STRICTLY CONFIDENTIAL Mr. Dejun Zuo Chief Executive Officer RINO International Corporation No.11, Youquan Rd, Zhanqian Street, Jinzhou District Dalian City, Liaoning Province, 116100 China Dear Mr. Zou:
December 2, 2009
STRICTLY
CONFIDENTIAL
▇▇. ▇▇▇▇▇
▇▇▇
Chief
Executive Officer
RINO
International Corporation
▇▇.▇▇,
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dalian
City, Liaoning Province, 116100 China
Dear ▇▇.
▇▇▇:
This
letter (the “Agreement”)
constitutes the agreement between RINO International Corporation (the “Company”) and ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC (“▇▇▇▇▇▇” or the
“Placement Agent”) as the lead placement agent (the “Placement Agent”),
that ▇▇▇▇▇▇ shall serve as the exclusive placement agent (the “Services”) for the
Company, on a reasonable best efforts basis, in connection with the proposed
offer and placement (the “Offering”) by the
Company of registered securities of the Company (the “Securities”). The
terms of the Offering and the Securities shall be mutually agreed upon by the
Company and the investors in such Offering and nothing herein implies that the
Placement Agent would have the power or authority to bind the Company or an
obligation for the Company to issue any Securities or complete the
Offering. The Company expressly acknowledges and agrees that the
execution of this Agreement does not constitute a commitment by ▇▇▇▇▇▇ to place
or purchase any Securities and does not ensure the successful placement of the
Securities or any portion thereof or the success of ▇▇▇▇▇▇ with respect to
securing any other financing on behalf of the Company.
A. Fees. A
cash fee payable immediately upon the closing of the Placement and equal to 4.5%
of the aggregate gross proceeds raised in the
Placement. Additionally, a cash fee payable within 48 hours of (but
only in the event of) the receipt by the Company of any proceeds from the
exercise of the warrants or options sold in the Placement that are solicited by
the Placement Agent and otherwise in compliance with Financial Industry
Regulatory Authority (“FINRA”) Rule 5110
equal to 3.0% of the aggregate cash exercise price received by the Company upon
such exercise, if any (the “Warrant Solicitation
Fee”), provided, however, the Warrant Solicitation Fee shall be reduced
to the extent (and only to the extent) that ▇▇▇▇▇▇’▇ aggregate compensation for
the Placement, as determined under FINRA Rule 5110, would otherwise exceed
8%. Such determination of the actual Warrant Solicitation Fee shall
be made promptly following completion of the Placement and communicated in
writing to the Company. The Placement Agent shall in all circumstances bear its
own out of pocket expenses (including without limitation legal
fees).
▇. ▇▇▇▇ and Termination of
Engagement. The term (the “Term”) of the
Placement Agent’s engagement will begin on the date hereof and end on the
earlier of the consummation of the Offering or 15 days after the receipt by
either party hereto of written notice of termination from the other party;
provided that no such notice may be given by the Company for a period of 30 days
after the date hereof. Notwithstanding anything to the contrary
contained herein, the provisions in this Agreement concerning confidentiality,
indemnification and contribution will survive any expiration or termination of
this Agreement. Upon any termination of this Agreement, the Company's
obligation to pay the Placement Agent any fees actually earned on closing of the
Offering and otherwise payable under Section (A), shall survive any expiration
or termination of this Agreement, as permitted by FINRA Rule
5110(f)(2)(d).
C. Use of
Information. The Company will furnish the Placement Agent such
written information as the Placement Agent reasonably requests in connection
with the performance of its services hereunder. The Company
understands, acknowledges and agrees that, in performing its services hereunder,
the Placement Agent will use and rely entirely upon such information as well as
publicly available information regarding the Company and other potential parties
to an Offering and that the Placement Agent does not assume responsibility for
independent verification of the accuracy or completeness of any information,
whether publicly available or otherwise furnished to it, concerning the Company
or otherwise relevant to an Offering, including, without limitation, any
financial information, forecasts or projections considered by the Placement
Agent in connection with the provision of its services.
D. Publicity. In
the event of the public announcement of any Offering, after the closing of such
offering, the Placement Agent shall have the right, upon the written consent of
the Company, to disclose its participation in such Offering, including, without
limitation, the placement at its cost of “tombstone” advertisements in financial
and other newspapers and journals.
E. Securities
Matters. The Company shall be responsible for any and all
compliance with the securities laws applicable to it, including under the
Securities Act of 1933, as amended (the “Securities Act”), and
unless otherwise agreed in writing, all state securities (“blue sky”)
laws. The Placement Agent agrees to cooperate with counsel to the
Company in that regard and to not take any action in consistent with the
Securities Act, including the Security Act, or blue sky laws.
F. Indemnity.
1. In
connection with the Company’s engagement of ▇▇▇▇▇▇ as Placement Agent, the
Company hereby agrees to indemnify and hold harmless the Placement Agent and its
affiliates, and the respective controlling persons, directors, officers,
shareholders, agents and employees of any of the foregoing (collectively the
“Indemnified
Persons”), from and against any and all claims, actions, suits,
proceedings (including those of shareholders), damages, liabilities and expenses
incurred by any of them (including the reasonable fees and expenses of counsel),
as incurred, (collectively a “Claim”), that are (A)
related to or arise out of any actions taken or omitted to be taken (including
any untrue statements made or any statements omitted to be made) by the Company,
or (B) otherwise relate to or arise out of the Placement Agent’s activities on
the Company’s behalf under the Placement Agent’s engagement, and the Company
shall reimburse any Indemnified Person for all expenses (including the
reasonable fees and expenses of counsel) as incurred by such Indemnified Person
in connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party, and in enforcing this
Agreement. The Company will not, however, be responsible for any
Claim that is finally judicially determined to have resulted solely from the bad
faith, gross negligence or willful misconduct of any person seeking
indemnification for such Claim. The Company further agrees that no
Indemnified Person shall have any liability to the Company for or in connection
with the Company’s engagement of the Placement Agent except for any Claim
incurred by the Company as a result of such Indemnified Person’s bad faith,
gross negligence or willful misconduct (as finally judicially
determined).
2. The
Company further agrees that it will not, without the prior written consent of
the Placement Agent, settle, compromise or consent to the entry of any judgment
in any pending or threatened Claim in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is an actual or
potential party to such Claim), unless such settlement, compromise or consent
includes an unconditional, irrevocable release of each Indemnified Person from
any and all liability arising out of such Claim.
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3. Promptly
upon receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which indemnification is
being sought hereunder, such Indemnified Person shall notify the Company in
writing of such complaint or of such assertion or institution but failure to so
notify the Company shall not relieve the Company from any obligation it may have
hereunder, except and only to the extent such failure results in the forfeiture
by the Company of substantial rights and defenses. If the Company so
elects or is requested by such Indemnified Person, the Company will assume the
defense of such Claim, including the employment of counsel reasonably
satisfactory to such Indemnified Person and the payment of the fees and expenses
of such counsel. In the event, however, that legal counsel to such Indemnified
Person reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of, any
such Claim, includes an Indemnified Person and the Company, and legal counsel to
such Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition to
those available to the Company, then such Indemnified Person may employ its own
separate counsel to represent or defend him, her or it in any such Claim and the
Company shall pay the reasonable fees and expenses of such
counsel. Notwithstanding anything herein to the contrary, if the
Company fails timely or diligently to defend, contest, or otherwise protect
against any Claim, the relevant Indemnified Party shall have the right, but not
the obligation, to defend, contest, compromise, settle, assert crossclaims, or
counterclaims or otherwise protect against the same, and shall be fully
indemnified by the Company therefor, including without limitation, for the
reasonable fees and expenses of its counsel and all amounts paid as a result of
such Claim or the compromise or settlement thereof. In addition, with
respect to any Claim in which the Company assumes the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain his, her
or its own counsel therefor at his, her or its own expense.
4. The
Company agrees that if any indemnity sought by an Indemnified Person hereunder
is held by a court to be unavailable for any reason then (whether or not ▇▇▇▇▇▇
is the Indemnified Person), the Company and the Placement Agent shall contribute
to the Claim for which such indemnity is held unavailable in such proportion as
is appropriate to reflect the relative benefits to the Company, on the one hand,
and the Placement Agent on the other, in connection with the Placement Agent’s
engagement referred to above, subject to the limitation that in no event shall
the amount of the Placement Agent’s contribution to such Claim exceed the amount
of fees actually received by the Placement Agent from the Company pursuant to
the Placement Agent’s engagement. The Company hereby agrees that the
relative benefits to the Company, on the one hand, and the Placement Agent on
the other, with respect to the Placement Agent’s engagement shall be deemed to
be in the same proportion as (a) the total value paid or proposed to be paid or
received by the Company or its stockholders as the case may be, pursuant to the
Offering (whether or not consummated) for which the Placement Agent is engaged
to render services bears to (b) the fee paid or proposed to be paid to the
Placement Agent in connection with such engagement.
5. The
Company’s indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity and (b) shall be effective whether or not the Company is at fault in any
way.
3
G. Limitation of Engagement to
the Company. The Company acknowledges that the Placement Agent
has been retained only by the Company, that the Placement Agent is providing
services hereunder as an independent contractor (and not in any fiduciary or
agency capacity) and that the Company’s engagement of the Placement Agent is not
deemed to be on behalf of, and is not intended to confer rights upon, any
shareholder, owner or partner of the Company or any other person not a party
hereto as against the Placement Agent or any of its affiliates, or any of its or
their respective officers, directors, controlling persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)),
employees or agents. Unless otherwise expressly agreed in writing by
the Placement Agent, no one other than the Company is authorized to rely upon
this Agreement or any other statements or conduct of the Placement Agent, and no
one other than the Company is intended to be a beneficiary of this
Agreement. The Company acknowledges that any recommendation or
advice, written or oral, given by the Placement Agent to the Company in
connection with the Placement Agent’s engagement is intended solely for the
benefit and use of the Company’s management and directors in considering a
possible Offering, and any such recommendation or advice is not on behalf of,
and shall not confer any rights or remedies upon, any other person or be used or
relied upon for any other purpose. The Placement Agent shall not have
the authority to make any commitment binding on the Company. The
Company, in its sole discretion, shall have the right to reject any investor
introduced to it by the Placement Agent.
H. Limitation of the Placement
Agent’s Liability to the Company. The Placement Agent and the
Company further agree that none of ▇▇▇▇▇▇, nor any of its affiliates or any of
their respective officers, directors, controlling persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), employees
or agents shall have any liability to the Company, its security holders or
creditors, or any person asserting claims on behalf of or in the right of the
Company (whether direct or indirect, in contract, tort, for an act of negligence
or otherwise) for any losses, fees, damages, liabilities, costs, expenses or
equitable relief arising out of or relating to this Agreement or the Services
rendered hereunder, except for losses, fees, damages, liabilities, costs or
expenses that arise out of or are based on any action of or failure to act by
the Placement Agent and that are finally judicially determined to have resulted
solely from the bad faith, gross negligence or willful misconduct of the
Placement Agent.
I. Company's Responsibilities,
Representations and Warranties. In connection with the
Offering:
1. The
sale of Securities to any investor will be evidenced by a purchase agreement
("Purchase
Agreement") between the Company and such investor in a form reasonably
satisfactory to the Company and such investor. Prior to the signing
of any Purchase Agreement, officers of the Company with responsibility for
financial affairs will be available to answer inquiries from prospective
Investors.
2. The
Company will perform the covenants set forth in the Purchase
Agreements. The Closing shall be held promptly following the
satisfaction of the other conditions set forth in such Purchase
Agreements.
3. In
addition to the representations and warranties made under this Agreement by the
Company, the Company agrees that the Placement Agent shall be entitled to rely
on the representations and warranties of the Company in such Purchase
Agreements, as if they were made directly to the Placement Agent.
4. There
are no affiliations with any FINRA member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company.
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5. The
Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (Registration File No. 333-162373) under the
Securities, which became effective on November 25, 2009, including the
registration statement on Form S-3MEF under Rule 462(b) under the Securities Act
filed in connection therewith, for the registration under the Securities Act of
the Securities. At the time of such filing, the Company met the requirements of
Form S-3 under the Securities Act. Such registration statement meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to
the form of prospectus included in such registration statement relating to the
placement of the Securities and the plan of distribution thereof and has advised
the Placement Agent of all further information (financial and other) with
respect to the Company required to be set forth therein. Such registration
statement, including the exhibits thereto and the registration statement on Form
S-3MEF under Rule 462(b), as amended at the date of this Agreement, is
hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act, on or before the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the case may be;
and any reference in this Agreement to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or the
issue date of the Base Prospectus or the Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference. All references in this
Agreement to financial statements and schedules and other information that is
“contained,” “included,” “described,” “referenced,” “set forth” or “stated” in
the Registration Statement, the Base Prospectus or the Prospectus Supplement
(and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that is or is
deemed to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of
the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the
Company's knowledge, is threatened by the Commission. For purposes of this
Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale
Prospectus” means the preliminary prospectus, if any, together with the
free writing prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference therein.
6 The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, as amended or supplemented, did not and will
not contain as of the date thereof any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they were made
not misleading, provided that the
Company’s Current Report on Form 8-K filed with the Commission on November 16,
2009 shall be deemed to cure any defect in the timeliness or accuracy of the
Incorporated Documents; and any further documents so filed and incorporated by
reference in the Base Prospectus, the Time of Sale Prospectus, if any, or
Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are
no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, that have not been described or filed as required.
5
7. The
Company is eligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or behalf of or used by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. The Company will not, without the prior
consent of the Placement Agent, prepare, use or refer to, any free writing
prospectus.
8. The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of
its directors and officers has distributed and none of them will distribute,
prior to the Closing Date, any offering material in connection with the offering
and sale of the Securities other than the Base Prospectus, the Time of Sale
Prospectus, if any, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act
6
J. Closing. The
obligations of the Placement Agent, and the closing of the sale of the
Securities hereunder are subject to the accuracy, when made and on the Closing,
of the representations and warranties on the part of the Company contained
herein and to the performance by the Company of its obligations hereunder, and
to each of the following additional terms and conditions:
1. No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.
2. The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the Placement
Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
3. All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
4. The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent.
5. Neither
the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Base Prospectus, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth in or contemplated by the Base Prospectus
and (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the business,
general affairs, management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries, otherwise than
as set forth in or contemplated by the Base Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Placement Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement.
6. The
Common Stock is registered under the Exchange Act and, as of the Closing Date,
the Securities shall be listed and admitted and authorized for trading on the
Nasdaq Global Market (“Trading Market”), and
satisfactory evidence of such actions shall have been provided to the Placement
Agent. The Company shall have taken no action designed to, or likely
to have the effect of terminating the registration of the Common Stock under the
Exchange Act or delisting or suspending from trading the Common Stock from the
Trading Market, nor has the Company received any information suggesting that the
Commission or the Trading Market is contemplating terminating such registration
or listing.
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7. Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market or the NYSE Alternext US or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
or maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or state authorities or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States shall have
become engaged in hostilities in which it is not currently engaged, the subject
of an act of terrorism, there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of a
national emergency or war by the United States, or (iv) there shall have
occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the
effect of any such event in clause (iii) or (iv) makes it, in the sole judgment
of the Placement Agent, impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated by the
Base Prospectus and the Prospectus Supplement.
8. No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or
materially and adversely affect or potentially and adversely affect the business
or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale
of the Securities or materially and adversely affect or potentially and
adversely affect the business or operations of the Company.
9. The
Company shall have prepared and filed with the Commission a Current Report on
Form 8-K with respect to the Placement, including as an exhibit thereto this
Agreement.
10. The Company shall have entered into
subscription agreements with each of the Purchasers and such agreements shall be
in full force and effect and shall contain representations and warranties of the
Company as agreed between the Company and the Purchasers.
11. Prior
to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may
reasonably request.
12. All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
K. Other
Relationships.
The Company acknowledges that the Placement Agent and its affiliates may have
and may continue to have investment banking and other relationships with parties
other than the Company pursuant to which either may acquire information of
interest to the Company. The Placement Agent shall not have any
obligation to disclose such information to the Company or to use such
information in connection with any contemplated transaction.
8
L. Anti-Money
Laundering. To help the United States government fight the
funding of terrorism and money laundering activities, the federal law of the
United States requires all financial institutions to obtain, verify and record
information that identifies each person with whom they do
business. This means we must ask you for certain identifying
information, including a government-issued identification number (e.g., a U.S.
taxpayer identification number) and such other information or documents that we
consider appropriate to verify your identity, such as certified articles of
incorporation, a government-issued business license, a partnership agreement or
a trust instrument.
M. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be fully performed therein. Any disputes that arise under this
Agreement, even after the termination of this Agreement, will be heard only in
the state or federal courts located in the City of New York, State of New
York. The parties hereto expressly agree to submit themselves to the
jurisdiction of the foregoing courts in the City of New York, State of New York.
The parties hereto expressly waive any rights they may have to contest the
jurisdiction, venue or authority of any court sitting in the City and State of
New York. In the event of the bringing of any action, or suit by a
party hereto against the other party hereto, arising out of or relating to this
Agreement, the party in whose favor the final judgment or award shall be entered
shall be entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, including its reasonable attorneys’
fees. Any rights to trial by jury with respect to any such action,
proceeding or suit are hereby waived by the Placement Agent and the
Company. All fees and expenses payable hereunder will be payable in
U.S. dollars in cash, net of any applicable withholding and similar
taxes. The Company hereby irrevocably consents to the service of
process in any proceeding by the mailing of copies of such process to the
Company at its address set forth above.
N. Notices. All
notices hereunder will be in writing and sent by certified mail, hand delivery,
overnight delivery or fax, if sent to ▇▇▇▇▇▇, to the address set forth on the
first page hereof, fax number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel, and if
sent to the Company, to the address on the first page hereof, fax number (▇▇)▇▇▇▇▇▇▇▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇. Notices sent by certified mail shall be deemed
received five days thereafter, notices sent by hand delivery or overnight
delivery shall be deemed received on the date of the relevant written record of
receipt, and notices delivered by fax shall be deemed received as of the date
and time printed thereon by the fax machine.
O. Miscellaneous. The
Company represents that it is free to enter into this Agreement and the
transactions contemplated hereby, that it will act in good faith, and that it
will not hinder the Placement Agent’s efforts hereunder. This
Agreement shall not be modified or amended except in writing signed by the
Placement Agent and the Company. This Agreement shall be binding upon
and inure to the benefit of the Placement Agent and the Company and their
respective assigns, successors, and legal representatives. This
Agreement constitutes the entire agreement of the Placement Agent and the
Company, and supersedes any prior agreements, with respect to the subject matter
hereof. If any provision of this Agreement is determined to be
invalid or unenforceable in any respect, such determination will not affect such
provision in any other respect, and the remainder of the Agreement shall remain
in full force and effect. This Agreement may be executed in
counterparts (including facsimile or .pdf counterparts), each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
******************
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In
acknowledgment that the foregoing correctly sets forth the understanding reached
by the Placement Agent and the Company, please sign in the space provided below,
whereupon this letter shall constitute a binding Agreement as of the date
indicated above.
Very truly yours,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
By
__________________________
Name:
Title:
Accepted
and Agreed:
RINO
INTERNATIONAL CORPORATION
By
__________________________
Name:
Title:
10