EXHIBIT 10.5
[LETTERHEAD OF IMPERIAL BANK]
November 15, 1999
Mr. Lee E. Mikles
c/o Mikles/Miller Management
1801 Century Park East, Suite 460
Los Angeles, California 90067
RE: Official Payments Corporation, formerly U.S. Audiotex Corporation
("OPAY") Consulting Services
Dear Lee:
This letter ("Agreement") sets forth the understanding and agreement
between you and Imperial Bank ("Bank") concerning your services as a consultant
in connection with the Bank's pursuit of a public offering for OPAY. As you are
a director of Bank and Imperial Bancorp, this Agreement was approved by the
Bank Board of Directors, without your participation, at the October 28, 1999,
meeting.
In consideration of your efforts to encourage Thomas R. Evans to accept the
position of Chairman/CEO of OPAY without the use of an executive search firm, as
well as your activities in pursuing OPAY becoming a public company, you will
receive a one time payment of $2,500,000, payable within five (5) business days
following the successful consummation and settlement of the initial public
offering of OPAY within three years of the date hereof ("IPO").
In addition, in connection with your activities with the investment bankers
and the pursuit of the IPO, you will receive an incentive fee of 6.5% of the
first $500 million realized pretax gains received by the Bank following an IPO
and 7.5% of any such gains in excess of $500 million when, as and if realized by
the Bank from the Bank's disposition of OPAY stock (sales of securities by OPAY
are not subject to any incentive fee), the gain to be calculated based on the
proceeds to the Bank from a disposition and the Bank's GAAP basis in the OPAY
stock immediately following the IPO.
In the event the Bank distributes the stock of OPAY to its parent or an
affiliate and the recipient of the stock agrees to assume the Bank's fee
obligations under this Agreement, no compensation shall be due you from this
Agreement as a result of such transfer as long as the Bank remains secondarily
liable for such payments. After the
Lee Mikles
November 15, 1999
Page 2 of 4
IPO, any other distribution of OPAY stock by the Bank or its successor (a
"nonaffiliate distribution") shall be considered a sale based on a price equal
to the arithmetic average of the closing prices reported for the stock during
the 30 calendar days preceding the date of the distribution.
In the event of a change of control of the Bank or Imperial Bancorp after
the IPO, you shall have the right to elect at that time to receive the incentive
fee calculated in the same manner as upon a nonaffiliate distribution described
in the preceding paragraph, with the date of distribution for purposes of the
calculation being the effective date of the change of control. For purposes of
this paragraph, a change of control shall mean a change of control as defined in
the Bank Change of Control Act, 12 U.S.C. Section 1817(j) or (ii) a change, at
one time, of a majority of the Board of Directors of Bank or Imperial Bancorp.
This Agreement supercedes all prior negotiations and discussions concerning
compensation to you regarding OPAY. No amendment or waiver of any provisions of
this Agreement nor consent to any departure by either party therefrom shall, in
any event, be effective unless the same shall be in writing and signed by an
authorized representative of the other party, and any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it is given. All rights and remedies of you and the Bank hereunder
shall, except as otherwise specifically provided herein, be cumulative and
nonexclusive of any right or remedy which either may have under any other
agreement or instrument by operation of law or otherwise. This Agreement shall
become effective when it is executed by both parties and shall thereafter be
binding upon and inure to the benefit of the parties and their respective
successors and assigns. You shall not have the right to assign your rights,
obligations or interests hereunder without the prior written consent of the
Bank, which shall not be unreasonably withheld. This Agreement shall be governed
by and construed in accordance with the laws of the State of California
applicable to contracts made and performed in California without reference to
principles of conflicts of laws.
You, on your own behalf, your heirs, executors, successors and assigns
("Releasor") hereby irrevocably and unconditionally release, acquit and forever
discharge Bank and its owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives, attorneys, divisions,
subsidiaries, affiliates (and agents, directors, officers, employees,
representatives and attorneys of such parent companies, divisions, subsidiaries
and affiliates), and all persons acting by, through, under or in concert with
any of them, or any of them ("Releasee"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights,
Lee Mikles
November 15, 1999
Page 3 of 4
demands, costs, losses, debts and expenses (including attorneys' fees and costs
actually incurred) of any nature whatsoever, known or unknown, suspected or
unsuspected, including, but not limited to, rights under federal, state or local
laws which Releasor now has, owns or holds, or claims to have, own or hold, or
which Releasor at any time heretofore had, owned or held, or claimed to have,
own or hold, or which Releasor any time hereinafter may have, own or hold, or
claim to have, own or hold against Releasee arising out of or in connection with
OPAY except for Bank's subsequent performance of its obligations under this
Agreement.
Notwithstanding the above, the foregoing release shall not be construed to
apply to, limit or supercede any right you have to defense or indemnity from of
the Bank, Imperial Bancorp or OPAY arising from or related to the performance of
your activities as a consultant concerning OPAY or your duties as a director of
Bank, Imperial Bancorp, or OPAY.
This Agreement is intended as a full settlement and compromise of all
claims in connection with Releasor's involvement with OPAY. No claims are
reserved and Releasor expressly waives any and all rights which it may have
under the provisions of Section 1542 of the Civil Code of the State of
California, which provides:
"Certain claims not affected by general release. A general
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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."
In the event of any dispute arising out of or in connection with this
Agreement, the prevailing party, in addition to any other amounts which they may
be entitled to, shall be entitled to recover from the other party reasonable
attorneys' fees and administrative costs as shall be awarded in the resolution
of such dispute. Any such dispute shall be submitted to an arbitration under the
rules of JAMS/Endispute then applicable to arbitrations in Los Angeles County,
California, where any such arbitration shall take place. The parties shall
submit any such dispute to arbitration twenty days after notice from one party
to the other of the existence of the dispute, which if not resolved in said
twenty day period, shall thereafter be submitted to arbitration under said
rules. The arbitration shall be subject to Rules of Law and Evidence and the
single arbiter shall be required to provide a written Memorandum of Decision.
Lee Mikles
November 15, 1999
Page 4 of 4
Please acknowledge your acceptance and agreement of this letter by signing
and returning the enclosed copy.
Very truly yours,
/s/ Norman P. Creighton
Norman P. Creighton
Vice Chairman & CEO
/s/ Richard M. Baker
Richard M. Baker
Senior Vice President
and General Counsel
Accepted and agreed to on December 10/th/, 1999.
/s/ Lee E. Mikles
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Lee E. Mikles