AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
AMENDMENT
NO. 1 TO STOCK PURCHASE AGREEMENT
AMENDMENT
NO. 1, dated as of December 13, 2007 (the “Amendment”) by and among Pilpol (HK)
Biological Limited, a Hong Kong company (“Buyer”) and an indirect wholly-owned
subsidiary of China Water and Drinks Inc., a Nevada corporation (“CWD”), CWD,
Shenyang Yuchinchuan Economic and Trade Limited company, a company formed in
accordance with the laws of the People’s Republic of China (the “Seller”),
Haoyang Bian, an individual (“Xx. Xxxx”), and the sole shareholder of Shenyang
Aixin Company Limited, a company formed in accordance with the laws of the
People’s Republic of China (the “Company”) that is a bottled water production
company located in Shenyang City (Liaoning Province) in the People’s Republic of
China (the “PRC”) to the Agreement dated as of August 24, 2007 (the “Agreement”)
by and among the Buyer, CWD and Xx. Xxxx.
WHEREAS,
Buyer, CWD and Xx. Xxxx have heretofore entered into the Agreement pursuant
to
which the Buyer purchased 66.67% of the outstanding equity of the Company (the
“Shares”); and
WHEREAS,
as of the date of the Agreement, Xx. Xxxx, was the direct and assigned
controlling shareholder of the Company; and
WHEREAS,
on September 3, 2007, Seller became the sole shareholder of the Company;
and
WHEREAS,
on October 17, 2007, the Company was transformed into a Sino-Foreign Joint
Venture (“SFJV”); and
WHEREAS,
Xx. Xxxx is the owner of 90% of the outstanding equity of the Seller;
and
WHEREAS,
Xx. Xxxx has heretofore assigned all of his rights and obligations under the
Agreement to Seller; and
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
or assigns; and
WHEREAS,
Buyer, CWD, Xx. Xxxx and Seller desire to amend the Agreement.
NOW
THEREFORE, the parties hereto agree as follows:
Section
1. Definitions.
Unless
otherwise defined herein, capitalized terms used herein and not defined shall
have the meanings specified in the Agreement. All references to “Seller” and
“Shares” contained in the Agreement shall be deemed to be references to “Seller”
and “Shares” as defined herein as of the date of the Amendment.
Section
2. Amendments
to the Agreement.
(a) Section
1.01 is hereby amended by deleting the definitions of “Cash Investment”, “CWD
Common Stock”, “Registration Rights Agreement”, “Securities Act”, “Stock
Consideration” and “Stock Consideration Payment Date”.
(b) The
definition of “Governmental Authority” set forth in Section 1.01 is hereby
deleted in its entirety and replaced by the following:
“Governmental
Authority” means any United States federal, state or local, PRC or any foreign
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
(c) The
definition of “Law” set forth in Section 1.01 is hereby deleted in its entirety
and replaced by the following:
“Law”
means any federal, state, local, PRC or foreign statute, law, ordinance,
regulation, rule, code, order, other requirement or rule of law.
(d) Section
2.02 is hereby deleted in its entirety and replaced by the following new Section
2.02:
“SECTION
2.02. Purchase
Price
In
consideration for the purchase of the Shares, (i) the Buyer shall pay to the
Seller US$2,120,000 (the “Purchase Price”), of which US$1,060,000 shall be paid
to the Seller on the Closing Date (the “First Payment”) and US$1,060,000 of
which shall
be
paid to the Seller on or prior to December 30, 2007, ( the “Second Payment”) in
each case, by wire transfer of immediately available funds to an account
designated in writing by Seller. The parties acknowledge that it shall utilize
RMB3.333 million of the portion of the First Payment to apply to the relevant
PRC authorities to obtain approval of the transfer of the Shares to the Buyer
and to transform the Company into an SFJV. The parties acknowledge that (i)
as
of the date of this Amendment, the First Payment had been made, and (ii) Seller
had utilized US dollars equivalent of RMB3.333 million of the portion of the
First Payment to apply to the relevant PRC authorities to obtain approval of
the
transfer of the Shares to the Buyer and to transform the Company into an
SFJV.
(e) Section
2.03 is hereby deleted in its entirety.
(f) Section
2.04 is hereby amended by replacing the words “August __, 2007” set forth
therein with the words “August 24, 2007”
(g) Section
2.06 is hereby deleted in its entirety.
(h) Section
2.07 is hereby amended by replacing the words “within __days” with the words
“within 30 days”.
(i) Section
3.03 is hereby deleted in its entirety and replaced by the following new Section
3.03:
“SECTION
3.03 No Consents, Approvals, Violations or Breaches. Neither the execution
and
delivery of the Agreement and/or the Amendment by the Seller, or the
consummation by the Seller of the transactions contemplated hereby or thereby,
will (i) require any consent, approval, authorization or permit of or
qualification with or prior notification to any Governmental Authority, any
state or any political subdivision thereof applicable to the Seller, the
Company, other than the Amendment and its Section 3(e) PRC reporting
consideration (ii) violate any statute, Law, ordinance, rule or regulation
of
any Governmental Authority, or any judgment, order, writ, decree or injunction
or other Governmental Order applicable to the Seller, the Company or any of
the
Seller’s properties or assets, or the properties or assets of the Company, or
(iii) violate, conflict with, or result in a breach of any provisions of, or
constitute a default (or any event which, with or without due notice or lapse
of
time, or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, any of the terms, conditions
or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which the Seller, the
Company is a party or by which the Seller, the Company or any of the Seller’s
properties or assets or the properties or assets of the Company may be
bound.”
(j) Section
3.09 is hereby deleted in its entirety.
(k) Section
3.10 is hereby deleted in its entirety.
(l) Section
3.11 is hereby deleted in its entirety.
(m) Section
3.12 is hereby deleted in its entirety.
(n) Section
3.08(ii) is hereby deleted in its entirety and replaced by the following new
Section 3.08(ii):
“(ii)
All
filings and registrations with the PRC governmental authorities required in
respect of each of the Company and its operations including, without limitation,
the registration with the related Chinese governmental authorities and their
local authorities in Liaoning Province have been duly completed in accordance
with the relevant PRC rules and regulations, except where the failure to
complete such filings and registrations does not, and would not, individually
or
in the aggregate, have a Material Adverse Effect.”
(o) The
parties agree to add the words “and the Amendment” immediately following the
words “this Agreement” in each place where such words appear in Sections 2.01,
3.01, 3.02, 3.04, 4.01, 4.02, 5.01(a), 5.01(b), 5.02(a), 5.02(b), 5.02(c),
6.01,
6.02, 6.03, 7.03, 7.04, 7.05, 7.06 and 7.08 of the Agreement.
(p) The
parties agree to add “subject to the Amendment” immediately after the last word
of each of Sections 3.07, 3.08(i), 3.08(iii) and 3.08(v) of the
Agreement.
Section
3. Miscellaneous.
(a) Effectiveness.
This
Amendment shall become effective as of the date first above
written.
(b) Continued
Effectiveness of the Agreement.
Except
as expressly amended herein, all terms and provisions of the Agreement are
and
shall continue to be in full force and effect.
(c) Governing
Law.
The
Agreement and this Amendment shall be governed and construed in accordance
with
the laws of the People’s Republic of China.
(d) Counterparts.
This
Amendment may be executed by the parties hereto in any number of separate
counterparts.
(e) PRC
Reporting Considerations
The
parties agree that the Seller shall be responsible for reporting as income
its
receipt of the Purchase Price to all required PRC governmental authorities
and
that this reporting duty shall in no way be the responsibility of the Company,
Buyer or CWD.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their respective duly authorized officers as of the date first
above written.
| PILPOL (HK) BIOLOGICAL LIMITED | ||
| |
|
|
| By: | /s/ Xu Hong Bin | |
|
Name: Xu Hong Bin |
||
| Title: Director | ||
| CHINA WATER AND DRINKS INC. | ||
| |
|
|
| By: | /s/ Xu Hong Bin | |
|
Name: Xing Xxx Xxxx |
||
| Title: Chief Executive Officer | ||
| SHENYANG YUCHINCHUAN ECONOMIC AND TRADE LIMITED COMPANY | ||
| |
|
|
| By: | /s/ Haoyang Bian | |
|
Name Haoyang Bian |
||
| Title: Executive Director and Chief Executive Officer | ||
| HAOYANG BIAN | ||
| |
|
|
| By: | /s/ Haoyang Bian | |
|
Haoyang Bian |
||
