Exhibit 4
AGREEMENT
AGREEMENT dated as of January 10, 2002, by and among Xxxxxxx Xxx (the
"Stockholder") and Thinking Technologies, L.P. ("Technologies").
W I T N E S S E T H
WHEREAS, the Stockholder is the beneficial owner of 677,224.64 shares
(the "Shares") of Series A Convertible Preferred Stock, $.001 par value per
share (the "Preferred Stock") of Thinking Tools, Inc. , a Delaware corporation
(the "Company"); and
WHEREAS, Technologies is the holder of a certain Demand Convertible
Grid Note (the "Note"), made by the Company in favor of Technologies, with an
unpaid principal amount as of the date hereof of approximately $900,000.00; and
WHEREAS, the Stockholder and Technologies are parties to that certain
Voting Agreement (the "Voting Agreement") dated as of March 7, 2000, by and
among the Company, Technologies, Xxxx Xxxxx, Tritium Network, Inc., a Delaware
Corporation ("Tritium") and the stockholders of Tritium whose names appear on
the signature pages thereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto do hereby
agree as follows:
SECTION 1. COVENANT OF TECHNOLOGIES. Technologies hereby covenants and
agrees that it will (i) convert the Note to capital stock of the Company on the
terms agreed to by Technologies and the Board of Directors of the Company and,
upon conversion of the Note, cancel any and all pledges by Stockholder of the
Shares to secure the Note immediately following the execution of this Agreement;
(ii) in connection with the Amendments provided for in Section 2, cause the
Company to include in the Amendments an increase to the number of authorized
shares of common stock of the Company to that number that is sufficient to
permit, in addition to any other requirements for shares of common stock (e.g.,
to satisfy the exercise of outstanding stock options, the conversion of another
class of preferred stock, the conversion of outstanding debt and the
consummation of existing agreements), the conversion of all of the outstanding
shares of Preferred Stock to shares of common stock immediately after the
adoption of the Amendments; and (iii) vote all of Technologies shares in favor
of the amendment to so increase the number of authorized shares of common stock
and in favor of the Amendments.
SECTION 2. COVENANTS OF THE STOCKHOLDER. (a) The Stockholder hereby
covenants and agrees that at next meeting of the stockholders of the Company, or
the next time at which stockholders of the Company shall have the right to vote
for or consent, as the case may be, to amendments (the "Amendments") to the
Company's Certificate of Incorporation that would (i) eliminate the right of the
holders of the Preferred Stock to receive dividend payments (including dividend
payments that have accrued but remain unpaid) as a result of such shares not
being converted into shares of the Company's common stock by March 7, 2001;
and/or (ii) reduce the number of shares of common stock into which each share of
Preferred Stock is convertible into from ten (10) to two and one half (2.5) (or
a number greater than 2.5), the Stockholder shall vote all of the Shares in
favor of all of such Amendments.
(b) The Stockholder further agrees (i) to vote in favor of any
amendment to the Voting Agreement which deletes and/or amends Section 3.1(c)
thereof, thereby eliminating the Stockholder's rights to designate directors of
the Company, and (ii) pending such amendment and/or deletion, that he shall only
designate such persons to serve as directors of the Company under Section 3.1(c)
of the Voting Agreement as shall be consented to in writing by Technologies.
(c) The Stockholder further agrees that he will not transfer the Shares
to any party other than Technologies unless and until such transferee shall have
executed and delivered to Technologies a joinder agreement, in form and
substance acceptable to Technologies, pursuant to which such transferee agrees
to be bound by this Agreement in the same manner as the Stockholder; provided,
however, that this restriction on the transfer of the Shares shall terminate
upon the later of such time (i) as the Preferred Stock is converted into shares
of Common Stock, or (ii) when all of the covenants and obligations of the
Stockholder under this Agreement have been performed.
(d) The obligations of the Stockholder under this Agreement shall
terminate two years from the date of this Agreement.
SECTION 3. 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 other party 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 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 in violation of the provisions of this Agreement shall
be void ab initio.
SECTION 4. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of Technologies and the Stockholder and their respective
successors or heirs and personal representatives and permitted assigns.
SECTION 5. 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. It his hereby acknowledged
by the parties hereto that this Agreement does not in any manner amend the
Voting Agreement or relieve the Stockholder of any of its obligations
thereunder.
SECTION 6. COUNTERPARTS. 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.
SECTION 7. 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.
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SECTION 8. INTERDEPENDENCE OF COVENANTS. The failure of either party to
perform all of such party's covenants under this Agreement shall relieve the
other party from the obligation to perform such other party's covenants. If such
other party has already fully performed its or his covenants, then this
provision shall not in any way limit such other party's rights and remedies to
enforce this Agreement at law or in equity.
SECTION 9. 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.
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 TECHNOLOGIES, L.P.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
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