Exhibit 10(dd)
AGREEMENT
This Agreement is entered into as of January 31, 2006 by and between
Warrantech Corporation ("Warrantech"), and Xxxxxxx Xxxxx ("Tweed").
WHEREAS, Tweed paid Warrantech the exercise price of
certain options to acquire shares of Warrantech common stock, par value $.007
per share, by the delivery of a promissory note dated as of July 6, 1998 (the
"Original Note"); and
WHEREAS, the Original Note was amended and restated
as set forth in an amended and restated promissory note dated February 1, 2000
(the "Amended Note"); and
WHEREAS, the Amended Note was amended and restated as
set forth in an amended and restated promissory note dated July 24, 2002 (the
"Outstanding Note"); and
WHEREAS, pursuant to a Pledge Agreement dated as of
February 1, 2000 (the "Pledge Agreement"), Tweed pledged 963,775 shares of
Warrantech common stock (the "Pledged Shares") to secure the repayment of the
principal amount of, and accrued interest on, the Original Note; and
WHEREAS, the current principal amount of the
Outstanding Note, $3,189,675, bears interest at the rate of 4.6% per annum,; and
WHEREAS, the interest accrued and outstanding under
the Outstanding Note as of January 31, 2006 is $148,033.05 (the "Accrued
Interest") and is payable on January 31, 2006.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, Warrantech and Tweed hereby agree
as set forth in this Agreement.
1. Transfer of Shares. In payment of the Accrued Interest, Tweed,
as of February 1, 2006, shall surrender to Warrantech 211,476 shares of common
stock of Warrantech owned by Tweed (the "Surrendered Shares") at an exchange
rate of $.70 per share.
2. Shares to be Transferred. At the sole option of Tweed, the
Surrendered Shares may consist of the Pledged Shares or other shares of common
stock of Warrantech owned by Tweed, provided, however, that, if Tweed uses
Pledged Shares for the payment of the Accrued Interest, Tweed shall,
simultaneously with the execution of this Agreement, transfer to Warrantech
211,476 shares of other common stock of Warrantech owned by Tweed in order to
replace the Pledged Shares used by Tweed to pay the Accrued Interest.
2. Closing.
(a) The closing of the transfer of the Surrendered Shares
(the "Closing") shall occur within ten (10) days after the execution of this
Agreement by Tweed and Warrantech and the Agreement shall be effective as of
February 1, 2006. At the Closing, Tweed shall deliver to Warrantech a
certificate evidencing the Surrendered Shares, along with stock powers executed
in blank.
(b) At the Closing, title to the Surrendered Shares shall
pass from Tweed to Warrantech. At the Closing, all of the representations and
warranties of each party set forth below shall be true and correct as if made at
the Closing. The representations and warranties set forth below shall survive
the Closing for thirty months.
3. Representations and Warranties of Warrantech. Warrantech
represents and warrants to Tweed as follows:
(a) Warrantech is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Warrantech
has all requisite corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance by Warrantech of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action, and no other act or proceeding on the part of
Warrantech or its stockholders will be necessary to authorize the execution,
delivery or performance of this Agreement and the consummation of the
transactions contemplated hereby.
(b) Warrantech's execution and performance under this
Agreement is not limited or prohibited by, and will not cause a breach of,
constitute a default under, result in the termination or acceleration of,
terminate, modify or cancel, or require any notice under Warrantech's
certificate of incorporation, bylaws, or any other agreement or understanding to
which Warrantech is a party, and this Agreement represents a valid and binding
obligation of Warrantech, enforceable against it in accordance with its terms.
(c) There are no actions, suits, proceedings, orders or
investigations pending or, to the best of Warrantech's knowledge, threatened
against or affecting Warrantech, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which could adversely
affect Warrantech's performance under this Agreement or the consummation of the
transactions contemplated hereby.
(d) Except for a Current Report on Form 8-K relating to
this Agreement under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), no permit, consent, approval or authorization of, or
declaration to or filing with, any governmental or regulatory authority, any
court or any other party or person is required in connection with the execution,
delivery or performance of this Agreement by Warrantech or the consummation by
Warrantech of the transactions contemplated hereby.
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(e) The representations and warranties set forth in this
Agreement are the only representations and warranties made by Warrantech with
respect to the transactions contemplated hereby.
(f) The Company has no present intention to file for
bankruptcy under the U.S. Bankruptcy Code or similar state laws.
4. Representations and Warranties of Tweed. Tweed hereby
represents and warrants to Warrantech as follows:
(a) Tweed has legal capacity to execute and deliver this
Agreement and to perform his obligations hereunder. No other act or proceeding
on the part of Tweed will be necessary to authorize the execution, delivery or
performance of this Agreement and the consummation of the transactions
contemplated hereby.
(b) Tweed's execution and performance under this
Agreement is not limited or prohibited by, and will not cause a breach of,
constitute a default under, result in the termination or acceleration of,
terminate, modify or cancel, or require any notice under any other agreement or
understanding to which Tweed is a party (other than the Outstanding Note and the
Pledge Agreement) and this Agreement represents a valid and binding obligation
of Tweed, enforceable against it in accordance with its terms.
(c) There are no actions, suits, proceedings, orders or
investigations pending or, to the best of Tweed's knowledge, threatened against
or affecting Tweed, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which could adversely affect Tweed's
performance under this Agreement or the consummation of the transactions
contemplated hereby.
(d) Except for any required filings pursuant to Sections
13(d), 13(g) or 16(a) under the Exchange Act, no permit, consent, approval or
authorization of, or declaration to or filing with, any governmental or
regulatory authority, any court or any other party or person is required in
connection with the execution, delivery or performance of this Agreement by
Tweed or the consummation by Tweed of the transactions contemplated hereby.
(e) Tweed holds of record and owns beneficially all of
the Surrendered Shares free and clear of any liens, claims, encumbrances or any
other restrictions on transfer, other than those arising under the Outstanding
Note and the Pledge Agreement. Except for this Agreement, Tweed is not a party
to any option, warrant, right, contract, call, put or other agreement or
commitment providing for the disposition or acquisition of any Surrendered
Shares or any options exercisable for Surrendered Shares. Tweed is not a party
to any voting trust, proxy or other agreement or understanding with respect to
the voting of any Surrendered Shares. At the Closing, by acquiring the
Surrendered Shares as contemplated by this Agreement, Warrantech shall receive
good and marketable title to all of the Surrendered Shares free and clear of all
liens, claims or encumbrances.
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(f) Tweed understands that (i) he is entering into a
transaction with Warrantech involving the acquisition by Warrantech of its own
securities; (ii) Tweed has made his own evaluation of the merits of the
transaction, including a review of Warrantech's filings with the Securities and
Exchange Commission; and (iii) Warrantech may possess information relating to
itself which is material and is not known to the public or Tweed.
(g) The representations and warranties set forth in this
Agreement are the only representations and warranties made by Tweed with respect
to the transactions contemplated hereby.
(g) Tweed has had the opportunity to consult with an
attorney of his personal choosing to obtain legal advice concerning this
agreement and is not relying on the advice of Warrantech or any attorneys
representing Warrantech in connection with the legal, tax or other implications
concerning this Agreement.
7. Notices. All notices and other communications required or
desired to be given pursuant to this Agreement will be given in writing and will
be deemed duly given upon personal delivery, or on the third day after mailing
if sent by registered or certified mail, postage prepaid, return receipt
requested, or on the day after mailing if sent by a nationally recognized
overnight delivery service which maintains records of the time, place and
recipient of delivery, or upon receipt of an electronically confirmed
transmission if sent by telex, telecopy or facsimile transmission, and in each
case if addressed as follows, as the same may be changed from time to time by
any party in accordance with this Section:
If to Warrantech:
-----------------
Warrantech Corporation
0000 Xxxxxxx 000, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx San Xxxxxxx, President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxxx Helpern Syracuse &
Hirschtritt LLP
000 Xxxxx Xxxxxx
XX, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: (000 000-0000
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If to Tweed:
------------
Mr. Xxxxxxx Xxxxx
Margueritaville
Xxxxx Aux Epines
St. Georges
Grenada, West Indies
5. Miscellaneous. In interpreting, construing and administering
this Agreement, Warrantech and Tweed hereby agree as follows:
(a) This Agreement represents the entire agreement and
understanding of the parties with regard to the subject matter hereof, and
supersedes all prior and contemporaneous oral or written agreements with regard
to such subject matter.
(b) This Agreement may not be terminated, discharged or
modified except by delivery of a written document signed by Warrantech and
Tweed.
(c) Tweed and Warrantech each agree to execute and
deliver such documents and to take such further action as the other party may
reasonably request in order to effectuate the transactions described in this
Agreement.
(d) The headings of the paragraphs of this Agreement are
for convenience only and shall not constitute a part hereof.
(e) This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which shall
constitute one and the same instrument.
(f) Except as specifically set forth herein, no party may
assign or delegate its rights or obligations under this Agreement without the
prior written consent of the other party. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns; including, without limitation, any future
owners of Warrantech.
(g) This Agreement shall be construed and enforced
pursuant to the laws and decisions of the state of New York, without regards to
principles of conflicts of laws. The parties irrevocably submit to the
non-exclusive jurisdiction of any state or federal court located in New York,
New York, in any action arising in connection with this Agreement, including,
but not limited to, any action challenging the validity of this Agreement. The
prevailing party in any such action shall be entitled to be paid by the other
party its reasonable attorney's fees and expenses incurred as a result of such
action and the investigation thereof, in addition to any other rights and
remedies.
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(h) Warrantech shall provide its commercially reasonable
cooperation to Tweed in providing information with respect to any securities law
filings required by Tweed.
(i) The parties acknowledge that the recitals set forth
at the beginning of this Agreement are true and correct and shall be
incorporated by reference into the body of this Agreement.
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IN WITNESS WHEREOF, Warrantech and Tweed have entered into this
Agreement as of the date first written above.
Warrantech Corporation
By: /s/ XXXX SAN ANTONIO
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Name: Xxxx San Xxxxxxx
Title: Chief Executive Officer
/s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
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