SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
SECOND
AMENDMENT TO STOCK PURCHASE AGREEMENT
This
Second Amendment to Stock Purchase Agreement (“Second Amendment”) is entered
into as of July 16, 2008 by and among Fine Lake International Limited, a company
organized under the laws of the British Virgin Islands (“Buyer”) and a
wholly-owned subsidiary of China Water and Drinks Inc., a Nevada corporation
(“CWD”), CWD, and Xxxxx Xx and Xxxxxx Xxxxx, the shareholders (jointly, the
“Sellers” and individually, a “Seller”) of Pilpol (HK) Biological Limited, a
Hong Kong company (“Pilpol”) that owns and operates Naning Taoda Drink Company
Limited, a PRC company.
WHEREAS,
Buyer, CWD, and the Sellers are contracting parties to that certain Stock
Purchase Agreement, dated as of June 15, 2007 (the “Original Agreement”),
pursuant to which Buyer purchased 100% of the outstanding equity of Pilpol
(the
“Shares”);
WHEREAS,
Buyer, CWD, and the Sellers are contracting parties to that certain Amendment
No. 1 to Stock Purchase Agreement, dated as of August 15, 2007 (the “First
Amendment”), pursuant to which the parties thereto amended the Original
Agreement (the Original Agreement as amended by the First Amendment is referred
to herein as the “Agreement”);
WHEREAS,
Section 7.04 of the Agreement provides that the Agreement may be amended in
a
written instrument signed by the parties thereto or their respective successors
and assigns; and
WHEREAS,
Buyer, CWD, and the Sellers desire to amend certain provisions of the Agreement
on the terms and conditions set forth herein.
NOW,
THEREFORE, the parties hereto agree as follows:
1. Definitions.All
terms
used in this Second Amendment not otherwise defined herein shall have the same
meanings as in the Agreement. The Recitals above shall be incorporated into
and
shall form a part of this Second Amendment. References to sections and Articles
in this Second Amendment shall mean the sections and Articles of the Agreement
unless otherwise stated.
2. Effective
Date.
Upon
execution of this Second Amendment, all of the provisions in this Second
Amendment amending and supplementing the Agreement shall become effective and
binding upon the parties commencing on and after the date first stated
above.
3. Amendments
to the Agreement.
On and
after the date first stated above, the following amendments and supplements
shall apply to the Agreement:
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| a. |
The
Agreement shall be supplemented by the addition of the following
defined
terms to Section 1.01 of the Agreement:
|
“Converted
Shares”
has
the
meaning set forth in Section
2.04
hereof.
“Effective
Time”
has
the
meaning set forth in Section 1.3 of the Merger Agreement.
“Merger”
has
the
meaning set forth in the Recitals to the Merger Agreement.
“Merger
Agreement”
means
that certain Agreement and Plan of Merger and Reorganization dated as of May
19,
2008 by and among Xxxxxxxx Corporation, a Delaware corporation, Heckmannn
Acquisition II Corporation, a Delaware corporation, and CWD.
| b. |
Section
2.04 of the Agreement shall be amended and restated in its entirety
as
follows:
|
“SECTION
2.04. Stock
Consideration; Lock-up.
(a) Reasonably
promptly after July 16, 2008 (the “Stock Consideration Payment Date”), CWD shall
issue to the Sellers and Buyer shall deliver to the Sellers the Stock
Consideration, which shall consist of 1,523,578 shares of CWD Common Stock.
The
certificates representing the shares of CWD Common Stock comprising the Stock
Consideration shall bear the legend set forth in Section 3.13.
(b) Prior
to
the Effective Time of the Merger, either Seller may sell, transfer or otherwise
dispose of the shares of CWD Common Stock comprising the Stock Consideration,
provided that, (1) in the case of a sale, transfer or other disposition, other
than a sale, transfer or disposition pursuant to Rule 144 under the Securities
Act, the transferee makes the representations and warranties in Sections 3.10,
3.11, 3.12 and 3.13 hereof, agrees to be bound by the terms hereof, and agrees
to effect any sale, transfer or other disposition of the shares of CWD Common
Stock received from either Seller through Credit Suisse Securities (USA) LLC;
or
(2) in the case of a sale, transfer or other disposition pursuant to Rule 144
under the Securities Act of 1933, any such sale, transfer or other disposition
is made through Credit Suisse Securities (USA) LLC, is in compliance with the
requirements of Rule 144 under the Securities Act, and is accompanied by an
opinion of counsel reasonably satisfactory to CWD that the transfer may be
effected in accordance with U.S. securities and any other applicable
laws.
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(c) In
the
event that any Seller elects to convert all or any portion of the shares of
CWD
Common Stock included in the Stock Consideration into shares of Xxxxxxxx
Corporation’s common stock at the Effective Time of the Merger pursuant to the
Merger Agreement (the “Converted Shares”), each of the Sellers hereby agrees
that such Seller shall not sell, transfer or otherwise dispose of fifty percent
(50%) of the Converted Shares for a period of one (1) year from the date such
Seller receives the Converted Shares.”
4. No
Change.
Except
as provided by this Second Amendment, none of the rights, obligations, terms,
or
conditions in the Agreement are amended, modified or otherwise changed by this
Second Amendment and after the Amendment Date, this Second Amendment and the
Agreement shall be read as one document.
5. Governing
Law.
This
Second Amendment shall be governed and construed in accordance with the laws
of
the State of New York, without regard to the principles of conflicts of law
thereof.
6. Counterparts.
This
Second Amendment may be executed by the parties hereto in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Signatures
on the next page]
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IN
WITNESS WHEREOF, the parties hereto through their respective authorized
signatories have executed this Second Amendment to Stock Purchase Agreement
as
of the date first stated above.
BUYERS
FINE
LAKE
INTERNATIONAL LIMITED
a
British
Virgin Islands company
By:
/s/
Xu
Hong
Bin
Name:
Xu
Hong
Bin
Title:
Director _____
CWD
CHINA
WATER AND DRINKS INC.
a
Nevada
corporation
By: /s/
Xu
Hong
Bin
Name:
Xu
Hong
Bin
Title:
President
SELLERS
Shareholders
of Pilpol (HK) Biological Limited
/s/
Xxxxx
Xx
Xxxxx
Xx
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
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