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Exhibit 10.1
PLEDGE AGREEMENT
This is a pledge agreement made as of the 31st day of July, 2000 between
Alan Goldsworthy, an individual residing at 282 Commonwealth Ave., Newton, MA
02467 ("Pledgor") and Applix, Inc., a corporation organized under the laws of
Massachusetts with its principal office at 112 Turnpike Road, Westboro, MA 01581
("Pledgee").
WITNESSETH:
WHEREAS, Pledgor has executed and delivered a secured promissory note (the
"Note") of even date herewith in the original principal amount of $225,001.88
payable to the Pledgee; and
WHEREAS, the Pledgor is the owner of the shares of common stock of the
Pledgee as set forth on EXHIBIT A attached hereto (the "Pledged Shares") and
WHEREAS, as collateral security for the obligations of the Pledgor under
the Note, the Pledgor has agreed to pledge and grant to the Pledgee a first
priority security interest in the Pledged Shares, as more fully set forth
herein;
NOW THEREFORE, the parties hereto agree and acknowledge that the foregoing
recitals are true and correct and to the following:
1. PLEDGE OF SHARES. As security for the full payment and performance of
the obligations of the Pledgor under the Note (the "Obligations"), the Pledgor
hereby pledges and grants to the Pledgee a security interest in and to all of
the Pledged Shares along with any and all stock rights, powers and other
distributions, dividends or proceeds in respect thereof (the "Shares").
2. DELIVERY OF THE SHARES. The Shares have been delivered to the Pledgee on
the date hereof, together with undated stock powers executed in blank. So long
as the Pledgor is not in default pursuant to Section 7 of this Agreement, the
Pledgee shall release to the Pledgor or his broker, that number of shares as
have been sold by the Pledgor, upon delivery in cash (or other form acceptable
to the Pledgee) of the purchase price for such Shares (minus any brokers
commissions or fees) for application to the Pledgor's obligation under the Note.
Upon payment in full of the Note, the Pledgee shall return to the Pledgor the
Shares, undated stock powers as well as such other instruments, documents, stock
certificates, money and goods as may come into Pledgee's possession pursuant to
this Pledge Agreement from time to time, whether through delivery by Pledgor or
otherwise.
3. PLEDGEE'S RIGHTS AND DUTIES WITH RESPECT TO THE SHARES. Pledgee's only
duty with respect to the Shares shall be to exercise reasonable care to secure
the safe custody thereof, all other duties being hereby expressly disclaimed.
Pledgee shall have the right but not the obligation to (a) demand, sue for,
receive and collect all money or money damages payable on account of any Shares,
(b) protect, preserve or assert any other rights of Pledgor or take any other
action with respect to the Shares, (c) pay any taxes, liens, assessments,
insurance premiums or other charges pertaining to Shares. Any expenses incurred
by Pledgee under the preceding
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sentence shall be paid by Pledgor upon demand, become part of the Obligations
secured by the Shares and bear interest at the Default Rate provided in the Note
until paid. Pledgee shall be relieved of all responsibility for the Shares upon
surrendering them to Pledgor.
4. PLEDGOR'S WARRANTIES AND INDEMNITY. Pledgor represents, warrants and
covenants (a) that he is and will be the lawful owner of the Shares, (b) that
the Shares are and will be fully paid and non-assessable, (c) that the Shares
are and will remain free and clear of all liens, encumbrances and security
interests other than the security interest granted by Pledgor hereunder, (d)
that the Shares are not subject to any outstanding rights of redemption or
options to purchase or sell, (e) that Pledgor has the sole right and lawful
authority to pledge the Shares and otherwise to comply with the provisions
hereof, (f) no litigation is pending or threatened against the Pledgor, which if
adversely determined, would have a material adverse effect against the Pledgor
or the Pledgee's rights in respect of the Shares, (g) that the Pledgor agrees to
defend the Pledgee's title in the Shares and the security interest therein
against any and all claims and demands, and (h) this Pledge Agreement
constitutes the legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms. In the event that any adverse
claim is asserted in respect of the Shares or any portion thereof, except such
as may result from an act of Pledgee not authorized hereunder, Pledgor promises
and agrees to indemnify Pledgee and hold Pledgee harmless from and against any
losses, liabilities, damages, expenses, costs and reasonable counsel fees
incurred by Pledgee in exercising any right, power or remedy of Pledgee
hereunder or defending, protecting or enforcing the security interests created
hereunder. Any such loss, liability or expense so incurred shall be paid by
Pledgor upon demand, become part of the Obligations secured by the Shares and
bear interest at the Default Rate provided in the Note until paid.
5. VOTING OF SHARES. While Pledgor is not in default hereunder, Pledgor may
vote the Shares, provided that such voting shall be in conformity with the
Pledgor's performance under this Pledge Agreement and the Note.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. While Pledgor is not in default
hereunder, Pledgor may receive cash dividends, payments of principal and
interest, and other cash distributions (other than liquidating distributions)
payable with respect to Shares, provided, however, that Pledgor shall
immediately inform Pledgee of the receipt of any such dividend, payment or other
distribution and shall hold the amount thereof in trust for Pledgee unless and
until Pledgee shall in writing release Pledgor from such trust. Pledgor shall
cause all non-cash dividends, liquidating distributions and other distributions
with respect to Shares to be distributed directly to Pledgee, to be held by
Pledgee as additional Shares, and if any such distribution is made to Pledgor,
Pledgor shall receive such distribution in trust for Pledgee and shall
immediately transfer it to Pledgee.
7. PLEDGOR'S DEFAULT. Pledgor shall be in default hereunder upon the
occurrence of any of the following events:
(a) Any Event of Default (as defined in the Note) shall occur;
(b) If Pledgor dies or becomes incapacitated, or if a conservator or
guardian of Pledgor is appointed, or if Pledgor suffers any other legal
disability;
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(c) If any lien, encumbrance or adverse claim of any nature whatsoever
is asserted with respect to any Shares;
(d) If any representation or warranty of Pledgor hereunder is or shall
become false; or
(e) If Pledgor fails to fulfill any obligation hereunder.
8. PLEDGEE'S RIGHTS UPON DEFAULT. Upon the occurrence of any default as
defined in the preceding section, Pledgee may, if Pledgee so elects in its sole
option:
(a) at any time and from time to time, sell, assign and deliver the
whole or any of the Shares, or interest therein, at a sale through a broker in a
public market where securities of the type constituting such Shares are usually
traded, without any advertisement, presentment, demand for performance, protest,
notice of protest, notice of dishonor or any other notice, except to the extent
otherwise required by applicable law;
(b) at any time and from time to time sell, assign and deliver all or
any of the Shares, or any interest therein, at any other public or private sale,
for cash, on credit or for other property, for immediate or future delivery
without any assumption of credit risk, and for such price or prices and on such
terms as Pledgee in its absolute discretion may determine, PROVIDED that (i) at
least ten days' notice of the time and place of any such sale shall be given to
Pledgor, and (ii) in the case of any private sale, such notice shall also
contain the minimum terms of the proposed sale;
(c) exercise the right to vote, the right to receive cash dividends
and other distributions, and all other rights with respect to the Shares as
though Pledgee were the absolute owner thereof, whether or not such rights were
retained by Pledgor as against Pledgee before default; and
(d) exercise all other rights available to a secured party under the
Uniform Commercial Code and other applicable law.
9. APPLICATION OF SALE PROCEEDS. In the event of a sale of Shares, the
proceeds shall first be applied to the payment of the expenses of the sale,
including brokers' commissions, counsel fees, any taxes or other charges imposed
by law upon the Shares or the transfer thereof and all other charges paid or
incurred by Pledgee pertaining to the sale; and, second, to satisfy outstanding
Obligations, in the order in which Pledgee elects in its sole discretion; and,
third, the surplus (if any) shall be paid to Pledgor.
10. NOTICES. All notices made or required to be made hereunder shall be
sent by United States first class or certified or registered mail, with postage
prepaid, or delivered by hand to Pledgee or to Pledgor at the addresses first
above written.
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11. HEIRS, SUCCESSORS, ETC. This Pledge Agreement and all of its terms and
provisions shall benefit and bind the heirs, successors, assigns, transferees,
executors and administrators of each of the parties hereto.
12. PLEDGEE'S FORBEARANCE. Any forbearance, failure or delay by Pledgee in
exercising any right, power or remedy hereunder shall not be deemed a waiver of
such right, power or remedy. Any single or partial exercise of any right, power
or remedy of Pledgee shall continue in full force and effect until such right,
power or remedy is specifically waived in writing by Pledgee.
13. FURTHER ASSURANCES. The Pledgor covenants and agrees to execute and
deliver, or cause to be executed or delivered, all such other stock powers,
proxies, instruments, and documents, and will take such other action or actions
as the Pledgee may reasonably request from time to time in order to carry out
the provisions and purposes hereof.
14. TERMINATION. This Agreement and the pledge and security interest
represented hereby shall terminate upon the indefeasible payment in full of the
Obligations.
15. MISCELLANEOUS.
(a) This Agreement or any part hereof cannot be changed, waived, or
amended except by an instrument in writing signed by Pledgee; and waiver on one
occasion shall not operate as a waiver on any other occasion.
(b) The Uniform Commercial Code and other laws of the Commonwealth of
Massachusetts shall govern the construction and enforcement of this Agreement.
(c) If any part of this Agreement or any agreement, document, or
instrument executed in connection herewith shall be deemed invalid or
unenforceable by a court of competent jurisdiction, the remaining provisions
shall remain in full force and effect, and shall continue to be binding upon the
parties.
16. JURISDICTION. The Pledgor irrevocably submits to the jurisdiction of
the courts of the Commonwealth of Massachusetts and the United States District
Court for the District of Massachusetts for the purpose of any suit, action or
other proceeding brought by the Pledgee arising out of or relating to this
Pledge Agreement, and the Pledgor waives and agrees not to assert by way of
motion, as a defense or otherwise in any such suit, action or proceeding, any
claim that the Pledgor is not personally subject to the jurisdiction of the
courts of the Commonwealth of Massachusetts or the United States District Court
for the District of Massachusetts or that the Pledgor's property is exempt or
immune from execution or attachment, either prior to judgment or in aid of
execution, that the suit, action or proceeding is improper, or that this Pledge
Agreement or the subject matter hereof may not be enforced in or by such court.
THE PLEDGOR HEREBY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING IN CONNECTION WITH ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH.
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EXECUTED under seal at Westboro, Massachusetts as of the date first above
written.
PLEDGOR:
/s/ Alan Goldsworthy
Alan Goldsworthy
PLEDGEE:
APPLIX, INC.
By: Edward Terino
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Name: Ed Terino
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Title: CFO
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EXHIBIT A TO PLEDGE AGREEMENT DATED JULY 31, 2000
51,429 shares of Common Stock of Applix, Inc., a Massachusetts corporation.
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SECURED PROMISSORY NOTE
July 31, 2000
$225,001.88 Westboro, Massachusetts
FOR VALUE RECEIVED, Alan Goldsworthy (the "Maker"), promises to pay to
Applix, Inc. ("Applix"), or order, at the offices of Applix or at such other
place as the holder of this Note may designate, the principal sum of
$225,001.88, together with interest on the unpaid principal balance of this Note
from time to time outstanding at the rate of six (6)% per year, compounded
annually until paid in full. Principal and interest shall be due and payable on
July 31, 2005. Any and all unpaid amounts hereunder, whether for principal,
interest or other charges shall be due and payable on July 31, 2005. In the
event that the Maker sells any Shares (as defined in the Pledge Agreement (as
defined below)) prior to July 31, 2005, the net proceeds from such sale shall
become immediately due and payable without notice or demand.
Interest on this Note shall be computed on the basis of a year of 365 days
for the actual number of days elapsed. All payments by the Maker under this Note
shall be in immediately available funds.
Payment of this Note is secured by a security interest in certain property
of the Maker (the "Collateral") pursuant to a pledge agreement of even date
herewith between the Maker and Applix (the "Pledge Agreement").
This Note shall become immediately due and payable without notice or demand
upon the occurrence at any time of any of the following events of default
(individually, "an Event of Default" and collectively, "Events of Default"):
(1) default in the payment or performance of this or any other liability
or obligation of the Maker to the holder, including the payment when
due of any principal, premium or interest under this Note;
(2) the voluntary termination of the Maker's employment with Applix or the
termination by Applix of the Maker's employment for Cause. For the
purposes of this Note, "Cause" shall mean (a) a good faith finding by
Applix that (i) the Maker has failed to perform his or her assigned
duties for Applix and has failed to remedy such failure within 10 days
following written notice from Applix to the Maker notifying him or her
of such failure, or (ii) the Maker has engaged in dishonesty, gross
negligence or misconduct, or (b) the conviction of the Maker of, or
the entry of a pleading of guilty or nolo contendere by the Maker to,
any crime involving moral turpitude or any felony;
(3) the occurrence of any event of default under the Pledge Agreement;
(4) the institution by or against the Maker or any indorser or guarantor
of this Note of any proceedings under the United States Bankruptcy
Code or any other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law affecting the rights of
creditors generally or the making by the Maker or any
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indorser or guarantor of this Note of a composition or an assignment
or trust mortgage for the benefit of creditors; or
Upon the occurrence of an Event of Default, the holder shall have then, or
at any time thereafter, all of the rights and remedies afforded by the Uniform
Commercial Code as from time to time in effect in the Commonwealth of
Massachusetts or afforded by other applicable law.
Every amount overdue under this Note shall bear interest from and after the
date on which such amount first became overdue at an annual rate which is two
(2) percentage points above the rate per year specified in the first paragraph
of this Note (the "Default Rate"). Such interest on overdue amounts under this
Note shall be payable on demand and shall accrue and be compounded monthly until
the obligation of the Maker with respect to the payment of such interest has
been discharged (whether before or after judgment).
In no event shall any interest charged, collected or reserved under this
Note exceed the maximum rate then permitted by applicable law and if any such
payment is paid by the Maker, then such excess sum shall be credited by the
holder as a payment of principal.
All payments by the Maker under this Note shall be made without set-off or
counterclaim and be free and clear and without any deduction or withholding for
any taxes or fees of any nature whatever, unless the obligation to make such
deduction or withholding is imposed by law. The Maker shall pay and save the
holder harmless from all liabilities with respect to or resulting from any delay
or omission to make any such deduction or withholding required by law.
Whenever any amount is paid under this Note, such amount shall be applied
to first to interest, and then, to the extent the then outstanding interest has
been fully paid, to principal. Notwithstanding the foregoing sentence, at any
time after an Event of Default, the holder may apply any amounts paid under this
Note thereafter to principal, premium or interest, in such order and manner as
shall be determined by the holder in its discretion.
No reference in this Note to the Pledge Agreement or any guaranty shall
impair the obligation of the Maker, which is absolute and unconditional, to pay
all amounts under this Note strictly in accordance with the terms of this Note.
The Maker agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, incurred by the holder in enforcing the obligations
of the Maker under this Note.
No delay or omission on the part of the holder in exercising any right
under this Note or the Pledge Agreement shall operate as a waiver of such right
or of any other right of such holder, nor shall any delay, omission or waiver on
any one occasion be deemed a bar to or waiver of the same or any other right on
any future occasion. The Maker and every indorser or guarantor of this Note
regardless of the time, order or place of signing waives presentment, demand,
protest and notices of every kind and assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange or
release of collateral, and to the addition or release of any other party or
person primarily or secondarily liable.
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This Note may be prepaid in whole or in part at any time or from time to
time upon five (5) days' prior written notice to the holder. Any such prepayment
shall be without premium or penalty.
None of the terms or provisions of this Note may be excluded, modified or
amended except by a written instrument duly executed on behalf of the holder
expressly referring to this Note and setting forth the provision so excluded,
modified or amended.
All rights and obligations hereunder shall be governed by the laws of the
Commonwealth of Massachusetts and this Note is executed as an instrument under
seal.
/s/ Alan Goldsworthy
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Alan Goldsworthy
Attest:
/s/ Edward Hurley-Wales
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Name: Edward Hurley-Wales
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