VOTING AGREEMENT
Exhibit
99.1
This
Voting Agreement, dated as of an effective as of March __, 2009 (this
"Agreement"), is among Xxxxxxxx X. Xxxxxx, an individual (“Xxxxxx”), and
_____________, a _____________ (“Shareholder”).
RECITALS:
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A.
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On
May 19, 2008, World Waste Technologies, Inc., a California corporation
(“WWT”), on the one hand, and Vertex Holdings, L.P. (formerly Vertex
Energy, L.P.), Vertex Nevada, 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 Xxxxxxxx
X. Xxxxxx, as agent (“Agent”) of all of the shareholders of Vertex Nevada
(the “Vertex Shareholders”), entered into an Amended and Restated
Agreement and Plan of Merger (as amended from time to time, the “Plan of
Merger”).
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B.
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On
the Effective Date of the Merger (as defined therein), WWT will merge with
and into Merger Sub, and the shareholders of WWT will be issued securities
in Vertex Nevada (the “Merger”).
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C.
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Shareholder
will own ___________ shares of Vertex Nevada’s common stock following the
Effective Date of the Merger (the
“Interest”).
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D.
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Shareholder
has previously entered into a Lock-Up Agreement with Vertex Nevada (the
“Lock-Up”), which Lock-Up puts certain restrictions on Shareholders
ability to sell and/or transfer the Interest (as described in such
Lock-Up).
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E.
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Shareholder
desires to provide Xxxxxx a voting proxy to vote the Interest at any
meeting of Vertex Nevada, pursuant to any consent to action without
meeting of Vertex Nevada, and/or any other event which may require or may
allow for the vote of the Interest on the terms and conditions set forth
below.
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NOW, THEREFORE, for $10 and in
consideration of the mutual covenants contained herein, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. 1. The
Interest. Any interest or other voting securities, or the
voting rights relating thereto, of Vertex Nevada that may be owned, held or
subsequently acquired in any manner, legally or beneficially, directly or
indirectly, of record or otherwise, by Shareholder, other than the Interest, at
any time during the term of this Agreement as a result of the ownership of the
Interest whether issued incident to any split, dividend, conversion of the
Interest into shares of common stock of Vertex Nevada, increase in
capitalization, recapitalization, merger, consolidation, reorganization, or
other transaction, shall be included within the term "Interest" as used herein
and shall be subject to the terms of this Agreement.
2. Due
Authority. Shareholder has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of the Shareholder and constitutes a legal, valid and
binding obligation of Shareholder, enforceable against it in accordance with its
terms.
3. No
Conflict; Consents.
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a.
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The
execution and delivery of this Agreement by the Shareholder does not, and
the performance of this Agreement by the Shareholder will not, require any
consent, approval, authorization or permit of, filing with, or
notification to, any government or regulatory authority by the
Shareholder.
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b.
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No
other person or entity has, or will have during the Term (as defined
below), any right, directly or indirectly, to vote or control or affect
the voting of the Interest.
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4. Title to
Interest. The Shareholder, will be, following the Effective Date of the
Merger, (a) the record owner of the Interest free and clear of any proxy or
voting restriction other than pursuant to this Agreement and (b) will have
during the Term, sole voting power with respect to the Interest.
5. Covenants
of Shareholder. Shareholder hereby covenants and agrees as
follows:
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a.
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Transfer
of Interest. During the Term (as defined below) Shareholder shall
not, and shall not permit anyone else to, (i) sell, transfer, encumber,
pledge, assign or otherwise dispose of any of the Interest except as
provided in and specifically authorized by the Lock-Up, (ii) deposit the
Interest into a voting trust or enter into a voting agreement or
arrangement with respect to the Interest or grant any proxy or power of
attorney with respect thereto, or (iii) enter into any contract, option or
other legally binding undertaking providing for any transaction provided
in (i) or (ii) hereof, except as provided in and authorized by the Lock-Up
or unless the proposed transferee or pledgee shall have entered into a
written agreement with Xxxxxx, containing terms and conditions
satisfactory to Xxxxxx, in which such transferee or pledgee shall agree to
be bound by all the terms and conditions of this Agreement. The above
shall not be construed to restrict the conversion or resale of the
Interest beyond those terms and conditions set forth in the
Lock-Up.
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b.
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Proxy.
Shareholder, by this Agreement, hereby constitutes and appoints Xxxxxx,
with full power of substitution, during and for the Term, as Shareholder’s
true and lawful attorney and irrevocable proxy, for and in Shareholder’s
name, place and stead, to vote the Interest owned by Shareholder as
Shareholder's proxy as to the election or removal of four (4) of the five
(5) Directors of Vertex Nevada, which Directors are to be appointed (or
removed) by the entire voting stock of the Company voting as a whole (the
“Appointment of Directors”)(which voting right shall be separate from the
voting right the Series A Convertible Preferred Stock of Vertex Nevada has
to appoint one (1) of the five (5) Directors), and in all proceedings in
which the vote or written consent of shareholders may be required or
authorized by law during the Term for the Appointment of Directors. The
Shareholder intends the foregoing proxy to be, and it shall be,
irrevocable and coupled with an interest during the Term. All
action to be taken on any question shall be determined by Xxxxxx, in his
sole discretion.
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c.
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Term.
For the purposes of this Agreement, "Term" means the period from the
Effective Date of the Merger (as such term is defined in the Plan of
Merger) until the third anniversary of such Effective
Date.
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d.
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Agreements.
Shareholder agrees that it will not enter into any agreement or
understanding with any person or entity or take any action during the Term
which will permit any person or entity to vote or give instructions to
vote the Interest in any manner inconsistent with the terms of this
Section. Shareholder further agrees to take such further action and
execute and deliver, and cause others to execute and deliver such other
instruments as may be necessary to effectuate the intent of this
Agreement, including without limitation, proxies and other documents
permitting Xxxxxx to vote the Interest or to direct the record owners
thereof to vote the Interest in accordance with this Agreement. Without
limiting the foregoing, Shareholder shall deliver to Xxxxxx a duly
executed Voting Proxy in the form attached hereto as Exhibit A
simultaneously with the execution
hereof.
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6. Reservation
of Rights. All other rights and privileges of ownership of the
Interest shall be reserved to and retained by Shareholder.
7.
Successors
and Assigns. This Agreement shall be binding upon the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
8.
Waiver. The
waiver by either party to this Agreement of a breach or violation or any
provision hereof shall not operate as or be construed to be a waiver of any
subsequent breach hereof.
9.
Governing
Law. This Agreement shall be interpreted in accordance with
the laws of the State of Texas. In the event of a dispute concerning
this Agreement, the parties agree that venue lies in a court of competent
jurisdiction in Xxxxxx County, Texas.
10.
Headings;
Gender. The paragraph headings contained in this Agreement are
for convenience only, and shall in no manner be construed as part of this
Agreement. All references in this Agreement as to gender shall be
interpreted in the applicable gender of the parties.
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11.
Severability. In
the event any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
12.
Amendment. No
modification, amendment, addition to, or termination of this Agreement, nor
waiver of any of its provisions, shall be valid or enforceable unless in writing
and singed by all the parties hereto.
13.
Entire
Agreement. This Agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understanding or
written or oral agreements between the parties respecting the subject matter
hereof.
14.
Effect of
Facsimile and Photocopied Signatures. This Agreement may be executed in
several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts. A copy of this
Agreement signed by one Party and faxed or scanned and emailed to another Party
(as a PDF or similar image file) shall be deemed to have been executed and
delivered by the signing Party as though an original. A photocopy or
PDF of this Agreement shall be effective as an original for all
purposes.
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of page left intentionally blank. Signature page follows.]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the date set forth
below.
(“Shareholder”)
_____________________
(“Xxxxxx”)
Xxxxxxxx X.
Xxxxxx
__________________________
Xxxxxxxx
X. Xxxxxx
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EXHIBIT
A
VOTING
PROXY
The
undersigned holder of ___________________ shares of common stock
(the “Interest”) of Vertex Energy, Inc. (the "Company"), following the effective
date of a pending Merger (as described in greater detail in the Voting
Agreement, to which this Voting Proxy is attached as Exhibit A), hereby appoint
Xx. Xxxxxxxx X. Xxxxxx as proxy (the "Proxy"), with full power of substitution,
for and in the name of the undersigned, to vote the Interest, as its proxy, in
all proceedings in which the vote or written consent of shareholders may be
required or authorized by law for the appointment or removal of Directors of the
Company as if the undersigned were present and voting such Interest, on any
matters to come before the Company, in his sole discretion as to the election
(or removal) of four (4) of the five (5) Directors of the Company to be
appointed by the entire voting stock of the Company voting as a whole (which
shall be separate from the right provided to the Company’s Series A Convertible
Preferred Stock to elect one (1) of the five (5) Directors of the Company). The
undersigned hereby affirm that this Proxy is coupled with an interest and ratify
and confirm all that the Proxy may lawfully do or cause to be done by virtue
hereof. This Voting Proxy shall be in effect until the third
anniversary of the Effective Date as such term is defined in the Plan of Merger
(as defined in the Voting Agreement).
Executed
this __________ day of March, 2009.
_____________________
Witness:
________________________
Printed
Name:_______________________
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