VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
February 19, 2004, by each of the persons whose names appear on the signature
pages hereof (the "Stockholders" or individually, each a "Stockholder"), in
favor of GVI Acquisition, LLC, a California limited liability company ("GVI
LLC").
W I T N E S S E T H
WHEREAS, Thinking Tools, Inc., a Delaware corporation ("TTI"), GVI
Security Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of TTI ("Purchaser Subsidiary"), and GVI Security, Inc., a Delaware corporation
("GVI"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which, among other things, Purchaser Subsidiary will
merge with and into GVI, and the Stockholders, all current stockholders of GVI,
will be issued shares of the Series E Preferred Stock of TTI (the "Shares"); and
WHEREAS, pursuant to Section 6.11 of the Merger Agreement and as a
condition to and in consideration for TTI and Purchaser Subsidiary entering into
the Merger Agreement, TTI and Purchaser Subsidiary are requiring the
Stockholders to execute and deliver to GVI LLC this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto do hereby agree as follows:
SECTION 1. Legend on Shares. Each certificate evidencing the Shares, and
each certificate evidencing Shares held by subsequent transferees of any such
certificate, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF
A VOTING AGREEMENT DATED AS OF FEBRUARY 19, 2004, AMONG GVI ACQUISITION,
LLC, THE HOLDER OF RECORD OF THIS CERTIFICATE AND CERTAIN OTHER
SIGNATORIES THERETO, AND NO TRANSFER OF SUCH SECURITIES SHALL BE VALID OR
EFFECTIVE EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL SUCH TERMS
AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF THINKING TOOLS, INC.
SECTION 2. Increase in Authorized Shares. Each Stockholder hereby agrees
to vote all of the Shares now owned or hereafter acquired by such Stockholder,
and any other shares of capital stock of TTI that hereafter may be held by such
Stockholder, to effect any and all amendments to the Certificate of
Incorporation of TTI (including, without limitation, by effecting a reverse
stock split of TTI's common stock), as approved of by TTI's Board of Directors,
so that TTI shall have sufficient shares of unissued common stock so as to
permit the conversion of all of the Shares and all other shares of preferred
stock and convertible securities of Purchaser then outstanding.
SECTION 3. Approval of Option Plan. Each Stockholder hereby agrees to vote
all of the Shares now owned or hereafter acquired by such Stockholder, and any
other shares of capital stock of TTI that hereafter may be held by such
Stockholder, in favor of the approval of TTI's 2004 Long-Term Incentive Plan in
the form annexed hereto as Exhibit A.
SECTION 4. Registration Rights Agreement. Each Stockholder hereby agrees
to vote all of the Shares now owned or hereafter acquired by such Stockholder,
and any other shares of capital stock of TTI that hereafter may be held by such
Stockholder, in favor of, or otherwise to approve or consent to, any and all
amendments, modifications or waivers of the terms of that certain Registration
Rights Agreement, a form of which is annexed hereto as Exhibit B (to be entered
into by TTI, GVI LLC and each such Stockholder in connection with the
transactions contemplated by the Merger Agreement), in each case as may deemed
necessary or required in the sole and absolute discretion of GVI LLC.
SECTION 5. Merger Agreement Indemnification. Each Stockholder hereby
agrees to vote all of the Shares now owned or hereafter acquired by such
Stockholder, and any other shares of capital stock of TTI that hereafter may be
held by such Stockholder, in favor of, or otherwise to approve or consent to,
any and all actions, claims, determinations or writings made by GVI LLC pursuant
to the provisions of Article 9 of the Merger Agreement, in each case as may be
deemed necessary or required in the sole and absolute discretion of GVI LLC.
SECTION 6. Duration of Agreement. The obligations of each Stockholder
under Sections 2 through 4 of this Agreement shall terminate on November 12,
2004. The obligations of each Stockholder under Section 5 of this Agreement
shall terminate on the second anniversary of the Effective Time (as defined in
the Merger Agreement). Upon the termination of each Stockholder's obligations
under Section 5 of this Agreement, this Agreement shall terminate.
Notwithstanding any portion of the foregoing to the contrary, in the event that
the merger transaction contemplated by the Merger Agreement is not consummated
on or before the one month anniversary of the date hereof, this Agreement shall
terminate and shall be deemed void ab initio.
SECTION 7. Manner of Voting. The voting of the Shares pursuant to this
Agreement, and any approval or consent required hereunder, may be effected in
person, by proxy, by written consent, or in any other manner permitted by the
laws of the State of Delaware.
SECTION 8. Proxy Grant and Remedies.
(a) In the event that any Stockholder fails to provide the requisite vote,
consent, approval, or other writing required hereunder within five (5) days of
such Stockholder's receipt of written notice or request thereof from GVI LLC
(the date of termination of such five (5) day period shall be referred to herein
as the "Notice Date"), such Stockholder hereby appoints GVI LLC to act as such
Stockholder's agent, attorney, and proxy, with full power of substitution, to
call and attend any and all meetings of the stockholders of TTI, to represent
and vote all Shares now owned or hereafter acquired by such Stockholder, and all
other shares of capital stock of TTI now or hereafter acquired by such
Stockholder (including, without limitation, to execute any consents to corporate
action and waivers), and otherwise to act for and on behalf of the Stockholder
in the same manner and with the same effect as if Stockholder were personally
present at any such meeting or personally acting on any matters identified in
this Agreement and submitted to the Stockholders for approval or consent. On the
Notice Date, this appointment shall be coupled with an interest, shall be
irrevocable, and shall be deemed effective from such date until the termination
of such Stockholder's respective obligations under this Agreement as provided in
Section 6 (the "Expiration Date"). This appointment shall be effective and shall
empower GVI LLC to act on behalf of each Stockholder with respect to the Shares
and all other shares of capital stock of TTI now or hereafter owned by such
Stockholder at any meetings of the stockholders of the Corporation, with respect
to any consent to corporate action, and/or any other approval or consent
required hereunder with a record date on or before the Expiration Date. Each
Stockholder authorizes GVI LLC to substitute any other person or entity to act
hereunder, to revoke any such appointment and to file this Agreement and any
substitution or revocation with the Secretary of TTI.
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(b) In addition to the foregoing, in case any one or more of the covenants
or agreements set forth in this Agreement shall have been breached by any
Stockholder, GVI LLC may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, including, but not limited to, an action
for damages as a result of any such breach; and/or an action for specific
performance of any such covenant or agreement contained in this Agreement and/or
a temporary or permanent injunction, in any case without showing any actual
damage. The rights, powers and remedies of GVI LLC under this Agreement are
cumulative and not exclusive of any other right, power or remedy which such
parties may have under any other agreement or law. No single or partial
assertion or exercise of any right, power or remedy of a party hereunder shall
preclude any other or further assertion or exercise thereof. Any purported
disposition of the Shares (a "Transfer") in violation of the provisions of this
Agreement shall be void ab initio.
SECTION 6. Successors and Assigns; Restrictions on Transfer. Except as
otherwise expressly provided herein, this Agreement shall bind and inure to the
benefit of GVI LLC, each of the Stockholders and the respective successors or
heirs and personal representatives and permitted assigns of GVI LLC and each of
the Stockholders. Each Stockholder further agrees that it shall not Transfer any
Shares to any person not a party to this Agreement unless such person
contemporaneously with such Transfer executes and delivers to GVI LLC an
agreement to be bound by the Stockholders' obligations hereunder, whereupon such
person shall have the same obligations as the Stockholders under this Agreement.
SECTION 7. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and all other prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 8. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person, duly sent by first class
registered or certified airmail, postage prepaid to such party at the address
set forth on the signature page hereof. All such notices, requests, consents and
communications shall be deemed to have been given (a) in the case of personal
delivery, on the date of such delivery, and (b) in the case of mailing, on the
fifth day following the date of such mailing.
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SECTION 9. Counterparts; Facsimile. This Agreement may be executed in
any number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement. This Agreement may be executed by any one or more parties hereto, by
the delivery of signature pages, by facsimile, provided that each party agrees
to provide the original of any such faxed documents at the request of any party.
SECTION 10. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
on the date first above written, in the case of corporations by their respective
officers thereunto duly authorized.
GVI ACQUISITION, LLC
By:____________________________________
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
STOCKHOLDERS:
________________________________________
Xxxxxx Xxxx
Address: 0000 Xxxxxx Xxxx, Xxxxxx,
XX 00000
________________________________________
Xxxxx Xxxxx
Address: 0000 Xxxxxx Xxxx, Xxxxxx,
XX 00000
________________________________________
Xxxxxxx Xxxx
Address: 0000 Xxxxx Xx, Xxxxxxxxxxx,
XX 00000
________________________________________
Xxxxx Xxx
Address: 00000 Xxxxxxx Xxx, Xxxxx X,
Xxxxxxxx, XX 00000
________________________________________
Xxxxxxx Xxxxxxxx
Address: 000 Xxxx Xxxxxxx Xx, Xxxxx 000,
Xxxxxxxx, XX 00000
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FBO - XXXXXXX X. XXXXX XXX
By:____________________________________
Name:
Title:
Address: 0000 Xxxxxxxx Xx, Xxxxxxxxxx,
XX 00000
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