Execution
Copy
Amendment No. 1 to Majority
Stockholder Consent Agreement
[Chen Xing
Hua]
This
Amendment No. 1 to Majority Stockholder Consent
Agreement (this
“ Amendment ”) is made and entered into
as of September 26, 2008, by and among Heckmann
Corporation , a Delaware corporation (“
Parent ”), and Chen Xing Hua
(the “ Consenting Stockholder ”), and
amends that certain Majority Stockholder Consent Agreement (the
“ Agreement ”) by and between Parent
and the Consenting Stockholder dated as of May 19, 2008.
Recitals
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. In light of extraordinary conditions in world
credit and capital markets, the desire of Parent to preserve its
cash in light of these conditions, the de minimis public price paid
for Company Common Stock by the Consenting Stockholder, and other
factors, the Consenting Stockholder has agreed to sell all of his
shares of Company Common Stock that he owns directly or indirectly
to Parent immediately prior to the Effective Time of the Merger at
a price significantly lower than the Merger consideration.
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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: Amendment
1.1 Recital D of the Agreement is amended and
restated in its entirety to read as follows:
“Concurrently with the execution of this
Agreement, Parent, the Company and certain specified holders of
Company Common Stock are entering into an undertaking agreement
(the “ Undertaking Agreement ”),
pursuant to which each such holder will (i) immediately prior to
the Effective Time, sell to Parent each share of Company Common
Stock held by such holder, and (ii) provide a general release of
claims against the Company, Parent and Merger
Sub.”
1.2 Clause (ii) of Recital G is amended and restated
in its entirety to read as follows:
“(ii) sell Consenting Stockholder’s
Shares to Parent.”
1.3 Section 2 of the Agreement is amended and
restated in its entirety to read as follows:
“ SECTION 2: Sale and Purchase of
Shares.
2.1 Sale .
Upon the terms and subject to the conditions set forth in this
Agreement, immediately prior to the Effective Time (the “
Share Sale Closing ”):
“ 2.1(a)
The Consenting Stockholder
shall sell, assign, transfer, convey and deliver to Parent, and
Parent shall purchase from the Consenting Stockholder, the Shares,
free and clear of any and all Liens. The Shares constitute 100% of
the Shares held, beneficially and of record, by the Consenting
Stockholder. The Consenting Stockholder will execute such further
instruments and provide such further information, including
declarations related to Taxes, as Parent shall reasonably request
in connection with the foregoing. The Consenting Stockholder
acknowledges that his election to sell Shares under this Agreement
was made on a completely voluntary basis.
2.1(b) In consideration for the transfer of Shares
pursuant to Section 2.1(a) , Parent shall pay to
the Consenting Stockholder the amount in cash set forth opposite
the Consenting Stockholder’s name on Schedule
A by wire transfer of immediately available funds to
such bank accounts as the Consenting Stockholder shall designate in
writing to Parent within 3 days of purchase.
2.2 Termination . This Agreement shall terminate, without
liability to any party other than for willful breach, upon any
termination of the Merger Agreement. The provisions of
Section 7 (Miscellaneous) and Section
5.3 (Public Disclosure) shall survive any
termination.
2.3 Conditions . Parent’s obligation to consummate the
Contemplated Transactions shall be subject to:
