Exhibit 99.5
NOBLE INTERNATIONAL INVESTMENTS, INC.
March 2, 2006
PERSONAL AND CONFIDENTIAL
Mr. Xxxx Xxxxxx, CEO
eAutoclaims, Inc.
000 X. 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, Inc (the "Company") to render certain financial advisory and
investment banking services to the Company, on an exclusive basis, (the
"Transaction").
1. Services. Noble agrees to perform the following services:
(a) We shall assist you in structuring and in communicating an
offer to have existing warrant holders exercisetheir warrants
for cash and receive the registered shares pursuant to the
existing Form S-1. The Company will issue holders which
exercise a separate and new warrant on a private placement
basis with registration rights.
2. Fees. The Company agrees to pay Noble for its services as follows:
(a) A "success" transaction fee ("Transaction Fee"), whereby
proceeds from the Transaction are realized. The fee shall
equal 3.5% of all cash received, not including proceeds from
the Company's Board members.
3. Term. The term of this exclusive Agreement shall commence on the date
hereof and end on or about March 31, 2006(unless extended with the mutual
consent of Noble and the Company.
4. Expenses. The Company shall bear all of its costs incidental
to the transaction , such as its legal, accounting (if any) and other
miscellaneous out-of-pocket such as travel and entertainment. Noble shall be
responsible for its own expenses.
5. Indemnification. In addition to the payment of fees and
reimbursement of fees and expenses
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March 2 eAutoclaims, Inc.
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 shall indemnify the Company 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 Noble's 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 Noble or its employees to the Company should be
construed as such) and that neither Noble 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 Noble 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 Noble's engagement hereunder, the Company shall
promptly advise Noble in writing. Accordingly, Noble 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.
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March 2 eAutoclaims, Inc.
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. Noble shall have no solicitation rights to the new
warrants being issued. 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, whereupon
Noble will send the Company a fully executed original hereof which shall
constitute a binding agreement as of the date first above written.
NOBLE INTERNATIONAL INVESTMENTS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
AGREED TO AND ACCEPTED
AS OF THE ABOVE DATE:
eAUTOCLAIMS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
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March 2 eAutoclaims Letter
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 Noble's engagement or the rendering
by any Indemnified Party of its services under this Agreement; provided,
however, that the indemnifying party ("Imdemnifying 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.
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
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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.
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