Exhibit 10.52




 




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. (the

“Company”), of 5508 Highway 290 West, Suite 300, Austin, Texas 78735 and PETER DAVIS  (the “Executive”), of 82 Iselin Terrace, Larchmont, New York

10538.




 




WHEREAS, the Company and the Executive entered into

that certain Employment Agreement dated and effective as of February 28th,

2000 (the “Prior

Agreement”), by and between the Company and the Executive; and




 




WHEREAS, the Company and Executive wish to amend the

Prior Agreement to modify the incentive bonus portion of Executive’s

compensation, to restate and confirm that the Executive 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 4.  Section 4 of the Prior Agreement, is

hereby amended to include the following paragraph as item 4(e).




 




(e) Subject to

approval by the Company’s Board of Directors and shareholders, the Executive

will be eligible to participate in a bonus pool (the “Bonus Pool”).  The Executive will be eligible for 8.75% 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 Executive’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 4 of the Prior Agreement shall be further

amended to add the following paragraph (f).




 




(f)

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

902,765 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 8, COVENANTS NOT TO COMPETE.  Section 8 of the Prior Agreement is hereby amended and restated

in its entirety and replaced with the following:




 




                                8.             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, Executive 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, Executive 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 Executive 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.  Executive

hereby agrees that during Executive’s employment hereunder and for a period of

six (6) months thereafter, Executive 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

Executive’s employment and for six (6) months thereafter, Executive 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 Executive’s employment, or any party whose

identity or potential as a customer or client was confidential or learned by

Executive during Executive’s employment with the Company.




(c)                                  Executives.  Executive

hereby agrees that during Executive’s employment hereunder and for a period of

six (6) months thereafter, Executive 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 




 




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an Executive 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.  Notwithstanding the foregoing, Company

acknowledges the prior relationship of Executive with Mark Slosberg and nothing

in the subsection (c) shall apply to the Executive with regard to any actions,

business endeavors, or employment relationships involving or related to Mark

Slosberg.




(d)                                 Confidentiality. 

Executive 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 Executive’s employment

hereunder and for a period of five (5) years

thereafter, Executive 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

Executive 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.  Executive acknowledges that the Confidential

Information is specialized, unique in nature and of great value to the

Company.  For purposes of this Section

8, the term “Company” shall include any affiliate, division or subsidiary of

Company.  The provisions of this Section

8 shall survive the termination of this Agreement for any reason whatsoever.




(e)                                  Enforcement. 

If, at the time of enforcement of Section 6 (Revealing of Trade

Secrets), Section 8 (Non-Compete) and Section 15 (Inventions), 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 Executive’s

services are unique and because Executive 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. 

Executive acknowledges that the provisions of this Section 8 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 




 




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consideration as set forth in this Agreement.  In addition, Executive agrees and acknowledges that the

restriction contained in Section 6 (Revealing of Trade Secrets), Section 8

(Non-Compete) and Section 15 (Inventions) do not preclude Executive from earning

a livelihood, nor do they unreasonably impose limitations on the Executive’s

ability to earn a living.  In addition,

Executive 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 Executives or Executives

(including the Executive), 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, Executive will be

traveling around the world in furtherance of the Company’s business and its

relationships.  In addition, Executive

agrees and acknowledges that the potential harm to the Company of the

non-enforcement of Section 6 (Revealing of Trade Secrets), Section 8

(Non-Compete) and Section 15 (Inventions) outweighs any potential harm to

Executive of its enforcement by injunction or otherwise.  Executive acknowledges that he has carefully

read this Agreement and has given careful consideration to the restraints

imposed upon Executive 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.  Executive 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 Section 6 (Revealing of Trade Secrets), Section 8 (Non-Compete)

and Section 15 (Inventions) hereof shall eliminate, reduce or otherwise impair

any obligation Executive might have to any prior the Company or business

relation of Executive.




3.  AMENDMENT TO

SECTION 5, 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, Executive’s employment with the

Company shall be on an “at will” basis, meaning that either party hereto may

terminate the Executive’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 Executive’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 4(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 4(d) 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

Executive’s employment with the Company for any reason other than for cause or

the resignation of Executive, in addition to the other obligations payable to 




 




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Executive pursuant to the preceding sentence,

Executive shall be entitled to receive as severance hereunder his base salary

for an additional sixty (60) days from the date of termination.




 




4.             INVENTIONS. 

The Prior Agreement is hereby amended to add the following Section 15:




 




Inventions. Executive 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 Executive is so retained under this Agreement are made, conceived or

reduced to practice by Executive, 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, Executive shall keep

the Company informed of the development of all such ideas, discoveries,

designs, copyright or trademark materials, inventions and improvements made,

conceived or reduced to practice by Executive, in whole or in part, alone or

with others, which either result from any work Executive may do for or at the

request of the Company, or are related to the Company’s present or contemplated

activities, investigations or obligations. 

Executive 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 Executive 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 Executive’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 Executive

for the Company.




 




 




5.             AMENDMENT.   This Amendment

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

by both parties.




 




6.             APPLICABLE

LAW.   This Amendment

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




 




7.             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.


  
	

   


  	

   


  
	

   


  	

  Executive:


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  
	

   


  	

  Peter Davis


  





 




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