Exhibit 10.43
Placement Agent
Agreement
Alien Technology
Corporation & Advanced Equities, Inc.
Alien Technology Corporation, a
Delaware corporation (the “ Company ”), hereby
engages Advanced Equities, Inc., an Illinois corporation (“
PA ”), to assist the Company in obtaining financing
through a private placement, between the date of this Agreement and
February 28, 2005, of the Company’s Series G Preferred
Stock described in the attached Exhibit B (the “
Financing ”) as follows:
1. Services
.
(a) PA shall offer participation in
the Financing to potential investors which PA reasonably believes
are “accredited investors” as defined by Regulation D.
Any potential investor in the Financing first introduced by PA to
Company will be set forth on Exhibit A-1 (each, a “
Qualified Investor ”); provided ,
however , Qualified Investors shall not include persons that
are stockholders of the Company on the date of this Agreement or
those entities set forth on Exhibit A-2 .
(b) PA acknowledges that
(i) the Company is free to contact potential investors
directly and engage other agents on its behalf, (ii) the
Company may determine, in its sole discretion, whether to accept an
offered investment by a Qualified Investor and (iii) the
Company is not obligated to compensate PA for investments offered
to the Company that the Company does not accept. However, the
Company is obligated to accept investments in the Financing in the
aggregate amount up to $9 million from Qualified Investors that
(x) have completed the suitability questionnaire in a form
similar to Exhibit C and (y) the Company determines, in
its reasonable discretion based on such suitability questionnaires,
are accredited investors.
2. Compensation
.
(a) Cash Compensation. The
Company shall pay PA, as partial compensation for the services
provided by PA hereunder, a cash fee (the “ Cash Fee
”) equal to 5% of the excess of: (i) all funds invested,
on or before February 28, 2005, by Qualified Investors in the
Financing over (ii) $999,999.
(b) Warrant Compensation. The
Company shall issue PA, as the remainder of the compensation for
the services provided by PA hereunder, a warrant (the “
Warrant Fee ” and with the Cash Fee, collectively, the
“ Fee ”) in the form of the Warrant Agreement
attached as Exhibit D. The Warrant Agreement will be
exercisable for that number of shares of Series G Preferred Stock
equal to the product of: (i) the excess of the number of
shares of Series G Preferred Stock sold in the Financing to
Qualified Investors over 333,333, and (ii) (u) 0.05 for
shares sold on or before January 15, 2005, (v) 0.04 for shares
sold after January 15, 2005 but on or before January 22,
2005, (w) 0.03 for shares sold after January 22, 2005 but
on or before January 29, 2005, (x) 0.02 for shares sold
after January 29, 2005 but on or before February 5, 2005,
(y) 0.01 for shares sold after February 5, 2005 but on or
before February 12, 2005 and (z) 0.00 for shares sold
after February 12, 2005. In order for shares to be considered
sold under this Section 2(b) by a certain date, the Company or
its designated agent must have accepted possession of the
applicable investment funds by that date. In the event Company
accepts investments (including (i) the applicable funds from
each investor; (ii) signature pages to all the financing
agreements and any amendments from each investor; and
(iii) suitability questionnaire for each investor that provide
each such investor’s principal place of
business and accredited status) in
the Financing pursuant to Section 1(b) from Qualified Investors who
have committed subscriptions in the aggregate amount of $5 million
or more by January 15,
2005, January 22, January 29, February 5
or February 12, 2005, as the case may be, but the Company
elects to close on such investments after January 15,
2005, January 22, January 29, February 5
or February 12, 2005, respectively, PA will nevertheless be
entitled to receive the warrant coverage set forth in the preceding
sentence for the prior period on such portion of such investment
amount if and when the Company closes on such
investment.
3. Term
.
(a) Term. Unless and until
terminated as set forth herein, this Agreement will continue in
full force and effect for an initial term expiring at the earlier
of: (i) the final closing of the Financing; or
(ii) February 28, 2005; provided , however
, Sections 6, 7 and 8 shall survive the termination of this
Agreement.
(b) Renewal. Upon expiration
of this Agreement pursuant to Section 3(a)(ii) , the
Company may renew this Agreement on a month-to-month basis by
notice to PA at least 30 days prior to such expiration.
(c) Termination. (i) The
Company may terminate this Agreement immediately and without notice
in the event of breach by PA of this Agreement, and
(ii) either party may terminate this Agreement upon 30
days’ prior written notice to the other party for any reason
other than breach by PA of this Agreement. In the event the Company
terminates this Agreement pursuant to Section 3(c)(i),
PA will not be entitled to any unpaid Fee and the Company will be
entitled to all other remedies available under applicable law. In
the event the Company terminates this Agreement pursuant to
Section 3(c)(ii), PA will be entitled to the Fee with
respect to approved Qualified Investors if the Financing closes on
or before February 28, 2005.
4. Performance
. In connection with the performance of its duties under
this Agreement, PA agrees as follows:
(a) PA shall act in a manner
consistent with the instructions of the Company and comply with all
applicable laws, whether foreign or domestic, of each jurisdiction
in which PA proposes to carry on the business contemplated by this
Agreement. PA shall not take any action or omit to take any action
that would cause the Company to violate any law or any applicable
exemption from registration under the Securities Act or the
Securities Exchange Act.
(b) PA shall consecutively number
each copy of the Company’s Confidential Private Placement
Memorandum, as may be supplemented from time to time (the “
Memorandum ”), provided to it by the Company and shall
not distribute copies of any single numbered Memorandum to more
than one potential investor. For each numbered Memorandum, PA shall
keep a record of when and to whom such Memorandum is given. If PA
delivers the Memorandum via electronic mail, PA shall send the
Memorandum in the form of an Adobe Portable Document Format, cause
the cover message to contain a legend stating that neither the
message nor any of its contents or attachments may be forwarded,
copied or disseminated to anyone other than the recipient’s
attorney or a similar advisor bound by confidentiality, and
maintain a copy of the cover message.
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(c) PA shall provide the Company
with a copy of each such record upon request by the Company’s
counsel for compliance with applicable law or in response to
judicial or administrative process.
(d) PA shall not make any untrue
statement of a material fact or omit to state any fact necessary to
make any statement made not misleading. PA shall provide
information regarding the Company only as contained in the
Memorandum.
(e) PA shall not engage in any form
of general solicitation or general advertising. For example PA
shall not mention the Company in any public medium without the
written permission of the Company.
(f) Before mentioning or sending any
material related to the Company to any potential investor, PA
shall, on the basis of PA’s prior relationship with the
potential offeree, reasonably believe that the potential offeree
is: (x) an “accredited investor” and (y) so
sophisticated and knowledgeable in business and financial matters
that the potential offeree is capable of evaluating the merits and
risks of an investment in the Company.
(g) PA shall cause its employees and
affiliates to comply with all of the foregoing provisions of this
Section 4.
5. Representations and
Warranties.
(a) PA represents and warrants that
PA has and will maintain during this Agreement all licenses,
registrations, permits and other authorizations required for PA to
perform the activities and receive the compensation contemplated by
this Agreement in each jurisdiction in which PA proposes to engage
in such activities. In particular, but without limiting the
generality of the foregoing, PA is and will be duly licensed or
registered as a broker dealer or registered representative of a
broker dealer under the Exchange Act and under the laws
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