EXHIBIT 10.20
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement"), dated as of February 27,
2004, is between Applix, Inc., a Massachusetts corporation (the "Company"), and
Xxxxxxx X. Dryer (the "Buyer").
WHEREAS, the Company desires to sell and the Buyer desires to purchase
shares of common stock of the Company, $.0025 par value per share ("Applix
Common Stock"), on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth and good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION I
PURCHASE AND SALE OF SHARES
1.01 Sale of Shares. The Company agrees to sell, assign, transfer
and deliver to the Buyer on the Closing Date (as defined below) 328,947 shares
of Applix Common Stock (the "Shares"), and the Buyer agrees to purchase the
Shares from the Company on the Closing Date, pursuant to this Agreement.
1.02 Purchase Price. In full consideration of the sale of the
Shares by the Company, the Buyer shall pay to the Company on the Closing Date
$4.56 per share, which represents the average of the last reported sales price
per share of Applix Common Stock on the NASDAQ SmallCap Market over the five
consecutive trading days ending on the date prior to the Closing Date, or a
total of $1,499,998.32. The purchase price shall be paid by the wire transfer of
immediately available funds to an account designated by the Company.
1.03 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on the date hereof (the "Closing
Date"). The Company shall deliver to the Buyer a stock certificate representing
the Shares, against payment of the aggregate purchase price in accordance with
Section 1.02 of this Agreement, as soon as practicable after the Closing, but in
no event more than one week after the Closing Date.
SECTION II
REPRESENTATIONS AND WARRANTIES OF THE BUYER
In order to induce the Company to sell the Shares, the Buyer represents
and warrants to the Company as follows:
2.01 Investor Representations.
(a) The Buyer is acquiring the Shares for his own account
for investment only, and not with a view to, or for sale in connection with, any
distribution of the Shares in violation of the Securities Act of 1933 (the
"Securities Act"), or any rule or regulation under the Securities Act.
(b) The Buyer has had adequate opportunity to obtain from
representatives of the Company such information about the Company as is
necessary for the Buyer to evaluate the merits and risks of the acquisition of
the Shares.
(c) The Buyer has sufficient expertise in business and
financial matters to be able to evaluate the risks involved in the acquisition
of the Shares and to make an informed investment decision with respect to such
acquisition.
(d) The Buyer understands that the Shares have not been
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; and the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available.
(e) A legend substantially in the following form will be
placed on the certificate(s) representing the Shares:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, transferred or otherwise disposed of in the
absence of an effective registration statement under such Act
or an opinion of counsel satisfactory to the corporation to
the effect that such registration is not required."
2.02 Noncontravention. Subject to compliance with the applicable
requirements of the Securities Act, any applicable state securities laws and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), neither the
execution and delivery by the Buyer of this Agreement, nor the consummation by
the Buyer of the transactions contemplated hereby, will (a) require on the part
of the Buyer any filing with, or permit, authorization, consent or approval of,
any court, arbitrational tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, (b) conflict with, result in
breach of, constitute (with or without due notice or lapse of time or both) a
default under, or require any notice, consent or waiver under, any contract or
instrument to which the Buyer is a party or by which he is bound or to which any
of his assets are subject, except for (i) any conflict, breach or default which
would not adversely affect the consummation of the transactions contemplated
hereby or (ii) any notice, consent or waiver the absence of which would not
adversely affect the consummation of the transactions contemplated hereby, or
(c) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Buyer or any of his properties or assets.
2.03 Brokers. The Buyer has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Buyer to purchase the Shares, the Company
represents and warrants to the Buyer as follows:
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3.01 Organization, Qualification and Corporate Power. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts. The Company is duly qualified to
conduct business and is in corporate good standing under the laws of each
jurisdiction in which the nature of its businesses or the ownership or leasing
of its properties requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company's business, assets, condition (financial or otherwise) or results of
operation (a "Company Material Adverse Effect"). The Company has all requisite
corporate power and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it. The Company has
furnished or made available to the Buyer complete and accurate copies of its
Articles of Organization and By-laws.
3.02 Capitalization. The authorized capital stock of the Company
consists of (a) 30,000,000 shares of Applix Common Stock, of which 13,113,886
shares were issued and outstanding as of January 31, 2004, and (b) 1,000,000
shares of preferred stock, $.01 par value per share, of which no shares are
issued or outstanding. The rights and privileges of each class of the Company's
capital stock are set forth in the Company's Articles of Organization. All of
the Shares will be, when issued on the terms and conditions of this Agreement,
duly authorized, validly issued, fully paid and nonassessable and not subject to
or issued in violation of any purchase option, call option, right of first
refusal, preemptive right, subscription right or any similar right under any
provision of the Company's Articles of Organization or By-laws or any agreement
to which the Company is a party or is otherwise bound.
3.03 Authorization of Transaction. The Company has all requisite
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action
on the part of the Company. This Agreement has been duly and validly executed
and delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against it in accordance with its terms.
3.04 Noncontravention. Subject to compliance with the applicable
requirements of the Securities Act, any applicable state securities laws and the
Exchange Act, neither the execution and delivery by the Company of this
Agreement, nor the consummation by the Company of the transactions contemplated
hereby, will (a) conflict with or violate any provision of the Articles of
Organization or By-laws of the Company, (b) require on the part of the Company
any filing with, or permit, authorization, consent or approval of, any court,
arbitrational tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, (c) conflict with, result in
breach of, constitute (with or without due notice or lapse of time or both) a
default under, or require any notice, consent or waiver under, any contract or
instrument to which the Company is a party or by which it is bound or to which
any of its assets are subject, except for (i) any conflict, breach or default
which would not adversely affect the consummation of the transactions
contemplated hereby or (ii) any notice, consent or waiver the absence of which
would not adversely affect the consummation of the transactions contemplated
hereby, or (d) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company of any of its properties or assets.
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3.05 Reports and Financial Statements. The Company has previously
furnished or made available to the Buyer complete and accurate copies, as
amended or supplemented, of the Company' Annual Report on Form 10-K for the
fiscal year ended December 31, 2002, as filed with the Securities and Exchange
Commission, and all other reports filed by the Company under Section 13 or
subsections (a) or (c) of Section 14 of the Exchange Act with the Securities and
Exchange Commission since March 31, 2003, each as amended to date (the "Company
Reports"). The Company Reports constitute all of the documents required to be
filed by the Company under Section 13 or subsections (a) or (c) of Section 14 of
the Exchange Act with the SEC from March 31, 2003 through the date of this
Agreement. The audited financial statements and unaudited interim financial
statements of the Company (as amended) included in the Company Reports (i)
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Securities and
Exchange Commission with respect thereto, (ii) were prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered thereby
(except as may be indicated therein or in the notes thereto, and in the case of
quarterly financial statements, as permitted by Form 10-Q under the Exchange
Act), and (iii) fairly present the consolidated financial condition, results of
operations and cash flows of the Company as of the respective dates thereof and
for the periods referred to therein.
3.06 Brokers. The Company has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
SECTION IV
MISCELLANEOUS
4.01 Entire Agreement. This Agreement sets forth the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements between them, whether written or oral, with
respect to its subject matter.
4.02 Governing Law. This Agreement and the rights and obligations
of the parties under it shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Massachusetts, without giving
effect to the rules and principles of conflicts of laws thereof.
4.03 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
APPLIX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
/s/ Xxxxxxx X. Dryer
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Xxxxxxx X. Dryer
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