1
EXHIBIT 10.33
AGREEMENT
August 20, 1999
Xx. Xxxxxx X. Xxxxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Dear Xxxxxx:
This letter sets forth the confidential agreement (the "AGREEMENT"),
with its general release and waiver of claims, we have reached concerning the
termination of your employment with Enterprise Profit Solutions Corporation (the
"COMPANY") and the consideration you will be entitled to receive from the
Company or any persons or entities controlling, controlled by, or under common
control with the Company ("AFFILIATES") in connection with such termination.
This Agreement and the consideration to you described herein are contingent upon
your execution and delivery to the Company of this Agreement and your compliance
with its terms.
1. EMPLOYMENT STATUS. The effective date of the termination of your
employment with the Company is August 20, 1999 (the "TERMINATION DATE"). You
acknowledge that (i) you have received all compensation, including without
limitation salary, bonuses and contributions to plans, due to you for your work
through the Termination Date, and (ii) you have used all personal time off,
which includes vacation, that accrued through the Termination Date and you are
therefore not entitled to any payment in respect of vacation or other personal
time off. Simultaneously with your execution of this Agreement, you will submit
a formal letter of resignation in the form of Exhibit A hereto confirming your
resignation as of the Termination Date, upon receipt of which you will be deemed
to have resigned effective as of the Termination Date.
2. PAYMENTS. In consideration of this Agreement and subject to its terms
and conditions, you will be entitled to receive payment of a total of $500,000
gross in cash (the "CASH PAYMENT"). The Cash Payment will be made in 26
installments of $19,230.77 (before applicable withholding); the first such
installment will be paid on September 3, 1999, and subsequent installments will
be made by the Company every other Friday thereafter until a total of $500,000
in gross has been paid. However, notwithstanding the foregoing, if a Capital
Event occurs before the entire Cash Payment has been paid, all unpaid portions
of the Cash Payment will be paid no later than ten days after the Capital Event.
For these purposes,
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a "CAPITAL EVENT" means (i) the receipt by EPS or the Company of $50 million or
more in gross proceeds from the sale of equity of the Company or EPS in a single
transaction or series of related transactions, or (ii) a sale of all or
substantially all of the assets or equity of the Company or EPS. The Company
will notify you promptly in case of any Capital Event.
3 . SHARES.
(a) As of January 1, 1999, you purchased 60,000 shares of Series B
Common Stock (the "SUBSCRIPTION SHARES") from EPS Solutions Corporation ("EPS")
pursuant to a Subscription Agreement (the "SUBSCRIPTION AGREEMENT"), and 240,000
shares of Series B Common Stock (the "RESTRICTED SHARES") from EPS pursuant to a
Restricted Stock Purchase Agreement (the "RESTRICTED STOCK PURCHASE AGREEMENT").
In addition, as of January 1, 1999, you purchased 200,000 shares of Series B
Common Stock of EPS from IM Comet LLC pursuant to a promissory note made payable
by you to IM Comet LLC and a related stock power by IM Comet LLC (the
"ADDITIONAL SHARES"). Your Employment Agreement with the Company also provided
that you were entitled to purchase an additional 500,000 shares of restricted
stock of EPS that would vest upon achievement of certain performance milestones
(the "PERFORMANCE SHARES"). In connection with termination of your employment
with the Company, subject to the terms and conditions of this Agreement, (i) EPS
hereby accelerates vesting of all of the Restricted Shares, such that the
Restricted Shares become free of the restrictions limiting transfer set forth in
Section 4.1(a) of the Restricted Stock Purchase Agreement (but not free of
restrictions described in Section 4.2 of the Restricted Stock Purchase
Agreement); and (ii) you hereby surrender all rights, title and interest, if
any, to any Performance Shares, and any other equity in the Company or EPS or
any of their Affiliates other than the Subscription Shares, the Restricted
Shares and the Additional Shares. As a result, with respect to any shares
identified above, you will own only 500,000 shares of Series B Common Stock of
EPS, consisting of the Subscription Shares, the Restricted Shares, and the
Additional Shares (collectively, the "VESTED SHARES") and you specifically waive
and relinquish any right or claim you have, or believe you have, to any other
securities of or other equity rights in the Company or EPS or any of their
Affiliates, or IM Comet LLC.
(b) Except as specifically set forth in this Agreement and
notwithstanding the release in Section 10, you, the Company and EPS will
continue to have the rights and be subject to the obligations associated with
the Vested Shares as specifically set forth in the agreements pursuant to which
you purchased those shares, as well as the Stockholder Agreement and Voting
Agreement you entered into in connection therewith. Without limiting the
foregoing, EPS acknowledges that you will continue to have the rights set forth
in paragraph (b)(ii) of Schedule 4 to the Restricted Stock Purchase Agreement,
without regard to the time period of such rights, and that these rights apply to
all Subscription Shares and Restricted Shares.
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(c) The Promissory Note dated January 1, 1999, made by you to EPS in
connection with your purchase of the Subscription Shares and the Restricted
Shares (the "EPS NOTE") is hereby amended by the addition to Section 1.1 of the
EPS Note, after the final sentence thereof, of the following:
"Notwithstanding the foregoing, however, Maker may, in his discretion,
elect to defer the payment of any interest that accrues under this Note until
the principal amount hereof upon which such interest accrues is paid, provided
that any payment by Maker hereunder will be applied in such a manner as to pay
all unpaid interest accrued on any principal repaid by such payment."
4. ADDITIONAL DOCUMENTS AND COVENANTS.
(a) Concurrently with your execution and delivery of this Agreement:
(i) Each of the Company and EPS will enter into an Indemnification
Agreement with you in the form of Exhibit B hereto (the "INDEMNIFICATION
AGREEMENTS");
(ii) You and IM Comet LLC will enter into an Agreement in the form
of Exhibit C hereto to amend the Promissory Note dated January 1, 1999 made by
you to IM Comet LLC in connection with your purchase of the Additional Shares
and to terminate your option to acquire up to 250,000 shares of Common Stock of
EPS from IM Comet LLC; and
(iii) EPS will deliver to you a certificate or certificates
representing the Vested Shares.
(b) Subject to Section 4(d), you may be employed in any capacity by or
serve as an attorney or advisor to or director or officer of any person or
entity, and any provisions of any agreement between you and the Company or EPS
to the contrary are hereby canceled.
(c) Subject to Section 4(d) and your obligations under Section 7(c), you
may participate in any manner with any person, entity or group that enters into
any transaction with the Company, EPS, or any of their Affiliates, including
without limitation the purchase of any business or assets or the investment of
any capital.
(d) Without prior written approval from the CEO or COO or Board of
Directors of EPS, you may not communicate directly with any employee, lender,
investment banker, or stockholder, or any person or entity known by you to be a
client or vendor, of the Company, EPS, or any of their Affiliates about any
material matters related directly to the Company, EPS, or any of their
Affiliates. You must disclose in writing to the Board of Directors of EPS all
transactions of the kind contemplated by Section 4(c), and the general nature of
your
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participation therein, before commencement of your participation therein, and
you must keep the Board of Directors of EPS reasonably informed regarding such
matters during their pendency.
(e) Within a reasonable period of time after the close of each of the
first three fiscal quarters and each fiscal year of EPS, EPS shall provide to
you consolidated financial and other corporate information in substance and a
manner substantially similar to a report on Form 10-Q (for quarterly
information) or 10-K (for annual information) under the Securities Exchange Act
of 1934, as amended, provided that EPS may cease providing such information
specifically to you when such information becomes generally available to the
public.
5. OTHER PERQUISITES AND BENEFITS. The Company will (i) make COBRA
health and disability benefits available to you, your wife and daughter as
required by applicable law, and will pay the cost of COBRA premiums for you,
your wife and daughter until the earlier of December 31, 1999 or the date you
become eligible for medical benefits from another employer; (ii) forward to you
any mail and messages directed to you and received by the Company within six
months after the Termination Date; and (iii) transport your personal effects to
your residence or other local place requested by you at Company expense within a
reasonable period of time. All other employee benefits and perquisites terminate
as of the Termination Date.
6. WITHHOLDING AND TAXES. All consideration provided by the Company
hereunder shall be subject to any and all applicable withholdings, including any
withholdings for any related federal, state or local taxes. The Company makes no
representations to you regarding the tax consequences to you of this Agreement,
or the tax consequences of your ownership of or rights associated with the
Vested Shares or the Cash Payment, and you shall be responsible for, and hold
the Company, EPS and their Affiliates harmless from, any and all income taxes
and other taxes incurred by you as a result of the consideration provided to you
pursuant to this Agreement (whatever its nature or kind), your ownership of or
rights associated with the Vested Shares, and the Cash Payment.
7. COMPANY PROPERTY AND INFORMATION.
(a) Your privileges under all Company credit cards are terminated, and
you represent that you have returned all such credit cards. Upon execution of
this Agreement, you will return to the Company all property of the Company
including without limitation keys, parking card, documents, books, records,
reports, contracts, lists, computer disks (or other computer-generated files or
data), or copies thereof, created on any medium, prepared or obtained by you or
the Company in the course of or incident to your employment with the Company.
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(b) Any information stored in your computer may be saved or discarded by
the Company as it deems appropriate at any time after August 20, 1999.
(c) Except as specifically provided otherwise by this Agreement, you
will comply with the Confidential Information and Employee Invention Agreement
you entered into as of January 1, 1999 in connection with your employment with
the Company, as well as the Subscription Agreement and the Restricted Stock
Purchase Agreement, and the Stockholder Agreement and Voting Agreement you
entered into in connection with your ownership of EPS shares.
8. CONFIDENTIALITY; NON-DISPARAGEMENT.
(a) You and the Company will keep the terms of this Agreement strictly
confidential and not disclose its terms to anyone other than advisors who need
to know its contents to discharge their duties to you or the Company, as the
case may be.
(b) You will not make to any third party any disparaging or otherwise
negative comments of any kind about any Company Released Parties (as defined
below), and the Company will not make to any third party any disparaging or
otherwise negative comments of any kind about you. In all communications with
third parties, you and the Company will explain the termination of your
employment as a mutually agreed upon "no-fault" separation. You will not
communicate with any third parties in any manner inconsistent with the foregoing
and the Company will cause the Company Released Parties (as defined below) not
to communicate with any third parties in any manner inconsistent with the
foregoing.
(c) All requests for references by future employers shall be directed to
Xxxxxxxxxxx Xxxxxx, and all references given by Xxxxxx relating to your
performance at the Company provided to future employers will be favorable.
9. CLARIFICATION OF ROLE. The Company and EPS acknowledge that (i) you
were not a member of the board of directors of the Company or EPS at any time;
(ii) after abolition of the so-called "Office of the Chairman," you have not
functioned substantively as a controlling person or as part of a control group
of the Company or EPS; (iii) it was not part of your duties or role with the
Company or EPS to communicate or work with the Company's lenders or to prepare
or review the financial statements of the Company or EPS.
10. RELEASE.
(a) As of the date you enter into this Agreement, you, on behalf of
yourself and your successors and assigns, hereby forever release, discharge and
acquit the Company, its Affiliates (including without limitation EPS), IM Comet
LLC, Xxxxxxxxxxx Xxxxxx, Xxxx
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Xxxxx, Xxxxx Xxxxxxx, and their respective members, partners, principals,
shareholders, directors, officers, agents, outside counsel, employees, and
representatives, and the successors and assigns of each of them ("RELEASED
COMPANY PARTIES"), and the Company and EPS, on behalf of themselves and their
successors and assigns, hereby forever release, discharge and acquit you, your
agents, counsel, and representatives, and the successors and assignees of you
and each of them ("RELEASED EMPLOYEE PARTIES") from any and all charges,
complaints, claims, demands, obligations, promises, agreements, damages,
actions, causes of action, suits, rights, costs, losses, debts, expenses
(including attorneys' fees and costs), liabilities, and indebtedness, of every
type, kind, nature, description or character, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated arising from, under or
related to (A) your employment or retention with the Company or its Affiliates;
(B) the termination of that employment or retention; (C) the Performance Shares
or any other securities of the Company or EPS or any of their Affiliates other
than the Vested Shares; (D) your status as a stockholder of EPS, or any claims
arising or accruing as a result of that status, on or before the date you enter
into this Agreement; and (E) any other event, act or omission arising on or
before the date you enter into this Agreement (the "RELEASED MATTERS"). Without
limiting the foregoing, the Released Matters include any claim of fraud in the
inducement, defamation, or emotional distress. You, the Company, and EPS each
specifically agree not to claim, and have waived any right to claim, to have
been under duress in connection with the review, negotiation, execution and
delivery of this Agreement. Without limiting the foregoing, the Released Matters
also include your option to acquire up to 250,000 shares of EPS Common Stock
from IM Comet LLC. However, notwithstanding the foregoing, the Released Matters
shall not include any claims by you or the Company or EPS for any of the
following: (i) rights under this Agreement; (ii) rights, if any, under the
Company's 401(k) plan; (iii) rights under the Indemnification Agreements and
indemnification provisions of the certificate of incorporation and bylaws of the
Company and EPS; or (iv) your status as a stockholder of EPS, or any claims
arising or accruing as a result of that status, after the date you enter into
this Agreement.
(b) You acknowledge and agree that your releases made herein constitute
final and complete releases of the Released Company Parties with respect to all
Released Matters, and that by signing this Agreement, you are forever giving up
the right to xxx or attempt to recover money, damages or any other relief from
the Released Company Parties for all claims you have or may have with respect to
the Released Matters (even if any such claim is unforeseen as of the date
hereof). The Company and EPS each acknowledges and agree that its releases made
herein constitute final and complete releases of the Released Employee Parties
with respect to all Released Matters, and that by signing this Agreement, it is
forever giving up the right to xxx or attempt to recover money, damages or any
other relief from the Released Employee Parties for all claims it has or may
have with respect to the Released Matters (even if any such claim is unforeseen
as of the date hereof).
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(c) You, the Company, and EPS understand California Civil Code Section
1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You, the Company and EPS, being aware of Section 1542, hereby expressly waive
any and all rights that may exist thereunder as well as under any other statute
or common law principles of similar effect under the laws of any state or the
United States. This Agreement shall act as a release of all future claims that
may arise from the Released Matters, whether such claims are currently known or
unknown, foreseen or unforeseen including, without limitation, any claims for
damages incurred at any time after the date of this Agreement resulting from the
acts or omissions which occurred on or before the date of this Agreement.
Thus, notwithstanding the provisions of Section 1542, and for the
purpose of implementing a full and complete release and discharge of the
Released Company Parties by you and the Released Employee Parties by the Company
and EPS from all Released Matters, you, the Company and EPS expressly
acknowledge that this Agreement is intended to include in its effect, without
limitation, all Released Matters which not known or suspected to exist in favor
of the releasing party at the time of execution hereof, and that this Agreement
contemplates the extinguishment of all such Released Matters. All Released
Company Parties and Released Employee Parties are third party beneficiaries of
this Agreement.
The foregoing release includes any and all claims, rights and/or
remedies arising under the Age Discrimination in Employment Act and the Older
Workers Benefit Protection Act. You acknowledge that you and your attorneys
specifically waived any right you may have under law to consider this Agreement
before entering into it or to revoke it after you enter into it.
(d) (i) If the Company or EPS breaches this Agreement in any material
respect, and fails to cure that breach (and, in the case of a breach of the
Company's obligation to pay installments of the Cash Payment, payments not made
by the Company are not made by any third party) within 15 days of receipt of
notice from you demanding cure, then the release and covenants given by you
under this Section 10 will be void and any statute of limitations that would
apply to claims you might have that were Released Matters will be deemed to have
been tolled from the date you enter into this Agreement until the end of the
15-day notice
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period described in this sentence. If the Company's breach is failure to pay any
installment of the Cash Payment, then any portions of the Cash Payment paid to
you and not repaid to the Company will be a credit against any recovery you make
against any Released Party in connection with any Released Matter that becomes
actionable as a result of the voiding of the release and covenants given by you
under this Section 10.
(ii) If you breach this Agreement in any material respect, and
fail to cure that breach within 15 days of receipt of notice from the Company or
EPS demanding cure, then the release and covenants given by the Company and EPS
under this Section 10 will be void and any statute of limitations that would
apply to claims the Company or EPS might have that were Released Matters will be
deemed to have been tolled from the date you enter into this Agreement until the
end of the 15-day notice period described in this sentence.
11. NO CLAIMS. You represent and warrant that you have not instituted
any complaints, charges, lawsuits or other proceedings against any Company
Released Parties with any governmental agency, court, arbitration agency or
tribunal. You further agree that you will not, directly or indirectly, (i) file,
bring, cause to be brought, join or participate in, or provide any assistance in
connection with any complaint, charge, lawsuit or other proceeding or action
against any Company Released Parties at any time hereafter for any Released
Matters, (ii) assist, encourage, or support employees or former employees or
stockholders or former stockholders of the Company, EPS or any of their
Affiliates in connection with any lawsuit, charge, claim or action they may
initiate, unless compelled to testify by appropriate civil processes, or (iii)
defend any action, proceeding or suit in whole or in part on the grounds that
any or all of the terms or provisions of this Agreement are illegal, invalid,
not binding, unenforceable or against public policy. If any agency or court
assumes jurisdiction of any complaint, charge, or lawsuit against the Company or
any Company Related Party, on your behalf, you will immediately notify such
agency or court, in writing, of the existence of this Agreement, including
providing a copy of it and to request, in writing, that such agency or court
dismiss the matter with prejudice.
12. ADVICE OF COUNSEL. You represent and agree that you have discussed
this Agreement with your private attorney, that you have participated fully in
the drafting of this Agreement, that you have carefully read and fully
understand all the provisions of this Agreement, that you understand its final
and binding effect, that you are competent to sign this Agreement, and that you
are voluntarily entering into this Agreement because you believe it to be in
your best interests.
13. ACKNOWLEDGMENT. You represent and agree that in executing this
Agreement you rely solely upon your own judgment, belief and knowledge, and the
advice and recommendations of your independently selected counsel, concerning
the nature, extent and
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duration of your rights and claims. You acknowledge that no other individual has
made any promise, representation or warranty, express or implied, not contained
in this Agreement, to induce you to execute this Agreement. You further
acknowledge that you are not executing this Agreement in reliance on any
promise, representation, or warranty not contained in this Agreement and that
all previous discussions are now merged into this Agreement.
14. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company and its
Affiliates and shall inure to the benefit of and be binding upon your heirs,
executors, administrators, successors and assigns.
15. SETTLEMENT OF DISPUTES.
(a) Any controversy or dispute between the parties to this Agreement
involving the construction, interpretation, application or performance of the
terms, covenants or conditions of this Agreement or in any way arising under
this Agreement shall, on demand of any of the parties by written notice hereto
served on the others in the manner prescribed in Section 19 hereof, be
determined pursuant to the general reference provisions of California Code of
Civil Procedure ("CCP") Section 638(1), et seq., by a retired or former judge of
the Superior Court for the County of Orange, State of California. The parties
intend this general reference provision to be specifically enforceable in
accordance with said Section 638(1).
(b) The reference may be commenced by any party hereto by the filing in
the Superior Court of the State of California for the County of Orange of a
petition or a motion for a general reference. The petition and any opposition or
response thereto shall recite in a clear and meaningful manner the factual basis
of the controversy between the parties and identify the issues to be submitted
to the referee for decision.
(c) The petition or motion shall designate as a sole referee a retired
judge from the Orange County, California, Judicial Arbitration & Mediation
Services ("JAMS") panel acceptable to that party. If the parties to the
reference proceeding are unable to agree upon a referee, the Presiding Judge or
any judge of the Orange County Superior Court to whom the matter is assigned
shall appoint a retired or former Orange County Superior Court Judge from the
JAMS panel as the referee.
(d) The parties acknowledge that the terms of this Section 15 are
specifically enforceable and that the decision by the referee is tantamount to a
judgment by a trial court (CCP Section 644) and is subject to review in
accordance with CCP Section 645, and that any judgment rendered in the trial
court is appealable in the same manner as any other trial court judgment.
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(e) This Section 15 applies to controversies or disputes under this
Agreement, including without limitation the applicability and continuing
validity of the release and covenants in Section 10, but this Section 15 does
not apply to claims that may be brought in respect of Released Matters if the
release and covenants under Section 10 are voided pursuant to Section 10(d).
16. SEVERABILITY. If any provision of this Agreement is found, held,
declared, determined, or deemed by any court of competent jurisdiction to be
void, illegal, invalid or unenforceable under any applicable statute or
controlling law, the legality, validity, and enforceability of the remaining
provisions will not be affected and the illegal, invalid, or unenforceable
provision will be deemed not to be a part of the Agreement unless without such
provision, the purposes and intent of the Agreement cannot fairly be carried
out.
17. GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with California law.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto regarding the matters set forth herein
and replaces all prior agreements, arrangements and understandings, written or
oral regarding the matters set forth herein. Neither you nor the Company shall
be bound or liable for any representation, promise or inducement not contained
in this Agreement. This Agreement cannot be amended, modified, supplemented, or
altered, except by written amendment or supplement signed by you and the Company
and EPS.
19. NOTICE. Each party to this Agreement is required to give written
notice to the others of any alleged breach of this Agreement and a reasonable
prompt opportunity to review and discuss the matter at a meeting that includes
members of the Company's board of directors. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be
deemed given upon personal delivery or three (3) days after being mailed by
certified or registered mail, postage prepaid, return receipt requested, or one
(1) business day after being sent via a nationally recognized overnight courier
service if overnight courier service is requested from such service or upon
receipt of electronic or other confirmation of transmission if sent via
facsimile to the parties, their successors in interest or their assignees.
Notices to the Company or any other Company Released Parties will be sent to the
Company's headquarters, attention General Counsel, and notices to you will be
sent to your address on the first page of this Agreement, or in either case to
such other addresses as the parties may designate by written notice in
accordance with this Section.
20. SPECIFIC ENFORCEMENT. You, the Company and EPS acknowledge that
irreparable damage would occur if any of the obligations hereunder other than
the payment of
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money were not performed in accordance with their specific terms. If any
provision of this Agreement is breached the aggrieved party will be entitled to
institute and prosecute proceedings to enforce specific performance or to enjoin
the continuing breach of such provision. By seeking or obtaining any such
relief, the aggrieved party will not be precluded from seeking or obtaining
other relief to which it may be entitled.
21. ATTORNEYS' FEES. In case of any dispute hereunder, the prevailing
party or parties shall be entitled to recover from the non-prevailing party or
parties the reasonable fees and costs of counsel to the prevailing party.
Please sign below and return this letter to me to indicate your
agreement to these terms.
Sincerely,
Enterprise Profit Solutions Corporation
EPS Solutions Corporation
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
I have carefully read this Agreement and I agree to its terms.
/s/ XXXXXX X. XXXXXXXXX August 20, 1999
--------------------------- -------------------
Xxxxxx X. Xxxxxxxxx Date
12
EXHIBIT A
Xxxxxxxxxxx X. Xxxxxx
Chief Executive Officer and Chairman of the Board
EPS Solutions Corporation
Enterprise Profit Solutions Corporation
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Xxxxx:
I hereby resign my employment and all officer positions with Enterprise
Profit Solutions Corporation, EPS Solutions Corporation, and their affiliates as
of August 20, 1999.
Sincerely,
Xxxxxx X. Xxxxxxxxx
