Execution
Copy
Amendment No. 2 to Majority
Stockholder Consent Agreement
[Xu Hong
Bin]
This
Amendment No. 2 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 Xu Hong Bin
(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, as amended
by Amendment No. 1 to Majority Stockholder Consent Agreement dated
as of September 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 price paid for
Company Common Stock by the Consenting Stockholder, and other
factors, the Consenting Stockholder has agreed to sell some 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.
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 the Transferred Shares to
Parent and elect to receive stock in the Merger with respect to the
Stock Electing Shares.”
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; Election Pursuant to Merger Agreement
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 Transferred Shares,
free and clear of any and all Liens. The Transferred Shares,
together with the Stock Electing 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 the Transferred 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 the purchase.
2.2 Election . The Consenting Stockholder hereby elects (the
“ Stock Election ”) to, in the event
the Merger occurs, receive in the Merger shares of Parent Common
Stock at the Exchange Ratio in respect of the Stock Electing
Shares. The Consenting Stockholder agrees that, subject to the
consummation of the Merger, the Stock Election is unconditional and
irrevocable. The Consenting Stockholder acknowledges that his Stock
Election pursuant to this Section 2.2 was made on
a completely voluntary basis. The Consenting Stockholder will
execute such further instruments and provide such further
information relevant to the Stock Election, including declarations
related to Taxes, as Parent shall reasonably request in connection
with the foregoing.
2.3 Effectiveness; Agreement Not to
Revoke . The Consenting
Stockholder acknowledges and agrees that the Stock Election is
effective upon the execution and delivery thereof to Parent in
accordance with Section 2.2 above, and the
Consenting Stockholder will not revoke, seek to revoke, or take any
action, directly or indirectly, for the purpose of, or having the
effect of, revoking or seeking to revoke, the Stock Election. The
Consenting St
