CONFORMED COPY
VOTING AGREEMENT
VOTING AGREEMENT dated as of March 7, 2000, by and among THINKING
TOOLS, INC., a Delaware corporation ("TTI"), Thinking Technologies, L.P.
("Technologies"), Xxxx Xxxxx ("Xxxxx"), TRITIUM NETWORK, INC., a Delaware
Corporation ("Tritium") and the stockholders of Tritium whose names appear on
the signature pages hereof (the "Stockholders" or individually, each a
"Stockholder").
W I T N E S S E T H
WHEREAS, contemporaneously herewith TTI, XxxxxXxxx.xxx, Inc., a
Delaware corporation and a wholly-owned subsidiary of TTI ("Purchaser"), Tritium
and Xxxxxxx X. Xxx, a stockholder of Tritium, entered into an Asset Purchase
Agreement and Plan of Reorganization dated as of the date hereof (the "Asset
Purchase Agreement") pursuant to which, among other things, Purchaser will agree
to purchase from Tritium all right, title and interest of Tritium in and to
Tritium's business and substantially all of Tritium's assets; and
WHEREAS, pursuant to Section 6.5 of the Asset Purchase Agreement and as
a condition to and in consideration for TTI and Purchaser entering into the
Asset Purchase Agreement, TTI and Purchaser are requiring Tritium and the
Stockholders to execute and deliver to TTI 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. Representations.
1.1 By TTI. TTI represents to Tritium and each Stockholder that:
(a) The execution, delivery and performance by TTI of this
Agreement and all transactions contemplated in this Agreement have been duly
authorized by all action required by law, the Certificate of Incorporation of
TTI, as restated and amended from time to time (the "Charter"), the By-laws of
TTI (the "By-laws") or otherwise.
(b) This Agreement has been duly executed and delivered by TTI
and constitutes the legal, valid and binding obligation of TTI enforceable
against it in accordance with its terms.
1.2 By Tritium, Technologies, Xxxxx and the Stockholders. Tritium,
Technologies, Xxxxx and each Stockholder, as to itself or himself, represents to
each of the other parties that:
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(a) The execution, delivery and performance by Tritium,
Technologies, Xxxxx and such Stockholder of this Agreement and all transactions
contemplated in this Agreement have been duly authorized by all action required
by law, and, if applicable, by the certificate of incorporation and by-laws,
partnership agreement or other governing instrument of Tritium, Technologies,
Xxxxx and such Stockholder.
(b) This Agreement has been duly executed and delivered by
Tritium, Technologies, Xxxxx and such Stockholder and constitutes the legal,
valid and binding obligation of Tritium, Technologies, Xxxxx and such
Stockholder enforceable against it or him in accordance with its terms.
SECTION 2. Legend on Shares and Notice of Transfer.
2.1 Restrictive Legends. (a) Each certificate evidencing shares of the
voting capital stock of TTI (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 SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAW. THESE SECURITIES MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE SECURITIES LAW.
(b) Each certificate evidencing Shares, and each certificate
evidencing Shares held by subsequent transferees of any such certificate, shall
also be stamped or otherwise imprinted with a legend in substantially the
following form:
ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS
AND CONDITIONS OF A VOTING AGREEMENT DATED AS OF MARCH 7, 2000, AS IT
MAY BE AMENDED FROM TIME TO TIME, AMONG THINKING TOOLS, INC., 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.
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SECTION 3. Election of Directors.
3.1 Voting for Directors. At each annual meeting of the stockholders of
TTI and at each special meeting of the stockholders of TTI called for the
purposes of electing directors of TTI, and at any time at which stockholders of
TTI shall have the right to, or shall, vote for or consent to the election of
directors, then, in each such event, Tritium, Technologies and each Stockholder
shall vote all Shares now owned or hereafter acquired by Tritium, Technologies
or such Stockholder (or controlled as to voting rights) by it, whether by
purchase, exercise of rights, warrants or options, stock dividends or otherwise
and Xxxxx shall vote all shares of Series B Preferred Stock, $.001 par value per
share ("Preferred Shares") owned by Xxxxx:
(a) to fix and maintain the number of directors on the Board
of Directors of TTI (the "Board") at nine (9);
(b) to elect to the Board five (5) directors ("Series B
Directors") designated by the holders of the Series B Preferred Stock, $.001 par
value per share or, if such Series B Preferred Stock has been converted, Xxxx
Xxxxx ("Series B Preferred Stock");
(c) to elect to the Board two (2) directors ("Xxx Directors")
designated by Xxxxxxx X. Xxx, on behalf of Tritium or the Stockholders.
3.2 Cooperation of TTI. TTI shall use its best efforts to effectuate
the purposes of this Section 3, including promoting the adoption of any
necessary amendment of the By-Laws and the Charter.
3.3 Notices. TTI shall provide Tritium, Technologies, Xxxxx and the
Stockholders with at least twenty (20) days' prior notice in writing of any
intended mailing of notice to the stockholders of TTI for a meeting at which
directors are to be elected, and such notice shall include the names of the
persons designated pursuant to this Section 3. In the absence of any notice from
TTI, the director(s) then serving and previously designated by them shall be
renominated.
3.4 Removal and Vacancy. Except as otherwise provided in this Section
3, neither Technologies, Xxxxx, Tritium nor any Stockholder shall vote to remove
any member of the Board designated in accordance with the foregoing provisions
of this Section 3 unless the party who designated such director (the
"Designating Party") shall so vote or otherwise consent, and, if the Designating
Party shall so vote or otherwise consent, then the non-designating parties shall
likewise so vote. Each of Tritium, Technologies and the Stockholders shall vote
all Shares of TTI owned or controlled by Tritium, Technologies and such
Stockholders and Xxxxx shall vote all Preferred Shares owned by Xxxxx, in
accordance with each such new designation, and no such vacancy shall be filled
in the absence of a new designation by the original Designating Party.
3.5 Committee Designees. The Company agrees to designate both a Series
B Director and a Xxx Director to serve on the Compensation Committee of the
Board, and if such person is
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removed to elect another such member designated by the holders of the Series B
Preferred Stock or Xxxxxxx Xxx, as the case may be.
SECTION 4. Increase in Authorized Shares. Tritium, Technologies and the
Stockholders agree to vote all of the Shares now owned or hereafter acquired by
Tritium, Technologies or such Stockholder to effect any and all amendments to
the Certificate of Incorporation of TTI (the "Amendment") to increase the
authorized shares of capital stock to 80,000,000, consisting of 75,000,000
shares of Common Stock of TTI, $.001 par value per share, and 5,000,000 shares
of Preferred Stock of TTI, $.001 par value per share, which increase is
necessary to effect the transactions contemplated by the Asset Purchase
Agreement.
SECTION 5. Amendment to Option Plan. Tritium, Technologies and the
Stockholders hereby agree to vote all of the Shares now owned or hereafter
acquired by Tritium, Technologies or such Stockholder to amend TTI's 1997 Stock
Option Plan (the "Plan") to increase the number of shares of Common Stock, $.001
par value per share, authorized to be issued under the Plan from 600,000 to
3,000,000 shares.
SECTION 6. Duration of Agreement. The rights and obligations of each of
Tritium, Technologies, Xxxxx and Stockholder under this Agreement and the
covenants hereunder to Tritium, Technologies, Xxxxx and that Stockholder shall
terminate two (2) years from the date of TTI's next Annual Meeting of
Stockholders (but in no event later than December 31, 2002). Following the vote
with respect to the actions set forth in Section 4, this Agreement shall
terminate with respect to any shares which are sold by a party hereto on the
open market in a brokers' transaction which complies with Rule 144.
SECTION 7. Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce their 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 the parties 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 8. Successors and Assigns; Restrictions on Transfer. Except as
otherwise expressly provided herein, this Agreement shall bind and inure to the
benefit of TTI, Tritium, Technologies, Xxxxx, each of the Stockholders and the
respective successors or heirs and personal representatives and permitted
assigns of TTI, Tritium, Xxxxx, Technologies and each of the Stockholders.
Tritium and each Stockholder agrees further that, it shall not Transfer any
Shares to any Person not a party to this Agreement unless such Person
contemporaneously with such
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Transfer executes and delivers to TTI an agreement to be bound by Tritium and
the Stockholders' obligations hereunder, whereupon such Person shall have the
same obligations as Tritium and the Stockholders under this Agreement. Following
the vote with respect to the actions set forth in Section 4, nothing contained
in this Agreement shall be deemed to restrict the ability of any party to sell
his, her or its Shares on the open market in a brokers's transaction which
complies with Rule 144.
SECTION 9. Entire Agreement. This Agreement, the Asset Purchase
Agreement, the Charter and the By-Laws contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
stockholders' agreements and all other prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 10. 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, or telecopied, addressed or
telecopied to such party at the address or telecopier number set forth below, or
such other address or telecopier number as may hereafter be designated in
writing by the addressee; provided, however, that if the Stockholder is foreign,
notice shall be sent by both air courier and telecopied to such Stockholder:
(a) If to TTI, Technologies or Xxxxx:
Thinking Tools, Inc.
c/o Knoll Capital Management
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to Tritium or the Stockholders:
Tritium Network, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxx
Telecopier No.: (000) 000-0000
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with a copy to:
Cors & Xxxxxxx
000 Xxxx Xxxx Xxxx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
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, (b) in the case of telecopier transmission, on the date on which the
sender receives machine confirmation of such transmission, and (c) in the case
of mailing, on the fifth (5) Business Day following the date of such mailing.
For purposes of this Section 10, "Business Day" shall mean any day that is not a
Saturday or Sunday or a day when banks located in the City of New York are
authorized or required to be closed.
SECTION 11. 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, schedules, exhibits, certificates or other
documents provided for herein which are transmitted by facsimile, provided that
each party agrees to provide the original of any such faxed documents at the
request of any party.
SECTION 12. 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 13. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 14. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 15. 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.
THINKING TOOLS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
TRITIUM NETWORK, INC.
By: /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: President
THINKING TECHNOLOGIES, L.P.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: General Partner
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
GREEN VENTURES INVESTMENT TRUST I
By: /s/ C.T. Xxx
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Name: C.T. Xxx a/k/a Xxxx-Xxx Xxx
Title:
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GREEN VENTURES INVESTMENT TRUST II
By: /s/ Xxxxx Xxx aka Xxxxx S.C. Xxx
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Name: Xxxxx Xxx aka Xxxxx S.C. Xxx
Title:
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxx Xxx Xxxxxxx
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Xxxxxx Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
JASOCO, INC.
By: /s/ Xxxxxxx X. Xxxxxx, President
----------------------------------
Xxxxxxx X. Xxxxxx, President
/s/ Xxx Xxxxx
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Xxx Xxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxx Xxx
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Xxxxx Xxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx
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