NOBLE INTERNATIONAL INVESTMENTS, INC.
April 22, 2004
PERSONAL AND CONFIDENTIAL
Xxxx Xxxxxx, President
xXxxxxxxxxx.xxx, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter agreement ("Agreement") confirms the terms and conditions
of the exclusive engagement of Noble International Investments, Inc. ("Noble")
by eAutoclaims (the "Company") to render certain financial advisory and
investment banking services to the Company, on an exclusive basis, in connection
with the Company's on going plans to increase shareholder value.
1. Services. Xxxxx agrees to perform the following services:
(a) We shall assist you, as placement agent, in raising approximately
$0.5 to $3 million, on an exclusive basis, except for money that
has already been raised or is about to be raised through the
Company's prior efforts (the "Offering"). The terms of the Offering
have been mutually determined by the Company and Noble and will be
outlined in a term sheet to prospective investors. The Offering may
be in two tranches, the first of which will conclude by April 30,
2004 and the subsequent one to start approximately sixty days
thereafter and conclude approximately ninety days thereafter. The
terms of the subsequent Offering may differ from the first
Offering. We intend to approach only institutional or accredited
investors. The `book' or informational package that we will present
to investors will include a 10-K and most recent 10-Q. We will also
assist you in putting together a subscription agreement and a term
sheet, if necessary.
(b) Perform such other services as the Company and Noble shall mutually
agree to in writing.
2. Fees. The Company agrees to pay Noble for its services as follows:
(a) A "success" transaction fee ("Transaction Fee"), whereby the
Company accepts an investment and funds change hands from any
source during the Term of this engagement, of (i) a 10% (ten
percent) fee of the first $1 million raised and 8.5 % of the
balance raised up to $3 million, based on any gross proceeds
received by the Company from Noble's efforts. However, the Company
has the right to accept or reject any bids by such investors and
provided further, that if a bid is rejected, then the Company shall
have no liability to Noble; plus (ii) a 3% non-accountable expense
allowance of the gross proceeds raised up to a maximum of $30,000
and (iii) "cashless exercise" warrants to purchase a number of
units in the Company equal to 15% of the total units sold by Noble
in the Offering at an exercise price equal to the Offering price
per unit paid by the investors. Such warrants will have a three
year term and have customary anti-dilution clauses. The shares
underlying such unit warrants shall be registered along with the
shares being sold in this Offering.
(b) Upon the successful raise of at least $1.5 million, Xxxxx shall
have earned a "right of first refusal" to act as your exclusive
agent in any subsequent capital raises by the Company for a period
of twelve months. Our fees for capital raises, after the term of
this engagement, between $3 million and $6 million shall be 7.5
percent plus warrants similar to those above.
3. Term. The term of this Agreement shall commence on the date hereof
and end on the six month anniversary of the date hereof (the "Term"). This
Agreement may be renewed upon mutual written agreement of the parties hereto. If
the Company terminates this Agreement prior to the expiration of the Term, the
Company shall pay to Noble all fees earned in accordance with Paragraphs 2 and 4
hereof, respectively, and all fees which Noble would have been entitled to
receive pursuant to Paragraph 2(a) but for the termination. If Xxxxx terminates
this contract, the Company will pay all fees earned up to the termination date
in excess of the deposit. If a party introduced by Noble culminates a purchase
of securities in the Company within two years from the end of this agreement,
then Noble shall have earned a Transaction Fee as if this letter was still in
effect, unless Noble terminates this Agreement, for which the Company will have
no further liability.
4. Expenses. The Company shall bear all of its costs incidental to this
Offering, such as its legal, accounting and other miscellaneous out-of-pocket
such as travel and entertainment.
5. Indemnification. In addition to the payment of fees and reimbursement of
fees and expenses provided for above, the Company agrees to indemnify Noble and
its affiliates with regard to the matters contemplated herein, as set forth in
Exhibit A, attached hereto, which is incorporated by reference as if fully set
forth herein. Additionally, Noble and the Company shall indemnify each other
under the same terms as set forth in Exhibit A.
6. Matters Relating to Engagement. The Company acknowledges that Noble has
been retained solely to provide the services set forth in this Agreement. In
rendering such services, Noble shall act as an independent contractor, and any
duties of Noble arising out of its engagement hereunder shall be owed solely to
the Company. The Company further acknowledges that Noble may perform certain of
the services described herein through one or more of its affiliates.
The Company acknowledges that Noble is a securities firm that is engaged
in securities trading and brokerage activities, as well as providing investment
banking and financial advisory services. The Company acknowledges and agrees
that in connection with the performance of Xxxxx'x services hereunder (or any
other services) that neither Noble nor any of its employees will be providing
the Company with legal, tax or accounting advice or guidance (and no advice or
guidance provided by Xxxxx or its employees to the Company should be construed
as such) and that neither Xxxxx nor its employees hold itself or themselves out
to be advisors as to legal, tax, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own legal, tax, accounting and
other advisors concerning all matters and advice rendered by Noble to the
Company and the Company shall be responsible for making its own independent
investigation and appraisal of the risks, benefits and suitability of the advice
and guidance given by Xxxxx to the Company and the transactions contemplated by
this Agreement. Neither Noble nor its employees shall have any responsibility or
liability whatsoever to the Company or its affiliates with respect thereto.
The Company recognizes and confirms that in performing its duties
pursuant to this Agreement, Noble will be using and relying on data, material,
and other information (the "Information") furnished by the Company or their
respective employees and representatives. The Company will cooperate with Noble
and will furnish Noble with all Information concerning the Company which Noble
deems appropriate and will provide Noble with access to the Company's officers,
directors, employees, independent accountants and legal counsel for the purpose
of performing Noble's obligations pursuant to this Agreement. The Company hereby
agrees and represents that all Information furnished to Noble pursuant to this
Agreement shall be accurate and complete in all material respects at the time
provided, and that, if the Information becomes materially inaccurate, incomplete
or misleading during the term of Xxxxx'x engagement hereunder, the Company shall
promptly advise Noble in writing. Accordingly, Xxxxx assumes no responsibility
for the accuracy and completeness of the Information. In rendering its services,
Noble will be using and relying upon the Information without independent
verification evaluation thereof.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to the conflict
of laws provisions thereof.
8. No Brokers. The Company represents and warrants to Noble that there are
no brokers, representatives or other persons, which have an interest in
compensation due to Noble from any service contemplated herein or which would
otherwise be due any fee, commission or remuneration.
9. Authorization. The Company and Noble represent and warrant that each has
all requisite power and authority, and all necessary authorizations, to enter
into and carry out the terms and provisions of this Agreement and the execution,
delivery and performance of this Agreement does not breach or conflict with any
agreement, document or instrument to which it is a party or bound.
10. Miscellaneous. This Agreement constitutes the entire understanding and
agreement between the Company and Noble with respect to the subject matter
hereof and supersedes all prior understanding or agreements between the parties
with respect thereto, whether oral or written, express or implied. Any
amendments or modifications must be executed in writing by both parties. This
Agreement and all rights, liabilities and obligations hereunder shall be binding
upon and insure to the benefit of each party's successors but may not be
assigned without the prior written approval of the other party. If any provision
of this Agreement shall be held or made invalid by a statute, rule, regulation,
decision of a tribunal or otherwise, the remainder of this Agreement shall not
be affected thereby and, to this extent, the provisions of this Agreement shall
be deemed to be severable. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument. The descriptive
headings of the Paragraphs of this Agreement are inserted for convenience only,
do not constitute a part of this Agreement and shall not affect in anyway the
meaning or interpretation of this Agreement.
Please confirm that the foregoing correctly sets forth our agreement by
signing below in the space provided and returning this Agreement to Noble for
execution, whereupon Noble will send the Company a fully executed original
hereof which shall constitute a binding agreement as of the date first above
written.
Thank you. We look forward to a mutually rewarding relationship.
NOBLE INTERNATIONAL INVESTMENTS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AGREED TO AND ACCEPTED
AS OF THE ABOVE DATE
eAutoclaims
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Page 5
5/10/2004 eAutoclaims Letter
A-1
EXHIBIT A: INDEMNIFICATION
Each party to this Agreement agrees to indemnify the other party, its
employees, directors, officers, agents, affiliates, and each person, if any, who
controls it within the meaning of either Section 20 of the Securities Exchange
Act of 1934 or Section 15 of the Securities Act of 1933 (each such person,
including a party is referred to as "Indemnified Party") from and against any
losses, claims, damages and liabilities, joint or several (including all legal
or other expenses reasonably incurred by an Indemnified Party in connection with
the preparation for or defense of any threatened or pending claim, action or
proceeding, whether or not resulting in any liability) ("Damages"), to which
such Indemnified Party, in connection with providing its services or arising out
of its engagement hereunder, may become subject under any applicable Federal or
state law or otherwise, including but not limited to liability or loss (i)
caused by or arising out of an untrue statement or an alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
necessary in order to make a statement not misleading in light of the
circumstances under which it was made, (ii) caused by or arising out of any act
or failure to act, or (iii) arising out of Xxxxx'x engagement or the rendering
by any Indemnified Party of its services under this Agreement; provided,
however, that the indemnifying party ("Indemnifying Party") will not be liable
to the Indemnified Party hereunder to the extent that any Damages are found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Indemnified
Party seeking indemnification hereunder.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to any Indemnified Party.
If for any reason, other than a final non-appealable judgment finding an
Indemnified Party liable for Damages for its gross negligence or willful
misconduct the foregoing indemnity is unavailable to an Indemnified Party or
insufficient to hold an Indemnified Party harmless, then the Indemnifying Party
shall contribute to the amount paid or payable by an Indemnified Party as a
result of such Damages in such proportion as is appropriate to reflect not only
the relative benefits received by the Indemnifying Party and its affiliates, on
the one hand and the Indemnified Party on the other, but also the relative fault
of the Indemnifying Party and the Indemnified Party as well as any relevant
equitable considerations.
Page 6
5/10/2004 eAutoclaims Letter
A-2
Promptly after receipt by the Indemnified Party of notice of any claim or
of the commencement of any action in respect of which indemnity may be sought,
the Indemnified Party will notify the Indemnifying Party in writing of the
receipt or commencement thereof and the Indemnifying Party shall have the right
to assume the defense of such claim or action (including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of fees
and expenses of such counsel), provided that the Indemnified Party shall have
the right to control its defense if, in the opinion of its counsel, the
Indemnified Party's defense is unique or separate to it as the case may be, as
opposed to a defense pertaining to the Indemnifying Party. In any event, the
Indemnified Party shall have the right to retain counsel reasonably satisfactory
to the Indemnifying Party, at the Indemnifying Party's sole expense, to
represent it in any claim or action in respect of which indemnity may be sought
and agrees to cooperate with the Indemnifying Party and the Indemnifying Party's
counsel in the defense of such claim or action. In the event that the
Indemnifying Party does not promptly assume the defense of a claim or action,
the Indemnified Party shall have the right to employ counsel to defend such
claim or action. Any obligation pursuant to this Annex shall survive the
termination or expiration of the Agreement.
