LEGAL RETAINER AGREEMENT
Exhibit 10.1(b)
AINOS,
INC., a Texas Corporation, (“Client”) agrees to retain
Jun X. Xxx, Esq., as Chief Legal Counsel (“Attorney”)
to represent client for the following purpose under the following
terms and conditions:
1.
FEES. The Client is obligated to pay,
and the Attorney has the right to receive compensation at an hourly
rate of $550.00/hour as follows: Reduced cash hourly rate of
$250.00 per hour and a deferred, non-cash compensation of $300.00
per hour in the Client’s common stock shares valued and
vested each calendar quarter from the Effective Date of this
Agreement and up to and including the termination of this Agreement
payable in the Company's unregistered, voting common stock
(“Non-Cash Compensation”). Non-Cash Compensation is to
be paid quarterly and shares are to be priced at the average of all
trading day closing quotes on the OTC-BB for the month preceding
date of issuance, with such shares to be issued on the first
business day after the close of each calendar quarter or as soon
thereafter as practicable. Fees shall be paid within five (5) days
of invoice.
2.
TERM. This Agreement shall be effective
as of August 1, 2021 (“Effective Date”) and terminate
on July 31, 2022 unless earlier terminated pursuant to paragraph 8
of this Agreement. Upon the Effective Date the Legal Retainer
Agreement dated June 21, 2019 between the Parties shall terminate
and be superseded by this Agreement.
3.
EXTERNAL CONSULTANT FEES. If an expert
witness, outside legal counsel, or other consultant
(“External Consultant”) is retained in your matter, the
Attorney will forward invoices from the External Consultant
directly to you for payment. Failure to pay the External Consultant
may result in prejudicing the success of your matter.
4.
CLIENT
RIGHTS AND RESPONSIBILITIES
A. The Client has the right to:
i.
Diligent representation by the Attorney, and to be kept informed
regarding the progress of the Client’s matter.
ii.
Receive, within a reasonable time, copies of all correspondence
sent by the Attorney on the Client’s behalf, all pleadings
and other documents filed by the Attorney on the Client’s
behalf and copies of all documents received from
opposing/interested parties regarding the Client’s
matter.
ii.
Decide whether to accept or reject any offers of settlement or
evaluations of the matter, and the Attorney shall abide by the
Client’s decision.
iv.
Discharge the Attorney at any time, with or without cause, subject
to liability for payment for legal services provided and costs
incurred by the Attorney.
v.
Receive advice from the Attorney regarding recommended technical,
legal and tactical issues as they arise so that the Client may
evaluate how the Client wishes to proceed.
vi.
Confidentiality of information about the Client unless the Client
provides express consent; however, the Client does not have a right
of confidentiality if such information pertains to illegal or
fraudulent acts committed by the Client, pertains to the
Client’s intention to commit a crime or must be disclosed
pursuant to court order.
vii. Be
treated with respect and courtesy from all employees of the
Attorney. The Client should promptly inform the Attorney of any
failure on its part to do so.
B. The client has the responsibility to:
i
Refrain from a course of action which the attorney reasonably
believes to be illegal, fraudulent, repugnant, imprudent or the
Rules of Conduct governing Attorney.
ii. Not
expect the Attorney to guarantee a particular outcome of the
Client’s matter.
iii. Be
truthful in all discussions with the Attorney, even if, and
especially when, the Client thinks the information is detrimental
to your case.
iv.
Provide the Attorney with any significant change of circumstances
in the Client’s business in a timely manner.
v. Pay
the Client’s monthly xxxx in full in a timely and consistent
manner. If the Client
has a question about a xxxx, the Client must bring it to the
Attorney’s attention within 30 days of the date of the xxxx
or the Attorney may assume that the Client has no objections to the
xxxx.
5.
RETENTION OF FILES. THIS IS THE ONLY
NOTICE YOU WILL RECEIVE REGARDING DESTRUCTION OF YOUR
FILE
A. When
the Attorney’s services are concluded or terminated, the
Attorney will close the Client’s file. At the time of
closing, the Client has the right to review the file and remove
anything from it that the Client wishes to retain, not including
the personal notes and memorandums of the attorneys and legal
assistants, for the Client’s records. Whether the Client
chooses to remove a document the Client originally supplied to the
Attorney or that was generated by the Attorney, the Client agrees
to pay the cost of reproduction.
B. If
the Client owes the Attorney for costs or attorney’s fees,
the Attorney is not required to release the Client’s file to
the Client provided certain ethical requirements are
met.
C. The
file will be maintained as long as legally required, but in no case
can the Client expect that the Attorney will keep the file beyond
five (5) years after the representation of the Client has ended or,
where discrete case files are established, five (5) years after the
particular matter has been resolved.
D. The
Attorney has the right to maintain the Client’s closed file
electronically, only, and to shred the hard copies of the documents
in the Client’s file at the time the Client’s case is
closed and any time after the file has been successfully scanned
and electronically stored in at least 2 separate physical
locations.
6.
INDEPENDENT CONTRACTOR AGREEMENT.
Nothing contained herein or any
document executed in connection herewith, shall be construed to
create an employment, partnership, or joint venture relationship
between the Client and Attorney. Attorney is an independent
contractor and not an employee of the Client. The consideration set
forth in Section 1 shall be the sole consideration due Attorney for
the services rendered hereunder. It is understood that the Client
will not withhold, unless required by law, any amounts for payment
of taxes from the compensation of Attorney. Attorney will not
represent to be or hold itself out as an employee of the Client and
Attorney acknowledges that Attorney shall not have the right or
entitlement in or to any of the benefit programs now or hereafter
available to the Client's regular employees. Any and all sums
subject to deductions, if any, required to be withheld and/or paid
under any applicable state, federal or municipal laws or union or
professional guild regulations shall be Attorney's sole
responsibility. The Attorney shall not make any commitments binding
the Client without the consent of an authorized officer of the
Client.
7.
REPRESENTATIONS AND WARRANTIES
A.
Each representative
executing this Agreement is duly authorized to bind his/her
respective Party.
B.
The Client is a
duly incorporated corporation under the laws of the State of Texas
and Attorney is a licensed Attorney under the laws of the District
of Columbia and duly authorized to practice before the federal
Securities and Exchange Commission.
8.
TERMINATION
OF SERVICES
A.
The Client has the
right to discontinue the services of the Attorney at any time with
thirty (30) day written notice. However, in litigation matters, the
Client’s desire to obtain a new attorney is subject to court
approval. The court may not grant the substitution of counsel or
agree to delay the proceeding to provide the Client time to obtain
a new attorney. Termination of services does not affect the
Client’s responsibility to pay for the legal services
rendered and the costs incurred up to the date of
termination.
B.
The Attorney may
terminate this contract for reasons permitted by the Rules of
Professional Conduct governing Attorney, including the failure to
pay for services rendered by the Attorney.
9.
SCOPE OF WORK. Prior to commencing any
matter or project, Attorney shall provide Client with a written
Scope of Work, time and cost estimate. Client shall determine the
scope of representation. Without limiting the generality of the
foregoing, Attorney may be assigned tasks as follows:
A.
General Representation
i.
Board: If
appointed, serve as corporate secretary, prepare for and attend all
board meetings, maintain corporate books and records.
ii.
Legal
Opinions/Review: Prepare legal opinions on matters of concern to
board and executive staff, prepare and review all material
contractual agreements.
B.
Transactional Representation
i.
Joint
Ventures/Licensing: Identify potential joint venture and licensing
partners, negotiate and structure term sheets, transactional
agreements, conduct due diligence on proposed
transactions.
ii.
Third-Party
Vendors: Negotiate and oversee contract development and
performance.
iii.
Investor Relations:
Negotiate term sheets, transactional agreements, conduct due
diligence on proposed transactions.
iv.
Regulatory:
Evaluate regulatory and licensing requirements for Company’s
plans to develop and commercialize treatment regimes.
C.
Compliance Representation
i.
SEC/State
Securities Compliance: coordinate with outside SEC counsel on 10Q,
10K, and other SEC disclosures, Xxxxxxxx-Xxxxx and State Blue Sky
legal compliance, private placement memoranda and investor
transactions.
ii.
Corporate
Governance: Conduct, as required, compliance audits related to
financial oversight and management, accounting, risk management,
personnel, and contract compliance.
D.
Intellectual Property (IP) Management
i.
Identify and
coordinate with patent counsel on IP protections for Company IP
assets.
ii.
Recommend tax and
legal strategies to manage tax and legal liabilities related to
IP.
10.
EXHIBITS. The attached Exhibit
“A” is incorporated herein by this
reference.
IN
WITNESS WHEREOF, the Parties have executed this
Agreement.
ATTORNEY:
By:
/s/
Xxxx Junyong Lee_______________
Xxxx
Xxxxxxx Xxx (aka Jun X. Xxx)
Attorney
By:
_/s/ Chun-Hsien
Tsai________________
Chun-Xxxxx
Xxxx
Its:
Chairman, President, CEO and CFO
EXHIBIT “A”
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions are made and incorporated by
this reference in the Legal Retainer (“Agreement”)
attached hereto.
1.0
PROTECTION OF Client INFORMATION AND PROPERTY
1.1
Trade
Secrets. Attorney hereby agrees
and covenants not to disclose to third-parties or otherwise use to
the detriment of Client any of the Client’s data, forms,
processes, procedures, business plans or information, and methods
of operation whether or not marked “confidential” or
“trade secret”, and all of the foregoing is agreed to
treated as confidential and trade secrets of Client by
Attorney.
1.2
Intellectual
Property. Attorney shall
immediately cease and desist using any of Client’s trade
name, trade and service marks, and any other intellectual or
intangible property (whether or not registered) upon termination of
this Agreement. Any original works, as that term is defined under
the U.S. Copyright laws, that are created by Attorney in the
performance of this Agreement is agreed to be a “work made
for hire” and shall vest ownership to Client upon creation.
Any other intellectual property created by Attorney that is not
subject to the copyright laws, are made by Attorney for the
exclusive benefit of Client and Attorney hereby grants to the
Client an irrevocable, exclusive, unlimited, and royalty-free
license to Client for such works.
1.3
Use of Trade
Equipment. Attorney agrees and
covenants that its use of Client’s trade equipment, inclusive
of Client’s information technology, computer, and
communications systems, is for the exclusive benefit and purpose of
further Client’s business. Attorney further agrees that any
personal use of Client’s trade equipment is not
permitted.
1.4
Confidentiality and
Non-Disclosure. Attorney
acknowledges that the Client, and its agents, consultants, advisors
and vendors possess and have developed certain subject matter which
valuable trade secrets and intellectual property (hereinafter
referred to as “Confidential Information”). Attorney
shall maintain as fully confidential from third parties all the
Client’s Confidential Information and not to disclose,
divulge or use same, directly or indirectly, save exclusively for
the purposes for which it was disclosed to the Attorney. In order
to secure the confidentiality of the Confidential Information the
Attorney shall safeguard the Confidential Information of the Client
in accordance with this Agreement and with at least the same degree
of care as it uses for other confidential information it
receives.
1.4.1
Confidential Information
Defined. For purposes of this Agreement, “Confidential
Information” shall mean, any and all information, without
limitation, that directly or indirectly pertains to patents,
trademarks, trade names and service marks, and original creative
works and copyrighted works created, owned, produced or used by the
Client. Without limitation, With regard to the foregoing,
Confidential Information shall also include information, data,
know-how, formulas, market research, business, sales and marketing
plans, concepts, tests, drawings, specifications, applications,
designs, trade secrets, information and data relating to the
Client’s products, design methodology, processes, operations
and plans, financial situation, and any notes, memoranda,
summaries, analyses, compilations or any other writings relating
thereto prepared by the Client or the Attorney or on either
Party’s behalf.
1.4.2
Non-Confidential Information.
The restrictions on use and disclosure set forth in this Agreement
shall not apply to any Confidential Information which:
1.4.2.1
Was already known
to the Attorney at the time such information was received from the
Client or is independently developed by the Attorney without
reference to any Confidential Information disclosed by the
Client;
1.4.2.2
Was or becomes
available to the general public, other than as a result of a breach
of this Agreement;
1.4.2.3
Is subsequently
obtained by the Attorney from a source other than the Client or its
agents, provided that such source is not known by the Attorney to
be prohibited from transmitting the information by a
confidentiality agreement with, or other legal or fiduciary
obligation to, Client;
1.4.2.4
The Client has
released to a third Party on a non-confidential basis or for which
it authorizes release
1.4.2.5
Is required by law
to be disclosed under order of any court or other public authority
in judicial or administrative proceedings whether in discovery
proceedings or otherwise and wherein privilege or similar legal
protection form disclosure is not available.
1.4.3
Compulsory Disclosure to Third
Parties. If the Attorney is requested or required by oral
questions, interrogatories, subpoena, civil investigative demand,
applicable law, regulation, court order or other legal process or
by any governmental or regulatory authority to disclose
Confidential Information, or if such disclosure is needed in
connection with the defense or any action, suit or investigation
brought against the Attorney, the Attorney will provide the Client
with notice of such request or requirement (unless such notice is
not possible under the circumstances) so that the Client may seek
an appropriate protective order and/or waive compliance with the
terms of this Agreement.
1.4.4
Purpose of Disclosure. Attorney
shall not, without the prior written consent of Client, use
Confidential Information and Attorney shall not use, directly or
indirectly, for their own benefit or for the benefit of third
parties, publish or otherwise disclose Confidential Information to
any other person, or permit the use of Confidential Information.
Attorney agree that no copies (partial or complete) shall be made
of any of the Confidential Information, including, without
limitation, any writings, drawings, or products regarding the
Confidential Information generated by Attorney or their agents,
without the express written consent of the Client. Any such copies
created with the consent of the Client shall be returned to the
Client upon demand.
1.4.5
Return or Destruction of Confidential
Information. At the Client’s written request, the
Attorney shall forthwith return to the Client or destroy, at the
Client’s option, all Confidential Information in tangible
form and any copies of such Confidential Information, including
copies in electronic format, provided that one copy may be retained
for compliance purposes.
1.4.6
No Conveyance of Right or License
Intended. The disclosure of Confidential Information or its
use hereunder shall not be construed in any way as granting to the
Attorney any right or license with respect to the Confidential
Information other than the right to use Confidential Information
for the limited items defined under the Purpose of Disclosure
above. Any works created by Attorney shall be made on a “WORK
FOR HIRE” and an exclusive, worldwide, royalty-free license
basis with all right, title, and interest vesting in
Client.
1.4.7
Covenant Not to Compete;
Non-Solicitation. Attorney covenants and agrees not to
compete with Client with respect to the design, production,
manufacture, sales and marketing of products covered by the above
definition of Confidential Information. Attorney further covenants
and agrees not to solicit and engage in business transactions with
any third parties with respect to the Confidential Information. The
foregoing limitations on the use of Confidential Information is
expressly intended by the Parties to constitute a separate ground
of relief and damages in the event Attorney breaches this
subsection.
1.4.8
Equitable Relief. It is agreed
that the unauthorized disclosure or use of any Confidential
Information may cause immediate or irreparable injury to the
Client, and that the Disclosers may not be adequately compensated
for such injury in monetary damages. In such event the Client shall
be entitled to seek any temporary or permanent injunctive relief
necessary to prevent such unauthorized disclosure or use, or threat
of unauthorized disclosure or use. Notwithstanding the foregoing,
Disclosers reserves the right to seek any and all damages to which
it is entitled in equity or in law.
1.4.9
Severability. If any condition,
term or covenant of this Agreement shall at any time be held to be
void, invalid or unenforceable, such condition, covenant or term
shall be construed as severable and such holding shall attach only
to such condition, covenant or term and shall not in any way affect
or render void, invalid or unenforceable any other condition,
covenant or term of this Agreement, and this Agreement shall be
carried out as if such void, invalid or unenforceable term were not
embodied herein.
2.0
DUTIES UPON TERMINATION.
2.1
Return of Client
Property. Upon termination,
Attorney shall immediately return to Client any and all data,
information, computer records and data, business records and files,
and any other document, record, trade equipment, supplies, keys,
modes of access, or any other material that was furnished by or
work products (including digital photographs, data, worksheets,
draft and final work product versions) created for the Client
during the term of the Agreement. All of the foregoing shall at all
times by conclusively owned by the Client and shall be returned and
submitted to the Client at the conclusion of each task or sub-task
assigned under the Agreement. No files, documents, or other
materials will be removed from the Client office to perform the
scope of work under this Agreement.
2.2
Termination of Right
of Access. Upon termination,
Attorney’s right of access to Client’s information
technology, computer and communications systems, trade equipment,
business premises, records, files and any other property of Client
shall be automatically terminated without further
notice.
2.3
Transfer of Business
Assignments. Attorney agrees
that upon termination, Client has the unlimited right to assign any
of Attorney’s projects, assignments, or other matters (in
whole, or in part) to another person or entity as solely determined
by Client. Attorney hereby understands and agrees that Attorney
does not have any property interest whatsoever in any of the
projects, assignment, business relationships, intangible and
tangible property, and any other matter made, created, or performed
during the term of this Agreement.
3.0
MISCELLANEOUS PROVISIONS.
3.1
Exclusive and Binding
Arbitration.
THE PARTIES AGREE
TO BINDING ARBITRATION AS THE EXCLUSIVE DISPUTE RESOLUTION FORUM TO
SETTLE AND RESOLVE ANY AND ALL DISPUTES ARISING FROM THE AGREEMENT
AND THE Client-Attorney RELATIONSHIP BETWEEN THE PARTIES. IT IS
FURTHER AGREED THAT CALIFORNIA LAW SHALL GOVERN THIS AGREEMENT
(IRRESPECTIVE OF ITS CONFLICT OF LAW RULES), AND THAT THE
JURISDICTION AND VENUE FOR BINDING ARBITRATION SHALL BE THE CITY OF
SAN DIEGO, STATE OF CALIFORNIA. THE PARTIES AGREE TO UTILIZE JAMS
MEDIATION AND ARBITRATION SERVICES TO SETTLE ALL DISPUTES. THE
PARTIES EXPRESSLY AGREE TO WAIVE THEIR RIGHTS TO A JURY
TRIAL.
Xxx
– Ainos, Inc. Legal Retainer Agreement – August 1,
2021
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3.2
Injunctive and
Equitable Relief.
Notwithstanding Section 3.1, Attorney also agrees that any breach
by Attorney of Sections 1.0 and 2.0 of this Agreement, including
such sub-parts, would create irreparable and immediate harm to
Client and as such Attorney consents to any injunctive or equitable
relief that may be available to Client.
3.3
Attorney’s Fees
and Costs. The prevailing party
under any dispute shall be entitled to its reasonable
attorney’s fees and costs, including costs of investigation
of such dispute.
3.4
Collection of
Claims. In the event that
Attorney adjudged the prevailing party in any action, Attorney
hereby agrees that his sole source to satisfy any judgment shall be
the operating checking account of the Client. Attorney expressly
waives any rights to seek collection of any judgment against
Client’s intellectual property rights or
interests.
3.5
Survival.
This Agreement shall survive and inure to the benefit of the
successors, assigns, heirs, and/or estates of the
parties.
3.6
Statute of
Limitations. Notwithstanding
any statutory or common-law rule to the contrary, and to the extent
permissible by law, the Parties agree that any right of action must
be commenced within one (1) year of the act, omission, event, or
circumstance that gave rise to such cause of
action.
Xxx
– Ainos, Inc. Legal Retainer Agreement – August 1,
2021
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