Settlement and Release Agreement



 Exhibit 10.37 
 

 
 Settlement And Release Agreement 
 between 
 Heckmann Corporation 
 And 
 Mr. Chen Xinghua 
 18 of July 2009 2009718 







 

 
  
 Table of Contents

 Article Page 
 1 Mutual Releases 3 
 2 Heckmann Shares Heckmann 4 
 3 Mr. Chen’s 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

 Heckmann Corporation, a corporation organized and existing under the laws of the State of Delaware having its principal
place of business at 75080 Frank Sinatra Drive, Palm Desert, CA 92211, United States of America (“Heckmann”); and 
 Heckmann Corporation 75080 Frank Sinatra Drive, Palm Desert, CA 92211 “Heckmann” 
 Mr. Chen
Xinghua, a citizen of the People’s Republic of China having the ID No. 44030619640803003X and his domicile at 6/F, Building No. 15, Donghai Garden Second Phase Fuluju, Futian District, Shenzhen, Guangdong Province, People’s Republic of
China (“Mr. Chen”). 
 44030619640803003X 15 6F “ ” 
 Heckmann and Mr. Chen may be hereinafter referred to individually as a “Party” and collectively as the “Parties”.

 Heckmann “ ” “ ” 
 Whereas, on May 19, 2008, Heckmann 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 Heckmann (the “Merger”). In connection with the Merger Agreement, Mr. Chen and Heckmann entered into a Majority Stockholder Consent Agreement (the “Consent Agreement”) pursuant to which Mr.
Chen agreed to exchange 100% of his CWDK shares for cash. Mr. Chen also received restricted shares of Heckmann stock in conjunction with a Share Transfer Agreement, and together the cash and stock consideration Mr. Chen received supported
representations and warranties in connection with the Merger. The Merger ultimately closed on October 30, 2008. 
 Heckmann“” 2008 5 19“ ” Heckmann“ ” Heckmann“ ” Heckmann 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 Heckmann 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 Mr. Chen entering into this Agreement, Heckmann, 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 Mr. Xu Hongbin (a PRC Citizen with his ID No. [•], a party to the Merger and former CEO of CWDK, “Mr. Xu”), Mr. Ng Tak Kau (a [PRC] Citizen with his ID
No. [•]), and Mr. Sze Albert Li (a [Hong Kong] Citizen with his ID No. [•]) (collectively the “Heckmann Entities”), hereby irrevocably, unconditionally and generally release and forever discharge Mr. Chen (for any past, present,
or future liability to Heckmann or the Heckmann 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 Heckmann or the Heckmann Entities may have had, now has, or may hereafter have against Mr. Chen 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. 
 Heckmann[•]“” [•] [ ] [•] “Heckmann ” Heckmann Heckmann 








 

 
  
 
/ 
 1.2 In
consideration of Heckmann entering into this Agreement, Mr. Chen, on behalf of himself, hereby irrevocably, unconditionally and generally releases and forever discharges Heckmann and each of the Heckmann Entities who were, are, or may ever become
liable to Mr. Chen 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 Mr. Chen may have had, now has, or may hereafter have against Heckmann or the Heckmann 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. 
 Heckmann Heckmann Heckmann Heckmann Heckmann/ 
 2 Heckmann Shares Heckmann 
 2.1 Upon the terms and subject to the conditions
set forth in this Agreement, as of the date hereof, Mr. Chen 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 Heckmann Common Stock on Share Certificate No.
0000010038 which are owned and controlled by him and were acquired through his share transfer deal with Mr. Xu who acquired such shares, amongst others, under the Merger Agreement and his Majority Stockholder Consent Agreement, in the Merger; and
Heckmann cancels and revokes in full all of the three million three hundred sixty-one thousand (3,361,000) shares of Heckmann Common Stock (the “Cancellation”). In furtherance of the foregoing, Mr. Chen agrees, to deliver and return to
Heckmann with this Agreement Heckmann Share Certificate No. 0000010038 representing such three million three hundred sixty-one thousand (3,361,000) shares of Heckmann Common Stock, and execute and simultaneously deliver a cancellation
acknowledgement letter to Heckmann’s 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
Heckmann or any of the Heckmann Entities may reasonably request for the 








 

 
  
 
purpose of further evidencing, confirming, perfecting and otherwise documenting the Cancellation. Further, Mr. Chen 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 Heckmann Heckmann 3,361,000 Heckmann “ ” Heckmann 3,361,000 Heckmann 0000010038 Heckmann American Stock Transfer & Trust Company, LLC Heckmann Heckmann 
 2.2 Upon the terms and subject to the conditions set forth in this Agreement, and in consideration of Mr. Chen 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 Heckmann Common Stock held by Mr. Chen set out in clause 2.1 above,
Heckmann agrees to grant and issue two hundred thousand (200,000) restricted shares of Heckmann Common Stock to Mr. Chen (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, Heckmann agrees, on or after the date hereof, to issue and deliver to Mr. Chen a new share certificate representing such two hundred thousand (200,000) restricted shares of Heckmann Common Stock
and immediately execute, acknowledge, certify and deliver any and all further documents and do such further actions as Mr. Chen may reasonably request for the purpose of further evidencing, confirming, perfecting and otherwise documenting the
Issuance. 
 2.1 3,361,000 Heckmann Heckmann 200,000 Heckmann “ ” 200,000 2 Heckmann 200,000 Heckmann 
 2.3 In consideration of Mr. Chen’s negotiating assistance with resolution by September 15, 2009 of other CWDK merger and operations
issues mutually agreed upon by the Parties, Heckmann agrees to grant and issue an addition one hundred thousand (100,000) restricted shares of Heckmann Common Stock to Mr. Chen before December 31, 2009, and the restricted conditions are the same as
those which apply to the two hundred 








 

 
  
 
thousand Heckmann shares mentioned above. 
 Heckmann 2009 9 15 Heckmann 2009 12 31 100,000 Heckmann 200,000 Heckmann 
 3
Mr. Chen’s Merger Consideration 
 Upon the terms and subject to the conditions set forth in this Agreement, and in
consideration of Mr. Chen entering into and performing this Agreement, the Parties irrevocably agree that, Mr. Chen shall retain and reserve all the cash consideration Mr. Chen received from Heckmann in the Merger (“Mr. Chen’s Merger Cash
Consideration”), and Heckmann waives any of its rights to and will not demand Mr. Chen’s return of Mr. Chen’s Merger Cash Consideration. 
 Heckmann“ ”Heckmann 
 4 Additional Agreements 
 4.1 Mr. Chen, covenants, undertakes and agrees as of the date of this Agreement as follows: 
 (a) Mr. Chen 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. Mr. Chen further agrees that he will not issue any reports, statements or releases pertaining
to this Agreement or the matters contemplated hereby., Mr. Chen’s obligation in respect of confidentiality shall continue forever and in perpetuity. 
 i ii 
 (b) Mr. Chen will directly or indirectly through others authorized by
Heckmann, co-operate with and assist Heckmann or Heckmann 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 Heckmann, Heckmann Entities
and CWDK in the PRC. 







 

 
  
 Heckmann Heckmann
Heckmann Heckmann Heckmann 
 (c) Mr. Chen 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, Heckmann or any of the Heckmann Entities. 
 Heckmann Heckmann Heckmann Heckmann 
 4.2 Mr. Chen 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 Heckmann’s considerations (release set out in clause 1.1, issuance of two hundred thousand (200,000) Heckmann shares in
clause 2.2, issuance of additional one hundred thousand (100,000) Heckmann shares in clause 2.3, and reservation of Mr. Chen’s Merger Cash Consideration in clause 3) are made and based. Therefore, any breach by Mr. Chen 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 Mr. Chen’s breach of this Agreement. 
 4.1 Heckmann Heckmann 1.1 2.2 200,000 Heckmann 2.3 100,000 Heckmann 3 4.1 5.1 
 5 Representations And Warranties 
 5.1 Mr. Chen represents and warrants to Heckmann as of the date hereof as follows: 
 Heckmann

 (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 Mr. Chen, 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 Mr. Chen 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 Mr. Chen from
performing his obligations under this Agreement in any material respect; or 
 i ii 
 (iii) The execution and delivery of this Agreement by Mr. Chen does not, and the performance of his performance of this Agreement and
the consummation of the Contemplated Settlement by Mr. Chen 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 Heckmann Common Stock, free and clear of any and all liens, encumbrances or other restrictions (except for restrictions placed on such shares by Heckmann) on delivering and returning to Heckmann. 3,361,000
Heckmann Heckmann Heckmann 
 (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 Heckmann
represents and warrants to Mr. Chen as of the date hereof as follows: 
 Heckmann 
 (a) Heckmann is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation.

 Heckmann 
 (b) Heckmann 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. 
 Heckmann 
 (c)
None of the execution, delivery or performance of this Agreement by Heckmann will breach or conflict with any agreement, undertaking, instrument or court order to which Heckmann is subject. 
 Heckmann Heckmann 
 (d) This Agreement constitutes a valid and binding obligation of Heckmann, enforceable against it in accordance with its terms and conditions. 
 Heckmann Heckmann 
 (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. 
 Heckmann 
 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 Mr. Chen and Heckmann, 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. 
 Heckmann 
 8.2 This Agreement shall inure to the benefit of and be binding upon Mr. Chen, Heckmann and their respective successors and permitted
assignees. 
 Heckmann 
 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. Heckmann Corporation By/ : /s/ Donald G. Ezzell Name/ : Donald G. Ezzell Title/ : Vice President & General
Counsel Mr. Chen Xinghua /s/ Chen Xinghua