CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement"), is made as of February
18, 2004, by and among Thinking Tools, Inc. (the "Company"), with an address at
000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, and Europa International,
Inc. ("Consultant"), with an address at c/o Knoll Capital Management, L.P., 000
Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Company desires to retain Consultant to render certain
consulting services to the Company, and Consultant desires to provide such
services to the Company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Appointment. The Company hereby engages Consultant and Consultant
agrees to render services to the Company as a consultant upon the terms and
conditions hereinafter set forth.
2. Services. During the term of this Agreement, Consultant shall advise
and consult with the Company with respect to the financial affairs of the
Company, its capitalization and the elimination of the liabilities of the
Company reflected on its balance sheet dated as of September 30, 2003 (the
"Liabilities").
3. Devotion of Time. The Consultant shall devote such time and resources
to the performance of its duties hereunder as the Consultant shall determine in
its sole and absolute discretion. Under no circumstances shall Consultant be
required to devote any minimum amount of time or resources to the performance of
such services.
4. Consideration for Services. As consideration for the services provided
by Consultant to the Company under this Agreement, the Company shall pay to the
Consultant 93% of the amount of all Liabilities eliminated from the Company's
balance sheet (other than as a result of the payment of such Liabilities by the
Company), provided, however, that the aggregate compensation to be paid to the
Consultant under this Agreement shall not exceed $195,000. Payments hereunder
shall be made from time to time as such Liabilities are so eliminated, and in
any event, such payments shall be made to the Consultant no later than five
business days after the earlier of (i) the Company's receipt of written
notification from its attorneys or independent accountants that such Liabilities
(or any portion thereof) are no longer enforceable and/or will no longer be
reflected in the Company's balance sheets, or (ii) the date the Company issues
or releases (including, without limitation, in any filing with the Securities
and Exchange Commission) any balance sheet that reflects the elimination of such
Liabilities (or any portion thereof).
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5. Term. This Agreement shall commence on the date hereof and shall expire
eighteen months from the date hereof, provided, however, that Consultant may
terminate this Agreement at any time providing written notice thereof to the
Company.
6. Modification of Agreement. No waiver or modification of this Agreement
or of any covenant, condition, or provision herein obtained shall be valid
unless in writing and duly executed by the party to be charged therewith.
7. Severability. In the event the provisions of this Agreement shall be
held to be invalid by any court of competent jurisdiction, the same shall be
deemed severable, and as never having been contained herein, and this Agreement
shall then be construed and enforced in accordance with the remaining provisions
hereof.
8. Assignment. No assignment by any of the parties of this Agreement, or
of any rights or obligations hereunder, shall be valid without the prior written
consent of the other parties hereto, provided that the Consultant may assign any
of its rights hereunder.
9. Notices. Whenever any parties desire or are required to give notice
hereunder to the other parties hereto, the same shall be in writing and shall be
deemed sufficiently "given" if delivered to such person or deposited in the
United States Mail, postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to which it is given at the address
for such party set forth on the first page hereof or at such other address as
such party shall give to the other party hereto by notice hereunder.
10. Governing Law. This Agreement and all matters concerning its
interpretation, performance, or the enforcement hereof, shall be governed in
accordance with the laws of the State of New York.
11. Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any court of competent
jurisdiction of the State of New York or any court of competent jurisdiction of
the United States of America sitting in the County of New York, State of New
York, and any appellate court thereof, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York state or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent either of them may legally and
effectively do so, any objection that either of them may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York state or federal court in New York
County. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
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IN WITNESS WHEREOF, the Parties have executed this Agreement or have
caused this Agreement to be duly executed by their respective authorized
officers as of the date hereof.
THINKING TOOLS, INC.
By:______________________________
Name:
Title:
EUROPA INTERNATIONAL, INC.,
By: Xxxxx Capital Management, L.P.,
its investment manager
By:__________________________
Name:
Title:
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