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EXHIBIT 10.2
Execution Copy
PLACEMENT AGENT AGREEMENT
This
Placement Agent Agreement, dated as of April 30, 2008 (the
“ Agreement ”), among BROADPOINT CAPITAL,
INC. (f/k/a FIRST ALBANY CAPITAL INC.) (“
Broadpoint ”), a New York corporation, and FA
TECHNOLOGY HOLDING, LLC, a Delaware limited liability company
(“ Fund Sponsor ”).
WHEREAS,
Fund Sponsor expects to begin fundraising for a new venture
capital fund, FA Technology Ventures III, L.P. (the
“Fund”) and to offer, sell and issue limited
partner interests in the Fund (“ Interests
”), as described in the Fund’s Confidential
Private Placement Memorandum dated October, 2007 (the “
Memorandum ”), and to sell Interests to eligible
persons as described in the Memorandum and the
Fund’s subscription documents;
WHEREAS,
this Agreement is being entered into pursuant to Section 4 of
the Transition Agreement dated as of April 30, 2008 among
Broadpoint Securities Group, Inc., Fund Sponsor, FA Technology
Ventures Corporation and certain other parties;
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable
consideration, the value of which is hereby acknowledged, the
parties hereto agree as follows:
1.
Appointment
of Placement Agent.
(a)
The
Fund Sponsor hereby appoints Broadpoint as the Fund’s
non-exclusive placement agent to privately solicit offers for the
purchase of Interests from persons with which Broadpoint and/or its
affiliates have pre-existing relationships.
(b)
Prior
to soliciting such offers, Broadpoint will present the Fund Sponsor
with a list of the target investors to be solicited (the “
Target List ”), which Target List shall be subject to
the approval of the Fund Sponsor. Any investor on the
Target List approved by the Fund Sponsor shall be referred to
herein as a Target Investor.
(c)
Notwithstanding
any provision to the contrary herein, the General Partner of the
Fund may, at its sole discretion, reject any subscription for
Interests in whole or in part at any time prior to
acceptance.
(d)
With
respect to the solicitation of offers from Target Investors to
purchase Interests, the Fund Sponsor and Broadpoint agree as
follows:
(i)
It
being acknowledged that Broadpoint has already approved the form of
base offering memorandum that the Fund Sponsor proposes to use in
soliciting offers to invest in the Fund, the Fund Sponsor and
Broadpoint shall each have the right to approve in advance any
changes to such base offering memorandum to be distributed to
Target Investors, as well as any form of supplemental offering
memorandum or other offering materials distributed to the Target
Investors; provided , however , that any such
changes, supplements or other materials shall be deemed to be
approved by Broadpoint unless Broadpoint objects within 10 days of
delivery of such materials and, provided , further ,
that due diligence material provided to Target Investors, are not
subject to prior approval by Broadpoint;
(ii)
Broadpoint
and the Fund Sponsor acknowledge and agree that the Interests have
not been and will not be registered under the 1933
Act. Neither the Fund Sponsor nor Broadpoint, nor their
affiliates nor any person acting on behalf of the Fund Sponsor or
Broadpoint or their affiliates has offered or sold, or will offer
or sell, any Interests, by any form of general solicitation or
general advertising, including any advertisement, article, notice
or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or any seminar
or meeting whose attendees have been invited by any general
solicitation or advertising; and
(iii)
Broadpoint
and the Fund Sponsor acknowledge that no action has been or will be
taken that would permit a public offering of the Interests in any
jurisdiction in which action for that purpose is
required. Broadpoint and the Fund Sponsor agree that
they will comply with all applicable laws and regulations, make or
obtain all necessary filings, consents and approvals, and take such
other actions as may be required to permit offers and sales of the
Interests in each jurisdiction in which they offer any Interests or
distribute the Memorandum or any other sales literature relating to
the Interests, in each case at the Fund’s
expense.
(e)
Broadpoint
acknowledges that it is not authorized to give any information or
to make any representation relating to the Fund or the Interests,
other than those contained in the Memorandum and any sales
literature provided by the Fund Sponsor.
(f)
Applications
of Target Investors to subscribe for Interests shall be made in
writing (by letter or facsimile) to the Fund by completing a
subscription document or form, the original of which shall be
delivered to the Fund, or in such other manner as may be prescribed
by the Fund Sponsor from time to time.
(g)
The
amount of effort to be expended by Broadpoint pursuant to this
Agreement in soliciting offers from Target Investors to subscribe
for Interests shall be solely within the discretion of
Broadpoint. The Fund Sponsor shall have no claim against
Broadpoint if Broadpoint elects not to include on the list of
Target Investors one or more persons with which Broadpoint or its
affiliates have relationships that might be suitable investors in
the Fund, if Broadpoint fails to make any efforts or makes only
limited efforts to solicit offers to subscribe for Interests from
any Target Investors on such list or if any efforts made by
Broadpoint to solicit such offers are unsuccessful.
(h)
Broadpoint
will have a reasonable basis to believe immediately prior to making
any offer or sale of Interests to any Target Investor that such
Target Investor (i) is an “accredited investor,” as
that term is defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended, (ii) is a “qualified
purchaser,” as such term is defined in Section 2(a)(51) under
the Investment Company Act of 1940, as amended, and (iii) meets
such other eligibility criteria as are set forth in the
Memorandum.”
(i)
Broadpoint
will not negotiate on behalf of Fund Sponsor in any negotiations
between Fund Sponsor and any of the Target
Investors. Broadpoint shall provide commercially
reasonable assistance to the Fund Sponsor and the Fund to obtain
and provide information required to be included in any securities
law filings required to be made by the Fund or the Fund Sponsor
with any governmental authority. The Fund Sponsor shall
be solely responsible for the proper and timely preparation and
filing of such securities law filings.
2.
Suspension of Offering . The
provisions of this Agreement relating to the solicitation of offers
from Target Investors to purchase Interests may be suspended or
terminated at any time by the Fund Sponsor or Broadpoint upon the
giving of written notice of such suspension or termination to the
other parties hereto. Without limiting the generality of
the foregoing, if Broadpoint gives the Fund Sponsors written notice
that it is suspending the solicitation of offers from one or more
of the Target Investors identified in that notice, the Fund
Sponsors shall promptly cease all efforts to solicit offers from
such Target Investors to purchase Interests. In the
event of any suspension or termination prior to the occurrence of
the initial closing of any sale of Interests, no party shall have
any further obligations to any other party hereto pursuant to the
terms of this Agreement. In the event of any suspension
or termination by Broadpoint with respect to one or more Target
Investors, the Fund Sponsors agree not to make any further efforts
to solicit offers from such Target Investors to purchase
Interests. The representations, warranties and indemnity
provisions of this Agreement shall survive any termination or
suspension of this Agreement.
3.
Indemnification.
(a)
The
Fund Sponsor agrees to indemnify and hold harmless Broadpoint, and
its officers, directors, controlling persons, employees and
“affiliates” (as defined in Section 3(b) below, and,
together with such officers, directors, controlling persons, and
employees, “ Related Persons ”) from and against
any loss, liability, damage, cost and expense (including
attorneys’ and accountants’ fees and expenses incurred
in investigating or defending any demands, claims or lawsuits),
including, without limitation, any demands, claims or lawsuits
initiated by a Target Investor (or assignee thereof), actually and
reasonably incurred arising from (i) any act, omission, activity or
conduct undertaken pursuant to this Agreement by or on behalf of
the Fund or Fund Sponsor, (ii) a breach by the Fund Sponsor of any
representation, warranty or agreement in this Agreement or a breach
by or on behalf of the Fund Sponsor of any applicable laws or
regulations, or (iii) any actual or alleged misstatement of
material fact in the Memorandum or the Fund’s other offering
materials provided by the Fund Sponsor or omission from the
Memorandum or the Fund’s other offering materials of any
statements necessary to make the statement made therein, in light
of the circumstances under which they were made, not misleading;
provided , in the case of clauses (i) and (ii) above, that
the act, omission, activity or conduct that was the basis for such
loss, liability, damage, cost or expense was not adjudicated to be
the result of willful misconduct or gross negligence on the part of
the indemnified party or its Related Persons.
(b)
As
used in this Section 3 the term “ affiliate ” of
a person shall
mean: (i) any
natural person, partnership, corporation, association, or other
legal entity directly or indirectly owning, controlling, or holding
with power to vote 10% or more of the outstanding voting securities
of such person; (ii) any partnership, corporation, association, or
other legal entity 10% or more of whose outstanding voting
securities are directly or indirectly owned, controlled, or held
with power to vote by such person; (iii) any natural person,
partnership, corporation, association, or other legal entity
directly or indirectly controlling, controlled by, or under common
control with, such person; or (iv) any officer, director or partner
of such person.
(c)
In
case any proceeding (including any governmental investigation)
shall be instituted involving a person in respect of which
indemnity may be sought pursuant to Section 3(a), the person
seeking the indemnity (the “ indemnified party
”) shall promptly notify the person against whom such
indemnity may be sought (the “ indemnifying party
”) in writing; but the omission to so notify the indemnifying
party will not relieve the indemnifying party from any liability
which the indemnifying party may have to the indemnified party
hereunder, except where such omission has materially prejudiced the
indemnifying party. The indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent
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