Registrant's
telephone number, including area code: (011)-86-411-87661222
_________________________________________________
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act(17CFR230.425)
o Soliciting material
pursuant to Rule14a-12 under the Exchange Act (17CFR240.14a12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17CFR240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17CFR240.13e-4(c))
Item
1.01
Entry into a Material Definitive
Agreement
On April3, 2009, RINO International Corporation, a Nevada corporation (the “Company”),
entered into a Waiver and Amendment Agreement (the “Amendment Agreement”) with
certain holders of the shares of the Company’s common stock representing holders
of a majority in interest of the shares of the Company’s common stock issued in
the private placement transaction consummation on October 5, 2007 (the “Private
Financing”).
As part
of the Private Financing, on September 27, 2007, the Company and the investors
in the Private Financing and certain other parties signatories thereto entered
into that certain (i) Securities Purchase Agreement (the “Securities Purchase
Agreement”), (ii) Registration Rights Agreement (the “Registration Rights
Agreement”), and (iii) Escrow Agreement.
The
Securities Purchase Agreement requires that, no later than 120 days following
the closing date of the Private Financing, the Company’s Board of Director 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), and if the Company shall fail to comply with the foregoing
requirement, then, the Company shall incur certain liquidated damages payable to
the investors calculated as provided under the Securities Purchase
Agreement. In connection therewith, the Securities Purchase Agreement
and the Escrow Agreement require that $1,000,000 (the “Board Holdback Escrow
Amount”) of the investment proceeds from the Private Financing be held in escrow
by the escrow agent under the Escrow Agreement pending compliance by the Company
with the foregoing requirement. On March 20, 2008, the then Board of
Directors of the Company 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 the
Securities Purchase Agreement caused the Company to incur liquidated damages in
the amount of $627,172.19 under the Securities Purchase Agreement.
The
Registration Rights Agreement provides that, if the Company shall fail to cause
a registration statement covering the registration of the certain registrable
securities to be declared effective by the SEC on certain effective date as
specified under the Registration Rights Agreement, then, the Company shall incur
certain liquidated damages payable to the investors calculated as provided under
the Registration Rights Agreement. 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 the Registration Rights
Agreement.
The
Amendment Agreement amends the relevant provisions of the Securities Purchase
Agreement and the Registration Rights Agreement, respectively, such that (i) no
amount of liquidated damages shall have been incurred and payable to the
investors due to the late appointment of independent directors, (ii) the
liquidated damages incurred due to the late effectiveness of the registration
statement shall be paid in the form of shares of the Company’s common stock of
up to 192,045 shares, or, at the election of each investor, in cash of (up to an
aggregate of $860,362 for all investors), each as provided in the Amendment
Agreement, and (iii) the Escrow Agreement to reflect the amendments made to the
Securities Purchase Agreement with regard to the distribution of the Board
Holdback Escrow Amount.
Upon
effectiveness of the Amendment Agreement, each current holder of the Company’s
common stock issued in the Private Financing is required to elect, by written
notice to the Company, whether to receive shares of the Company’s common stock
or cash as provided by the Amendment Agreement.
The
foregoing description of the terms of the Amendment Agreement is qualified by
reference to its provisions, attached to this report as Exhibit
10.1.
Item
3.02
Unregistered Sale of Equity
Securities
The
information pertaining to the issuance of up to 192,045 shares of the Company’s
common stock pursuant to the Amendment Agreement in Item 1.01 is incorporated
herein by reference in its entirety. Upon issuance, such shares of the Company’s
common stock will not be registered under the Securities Act of 1933, as
amended, and may not be offered or sold in the United States absent registration
or an applicable exemption from registration requirements. The Company intends
to issue these shares in reliance on the exemption from registration provided by
Regulation D. This current report on Form 8-K does not constitute an offer to
sell, or a solicitation of an offer to buy, any security and shall not
constitution an offer, solicitation or sale in any jurisdiction in which such
offering would be unlawful.
Item
8.01
Other
Events
RINO
International Corporation, a Nevada corporation (the “Company”) issued a press
release on April 8, 2009, regarding it entry into a Waiver and Amendment
Agreement with certain holders of majority shares of the Company’s common stock
issued in the private placement transaction on October 5, 2007. The press
release is filed herewith as Exhibit 99.1.
Item
9.01
Financial Statements and
Exhibits.
(d)
The
following exhibit is filed with this Current
Report
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this Current Report to be signed on its behalf by the undersigned
hereunto duly authorized.