Exhibit 10.49




 




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. 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 ROBERT

BRIAN COHAN  (the

“Employee”), of 7121 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, 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 2.  Section 2 of the Prior Agreement  is hereby amended to include the following

paragraph (d).




 




(d)           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 20.417% 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 2 of the Prior Agreement shall be further

amended to add the following paragraph (e).




 




(e)           Additionally, the employee will

receive a one-time stock option grant of 2,106,451  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 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 six (6) months 




 




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prior to the date Employee or such other business employs or seeks to

employ such person) employed by the Company.




(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 




 




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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 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.  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 2(a) 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(c) 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 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.




 




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.




 




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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.  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:


  	

   


  	

   


  
	

   


  	

  Robert Brian Cohan


  





 




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