EXHIBIT 10.1
ENGAGEMENT AGREEMENT BY AND BETWEEN
XXXXXXX XXXXXX, ESQ. AND IMAGING3, INC.,
DATED JANUARY 2, 2002
AGREEMENT FOR LEGAL SERVICES
XXXX XXXXX, individually and on behalf of IMAGING SERVICES, INC.
(referred to in this Agreement as "CLIENT") and The Law Offices of Xxxxxxx X.
Xxxxxx, (hereinafter "ATTORNEY" or "ATTORNEYS") make this Agreement for legal
services, effective as of January 2, 2002. This Agreement is confidential
pursuant to California BUSINESS AND PROFESSIONS Code Section 6149.
CLIENT's address and telephone information is:
XXXX XXXXX / IMAGING SERVICES, INC.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000, 000-000-0000
1. This Agreement addresses the specified legal services ATTORNEYS have
agreed to perform. These services will be referred to herein as the "MATTER" or
"MATTERS". Any additional services that have or will be requested will be the
subject of a separate written agreement, to be negotiated and signed by
ATTORNEYS and CLIENT. In particular, and without limitation, CLIENT agrees that
ATTORNEYS have not been retained to provide, and will not provide legal advice
or services concerning issues in tax, probate, estate planning, securities,
worker's compensation, family, admiralty, criminal, or bankruptcy matters.
2. MATTERS. The services which ATTORNEYS have agreed to perform and
which define the MATTER or MATTERS are services to assist client in connection
with recovery of unpaid amounts due, general legal consulting, representation in
connection with pending, threatened, or anticipated litigation, and related
business matters, as requested No other matters are included in this Agreement,
and ATTORNEYS will not perform other services unless a separate written
agreement is made between CLIENT and ATTORNEY. Any appellate level work will
also require a separate written agreement between CLIENT and ATTORNEY, as will
any work in which ATTORNEY appears as counsel of record.
3. INFORMATION. ATTORNEYS will keep CLIENT informed of significant
developments in the MATTERS, and will provide to ATTORNEYS all books and records
reasonably requested to assist with the MATTERS. ATTORNEYS shall have no
obligation to report to CLIENT on all activities or developments in the MATTERS,
but only those they consider to be important or relevant. ATTORNEYS will confer
with CLIENT regarding the development of CLIENT's position and will inform
CLIENT of the contents and legal effect of papers that are filed. ATTORNEYS are
specifically authorized to communicate with anyone they deem necessary or
appropriate to facilitate their investigative efforts.
4. FEES. CLIENT will pay ATTORNEYS its fees and expenses for the
services ATTORNEYS perform. For services related to this MATTER, CLIENT's fees
will be computed on an hourly basis, plus costs, as described below.
For all services performed, unless otherwise agreed in writing,
ATTORNEYS will be paid their currently-prevailing hourly rates, which presently
are Three-Hundred and Seventy-Five Dollars ($375.00) per hour for senior
attorney time, Two-Hundred and Fifty Dollars ($250.00) per hour for junior
attorney time, plus paralegal and associate time currently approximating
Eighty-Five Dollars ($85.00). Concurrent with this Agreement, CLIENT shall pay
ATTORNEYS an advance retainer in the amount of One-Thousand Dollars ($1,000.00).
This is a "true retainer," because ATTORNEYS are immediately foregoing other
legal matters, and are providing immediate attention to CLIENT on an exigent
basis. As a "true retainer," therefore, the retainer set forth herein shall be
deemed earned at the time of the signing of this agreement, and is
non-refundable.
CLIENT has been informed, in accordance with California BUSINESS AND
PROFESSIONS Code Section 6147 that the fee is not set by law, but is negotiable
between ATTORNEYS and CLIENT. With respect to all aspects of this Agreement,
including fees and waivers of conflicts, CLIENT acknowledges that he has had the
opportunity to consult with independent counsel.
If CLIENT recovers an amount that is denominated as "attorneys' fees"
from any party, those fees shall be paid to ATTORNEYS, since it is agreed that
they were awarded for the purpose of compensating ATTORNEYS.
ATTORNEYS may on occasion divide fees earned under this Agreement with
lawyers who are not members of The Law Offices of Xxxxxxx X. Xxxxxx. Fee
divisions require client consent, as stated in Rule 2-200 of California RULES OF
PROFESSIONAL CONDUCT. CLIENT hereby consents to such division of fees, in any
amounts and under such terms as may be set within the discretion of ATTORNEYS,
with the understanding that the total fees charged by all lawyers to CLIENT will
not be increased by reason of such division, and will be consistent with the
requirements of Rule 4-200.
5. EXPENSES. CLIENT will pay ATTORNEYS, as incurred, their expenses
that are related to the MATTER. ATTORNEYS expenses which are to be paid by
CLIENT include numerous charges such as filing fees, copying, air fare, mileage,
lodging, telecommunications, videotaping and editing, computerized research,
computerized spreadsheet and database support, paralegal charges, experts,
consultants, exhibits, graphics, imaging, document preparation, exhibit
preparation, storage, word processing, messenger charges, court reporters,
receivers, referees or masters, investigators, translators, overtime charges and
jury research. The firm uses both outside and employed personnel to accomplish
the tasks for which expenses are charged. Employee time is charged on an hourly
basis, calculated to tenths of hours. CLIENT may be requested to approve any
single expense prior to it being incurred.
Retainer Agreement Page 2 Imaging Services, Inc., Xxxx Xxxxx
CLIENT acknowledges that, although ATTORNEYS may from time to time
provide estimates of expenses that may be incurred, ATTORNEYS have made no
promises about the total amount of fees or expenses to be incurred by CLIENT
under this Agreement.
6. STATEMENTS AND PAYMENTS. ATTORNEYS will send CLIENT periodic
statements indicating expenses incurred and time expended and their basis, any
amounts applied from a deposit, and any current balance owed. If no expenses or
time are incurred for a particular amount, or if they are minimal, the statement
may be held and combined with that for the following month. Any time or expense
items not objected to by CLIENT within 30 days of mailing will be considered
accepted by CLIENT as reasonably incurred. Any balance will be paid by CLIENT in
full within 30 days after the statement is mailed. When the retainer amount set
forth in paragraph 4 has been exhausted, CLIENT will replenish the retainer in
the same amount within 30 days.
7. LATE FEES. Late fees will accrue on any balance unpaid after 30 days
from the date of the statement. The late fees on any unpaid balance will be at
the rate of 10% per annum, applied to the total balance unpaid after thirty
days.
8. ACCOUNTING. At the termination of ATTORNEYS' services in the MATTER,
if CLIENT has faithfully performed all provisions of this Agreement and has not
breached any terms of the Agreement or any modifications thereto, ATTORNEYS will
prepare a final accounting of all amounts received by ATTORNEYS in the MATTER.
If the total of all amounts received exceeds the amount charged by ATTORNEYS for
their fees and expenses, ATTORNEYS will remit any excess to CLIENT.
9. FILES. Regardless of any termination of services under this
Agreement, CLIENT agrees to pay storage or disposal expenses for all documents,
evidence or other materials that CLIENT leaves with ATTORNEYS. CLIENT agrees
that, after 60 days notice, ATTORNEYS may, at ATTORNEYS' discretion, destroy any
or all documents, evidence or other materials that CLIENT does not retrieve from
ATTORNEYS.
10. LIEN. CLIENT shall grant ATTORNEYS a lien on the subject of the
MATTERS and any recovery to secure payment of amounts due ATTORNEYS. CLIENT
shall, upon request, sign an agreement for lien in a form provided by ATTORNEYS.
11. NO OTHER LIENS OR ASSIGNMENTS. CLIENT represents that he is the
sole owner of all claims and causes of action involved in the MATTERS (if the
particular matter relates to an asserted claim or cause of action), and that he
has not previously assigned, transferred or conveyed any interest or right in
any claim, cause of action or Recovery related to the MATTERS. CLIENT agrees
that he will not, without the prior written consent of ATTORNEYS, (a) assign,
transfer or convey, in whole or in part, any right or interest in the MATTER or
in any claim, cause of action or Recovery in the MATTER; (b) grant any lien
against the MATTER or in any claim, cause of action or Recovery in the MATTER.
Retainer Agreement Page 3 Imaging Services, Inc., Xxxx Xxxxx
12. BREACHES OF THE AGREEMENT. In addition to other events which may
constitute a breach of this Agreement, the parties agree that CLIENT'S failure
to pay any of ATTORNEYS' fees and expenses when due, CLIENT's initiation of any
insolvency procedure under State law, or CLIENT's filing of any proceeding under
the United States Bankruptcy law will be a breach of this Agreement.
13. RESPONSIBILITIES OF ATTORNEYS AND CLIENT. CLIENT understands he
must cooperate with ATTORNEYS in the development of any litigation. CLIENT
understands that litigants must be available for depositions and the taking of
testimony, must provide all documentary evidence that is necessary to the
litigation or required by law, and the necessary actions to locate, catalogue
and obtain the documentary evidence must answer written questions posed by the
other side, must make such appearances as may be required at hearings and
trials, and must generally assist ATTORNEYS in understanding and presenting the
fact of the case. CLIENT understands that he must be truthful and cooperative
with ATTORNEYS, to the best of her knowledge and ability, keep ATTORNEYS
reasonably informed of developments, remain accessible to ATTORNEYS,
specifically keep ATTORNEYS advised of CLIENT's current address and telephone
number, and timely make any payments required by this Agreement. ATTORNEYS will
give CLIENT advance notice of the need to appear at depositions, or other
proceedings, the need to produce or review documents and other matters in the
litigation that will require the time and attention of CLIENT.
14. DISCHARGE OF ATTORNEYS. CLIENT may discharge ATTORNEYS at any time
by written notice effective when received by ATTORNEYS. Unless specifically
agreed by ATTORNEYS and CLIENT, ATTORNEY will provide no further services and
advance no further expenses on MATTER behalf after receipt of the notice. If
ATTORNEYS are discharged without cause, CLIENT will remain obligated to pay
ATTORNEYS for all services provided, at their then-current full hourly rates,
and to reimburse ATTORNEYS for all expenses up to the time of receipt by
ATTORNEYS of the notice of discharge. For CLIENT's reference, ATTORNEYS' current
hourly rates are listed in paragraph 4 of this Agreement; however, such rates
may be changed from time to time by ATTORNEYS with or without notice to CLIENT.
Such services provided include all activities undertaken in providing legal
services to CLIENT under this Agreement, including, but not limited to, the
following: preparing for and attending conferences, court appearances,
depositions, and trial; preparing, reviewing, and analyzing correspondence,
pleadings, legal documents, and evidence; legal research; investigation;
meetings and telephone conversations.
15. WITHDRAWAL OF ATTORNEYS. ATTORNEYS may withdraw at any time as
permitted under the RULES OF PROFESSIONAL CONDUCT of the State Bar of
California. The circumstances under which the Rules either require or permit
such withdrawal include, but are not limited to, the following: (a) the CLIENT's
conduct renders it unreasonably difficult for ATTORNEYS to carry out the
employment effectively, or (b) the CLIENT fails to pay attorney's fees or
expenses as required by her agreement with ATTORNEYS. Without limitation,
ATTORNEYS may withdraw from representing CLIENT at any time, in ATTORNEYS'
opinion, that the MATTER does not appear sufficiently economically promising to
continue pursuing. If ATTORNEYS withdraw due to a breach by CLIENT of any term
Retainer Agreement Page 4 Imaging Services, Inc., Xxxx Xxxxx
of this Agreement, CLIENT will remain obligated to pay ATTORNEYS for all
services provided, at their then-current full hourly rates, and to reimburse
ATTORNEYS for all expenses up to the time of withdrawal by ATTORNEYS, as
described above.
16. DISCLAIMER OF GUARANTY. Although ATTORNEYS may offer an opinion
about possible results regarding the subject matter of this Agreement, ATTORNEYS
cannot guaranty any particular result. CLIENT acknowledges that ATTORNEYS have
made no promises about the outcome and that any opinion offered by ATTORNEYS in
the future will not constitute a guaranty. ATTORNEYS have not yet been provided
with CLIENT's existing files, and are being retained late in this litigation,
with proceedings pending and impending deadlines. ATTORNEYS shall not be
responsible for consequences resulting from their late hiring, or inability to
take actions due to lack of time or information.
17. ARBITRATION. CLIENT has been informed that all clients have the
right to have fee disputes arbitrated by the Los Angeles County Bar Association.
Whether or not CLIENT elects to have any fee dispute with ATTORNEYS arbitrated
by the Los Angeles County Bar Association, CLIENT and ATTORNEYS agree that
should any dispute, claim or controversy arise regarding their relationship, the
terms of this Agreement, the services provided under the Agreement (including
the competency of any services provided) or in any way arising out of or
relating to this Agreement or any modification to this Agreement, the dispute
will be finally determined by binding arbitration before an independent private
judge who has retired from the Los Angeles Superior Court or United States
District Court for the Central District of California. The independent private
judge shall follow the California State rules of evidence. Any matter that is
not submitted to or is not resolved by the Los Angeles County Bar Association,
and any matter that remains unresolved due to any rejection or vacating of an
award by the Los Angeles County Bar Association, must be submitted to final
binding arbitration in this matter. CLIENT and ATTORNEYS specifically waive
their rights to a jury trial of any dispute concerning legal services provided
by ATTORNEYS. All arbitrator's fees will be initially apportioned equally
between the parties, but the arbitrator shall reapportion arbitration fees as
part of the award of costs in favor of the prevailing party. All proceedings and
hearings will take place in Los Angeles, California. The parties elect to have
the substantive law of California apply to the arbitration, but the parties
acknowledge that the activities under this agreement affect interstate commerce
and the parties elect to apply the procedural law of the Federal Arbitration
Act. The parties agree that arbitration can be compelled by a court located in
Los Angeles County, California, that arbitration cannot be avoided by the filing
of any other lawsuit or proceeding, and that provisional or ancillary remedies
can be sought without waiver of arbitration rights.
CLIENT has had an opportunity to discuss this agreement to arbitrate
with ATTORNEYS, and with anyone else of CLIENT'S choosing. CLIENT understands
that, if CLIENT has any questions or concerns, CLIENT can obtain advice from
independent counsel regarding the agreement to arbitrate or any other term of
this Agreement. CLIENT understands that this agreement to arbitrate gives up
CLIENT'S rights to xxx or defend in Court, to have a jury or active judge to
hear and determine the dispute, to conduct discovery and to appeal any
determination by the arbitrator. Knowing that this agreement to arbitrate
deprives them of legal rights, CLIENT and ATTORNEYS freely and knowingly waive
those rights and enter into this agreement to arbitrate.
Retainer Agreement Page 5 Imaging Services, Inc., Xxxx Xxxxx
18. NOTICE/JURISDICTION. The parties agree that notice of any claim or
arbitration, service of process, notice, motion or other application may be
served by first class mail, e-mail, telegraph or telecopier on either party at
their regular business address. Furthermore, the parties confer jurisdiction on
the State and Federal courts in the County of Los Angeles for the purposes of
compelling arbitration and enforcing any arbitration award, as well as to
provide any provisional or ancillary relief, and the parties expressly reserve
any removal rights they may have under Federal law.
19. WAIVER OF CONFLICTS; INSURANCE COVERAGE. CLIENT has not disclosed
to ATTORNEYS any matters which, to the parties' knowledge, constitute potential
or actual conflicts of interest. CLIENT has been advised that ATTORNEYS have
represented Xxxxxxx Xxxxxxx, who is affiliated with CLIENT, and will continue to
do so. CLIENT specifically and knowingly waives and actual or potential
conflicts that may result from ATTORNEYS' representation of Xxxxxxx Xxxxxxx,
and authorize unfettered communication with Xxxxxxx Xxxxxxx concerning
representation of CLIENT in the MATTERS. The California BUSINESS AND PROFESSIONS
Code requires ATTORNEYS to notify CLIENT as to the existence of errors and
omissions insurance coverage applicable to the services to be rendered to
CLIENT. ATTORNEYS confirm that such coverage is maintained.
20. NO PRIOR SERVICES OR OPINIONS. CLIENT acknowledges and agrees that,
although communications have taken place between ATTORNEYS and CLIENT and
individuals affiliated with CLIENT which may relate to or concern this
Agreement, or the MATTERS which are the subject of this Agreement, no formal
representation has been undertaken prior to the execution of this Agreement, and
nothing ATTORNEYS have communicated shall be relied upon as statements of advise
or opinion. Moreover, no formal representation will be deemed to have occurred
prior to ATTORNEYS receipt of the agreed retainer payment. CLIENT acknowledges
that he has not relied upon or acted upon any communications with ATTORNEYS
prior to the date of this Agreement. CLIENT thus specifically waives the right
to assert that formal claims should have been filed by ATTORNEYS prior to the
expiration of any statute of limitations.
21. AUTHORITY TO ACT; BINDING NATURE OF AGREEMENT. CLIENT has the
absolute and unrestricted right, power and authority to enter into and to
perform her obligations under this Agreement. This Agreement constitutes the
legal, valid and binding obligation of the CLIENT, enforceable against the
CLIENT in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies.
Retainer Agreement Page 6 Imaging Services, Inc., Xxxx Xxxxx
22. ENTIRE AGREEMENT. This written agreement, in addition to any other
concurrently-executed written agreement, constitutes the entire agreement
between the parties as of the date of this Agreement.
THE FOREGOING AGREEMENT, INCLUDING THE TERMS REQUIRING ARBITRATION OF
DISPUTES, NON-REFUNDABLE RETAINER, WAIVERS OF CONFLICTS, COMMUNICATIONS WITH
DESIGNATED AGENT, AND THE RIGHT TO INDEPENDENT COUNSEL, IS UNDERSTOOD AND AGREED
TO BY THE UNDERSIGNED ATTORNEY AND CLIENT.
DATED: January 2, 2002 DATED: January 2, 2002
ATTORNEYS: CLIENT:
LAW OFFICES OF XXXX XXXXX, INDIVIDUALLY, AND
XXXXXXX X. XXXXXX IMAGING SERVICES, INC.
By /s/Xxxxxxx X. Xxxxxx By /s/Xxxx Xxxxx
XXXXXXX X. XXXXXX XXXX XXXXX
Retainer Agreement Page 7 Imaging Services, Inc., Xxxx Xxxxx
