EXHIBIT 99.5
April 11, 2001
Mr. James "Doug" Butcher
Chief Executive Officer
Entertainment Technologies and Programs, Inc.
16055 Space Center Boulevard, Suite 230
Houston, Texas 77062
Re: Representation of ETP, Inc. in dispute with Bell Atlantic
Dear Doug:
This letter sets forth the terms and conditions for my firm to
undertake the representation of ETP, Inc. in the
above-referenced matter. If the terms are acceptable, please execute and return
a copy of this letter to me.
1. Scope of Representation:
-----------------------
We agree to represent ETP, Inc. ("Client") in its dispute with Bell
Atlantic. We are not your general counsel and our scope
of representation is limited to the matter described herein. Client
understands that litigation is not an exact science. The
outcome of litigation is not capable of exact prediction. We do not predict or
guarantee any particular outcome.
2. Compensation:
------------
Clients have agreed to compensate us on the following terms.
We will send invoices to you monthly for our fees and expenses.
The invoices are due upon presentation. All amounts
invoiced, unpaid thirty days after the invoice date, shall bear interest
at the rate of 10% per annum, compounded annually. We
reserve the right to postpone or defer providing additional services or to
discontinue our representation if billed amounts are not
paid when due. Our fees will be billed based upon an hourly rate of $155.00
per hour for services rendered by Kirk Evans and $225
per hour for Mark Harwell.
Expenses for which we will seek reimbursement include such
items as photocopying, messenger and delivery service,
computerized research, travel (including mileage, parking, airfare,
lodging, meals, and ground transportation), long-distance
telephone, and court costs and filing fees. Unless special arrangements
are made at the outset, fees and expenses of other
professionals retained in connection with any matter, such as expert
witness fees, will not be paid by us and will be the
responsibility of, and billed directly to, Client. Such professionals will not
be retained without Client's knowledge and consent.
You are required to pay us a $10,000 retainer. We have agreed that
this retainer can be paid in common stock of ETP, Inc.
In the event that we are unable to sell these securities within 45 days of
their transfer to us or a resolution authorizing their
issuance (which ever comes sooner) and realize at least $10,000 after
costs and commissions, ETP, Inc. agrees to make-up the
shortfall within 7 days, either through the transfer of additional freely
tradable securities or in cash. Our acceptance of stock as
the initial retainer in no way excuses Client from the prompt payment of all
fees and expenses as provided above. Nor do we agree to
the extension of predetermined amount of credit on Client's behalf for legal
fees or expenses by our acceptance of the retainer.
We reserve the right to request an additional retainer at any time
should we determine in our sole discretion that the scope
of the work involved will exceed that originally anticipated. Although we
may, from time to time for your convenience, furnish
estimates of fees or costs that we anticipate will be incurred, these
estimates are subject to unforeseen circumstances and are by
their nature inexact.
3. Termination of Representation:
-----------------------------
Client has the right to terminate our services and representation
upon notice to the firm. Such termination shall not,
however, relieve Client of the obligation to pay for all services rendered
and costs or expenses paid or incurred on behalf of Client
prior to the date of such termination. Client shall be solely responsible
for obtaining substitute counsel to continue the
representation of Client after termination. Attorneys shall, upon written
request and payment in full of all invoices due, turnover
to substitute counsel, if any, all pleading files and materials obtained or
created in the representation of Client.
We reserve the right to withdraw from our representation of Client
if, among other things: (1) Client fails to honor the
terms of this engagement letter, (2) Client fails to cooperate or
follow our advice on a material matter, (3) any fact or
circumstance develops that would, in our view, render our continuing
representation unlawful or unethical, or (4) any adverse
development or ruling, in our sole discretion, renders the continued
prosecution of Client's claims uneconomic or unfeasible. If we
elect to withdraw, you will take all steps necessary to free us of any
obligation to perform further services, including the
execution of any documents necessary to complete our withdrawal.
4. Other terms:
-----------
We are authorized: (1) to receive any settlement or proceeds from the
Client's claims; (2) to retain any outstanding fees
and expenses owing; and (3) to pay over the remainder to Client after
deducting any unpaid costs and expenses to which we or others
are entitled, pursuant to the terms of this agreement.
Client gives us an irrevocable power of attorney to execute, with
Client's consent, all documents connected with Client's
claims, including pleadings, contracts, settlement agreements, compromises
and releases, dismissals, orders, and all other documents
or instruments that Client's could properly execute.
5. Commencement of Representation:
------------------------------
If the foregoing correctly reflects your understanding of the terms
and conditions of our representation, please indicate
your acceptance by executing a copy of this letter in the space provided
below and returning it to our office. Our representation
will not commence until the retainer described above has been paid and an
executed copy of this letter has been returned to our
offices.
We appreciate the confidence you have shown in our firm and we are
pleased to be able to assist you.
Very truly yours,
/s/Kirk W. Evans
Kirk W. Evans
AGREED and ACCEPTED this
20th day of October, 2000.
Entertainment Technologies and Programs, Inc.
/s/James "Doug" Butcher
- ----------------------------
Mr. James "Doug" Butcher
Chief Executive Officer
Notice to Clients: The State Bar of Texas investigates and prosecutes
professional misconduct committed by Texas attorneys. Although
- -----------------
not every complaint against or a dispute with a lawyer involves professional
misconduct, the State Bar Office of General Counsel will
provide you with information about how to file a complaint. For more
information, you may call 1-800-932-1900. This is a toll-free
phone call.