Promissory Note - MathSoft Inc. and Charles J. Digate
PROMISSORY NOTE
$550,000.00 June 20, 2000
For value received, the undersigned, Charles J. Digate (the "Obligor"),
hereby promises to pay to the order of MathSoft, Inc., a Massachusetts
corporation (the "Corporation"), at its principal office at 101 Main Street,
Cambridge, MA 02142, or at such other place as may be designated from time to
time in writing by the Corporation, the principal sum of Five Hundred Fifty
Thousand Dollars and No Cents ($550,000.00) and interest at the rate of 8% per
annum during the initial period through June 19, 2002, and thereafter at a per
annum rate equal to the prime rate as announced from time to time by Fleet Bank.
Notwithstanding any other provision of this Promissory Note (the "Note"), the
Corporation does not intend to charge and Obligor shall not be required to pay
any interest or other fees or charges in excess of the maximum permitted by
applicable law; any payments in excess of such maximum shall be refunded to
Obligor or credited to reduce principal hereunder. All payments received by the
Corporation hereunder will be applied first to costs of collection, if any, then
to interest and the balance to principal. This Note shall be payable in lawful
money of the United States of America. This Note is secured and entitled to the
benefits of a Pledge Agreement between the Obligor and the Corporation dated as
of the date hereof (the "Pledge Agreement") pursuant to which the Obligor has
pledged securities or collateral for one-half of the amount due and payable on
this Note at any time.
Interest shall be due and payable annually on each annual anniversary date
of this Note. Interest shall be calculated on the basis of the actual number of
days elapsed over a year of 360 days.
From and after June 19, 2002, this Note may be callable at any time by the
Corporation and shall be payable within five (5) days of the issuance of a
written demand by the Corporation addressed to the address of the Obligor shown
on the signature page hereof; provided, however, that if the Obligor shall die
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at any time prior to the issuance of a written demand by the Corporation for
payment or the occurrence of any Event of Default, then the maturity date of
this Note shall become the fifth anniversary of the date of the Obligor's death.
If any day on which a payment is due pursuant to the terms of this Note is
not a day on which banks in the Commonwealth of Massachusetts are generally open
(a "Business Day"), such payment shall be due on the next Business Day.
This Note may be prepaid at any time, without premium or penalty, in whole
or in part. Any prepayment of principal shall be accompanied by a payment of
accrued interest in respect of the principal being prepaid.
This Note or any portion hereof may, at the election of the holder of this
Note, be declared, without prior notice of any kind, to be immediately due and
payable prior to and on or after June 19, 2002, upon or any time after the sale
of 275,000 shares of the Corporation's Common Stock or any portion thereof
issued to the Obligor on the date hereof upon partial exercise of that certain
Non-Qualified Stock Option Agreement between the Obligor and the Corporation
dated as of September 9, 1994.
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Upon the occurrence of any Event of Default, as defined below, the
Corporation may declare any or all unpaid principal, accrued interest or other
amounts payable hereunder from Obligor to Corporation immediately due and
payable without presentment, demand, protest or notice.
"Event of Default" shall mean: (1) failure to pay any amount or perform any
obligation as set forth herein or in the Pledge Agreement, which is not cured
within thirty (30) days after written notice of such default from Corporation
(other than the payment due five (5) days after the permissible demand therefor
by the Corporation); (2) insolvency (however evidenced) or the commission of any
act of insolvency; (3) the making of a general assignment for the benefit of
creditors; (4) the filing of any petition or the commencement of any proceeding
by Obligor or any endorser of this Note for any relief under any bankruptcy or
insolvency laws; (5) the filing of any petition or the commencement of any
proceeding against Obligor for any relief under any bankruptcy or insolvency
laws, which proceeding is not dismissed within sixty (60) days; or (6) the past
or future making of a false representation or warranty by Obligor in connection
with any loan or loans by the Corporation, including as set forth in this Note
or in the Pledge Agreement.
If this Note is not paid in accordance with its terms, Obligor shall pay to
Corporation upon its demand therefor, in addition to principal, accrued interest
and other amounts payable hereunder, all costs of collection of the principal,
accrued interest, and such other amounts including, but not limited to,
reasonable attorneys' fees, court costs and other costs for the enforcement of
payment of this Note.
No waiver of any obligation of Obligor under this Note shall be effective
unless it is in a writing signed by Corporation. A waiver by the Corporation of
any right or remedy under this Note on any occasion shall not be a bar to
exercise of the same right or remedy on any subsequent occasion or of any other
right or remedy at any time.
Any notice required or permitted under this Note shall be in writing and
shall be deemed to have been given on the date of delivery, if personally
delivered to the party to whom notice is to be given, or on the second business
day after mail-ing, if mailed to the party to whom notice is to be given, by
certified mail, return receipt requested, postage prepaid, or overnight courier
and addressed to the addressee at the address of the addressee set forth herein,
or to the most recent address, specified by written notice, given to the sender
pursuant to this paragraph.
This Note is delivered in and shall be enforceable in accordance with the
laws of the Commonwealth of Massachusetts, and shall be construed in accordance
therewith, and shall have the effect of a sealed instrument.
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Obligor hereby expressly waives presentment, demand, and protest, notice of
demand, dishonor and nonpayment of this Note, and all other notices or demands
of any kind in connection with the delivery, acceptance, performance, default or
enforcement hereof, and hereby consents to any delays, extensions of time,
renewals, waivers or modifications that may be granted or consented to by the
holder hereof with respect to the time of payment or any other provision hereof.
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, in whole or in part or
in any respect, or in the event that any one or more of the provisions of this
Note operate or would prospectively operate to invalidate this Note, then and in
any such event, such provision(s) only shall be deemed null and void and shall
not affect any other provision of this Note and the remaining provisions of this
Note shall remain operative and in full force and effect and in no way shall be
affected, prejudiced, or disturbed thereby.
Attested: OBLIGOR:
By: /s/ Dermot P. O'Grady By: /s/ Charles J. Digate
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Name: Dermot P. O'Grady Name: Charles J. Digate
Title: Chief Financial Officer