Acknowledgement.  Executive

agrees and acknowledges that in order to assure the Company that it will retain

its value as a going concern, it is necessary that Executive undertake not to utilize

his special knowledge of the business and his relationships with customers and

suppliers to compete with the Company. 

Executive further acknowledges that:




(i)                                     the Company is

and will be engaged in the business;




(ii)                                  Executive will

occupy a position of trust and confidence with the Company prior to the date of

this agreement and, during such period and Executive’s employment under this

agreement, Executive has, and will become familiar with the Company’s trade

secrets and with other proprietary and confidential information concerning the

Company;




(iii)                               the agreements

and covenants contained in this Section 8 are essential to protect the Company

and the goodwill of the business; and




(iv)                              Executive’s

employment with the Company has special, unique and extraordinary value to the

Company and the Company would be irreparably damaged if Executive were to

provide services to any person or entity in violation of the provisions of this

agreement.




(b)                                 Competitive

Activities.  Executive

hereby agrees that for a period commencing on the date hereof and ending one

year following the later of (i) termination of Executive’s employment with

the Company for whatever reason, and (ii) the conclusion of the period,




 




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if

any, during which the Company is making payments to Executive, he will not,

directly or indirectly, as employee, agent, consultant, stockholder, director,

co-partner or in any other individual or representative capacity, own, operate,

manage, control, engage in, invest in or participate in any manner in, act as a

consultant or advisor to, render services for (alone or in association with any

person, firm, corporation or entity), or otherwise assist any person or entity

(other than the Company) that engages in or owns, invests in, operates, manages

or controls any venture or enterprise that directly or indirectly engages or

proposes in engage in the business of the distribution or sale of

(i) products distributed, sold or licensed by the Company or services provided

by the Company at the time of termination or (ii) products or services

proposed at the time of such termination to be distributed, sold, licensed or

provided by the Company within the united States {the “Territory”); provided,

however, that nothing contained herein shall be construed to prevent Executive

from investing in the stock of any competing corporation listed on a national

securities exchange or traded in the over-the-counter market, but only if

Executive is not involved in the business of said corporation and if Executive

and his associates (as such term is defined in Regulation 14(A) promulgated

under the Securities Exchange Act of 1934, as in effect on the date hereof),

collectively, do not own more than an aggregate of two percent of the stock of

such corporation.  With respect to the

Territory, Executive specifically acknowledges that the Company has conducted

the business throughout those areas comprising the Territory and the Company

intends to continue to expand the business throughout the Territory.




(c)                                  Blue Pencil.  If an arbitrator shall at any time deem the

terms of this agreement or any restrictive covenant too lengthy or the

Territory too extensive, the other provisions of this section 8 shall

nevertheless stand, the restrictive period shall be deemed to be the longest

period permissible by law under the circumstances and the Territory shall be

deemed to comprise the largest territory permissible by law under the

circumstances.  The arbitrator in each

case shall reduce the restricted period and/or the Territory to permissible

duration or size.




9.             Opportunities. 

During his employment with the Company, and for one year thereafter,

Executive shall not take any action which might divert from the Company any

opportunity learned about by him during his employment with the Company

(including without limitation during the Employment Term) which would be within

the scope of any of the businesses then engaged in or planned to be engaged in

by the Company.




10.           Survival. 

In the even that this Agreement shall be terminated, then

notwithstanding such termination, the obligations of Executive pursuant to

Sections 6,7,8 and 9 of this agreement shall survive such termination.




11.           Contents of

Agreement, Parties in Interest, Assignment, etc.  This Agreement sets forth the entire understanding of the parties

hereto with respect to the subject matter hereof:  All of the terms and provisions of this Agreement shall be

binding upon and inure to the benefit of and be enforceable by the respective

heirs, representatives, successors and assigns of the parties hereto, except

that the duties and responsibilities of Executive hereunder which are of a

personal nature shall neither be assigned nor transferred in whole or in part

by Executive.  This Agreement shall not

be amended except by a written instrument duly executed by the parties.




 




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12.           Severability. 

If any term or provision of this Agreement shall be held to be invalid

or unenforceable for any reason, such term or provision shall be ineffective to

the extent of such invalidity or unenforceability without invalidating the

remaining terms and provisions hereof, and this Agreement shall be construed as

if such invalid or unenforceable term or provision had not been contained

herein.




13.                                 Notices.  Any notice, request, instruction or other

document to be given hereunder by any party to the other patty shall be in

writing and shall be deemed to have been duly given when delivered personally

or five (5) days after dispatch by registered or certified mail, postage

prepaid, return receipt requested, to the party to whom the same is so given or

made:




If to the Company addressed to:




Design Automation Systems,

Inc.




3200 Wilcrest, Suite 370




Houston, Texas 77042




 




with a copy to:




Brewer & Pritchard, P.C.




1111 Bagby, Suite 2450




Houston, Texas 77002




 




If to Executive addressed to:




	

   


  
	

   


  
	

   


  





 




or

to such other address as the one party shall specify to the other party in

writing.




14.                                 Counterparts

and Headings.  This

agreement may be executed in one or more counterparts, each of which shall be

deemed an original and all which together shall constitute one and the same

instrument.  All headings are inserted

for convenience of reference only and shall not affect the meaning or

interpretation of this agreement.




 




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IN

WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly

executed and delivered as of the day and year first above written.




 




	

   


  	

  DESIGN

  AUTOMATION SYSTEMS, INC.


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Charles H. Leaver, Chief

  Executive Officer


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  EXECUTIVE


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Peter Davis


  	

   


  





 




 




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