Waiver and Amendment Agreement
This
Waiver Agreement and Amendment (the “Agreement”) is made
by and among RINO International Corporation, a Nevada corporation (formerly
known as Jade Mountain Corporation, the “Company”) and each of
the investors signatory hereto (collectively, the “Majority Investors”).
Reference is made to that certain (i) Securities Purchase Agreement, dated
September 27, 2007, by and among the Company, Innomind Group Limited, Dalian
Innomind Environment Engineering Co., Ltd, Dalian RINO Environmental Engineering
Science and Technology Co., Ltd. and the investors signatories thereto, as
amended (the “Securities Purchase
Agreement”), (ii) Registration Rights Agreement, dated September 27,
2007, by and among Jade Mountain Corporation and the investors signatories
thereto (the “Registration Rights
Agreement”) and (iii) Escrow Agreement dated September 27, 2007, by and
among the Company, _________ and Tri-State Title & Escrow, LLC, as Escrow
Agent (the “Escrow
Agreement”). This Agreement shall become effective on the date
this Agreement shall have been duly executed by all parties hereto which shall
include the holders holding a majority in interest of the securities issued
under the Securities Purchase Agreement (“Effective”).
RECITALS:
WHEREAS, on September 27,
2007, the Company and certain investors (collectively, the “Investors”) entered
into (i) the Securities Purchase Agreement, pursuant to which the Investors paid
an aggregate of $24,435,319 (the “Investment Amount”)
in exchange for the issuance of 5,464,357 shares (the “Shares”) of the
Company’s common stock, par value $0.0001 per share (“Common Stock”), and
(ii) the Registration Rights Agreement, pursuant to which the Company agreed to
register the resale of the Shares with the Securities and Exchange Commission
(the “SEC”)
and, among other things, cause such registration to be effective no later than
the 150th day following the closing date of the transactions contemplated under
the Securities Purchase Agreement and the Registration Rights Agreement (the
transactions contemplated under the Securities Purchase Agreement and the
Registration Rights Agreement, collectively, the “Financing
Transaction”);
WHEREAS, the closing date of
the Financing Transactions was October 5, 2007;
WHEREAS, Section 4.12 of the
Securities Purchase Agreement requires that, no later than 120 days following
the closing date of the Financing Transaction, the Company’s Board of Director
(the “Board of
Directors”) shall be comprised of a minimum of five members, a majority
of which shall be “independent directors” as such term is defined in NASDAQ
Marketplace Rule 4200(a)(15) (“Independent
Directors”), and if the Company shall fail to comply with the foregoing
requirement, then on each Event Date (as defined in the Securities Purchase
Agreement) and on each monthly anniversary of such Event Date (if the applicable
Event shall not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each Investor by wire transfer an amount in
immediately available funds, as partial liquidated damages and not as a penalty,
equal to 1% of the aggregate Investment Amount paid by such Investor for the
securities purchased pursuant to the Securities Purchase Agreement;
WHEREAS, pursuant to Section
4.12 of the Securities Purchase Agreement and Section 3.1 of the Escrow
Agreement, $1,000,000 of the investment proceeds from the Financing Transaction
has been held in escrow by the Escrow Agent pending compliance by the Company
with Section 4.12 of the Securities Purchase Agreement and shall be released in
accordance with the terms of the Escrow Agreement;
WHEREAS, on March 20, 2008,
the then Board of Directors appointed three Independent Directors to the Board
of Directors, resulting in the Board of Directors being comprised of five
members, a majority of which are Independent Directors, and such late compliance
with Section 4.12 of the Securities Purchase Agreement caused the Company to
incur liquidated damages in the amount of $627,172.19 under Section 4.12 of the
Securities Purchase Agreement;
WHEREAS, Section 2(f) of the
Registration Rights Agreement provides that, if the Company shall fail to cause
a registration statement covering the registration of the Registrable Securities
(as defined in the Registration Rights Agreement) (the “Registration
Statement”) to be declared effective by the SEC on the Effective Date (as
defined in the Registration Rights Agreement), then, on the Event
Date (as defined in the Registration Rights Agreement”) and on each monthly
anniversary of such Event Date (if the applicable Event (as defined in the
Registration Rights Agreement) shall not have been cured by such date) until the
applicable Event is cured, the Company shall pay to each Holder (as defined in
the Registration Rights Agreement) an amount in cash, as partial liquidated
damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount
paid by such Holder for securities pursuant to the Securities Purchase
Agreement; provided, however, that the total amount of
partial liquidated damages payable by the Company pursuant to all Events under
Section 2(f) of the Registration Rights Agreement shall be capped at an
aggregate of 10.0% of the aggregate Investment Amount paid by the Investors
under the Securities Purchase Agreement;
WHEREAS, on October 2, 2008,
the Registration Statement was declared by the SEC to be effective and such late
effectiveness of the Registration Statement caused the Company to incur
liquidated damages in the amount of $1,971,115.73 under Section 2(f) of the
Registration Rights Agreement; and
WHEREAS, the parties hereto
desire to amend (i) Section 4.12 of the Securities Purchase Agreement such that
no amount of liquidated damages shall have been incurred and payable to the
Investors due to the late appointment of Independent Directors, (ii) Section
2(f) of the Registration Rights Agreement such that the Effectiveness Damages
shall be paid in the form of shares of Common Stock, or, at the election of each
Investor, in cash, each as provided in this Agreement, and (iii) Section 3.1 of
the Escrow Agreement to reflect the amendments made to the Securities Purchase
Agreement with regard to the distribution of the Board Holdback Escrow Amount
(as defined in the Escrow Agreement).
NOW, THEREFORE, pursuant to
Section 6.4 of the Securities Purchase Agreement and Section 6(f) of the
Registration Rights Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Majority Investors, representing the holders and/or Investors holding a majority
of the Shares, hereby agree to amend the Securities Purchase Agreement, the
Registration Rights Agreement and the Escrow Agreement as follows:
1. Amendment of
Section 4.12 of the Securities Purchase Agreement. Any liquidated damages
incurred by the Company that is payable to the Investors pursuant to Section
4.12 of the Securities Purchase Agreement shall be waived in its entirety and
Section 4.12 of the Securities Purchase Agreement is hereby amended and restated
d in its entirety to read as follows:
“4.12
Independent Board of Directors. The Company covenants and
agrees that no later than 120 days following the Closing Date, the Board of
Directors of the Company shall be comprised of a minimum of five members, a
majority of which shall be “independent directors” as such term is defined in
NASDAQ Marketplace Rule 4200(a)(15). The Company agrees that $1,000,000 (the
“Board Holdback Escrow Amount”) shall be held
in Escrow pursuant to the Escrow Agreement until such time as the Company
complies with this obligation.”
2. Amendment of
Section 2(f) of the Registration Rights Agreement. Section
2(f) of the Registration Rights Agreement is hereby amended and restated in its
entirety to read as follows:
“(f) If:
(i) a Registration Statement is not filed on or prior to its applicable Filing
Date covering the Registrable Securities required under this Agreement to be
included therein (if the Company files a Registration Statement without
affording the Holders the opportunity to review and comment on the same as
required by Section 3(a) hereof, the Company shall not be deemed to have
satisfied this clause (i)), or (ii) a Registration Statement is not declared
effective by the Commission on or prior to its required Effectiveness Date or if
by the third Business Day immediately following the applicable Effective Date
the Company shall not have filed a “final” prospectus for the Registration
Statement with the Commission under Rule 424(b), in accordance with Section
2(a), (b), (c), (d) or (e) herein, as the case may be, (whether or not such a
prospectus is technically required by such Rule), or (iii) after its applicable
Effective Date, without regard for the reason thereunder or efforts therefore,
such Registration Statement ceases for any reason to be effective and available
to the Holders as to all the Registrable Securities to which it is required to
cover at any time prior to the expiration of its Effectiveness Period for more
than an aggregate of thirty (30) Trading Days (which need not be consecutive)
(any such failure or breach being referred to as an “Event,” and for purposes of
clauses (i) or (ii) the date on which such Event occurs, or for purposes of
clause (iii) the date which such 30 Trading Day-period is exceeded, being
referred to as “Event
Date”), then in addition to any other rights the Holders may have
hereunder or under applicable law: on each such Event Date and on each monthly
anniversary of each such Event Date (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured, the Company shall pay
to each Holder an amount in cash, as partial liquidated damages and not as a
penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder
for Securities pursuant to the Purchase Agreement; provided, however, that the
total amount of partial liquidated damages payable by the Company pursuant to
all Events under this Section shall be capped at an aggregate of 10.0% of the
aggregate Investment Amount paid by the Investors under the Purchase Agreement.
The partial liquidated damages pursuant to the terms hereof shall apply on a
daily pro-rata basis for any portion of a month prior to the cure of an Event
except in the case of the first Event Date. In no event will the Company be
liable for liquidated damages under this Agreement in excess of 1.0% of the
aggregate Investment Amount of the Investors in any 30-day period. The Company
will not be liable for liquidated damages under this Agreement with respect to
the Placement Agent Warrant Shares. The Company shall not be liable for
liquidated damages under this Agreement as to any Registrable Securities which
are not permitted by the Commission to be included in a Registration Statement
due solely to Commission Comments from the time that it is determined that such
Registrable Securities are not permitted to be registered solely due to
Commission Comments until such time as the provisions of this Agreement as to
the next applicable Registration Statement required to be filed hereunder are
triggered, in which case the provisions of this Section 2(f) shall once again
apply, if applicable.
Notwithstanding anything to the
contrary set forth above, for the liquidated damages incurred as a result of the
late effectiveness of the initial Registration Statement required to be filed
pursuant to Section 2(a) of the Registration Rights Agreement which was not
effective by the Effectiveness Dates, in lieu of payment of the liquidated
damages in cash as set forth above, as partial liquidated damages and not as a
penalty, the Company shall (A) issue to each Holder without registration under
the Securities Act of 1933, as amended, such number of shares of Common Stock,
as set forth opposite such Holder’s name on Schedule A attached
hereto, which number of shares shall in each case be equal to the product of (i)
192,045 and (ii) such Holder’s Percentage Share (as defined below) of the total
number of shares of Common Stock issued under the Securities Purchase Agreement
(the “Liquidated Damages
Shares”), or, (B) at the election of each Holder, in lieu of such share
issuance as provided in the foregoing paragraph (A), pay cash to such Holder in
an amount equal to the product of (a) $4.48 and (b) the number equal to such
Holder’s Liquidated Damages Shares (the “Liquidated Damages Cash
Amount”). Each Holder shall notify the Company of its election
to receive Liquidated Damages Shares or Liquidated Damages Cash Amount pursuant
to this Section by written notice in the form as set forth on Schedule B attached
hereto (the “Holder Election
Notice”).
Notwithstanding anything to the
contrary set forth in Schedule A as of the date hereof, a Holder’s “Percentage Share” shall be the
percentage of the shares of Common Stock held by such Holder as of the date of
the Election Notice relative to the total number of shares of Common Stock
issued under the Securities Purchase Agreement. Each party hereto hereby agrees
that the Liquidated Damages Shares or the Liquidated Damages Cash Amount, as
applicable, that such Holder may be entitled to as set forth on Schedule A under
this Agreement shall be automatically adjusted based on the Percentage Share so
calculated. Any adjustment to Schedule A in accordance with the foregoing
sentences shall not be deemed an amendment to this Agreement under Section 6(f)
hereof.”
3. Amendment of the
Escrow Agreement. Section 3.1 of the Escrow
Agreement is hereby amended and restated to read in its entirety as
follows:
“Following
the closing of the offering in accordance with the Securities Purchase Agreement
(the “Closing”), $1,000,000
(the “Board Holdback
Escrow
Amount”) shall be held in the escrow account set forth in Section 2.1
herein. The Board Holdback Escrow Amount shall be released by the
Escrow Agent to the Company upon the Escrow Agent’s receipt of joint written
notice from the Company and __________ that the Company has complied with
Section 4.12 of the Securities Purchase Agreement. If for any reason,
or for no reason whatsoever, the Escrow Agent does not receive the joint written
notice relating to the Board Holdback Escrow Amount, then such Board Holdback
Escrow Amount shall remain in the escrow account until such time as the Escrow
Agent receives a joint written notice from the Company and _____________ that
the Company has complied with Section 4.12 of the Securities Purchase
Agreement.”
4. Issuance of
Liquidated Damages Shares, Payment of Liquidated Damages Cash
Payment and Release of Board Holdback Amount to the
Company.
(a) Provided
that this Agreement shall have become Effective, within two (2) Trading Days
following the receipt by the Company from a Holder of a Holder Election Notice
indicating such Holder’s election to receive the Liquidated Damages Shares that
are required to be issued pursuant to Section 2(f) of the Registration Rights
Agreement, as amended hereby, the Company shall deliver instructions attached
hereto as Exhibit
A (the “Share
Issuance Instructions”) to the transfer agent for the Common Stock of the
Company for the issuance of the Liquidated Damages Shares that are required to
be issued pursuant to Section 2(f) of the Registration Rights Agreement, as
amended hereby, to each of the Holders and/or its designees at the
address of such Holder as provided in such Holder’s Holder Election
Notice. Certificates evidencing the shares so issued will contain the
following legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. NOTWITHSTANDING THE FOREGOING, THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
(b) Provided
that this Agreement shall have become Effective, within ten (10) Trading Days
following the receipt by the Company from a Holder of a Holder Election Notice
indicating such Holder’s election to receive the Liquidated Damages Cash Amount
that is required to be paid pursuant to Section 2(f) of the Registration Rights
Agreement, as amended hereby, the Company shall pay to such Holder and/or the
designee of such Holder the Liquidated Damages Cash Amount that is required to
be paid pursuant to Section 2(f) of the Registration Rights Agreement, as
amended hereby, in the manner and to the account as provided in the Holder
Election Notice.
(c) Within
ten (10) Trading Days following the delivery by the Company to the transfer
agent of the Share Issuance Instructions, the Company and ___________ shall
issue joint instructions attached hereto as Exhibit B (“Escrow Release
Instructions”) to the Escrow Agent for the release of the Board Holdback
Escrow Amount to the Company to an account designated by the Company. Within two
(2) Trading Days following the receipt of the Escrow Release Instructions, the
Escrow Agent shall release the Board Holdback Escrow Amount to the Company by
wire transfer to an account designated by the Company.
5. Appointment of
Chief Financial Officer.
(a) No
later than three (3) months following the date that this Agreement shall have
been signed by the Holders holding a majority in interest of the Shares, the
Company shall hire a chief financial officer who is an expert in (i) United
States generally accepted accounting principles and (ii) auditing procedures and
compliance for United States public companies. Upon hiring of the
chief financial officer, the Company shall file a Current Report on Form 8-K
disclosing the information required by Item 5.02 of Form 8-K, as
amended.
(b) If
the Company shall fail to hire a chief financial officer pursuant to this
Section 5, the Company shall, as partial liquidated damages and not as penalty,
at the election of a Holder, (A) issue to such Holder without registration under
the Securities Act of 1933, as amended, such number of shares of the Company’s
Common Stock equal to the product of (i) 50% and (ii) the number equal to the
Liquidated Damages Shares required to be issued to such Holder pursuant to
Section 2(f) of the Registration Rights Agreement, as amended hereby (the “Additional Liquidated
Damages Shares”), or (B) in lieu of share issuance as provided in the
foregoing paragraph (A), pay cash to such Holder in an amount equal
to the product of (a) 50% and (b) the number equal to the Liquidated Damages
Cash Amount to be paid to such Holder pursuant to Section 2(f) of the
Registration Rights Agreement, as amended hereby (the “Additional Liquidated
Damages Cash Amount”). Any certificates evidencing the
Additional Liquidated Damages Shares so issued shall bear legend as set forth
under Section 4(a) hereof. Each Holder shall notify the Company of its election
to receive cash payment or shares of the Company’s Common Stock pursuant to this
Section 5 by written notice in the form as set forth on Schedule B attached
hereto (the “Holder
2nd Election Notice”).
Upon receipt of a Holder 2nd
Election Notice, the Company shall follow the procedures as set forth under
Section 4(a) and (b) hereof to pay to such Holder Additional Liquidated Damages
Cash Amount or issue to such Holder Additional Liquidated Damages Shares, as
applicable, as required under this Section 5.
6. Miscellaneous.
(a) Expenses. Each
party shall bear its own costs and expenses, including legal fees, incurred or
sustained in connection with the preparation of this Agreement and related
matters.
(b) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and the holders of
no less than a majority in interest of the then outstanding Shares; except that
Section 3 of this Agreement may be changed, modified, amended or supplemented
with an express written agreement executed by the Escrow Agent, the Company and
_____________.
(c) Notices. All
notices, requests, demands, and other communications provided herein shall be in
writing, shall be delivered by hand or by first-class mail, facsimile, or
electronic mail and shall be sent to the parties hereto at their respective
addresses, facsimile numbers or electronic mail addresses set forth below their
respective signatures on the signature pages.
(d) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the
parties.
(e) Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
(f) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Securities Purchase
Agreement.
(g) Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(h) Headings. The
headings in this Agreement are for convenience only, do not constitute a part of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(i) Independent Nature of
Investors’ Obligations and Rights. The obligations of each
Investor hereunder are several and not joint with the obligations of any other
Investors hereunder, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor hereunder. Nothing
contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Investor pursuant hereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investors are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Investor shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Investor to be joined as
an additional party in any proceeding for such purpose.
IN WITNESS WHEREOF, the
parties have executed and delivered this Amendment as of the date first written
above.
RINO
INTERNATIONAL CORPORATION
By:_________________________________
Name: Xxx
Xxxxx
Title:
Chief Executive Officer
Date of
Signature: ______________________
Attn: Xxx
Xxxxxxxx
Address:
11 Youquan Road, Zhanqian Street,
Jinzhou
District, Dalian,
People’x
Xxxxxxxx xx Xxxxx 000000
Email:
xxxx@xxxxxxxxx.xxx
Phone:
000 00 000 0000 0000
INNOMIND
GROUP LIMITED
By:_________________________________
Name: Xxx
Xxxxx
Title:
Chief Executive Officer
Date of
Signature: _____________________
|
Attn:
|
Xxx
Xxxxxxxx
|
c/o RINO
International Corporation
11
Youquan Road, Zhanqian Street,
Jinzhou
District, Dalian,
People’x
Xxxxxxxx xx Xxxxx 000000
Email:
xxxx@xxxxxxxxx.xxx
Phone:
000 00 000 0000 0000
DALIAN
INNOMIND ENVIRONMENT ENGINEERING CO., LTD.
By:_________________________________
Name: Xxx
Xxxxx
Title:
Chief Executive Officer
Date of
Signature: ______________________
|
Attn:
|
Xxx
Xxxxxxxx
|
c/o RINO
International Corporation
11
Youquan Road, Zhanqian Street,
Jinzhou
District, Dalian,
People’x
Xxxxxxxx xx Xxxxx 000000
Email:
xxxx@xxxxxxxxx.xxx
Phone:
000 00 000 0000 0000
DALIAN
RINO ENVIRONMENTAL ENGINEERING SCIENCE AND TECHNOLOGY CO., LTD.
By:_________________________________
Name: Xxx
Xxxxx
Title:
Chief Executive Officer
Date of
Signature: ____________________
|
Attn:
|
Xxx
Xxxxxxxx
|
c/o RINO
International Corporation
11
Youquan Road, Zhanqian Street,
Jinzhou
District, Dalian,
People’x
Xxxxxxxx xx Xxxxx 000000
Email:
xxxx@xxxxxxxxx.xxx
Phone:
000 00 000 0000 0000
RINO
International Corporation Amendment and Waiver Agreement Page 7 of
15
With
respect to Section 3 of this Agreement, acknowledged and agreed by,
TRI-STATE
TITLE & ESCROW, LLC
By:_________________________________
Name:
Title:
Date of
Signature: ____________________
Attn:
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx
Tri-State
Title & Escrow, LLC
0000 Xxx
Xxxxxxxxxx Xxxx
Xxxxx
000
Xxxxxx,
XX 00000
Email:
xxxxxx@xxxxxxxxxxxxx.xxx
Phone:
(000) 000-0000
Fax:
(000) 000-0000
RINO
International Corporation Amendment and Waiver Agreement Page 8 of
15
ADDITIONAL
INVESTORS:
Name of
Investor:
____________________________________
By:_________________________________
Name:
Title:
Date of
Signature: ____________________
Attn:
Address:
Email:
Fax:
Phone:
RINO
International Corporation Amendment and Waiver Agreement Page 9 of
15
EXHIBIT
A
RINO
International Corporation
11
Youquan Road, Zhanqian Street,
Jinzhou
District, Dalian,
People’x
Xxxxxxxx xx Xxxxx 000000
______________,
2009
Securities
Transfer Corporation
0000
Xxxxxx Xxxxxxx Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx
Dear Xx.
Xxxxxxx:
Enclosed
please find (i) a Waiver and Amendment Agreement executed by RINO International
Corporation, a Nevada corporation (the “Company”), and
certain investors signatories thereto representing the holders holding not less
than a majority of the securities purchased by such holders pursuant to that
certain Securities Purchase Agreement dated September 27, 2008 and such other
parties signatories thereto (together with exhibits and schedules thereto, the
“Amendment”),
and (ii) a written consent of the board of directors of the Company dated
______________, 2009, approving the entry into the Amendment by the
Company.
Pursuant
to the Amendment, which, among other things, amends Section 2(f) of that certain
Registration Rights Agreement dated September 27, 2008, by and among the Company
and certain investors signatories thereto (the “Registration Rights
Agreement”), the Company is required to issue shares of the Company’s
Common Stock, par value $0.0001 per share (“Common Stock”),
without registration under the Securities Act of 1933, as amended, to each set
forth on Schedule A to the Amendment such number of shares of Common Stock, as
set forth opposite such holder’s name on Schedule A to the Amendment on or prior to [insert the
deadline provided in the Amendment] at the most recent address of such
holder that is on record with you or the Company, as applicable.
Upon
receipt of these instructions, you are hereby instructed to issue such number of
shares of the Company’s Common Stock to each holder as set forth on Schedule A
to the Amendment on or prior to [insert the
deadline provided in the Amendment] with the certificates evidencing the
shares so issued containing the restrictive legend as set forth in Section 4(a)
of the Amendment.
RINO
International Corporation Amendment and Waiver Agreement Page 10 of
15
Your
prompt attention is highly appreciated. If you have any questions regarding this
matter, please do not hesitate to contact us at the address indicated above, or
our legal counsel at the following address:
Attn:
Xxxxx X. Xxx
Guzov
Ofsink, LLC
000
Xxxxxxx Xxx., 00xx
Xxxxx
Email:
xxxx@xxxxxxxxx.xxx
Phone:
(000) 000 0000
Sincerely,
________________________
Xxx
Xxxxx
Chief
Executive Officer
RINO
International Corporation
RINO
International Corporation Amendment and Waiver Agreement Page 11 of
15
EXHIBIT
B
DISBURSEMENT
REQUEST
Pursuant to that certain Escrow
Agreement dated September 27, 2007, by and among RINO International Corporation
(formerly know as Jade Mountain Corporation), a Nevada corporation (the “Company”),
____________ and Tri-State Title & Escrow, LLC, as Escrow Agent, as amended
by that certain Waiver and Amendment Agreement dated March [____], 2009 (the
“Escrow Agreement”), pursuant to Section 3.1 of the Escrow Agreement, the
Company, _____________ hereby request disbursement of the Board Holdback Escrow
Amount in the amount and manner described below from [__________________insert
the name of the board holdback escrow account].
|
Please
disburse to:
|
|
RINO
International Corporation
|
|
Amount
to disburse:
|
|
$1,000,000.00
|
|
Form
of distribution:
|
|
________________________________
|
|
Payee:
|
||
|
Name:
|
RINO
International Corporation
|
|
|
|
Address:
|
Attn:
Xxx Xxxxxxxx
|
|
|
c/o
RINO International Corporation
|
|
|
|
11
Youquan Road, Zhanqian Street,
|
|
|
|
Jinzhou
District, Dalian,
|
|
|
|
People’s
Republic of China 116100
|
|
| Bank: |
________________________________
|
|
|
________________________________
|
Statement of event or
condition which calls for this request for disbursement: The
Company has complied with Section 4.12 of the Securities Purchase Agreement
dated September 27, 2007, by and among the Company and certain investors
signatories thereto.
Disbursement
approved by:
RINO
International Corporation
|
_______________________________
|
_______________________
|
|
Name:
Xxx Xxxxx
|
Date
|
|
Title:
Chief
Executive Officer
|
|
RINO
International Corporation Amendment and Waiver Agreement Page 12 of
15
|
Schedule
A to the Waiver and Amendment Agreement
|
||||||||||
|
Name
of Holders (A)
|
Number
of Shares of Common Stock Purchased Pursuant to the Securities Purchase
Agreement (B)
|
Number
of Shares of Common Stock Held by Holder as of the Date of the Waiver and
Amendment Agreement (C)
|
Percentage
Share of Total Number of Shares of Common Stock issued under the
Securities Purchase Agreement (D)
|
Number
of Shares to be Issued Pursuant to the Waiver and Amendment Agreement
(E)
|
Cash
Payment, in lieu of share issuance ($) (F)
|
|||||
|
[ ]
|
[ ]
|
[ ]
|
[ ]
|
[ ]
|
[ ]
|
|||||
|
Total
|
||||||||||
Schedule
B to Waiver and Amendment Agreement
Form
Holder Election Notice*
RINO
International Corporation Amendment and Waiver Agreement Page 13 of
15
Name of
Holder:__________________________________________
Address
of Holder (**):
______________________________________________________
Contact
Person and Address of Holder: _________________
Name:
Title:
Phone:
Email:
Fax:
Address (if different from the address
of the Holder as set froth above):
Election:
The
undersigned Holder purchased ____________ shares of common stock, par value
$.0001 (“Common
Stock”) of RINO International Corporation, a Nevada corporation (the
“Company”)
pursuant to that certain Securities Purchase Agreement, dated September 27,
2007, by and among the Company and each of the other parties signatory thereto
(the “SPA”).
As of the
date of this Holder Election Notice, the undersigned Holder holds _________
shares of the Common Stock of the Company.
Pursuant
to the Waiver and Amendment Agreement dated as of _______ _____, 2009, by and
among the Company and each of the investors signatory thereto to, representing
the holders holding a majority in interest of the shares issued under the SPA,
and such other parties signatories thereto, the undersigned Holder hereby elects
to receive (please choose one, and only one, of the options set forth
below):
|
A.
|
$________________
in cash in the manner as set forth below (please provide payment
instructions below):
|
|
B.
|
________________
shares of the Company’s Common Stock to be issued to the Holder (and/or
such other parties designated by the Holder*) as set forth
below:
|
RINO
International Corporation Amendment and Waiver Agreement Page 14 of
15
Name: _______________________
Number of
shares: _______________________
Name: _______________________
Number of
shares: _______________________
Name: _______________________
Number of
shares: _______________________
Name: _______________________
Number of
shares: _______________________
Notes:
*
This Form is to be used as Holder Election Notice and Holder 2nd
Election Notice, each as defined under the Waiver and Amendment
Agreement.
**Any certificates issued to a Holder
and such Holder’s designees, if applicable, pursuant to a Holder’s election set
forth above shall be delivered to the Address of the Holder (and not to the
designees, if applicable) as set forth above.
Signature
of Holder
By:
___________________________
Name:
Title:
Date of
Election: _________________
RINO
International Corporation Amendment and Waiver Agreement Page 15 of
15
