Exhibit 10.48




 




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 15th day of

April, 2002, by and between EpicEdge, Inc. formerly known as Design

Automation Systems, Inc. a successor in interest to COAD Solutions, Inc. (the

“Company”), of 5508 Highway 290 West, Suite 300, Austin, Texas 78735 and RICHARD KYLE CARTER  (the “Employee”), of 6915 Gentle Oak,

Austin, Texas 78749.




 




WHEREAS, the Company and the Employee entered into

that certain Employment Agreement dated and effective as of June 1st,

1999 (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 and to restate and confirm that the Employee is covered by the

Company’s standard form of covenant not to compete.




 




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 2.  Section 2 of the Prior Agreement,

Compensation, is hereby amended to include the following paragraph (c).




 




(c)

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 21% of the Bonus Pool, subject to the terms and conditions 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 2 of the Prior

Agreement shall be further amended to add the following paragraph (d).




 




(d)

Additionally, the employee will receive a one-time stock option grant of

2,166,635 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 3, NON-COMPETITION AGREEMENT.  Section 3 of the Prior Agreement is hereby amended and restated

in its entirety as follows:




 




                                3.             Non-Compete;

No Interference with the Business of Company.




 




(a)                                  Non-Compete

Agreement.  Recognizing that the Company’s

Confidential Information (as defined below) 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 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 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 six (6) months prior to the date Employee or such

other business employs or seeks to employ such person) employed by the Company.




 




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(d)                                 Confidentiality. 

Employee acknowledges that as a result of his employment relationship

with the Company, he has and will become acquainted with Confidential

Information (as hereinafter defined) belonging to the Company.  During the term of Employee’s employment

hereunder and for a period of five (5) years

thereafter, Employee shall not, except as required by law, disclose to others

or appropriate for his own use, whether directly or indirectly, any such

Confidential Information.  “Confidential

Information” means information about the Company and its services and products

which is not available to the general public and was or shall be learned by

Employee in the course of his employment by the Company, including but not

limited to: information relating to the Company’s relations or contracts; the

organization, employment policies, compensation and fringe benefit plans and

personnel of the Company; any data, formulas, operating and training manuals,

business plans, information, proprietary knowledge, trade secrets, customer

lists, databases and analyses owned, developed and used in the course of the

business of the Company; and all papers, resumes, records and other documents

(and all copies thereof) containing such Confidential Information.  Employee acknowledges that the Confidential

Information is specialized, unique in nature and of great value to the Company.  For purposes of this Section 3, the term

“Company” shall include any affiliate, division or subsidiary of Company.  The provisions of this Section 3 shall

survive the termination of this Agreement for any reason whatsoever.




(e)                                  Enforcement. 

If, at the time of enforcement of Sections 3, 7 or 8, 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 Confidential

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).




(f)                                    Additional Acknowledgements. 

Employee acknowledges that the provisions of this Section 3 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 3, 7 and 8 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) 




 




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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 3, 7 and 8 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 3, 7 and 8 hereof

shall eliminate, reduce or otherwise impair any obligation Employee might have

to any prior the Company or business relation of Employee.




 




3. AMENDMENT TO SECTION 5, TERM; TERMINATION RIGHTS ON

TERMINATION.   Section 5 of the Prior Agreement is hereby amended and restated in

its entirely as follows; provided, however, the definition of “good cause,”

“Cause” or “with cause” set forth in Section 5(c) of the Prior Agreement is

hereby incorporated herein by reference as the meaning of the term “cause”:




 




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.  In

any event, upon the termination of Employee’s employment with the Company for

any reason, the Employee shall not be entitled to severance regardless of the

reasons for termination and all obligations of the Company hereunder shall

cease upon such termination, except (a) its obligation to pay Employee’s base

salary set forth in Section 2(a) prorated 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 2(b) through the date of such

termination and to comply with any and all state and federal laws and

regulations applying to such benefits.




 




4.             AMENDMENT.   This Amendment

may be modified or amended, if the amendment is made in writing and is signed

by both parties.




 




5.             APPLICABLE

LAW.   This Amendment

shall be governed by the laws of the State of Texas.




 




6.             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.  




 




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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.




 




 




 




[SIGNATURE

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  Company:


  
	

   


  	

  EpicEdge


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  
	

   


  	

  EpicEdge Board of

  Directors


  
	

   


  	

   


  
	

  AGREED TO AND ACCEPTED.


  
	

   


  	

   


  
	

   


  	

   Employee:


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  
	

   


  	

  Richard Kyle Carter


  





 




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