EXHIBIT 99.3
STOCKHOLDER VOTING AND OPTION AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement") dated as of June __, 2006
between WT Acquisition Holdings, LLC ("Parent"), a Delaware limited liability
company, and ______ (the "Stockholder").
WHEREAS, Parent, WT Acquisition Corp., a Nevada corporation ("Sub") and
Warrantech Corporation, a Nevada corporation (the "Company"), are entering into
an Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended, modified or supplemented or restated, the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement);
WHEREAS, Stockholder owns the number of shares of Company Common Stock
set forth opposite his, her or its name on Schedule A hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by such Stockholder after the date hereof and during the term
of this Agreement, being collectively referred to herein as the "Subject Shares"
of such Stockholder); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent and Sub have required that Stockholder enter into this
Agreement and the Stockholder desires to enter into this Agreement to induce
Parent and Sub to enter into the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to Parent as of the date hereof as follows:
(a) Authority; Execution and Delivery; Enforceability.
The Stockholder has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The Stockholder has duly authorized, executed and delivered
this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the
enforcement of creditors' rights and (b) the application of general
principles of equity, whether such enforceability is considered in a
proceeding in equity in law. The execution and delivery by the
Stockholder of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under (i) if the
Stockholder is a corporation, partnership, limited liability company,
trust or other entity, the organizational documents of the Stockholder;
(ii) any provision of any contract, lease, license, indenture,
agreement, note, bond, permit, license, concession, franchise or other
instrument ("Contract") to which the Stockholder is a party or by which
any properties or assets of the Stockholder are -------- bound; or
(iii) any provision of any Judgment or Law applicable to the
Stockholder or the properties or assets of the Stockholder.
(b) The Subject Shares. The Stockholder is (i) the
beneficial owner of, and, except for any Subject Shares held in "street
name" and identified on Schedule A, the record owner of, or (ii) the
trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, the Subject Shares set
forth on Schedule A attached hereto. The Stockholder has good and
marketable title to the Subject Shares set forth on Schedule A free and
clear of any liens, other than those liens set forth on Schedule A. The
Stockholder does not own, of record or beneficially, any shares of
capital stock of the Company other than the Subject Shares set forth on
Schedule A attached hereto. The Stockholder has the sole right and
authority to vote and dispose of the Subject Shares, and the
Stockholder is not a party or bound by, and neither the Stockholder nor
the Subject Shares is subject to any voting trust or other agreement,
option, warrant, proxy, arrangement or restriction with respect to the
voting or disposition of the Subject Shares, except as contemplated by
this Agreement.
SECTION 2. Representations and Warranties of Parent. Parent hereby
represents and warrants to Stockholder as follows: Parent has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Parent of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Parent. Parent has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles of equity,
whether such enforceability is considered in a proceeding in equity or at law.
The execution and delivery by Parent of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under (i) the certificate of
incorporation or bylaws of Parent, (ii) any provision of any Contract to which
Parent is a party or by which any properties or assets of Parent are bound or
(iii) subject to the reports under Sections 13(d) and 16 of the Exchange Act as
may be required in connection with this Agreement and the transactions
contemplated hereby, any provision of any Judgment or Law applicable to Parent
or the properties or assets of Parent.
SECTION 3. Covenants of Stockholder. Stockholder covenants and agrees
as follows:
(a) At any meeting of the stockholders of the Company
called to vote on the Merger, the Merger Agreement or the other
transactions contemplated thereby or at any adjournment thereof, or in
any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger, the Merger
Agreement or the other transactions contemplated by the Merger
Agreement is sought, the Stockholder shall, (i) when a meeting is held,
appear at such meeting or otherwise cause all Subject Shares to be
counted or present thereat for purposes of establishing a quorum, and
(ii) vote (or cause to be voted), including by executing a written
consent, the Subject Shares in favor of the adoption and approval of
the Merger and all of the Merger Agreement and all of the transactions
contemplated thereby.
(b) The Stockholder hereby irrevocably grants to, and
appoints, Parent and Sub, or any of them, and any individual designated
in writing by any of them, and each of them individually, as the
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of the Stockholder,
to vote the Subject Shares of the Stockholder, or grant a consent or
approval in respect of the Subject Shares of the Stockholder in a
manner consistent with this Section 3 and to perform all other actions
as are required, authorized or contemplated to be taken by Stockholder
pursuant to this Agreement. The Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement. The Stockholder hereby affirms that the irrevocable proxy
and power of attorney set forth in this Section 3(b) is given in
connection with the execution of the Merger Agreement, and that such
irrevocable proxy and power of attorney is given to secure the
performance of the duties of the Stockholder under this Agreement. The
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Stockholder hereby further affirms that the irrevocable proxy and power
of attorney is coupled with an interest and may under no circumstances
be revoked. The Stockholder hereby ratifies and confirms all that such
irrevocable proxy and attorney-in-fact may lawfully do or cause to be
done by virtue hereof. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of Section
78.355(5) of the Nevada Revised Statutes. The irrevocable proxy and
power of attorney granted hereunder shall automatically terminate upon
the termination of Sections 3(a) and 3(c).
(c) So long as this Agreement is in effect, and for
twelve (12) months thereafter, at any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances
upon which the Stockholder's vote, consent or other approval is sought,
the Stockholder shall: (i) when a meeting is held, appear at such
meeting or otherwise cause all subject Shares to be counted or present
thereat for purposes of establishing a quorum, and (ii) vote (or cause
to be voted) the Subject Shares against (x) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale or transfer of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company, (y) any Company Takeover Proposal and (z) any amendment of the
Company Charter or the Company By-laws or other proposal or transaction
involving the Company or any Company Subsidiary, which amendment or
other proposal or transaction would in any manner impede, delay,
frustrate, prevent or nullify the Merger or any provision of the Merger
Agreement or any of the transactions contemplated thereby (the
"Transactions") or change in any manner the voting rights of any class
of Company Capital Stock. The Stockholder shall not commit or agree to
take any action inconsistent with the foregoing. The Stockholder agrees
that, as a condition to the transfer, whether by operation of law or
otherwise, of legal or beneficial ownership of the Subject Shares by
the Stockholder to any person or entity which is an Affiliate of the
Stockholder or member of the Stockholder's family (an "Affiliated
Person"), the Stockholder shall obtain such person's or entity's
agreement in writing to be bound by the terms of this Section 3(c).
(d) Other than pursuant to this Agreement, the
Stockholder shall not directly or indirectly (A) sell, transfer,
pledge, encumber, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) with respect to
the Transfer of, any Subject Shares to any Person other than in
accordance with the Merger or (B) grant any proxy, deposit any Subject
Shares into any voting trust or enter into any other agreement or
arrangement related to the voting of the Subject Shares, whether by
proxy, voting agreement or otherwise, with respect to any Subject
Shares or (C) commit or agree to take any of the foregoing actions.
(e) The Stockholder hereby consents to and approves the
actions taken by the Company Board in approving the Merger, the Merger
Agreement and the other Transactions. The Stockholder hereby waives,
and agrees not to exercise or assert, any dissenter's rights under
Sections 92A.300 to 92A.500 of the Nevada Revised Statutes in
connection with the Merger.
(f) The Stockholder agrees to promptly notify Parent of
the number of any Subject Shares acquired by the Stockholder after the
date hereof.
SECTION 4. Termination. This Agreement shall terminate upon the earlier
of (a) the Effective Time and (b) the termination of the Merger Agreement;
provided that, except as set forth in the next sentence, Sections 3(c), 5 and 6
shall survive any termination of this Agreement pursuant to Section 4(b).
Notwithstanding the foregoing, if
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(i) the conditions set forth in Sections 7.01
and 7.02 of the Merger Agreement are satisfied or would be
satisfied upon the Company's performance of its obligations at
Closing and Parent and Sub fail to close notwithstanding the
Company's confirmation that it remains ready, willing and able
to proceed with the Closing, or
(ii) Parent and Sub willfully breach a material
obligation contained in the Merger Agreement and the Company
gives written notice to Parent and Sub of such breach, and
Parent and Sub fail to cure such breach within fifteen (15)
business days of the receipt of such notice,
then Stockholder shall be entitled to give notice to Parent and Sub that it is
terminating Section 3(c) of this Agreement. No party hereto shall be relieved
from any liability for breach of this Agreement by reason of any such
termination.
SECTION 5. Additional Matters.
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(a) Stockholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
(b) The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Subject Shares and shall be
binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of
law or otherwise, including the Stockholder's successors. In the event
of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the
Company affecting the Company Common Stock, or the acquisition of
additional shares of Company Common Stock or other voting securities of
the Company by the Stockholder (whether by purchase, conversion or
otherwise), the number of Subject Shares listed on Schedule A set forth
opposite the name of such Stockholder shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any
additional or decreased shares of Company Common Stock or other voting
securities of the Company issued to or acquired or disposed of by such
Stockholder.
SECTION 6. General Provisions.
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(a) Amendments. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery)
to Parent in accordance with Section 9.02 of the Merger Agreement and
to the Stockholder at its address set forth on Schedule A hereto (or at
such other address for a party as shall be specified by like notice).
(c) Interpretation. Wherever the words "include",
"includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
(d) Severability. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, it shall be
adjusted rather than voided, if possible, in order to achieve the
intent of the parties hereto to the maximum extent possible. In any
event, the invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity or
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enforceability of the remainder of this Agreement in that jurisdiction
or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
(e) Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement. Any counterpart may be executed by facsimile signature and
such facsimile signature shall be deemed an original.
(f) Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Merger Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. This
Agreement is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Nevada
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof.
(h) Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise, by
Parent without the prior written consent of Stockholder or by
Stockholder without the prior written consent of Parent, and any
purported assignment without such consent shall be void; provided that
notwithstanding the foregoing Parent may assign or transfer its rights,
interests and obligations under this Agreement to any Person to which
Parent assigns or transfers its rights, interests and obligation under
the Merger Agreement in accordance with the Merger Agreement. Subject
to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
(i) Remedies. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. Parent shall be entitled to
recover its reasonable attorney's fees and expenses in enforcing its
rights under this Agreement.
(j) Jurisdiction; Waiver of Jury Trial. Each of the
parties hereto irrevocably and unconditionally agrees that any legal
suit, action or proceeding brought by any party hereto arising out of
or based upon this Agreement or the transactions contemplated hereby
may be brought in any Florida state court or any Federal court located
in the state of Florida (in each case, located in Miami-Dade county) or
any Nevada state court or any Federal court located in the state of
Nevada (in each case, located in Xxxxx county).
(k) Specific Performance. Each Stockholder acknowledges
and agrees that (a) the covenants, obligations and agreements of
Stockholder contained in this Agreement relate to special, unique and
extraordinary matters, (b) Parent is and will be relying on such
covenants in connection with entering into the Merger Agreement and the
performance of its obligations under the Merger Agreement and (c) a
violation of any of the terms of such covenants, obligations or
agreements will cause Parent irreparable injury for which adequate
remedies are not available at law. Therefore, Stockholder agrees that
Parent shall be entitled to an injunction, restraining order or such
other equitable relief (without the requirement to post bond) as a
court of competent jurisdiction may deem necessary or appropriate to
restrain Stockholder from committing any violation of such covenants,
obligations or agreements. These injunctive remedies are cumulative and
in addition to any other rights and remedies Parent may have.
* * *
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IN WITNESS WHEREOF, each party has duly executed this Agreement, all as
of the date first written above.
WT ACQUISITION HOLDINGS, LLC
By:______________________________________
Name:
Title:
STOCKHOLDER
By:______________________________________
Printed Name:
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SCHEDULE A
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Number of Shares
Number of Shares of of Company
Name and Address Company Common Stock Common Stock
of Stockholder Beneficially Owned held in "Street name"
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Liens on Subject Shares:
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