Settlement And Release Agreement between Heckmann Corporation And Mr. Chen Xinghua
Exhibit 10.37
Settlement And Release Agreement
between
▇▇▇▇▇▇▇▇ Corporation
And
▇▇. ▇▇▇▇ Xinghua
18 of July 2009 2009718
Table of Contents
Article Page
1 Mutual Releases 3
2 ▇▇▇▇▇▇▇▇ Shares ▇▇▇▇▇▇▇▇ 4
3 ▇▇. ▇▇▇▇’▇ Merger Consideration 6
4 Additional Agreements 6
5 Representations And Warranties 7
6 Term And Termination 9
7 Governing Law And Dispute Resolution 9
8 Miscellaneous 10
ATTACHMENT: Cancellation Acknowledgement Letter
This Settlement and Release Agreement (this “Agreement”) is entered into on July 18, 2009 by and between:
“”2009718
▇▇▇▇▇▇▇▇ Corporation, a corporation organized and existing under the laws of the State of Delaware having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (“▇▇▇▇▇▇▇▇”); and
▇▇▇▇▇▇▇▇ Corporation ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ “▇▇▇▇▇▇▇▇”
▇▇. ▇▇▇▇ Xinghua, a citizen of the People’s Republic of China having the ID No. 44030619640803003X and his ▇▇▇▇▇▇▇▇ ▇▇ ▇/▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇▇ Garden Second Phase Fuluju, Futian District, Shenzhen, Guangdong Province, People’s Republic of China (“▇▇. ▇▇▇▇”).
44030619640803003X 15 6F “ ”
▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ may be hereinafter referred to individually as a “Party” and collectively as the “Parties”.
▇▇▇▇▇▇▇▇ “ ” “ ”
Whereas, on May 19, 2008, ▇▇▇▇▇▇▇▇ and China Water and Drinks, Inc. (“CWDK”) entered into an Agreement and Plan of Merger and Reorganization (as amended, the “Merger Agreement”) whereby CWDK was merged with and into ▇▇▇▇▇▇▇▇ (the “Merger”). In connection with the Merger Agreement, ▇▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ entered into a Majority Stockholder Consent Agreement (the “Consent Agreement”) pursuant to which ▇▇. ▇▇▇▇ agreed to exchange 100% of his CWDK shares for cash. ▇▇. ▇▇▇▇ also received restricted shares of ▇▇▇▇▇▇▇▇ stock in conjunction with a Share Transfer Agreement, and together the cash and stock consideration ▇▇. ▇▇▇▇ received supported representations and warranties in connection with the Merger. The Merger ultimately closed on October 30, 2008.
▇▇▇▇▇▇▇▇“” 2008 5 19“ ” ▇▇▇▇▇▇▇▇“ ” ▇▇▇▇▇▇▇▇“ ” ▇▇▇▇▇▇▇▇ 2008 10 30
Whereas, certain disputes arose between the Parties under the Consent Agreement, the Share Transfer Agreement, and the other agreements with respect to the Merger and ▇▇▇▇▇▇▇▇ and litigation was under consideration.
Whereas, the Parties, after sincere negotiations, have, voluntarily and in good faith, agreed to resolve and settle any and all claims, controversies, disputes and causes of action, whether asserted or unasserted, known or unknown, or whether in law, equity or otherwise, relating to, arising out of, or in any way concerning the Merger, without any admission of liability or wrongdoing on the part of or on behalf of either Party, pursuant to the terms and conditions enumerated hereafter.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1 Mutual Releases
1.1 In consideration of ▇▇. ▇▇▇▇ entering into this Agreement, ▇▇▇▇▇▇▇▇, on behalf of itself and on behalf of each of its related parties, including but not limited to, predecessors, successors, affiliates, assigns, and present and former officers, directors, employees, agents, representatives, insurers, sureties and attorneys, but specifically excluding certain CWDK officers, directors, and affiliates including ▇▇. ▇▇ Hongbin (a PRC Citizen with his ID No. [•], a party to the Merger and former CEO of CWDK, “▇▇. ▇▇”), ▇▇. ▇▇ ▇▇▇ ▇▇▇ (a [PRC] Citizen with his ID No. [•]), and ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ (a [Hong Kong] Citizen with his ID No. [•]) (collectively the “▇▇▇▇▇▇▇▇ Entities”), hereby irrevocably, unconditionally and generally release and forever discharge ▇▇. ▇▇▇▇ (for any past, present, or future liability to ▇▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇▇ Entities of and from any and all claims, demands, causes of action, obligations, liens, taxes, damages, losses, costs, attorneys’ fees, and expenses of every kind and nature whatsoever, known or unknown, asserted or unasserted, fixed or contingent, including any and all rights to subrogation therefor, which ▇▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇▇ Entities may have had, now has, or may hereafter have against ▇▇. ▇▇▇▇ by reason of any matter, cause, or thing arising at any time up to the date of this Agreement, including without limitation any and all claims arising out of or in connection with the Merger, the Consent Agreement, the Share Transfer Agreement, and/or other agreements with respect to the Merger.
▇▇▇▇▇▇▇▇[•]“” [•] [ ] [•] “▇▇▇▇▇▇▇▇ ” ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/
1.2 In consideration of ▇▇▇▇▇▇▇▇ entering into this Agreement, ▇▇. ▇▇▇▇, on behalf of himself, hereby irrevocably, unconditionally and generally releases and forever discharges ▇▇▇▇▇▇▇▇ and each of the ▇▇▇▇▇▇▇▇ Entities who were, are, or may ever become liable to ▇▇. ▇▇▇▇ of and from any and all claims, demands, causes of action, obligations, liens, taxes, damages, losses, costs, attorneys’ fees, and expenses of every kind and nature whatsoever, known or unknown, asserted or unasserted, fixed or contingent, including any and all rights to subrogation therefor, which ▇▇. ▇▇▇▇ may have had, now has, or may hereafter have against ▇▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇▇ Entities by reason of any matter, cause, or thing arising at any time up to the signing date of this Agreement, including without limitation any and all claims arising out of or in connection with the Merger, Consent Agreement, Share Transfer Agreement, and/or other agreements with respect to the Merger.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/
2 ▇▇▇▇▇▇▇▇ Shares ▇▇▇▇▇▇▇▇
2.1 Upon the terms and subject to the conditions set forth in this Agreement, as of the date hereof, ▇▇. ▇▇▇▇ waives and releases in full any and all rights he has to any of the three million three hundred sixty-one thousand (3,361,000) shares of ▇▇▇▇▇▇▇▇ Common Stock on Share Certificate No. 0000010038 which are owned and controlled by him and were acquired through his share transfer deal with ▇▇. ▇▇ who acquired such shares, amongst others, under the Merger Agreement and his Majority Stockholder Consent Agreement, in the Merger; and ▇▇▇▇▇▇▇▇ cancels and revokes in full all of the three million three hundred sixty-one thousand (3,361,000) shares of ▇▇▇▇▇▇▇▇ Common Stock (the “Cancellation”). In furtherance of the foregoing, ▇▇. ▇▇▇▇ agrees, to deliver and return to ▇▇▇▇▇▇▇▇ with this Agreement ▇▇▇▇▇▇▇▇ Share Certificate No. 0000010038 representing such three million three hundred sixty-one thousand (3,361,000) shares of ▇▇▇▇▇▇▇▇ Common Stock, and execute and simultaneously deliver a cancellation acknowledgement letter to ▇▇▇▇▇▇▇▇’▇ transfer agent American Stock Transfer & Trust Company, LLC attached hereto, and immediately execute, acknowledge, certify and deliver any and all further documents and take such further actions as ▇▇▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇▇▇ Entities may reasonably request for the
purpose of further evidencing, confirming, perfecting and otherwise documenting the Cancellation. Further, ▇▇. ▇▇▇▇ will never 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 Cancellation.
0000010038 3,361,000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 3,361,000 ▇▇▇▇▇▇▇▇ “ ” ▇▇▇▇▇▇▇▇ 3,361,000 ▇▇▇▇▇▇▇▇ 0000010038 ▇▇▇▇▇▇▇▇ American Stock Transfer & Trust Company, LLC ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2.2 Upon the terms and subject to the conditions set forth in this Agreement, and in consideration of ▇▇. ▇▇▇▇ entering into and performing this Agreement, as of the date hereof and immediately after consummation of the cancellation of the three million three hundred sixty-one thousand (3,361,000) shares of ▇▇▇▇▇▇▇▇ Common Stock held by ▇▇. ▇▇▇▇ set out in clause 2.1 above, ▇▇▇▇▇▇▇▇ agrees to grant and issue two hundred thousand (200,000) restricted shares of ▇▇▇▇▇▇▇▇ Common Stock to ▇▇. ▇▇▇▇ (the “Issuance”) and the Parties agree that such 200,000 shares will be subject to a two-year lock-up restriction period upon issuance. In furtherance of the foregoing, ▇▇▇▇▇▇▇▇ agrees, on or after the date hereof, to issue and deliver to ▇▇. ▇▇▇▇ a new share certificate representing such two hundred thousand (200,000) restricted shares of ▇▇▇▇▇▇▇▇ Common Stock and immediately execute, acknowledge, certify and deliver any and all further documents and do such further actions as ▇▇. ▇▇▇▇ may reasonably request for the purpose of further evidencing, confirming, perfecting and otherwise documenting the Issuance.
2.1 3,361,000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 200,000 ▇▇▇▇▇▇▇▇ “ ” 200,000 2 ▇▇▇▇▇▇▇▇ 200,000 ▇▇▇▇▇▇▇▇
2.3 In consideration of ▇▇. ▇▇▇▇’▇ negotiating assistance with resolution by September 15, 2009 of other CWDK merger and operations issues mutually agreed upon by the Parties, ▇▇▇▇▇▇▇▇ agrees to grant and issue an addition one hundred thousand (100,000) restricted shares of ▇▇▇▇▇▇▇▇ Common Stock to ▇▇. ▇▇▇▇ before December 31, 2009, and the restricted conditions are the same as those which apply to the two hundred
thousand ▇▇▇▇▇▇▇▇ shares mentioned above.
▇▇▇▇▇▇▇▇ 2009 9 15 ▇▇▇▇▇▇▇▇ 2009 12 31 100,000 ▇▇▇▇▇▇▇▇ 200,000 ▇▇▇▇▇▇▇▇
3 ▇▇. ▇▇▇▇’▇ Merger Consideration
Upon the terms and subject to the conditions set forth in this Agreement, and in consideration of ▇▇. ▇▇▇▇ entering into and performing this Agreement, the Parties irrevocably agree that, ▇▇. ▇▇▇▇ shall retain and reserve all the cash consideration ▇▇. ▇▇▇▇ received from ▇▇▇▇▇▇▇▇ in the Merger (“▇▇. ▇▇▇▇’▇ Merger Cash Consideration”), and ▇▇▇▇▇▇▇▇ waives any of its rights to and will not demand ▇▇. ▇▇▇▇’▇ return of ▇▇. ▇▇▇▇’▇ Merger Cash Consideration.
▇▇▇▇▇▇▇▇“ ”▇▇▇▇▇▇▇▇
4 Additional Agreements
4.1 ▇▇. ▇▇▇▇, covenants, undertakes and agrees as of the date of this Agreement as follows:
(a) ▇▇. ▇▇▇▇ will keep strictly confidential the existence and the contents of this Agreement and any negotiations hereto, and will not at any time disclose to any third party any information relating to this Agreement and said negotiations other than: (i) any information properly available to the public without breach of such undertaking by him; (ii) any information required to be disclosed pursuant to any court filing, order or judgment or pursuant to any applicable law or regulations or relevant stock exchange rules or tax filing. ▇▇. ▇▇▇▇ further agrees that he will not issue any reports, statements or releases pertaining to this Agreement or the matters contemplated hereby., ▇▇. ▇▇▇▇’▇ obligation in respect of confidentiality shall continue forever and in perpetuity.
i ii
(b) ▇▇. ▇▇▇▇ will directly or indirectly through others authorized by ▇▇▇▇▇▇▇▇, co-operate with and assist ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ Entities in managing and operating CWDK’s business in China and abroad, ensure their normal operations and protect and maximize the rights and interests of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Entities and CWDK in the PRC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) ▇▇. ▇▇▇▇ will not do any act, directly or indirectly, by himself or through anyone else, that is in any manner, against or harmful to the rights, interests and/or reputation of CWDK, ▇▇▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇▇▇ Entities.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
4.2 ▇▇. ▇▇▇▇ acknowledges and agrees that his covenants and undertakings in clause 4.1 above, together with other terms of this Agreement, constitute the integrated conditions on which ▇▇▇▇▇▇▇▇’▇ considerations (release set out in clause 1.1, issuance of two hundred thousand (200,000) ▇▇▇▇▇▇▇▇ shares in clause 2.2, issuance of additional one hundred thousand (100,000) ▇▇▇▇▇▇▇▇ shares in clause 2.3, and reservation of ▇▇. ▇▇▇▇’▇ Merger Cash Consideration in clause 3) are made and based. Therefore, any breach by ▇▇. ▇▇▇▇ of any of the covenants and undertakings as set out in Clause 4.1 above and representations and warranties as set out in Clause 5.1 below, in part or in whole, would constitute ▇▇. ▇▇▇▇’▇ breach of this Agreement.
4.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.1 2.2 200,000 ▇▇▇▇▇▇▇▇ 2.3 100,000 ▇▇▇▇▇▇▇▇ 3 4.1 5.1
5 Representations And Warranties
5.1 ▇▇. ▇▇▇▇ represents and warrants to ▇▇▇▇▇▇▇▇ as of the date hereof as follows:
▇▇▇▇▇▇▇▇
(a) He has all necessary individual power, capacity and authority to execute and deliver this Agreement, to perform his obligations hereunder, and to consummate the settlement contemplated hereby (the “Contemplated Settlement”). This Agreement has been duly and validly executed and delivered by him and constitutes the legal, valid and binding obligations of him, enforceable against him in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the consummation of any of the Contemplated Settlement do or will, directly or indirectly (with or without notice or lapse of time or both),
(i) contravene, conflict with, or result in a violation of any legal requirements to which ▇▇. ▇▇▇▇, or any of the assets owned or used by him, is subject; or
(ii) contravene, conflict with, or result in a violation or breach of any provision of, or give any third party the right to declare a default or exercise remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any agreement or contract to which ▇▇. ▇▇▇▇ is a party, except, in the case of clauses (i) and (ii), for any such conflicts, violations, breaches, defaults or other occurrences that would not prevent or delay consummation of the Contemplated Settlement in any material respect or would otherwise prevent ▇▇. ▇▇▇▇ from performing his obligations under this Agreement in any material respect; or
i ii
(iii) The execution and delivery of this Agreement by ▇▇. ▇▇▇▇ does not, and the performance of his performance of this Agreement and the consummation of the Contemplated Settlement by ▇▇. ▇▇▇▇ will not, require any consent of, or filing with or notification to, any governmental authority. (c) He owns, beneficially or of record, the three million three hundred sixty-one thousand (3,361,000) shares of ▇▇▇▇▇▇▇▇ Common Stock, free and clear of any and all liens, encumbrances or other restrictions (except for restrictions placed on such shares by ▇▇▇▇▇▇▇▇) on delivering and returning to ▇▇▇▇▇▇▇▇. 3,361,000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(d) He has read and understood the terms and consequences of this Agreement and is fully aware of the legal and binding effect of this Agreement.
5.2 ▇▇▇▇▇▇▇▇ represents and warrants to ▇▇. ▇▇▇▇ as of the date hereof as follows:
▇▇▇▇▇▇▇▇
(a) ▇▇▇▇▇▇▇▇ is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation.
▇▇▇▇▇▇▇▇
(b) ▇▇▇▇▇▇▇▇ has all necessary corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and to consummate the Contemplated Settlement.
▇▇▇▇▇▇▇▇
(c) None of the execution, delivery or performance of this Agreement by ▇▇▇▇▇▇▇▇ will breach or conflict with any agreement, undertaking, instrument or court order to which ▇▇▇▇▇▇▇▇ is subject.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(d) This Agreement constitutes a valid and binding obligation of ▇▇▇▇▇▇▇▇, enforceable against it in accordance with its terms and conditions.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(e) It has read and understood the terms and consequences of this Agreement and is fully aware of the legal and binding effect of this Agreement.
▇▇▇▇▇▇▇▇
6 Term And Termination
This Agreement shall become effective upon signing by the Parties and shall remain effective unless occurrence of any of the following events: (a) termination by mutual written agreement between the Parties; or (b) if either Party breaches any of its obligations under this Agreement .
a b
7 Governing Law And Dispute Resolution
7.1 This Agreement is governed by and shall be construed in accordance with the laws of the
State of New York, USA to the exclusion of its conflict of law rules. 7.2 Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof, shall be determined by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association. The number of arbitrators shall be three (3); the place of arbitration shall be New York, New York, U.S.A; and the language of the arbitration shall be English. The written arbitration award shall be final and binding and shall contain reasons and award costs.
3 8 Miscellaneous
8.1 Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by ▇▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇, or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
▇▇▇▇▇▇▇▇
8.2 This Agreement shall inure to the benefit of and be binding upon ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ and their respective successors and permitted assignees.
▇▇▇▇▇▇▇▇
8.3 This Agreement and any amendments to this Agreement shall be written in both English and Chinese and may be executed in [four (4)] originals in each language. Both language versions are equally authentic and may be utilized separately. In the event of any inconsistency, the English version shall prevail.
4
8.4 The section and paragraph headings and table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. 8.5 This Agreement constitutes the entire agreement between the Parties with respect to the subject matters set forth herein and supersede all prior discussions, notes, memoranda, negotiations, understandings and all the documents and agreements between them relating to the same. 8.6 The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. [The remaining part of this page is intentionally left blank] [ ]
IN WITNESS WHEREOF this Agreement has been duly signed by the Parties hereto or their duly authorized representatives on the date first written above. ▇▇▇▇▇▇▇▇ Corporation By/ : /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name/ : ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title/ : Vice President & General Counsel ▇▇. ▇▇▇▇ Xinghua /s/ ▇▇▇▇ ▇▇▇▇▇▇▇