<PAGE>
Exhibit 2.1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
WORLD WASTE TECHNOLOGIES, INC.,
A CALIFORNIA CORPORATION,
ON THE ONE HAND,
AND
VERTEX ENERGY, LP,
A TEXAS LIMITED PARTNERSHIP,
VERTEX ENERGY, INC.,
A NEVADA CORPORATION,
VERTEX MERGER SUB, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY,
AND
BEN COWART,
AS AGENT FOR ALL OF THE SHAREHOLDERS OF VERTEX,
ON THE OTHER HAND
MAY 19, 2008
<PAGE>
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
This
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, is made and
entered into as of May 19, 2008 (this "AGREEMENT"), by and between
World Waste
Technologies, Inc., a California corporation ("WWT"), on the one
hand, and
Vertex Energy, LP, a Texas limited partnership ("VERTEX LP"),
Vertex Energy,
Inc., a Nevada corporation ("VERTEX NEVADA"), Vertex Merger Sub,
LLC, a
California limited liability company and wholly owned subsidiary of
Vertex
Nevada ("MERGER SUB"), and Ben Cowart, as agent ("AGENT") of all of
the
shareholders of Vertex Nevada (the "VERTEX SHAREHOLDERS"), on the
other hand.
WWT, Vertex LP, Vertex Nevada, Merger Sub and the Agent are
collectively
referred to herein as the "PARTIES". Vertex Nevada, Vertex LP,
Merger Sub and
the Agent are sometimes referred to herein as the "VERTEX PARTIES."
Capitalized
terms used and not otherwise defined herein have the meanings set
forth in
Article 1.
The
Parties hereto have previously entered into an Agreement and Plan
of
Merger dated as of May 15, 2008 (the "Original Agreement"). The
Parties now
desire to amend and restate the Original Agreement in its entirety
to reflect
various mutually acceptable modifications to the agreement as
originally
executed.
RECITALS
WHEREAS,
the respective Boards of Directors of WWT, Vertex Nevada and
Merger Sub, and the partners of Vertex LP (the "PARTNERS"), have
deemed it in
the best interests of their respective corporations, shareholders
and partners
that (i) Vertex LP transfer the Vertex Business to Vertex Nevada
(the
"TRANSFER"), and (ii) immediately following the Transfer, that WWT,
Vertex
Nevada and Merger Sub enter into a business combination
transaction;
WHEREAS,
in furtherance thereof, the Partners have approved the Transfer
and the respective Boards of Directors of WWT, Vertex Nevada and
Merger Sub each
have approved this Agreement and the merger of WWT with and into
Merger Sub(the
"MERGER"), upon the terms and subject to the conditions set forth
in this
Agreement and in accordance with the provisions of the California
Corporations
Code (the "CCC");
WHEREAS,
in connection with the Merger, the Parties desire to make
certain
representations, warranties, covenants and agreements and also to
prescribe
various conditions to the Merger, upon the terms and subject to the
conditions
contained herein.
NOW,
THEREFORE, in consideration of the covenants, promises,
representations and warranties set forth herein, and for other good
and valuable
consideration, intending to be legally bound hereby, the Parties
agree as
follows:
ARTICLE I
DEFINITIONS
1.1
CERTAIN
DEFINITIONS. The following terms shall, when used in this
Agreement, have the following meanings:
<PAGE>
"AFFILIATE" means, with respect to any Person: (i) any Person
directly or
indirectly owning, controlling or holding with power to vote ten
percent (10%)
or more of the outstanding voting securities of such other Person
(other than
passive or institutional investors); (ii) any Person ten percent
(10%) or more
of whose outstanding voting securities are directly or indirectly
owned,
controlled or held with power to vote, by such other Person; (iii)
any Person
directly or indirectly controlling, controlled by or under common
control with
such other Person; and (iv) any officer, director or partner of
such other
Person. "Control" for the foregoing purposes shall mean the
possession, directly
or indirectly, of the power to direct or cause the direction of the
management
and policies of a Person, whether through the ownership of voting
securities or
voting interests, by contract or otherwise.
"AGENT"
shall have the meaning set forth in the preamble to this
Agreement.
"AGREEMENT" shall have the meaning set forth in the preamble to
this
Agreement.
"ALTERNATIVE ACQUISITION" shall have the meaning set forth in
Section 5.14
of this Agreement.
"BENEFIT
ARRANGEMENT" means any employment, consulting, severance or
other
similar contract, plan, arrangement or policy, and each plan,
arrangement
(written or oral), program, agreement or commitment providing for
insurance
coverage (including any self-insured arrangements), workers'
compensation,
disability benefits, supplemental unemployment benefits, vacation
benefits,
retirement benefits, life, health, disability or accident benefits
or for
deferred compensation, profit-sharing bonuses, stock options, stock
purchases or
other forms of incentive compensation or post-retirement insurance,
compensation
or benefits which is not a Welfare Plan, Pension Plan or
Multiemployer Plan.
"BUSINESS
DAY" means any day other than Saturday, Sunday or a day on
which
banking institutions in California or Nevada are required or
authorized to be
closed.
"CCC"
shall have the meaning set forth in the recitals of this
Agreement.
"CERTIFICATE OF MERGER" shall have the meaning set forth in Section
2.3 of
this Agreement.
"CLAIM"
shall have the meaning set forth in Section 7.3 of this
Agreement.
"CLAIM
NOTICE" shall have the meaning set forth in Section 7.3 of this
Agreement.
"CLOSING"
shall have the meaning set forth in Section 2.2 of this
Agreement.
"CLOSING
DATE" shall have the meaning set forth in Section 2.2 of this
Agreement.
"CMT
AGREEMENTS" shall have the meaning set forth in Section 5.23 of
this
Agreement
"CODE"
means the United States Internal Revenue Code of 1986, as
amended.
"COLLATERAL DOCUMENTS" mean the Cowart Employment Agreement, the
Vertex
Disclosure Schedules, the WWT Disclosure Schedules, all of the
Exhibits to this
Agreement, and any other documents, instruments and certificates to
be executed
and delivered by the Parties hereunder or thereunder.
A-2
<PAGE>
"CONTRACT"
means any agreement, contract, note, loan, evidence of
indebtedness, purchase order, letter of credit, indenture, security
or pledge
agreement, covenant not to compete, license, instrument,
commitment, obligation,
promise or undertaking (whether written or oral and whether express
or implied).
"COWART
EMPLOYMENT AGREEMENT" shall have the meaning set forth in
Section
5.1 of this Agreement.
"COWART
GUARANTEES" shall have the meaning set forth in Section 5.2 of
this Agreement.
"DISSENTING SHARES" shall have the meaning set forth in Section
2.14 of
this Agreement.
"EFFECTIVE
DATE" shall have the meaning set forth in Section 2.3 of this
Agreement.
"EFFECTIVE
TIME" shall have the meaning set forth in Section 2.3 of this
Agreement.
"EMPLOYEE
PLANS" means all Benefit Arrangements, Pension Plans and
Welfare
Plans.
"ERISA"
shall mean the Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA
AFFILIATE" means any trade or business, whether or not
incorporated, that together with Vertex LP or WWT, as applicable,
would be
deemed a single employer for purposes of Section 4001 of ERISA or
Sections
414(b), (c), (m), (n) or (o) of the Code.
"EXCHANGE
ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations there under.
"FAMILY
MEMBER" means, with respect to any individual (i) the
individual,
(ii) the individual's spouse, (iii) any other natural Person who is
related to
the individual or the individual's spouse within the second degree
(including
adopted children) and (iv) any other natural Person who resides
with such
individual.
"GAAP"
means U.S. generally accepted accounting principles
consistently
applied, as in effect from time to time.
"INDEMNIFICATION AGREEMENTS" means those certain director and
officer
indemnification agreements by and between WWT and its officers and
directors.
"INDEPENDENT DIRECTOR" means any individual who does not
beneficially own
more than 5% of the outstanding voting shares of Vertex Nevada, is
not employed
by, or an officer of, Vertex Nevada or any Cowart Party, is not a
director or
manager of any Cowart Party, is not a family member of Ben Cowart,
and would
qualify as an "Independent Director" as defined in the rules and
regulations of
the New York Stock Exchange.
A-3
<PAGE>
"INTELLECTUAL PROPERTY" means all trademarks and trademark rights,
trade
names and trade name rights, service marks and service mark rights,
service
names and service name rights, patents and patent rights, utility
models and
utility model rights, copyrights, mask work rights, brand names,
trade dress,
product designs, product packaging, business and product names,
logos, slogans,
rights of publicity, trade secrets, inventions (whether patentable
or not),
invention disclosures, improvements, processes, formulae,
industrial models,
processes, designs, specifications, technology, methodologies,
computer software
(including all source code and object code), firmware, development
tools, flow
charts, annotations, all Web addresses, sites and domain names, all
data bases
and data collections and all rights therein, any other confidential
and
proprietary right or information, whether or not subject to
statutory
registration, and all related technical information, the
information set forth
in manufacturing, engineering and technical drawings, know-how and
all pending
applications for and registrations of patents, utility models,
trademarks,
service marks and copyrights, and the right to sue for past
infringement, if
any, in connection with any of the foregoing.
"LAWS"
means any statute, ordinance, law, rule, regulation, code,
injunction, judgment, order, decree, ruling, or other requirement
enacted,
adopted or applied by any Regulatory Authority, including judicial
decisions
applying common law or interpreting any other Law.
"LEGAL
PROCEEDING" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal,
administrative,
investigative or informal) commenced, brought, conducted or heard
by or before,
or otherwise involving, any Regulatory Authority or arbitrator.
"LIABILITIES" means any direct or indirect liability,
indebtedness,
obligation, commitment, expense, claim, deficiency, guaranty or
endorsement of
or by any Person of any type, whether known or unknown, accrued,
absolute,
contingent, matured, unmatured, liquidated or unliquidated or
otherwise.
"LIEN"
means any mortgage, pledge, lien, encumbrance, charge, security
interest, security agreement, conditional sale or other title
retention
agreement, limitation, option, assessment, restrictive agreement,
restriction,
adverse interest, restriction on transfer or exception to or
material defect in
title or other ownership interest (including but not limited to
restrictive
covenants, leases and licenses).
"LOSSES"
means any claim, liability, obligation, loss, damage,
assessment,
penalty, judgment, settlement, cost and expense, including costs
attributable to
the loss of the use of funds to the date on which a payment is made
with respect
to a matter of indemnification under Article 7 hereof, and
including reasonable
attorneys' and accountants' fees and disbursements incurred in
investigating,
preparing, defending against or prosecuting any claim.
"MAKE-WHOLE WARRANTS" shall have the same meaning set forth in
Section
6.1(i) of this Agreement.
"MATERIAL
ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" with respect to a
Person means a material adverse effect on (i) the assets,
liabilities, condition
(financial or otherwise), properties, business or prospectus of
such Person,
(ii) the validity, binding effect or enforceability of this
Agreement or any of
the Collateral Documents against such Person or (iii) the ability
of such Person
to perform its obligations under this Agreement or any of the
Collateral
Documents.
A-4
<PAGE>
"MERGER"
shall have the meaning set forth in the recitals of this
Agreement.
"MERGER
CONSIDERATION" shall have the meaning set forth in Section 2.6
of
this Agreement.
"MERGER
SUB" shall have the meaning set forth in the preamble to this
Agreement.
"MULTIEMPLOYER PLAN" means any "multiemployer plan" as defined in
Section
3(37) of ERISA.
"ORDER"
means any writ, judgment, decree, ruling, injunction or similar
order of any Regulatory Authority (in each such case whether
preliminary or
final).
"ORDINARY
COURSE OF BUSINESS" or "ORDINARY COURSE" or any similar phrase
means the usual and ordinary course of business of a Party,
consistent with its
past custom and practice.
"ORGANIZATIONAL DOCUMENTS" shall mean (a) the articles or
certificate of
incorporation, all certificates of determination and designation,
and the bylaws
of a corporation; (b) the partnership agreement and any statement
of partnership
of a general partnership; (c) the limited partnership agreement and
the
certificate or articles of limited partnership of a limited
partnership; (d) the
operating agreement, limited liability company agreement and the
certificate or
articles of organization or formation of a limited liability
company; (e) any
charter or similar document adopted or filed in connection with the
creation,
formation or organization of any other Person; and (f) any
amendment to any of
the foregoing.
"PARTNERS"
shall have the meaning set forth in the recitals of this
Agreement.
"PARTY" or
"PARTIES" shall have the meaning set forth in the preamble to
this Agreement.
"PENSION
PLAN" means any "employee pension benefit plan" as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) which a
Person or any
ERISA Affiliate maintains, administers, contributes to or is
required to
contribute to, or has maintained, administered, contributed to or
was required
to contribute to, or under which such Person or any ERISA Affiliate
may incur
any liability.
"PERMIT"
means any license, franchise, certificate, declaration, waiver,
exemption, variance, permit, consent, approval, registration,
authorization,
qualification or similar right granted by a Regulatory
Authority.
"PERSON"
means any natural person, individual, firm, corporation,
including a non-profit corporation, partnership, trust,
unincorporated
organization, association, limited liability company, labor union,
Regulatory
Authority or other entity.
"PROXY
STATEMENT" shall have the meaning set forth in Section 5.5 of
this
Agreement.
A-5
<PAGE>
"QUALIFIED
FINANCING" means an equity financing generating gross proceeds
to WWT Sub of at least $500,000, at a pre-money valuation in an
amount equal to
no less than the total amount of cash on hand of WWT Sub as of the
Closing.
"REGULATORY AUTHORITY" means: any (i) federal, state, local,
municipal or
foreign government; (ii) governmental or quasi-governmental
authority of any
nature (including without limitation any governmental agency,
branch,
department, official, instrumentality or entity and any court or
other
tribunal); (iii) multi-national organization or body; or (iv) body
exercising or
entitled to exercise any administrative, executive, judicial,
legislative,
police, regulation or taxing authority or power of any nature.
"REPRESENTATIVES" shall have the meaning set forth in Section 5.14
of this
Agreement.
"SEC"
means the Securities and Exchange Commission or any Regulatory
Authority that succeeds to its functions.
"SEC
REPORTS" has the meaning set forth in the preamble to Article
4.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the
rules and regulations thereunder.
"SUBSIDIARY" has the meaning set forth in Section 3.1.
"SURVIVING
CORPORATION" shall have the meaning set forth in Section 2.1 of
this Agreement.
"TAX
RETURNS" means all federal, state, local, provincial and foreign
tax
returns, declarations, reports, claims, schedules and forms for
refund or credit
or information return or statement relating to Taxes, including any
schedule or
attachment thereto, and including any amendment thereof.
"TAXES"
means any U.S. or non U.S. federal, state, provincial, local or
foreign (i) income, corporation gross income, gross receipts,
license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall
profits,
environmental, customs duties, capital, franchise, profits,
withholding, social
security (or similar), unemployment, disability, real property,
personal
property, intangible property, recording, occupancy, sales, use,
transfer,
registration, value added minimum, ad valorem or excise tax,
estimated or other
tax of any kind whatsoever, including any interest, additions to
tax, penalties,
fees, deficiencies, assessments, additions or other charges of any
nature with
respect thereto, whether disputed or not; and (ii) any liability
for the payment
of any amount of the type described in (i) above.
"TRANSACTIONS" has the meaning set forth in Section 3.2.
"TRANSFER"
shall have the meaning set forth in the recitals of this
Agreement.
"TRANSMITTAL LETTER" has the meaning set forth in Section 2.7 of
this
Agreement.
A-6
<PAGE>
"TREASURY
REGULATIONS" means regulations promulgated by the U.S. Treasury
Department under the Code.
"VERTEX
LP" has the meaning set forth in the preamble to this
Agreement.
"VERTEX
NEVADA" has the meaning set forth in the preamble to this
Agreement.
"VERTEX
BUSINESS" means each of the following businesses owned by
Vertex
LP: (i) the business of aggregating waste oil from third-party
collectors and
managing the transportation logistics of delivering the waste oil
to a
Chevron-Texaco refining facility in Louisiana; revenue from this
business is
generated from payments made by Chevron-Texaco to Vertex LP under
an existing
contract and is based on the volume, quality and price of the used
oil feedstock
delivered to the Louisiana facility; (ii) the business of
aggregating petroleum
waste streams from third-party collectors and managing the
transportation
logistics of delivering the waste petroleum products to a
Kmtex-owned facility
in Texas; in addition to the petroleum waste stream feedstock, this
business
sources a second feedstock stream directly from a major chemical
company.
Revenue is generated by selling end products such as pygas,
gasoline blendstock
and marine diesel oil made at the Kmtex facility under a contract
refining
agreement with Vertex LP utilizing the two streams of feedstock;
and (iii) the
business of implementing proprietary re-refining technology owned
by Vertex LP.;
the re-refining technology allows this business to take aggregated
waste oil
(similar to what is currently delivered to the Chevron-Texaco
facility) and
convert it to higher value products such as marine diesel oil and
vacuum gas
oil; revenue for this business area will be generated from the sale
of the
re-refined marine diesel oil and vacuum gas oil.
For the
sake of clarification, the Vertex Business does not include the
businesses conducted by any of the Subsidiaries of Vertex LP.
"VERTEX
CAPITAL STOCK" means, collectively, the Vertex Common Stock and
Vertex Preferred Stock.
"VERTEX COMMON
STOCK" means shares of Vertex Nevada's common stock, par
value $0.001 per share.
"VERTEX
CONTRACT" has the meaning set forth in Section 3.11 of this
Agreement.
"VERTEX
FINANCIAL STATEMENTS" means the audited Consolidated Balance
Sheets of Vertex Nevada as of December 31, 2007, 2006 and 2005, and
the audited
Consolidated Statements of Operations and Statements of
Stockholders' Equity for
the periods then ended, in each case after taking into account the
Transfer.
"VERTEX
LP" has the meaning set forth in the preamble to this
Agreement.
"VERTEX
LOCK-UP" has the meaning set forth in Section 5.19 of this
Agreement.
"VERTEX
NEVADA" has the meaning set forth in the preamble to this
Agreement.
"VERTEX
PARTIES" shall have the meaning set forth in the preamble to
this
Agreement.
A-7
<PAGE>
"VERTEX
PREFERRED STOCK" means, collectively, the Vertex Series A
Preferred Stock and the Vertex Series B Preferred Stock.
"VERTEX
SERIES A PREFERRED STOCK" means the newly created Series A
Preferred Stock, par value $0.001 per share, of Vertex Nevada,
established and
issued in connection with the transactions contemplated by this
Agreement.
"VERTEX
SERIES B PREFERRED STOCK" means the Series B Preferred Stock,
par
value $0.001 per share, of Vertex Nevada, with the terms and
conditions as are
set forth on EXHIBIT A-2 hereto.
"VERTEX
SHAREHOLDERS" has the meaning set forth in the preamble to this
Agreement.
"WELFARE PLAN"
means any "employee welfare benefit plan" as defined in
Section 3(1) of ERISA which a Person or any ERISA Affiliate
maintains,
administers, contributes to or is required to contribute to, or
under which such
Person or any ERISA Affiliate may incur any Liability.
"WWT" has
the meaning set forth in the preamble to this Agreement.
"WWT
CAPITAL STOCK" means, collectively, the WWT Common Stock and
WWT
Preferred Stock.
"WWT
CERTIFICATE(S)" has the meaning set forth in Section 2.7 of
this
Agreement.
"WWT
COMMON STOCK" means shares of WWT's common stock, par value 0.001
per
share.
"WWT
CONTRACT" has the meaning set forth in Section 4.10 of this
Agreement.
"WWT
FINANCIAL STATEMENTS" means the audited Consolidated Balance
Sheets
of WWT as of December 31, 2007 and 2006, and the audited
Consolidated Statements
of Operations and Statement of Stockholders' Equity for each of the
three years
in the period ended December 31, 2007.
"WWT
OPTIONS" has the meaning set forth in SECTION 2.6(C) of this
Agreement.
"WWT
PREFERRED STOCK" means, collectively, the WWT Series A
Preferred
Stock and WWT Series B Preferred Stock.
"WWT
SERIES A PREFERRED STOCK" means shares of WWT's 8% Series A
Cumulative Redeemable Convertible Participating Preferred Stock,
par value 0.001
per share.
"WWT
SERIES B PREFERRED STOCK" means shares of WWT's 8% Series B
Cumulative Redeemable Convertible Participating Preferred Stock,
par value 0.001
per share.
"WWT
MANAGEMENT AGREEMENT" shall have the meaning set forth in Section
5.6
of this Agreement.
"WWT
MANAGEMENT" shall have the meaning set forth in Section 5.6 of
this
Agreement.
A-8
<PAGE>
ARTICLE II
THE MERGER
2.1
MERGER. Upon the
terms and conditions set forth in this Agreement,
and in accordance with the provisions of the CCC, at the Effective
Time, (i) WWT
shall be merged with and into Merger Sub, (ii) the separate
corporate existence
of WWT shall cease, (iii) Merger Sub, as the surviving company in
the Merger,
shall continue its existence under the laws of the State of
California as a
limited liability company, and (iv) Merger Sub shall succeed to and
assume the
rights, obligations, properties, rights, privileges, powers and
franchises of
WWT. Merger Sub, as the surviving limited liability company after
the Merger, is
sometimes referred to herein as the "SURVIVING CORPORATION."
2.2
CLOSING. Subject
to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") will take place at the
offices of
TroyGould Professional Corporation located at 1801 Century Park
East, 16th
Floor, Los Angeles, California 90067, or at such other place as the
Parties
mutually agree, at 10:00 a.m. local time on the second Business Day
after the
day on which the last of the closing conditions set forth in
Article 6 below has
been satisfied or waived, or such other date as the Parties
mutually agree upon
in writing (the "CLOSING DATE").
2.3
EFFECTIVE TIME.
Upon the terms of and subject to the conditions of
this Agreement, as soon as practicable on the Closing Date: (a) the
Parties will
cause the Merger to be consummated by filing with the Secretary of
State of the
State of California a certificate of merger (the "CERTIFICATE OF
MERGER"),
together with any required related certificates, and shall make any
other
filings or recordings required under the CCC. The Merger shall
become effective
upon such filing, or at such later date and time as is agreed to by
the Parties
and set forth in the Certificate of Merger (the date and time of
such filing
being the "EFFECTIVE TIME" and the date upon which the Effective
Time occurs,
being the "EFFECTIVE DATE"). As soon as practicable on the Closing
Date, Vertex
Nevada will deliver the Merger Consideration to the holders of WWT
Common Stock
and WWT Preferred Stock in accordance with Section 2.6 hereof.
2.4
EFFECT OF THE
MERGER. At the Effective Time, in accordance with the
CCC, the separate existence of WWT will cease and the Surviving
Corporation
shall succeed, without further action, to all the property, assets,
rights,
privileges, powers and franchises of every kind of the nature and
description of
Merger Sub and WWT. All debts, liabilities and duties of Merger Sub
and WWT will
become the debts, liabilities and duties of the Surviving
Corporation. The
Parties acknowledge that as a condition to the closing of the
transactions
contemplated hereby and in accordance with Section 5.6, all
Liabilities of WWT
(other than up to $2.4 million of indebtedness) shall, immediately
prior to the
Effective Time, be satisfied in full. As of the Effective Time, the
Surviving
Corporation will be a single member limited liability company
wholly owned by
Vertex Nevada.
2.5
EFFECT OF MERGER
ON OWNERSHIP INTERESTS OF MERGER SUB. At the
Effective Time, the ownership interests of Merger Sub issued and
outstanding
immediately prior to the Effective Time shall, by virtue of the
Merger and
without any action on the part of the holder thereof, be converted
into and
become ownership interests of the Surviving Corporation.
A-9
<PAGE>
2.6
EFFECT OF MERGER
ON CAPITAL STOCK OF WWT.
(a) WWT COMMON
STOCK. At the Effective Time, each issued and
outstanding share of the WWT Common Stock shall, by virtue of the
Merger and
without any action on the part of the holders thereof, be converted
into the
right to receive one share of Vertex Common Stock.
(b) WWT SERIES A
PREFERRED STOCK AND WWT SERIES B PREFERRED STOCK.
At the Effective Time, (i) each issued and outstanding share of WWT
Series A
Preferred Stock shall by virtue of the Merger and without any
action on the part
of the holders thereof, be converted into the right to receive
4.062 shares of
Vertex Series A Preferred Stock; and (ii) each issued and
outstanding share of
WWT Series B Preferred Stock shall by virtue of the Merger and
without any
action on the part of the holders thereof, be converted into the
right to
receive 116.51 shares of Vertex Series A Preferred Stock, in each
case subject
to the terms and conditions of this Agreement. The shares of Vertex
Common Stock
and Vertex Series A Preferred Stock issuable pursuant to Section
2.6(a) and this
Section 2.6(b) are collectively referred to herein as the
"MERGER
CONSIDERATION." The terms of the Vertex Series A Preferred Stock
issuable
hereunder shall have substantially the terms and conditions as are
set forth on
EXHIBIT A-1 hereto.
(c) OUTSTANDING
WWT OPTIONS AND WARRANTS. At the Effective Time,
each outstanding option and warrant to acquire shares of WWT Common
Stock (the
"WWT OPTIONS") shall automatically become an option or warrant to
acquire an
equivalent number of shares of Vertex Common Stock.
(d) WWT CAPITAL
STOCK. As a result of the Merger and without any
action on the part of the holders thereof, at the Effective Time,
all shares of
WWT Capital Stock shall be cancelled and retired and shall cease to
be
outstanding. Each holder of shares of the WWT Capital Stock shall
thereafter
cease to have any rights with respect to such shares, except that
the issued and
outstanding shares of WWT Capital Stock immediately prior to the
Effective Time,
and the respective holders thereof, shall have the right to receive
the Merger
Consideration in accordance with this Section 2.6 upon the
surrender of the
certificate or certificates representing such shares.
(e)
TREASURY STOCK.
Each share of WWT Common Stock held in Vertex
Nevada's treasury at the Effective Time, if any, shall, by virtue
of the Merger
and without any action on the part of WWT, cease to be outstanding
and shall be
cancelled and retired without payment of any Merger Consideration
or any other
consideration therefor.
2.7
DELIVERY OF WWT
CERTIFICATES AND EXCHANGE PROCEDURES. At and after
the Effective Time, Vertex Nevada will make available, and each
holder of an
issued and outstanding share of WWT Common Stock and WWT Preferred
Stock will be
entitled to receive, upon surrender to Vertex Nevada or the Agent
of any
certificates evidencing such WWT Capital Stock (the "WWT
CERTIFICATES") for
cancellation and a letter of transmittal or assignment separate
from certificate
in customary form (the "TRANSMITTAL LETTER"), the portion of the
Merger
Consideration into which such shares of WWT Capital Stock have been
converted
into pursuant to the Merger, and upon such surrender of each such
WWT
Certificate, and delivery by Vertex Nevada of the aggregate Merger
Consideration
in exchange therefor, the WWT Common Stock and WWT Preferred Stock
evidenced by
A-10
<PAGE>
the WWT Certificates so surrendered in accordance herewith shall
forthwith be
cancelled. Until surrendered or delivered as contemplated by this
Section 2.7,
each WWT Certificate will be deemed at any time after the Effective
Time for all
purposes to evidence only the right to receive upon such surrender
the
corresponding pro rata portion of the Merger Consideration;
PROVIDED, HOWEVER,
that Vertex Nevada shall be under no obligation to deliver the
Merger
Consideration, and no holder of an issued and outstanding share of
WWT Common
Stock or WWT Preferred Stock shall be obligated to surrender a WWT
Certificate,
as contemplated herein, until and unless of the conditions and
covenants set
forth in Article 6 hereof shall have been performed, complied with,
or otherwise
waived in accordance with the provisions of Article 6.
2.8
STOCK TRANSFER
BOOKS. From and after the Effective Time, the stock
transfer books of WWT will be closed, and there will be no further
registration
or transfers of WWT Common Stock or WWT Preferred Stock thereafter
on the
records of WWT.
2.9
NO FURTHER
OWNERSHIP RIGHTS. The Merger Consideration delivered upon
the surrender for exchange of the WWT Certificates in accordance
with the terms
hereof will be deemed to have been issued in full satisfaction of
all rights
pertaining to the WWT Common Stock and WWT Preferred Stock
evidenced by such WWT
Certificates, and there will be no further registration of
transfers of such
shares which were outstanding immediately prior to the Effective
Time on the
records of the Surviving Corporation. If, after the Effective Time,
WWT
Certificates are presented to the Surviving Corporation, they will
be cancelled
as contemplated herein.
2.10
LOST, STOLEN OR
DESTROYED CERTIFICATES. In the event any WWT
Certificates are lost, stolen or destroyed, Vertex Nevada will
issue in exchange
for such lost, stolen or destroyed WWT Certificates, upon the
making of an
affidavit of that fact by the holder thereof and the other
deliveries required
above, the applicable Merger Consideration; PROVIDED, HOWEVER, that
the
Surviving Corporation may, in its sole discretion and as a
condition precedent
to the issuance thereof, require the holder of such lost, stolen or
destroyed
WWT Certificates to deliver an indemnity or bond in such sum as it
may
reasonably direct as indemnity against any claim that may be made
against it
with respect to the WWT Certificates alleged to have been lost,
stolen or
destroyed.
2.11
CHARTER DOCUMENTS;
DIRECTORS AND OFFICERS. Unless otherwise agreed
by Vertex Nevada and WWT prior to the Closing, at and as of the
Effective Time,
without any further action on the part of the Parties: (i) the
Organizational
Documents of Merger Sub as in effect immediately prior to the
Effective Time
will be the Organizational Documents of the Surviving Corporation
at and after
the Effective Time until thereafter amended as provided by
applicable law and
such Organizational Documents; (ii) the manager of Merger Sub
immediately prior
to the Effective Time will be the initial manager of the Surviving
Corporation
from and after the Effective Time, until its successor is appointed
and
qualified or until its resignation or removal; (iii) the officers
of Merger Sub
immediately prior to the Effective Time shall serve in their
respective offices
of the Surviving Corporation from and after the Effective Time,
until their
successors are elected or appointed and qualified or until their
resignation or
removal.
A-11
<PAGE>
2.12
NO FRACTIONAL SHARES.
No certificate or scrip representing
fractional shares of Vertex Capital Stock shall be issued upon the
surrender of
WWT Certificates. In lieu thereof, each holder of WWT Capital Stock
who would
otherwise be entitled to a fraction of a share of Vertex Capital
Stock (after
aggregating all shares of WWT Capital Stock that otherwise would be
received by
such holder), shall receive one additional share of Vertex Common
Stock or
Vertex Preferred Stock, as applicable.
2.13
TAKING OF NECESSARY
ACTION; FURTHER ACTION. Each of the Parties will
take all such reasonable lawful action as may be necessary or
appropriate in
order to effect the Merger in accordance with this Agreement as
promptly as
practicable. If, at any time after the Effective Time, any such
further action
is necessary or desirable to carry out the purposes of this
Agreement and to
vest the Surviving Corporation with full right, title and
possession to all the
property, rights, privileges, power and franchises of WWT and
Merger Sub, the
officers, directors and managers of WWT and Merger Sub immediately
prior to the
Effective Time are fully authorized in the name of their respective
corporations
or otherwise to take, and will take, all such lawful and necessary
action.
2.14
WWT DISSENTING SHARES.
Shares of WWT Common Stock and WWT Preferred
Stock which are issued and outstanding immediately prior to the
Effective Time
and which are held by persons who are entitled to and have properly
exercised,
and not withdrawn or waived, appraisal rights with respect thereto
in accordance
with the CCC (the "DISSENTING SHARES"), will not be converted into
the right to
receive the Merger Consideration, and holders of such shares of WWT
Common Stock
and WWT Preferred Stock will be entitled, in lieu thereof, to
receive payment of
the appraised value of such shares in accordance with the
provisions of the CCC
unless and until such holders fail to perfect or effectively
withdraw or lose
their rights to appraisal and payment under the CCC. If, after the
Effective
Time, any such holder fails to perfect or effectively withdraws or
loses such
right, such shares of WWT Common Stock and WWT Preferred Stock will
thereupon be
treated as if they had been converted at the Effective Time into
the right to
receive the Merger Consideration, without any interest thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF VERTEX PARTIES
Each
Vertex Party, jointly and severally, represents and warrants to
WWT
that the statements contained in this Article 3 are true, complete
and correct
as of the date of this Agreement and will be correct and complete
as of the
Closing Date (and as though made then and as though the Closing
Date were
substituted for the date of this Agreement throughout this Article
3, except in
the case of representations and warranties stated to be made as of
the date of
this Agreement or as of another date and except for changes
contemplated or
permitted by this Agreement); except as the same may be qualified
or limited by
the Vertex Disclosure Schedules attached hereto:
3.1
ORGANIZATION AND
QUALIFICATION; SUBSIDIARIES.
(a) Each of
Vertex LP, Vertex Nevada and Merger Sub is duly
organized, validly existing and in good standing under the Laws of
the
jurisdiction in which it is organized and has the requisite power
and authority
to carry on the Vertex Business, which such jurisdictions are set
forth on
SCHEDULE 3.1(A) of the Vertex Disclosure Schedules.
A-12
<PAGE>
(b) Each of
Vertex LP, Vertex Nevada and Merger Sub is duly
qualified or licensed to do business and is in good standing in
each
jurisdiction in which the nature of the Vertex Business or the
ownership or
leasing of its properties makes such qualification or licensing
necessary, other
than in such jurisdictions where the failure to be so qualified or
licensed
(individually or in the aggregate) has not had and would not
reasonably be
expected to have a Material Adverse Effect on Vertex Nevada or,
with respect to
the Vertex Business, on Vertex LP.
(c) Vertex
Nevada has delivered to WWT complete and correct copies
of its Organizational Documents and the same for Merger Sub, in
each case as
amended to the date hereof. The Organizational Documents of Vertex
Nevada are
attached hereto as EXHIBIT B. All of the outstanding shares of
capital stock or
other ownership interests of Vertex Nevada have been validly issued
and are
fully paid and nonassessable and are owned of record and
beneficially by the
Persons set forth on SCHEDULE 3.1(C)-1 of the Vertex Disclosure
Schedules, in
each case free and clear of all Liens, and free of any restriction
on the right
to vote, sell or otherwise dispose of such capital stock or other
ownership
interests, except for restrictions imposed by applicable securities
Laws and
except for restrictions on sale contained in the certificate of
incorporation of
Vertex Nevada. Immediately prior to the Closing, the outstanding
shares of
capital stock of Vertex Nevada will be owned of record and
beneficially by the
Persons set forth on SECTION 3.1(C)-2 of the Vertex Disclosure
Schedules.
(d) Vertex
Nevada does not own, directly or indirectly, any
capital stock or other ownership interest in any corporation,
partnership, joint
venture or other entity, other than Merger Sub. One hundred percent
(100%) of
the ownership interests of Merger Sub is owned by Vertex
Nevada.
(e) Vertex
Nevada has no Subsidiaries, other than Merger Sub.
Vertex LP has no Subsidiaries, other than as set forth on SCHEDULE
3.1(E) of the
Vertex Disclosure Schedules. As used in this Agreement, the term
"Subsidiary",
with respect to any Person, means any corporation or other legal
entity of which
such Person controls (either alone or through or together with any
other
Subsidiary), directly or indirectly, more than 50% of the capital
stock or other
ownership interests the holders of which are generally entitled to
vote for the
election of the Board of Directors or other governing body of such
corporation
or other legal entity.
3.2
AUTHORIZATION;
ENFORCEABILITY. Each Vertex Party has the requisite
power and authority, and has taken all action necessary, to
execute, deliver and
perform its or his obligations under this Agreement and any
Collateral Documents
to which it or he is or will be a party and each other agreement,
document,
instrument or certificate contemplated by this Agreement and/or any
Collateral
Documents or to be executed by such Vertex Party in connection with
the
consummation of the transactions contemplated by this Agreement
(including but
not limited to the Transfer) (the "TRANSACTIONS"), and to
consummate the
Transactions. The execution and delivery by each Vertex Party of
this Agreement
and any applicable Collateral Documents to which it or he is a
party, and the
consummation by such Vertex Party of the Transactions contemplated
hereby and
thereby, and the performance by such Vertex Party of its or his
respective
A-13
<PAGE>
obligations hereunder and thereunder, have been duly and validly
authorized by
all necessary corporate or other action on the part of such Vertex
Party, and no
other action on the part of such Vertex Party is required to
authorize the
execution, delivery and performance of this Agreement and the
consummation by
such Vertex Party of the Transactions. This Agreement has been duly
and validly
executed and delivered by each Vertex Party and constitutes a
legal, valid and
binding obligation of each such Vertex Party enforceable against
such Vertex
Party in accordance with its terms, except as such enforceability
may be limited
by bankruptcy, insolvency, moratorium, reorganization and other
similar laws
affecting creditors' rights generally and the general principles of
equity,
regardless of whether asserted in a proceeding in equity or at
law.
3.3
CAPITALIZATION.
(a) The
authorized capital stock of Vertex Nevada as of the date
of this Agreement consists of 750 million shares of Vertex Common
Stock, and 50
million shares of Vertex Preferred Stock. Immediately prior to the
Effective
Time (but prior to the issuance of the Merger Consideration), there
will be (i)
61,770,000 shares of Vertex Common Stock, 100 shares of Vertex
Series B
Preferred Stock and 0 shares of Vertex Series A Preferred Stock,
issued and
outstanding, all of which shares shall be owned in the amounts and
by the
holders set forth on SECTION 3.1(C)-2 of the Vertex Disclosure
Schedule; (ii) no
shares of Vertex Common Stock held in the treasury of Vertex; (iii)
6,000,000
shares of Vertex Common Stock reserved for future issuance pursuant
to the
exercise of outstanding options; and (iv) a sufficient number of
shares of
Vertex Common Stock reserved for future issuance pursuant to the
exercise of the
Make-Whole Warrants and the WWT Options. Except as described above,
as of the
Effective Time, there will be no shares of voting or non-voting
capital stock,
equity interests or other securities of Vertex Nevada authorized,
issued,
reserved for issuance or otherwise outstanding.
(b) As of the
Effective Time, all outstanding shares of Vertex
Capital Stock will be duly authorized, validly issued, fully paid
and
non-assessable, and will not be subject to, or issued in violation
of, any
preemptive, subscription or any kind of similar rights. Vertex
Nevada has no
outstanding shares of Vertex Capital Stock subject to a right of
repurchase that
will survive the Merger.
(c)
There are no
bonds, debentures, notes or other indebtedness of
either Vertex LP or Vertex Nevada having the right to vote (or
convertible into
securities having the right to vote) on any matters on which
partners of Vertex
LP or stockholders of Vertex Nevada may vote. Except as set forth
on SCHEDULE
3.3(C) of the Vertex Disclosure Schedules, there are no outstanding
securities,
options, warrants, calls, rights, commitments, agreements,
arrangements or
undertakings of any kind (contingent or otherwise) to which any
Vertex Party is
a party or bound obligating any such Vertex Party to issue, deliver
or sell, or
cause to be issued, delivered or sold, additional shares of capital
stock or
other voting securities of any Vertex Party or obligating any
Vertex Party to
issue, grant, extend or enter into any agreement to issue, grant or
extend any
security, option, warrant, call, right, commitment, agreement,
arrangement or
undertaking. No Vertex Party is subject to any obligation or
requirement to
provide funds for or to make any investment (in the form of a loan
or capital
contribution) in any Person.
A-14
<PAGE>
(d) All of the
issued and outstanding partnership interests of
Vertex LP have been issued in compliance in all material respects
with all
applicable federal and state securities Laws. As of the Effective
Time, all of
the issued and outstanding shares of Vertex Capital Stock will have
been issued
in compliance in all material respects with all applicable federal
and state
securities Laws.
(e) Except as
set forth on SCHEDULE 3.3(E) of the Vertex
Disclosure Schedules, there are no outstanding contractual
obligations of any
Vertex Party to repurchase, redeem or otherwise acquire any shares
of capital
stock (or options or warrants to acquire any such shares) or other
security or
equity interests of any Vertex Party. Except as set forth on
SCHEDULE 3.3(E) of
the Vertex Disclosure Schedules, there are no stock-appreciation
rights,
security-based performance units, phantom stock or other security
rights or
other agreements, arrangements or commitments of any character
(contingent or
otherwise) pursuant to which any Person is or may be entitled to
receive any
payment or other value based on the revenues, earnings or financial
performance,
stock price performance or other attribute of any Vertex Party or
to cause any
Vertex Party to file a registration statement under the Securities
Act, or which
otherwise relate to the registration of any securities of any
Vertex Party.
(f) Except as
set forth on SCHEDULE 3.3(F) of the Vertex
Disclosure Schedules, there are no voting trusts, proxies or other
agreements,
commitments or understandings to which any Vertex Party or, to the
knowledge of
any Vertex Party , any of the stockholders or partners of any
Vertex Party, is a
party or by which any of them is bound with respect to the
issuance, holding,
acquisition, voting or disposition of any shares of capital stock
or other
security or equity interest of any Vertex Party.
3.4
NON-CONTRAVENTION. Except as set forth on SCHEDULE 3.4 of the
Vertex
Disclosure Schedules, the execution, delivery and performance by
the Vertex
Parties of this Agreement or any applicable Collateral Document or
the
consummation by the Vertex Parties of the Transactions does not,
and the
consummation of the Transactions will not, (a) contravene, conflict
with, or
result in any violation or breach of any provision of the
Organizational
Documents of any of the Vertex Parties, (b) contravene, conflict
with, or result
in a violation or breach of any provision of any Law applicable to
the Vertex
Business, (c) require any consent or other action by any Person
under,
constitute a breach of or default under, or cause or permit the
termination,
cancellation, acceleration or other change of any right or
obligation or the
loss of any benefit to which any Vertex Party is entitled under any
provision of
any agreement or other instrument binding upon any Vertex Party or
any license,
franchise, permit, certificate, approval or other similar
authorization
affecting, or relating in any way to, the Vertex Business or (d)
result in the
creation or imposition of any Lien on any asset of any Vertex
Party, which in
the case of clauses (b) or (d) above would have a Material Adverse
Effect on
Vertex Nevada or, with respect to the Vertex Business, on Vertex
LP.
3.5
CONSENTS AND
APPROVALS. Except as set forth on SCHEDULE 3.5 of the
Vertex Disclosure Schedules, no consent, approval, authorization or
order of,
registration or filing with, or notice to, any Regulatory Authority
or any other
Person is necessary to be obtained, made or given by any of the
Vertex Parties
in connection with the execution, delivery and performance by the
Vertex Parties
of this Agreement or any applicable Collateral Document or for the
consummation
by the Vertex Parties of the Transactions, except to the extent the
failure to
obtain any such consent, approval, authorization or order or to
make any such
registration or filing would not have a Material Adverse Effect on
Vertex Nevada
or, with respect to the Vertex Business, on Vertex LP.
A-15
<PAGE>
3.6
BOOKS AND
RECORDS. Each of Vertex LP and Vertex Nevada has made and
kept books and records and accounts, which, in reasonable detail,
accurately and
fairly reflect the activities of such Person. Neither Vertex LP nor
Vertex
Nevada has, in any manner that pertains to, or could affect, the
Vertex
Business, engaged in any transaction, maintained any bank account
or used any
corporate funds except for transactions, bank accounts and funds
that have been
and are reflected in the normally maintained books and records of
such Person.
3.7
FINANCIAL
STATEMENTS. The Vertex Financial Statements to be
delivered to WWT prior to the Closing will be prepared from the
books and
records and fairly and accurately present the financial condition
and the
results of operations, income, expenses, assets, Liabilities
(including all
reserves), changes in shareholders' equity and cash flow of Vertex
Nevada as of
the respective dates of, and for the periods referred to in, such
Vertex
Financial Statements, in accordance with GAAP applied on a
consistent basis
throughout the periods indicated.
3.8
TRANSFER. Upon
consummation of the Transfer, the only assets and
Liabilities of Vertex Nevada shall be the assets, Liabilities and
Contracts as
set forth on EXHIBIT C hereto. As of the Closing, the assets set
forth on
EXHIBIT C will, except as set forth on SCHEDULE 3.8, be owned by
Vertex Nevada
free and clear of any Liens and will be sufficient to operate the
Vertex
Business in the manner in which it is operating as of the date
hereof. As of the
Closing, there will be no Liabilities associated with the Vertex
Business that
are not set forth on EXHIBIT C. The assets and Contracts on EXHIBIT
C include
all properties, assets, privileges, powers, rights, interests and
claims of
every type and description that are owned, leased, held, used or
useful in the
Vertex Business in which Vertex LP has any right, title or
interest.
3.9
TAXES.
(a) FILING OF
TAX RETURNS. Except as set forth on SCHEDULE 3.9(A)
of the Vertex Disclosure Schedules, Vertex LP will duly and timely
file (or
caused to be filed) with the appropriate taxing authorities all Tax
Returns
required to be filed through the Closing Date. All such Tax Returns
filed will,
when filed, be complete and accurate in all respects. Except as set
forth on
SCHEDULE 3.9(A) of the Vertex Disclosure Schedules, Vertex LP is
not currently
the beneficiary of any extension of time within which to file any
Tax Return. No
claim has ever been made against Vertex LP or its assets by an
authority in a
jurisdiction where Vertex LP does not file Tax Returns such that
Vertex LP is or
may be subject to taxation by that jurisdiction.
(b) PAYMENT OF
TAXES. Except as set forth on SCHEDULE 3.9(B) of
the Vertex Disclosure Schedules, all Taxes owed and due by Vertex
LP (whether or
not shown on any Tax Return) have been paid. The unpaid Taxes of
Vertex LP, if
any, (i) will not, as of December 31, 2007, exceed the reserve for
Tax Liability
(excluding any reserve for deferred Taxes established to reflect
timing
differences between book and Tax income) to be set forth on the
face of the
Vertex Financial Statements (rather than in any notes thereto), and
(ii) will
not exceed that reserve as adjusted for operations and transactions
through the
Closing Date in accordance with the past custom and practice of
Vertex LP in
filing its Tax Returns. Since December 31, 2007, Vertex LP has not
(i) incurred
any Liability for Taxes other than in the Ordinary Course of
Business or (ii)
paid Taxes other than Taxes paid on a timely basis and in a manner
consistent
with past custom and practice.
A-16
<PAGE>
(c) AUDITS,
INVESTIGATIONS, DISPUTES OR CLAIMS. Except as set
forth on SCHEDULE 3.9(C) of the Vertex Disclosure Schedules, no
deficiencies for
Taxes are claimed, proposed or assessed by any taxing or other
governmental
authority against Vertex LP, and there are no pending or, to the
knowledge of
Vertex LP, threatened audits, investigations, disputes or claims or
other
actions for or relating to any Liability for Taxes with respect to
Vertex LP,
and there are no matters under discussion by or on behalf of Vertex
LP with any
Regulatory Authority, or known to Vertex LP, with respect to Taxes
that are
likely to result in an additional Liability for Taxes with respect
to Vertex LP.
Audits of federal, state and local Tax Returns by the relevant
taxing
authorities have been completed for the periods set forth on
SCHEDULE 3.9(C) of
the Vertex Disclosure Schedules, and, except as set forth thereon,
none of
Vertex LP or any predecessor thereof has been notified that any
taxing authority
intends to audit a Tax Return for any other period. Vertex LP has
not waived any
statute of limitations in respect of Taxes or agreed to any
extension of time
with respect to a Tax assessment or deficiency. No power of
attorney granted by
Vertex LP with respect to any Taxes is currently in force.
(d) LIEN. There
are no Liens for Taxes (other than for current
Taxes not yet due and payable) on any assets or capital stock of
Vertex LP.
(e) TAX
ELECTIONS. All material elections with respect to Taxes
affecting Vertex or any of its assets as of the Closing Date are
set forth on
SCHEDULE 3.9(E) of the Vertex Disclosure Schedules. Vertex LP has
not: (i)
consented at any time under Section 341(f)(1) of the Code to have
the provisions
of Section 341(f)(2) of the Code apply to any disposition of any of
its assets;
(ii) agreed, and is not required, to make any adjustment under
Section 481(a) of
the Code by reason of a change in accounting method or otherwise;
(iii) made an
election, and is not required, to treat any of its assets as owned
by another
Person pursuant to the provisions of Section 168(f) of the Code or
as tax-exempt
bond financed property or tax-exempt use property within the
meaning of Section
168 of the Code; (iv) acquired, and does not own, any assets that
directly or
indirectly secure any debt the interest on which is tax exempt
under Section
103(a) of the Code; (v) made a consent dividend election under
Section 565 of
the Code; or (vi) made any of the foregoing elections and is not
required to
apply any of the foregoing rules under any comparable state or
local Tax
provision.
(f) PRIOR
AFFILIATED GROUPS. Vertex LP is not and has never been a
member of an affiliated group of corporations within the meaning of
Section 1504
of the Code. Vertex LP does not have any Liability for the Taxes of
any Person
(i) under Treasury Regulations Section 1.1502-6 (or any similar
provision of
state, local or foreign law), (ii) as a transferee or successor,
(iii) by
Contract, or (iv) otherwise.
(g) TAX SHARING
AGREEMENTS. There are no agreements for the
sharing of Tax liabilities or similar arrangements (including
indemnity
arrangements) with respect to or involving Vertex LP or any of its
assets or the
Vertex Business, and, after the Closing Date, neither Vertex Nevada
nor any of
its assets or the Vertex Business shall be bound by any such
Tax-sharing
agreements or similar arrangements or have any Liability thereunder
for amounts
due in respect of periods prior to the Closing Date.
A-17
<PAGE>
(h) PARTNERSHIPS
AND SINGLE MEMBER LLCS. Except as set forth on
SCHEDULE 3.9(H) of the Vertex Disclosure Schedules, Vertex LP (i)
is not subject
to any joint venture, partnership, or other arrangement or contract
which is
treated as a partnership for Tax purposes, (ii) does not own a
single member
limited liability company which is treated as a disregarded entity,
(iii) is not
a shareholder of a "controlled foreign corporation" as defined in
Section 957 of
the Code (or any similar provision of state, local or foreign law)
and (iv) is
not a "personal holding company" as defined in Section 542 of the
Code (or any
similar provision of state, local or foreign law).
(i) NO
WITHHOLDING. Vertex LP has not been a United States real
property holding corporation within the meaning of Section
897(c)(2) of the Code
during the applicable period specified in Section 897 of the Code.
Vertex LP has
withheld and paid all Taxes required to have been withheld and paid
in
connection with amounts paid or owing to any employee, independent
contractor,
creditor, shareholder or other third party. The transactions
contemplated herein
are not subject to the tax withholding provisions of Section 3406
of the Code,
or of Subchapter A of Chapter 3 of the Code or of any other
provision of law.
(j)
INTERNATIONAL BOYCOTT. Vertex LP has not participated in and
is not participating in an international boycott within the meaning
of Section
999 of the Code.
(k) PERMANENT
ESTABLISHMENT. Except as set forth on SCHEDULE
3.9(K) of the Vertex Disclosure Schedules, Vertex LP does not have
and has never
had a permanent establishment in any foreign country, as defined in
any
applicable Tax treaty or convention between the United States and
such foreign
country.
(l) PARACHUTE
PAYMENTS. Except as set forth on SCHEDULE 3.9(L) of
the Vertex Disclosure Schedules, Vertex LP is not a party to any
existing
Contract, arrangement or plan that has resulted or would result
(upon the
Closing or otherwise), separately or in the aggregate, in the
payment of any
"excess parachute payments" within the meaning of Section 280(G) of
the Code.
(m) TAX
SHELTERS. Vertex LP has not participated in and Vertex LP
is not now participating in, any transaction described in Section
6111(c) or (d)
of the Code or Section 6112(b) of the Code or the Treasury
Regulations
thereunder, or in any reportable transaction described in such
regulations.
3.10
INTELLECTUAL
PROPERTY.
(a) Except as
set forth on SCHEDULE 3.10 hereto, Vertex LP owns,
or is licensed or otherwise possesses legally enforceable rights to
use, all
Intellectual Property that is necessary for the conduct of the
Vertex Business
(b) The Vertex
Business, including the use of all owned and
licensed Intellectual Property, does not infringe or misappropriate
or otherwise
materially violate the Intellectual Property rights of any third
party, and no
claim is pending or, to the knowledge of the Vertex Parties,
threatened against
Vertex LP alleging any of the foregoing.
A-18
<PAGE>
(c) To the knowledge of the
Vertex Parties, (i) no third party is
engaging in any activity that infringes or misappropriates the
Intellectual
Property owned or licensed by Vertex LP, and (ii) Vertex LP has not
granted any
material license or other right to any third party with respect to
such
Intellectual Property.
(d) Vertex LP
has made available to WWT all material
correspondence and all written opinions in its possession relating
to potential
infringement or misappropriation (i) by Vertex LP of any
Intellectual Property
rights of any third party or (ii) by any third party of any of the
Intellectual
Property rights, owned or licensed, used in the Vertex
Business.
(e) Vertex LP
has a license to use all software development tools,
library functions, compilers and other third-party software that
are used in the
operation of the Vertex Business and are material to the Vertex
Business, taken
as a whole.
3.11
CONTRACTS; NO
DEFAULTS.
(a) SCHEDULE
3.11(A) hereto sets forth a true and complete list of
all contracts, agreements, leases, commitments or other
understandings or
arrangements, written or oral, express or implied, to which Vertex
LP is a
party, or affecting the Vertex Business, or by which Vertex LP or
any of its
property is bound or affected requiring payments to or from, or
incurring of
liabilities by, Vertex LP in excess of $50,000 (the "VERTEX
CONTRACTS").
(b) Except as
set forth on SCHEDULE 3.11(B) hereto, Vertex LP has
complied with and performed, in all material respects, all of its
obligations
required to be performed under and is not in default with respect
to any of the
Vertex Contracts, as of the date hereof, nor has any event occurred
which has
not been cured which, with or without the giving of notice, lapse
of time, or
both, would constitute a default in any respect thereunder. To the
knowledge of
the Vertex Parties, no other party has failed to comply with or
perform, in all
material respects, any of its obligations required to be performed
under or is
in material default with respect to any such Vertex Contracts, as
of the date
hereof, nor has any event occurred which, with or without the
giving of notice,
lapse of time or both, would constitute a material default in any
respect by
such party thereunder.
(c) Except as
set forth on SCHEDULE 3.11(C) hereto, to the
knowledge of the Vertex Parties, there exists no facts or
circumstances that
would make a material default by any party to any contract or
obligation likely
to occur subsequent to the date hereof.
3.12
EMPLOYEE BENEFITS.
(a) SCHEDULE
3.12(A) of the Vertex Disclosure Schedules sets forth
a complete list of all Employee Plans covering employees, directors
or
consultants or former employees, directors or consultants in, or
related to, the
Vertex Business. Vertex LP has delivered or made available to WWT
true and
complete copies of all Employee Plans, including written
interpretations thereof
and written descriptions thereof which have been distributed to
Vertex LP's
employees and for which Vertex LP has copies, all annuity contracts
or other
funding instruments relating thereto, and a complete description of
all Employee
Plans which are not in writing.
A-19
<PAGE>
(b) Neither
Vertex LP nor any ERISA Affiliate sponsors, maintains,
contributes to or has an obligation to contribute to, or has
sponsored,
maintained, contributed to or had an obligation to contribute to,
any Pension
Plan subject to Title IV of ERISA, or any Multiemployer Plan.
(c) Each Welfare
Plan which covers or has covered employees or
former employees of Vertex LP or of its Affiliates in the Vertex
Business and
which is a "group health plan," as defined in Section 607(1) of
ERISA, has been
operated in compliance with provisions of Part 6 of Title I,
Subtitle B of ERISA
and Section 4980B of the Code at all times.
(d) There is no
Legal Proceeding or Order outstanding, relating to
or seeking benefits under any Employee Plan set forth on SCHEDULE
3.12(A) of the
Vertex Disclosure Schedules, which is pending, threatened or
anticipated against
Vertex LP, any ERISA Affiliate or any Employee Plan.
(e) Neither
Vertex LP nor any ERISA Affiliate has any liability
for unpaid contributions under Section 515 of ERISA with respect to
any Welfare
Plan covering employees, directors or consultants or former
employees, directors
or consultants in, or related to, the Vertex Business.
(f) There are no
Liens arising under the Code or ERISA with
respect to the operation, termination, restoration or funding of
any Employee
Plan set forth on SCHEDULE 3.12(A) of the Vertex Disclosure
Schedules, or
arising in connection with any excise tax or penalty tax with
respect to such
Employee Plan.
(g) Each
Employee Plan set forth on SCHEDULE 3.12(A) of the Vertex
Disclosure Schedules has at all times been maintained in all
material respects,
by its terms and in operation, in accordance with all applicable
laws,
including, without limitation, ERISA and the Code.
(h) Vertex LP
and its ERISA Affiliates have made full and timely
payment of all amounts required to be contributed under the terms
of each
Employee Plan and applicable Law or required to be paid as expenses
or as Taxes
under applicable Laws, under such Employee Plan, and Vertex LP and
its ERISA
Affiliates shall continue to do so through the Closing Date.
(i) Vertex LP
has no Employee Plan intended to qualify under
Section 401 of the Code.
(j) Neither the
execution and delivery of this Agreement or other
related agreements by the Vertex Parties nor the consummation of
the
Transactions will result in the acceleration or creation of any
rights of any
person to benefits under any Employee Plan (including, without
limitation, the
acceleration of the vesting or exercisability of any stock options,
the
acceleration of the vesting of any restricted stock, the
acceleration of the
accrual or vesting of any benefits under any Pension Plan or the
acceleration or
creation of any rights under any severance, parachute or change in
control
agreement).
A-20
<PAGE>
(k) Neither
Vertex LP nor any ERISA Affiliate has incurred any
liability with respect to any Employee Plan, which may create, or
result in any
liability to Vertex Nevada.
3.13
LABOR MATTERS;
EMPLOYEES. Except as set forth on SCHEDULE 3.13 of
the Vertex Disclosure Schedules, Vertex LP is not a party to any
collective
bargaining or other labor contract. There has not been, there is
not presently
pending or existing, and, to the knowledge of any of the Vertex
Parties, there
is not threatened (i) any strike, slowdown, picketing, work
stoppage or employee
grievance process against Vertex LP or the Vertex Business; (ii)
any Legal
Proceeding against or affecting Vertex LP or the Vertex Business
relating to the
alleged violation of any Law or Order pertaining to labor relations
or
employment matters; or (iii) union organizing campaign or any
application for
certification of a collective bargaining agent. No event has
occurred or
circumstance exists that could provide the basis for any work
stoppage or other
labor dispute. There is no lockout of any employees by Vertex LP,
and no such
action is contemplated by Vertex LP. Vertex LP has complied with
all material
Laws relating to employment, equal employment opportunity,
nondiscrimination,
harassment, retaliation, immigration, wages, hours, benefits,
collective
bargaining, the payment of social security and similar Taxes,
occupational
health and safety, and plant closing. Vertex LP is not liable for
the payment of
any compensation, damages, Taxes, fines, penalties or other amounts
(including,
without limitation, amounts related to workplace safety and
insurance), however
designated, for failure to comply with any of the foregoing
Laws.
3.14
LEGAL PROCEEDINGS.
There is no material Legal Proceeding or Order
(a) pending or, to the knowledge of any of the Vertex Parties,
threatened or
anticipated against or affecting the Vertex Business (or to the
knowledge of any
of the Vertex Parties, pending or threatened, against any of the
officers,
directors or employees of Vertex LP with respect to their business
activities
related to or affecting the Vertex Business); (b) that challenges
or that may
have the effect of preventing, making illegal, delaying or
otherwise interfering
with any of the Transactions; or (c) related to the Vertex
Business. To the
knowledge of the Vertex Parties, there is no reasonable basis for
any such Legal
Proceeding or Order. To the knowledge of the Vertex Parties, no
officer,
director, partner, agent or employee of Vertex LP is subject to any
Order that
prohibits such officer, director, partner, agent or employee from
engaging in or
continuing any conduct, activity, or practice relating to the
Vertex Business.
The Vertex Business is not subject to any Order of any Regulatory
Authority and
Vertex LP is not engaged in any Legal Proceeding relating to the
Vertex Business
to recover monies due it or for damages sustained by it. Vertex LP
is not and
has not been in default with respect to any Order relating to the
Vertex
Business, and there are no unsatisfied judgments against Vertex LP
relating to
the Vertex Business. There are no Orders or agreements with, or
Liens by, any
Regulatory Authority or quasi-governmental entity relating to any
environmental
Law, which regulate, obligate, bind or in any way affect Vertex LP
or any
property on which Vertex LP operates the Vertex Business. SCHEDULE
3.14 sets
forth all litigation that the Vertex Parties are subject to, none
of which
litigation challenges or may have the effect of preventing, making
illegal,
delaying or otherwise interfering with any of the Transactions or
is related in
any way to the Vertex Business.
A-21
<PAGE>
3.15
COMPLIANCE WITH
LAW.
(a) To the
knowledge of Vertex LP, the conduct of the Vertex
Business is and at all times has been in compliance with all Laws
or Orders
applicable to the conduct and operations of the Vertex Business.
Vertex LP has
not received any notice to the effect that, or otherwise been
advised of (i) any
actual, alleged, possible or potential violation of, or failure to
comply with,
any such Laws or Orders or (ii) any actual, alleged, possible or
potential
obligation on the part of Vertex LP to undertake, or
