Severance Agreement - Official Payments Corp. and Mitchell H. Gordon
This Severance Agreement (this "Agreement") is made as of
November 13, 2001, by and between Official Payments Corporation (the
"Company") and Mitchell H. Gordon (the "Executive").
WHEREAS, the Company desires to continue to employ the
Executive to serve as Senior Vice President and General Counsel of the
Company, the Executive desires to continue in such position and both
parties desire to set forth the terms of benefits to be received by the
Executive in the event his employment terminates in certain circumstances
as provided for in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Without Cause Termination; Termination for Good
Reason. In the event that (x) the Company terminates the Executive's
employment with the Company for any reason other than the Executive's
death, Disability (as hereinafter defined) or Cause (as hereinafter
defined) or (y) the Executive terminates his employment with the Company
for Good Reason (as hereinafter defined), the Executive shall be entitled
to the following payments and benefits:
(a) for the one-year period following the date on
which the Executive's employment is terminated
(the "Termination Date"), the Company shall pay
the Executive his annual base salary then in
effect (which base salary, for purposes of this
Agreement, shall not be deemed lower than
$185,000);
(b) for the one-year period following the
Termination Date, the Company shall continue the
Executive's participation in the employee
benefit plans maintained by the Company in which
the Executive participated immediately prior to
the Termination Date, or, to the extent such
participation is not permitted by such plans,
the Company shall provide equivalent benefits or
cash payments on an individual basis; and
(c) all of the Executive's unvested options to
purchase the Company's stock shall immediately
vest as of the Termination Date and all rights
of repurchase of the Company with respect to
shares of stock obtained pursuant to the
exercise of options under the Company's stock
option plans (if any) shall immediately lapse as
of the Termination Date, notwithstanding
anything to the contrary in any other agreement
between the Executive and the Company.
2. Definitions. For purposes of this Agreement, the
following terms shall have the respective meanings set forth below:
(a) "Cause" shall mean (i) the Executive's personal
dishonesty, fraud, misappropriation, willful misconduct or breach of
fiduciary duty, in each case materially harmful to the Company's property,
personnel or business operations, or materially damaging to the Company's
relationships with its customers, clients or employees or materially
damaging to the goodwill of the Company; (ii) the Executive's intentional
failure to perform the duties of his employment or any continuing action by
the Executive materially detrimental to the goodwill of the Company or
materially damaging to the Company's relationships with its customers,
clients or employees, which non-performance or actions remain unremedied
for 30 days after written notice thereof from the Company specifying in
detail the non-performance or actions and requesting that they be remedied
(it being understood that issues with respect to the quality of the
Executive's performance or results thereof shall not be grounds for a
determination of Cause under this clause (ii)); (iii) the Executive's
pleading guilty or no-contest to, or conviction of, a felony or a crime
involving moral turpitude or fraud; (iv) the Executive's misappropriation
(or attempted misappropriation) of any of the Company's funds or property
or of a business opportunity of the Company, including attempting to secure
or securing any personal profit in connection with any transaction entered
into on behalf of the Company; (v) conviction of the Executive for any
criminal offense involving dishonesty or breach of trust or money
laundering, or the Executive's agreement to enter into a pretrial diversion
or similar program in connection with a prosecution for such offense; (vi)
the Executive's excessive drunkenness, use of illegal drugs or abuse of any
controlled substance; or (vii) the Executive's excessive absenteeism not
related to the Executive's illness, which absenteeism remains unremedied
for 30 days after written notice thereof requesting that it be remedied.
(b) "Change in Control" shall mean (i) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its subsidiaries (if
any), taken as a whole, to any person other than to the Company or one of
its wholly-owned subsidiaries; (ii) the Company consolidates with or merges
into another person (other than a subsidiary of the Company) or any person
(other than a subsidiary of the Company) consolidates with, or merges into,
the Company, in any such event pursuant to a transaction in which the
outstanding shares of common stock of the Company are changed into or
exchanged for cash, securities or other property, other than any such
transaction where the holders of the shares of common stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than fifty percent (50%) of the voting equity of the surviving or resulting
person immediately after such transaction; (iii) the consummation of any
transaction or series of transactions (including, without limitation, any
merger or consolidation) the result of which is that any person (other than
a subsidiary of the Company), becomes the beneficial owner (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of
1934, as amended), directly or indirectly, of fifty percent (50%) or more
of the voting equity of the Company; or (iv) a change in the composition of
the Company's Board of Directors, as a result of which fewer than a
majority of the incumbent directors are directors who either (A) had been
directors of the Company on the date hereof or the date 24 months prior to
the date of the event that may constitute the Change in Control (the
"original directors") or (B) were elected, or nominated for election, to
the Company's Board of Directors with the affirmative votes of at least a
majority of the aggregate of the original directors who were still in
office at the time of the election or nomination and the directors whose
election or nomination was previously so approved. Notwithstanding the
foregoing, the term "Change in Control" shall not include any transaction
or series of transactions with or to (i) any affiliate of the Company, (ii)
any entity or successor entity in which the Company holds at least a
majority of the total voting power of such entity or successor entity (or
retains the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the members of the board of
directors or other governing body of such entity or successor entity),
(iii) any entity or successor entity in which no person or entity holds a
greater percentage of the total voting power of such entity or successor
entity than the Company's percentage voting interest in such entity or
successor entity or (iv) any entity formed at the direction of the Company
in connection with obtaining financing for the Company or any of its
subsidiaries under an arrangement that provides the Company with an option
to reacquire its assets or other properties or other similar financing
arrangement.
(c) "Disability" shall mean the mental or physical
impairment or incapacity rendering the Executive substantially unable to
perform his duties as chief legal officer of the Company for a period of
longer than 120 days out of any 360-day period. A determination of whether
the Executive has a Disability shall be made by a duly licensed physician
approved by both the Executive and the Company.
(d) "Good Reason" shall mean (i) a material diminution of
the Executive's authority, duties and responsibilities as the chief legal
officer of the Company, (ii) a reduction in or failure to pay timely the
Executive's base salary, (iii) the appointment of any person to a superior
executive position in the Company's legal department or a change in the
Executive's direct reporting status to any officer of the Company other
than the Chief Executive Officer (or equivalent), (iv) any relocation of
the Executive's regular office at the Company's corporate headquarters to a
place 90 miles or more outside New York City, (v) after expiration of the
six (6) month period following a Change in Control, or (vi) the time after
which at least two of the persons serving as Chief Executive Officer, Chief
Operating Officer or Chief Financial Officer of the Company on the date of
this Agreement are no longer full-time employees of the Company or actively
participating in the operations of the Company in their present positions;
provided, however, that each of the reasons set forth in clauses (i)
through (vi) of this paragraph shall be identified in a written notice
delivered by the Executive to the Company specifying the nature of the
reason and the Company shall have been afforded a period of thirty (30)
days to respond to such notice and cure the condition set forth in such
notice if capable of being cured.
3. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings between the
parties, both oral and written, regarding such subject matter.
(b) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
reference to the conflicts of laws principles thereof.
(c) Representations of the Company. The Company hereby
represents and warrants to the Executive that (i) the execution of this
Agreement and discharge of its obligations hereunder will not breach or
conflict with any other contract, agreement or understanding between the
Company and any other party; (ii) the Company has the corporate power and
authority to execute and deliver this Agreement and to satisfy its
obligations contemplated hereby; (iii) the execution and delivery of this
Agreement have been duly and validly authorized by all requisite corporate
action on the part of the Company; and (iv) this Agreement has been duly
and validly executed and delivered by the Company, and assuming it has been
duly executed and delivered by the Executive, constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(d) Binding Effects; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors, legal representatives and assigns. Neither the
Executive nor the Company may assign or otherwise transfer this Agreement
to any other entity without the prior written consent of the other party.
(e) Notices. All notices, requests, demands and other
communications which are required to be or may be given under this
Agreement to any party shall be in writing and shall be deemed to have been
duly given when (i) delivered in person, (ii) the day following dispatch by
a nationally-recognized overnight courier service, or (iii) five days after
dispatch by certified or registered first-class mail, postage prepaid,
return receipt requested, to the party to whom the same is so given or
made: If to the Company, addressed to Official Payments Corporation, Three
Landmark Square, Stamford, CT 06901, Attention: Chief Executive Officer;
and if to the Executive, addressed to him at the most recent residential
address provided by him to the Company's Human Resource Department at the
time of notice.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement on the day and year first above written.
OFFICIAL PAYMENTS CORPORATION
By: /s/ Thomas R. Evans
________________________________
Thomas R. Evans
Chairman and Chief Executive Officer
/s/ Mitchell H. Gordon
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Mitchell H. Gordon