Amendment No. 1 to Undertaking Agreement [Li Related Holders]
Execution
Copy
Amendment
No. 1 to Undertaking Agreement
[Li
Related Holders]
This
Amendment No. 1 to Undertaking Agreement (this
“Amendment”)
is
made and entered into as of September 26, 2008, by and among ▇▇▇▇▇▇▇▇
Corporation,
a
Delaware corporation (“Parent”),
China
Water and Drinks, Inc.,
a
Nevada corporation (the “Company”)
and
the Persons and Entities listed on Schedule
A
hereto
(each a “Selling
Stockholder,”
and
collectively, the “Selling
Stockholders”),
and
amends that certain Undertaking Agreement (the “Agreement”)
by and
among Parent, the Company and the Selling Stockholders dated as of May 19,
2008.
Recitals
A. Parent,
▇▇▇▇▇▇▇▇ Acquisition II Corp., a Delaware corporation and a wholly owned
Subsidiary of Parent (“Merger
Sub”)
and
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. 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 Selling Stockholders, and other factors,
the Selling Stockholders have agreed to sell all of their shares of Company
Common Stock, whether owned directly or indirectly, to Parent immediately prior
to the Effective Time of the Merger at a price significantly lower than the
Merger consideration.
C. Pursuant
to Section 5.3 of the Agreement, Parent, the Company and a majority in interest
of the Selling Stockholders may amend the Agreement by signing an instrument
in
writing.
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 5.3 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
F
of the Agreement is amended and restated in its entirety to read as
follows:
“The
Selling Stockholders desire to sell their Shares to Parent and provide a general
release of claims against the Company, Parent and Merger Sub.”
1.2 Section
1
of the Agreement is amended and restated in its entirety to read as
follows:
“SECTION
1: Sale
and Purchase of Shares.
1.1 Sale.
Upon
the terms and subject to the conditions set forth in this Agreement, immediately
prior to the Effective Time (the “Closing”):
1.1(a) The
Selling Stockholders shall sell, assign, transfer, convey and deliver to Parent,
and Parent shall purchase from the Selling Stockholders, the Shares, free and
clear of any and all Liens. The Shares constitute 100% of the Shares held,
beneficially and of record, by the Selling Stockholders. Each Selling
Stockholder will execute such further instruments and provide such further
information, including tax declarations, as Parent shall reasonably request
in
connection with the foregoing. Each Selling Stockholder acknowledges that his,
her or its election to sell Shares under this Agreement was made on a completely
voluntary basis.
1.1(b)
In
consideration for the transfer of Shares pursuant to Section
1.1(a),
Parent
shall pay to each Selling Stockholder the amount in cash set forth opposite
such
Selling Stockholder’s name on Schedule
A
(the
“Purchase
Price”)
by
wire transfer of immediately available funds to such bank accounts as such
Selling Stockholder shall designate in writing to Parent within 3 days of the
purchase.
1.2 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
5
(Miscellaneous) and Section
4.4
(Public
Disclosure) shall survive any termination.
1.3 Conditions.
Parent's obligation to consummate the Contemplated Transactions shall be subject
to:
1.3(a) satisfaction
of all pre-closing conditions to the Merger Agreement, including all necessary
shareholder approvals;
1.3(b) the
receipt of all necessary consents or approvals, the making of any
required filings or applications, and the absence of any legal or
regulatory restriction, pending or threatened, in connection with the
Contemplated Transactions, including the absence of any pending or
threatened restrictions pertaining to ownership of the Shares
or operation of the business of the Company; and
1.3(c) the
representations and warranties of the Selling Stockholders’ being true and
correct as of the Closing, and all obligations required to be performed by
the
Selling Stockholders prior to the Closing having been so performed.
1.3 The
final
sentence of Section 2.3 of the Agreement is amended and restated in its entirety
to read as follows:
“Upon
consummation of the Contemplated Transactions, Parent will own the Shares of
such Selling Stockholder free and clear of any and all Liens.”
1.4 The
capitalized word “Termination” is deleted and replaced with the words
“termination of the Merger” in Sections 4.1(a), 4.1(b) and 4.1(c) of the
Agreement.
1.5 The
capitalized words “Effective Time” are deleted in each place where they appear
in the Agreement, except where they appear in Recital D, Recital E and Exhibit
A
of the Agreement, and are replaced with the word “Closing.”
1.6 Schedule
A to the Agreement is amended and replaced in its entirety with Schedule
A
attached
hereto.
2
SECTION
2: MISCELLANEOUS PROVISIONS
2.1 Effectiveness.
This
Amendment shall become effective upon execution.
2.2 Limited
Nature of Amendment.
Except
as expressly amended hereby, the Agreement remains in full force and effect
in
accordance with its terms and this Amendment shall not by implication or
otherwise alter, modify, amend or in any way affect any of the terms,
conditions, obligations, representations, warranties, covenants or agreements
contained in the Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. In addition, as to ▇▇▇▇▇
▇▇▇▇, this document supersedes the agreement entitled “Cash/Stock Election (▇▇▇▇
▇▇▇▇)” dated as of June 10, 2008 and, upon execution of this Agreement by ▇▇▇▇
▇▇▇▇, his election made under that agreement to receive cash at $5.00 per share
for each of his Shares will no longer be effective.
2.3 Governing
Law.
Except
to the extent that the corporate laws of the State of Delaware apply to a party,
this Amendment shall be governed by, and construed in accordance with, the
laws
of the State of New York, regardless of the laws that might otherwise govern
under applicable principles of conflicts of law thereof.
2.4 Execution
of Agreement; Counterparts; Electronic Signatures.
2.4(a) This
Amendment may be executed in several counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same instrument,
and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other parties; it being understood that all parties need
not sign the same counterpart.
2.4(b) The
exchange of copies of this Amendment and of signature pages by facsimile
transmission (whether directly from one facsimile device to another by means
of
a dial-up connection or whether mediated by the worldwide web), by electronic
mail in “portable document format” (“.pdf”
format),
or by any other electronic means intended to preserve the original graphic
and
pictorial appearance of a document, or by a combination of such means, shall
constitute effective execution and delivery of this Amendment as to the parties
and may be used in lieu of an original Amendment for all purposes. Signatures
of
the parties transmitted by facsimile shall be deemed to be their original
signatures for all purposes.
2.4(c) Notwithstanding
the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec.
7001 et
seq.),
the
Uniform Electronic Transactions Act, or any other Legal Requirement relating
to
or enabling the creation, execution, delivery, or recordation of any contract
or
signature by electronic means, and notwithstanding any course of conduct engaged
in by the parties, no party shall be deemed to have executed this Amendment
or
any other document contemplated by this Amendment (including any amendment
or
other change thereto) unless and until such party shall have executed this
Amendment or such document on paper by a handwritten original signature or
any
other symbol executed or adopted by a party with current intention to
authenticate this Amendment or such other document contemplated.
2.5 Legal
Representation of the Parties.
This
Amendment was negotiated by the parties with the benefit of legal representation
and any rule of construction or interpretation otherwise requiring this
Amendment to be construed or interpreted against any party shall not apply
to
any construction or interpretation hereof.
3
2.6 Headings.
The
headings contained in this Amendment are for convenience of reference only,
shall not be deemed to be a party of this Amendment and shall not be referred
to
in connection with the construction or interpretation of this
Amendment.
[Remainder
of page intentionally left blank - signature page follows]
4
In
Witness Whereof,
the
parties have caused this Amendment to be executed as of the date first above
written:
| PARENT: | ||
| ▇▇▇▇▇▇▇▇ Corporation | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
| COMPANY: | ||
| China Water and Drinks, Inc. | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
5
| SELLING STOCKHOLDER: | ||
| IPacific Asset Management | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
6
| SELLING STOCKHOLDER: | ||
| IBroader Developments Limited | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
7
| SELLING STOCKHOLDER: | ||
| Lap ▇▇▇▇ ▇▇▇▇ | ||
8
| SELLING STOCKHOLDER: | ||
| Sze ▇▇▇▇ ▇▇ | ||
9
| SELLING STOCKHOLDER: | ||
| Canary Global Investments Inc. | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
10
| SELLING STOCKHOLDER: | ||
|
▇▇▇▇
▇▇▇▇
|
||
11
SCHEDULE
A
SCHEDULE
OF SELLING STOCKHOLDERS
|
Name
and Address of Selling Stockholder
|
Number
of Shares
|
Purchase
Price (US$)
|
|
|
IPacific
Asset Management
|
2,576,000
|
$2,672,421
|
|
|
IBroader
Developments Limited
|
2,422,000
|
$2,512,657
|
|
|
Lap
▇▇▇▇ ▇▇▇▇
|
1,000,000
|
$1,037,430
|
|
|
Sze
▇▇▇▇ ▇▇
|
1,000,000
|
$1,037,431
|
|
|
Canary
Global Investments Inc.
|
1,000,000
|
$1,037,431
|
|
|
▇▇▇▇
▇▇▇▇
|
3,000,000
|
$3,112,291
|
|
|
10,998,000
|
$11,409,662
|