CONSENT, WAIVER AND AMENDMENT
Reference is hereby made to the Stock Purchase and Loan Agreement dated
as of September 26, 1994 (the "Stock Purchase Agreement") between THINKING
TECHNOLOGIES, L.P., by and through its general partner, ▇▇▇▇▇ Capital
Management, L.P. ("Technologies") and THINKING TOOLS, INC. (the "Company") and
the Bridge Loan Agreement dated as of July 1, 1996, by and between the Company
and ▇▇. ▇▇▇▇ ▇▇▇▇▇ on the one hand, and Technologies (the "Bridge Loan
Agreement" and together with the Stock Purchase Agreement the "Agreements").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreements.
WHEREAS, the Company proposes to offer 18.25 Units, each unit
consisting of a 10% Senior Secured Promissory Note in the
Principal Amount of $100,000 and Warrants to purchase 25,000
shares of Common Stock of the Company pursuant to a private
offering under Regulation D under the Securities Act of 1933
(the "Private Placement");
WHEREAS, following the consummation of the Private Placement,
the Company proposes to offer shares of Common Stock in an
initial public offering (the "IPO"); and
WHEREAS, Technologies has agreed to waive and amend certain
provisions of the Stock Purchase Agreement in connection with
the Private Placement and the IPO.
Now, therefore, the parties hereby agree as follows:
1. Prior to the closing of the Private Placement, the Company shall
merge into Thinking Tools, Inc., a Delaware corporation (the "Merger") and
Technologies hereby consents to the Merger pursuant to the terms of the
Agreement of Merger executed in connection therewith.
2. At the closing of the Private Placement, Technologies agrees that
(i) the Promissory Note (the "First Note") dated September 28, 1994, executed by
the Company in favor of Technologies in connection with the Stock Purchase
Agreement in the original principal amount of $1,200,000 shall be cancelled, and
accrued interest thereon in the amount of $120,310 shall be forgiven, and the
Note and accrued interest thereon shall be converted and exchanged for 263,158
shares of Common Stock, par value $.001 per share, of the Company to be issued
to Technologies by the Company (the "Conversion"), pursuant to a Plan of
Reorganization in the form of Exhibit A hereto; and (ii) the Company shall pay
to Technologies, an aggregate of $625,000 out of the proceeds of the Private
Placement, in full satisfaction of the Promissory Note (the "Second Note") dated
July 1, 1996, executed by the Company in favor of Technologies in connection
with the Bridge Loan Agreement in the original principal amount of $502,000 and
accrued interest in the aggregate principal amount of $123,000 due under the
First Note and the Second Note, and Technologies agrees to concurrently pay to
the Company such $625,000 amount in satisfaction of the purchase price of 6.25
Units to be purchased by Technologies in the Private Placement. Technologies
further agrees to deliver the original of the First Note and the Second Note for
cancellation at the closing of the Private Placement, to execute a UCC-3
Termination Statement to terminate the security interest granted in connection
with the First Note, and to execute such documents as may be necessary to
evidence the termination of the First Note and Second Note and to effect the
Conversion. The Company agrees to deliver a stock certificate to Technologies
representing the issuance of 263,158 shares of Common Stock, par value $.001 per
share, of the Company to Technologies, pursuant to the Conversion.
3. At the closing of the IPO, Technologies agrees that certain rights
and restrictions granted to Technologies pursuant to the Stock Purchase
Agreement shall be terminated in their entirety by amending the Stock Purchase
Agreement to delete Section 7.15, Section 9 and Section 10.7 of the Stock
Purchase Agreement which provisions shall be terminated and of no further force
or effect following the closing of the IPO.
4. Technologies hereby consents to the consummation of each of the
Private Placement and the IPO and waives any conflicts or breaches which may
arise under the Agreements as a result of such transactions.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
this 31st day of August, 1996.
THINKING TECHNOLOGIES, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: Title
Title: President
THINKING TOOLS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chairman of the Board
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