Exhibit 2.9
A MENDMENT N O . 1 TO A SSET P URCHASE A GREEMENT
T HIS A MENDMENT N O . 1 TO A SSET P URCHASE A GREEMENT (this “ Amendment ”)
is made and entered into as of June 30, 2009, by and among:
H ECKMANN
C ORPORATION , a Delaware corporation (“
Heckmann ”); Heckmann Water Resources
Corporation, a Texas corporation (“ Buyer
”) and a wholly-owned subsidiary of Heckmann; C
HARIS P ARTNERS , LLC , a Texas limited liability company (“
Charis ”); David Melton, Chris Cooper, Craig
Zips, Mike Davis and Kevin Greer, the members of Charis (the
“ Members ”); G
REER E XPLORATION C ORPORATION , a
Louisiana corporation (“ Greer ”); James
Greer, the sole stockholder of Greer (the “
Stockholder ”); S ILVERSWORD L.P., Silversword II, L.P.
, S ILVERSWORD III, L.P. , S ILVERSWORD IV, L.P. , S ILVERSWORD V, L.P. , and S ILVERSWORD VII, L.P. , each a Texas limited partnership
(collectively, “ Silversword ,” and
together with Charis and Greer, the “ Sellers
” and individually, a “ Seller ”);
Jon Hileman and James Greer, the direct or indirect owners of
Silversword (the “ Partners ,” and,
together with the Members and the Stockholder, the “
Owners ” and individually, an “
Owner ”), and amends that certain Asset
Purchase Agreement (the “ Agreement ”) by
and among Heckmann, Buyer, the Sellers and the Owners dated as of
June 12, 2009.
R ECITALS
A. Pursuant to the Agreement, Buyer will purchase
substantially all of the assets of Silversword and Greer related to
the Business (as defined in the Agreement) and 100% of the
outstanding equity of Charis.
B. Pursuant to Section 10.1 of the Agreement,
the parties may amend the Agreement at any time prior to the
Effective Time (as defined in the Agreement) by signing an
instrument in writing.
C. 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 Agreement set forth in
Section 10.1 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 1.4(a) of the Agreement is deleted
in its entirety and replaced with the following:
“at Closing, $17.0 million in
cash less the Holdback (as defined in Section 1.12 )
and less the Repair Allowance (as defined in
Section 1.13 ), which shall be payable by wire transfer
of immediately available funds (the “ Cash
Consideration ”) as follows (i) $5.0 million of
the Cash Consideration shall be payable to the Members (minus the
Members’ proportionate share of the Holdback and the Repair
Allowance) in respect of the Charis Equity, and (ii) $12.0
million of the Cash Consideration shall be payable to Silversword
(minus Silversword’s proportionate share of the Holdback and
the Repair Allowance) in respect of its Purchased Assets. The Cash
Consideration payable to the Members and Silversword shall be
allocated among the Members and the Silversword Entities,
respectively, as set forth on Schedule 1.4
.”
1.2 Section 1 of the Agreement is amended by
adding the following new Section 1.13:
“ 1.13 Repair
Allowance . At the Closing, Buyer will retain $400,000 of the
Cash Consideration (i.e. 29% to the Members, 71% to Silversword)
(the “ Repair Allowance ”) as security
for the agreements of Sellers set forth in Section 5.16
. The Repair Allowance shall be
1
retained and, subject to the
following sentence, paid to the Members and Silversword in the same
proportion as the Cash Consideration upon (a) completion of
the ongoing repairs and replacement of the underground tubing or
casing at the Cook and Watson wells identified on Schedule
1.1(a) and in Part 3.7(b) of the Disclosure
Schedules (the “ Cook and Watson Wells
”), and inspection and recertification of the Cook and Watson
Wells by the Texas Railroad Commission, (b) completion by
Sellers at their direction and to Buyer’s reasonable
satisfaction, of all corrective action recommended by SRP
Environmental respecting environmental issues related to the
Existing Wells, which recommendations are set forth in seven
service estimates dated June 28, 2009 and delivered to Sellers
by Buyer prior to Closing, and (c) delivery to Buyer by
Sellers and/or Members of invoices and other documentation
evidencing the cost of the repairs and remediation referred to in
Sections 1.13(a) and (b) (the “
Repair Costs ”), which documentation must be
satisfactory to Buyer. The amount of the Repair Allowance payable
to the Members and Silversword pursuant to the foregoing sentence
shall be reduced by an amount equal to the Repair Costs. In the
event that the conditions of Sections 1.13(a) , (b)
and (c) have not been satisfied by Sellers or
waived by Buyer prior to December 31, 2009, Buyer shall be
entitled to permanently retain (x) a portion of the Repair
Allowance that is equal to Buyer’s good faith estimation of
the total costs that it will incur to complete the repairs and
remediation referred to in Secti
