Retention Agreement

Thank you for retaining Johnson Fistel, LLP to investigate your potential legal claims against or on behalf of the Company and certain of its key insiders and/or directors and to initiate a class action or derivative action should our investigation reveal that one is warranted.  The following sets forth the terms under which we will represent you, as well as your rights and responsibilities as a plaintiff.

1.    We will prosecute the action on a contingency fee basis, which means you will have no responsibility for legal fees or expenses.  Legal fees and expenses will be paid only out of or in addition to a recovery (i.e., judgment or settlement) and then only after notice to shareholders and as approved by the court.  Regardless of whether there is a recovery, there will be no fees or expenses due or payable by you.
2.    You agree that we may divide fees with other attorneys for serving as local or co-counsel, as referral fees, or for other services performed.  The division of attorneys’ fees with other counsel may be determined upon a percentage basis or upon time spent in assisting the prosecution of an action.  The division of fees with other counsel is our sole responsibility and will not increase the fees received by us upon a successful resolution of the litigation.
3.    If an action is filed, you understand that in agreeing to be a plaintiff, you are undertaking a fiduciary duty that requires you to fairly and adequately represent the interests of the class or the Company.  Here is what you must do to fulfill that responsibility:

  • a.  Be generally familiar with the litigation.  This does not mean you must know every aspect of this litigation.  We will keep you informed of major events and this will satisfy your duty.  We will also answer any questions you have about the status of the litigation and tactical decisions.
  • b.  Read the complaint and understand it generally.  You should know who the parties are and why you are suing.
  • c.  Confer with us at any time you feel it is necessary to do so.  Likewise, you need to be responsive if we feel it is necessary to discuss this matter.
  • d.  Vigorously prosecute the litigation by authorizing us to do what is necessary to successfully prosecute this case on behalf of the class or the Company.
  • e.  Participate in discovery.  If Defendants send written discovery or ask to depose you, we will assist in preparing responses and defend you at any deposition.
  • f.  Preserve all documents that relate to this case until it has concluded or we inform you otherwise.  Documents include any information you have about the Company, no matter how it is recorded or who is keeping it for you.  If you have any questions about whether information should be retained, please ask us before destroying any documents or electronic information.
  • g.  Do not expect special treatment.  You have not been promised any special treatment above the treatment that may be awarded to other shareholders.  If successful, we may, depending on the type of action and/or jurisdiction, ask the judge to award you additional compensation for the time and effort you expend in this matter.  You understand that while we may request it, we cannot guarantee that any court will award you any additional compensation.
  • h.  Understand that litigation is by its nature unpredictable.  It is not possible to warrant a successful result or represent that a particular result can be obtained within a given timeframe.  We appreciate your awareness of and patience with the pitfalls of litigation.
  • i.  If a derivative action is filed, continue to be a shareholder at all times.  A derivative action is on behalf of the Company, so to maintain standing you would have to hold at least some of your shares through the end of the litigation.  Should you decide you need to sell your shares in the Company, you must let us know in advance.