SEPARATION AGREEMENT
This
agreement (the “Agreement”) effective on the last day executed below, is entered
into between YI (XXXXX) XXX (“Employee”) and RINO INTERNATIONAL CORPORATION, a
Nevada corporation (“Employer”) relating to Employee’s employment and separation
from employment with Employer and its subsidiaries.
In
consideration of the execution and delivery of the Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
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1.
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Separation
From Employment and Severance
Rights.
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1.1.
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Employee
resigned as Chief Financial Officer and from any and all other offices or
positions Employee may have had with Employer or any of its subsidiaries
or affiliated companies effective April 27, 2010 (“Separation Date”), with
Employee’s Base Salary continuing through April 30, 2010 pursuant to the
Employment Agreement defined below.
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1.2.
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Employee’s
separation from employment with Employer was effective on the Separation
Date. Employee will be reimbursed the sum of $1,000 for business expenses
incurred by Employee, including the costs of her China and U.S. based
cellular phone xxxx for the period from January 2010 through April 2010
for use of such phone for work on behalf of
Employer.
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1.3.
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In
exchange for the covenants, warranties and promises which Employee makes
in this Agreement below and the Employee’s compliance with this Agreement,
Section 5(B) of the Employment Agreement, dated June 30, 2009 (the
“Employment Agreement”) is hereby amended such that the options to
purchase 10,000 shares of the Employer’s common stock (the “Shares”) at
the exercise price $6.15 per share granted to Employee shall vest
immediately upon the execution of this Agreement.. [and the options to
purchase 20,000 shares that were to vest on June 30, 2011 and the options
to purchase 20,000 shares which were to vest on June 30, 2012 shall be
cancelled and be of no further force or effect]. Once vested, the
foregoing options to purchase 10,000 shares of the Employer’s common stock
which may be exercised until August 12, 2013. None of the options referred
to in this Section 1.3 may be exercised on a cashless
basis.
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1.4.
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In
connection with Employee’s receipt of the Shares, Employee represents
to the Company as follows
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(i) Employee is
acquiring the Shares for investment purposes for her own account and without a
present intention to distribute the Shares and the Employee will dispose of the
Shares only in accordance with the Securities Act of 1933, as amended (the
“Securities Act”).
(ii) Employee
understands that the Shares have not been registered under the Securities Act of
1933, as amended (the “Securities Act”) and cannot be resold, except pursuant to
Rule 144 or another exemption from the registration requirements of the
Securities Act.
(iii) Employee
acknowledges that the certificate(s) representing the Shares will include a
restrictive legend substantially as follows:
The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Act”), and may not be sold, transferred
or otherwise disposed of in the absence of an effective registration statement
under such Act or an opinion of counsel satisfactory to the Company to the
effect that such registration is not required.
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(iv) Employer and its counsel are
entitled to rely on this above referenced representation letter in authorizing
the Employer’s transfer agent to issue certificate(s) for the
Shares.
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1.5.
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Employer
agrees that if Employee is made a party, is threatened to be made a party,
to any action, suit or proceeding, whether civil, criminal,
administrative, or investigative (a “Proceeding”), by reason of the fact
that Employee is or was an employee of Employer, or is or was serving at
the request of Employer as an employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, including service
with respect to clients of Employer, whether or not the basis of such
Proceeding is Employee’s alleged action in an official capacity while
serving as an employee, agent or consultant, Employee shall be indemnified
and held harmless by Employer, to the same extent as the officers and
directors of the Employer to the fullest extent permitted by law and to
the extent such proceeding is eligible for coverage under Employer’s
officer and director liability insurance policy then in effect, against
all cost, expense, liability, and loss (including, without limitation,
attorney’s fees, judgments, fines, ERISA excise taxes or other liabilities
or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by Employee in connection therewith, and such
indemnification shall continue as to Employee even if she has ceased to be
an employee or agent of the Employer and shall inure to the benefit of
Employee’s heirs, executors and administrators. Employer shall pay in
cash, as and when due, any and all attorneys’ fees and costs incurred by
Employee in connection with any dispute or settlement arising from a
Proceeding covered under this Section
1.5.
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1.6.
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Employer
shall pay in cash, as and when due, any and all attorneys’ fees and costs
incurred by Employee in connection with any dispute or settlement arising
from her affiliation with Employer , as an employee or as a consultant, or
as an employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, including service with respect to
clients of Employer, whether or not the basis of such proceeding is
Employee’s alleged action, Employee shall be indemnified and held harmless
by Employer, to the same extent as the officers and directors of the
Company, to the fullest extent legally
permitted.
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2.
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Covenants
of Employee.
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2.1.
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In
exchange for the promises which Employer makes in this Agreement,
Employee, her heirs, executors, administrators, successors and assigns
(referred to collectively as “Releasors”) hereby waive and release
Employer and any and all of Employer’s past and/or present affiliates,
officers, directors, members, agents, employees, employee benefit plans
and their fiduciaries and administrators, and all of its and their
successors and assigns (referred to collectively as the “Releasees”) from
all causes of action, suits, debts, dues, liabilities, obligations, costs,
expenses, liens, damages, judgments, claims and demands of any kind
whatsoever, at law or in equity, whether or not they are presently known
to exist, that Releasors has against Releasees arising out of, by reason
of, or relating in any way whatsoever to any matter, cause or thing from
any time up to the Effective Date of this
Agreement..
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2.2.
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The
rights and claims which Employee and other Releasors waive and release
against Employer and other Releasees include, to every extent allowed by
law, those arising under the Employee Retirement Income Security Act of
1974, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the
Rehabilitation Act of 1973, the Fair Labor Standards Act, the Equal Pay
Act of 1963, the Vietnam Era Veteran’s Readjustment Assistance Act of
1974, the Occupational safety and Health Act, the Immigration reform and
Control Act of 1986, the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, the Older Worker’s Benefit
Protection Act, the Florida Civil Rights Act, the Americans with
Disabilities Act and the Family and Medical Leave Act of 1993, both as
amended, and the Labor Law of People’s Republic of China, as amended.
Employee and other Releasors also agree to release Employer and other
Releasors from any other claim of discrimination, harassment or
retaliation in employment (whether based on federal, state or local law,
statutory or decisional), any claim sounding in tort or contract (express
or implied) and any claim for attorneys’ fees, costs, disbursements and/or
the like. This is not a complete list, and Employee and other Releasors
waive and release all similar rights and claims under all other federal,
state and local discrimination provisions and all other statutory and
common law causes of action relating in any way to Employee’s employment
or separation from employment with Employer and its subsidiaries and
affiliates.
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2.3.
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Employee
agrees that she has waived any damages and other relief available to her
(including, without limitation, monetary damages, equitable relief and
reinstatement) with respect to any claim or cause of action released in
Sections 2.1. and 2.2. above. Therefore, Employee and other
Releasors agree and covenant not to file any suit, charge or complaint
against Releasees in any court or administrative agency, with regard to
any claim, demand, liability or obligation released in Sections 2.1. and
2.2. above. Employee further represents that no claims, complaints,
charges, or other proceedings are pending in any court, administrative
agency, commission or other forum relating directly or indirectly to her
engagement with Employer. Nothing in this Agreement shall be
construed to prohibit Employee from filing a charge with or participating
in any investigation or proceeding conducted by the United States Equal
Employment Opportunity Commission or a comparable state or local
agency. Further, nothing in this Agreement shall be construed
to prohibit Employee from challenging this Agreement pursuant to the Older
Workers’ Benefit Protection Act
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2.4.
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Except
for the representations and obligations of Employee created by or arising
out of this Agreement effective on the Separation Date, Employer, and
Employer’s subsidiaries and affiliated companies, do hereby release,
acquit, satisfy and forever discharge and covenant not to xxx Employee or
Employee's descendants, heirs, successors and assigns, and each of them,
past or present, from any and all manner of action, causes of action,
rights, liens, agreements, contracts, covenants, obligations, suits,
claims, debts, dues, sums of monies, costs, expenses, attorneys' fees,
judgments, orders and liabilities, accounts, covenants, controversies,
promises, damages, of whatever kind and nature in law or equity or
otherwise whether now known or unknown, including specifically but not
limited to, any and all claims arising out of such employment relationship
Employee had with Employer and the transactions and relationships
described herein.
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2.5.
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Employee
agrees not to testify for, appear on behalf of, or otherwise assist in any
way any individual, company, or agency in any claim against Employer,
except, unless, and only pursuant to a lawful subpoena issued to
Employee. If such a subpoena is issued, Employee will
immediately notify Employer and provide it with a copy of the
subpoena.
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2.6.
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Employee
understands and agrees that as of the Separation Date, Employee was and is
no longer authorized to incur any expenses or obligations or liabilities
on behalf of Employer.
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2.7.
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Employee
acknowledges and agrees that, during the period of Employee’s employment
by Employer, Employee had access to confidential, proprietary, strategic
and sensitive information relating to Employer's business and affairs and
the business and affairs of its affiliates and clients, including, without
limitation, materials used for identifying clients, client information and
lists, information concerning ongoing and potential assignments, internal
operating procedures, business plans, projections, valuations techniques,
financial models and research data. Employee also acknowledges
and agrees that such information is special and unique to Employer and its
affiliates and clients and Employee has not and will not disclose to any
other person or entity such information without Employer’s prior written
consent, except: (a) as may be required pursuant to a valid subpoena, at
the request of a government agency in connection with any investigation it
is conducting or as otherwise required by applicable law; and (b) to
Employee’s financial advisor(s) and/or her attorney, provided that
Employee first informs them of the confidentiality of this Agreement and
they agree to maintain its confidentiality. Employee hereby agrees and
covenants that Employee will not, directly or indirectly, publish,
disclose or make accessible to any other person, firm, corporation,
organization or entity, including, without limitation, any member of her
family, any confidential, proprietary, strategic or sensitive information
whatsoever relating, directly or indirectly, to Employer's clients,
including, but not limited to, Employer’s clients’ names, business, or
affairs or the business or affairs of any of Employer's affiliates or
clients, that Employee may learn or initiate and develop a business
relationship with during Employee’s employment by Employer, whether or not
such information is specifically designated as confidential, proprietary,
strategic or sensitive.
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2.8.
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Employee
will not at any time after the Separation Date disclose or use for
Employee’s own benefit or purposes or the benefit or purposes of any other
person, firm, partnership, joint venture, association, corporation or
other business organization, entity or enterprise other than Employer and
any of its subsidiaries or affiliates, any trade secrets, information,
data or other confidential information relating to customers, development
programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing processes, financing
methods, plans or the business and affairs of Employer, generally, or of
any subsidiary or affiliate of Employer, however, that the foregoing shall
not apply to information which is not unique to Employer, or which is
generally known to the industry or the public other than as a result of
Employee’s breach of this Agreement. Employee agrees to return
to Employer all memoranda, books, papers, plans, information, letters and
other data, and all copies thereof or therefrom (including electronic
media containing such information) in any way relating to the business of
Employer and its affiliates, except that Employee may retain personal
notes, notebooks and diaries that do not contain confidential information
of the type described in the preceding sentence. Employee further agrees
that Employee will not retain or use for Employee’s account at any time
any trade names, trademark or other proprietary business designation used
or owned in connection with the business of Employer or its
affiliates.
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2.9.
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Employee
hereby certifies that Employee has returned to Employer, all of Employer’s
property, including computer and office equipment, office keys, supplies,
customer and work files and other related
materials.
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2.10.
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Employee
agrees and acknowledges that this Agreement does not constitute an
admission by Employer of any violation of any federal, state, or local
statute or regulation, or any violation of any of Employee’s rights or of
any duty owed by Employer to Employee. Employer agrees and acknowledges
that this Agreement does not constitute an admission by Employee of any
violation of any federal, state, or local statute or regulation, or any
violation of any of Employer’s rights or of any duty owed by Employee to
Employer.
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2.11.
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Employee
hereby agrees to indemnify Employer and its subsidiaries, its affiliates,
controlling persons, representatives and agents, for any loss, damage,
claim or expense arising out of her breach of the foregoing
representations or warranties and covenants. Employee agrees that the
payments and the benefits provided in Section 1 of this Agreement are in
full discharge of any and all liabilities and obligations of Employer to
Employee.
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3.
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Miscellaneous.
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3.1.
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Employee
agrees that Employee has not made, and shall not make or solicit, any
disparaging, denigrating, critical or untrue statements (public or
private) about Employer, its management or about any other employee of
Employer, its products, customers, clients, or prospects. It is
agreed and understood that any breach of this paragraph by Employee would
be material.
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3.2.
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Employer
agrees that it shall not make any disparaging, denigrating, critical or
untrue statements (public or private) about Employee. It is
agreed and understood that any breach of this Section 3 by Employer would
be material.
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3.3.
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This
Agreement shall be interpreted and enforced in accordance with the laws of
the State of New York. Each of the parties submits to the jurisdiction of
any provincial or federal court sitting in New York, in any action or
proceeding arising out of or relating to this Agreement and agrees that
all claims in respect of the action or proceeding may be heard and
determined by any such court. Each party also agrees not to bring any
action or proceeding arising out of or relating to this Agreement in any
other court. Each of the parties waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other party
with respect thereto.
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3.4.
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If
either party initiates proceedings for the other's breach of this
Agreement, the prevailing party shall recover attorneys' fees and costs,
including such fees and costs on any enforcement or appeal
proceedings.
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3.5.
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If
one or more paragraphs of this Agreement are ruled invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of the Agreement, which shall remain in full force and
effect.
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3.6.
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This
Agreement may be modified only by a writing signed by both
parties.
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3.7.
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Both
parties agree that, unless required by law or by a court of competent
jurisdiction, this Agreement shall remain confidential and will not be
used for any purpose other than enforcing its specific terms in any
proceeding between the parties. If this document must be filed in any
court proceeding, the person seeking to file it will do so only under
seal, unless expressly prohibited by the
court.
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3.8.
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This
Agreement may be executed in two counterparts, each of which shall
constitute an original, but all of which together shall constitute one and
the same document.
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IN
WITNESS WHEREOF, Employee and Employer have agreed upon and signed this
Agreement as of the date set forth below.
| EMPLOYEE: | EMPLOYER: | ||||
| RINO INTERNATIONAL CORPORATION | |||||
| Sign |
/s/
YI (XXXXX) XXX
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By: | /s/ Xxxxx Xxx | ||
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YI
(XXXXX) XXX
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Its: |
President and Chief Executive
Officer
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| Date: | August 12, 2010 | Date: | August 12, 2010 | ||
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