Exhibit 2.1B
A MENDMENT N O . 2 TO A GREEMENT AND P LAN OF M ERGER AND R EORGANIZATION
T HIS A MENDMENT N O . 2 TO A GREEMENT AND P LAN OF M ERGER AND R EORGANIZATION (this “ Amendment ”)
is made and entered into as of October 30, 2008, by and among
H ECKMANN
C ORPORATION , a Delaware corporation (“
Parent ”), H ECKMANN A CQUISITION II C ORP . , a
Delaware corporation and a wholly owned Subsidiary of Parent
(“ Merger Sub ”), and C
HINA W ATER AND D RINKS , I NC . , a
Nevada corporation (the “ Company ”), and
amends that certain Agreement and Plan of Merger and Reorganization
(the “ Merger Agreement ”) by and among
Parent, Merger Sub and the Company dated as of May 19, 2008 as
amended on September 29, 2008 by Amendment No. 1 to
Agreement and Plan of Merger and Reorganization.
R ECITALS
A.
Pursuant to the Merger Agreement, as
amended, the Company will be merged with and into Merger Sub (the
“ Merger ”) with the Company ceasing to
exist and Merger Sub remaining as a wholly owned subsidiary of
Parent.
B.
Pursuant to Section 8.1 of the
Merger Agreement, Parent, Merger Sub and the Company, may amend the
Merger Agreement by signing an instrument in writing, provided that
any such amendment is authorized by their respective boards of
directors.
C.
To the extent required under and in
accordance with the Merger Agreement, the NRS, and the
Company’s Articles of Incorporation and Bylaws, concurrent
with the execution of this Amendment by the partiers hereto, Xu
Hong Bin and Chen Xing Hua, in their capacity as Company
stockholders, will execute and deliver in accordance with NRS
§78.320 a written consent, pursuant to which Xu Hong Bin and
Chen Xing Hua will irrevocably consent to reaffirm their adoption
of the Merger Agreement, as amended, and approval of the Merger,
and adopt this Amendment.
D.
Capitalized terms used in this
Amendment and not otherwise defined shall have the meaning ascribed
to such terms in the Agreement.
Now therefore, in accordance with
the procedures for amendment of the Merger Agreement set forth in
Section 8.1 thereof, and in consideration of the foregoing and
the mutual agreements herein set forth, the parties hereby agree as
follows:
SECTION 1: A
MENDMENT
1.1 Section 6.2 of the
Merger Agreement, as amended, is amended by deleting subsection
(h) and replacing subsection (h) with the
following:
“( Intentionally
omitted )”
1.2 Section 6.2 of the
Merger Agreement, as amended, is amended by deleting subsection
(j) and replacing subsection (j) with the
following:
“( Intentionally
omitted )”
1.3 Section 1.7(a) of
the Merger Agreement, as amended, is amended by deleting subpart
(A) of the definition of “ Total Cash
Consideration ” and replacing it with the
following:
“(A) all cash paid in
connection with Cash/Stock Elections and all cash paid under the
Related Agreements,”
SECTION 2: M
ISCELLANEOUS
P ROVISIONS
2.1 Effectiveness .
This Amendment shall become effective upon execution.
2.2 Representations and
Warranties .
2.2(a) The Company represents and warrants that the Board of
Directors of the Company has, as of the date of this Amendment,
unanimously (i) reaffirmed its adoption of the Merger
Agreement, as amended, and adopted this Amendment,
(ii) declared the Merger Agreement, as amended, and this
Amendment to be advisable and (iii) resolved to recommend to
the stockholders of the Company that they vote in favor of
reaffirming their adoption of the Merg
