ATTORNEY-CLIENT
RETAINER AGREEMENT
May 8,
2005
This
document (“Agreement”) is the written fee contract that California requires
lawyers to have with their clients. We, Jeffrey M. Howard and Edward C. Fisch
(“Attorneys”), will provide legal services to eRSXYS (“Client”) on the terms set
forth below.
1. CONDITIONS. This
Agreement will not take effect, and we will have no obligation to provide legal
services, until you return a signed copy of this Agreement.
2. SCOPE
OF DUTIES. You are
hiring us as your attorneys, to represent you in connection with a dispute
against Adam C.
King, Orange County Superior Case No. 04CC04891. We will
provide those legal services reasonably required to represent you. We will take
reasonable steps to keep you informed of our progress and to respond to your
inquiries. If a court action is filed, we will represent you through trial and
post trial motions. We will not represent you on appeal unless a new agreement
is made concerning the appeal. Unless you and we make a different agreement in
writing, this Agreement will govern all future services we may perform for
you.
3. CLIENT'S
DUTIES. You
agree to be truthful with us, to cooperate, to keep us informed of developments,
to abide by this Agreement, to pay our bills on time and to keep us advised of
your address, telephone number and whereabouts.
4. MINIMUM
FEE/DEPOSIT. You will
agree to pay us a retainer fee in the amount of $10,000 which will be paid as
follows: (a) $3,000 cash, the receipt of which is hereby acknowledged and $7,000
in the form of shares of eRSXYS S-8 common stock with a market value of $7,000.
The retainer fee will constitute our minimum fee and those shares, together with
addition S-8 shares valued at $30,000, (for a total of $37,000 plus $3,000 cash)
will be retained in by Edward Fisch in trust and applied against our fees if you
fail to timely pay them in good funds pursuant to paragraph 7, below. It is
agreed that no portion of the stock will be sold until the earlier of 30 days or
3 days prior to our first court appearance.
5.
LEGAL
FEES AND BILLING PRACTICES. You
agree to pay us and we will bill you at the rate of $325 per hour. We will
charge you for the time we spend on your matter, including telephone calls
relating to your matter. The legal personnel assigned to your matter will confer
among themselves about the matter, as required. When they do confer, each person
will charge for the time expended. Likewise, if more than one of our legal
personnel attends a meeting, court hearing or other proceeding, each will charge
for the time spent. We will charge for waiting time in court and elsewhere and
for travel time, both local and out of town.
| 6. |
COSTS
AND OTHER CHARGES.
|
(a) In
General. Client
will pay all “costs” in connection with Attorney’s representation of Client
under this Agreement. Costs may be advanced by Attorney and then billed to
Client unless the costs can be met out of Client deposits that are applicable
toward costs. Costs include, but are not limited to, court filing fees,
deposition costs, expert fees and expenses, investigation costs, long-distance
telephone charges, postage, messenger service fees, photocopying expenses at 10
cents per page, facsimile charges at 25 cents per page, word processing at $35
per hour, travel expenses, parking, car mileage, postage, computerized legal
research, process server fees and any other expense incurred by Attorney for and
on behalf of Client and Client’s cause.
(b) Experts,
Consultants and Investigators. To aid
in the preparation or presentation of your case, it may become necessary to hire
expert witnesses, consultants or investigators. We will not hire such persons at
an expense to you in excess of $500.00 unless you agree, in advance, to pay
their fees and charges. We will select any expert witnesses, consultants or
investigators to be hired.
7.
BILLING
STATEMENTS. We will
send you monthly statements for fees and costs incurred. Each statement will be
due within thirty (30) days of its due date. Any statement not paid in a timely
fashion will bear interest at an annual rate of ten percent (10%).
Notwithstanding the foregoing, you acknowledge and agree that the retainer
amount is due on the signing of this Agreement.
8. LIEN. You
hereby grant us a lien on any and all claims or causes of action that are the
subject of our representation under this Agreement. Our lien will pay for any
sums owing to us at the conclusion of our services. The lien will attach to any
recovery you may obtain, whether by arbitration award, judgment, settlement or
otherwise.
9. DISCHARGE
AND WITHDRAWAL. You may
discharge us at any time. We may withdraw with your consent or for good cause.
Good cause includes your breach of this Agreement, your refusal to cooperate
with us or to follow our advice on a material matter or any fact or circumstance
that would render our continuing representation unlawful or unethical.
When our
services conclude, all unpaid charges will immediately become due and payable.
After our services conclude, we will, upon your request, deliver your file to
you, along with any funds or property of yours in our possession.
10. DISCLAIMER
OF GUARANTEE. Nothing
in this Agreement and nothing in our statements to you should be construed as a
promise or guarantee about the outcome of your matter. We make no such promises
or guarantees. Our comments about the outcome of your matter are expressions of
opinion only.
11. ARBITRATION. In the
event that you have any claim against us relating to any alleged error or
omission in connection with our representation of you, including
claims for legal malpractice, or
arising out of fees or charges incurred under this Agreement you agree to submit
that claim to arbitration before a retired Orange County judge under the rules
established in the California Code of Civil Procedure (CCP §1280 et. seq.). You
agree that the results of that arbitration shall be binding upon you and us. You
further agree and acknowledge that, by agreeing to have our disputes resolved by
arbitration you are waiving your constitutional right to a trial by a jury of
your peers.
The
arbitrator shall, in the Award, allocate all of the costs of the arbitration
(and the mediation, if applicable), including the fees of the arbitrator and the
reasonable attorneys' fees of the prevailing party, against the party who did
not prevail. Judgment on the Award may be entered in any court having
jurisdiction.
This
agreement to arbitrate is not intended to abrogate your right to require a
non-binding fee arbitration pursuant to California Business & Professions
Code, Sections 6200-06. If you demand the arbitration of a fee dispute pursuant
to these provisions, either party may seek to consolidate that arbitration with
any other arbitration pending between the parties.
12. MEDIATION. Upon
the request of any party, a mediation shall be conducted prior to the
arbitration pursuant to the Mediation Rules of JAMS.
13.
EFFECTIVE
DATE. This
Agreement will take effect when you have signed this Agreement and delivered to
Edward Fisch the shares of stock described in paragraph 4, but its effective
date will be retroactive to the date we first perform services for you. The date
at the beginning of this Agreement is for reference only. Even if this Agreement
does not take effect, you will be obligated to pay us the reasonable value of
any services we have performed for you.
14. FACSIMILE. A
facsimile signed copy will have the same force and effect as
originals.
/s/
Jeffrey M.
Howard
Jeffrey
M. Howard
/s/
Edward C
Fisch
Edward C.
Fisch
I/wehave read and understood the foregoing terms and agree to them, as of the
date that Jeffrey M. Howard and Edward C. Fisch first provided services. If more
than one party signs below, we each agree to be liable, jointly and severally,
for all obligations under this Agreement.
eRSXYS,
Inc.
By:/s/
Robert
DelVecchio
Robert
DelVecchio, President