eAutoclaims, Inc.
PLACEMENT AGENT AGREEMENT
December 14, 2004
Noble International Investments, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxx Xxxxx, XX 00000
Ladies and Gentlemen:
This agreement (Agreement") confirms the terms on which eAutoclaims, a
Nevada corporation (the "Company") has engaged Noble International Investments,
Inc. (the "Placement Agent") in connection with the proposed offering and sale
by the Company (the "Offering") of equity securities of the Company in the
aggregate amount of $2,500,000 in a private placement subject to Board approval.
1. Exclusive Engagement. The Company has engaged the Placement Agent to
act as sole placement agent on a best efforts basis only for the Offering. The
Company acknowledges and agrees that Placement Agent reserves the right not to
participate in the Offering and that Placement Agent's engagement hereunder is
not an agreement by Placement Agent or any of its affiliates to underwrite or
purchase any of the Company's securities or otherwise provide any financing.
During the period of Placement Agent's engagement under this Agreement (as
specified in Section 11 hereof), the Company will not, and will cause its
affiliates not to, initiate, solicit or enter into any discussions, negotiations
or agreements involving the issuance, offering or sale of the Securities (or any
other securities of the Company) to any third parties, except through Placement
Agent. In the event that the Company receives any inquiry concerning the
issuance, purchase or sale of the Securities (or any other securities of the
Company) during such period, the Company will promptly inform the Placement
Agent in writing of the terms of such inquiry and the identity of the party
making the inquiry.
2. The Offering.
Section 2.1 Rule 506 Offering. The Securities will not be registered
with the United States Securities and Exchange Commission (the "SEC") or any
state securities authority but will be offered pursuant to the exemption from
registration provided by Section 4(2) of the Securities Act of 1933, as amended
(the "Act"), or under Rule 506 of Regulation D promulgated under Act
("Regulation D") and applicable state securities laws. The Securities in the
Offering will be sold solely to accredited investors who either alone or with
their purchaser representative, have the knowledge and experience in financial
and business matters to be able to evaluate the merits
and risks of the investment (as that term is defined in Regulation D) pursuant
to a Subscription Agreement, Purchaser's Questionnaire Registration Rights
Agreement, Warrant Agreement and Term Sheet to be prepared by the Company
(cumulatively the "Offering Documents"). The Offering Documents also include the
Company's publicly available documents and reports as filed with the SEC as
attached as exhibits to the Subscription Agreement.
Section 2.2 Terms. This Placement Agent Agreement relates to the
Offering of $2,500,000 worth of Units (the "Units") of the Company. The price of
a Unit will be determined based on interest received by the investment
community,
Section 2.3 Capital Structure. The capital structure of the Company
consists of approximately 35.8 million basic and 60.7 million fully diluted
common shares outstanding, including all options, warrants and convertible
preferred securities issued and outstanding.
Section 2.4 Final Closing. Upon final Closing of the Offering, the
Company will file a registration statement within 30 days registering all common
shares from the Offering, which includes the common shares underlying the
warrants.
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3. Subscription Procedure. Each subscriber in the Offering (a
"Subscriber") will be required to complete and execute a Subscription Agreement
and a Purchaser's Questionnaire in the form attached to the Offering Documents
(the "Subscription Documents"). The Subscribers will be instructed to deliver
directly to the Placement Agent the completed Subscription Documents together
with a check made payable to the Company. There will be no escrowing of funds.
After the Placement Agent reviews the Subscription Documents, the Placement
Agent will forward a copy of the Subscription Documents that are properly
completed by accredited investors to the Company. The Company shall decide as
promptly as practicable after it receives Subscription Documents from the
Placement Agent (but in no event later than 2 business days after receipt of
such documents) whether or not to accept the subscription.
If the Company elects not to accept a subscription, it will notify the
Placement Agent in writing and that Subscriber's check will be returned to the
Subscriber by the Placement Agent.
If the Company elects to accept a subscription, an authorized officer
of the Company will immediately counter-sign the Subscription Documents and
forward a copy thereof to the Placement Agent upon receipt of which the
Placement Agent will forward that Subscriber's check to the Companypt
4. Closing. The completion of the purchase and sale of the Securities
shall take place on one or more occasions (each, a "Closing") and shall occur on
such dates as Subscription Acceptances occur (each, a "Closing Date"). Within
one week of each Closing Date, the Company shall deliver to each Subscriber
whose subscription has been accepted by the Company
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(hereinafter referred to as an "Investor"), via overnight courier, one or more
certificates or instruments representing the number of Securities purchased by
the Investor as shown on the Subscription Document, registered in the name of
the Investor, and a copy of that Investor's Subscription Documents
counter-signed by the Company.
5. Terms of Engagement.
Section 5.1 Fees. (a) As compensation for acting as Placement Agent for
the Offering, the Placement Agent will be entitled to receive a commission equal
to eight and one half percent (8.5%) of the aggregate offering price of all
Securities sold in the Offering (the "Placement Agent's Fee") plus a 2% non
accountable expense allowance of all Securities sold of which a non-refundable
deposit of $15,000.00 is payable upon signing this letter. The deposit is
intended to cover the Placement Agent's time and expenses incurred in connection
with the Offering. The Placement Agent shall not be required to make an
accounting to the Company with respect to said expenses. On the last Closing
Date of the Offering, the Company shall issue to the Placement Agent and/or its
affiliates Five (5) year cashless exercise warrants to purchase a number of
Units equal to fifteen percent (15%) of the total number of Units issued in the
Offering exercisable at 100% of the per Unit price (the "Placement Agent's
Warrants"). The Placement Agent's Warrants, which includes all common shares in
the Units and all common shares underlying the warrants in the Unit, will be
registered in the registration statement, which will be filed within 30 days
from the final closing. The Company will at all time reserve and keep available
such number of shares of its Common Stock as will be sufficient to permit the
exercise in full of the Placement Agent's Warrant, including the Unit Warrants.
Upon exercise of this Placement Agent's Warrant pursuant to its terms the
Holder(s) will acquire fully paid and non-assessable Unit Shares and Unit
Warrants, free and clear of any liens, claims or encumbrances.
Section 5.2 Matters Relating to Engagement. The Company acknowledges
that the Placement Agent 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 and agrees that Noble is not,
and does not hold itself out to be, an advisor as to legal, tax, accounting or
regulatory matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the risks, benefits and suitability
of the transactions contemplated by this letter agreement, and Noble shall have
no responsibility or liability to the Company with respect thereto.
6. Representations and Warranties of the Company. The Company
represents and warrants with Placement Agent as follows:
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(a) It is duly organized, validly existing and in good
standing under the laws of Nevada and is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is required by
law;
(b) the Company has all requisite power and authority to enter
into this Subscription Agreement and to sell the Units as provided herein;
(c) the Company is current in its periodic reporting
obligations under the 1934 Act;
(d) the Offering Documents have been duly executed and
delivered on its behalf and constitutes its legal, valid and binding agreement,
enforceable in accordance with their terms (which include the Shares as part of
Unit and Shares underlying the Warrant);
(e) the execution, delivery and performance of the Offering
Documents for the sale and delivery of the Units, and compliance with the
provisions hereof by the Company, do not and will not, with or without the
passage of time or the giving of notice or both, (i) violate its organizational
documents or any provision of law, statute, ordinance, rule or regulation or any
ruling, writ, injunction, order, judgment or decree of any court, administrative
agency or other governmental body, or (ii) result in any breach of any of the
terms, conditions or provisions of, or constitute a default (or give rise to any
right of termination, cancellation or acceleration) under any note, indenture,
mortgage or lease, or any other material contract or other instrument, document
or agreement, to which the Company is a party or by which it or any of its
property is bound or affected;
(f) all consents, approvals or authorizations of, or
registrations, filings or declarations with, any governmental authority, stock
exchange or market, the Company's board of directors and shareholders, or any
other person, required in connection with the execution, delivery and
performance of this Subscription Agreement or the transactions contemplated
hereby have been obtained by the Company and are in full force and effect;
(g) there are no actions, investigations, demands, suits or
proceedings pending or threatened against or affecting the Company or affecting
the rights of the Company to enter into this Subscription Agreement or
consummate the transactions contemplated hereby;
(h) the Company has complied with all applicable laws,
statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions,
rules, regulations, permits, licenses, authorizations, directions and
requirements of governmental entities, except for such non-compliance which
would not reasonably be expected to have a material adverse effect on it;
(i) the Company has correctly prepared and filed all tax
returns or reports that are required to have been filed in any jurisdiction, and
has timely paid in full all taxes due and payable with respect thereto;
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(j) upon consummation of the purchase contemplated hereby, the
Common Stock issued to Investor shall have been duly and validly authorized and
issued, fully paid and non-assessable and free and clear of all liens, pledges,
security interests and encumbrances;
(k) in reliance on the investment representations made by the
Investor contained herein, the offer, issuance, sale and delivery of the Units,
are exempt from the registration requirements of the 1933 Act and all applicable
state securities laws;
(l) each report, schedule, effective registration statement,
definitive proxy statement and each other document filed by the Company with the
SEC since December 31, 2002 (as the documents may have been amended since the
time of their filing, the "Commission Documents") has been made available to the
Investor either by physical delivery or via the SEC's XXXXX System. As of their
respective filing dates, each Commission Document complied in all material
respects with the requirements of the 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the SEC thereunder applicable to the Commission
Documents, and no Commission Document contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements included in the Commission Documents were prepared in accordance with
United States generally accepted accounting principles, applied consistently
with the past practices of the Company (except as may be indicated in the notes
thereto), and as of their respective dates, fairly present, in all material
respects, the consolidated financial position of the Company and the results of
its operations as of the time and for the periods indicated therein and complied
as to form in all material respects with then applicable accounting requirements
and with the published rules and regulations of the SEC with respect thereto;
(m) since January 31, 2004, except as disclosed in the
Commission Documents filed subsequent to that date, there has not been any
material adverse change in the business, financial condition or operating
results of the Company; and
(n) the Company has not since December 31, 2003, received
notice (written or oral) from any stock exchange or market on which its common
stock is or has been listed (or on which it has been quoted) to the effect that
it is not in compliance with the continuing listing or maintenance requirements
of such exchange or market.
7. Covenants of the Company. The Company and Placement Agent covenant
and agree as follows:
Section 7.1 Compliance with Laws. The sale and issuance of the Units
shall be made in accordance with the provisions and requirements of the Act,
Regulation D and any applicable state and local law. Neither the Company nor any
of its affiliates will take any action in connection with the Offering, which
would cause the Offering not to comply with Section 4(2) of the Act or Rule 505
of Regulation D promulgated there under. The Company will make a timely filing
of Form D (and all necessary amendments) pursuant to the requirements of
Regulation D. The Company and Placement Agent shall exercise reasonable care to
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assure that the Investors are not underwriters within the meaning of Section
2(11) of the Act and shall take all actions required by Rule 502(d) of
Regulation D. The Company, in its sole discretion, will not accept a
subscription from an Investor if the Company has reason to believe that material
information supplied by or material representations or warranties made by such
Investor are not fully accurate. The Company shall reasonably believe,
immediately prior to making any sale, that each Investor is an accredited
investor, and either alone or with his purchaser representative, has such
knowledge and experience in financial and business matters that such Investor is
capable of evaluating the merits and risks of a purchase of the Securities and
otherwise meets the suitability standards set forth in the Offering Documents.
Offering Documents confidential and shall not distribute it or any other
materials related to the transaction contemplated hereby, or otherwise advertise
to or solicit purchasers of the Securities, without the express written consent
of the Placement Agent. Neither the Company, the Placement Agent nor any of its
affiliates nor any distributor, independent contractor or any person acting on
its or their behalf (i) has conducted or will conduct any general solicitation
(as that term is used in Regulation D) or general advertising with respect to
any of the Securities, or (ii) has made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
prevent the issuance of the Securities or the Common Stock issuable upon the
conversion of the Securities from qualifying the Securities from an exemption
from registration under the Act.
Section 7.2 Offering Documents. The Offering Documents, the appendices
and exhibits attached thereto, information incorporated by reference therein and
the financial statements of the Company and the related notes thereto included
therein, and all amendments and supplements thereto in the form delivered to the
Investors prior to a Closing and at any Closing Date will be prepared in
compliance with, and include the disclosure required by, the Act (assuming offer
and sales solely to accredited investors) and the rules and regulations
promulgated thereunder, and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make any statements therein, in the light of the circumstances under which
they are made, not misleading.
Section 7.3 Delivery and Amendment of Offering Documents. Up to and
through the final Closing Date if any event shall occur as a result of which the
Offering Documents or any exhibits thereto would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, when such Offering Documents was delivered, not misleading or for any
other reason it shall be necessary to amend or supplement the Offering Documents
or to file under the Exchange Act any document incorporated by reference in the
Offering Documents in order to comply with the Act or the Exchange Act, the
Company shall immediately notify the Placement Agent in writing to suspend
offers for sale and solicitations of purchases of the Units. If the Company
shall determine to amend or supplement the Offering Documents, the Company will
so advise the Placement Agent and will promptly prepare an amendment or
supplement to the Offering Documents (or in the case of a document required
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under the Exchange Act, prepare and file such document with the SEC) that will
correct such statement or omission or effect such compliance and will advise the
Placement Agent when it may resume offers for sale, and solicitations of
purchases, of the Securities. The Company will immediately thereafter deliver to
the Placement Agent without charge as many copies of the supplemented or amended
Offering Documents as the Placement Agent may reasonably request for the
purposes contemplated by this Agreement.
Section 7.4 Offering Documents Offering Expenses. The Company will pay
all expenses, fees and taxes in connection with (a) the preparation and printing
of copies of the Offering Documents and all amendments and supplements thereto,
including in each case all documents incorporated by reference therein (b) the
delivery of the Securities, (c) the furnishing of certificates referred to
herein and (d) the preparation and filing of the Registration Statement and the
printing, copying and delivery of a reasonable number of prospectuses to each
Investor.
Section 7.5 Regulatory Compliance. The Company will qualify the
Securities and the Common Stock issuable upon conversion of the Securities for
offer and sale as contemplated hereby in such states as the Subsidiaries are
residents and to continue such qualifications in effect for two (2) years from
the final Closing date for the purchase of Units; provided that the Company
shall not be required to qualify as a foreign corporation or dealer in
securities or to a general consent to service of process or to file an annual
report in any jurisdiction.
Section 7.6 Registration Rights. Within thirty (30) days of the final
Closing Date, the Company will file a registration with the SEC registering for
resale all the Units and all common shares and the common shares underlying the
warrants, as described in the Registration Rights Agreement. The Company shall
cause the Registration Rights Agreement to remain in full force and effect and
the Company shall comply in all respects with the terms thereof. Prior to the
first Closing, the Company and Placement Agent will mutually agree upon a
Penalty Clause provision as to the effectiveness of the Registration Statement.
Section 7.7 Registration Statement. The Company will promptly notify
the Placement Agent in writing upon the occurrence of any of the following
events regarding any Registration Statement (or related prospectus) registering
any of the Securities: (a) receipt of any request for additional information by
the SEC or any other federal or state governmental authority during the period
of effectiveness of the Registration Statement, or for amendments or supplements
to the Registration Statement or related prospectus; (b) the issuance by the SEC
or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (c) receipt of any notification with respect
to the suspension of the qualification or exemption from qualification of any of
the Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; (d) the happening of any event that makes any
statement made in such Registration Statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect so that such documents will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, in
the light of the circumstances under which such statements were made, not
misleading; and (e) the Company's reasonable determination that a post-effective
amendment to the registration statement would be appropriate. The Company will
promptly make available to the Placement Agent and the Investors any such
supplement or amendment to the related prospectus.
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Section 7.8 Exchange Act Registration; Public Information. For a period
of two (2) years from the final Closing, Tthe Company shall cause its Common
Stock to continue to be registered under Section 12(g) or 12(b) of the Exchange
Act, will comply in all respects with its reporting and filing obligations under
the Exchange Act, and will not take any action or file any document (whether or
not permitted by said Act or the rules thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations
under the Exchange Act, unless otherwise decided by a vote of the Company's
shareholders.
Section 7.9 Listing. For a period of two (2) years from the effective
date of the registration statement, the Company shall maintain the listing and
qualification of its Common Stock (including the Common Stock issuable upon
conversion of the Securities) on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National or Small Cap Market or the OTC Bulletin Board,
unless otherwise decided by a vote of the Company's shareholders.
Section 7.10 Issuance of Securities. The Units and the Common Stock
issuable upon the conversion or exercise of the Units will be properly issued
pursuant to Section 4(2) of the Act, a Regulation D and all applicable state
law. The Units and when issued, the shares of Common Stock issuable upon
conversion of the Units will be duly and validly issued, fully paid, and
nonassessable. Neither the sales of the Units pursuant to, nor the Company's
performance of its obligations under, this Agreement not the transactions
contemplated by this Agreement will (i) result in the creation or imposition of
any liens, charges, claims or other encumbrances upon the Units, the shares of
Common Stock issuable upon the conversion of the Units or any of the assets of
the Company, or (ii) entitle the holders of any of the Company's outstanding
securities to preemptive or other rights to subscribe to or acquire the shares
of Common Stock or other securities of the Company. The Units shall not subject
the Investors to personal liability by reason of the ownership thereof. The
Company shall at all times have authorized, and reserved for the purpose of
issuance, a sufficient number of shares of Common Stock to provide for the full
conversion or exercise of the outstanding Units. The Company shall not reduce
the number of shares of Common Stock reserved for issuance upon conversion or
exercise of Units without the consent of the Company's shareholders.
8. Conditions to Placement Agent's Obligations. The obligations of the
Placement Agent hereunder shall be subject, to the following conditions:
Section 8.1 Representations, Warranties and Covenants. All
representations, warranties covenants and other statements of the Company herein
(including without limitation those contained in Section 7 and 8 hereof) and in
the Offering Documents shall on all Closing Dates be true and correct and the
Company shall have performed all of its obligations hereunder.
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Section 8.2 Disclosure. Except as disclosed in the Offering Documents,
subsequent to the respective dates as of which information is given in the
Offering Documents through and on any Closing Date, there shall not have been
(a) any material adverse change in the business, financial condition,
operations, assets, properties or prospects described or referred to in the
Offering Documents, or the results of operations, condition (financial or
otherwise) earnings, operations, business or business prospects, of the Company,
(b) any transaction that is material to the Company, except transactions in the
ordinary course of business and except as described in the Offering Documents,
(c) any obligation that is material to the Company, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course of
business, (d) any change in the capital stock or outstanding indebtedness of the
Company, which is material to the Company, except for the exercise of stock
options disclosed as outstanding, or (e) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company.
Section 8.3 Certificates. On or prior to each Closing Date, the
Placement Agent shall receive a certificate of the Company, dated as of such
date, signed by the Chief Executive Officer and Chief Financial Officer of the
Company in the form attached hereto as Exhibit A. The Company shall have
furnished to the Placement Agent such other affidavits and certificates as to
the accuracy and completeness of any statement in the Offering Documents as of
or prior to any Closing Date and as to any other matter in connection with the
transactions contemplated hereby as the Placement Agent may reasonably request.
Section 8.4 Legal Opinion on Subscription Date. The Company's
independent counsel shall deliver to the Placement Agent on the final Closing
Date an opinion.letter.
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9. Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless the
Placement Agent and any person who controls the Placement Agent within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and all
employees of the Placement Agent (the "Placement Agent Affiliates") from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Placement Agent Affiliates
controlling person may incur insofar as such loss, expense, liability or claim
arises out of (i) any breach by the Company of any representation, warranty or
covenant contained herein or in any of the agreements referenced herein, (ii)
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Offering Documents or Registration Statement, (ii) based upon
any omission or alleged omission to state a material fact required to be stated
in either such Offering Documents or Registration Statement necessary to make
the statements made therein not misleading, or (iv) any cause of action, suit or
claim, derivative or otherwise, by any stockholder of the Company based on a
breach or alleged breach by the Company or any of its officers or directors of
their fiduciary or other obligations to the stockholders of the Company, except
insofar as any such loss, expense, liability or claim based upon any untrue
statement of a material fact contained in and in conformity with information
furnished in writing by the Placement Agent or any Placement Agent Affiliates to
the Company expressly for use with reference to such Placement Agent in such
Offering Documents or Registration Statement.
If any action is brought against the Placement Agent or any Placement
Agent Affiliate in respect of which indemnity may be sought against the Company
pursuant to the foregoing paragraph, the Placement Agent shall notify the
Company in writing of the institution of such action and the Company shall
assume the defense of such action, including the employment of counsel and
payment of all expenses related to such action including without limitation
attorney and paralegal fees. The Placement Agent shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Placement Agent unless (i) the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such action, (ii) or the Company Agent shall not have employed
counsel to have charge of the defense of such action, (iii) or such indemnified
party or the Placement Agent shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses shall be
borne by the Company and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one separate
counsel in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). Anything
in this paragraph to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without the
written consent of the Company.
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(b) The Placement Agent agrees to indemnify, defend and hold the
Company harmless from and against any loss, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company incurs insofar as such loss, expense, liability or claim (i) arises
out of or is based upon any untrue statement of a material fact contained in and
in conformity with information furnished in writing by the Placement Agent to
the Company expressly for use with reference to the Placement Agent in the
Offering Documents or Registration Statement, or (ii) arises out of or is based
upon the negligence or misconduct of the Placement Agent with respect to this
Agreement as determined in a final judgment by a Court of competent jurisdiction
from which no appeal can be or is taken. Neither the Placement Agent nor any
Placement Agent Affiliate shall have any liability (whether direct or indirect,
by statute, in contract or tort or otherwise) to the Company or to any third
party in connection with the Registration Statement or the resale by the
Investors of the Securities or the shares of Common Stock issuable upon
conversion of the Securities.
If any action is brought against the Company or any of the Company
Affiliates or any such person in respect of which indemnity may be sought
against the Placement Agent pursuant to the foregoing paragraph, the Company
shall promptly notify the Placement Agent in writing of the institution of such
action and the Placement Agent shall have the right to assume the defense of
such action, including the employment of counsel and payment of expenses. The
Company shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company unless
(i) the employment of such counsel shall have been authorized in writing by the
Placement Agent in connection with the defense of such action, (ii) or the
Placement Agent shall not have employed counsel to have charge of the defense of
such action, (iii) or such indemnified party or the Company shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Placement Agent (in
which case the Placement Agent shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such reasonable fees and expenses shall be borne by the Placement Agent
and paid as incurred (it being understood, however, that the Placement Agent
shall not be liable for the expenses of more than one separate counsel in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, the Placement Agent shall not be
liable for any settlement of any such claim or action effected without the
written consent of the Placement Agent.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 with respect of any losses, expenses, liabilities or claims referred
to therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Placement Agent on the other
hand from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
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appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Placement Agent on the other in connection with the statements or omissions
which resulted in such losses, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Placement Agent on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (net of the
Placement Agent Fee but before deducting expenses) received by the Company bear
to the Placement Agent Fee. The relative fault of the Company on the one hand
and of the Placement Agent on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission relates to information supplied
by the Company or by the Placement Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, expenses, liabilities and claims referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(d) The Company and the Placement Agent agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, the Placement Agent shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities were sold exceeds the amount of any damages which
the Placement Agent has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the Placement Agent or any Placement Agent
Affiliate, or by or on behalf of the Company, shall survive any termination of
this Agreement or the issuance and delivery of the Securities and shall not be
deemed to be exclusive remedies with respect to a breach of this Agreement. The
Company and the Placement Agent agree promptly to notify the other of the
commencement of any litigation or proceeding against it and, in the case of the
Company, and in the case of the Placement Agent, any Placement Agent Affiliate,
in connection with the issuance and sale of the Securities, or in connection
with the Offering Documents or Registration Statement. The contribution
provisions contained in this Section 9 are in addition to any other rights or
remedies which either party hereto may have with respect to the other or
hereunder.
10. Survival of Certain Provisions. The indemnity and other agreements
contained in Section 9 hereof and the representations and warranties and other
statements of the Company set forth in this Agreement or made by the Company
pursuant to this Agreement (including without limitation those contained in
Section 6 and 7 hereof) shall remain in full force and effect, regardless of (a)
any termination of this Agreement or any of the agreements referred to herein,
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(b) any investigation made by or on behalf of the Placement Agent or any of its
controlling persons or by or on behalf of the Company or any of its officers,
directors or controlling persons and (c) acceptance of delivery of and payment
for Shares regardless of any due diligence investigation.
11. Effective Time; Termination.
(a) This Agreement shall become effective on the date hereof.
(b) The Placement Agent shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 4 and 6 hereof, except that the Company shall remain
obligated to pay costs and expenses to the extent provided in Section 4 of this
Agreement.
(c) In the event that a minimum Closing shall not have occurred on or
before 60 days after the date hereof, this Agreement shall terminate at the
close of business on such date. Any such termination shall be without liability
of any party to any other party except as provided in Sections 4, 6 and 8
hereof.
(d) In the event of any termination of this Agreement for any reason,
if a private placement of securities is consummated within one year following
such termination by the Company with a party that the Placement Agent contacted
regarding the Company pursuant to and as part of its engagement by the Company,
the Placement Agent shall be entitled to receive the Placement Agent's Fee, the
Expense Allowance, the Placement Agent's Warrants and all other amounts provided
for in this Agreement, as if this Agreement had not been terminated.
12. Notice. Except as otherwise specifically provided herein, all
statements, requests, notices and advice hereunder shall be in writing, or by
telephone or telegram if subsequently confirmed in writing, and, if to the
Placement Agent, shall be sufficient in all respects if delivered or sent to the
Placement Agent at the address set forth in the Offering Documents, and, if to
the Company, shall be sufficient in all respects if delivered or sent to the
Company at the address of its principal place of business set forth in the
Offering Documents. Notice shall be deemed given upon the date of delivery or
the date such notice is sent via nationally recognized overnight courier.
13. Successors and Assigns. This Agreement shall inure solely to the
benefit of the Company and the Placement Agent and, to the extent provided in
Section 13 hereof, to any person or entity named in such Section. No other
person, partnership, association or corporation shall acquire or have any right
under or by virtue of this Agreement. The term successors shall not include any
purchaser of any Securities merely because of such purchase. The respective
rights and obligations of the Company and the Placement Agent hereunder may not
be assigned, transferred or contracted to another.
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14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of Pinellas County in the State of Florida
without regard to conflicts of law principles.
15. Entire Agreement. This Agreement is the complete and entire
agreement among the parties with respect to the offer and sale of the Securities
and supersedes all prior written and oral communications with respect thereto,
specifically including any engagement letter with respect to the matters
addressed herein between the Company and the Placement Agent. This Agreement may
be amended only in a writing signed by both parties hereto.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Anti-Dilution Rights. The securities shall be subject to adjustment
as follows:
(a). The warrant exercise price (defined in Section 2.2) shall be adjusted when
and as needed pursuant to the actual Warrant Agreement between Purchasers and
the Company.
Section 17.1. Notice of Adjustment.
(a) The Company hereby agrees that whenever any adjustment of the
number of Units occurs or the securities underlying the Unit or Warrants, the
Company shall promptly notify the Purchaser, by first class mail, postage
prepaid, of such adjustment and shall deliver to the Purchaser a certificate of
the Chief Financial officer of the Company, setting forth in reasonable detail
(i) the number of Warrant Shares purchasable upon the exercise of the Warrants
and the Exercise Price of the Warrants after such adjustment, (ii) the
additional shares of the Company's common stock, options and warrants,(iii) a
brief statement of the facts requiring such adjustment and (iv) the computation
by which such adjustment was made.
THIS SPACE INTENTIONALLY LEFT BLANK
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Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
Very truly yours,
EAUTOCLAIMS, INC.
By:
--------------------------------------------
Its:
---------------------------------------------
AGREED AND ACCEPTED:
NOBLE INTERNATIONAL INVESTMENTS, INC.
By:
-----------------------------------------
Its:
----------------------------------------
3/15/2005 2:02 PM
41287.102070
#331253 v1 - eAUTO - Placement Agent Agt.
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EXHIBIT A
Form of Officers' Certificate
Each of Xxxx Xxxxxx, President of eAutoclaims and Xxxxx Xxxxx, CFO of
eAutoclaims, pursuant to the Placement Agent's Agreement, dated December 14 _,
2004 (the "Placement Agent's Agreement"), between the Company and Noble
International Investments, Inc. hereby certify that:
Since the date as of which information is given in the Offering
Documents, (a) the Company has not incurred any liabilities or obligations,
contingent or otherwise, that are material (individually or in the aggregate) to
the Company, taken as a whole, except in the ordinary course of business,
including accounts payable as disclosed in the Financial Statements and notes
thereto (b) there has been no material adverse change in the condition or
results of operations, financial or otherwise, of the Company; (c) there has
been no document required to be filed under the Act or the Exchange Act and the
rules and regulations thereunder that has not been so filed, (d) no order
preventing the Closing is in effect and no proceedings for that purpose are
pending or threatened by the Commission, and (e) all representations, warranties
and covenants of the Company herein are true as of such Closing Date.
The representations and warranties of the Company in the Placement
Agent's Agreement are true and correct as of the date hereof as though made on
and as of this date;
The Company has performed all obligations and satisfied all conditions
to be performed and satisfied by it pursuant to the Agreements (as defined in
the Placement Agent's Agreement) at or prior to the date hereof; and
We have examined the Offering Documents and as of the date hereof, the
Offering Documents does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
IN WITNESS WHEREOF, each of ______ and ______ has signed his name on
behalf of the Company this ___ day ______, _______.
-------------------------------- ------------------------------------
Xxxx Xxxxxx, President Xxxxx Xxxxx, CFO
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