Exhibit 10.4
RED ROCK PICTURES HOLDINGS, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: April 5, 2007
Newbridge Securities
Corporation
1451 Cypress Creek Road, Suite 204
Fort Lauderdale, Florida 33309
Ladies and Gentlemen:
The
undersigned, Red Rock Pictures Holdings, Inc., a Nevada corporation
(the “ Company ”), hereby agrees with Newbridge
Securities Corporation (the “ Placement Agent ”)
as follows:
1.
Offering . The Company hereby engages the Placement
Agent to act as its exclusive placement agent in connection with
the Standby Equity Distribution Agreement dated the date hereof
between the Company and Cornell Capital Partners, LP (the “
Investor ”) (the “ Standby Equity
Distribution Agreement ”), pursuant to which the Company
shall issue and sell to the Investor, from time to time, and the
Investor shall purchase from the Company (the “
Offering ”) up to Twenty Million Dollars
($20,000,000) (the “ Commitment Amount ”) of the
Company’s common stock, par value $0.001 per share (the
“ Common Stock ”), at price per share equal to
the Purchase Price, as that term is defined in the Standby Equity
Distribution Agreement. The Placement
Agent services shall
consist of reviewing the terms of the
Standby Equity Distribution Agreement and advising the Company with respect
to those terms .
All
capitalized terms used herein and not otherwise defined herein
shall have the same meaning ascribed to them as in the Standby
Equity Distribution Agreement. The Investor will be granted
certain registration rights with respect to the Common Stock as
more fully set forth in the Registration Rights Agreement between
the Company and the Investor dated the date hereof (the “
Registration Rights Agreement ”). The documents
to be executed and delivered in connection with the Offering,
including, but not limited, to the
Company’s latest Quarterly Report on Form 10-QSB as filed
with the United States Securities and Exchange Commission, this
Agreement, the Standby Equity Distribution Agreement, and the
Registration Rights Agreement are referred to sometimes hereinafter
collectively as the “ Offering Materials
.” The Company’s Common Stock purchased by the Investor under the Standby Equity
Distribution Agreement is sometimes referred to hereinafter as the
“ Securities .” The Placement Agent shall
not be obligated to sell any Securities.
2.
Compensation .
A. Upon
the execution of this Agreement, the Company shall issue to the
Placement Agent or its designee shares of the Company’s
Common Stock in an amount equal to Ten Thousand Dollars ($10,000)
divided by the volume weighted average price of the
Common
1
Stock, as quoted by Bloomberg, LP, on the date hereof (the “
Placement Agent’s Shares ”). The Placement
Agent shall be entitled to “piggy-back” registration
rights with respect to the Placement Agent’s Shares, which
shall be triggered upon registration of any shares of Common Stock
by the Company pursuant to the Registration Rights Agreement dated
the date hereof.
3.
Representations, Warranties and Covenants of the Placement
Agent.
A. The
Placement Agent represents, warrants and covenants as follows:
(i) The
Placement Agent has the necessary power to enter into this
Agreement and to consummate the transactions contemplated
hereby.
(ii) The
execution and delivery by the Placement Agent of this Agreement and
the consummation of the transactions contemplated herein will not
result in any violation of, or be in conflict with, or constitute a
default under, any agreement or instrument to which the Placement
Agent is a party or by which the Placement Agent or its properties
are bound, or any judgment, decree, order or, to the Placement
Agent’s knowledge, any statute, rule or regulation applicable
to the Placement Agent. This Agreement when executed and
delivered by the Placement Agent, will constitute the legal, valid
and binding obligations of the Placement Agent, enforceable in
accordance with their respective terms, except to the extent that
(a) the enforceability hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect and affecting the rights of creditors
generally, (b) the enforceability hereof or thereof is subject to
general principles of equity, or (c) the indemnification
provisions hereof or thereof may be held to be in violation of
public policy.
(iii) Upon
receipt and execution of this Agreement, the Placement Agent will
promptly forward copies of this Agreement to the Company or its
counsel and the Investor or its counsel.
(iv) The
Placement Agent will not intentionally take any action that it
reasonably believes would cause the Offering to violate the
provisions of the Securities Act of 1933, as amended (the “
1933 Act ”), the Securities Exchange Act of 1934 (the
“ 1934 Act ”), the respective rules and
regulations promulgated thereunder (the
“ Rules and Regulations ”) or applicable
“Blue Sky” laws of any state or jurisdiction.
(v) The
Placement Agent is a member of the National Association of
Securities Dealers, Inc., and is a broker-dealer registered as such
under the 1934 Act and under the securities laws of the states in
which the Securities will be offered or sold by the Placement Agent
unless an exemption for such state registration is available to the
Placement Agent. The Placement Agent is in material compliance with the
rules and regulations applicable to the Placement Agent generally
and applicable to the Placement Agent’s participation in the
Offering.
2
4.
Representations and Warranties of the Company .
A. The
Company represents and warrants as follows:
(i) The
execution, delivery and performance of each of this Agreement, the
Standby Equity Distribution Agreement, and the Registration Rights
Agreement has been or will be duly and validly authorized by the
Company and is, or with respect to this Agreement, the Standby
Equity Distribution Agreement, and the Registration Rights
Agreement will be, a valid and binding agreement of the Company,
enforceable in accordance with its respective terms, except to the
extent that (a) the enforceability hereof or thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect and affecting the rights of
creditors generally, (b) the enforceability hereof or thereof is
subject to general principles of equity or (c) the
indemnification provisions hereof or thereof may be held to be in
violation of public policy. The Securities to be issued
pursuant to the transactions contemplated by this Agreement and the
Standby Equity Distribution Agreement have been duly authorized
and, when issued and paid for in accordance with this Agreement and
the Standby Equity Distribution Agreement will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms, except to the extent that (1) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in
effect and affecting the rights of creditors generally, and (2) the
enforceability thereof is subject to general principles of
equity. All corporate action required to be taken for the
authorization, issuance and sale of the Securities has been duly
and validly taken by the Company.
(ii) The
Company has a duly authorized, issued and outstanding
capitalization as set forth herein and in the Standby Equity
Distribution Agreement. The Company is not a party to or
bound by any instrument, agreement or other arrangement providing
for it to issue any capital stock, rights, warrants, options or
other securities, except for this Agreement, the agreements
described herein and as described in the Standby Equity
Distribution Agreement and the agreements described therein
. All issued and outstanding securities
of the Company, have been duly authorized and validly issued and
are fully paid and non-assessable; the holders thereof have no
rights of rescission or preemptive rights with respect thereto and
are not subject to personal liability solely by reason of being
security holders; and none of such securities were issued in
violation of the preemptive rights of any holders of any security
of the Company.
(iii) The
Common Stock to be issued in accordance with this Agreement and the
Standby Equity Distribution Agreement have been duly authorized
and, when issued and paid for in accordance with this Agreement,
the Standby Equity Distribution Agreement and the
certificates/instruments representing such Common Stock will be
validly issued, fully-paid and non-assessable; the holders thereof
will not be subject to personal liability solely by reason of being
such holders; such Securities are not and will not be subject to
the preemptive rights of any holder of any security of the
Company.
(iv) The
Company has good and marketable title to, or valid and enforceable
leasehold estates in, all items of real and personal property
necessary to conduct its business (including, without limitation,
any real or personal property stated in the Offering
3
Materials to be owned or leased by the Company), free and clear of
all liens, encumbrances, claims, security interests and defects of
any material nature whatsoever, other than those set forth in the
Offering Materials and liens for taxes not yet due and payable.
(v) Except
as disclosed in the SEC documents as defined in the Standby Equity
Distribution Agreement, there is no litigation or governmental
proceeding pending or, to the best of the Company’s
knowledge, threatened against, or involving the properties or
business of the Company, except as set forth in the Offering
Materials.
(vi) The
Company is duly organized and validly exists as a corporation in
good standing under the laws of the State of Nevada. Except
as set forth in the Offering Materials and/or the SEC Documents,
the Company does not own or control, directly or indirectly, an
interest in any other corporation, partnership, trust, joint
venture or other business entity. The Company is duly
qualified or licensed and in good standing as a foreign corporation
in each jurisdiction in which the character of its operations
requires such qualification or licensing and where failure to so
qualify would have a material adverse effect on the Company.
The Company has all requisite corporate power and authority, and
all material and necessary authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental
regulatory officials and bodies (domestic and foreign) to conduct
its businesses (and proposed business) as described in the Offering
Materials. Any disclosures in the Offering Materials concerning the
effects of foreign, federal, state and local regulation on the
Company’s businesses as currently conducted and as
contemplated are correct in all material respects and do not omit
to state a material fact. The Company has all corporate power
and authority to enter into this Agreement, the Standby Equity
Distribution Agreement, the Registration Rights Agreement, and to
carry out the provisions and conditions hereof and thereof, and all
consents, authorizations, approvals and orders required in
connection herewith and therewith have been obtained. No
consent, authorization or order of, and no filing with, any court,
government agency or other body is required by the Company for the
issuance of the Securities or execution and delivery of the
Offering Materials except for applicable federal and state
securities laws. The Company, since its inception, has not
incurred any liability arising under or as a result of the
application of any of the provisions of the 1933 Act, the 1934 Act
or the Rules and Regulations.
(vii) There
has been no material adverse change in the condition or prospects
of the Company, financial or otherwise, from the latest dates as of
which such condition or prospects, respectively, are set forth in
the Offering Materials, and the outstanding debt, the property and
the business of the Company conform in all material respects to the
descriptions thereof contained in the Offering Materials.
(viii) Except
as set forth in the Offering Materials and/or the SEC Documents,
the Company is not in breach of, or in default under, any term or
provision of any material indenture, mortgage, deed of trust,
lease, note, loan or any other material agreement or instrument
evidencing an obligation for borrowed money, or any other material
agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected. The Company
is not in violation of any provision of its charter or by-laws or
in violation of any franchise, license, permit, judgment, decree or
order, or in violation of any material statute, rule or
regulation. Neither the execution and delivery of the
Offering Materials nor the issuance and sale or delivery of the
Securities, nor the consummation of any of the transactions
contemplated
4
in the Offering Materials nor the compliance by the Company with
the terms and provisions hereof or thereof, has conflicted with or
will conflict with, or has resulted in or will result in a breach
of, any of the terms and provisions of, or has constituted or will
constitute a default under, or has resulted in or will result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or pursuant to the terms of
any indenture, mortgage, deed of trust, note, loan or any other
agreement or instrument evidencing an obligation for borrowed
money, or any other agreement or instrument to which the Company
may be bound or to which any of the property or assets of the
Company is subject except (a) where such default, lien,
