Exhibit 10.19C
A MENDMENT N O . 3 TO M AJORITY S TOCKHOLDER C ONSENT A GREEMENT
[X U H ONG B IN ]
T HIS A MENDMENT N O . 3 TO M AJORITY S TOCKHOLDER C ONSENT A GREEMENT (this “ Amendment ”)
is made and entered into as of October 30, 2008, by and among
H ECKMANN
C ORPORATION , a Delaware corporation (“
Parent ”), X U H ONG B IN (the
“ Consenting Stockholder ”), and Kotex
Development Limited, a company organized under the laws of the
British Virgin Islands (“ Affiliated Entity
”) and amends that certain Majority Stockholder Consent
Agreement (the “ Agreement ”) by and
between Parent and the Consenting Stockholder dated as of
May 19, 2008, as amended by Amendment No. 1 to Majority
Stockholder Consent Agreement dated as of September 19, 2008
and Amendment No. 2 to Majority Stockholder Consent Agreement
dated as of September 26, 2008.
R ECITALS
A.
Parent, Heckmann Acquisition II
Corp., a Delaware corporation and a wholly owned Subsidiary of
Parent (“ Merger Sub ”) and China Water
and Drinks, Inc., a Nevada corporation (the “
Company ”) have entered into an agreement and
plan of merger and reorganization (the “ Merger
Agreement ”), pursuant to which 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 7.2 of the
Agreement, Parent and the Consenting Stockholder may amend the
Agreement by signing an instrument in writing.
C.
The Consenting Stockholder has
advised Parent that Consenting Stockholder may transfer to the
Affiliated Entity all of the shares of Parent Common Stock that
will be owned by the Consenting Stockholder after the consummation
of the Merger, and Parent has agreed to permit such transfer
subject to the terms and conditions set forth in this Amendment
No. 3.
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 Agreement set forth in
Section 7.2 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 The Agreement is amended
by inserting a new Recital H immediately following Recital G as it
currently exists, reading in its entirety as follows:
“
H. Contemporaneously with the
closing of the Merger, the Consenting Stockholder will instruct the
exchange agent in the Merger to issue to the Affiliated Entity
16,532,100 shares of Parent Common Stock issuable in the Merger in
exchange for shares of Company Common Stock beneficially owned by
the Consenting Stockholder (the “ Transferred
Shares ”).”
1.2 The Agreement is amended
to renumber Recital H as Recital I.
1.3 Section 5.4 of the
Agreement is amended by adding the following immediately prior to
the final sentence of Section 5.4:
“The Affiliated Entity shall
give prompt notice to Parent of the occurrence, or failure to
occur, of any event, which occurrence or failure to occur causes,
or would be reasonably likely to cause (a) any representation
or warranty of the Affiliated Entity contained in this Agreement to
be untrue or inaccurate in any respect, or (b) any covenant,
condition or agreement not to be complied with or satisfied by it
under this Agreement.”
1.4 Section 5.5 of the
Agreement is modified by ending the following sentence at the end
thereof:
“Notwithstanding anything to
the contrary, contemporaneously with the closing of the Merger, the
Consenting Stockholder may instruct the exchange agent in the
Merger to issue to the Affiliated Entity the Transferred Shares
subject to the remaining provisions of this
Agreement.”
1.5
Section 5.8 of the Agreement is
amended and restated in its entirety to read as follows:
“5.8
Escrow .
5.8(a) In order to secure the
Consenting Stockholder’s and Affiliated Entity’s
obligations under Section 3 , Section 5.1 ,
and Section 5.5 above and Section 6 below,
as applicable, Parent shall hold the certificates evidencing the
Transferred Shares, in escrow together with separate stock powers
executed by the Affiliated Entity in blank for transfer. Parent
shall not retain the Transferred Shares except as provided in
Section 6 of this Agreement. In the event Parent is
entitled to any Transferred Shares under Section 6
below, Parent is hereby authorized by the Affiliated Entity, as the
Affiliated Entity’s attorney-in-fact, to date and complete
the stock powers necessary for the transfer of the Transferred
Shares to which Parent is then entitled and to transfer such
Transferred Shares in accordance with the terms hereof.
5.8(b) On March 31, 2010,
Parent shall deliver to the Affiliated Entity the certificates
representing 80% of the Transferred Shares and, on the date that is
the two year anniversary of the Closing Date, Parent shall deliver
to the Affiliated Entity the certificates representing the
remaining Transferred Shares, in each cas
