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EXHIBIT 99.2
[Excerpted from Share Exchange Agreement dated as of May 29, 1998
between Aspen Technology, Inc., Treiber Controls Inc. and Xx. Xxxxxx Xxxxxxx]
6. REGISTRATION RIGHTS
6.1. REGISTRATION STATEMENT. After the Publication Date, AspenTech shall
either, at the Stockholder's option, (i) prepare and file with the
SEC a registration statement on Form S-3 (a "Shelf Registration")
that shall register under the Securities Act the Registrable Shares
within ten days of the Publication Date, or (ii) include the
Registrable Shares in an underwritten public offering of Aspen
Common conducted by AspenTech for its own account or the account of
other security holders of AspenTech on or before September 25, 1998
(a "Piggyback Underwriting") (the registration statements filed
under either the Shelf Registration or Piggyback Underwriting
collectively called the "Registration Statements"). A Piggyback
Underwriting shall not include (a) a registration on Form S-4 or S-8
(or any successor form), (b) a registration on any form that does
not include substantially the same information as would be required
to be included in a Registration Statement covering the sale of
[Registrable Shares], or (c) a registration relating solely to
securities of AspenTech convertible into Aspen Common or as to which
Aspen Common may be issued upon exercise of rights thereunder and to
the Aspen Common issuable upon conversion or exercise thereof. If
Stockholder notifies AspenTech of his election for either a Shelf
Registration or Piggyback Underwriting by August 1, 1998, AspenTech
shall use its reasonable efforts to register the Registrable Shares
under clause (i) above by August 20, 1998 or clause (ii) above, as
the case may be, by September 25, 1998. In the event of a Shelf
Registration, AspenTech agrees to use reasonable efforts to keep
such registration statement continuously effective for a period of
ninety (90) days after its effective date. The Stockholder shall
furnish all information that AspenTech may reasonably request in
connection with the foregoing registration or any other filings
required to be made in connection with this transaction. AspenTech
shall, within fifteen (15) days of the Closing Date, list the
Exchanged Shares on NASDAQ.
6.2 OBLIGATIONS OF ASPENTECH.
a. In connection with registrations under this Section, and
subject to the limitations of this Section, AspenTech shall:
i. use its reasonable efforts to keep the registration
statement filed in connection with a Shelf Registration
effective as provided therein;
ii. prepare and file with the SEC such amendments and
supplements to such registration statements and the
prospectuses used in connection therewith as may be
necessary, and comply with the provisions of the
Securities Act with respect to the sale or other
disposition of all Registrable Shares registered in such
registration statements;
iii. furnish to the Stockholder such number of copies of any
prospectus (including any preliminary prospectus and any
amended or supplemented prospectus) in conformity with
the requirements of the Securities Act, and such other
documents, as the Stockholder may reasonably request in
order to effect the offering and sale of the Registrable
Shares to be offered and sold, but only while AspenTech
shall be required under the provisions hereof to cause
the registration statement to remain current;
iv. use its reasonable efforts to register or qualify the
Registrable Shares covered by such registration
statements under the securities or blue sky laws of such
jurisdictions as the Stockholder shall reasonably
request (provided that AspenTech shall not be required
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connection therewith or as a condition thereto to
qualify to do business or to file a general consent to
service of process in any such jurisdiction where it has
not been qualified).
b. NOTIFICATION OBLIGATIONS. AspenTech shall promptly notify the
Stockholder once the Registrable Shares are covered by a
registration statement hereunder:
i. when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with
respect to the registration statements or any
post-effective amendment, when the same has become
effective;
ii. of any request by the SEC or any other federal or state
governmental authority during the period of
effectiveness of the registration statements for
amendments or supplements to the registration statements
or related prospectus or for additional information
relating to the registration statements,
iii. of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the
effectiveness of the registration statements or the
initiation of any proceedings for that purpose,
iv. of the receipt by AspenTech of any notification with
respect to the suspension of the qualification or
exemption from qualification of any of the Registrable
Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or
v. of the happening of any event which makes any statement
made in the registration statements or related
prospectuses or any document incorporated or deemed to
be incorporated therein by reference untrue in any
material respect or which requires the malting of any
changes in the registration statements or prospectuses
so that, in the case of the registration statements,
they will not contain any untrue statement of a material
fact or omit to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading, and that in the case of the
prospectuses, they will not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
Upon the happening of any event of the kind described in
clause (ii), (iii), (iv) or (v) above or any other event that,
in the good faith judgment of AspenTech's Board of Directors,
renders it advisable to suspend use of any prospectus due to
pending corporate developments, public filings with the SEC or
similar material events, AspenTech may suspend use of the
prospectuses on written notice to the Stockholder (in which
case the Stockholder shall discontinue disposition of
Registrable Shares covered by a registration statement or
prospectus until copies of a supplemented or amended
prospectus are distributed to the Stockholder or until the
Stockholder is advised in writing by the AspenTech that the
use of the applicable prospectus may be resumed). AspenTech
shall use its reasonable efforts to ensure that the use of the
prospectuses may be resumed as soon as practicable. AspenTech
shall use its reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration
statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
securities for sale in any jurisdiction, at the earliest
practicable moment. AspenTech shall, upon the occurrence of
any event contemplated by clause (v) above, prepare a
supplement or post-effective amendment to the registration
statements or a supplement to the related prospectuses or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Shares being sold thereunder,
such prospectuses will
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not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In
addition to the foregoing, AspenTech may either suspend or
terminate the Shelf Registration on written notice to the
Stockholder, in which case the Stockholder shall discontinue
dispositions of such Registrable Shares and in the event of
termination, AspenTech shall deregister any shares registered
but unsold thereunder. In such event the Chief Financial
Officer shall furnish a certificate of AspenTech stating that
in the good faith judgment of the Board of Directors of
AspenTech it would be significantly disadvantageous to Aspen
and its stockholders for any such registration statement to be
amended or supplemented or continued because AspenTech would
be required to disclose in such registration statement, either
directly or though incorporation by reference, non-public
information that it would not otherwise be obligated to
disclose at such time. If AspenTech provides Stockholder with
notice of suspension, AspenTech shall extend the period during
which such Shelf Registration shall be maintained effective
pursuant to this Agreement by the same number of days the
Stockholder is required to discontinue dispositions
thereunder. If AspenTech provides Stockholder with notice of
termination, AspenTech shall file a new shelf registration as
provided herein as soon as practicable after the cause for
such termination ceases to prohibit the registration, and such
new shelf registration shall be maintained for a subsequent
two months subject to the provisions of this Agreement.
c. REPORTS UNDER EXCHANGE ACT. AspenTech agrees to (a) use its
reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of AspenTech under the
Securities Act and the Exchange Act and (b) furnish to the
Stockholder forthwith upon request (i) a written statement by
AspenTech that it has complied with the reporting requirements
of the Securities Act and the Exchange Act or that it
qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time that it so qualifies) and
(ii) such other information as may be reasonably requested in
availing the Stockholder of any rule or regulation of the SEC
which permits the selling of any such securities pursuant to
Form S-3.
6.3 OBLIGATIONS OF STOCKHOLDER.
In order for any Registrable Shares to be included in any Piggyback
Underwriting or Shelf Registration, the Stockholder shall provide
all such information and materials to AspenTech and take all such
action as may be required in order to permit AspenTech to comply
with all applicable requirements of the SEC and any state securities
commission and to obtain the effectiveness of and any desired
acceleration of the effective date of such registration statement.
Such provision of information and materials is a condition precedent
to the obligations of AspenTech pursuant to Section 6.1, provided
that AspenTech shall have used its reasonable efforts to provide
reasonable advance notice of the need for such information,
materials or action and shall have afforded the Stockholder a
reasonable opportunity to provide such materials and to take such
action. The Stockholder shall enter into, if the registration is
pursuant to a Piggyback Underwriting, an underwriting agreement with
the underwriter or underwriter of such offering containing
representations, warranties, indemnities and agreements then
customarily included by selling stockholders in underwriting
agreements with respect to secondary distributions.
6.4 EXPENSES.
AspenTech shall pay all expenses incident to its performance of or
compliance with this Section 6, regardless of whether any
registration becomes effective, including all registration and
filing fees of the SEC, the National Association of Securities
Dealers, Inc. and the NASDAQ Stock Market, Inc., all fees and
expenses incurred in complying with securities or blue sky laws
(including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Shares),
all
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printing, messenger and delivery expenses, all fees and expenses of
AspenTech's transfer agent and registrar, all fees and disbursements
of AspenTech's independent public accountants and counsel and all
fees and expenses of any special experts retained by AspenTech in
connection with any registration pursuant to the terms of this
Section; provided, however, that (a) in connection with any
Piggyback Underwriting pursuant to the terms of this Section, or (b)
in connection with the sale of Registrable Shares by the Stockholder
under an S-3 registration filing through a broker other than
Nationsbank Xxxxxxxxxx Securities, then in each such event the
Stockholder shall be liable for any fees or commissions of brokers
with respect to the Registrable Shares, and any fees or expenses of
consultants, financial advisors, counsel and other professionals
acting on behalf of the Stockholder in connection with any
registration or Piggyback Underwriting pursuant to the terms of this
Section.
6.5 INDEMNIFICATION.
In the event of any offering registered pursuant to this Section:
a. AspenTech will indemnify the Stockholder against all claims,
losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising
out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration
statement, prospectus, or any amendment or supplement thereto,
incident to any offering registered pursuant to this Section,
or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading, or any
violation by AspenTech of any rule or regulation promulgated
under the Securities Act, or state securities laws applicable
to AspenTech in connection with any such registration, and
subject to Section 6.5, will reimburse the Stockholder for any
legal and any other out-of-pocket expenses reasonably incurred
in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that
AspenTech will not be liable in any such case to the extent
that any such claim, loss, damage, or liability arises out of
or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in
conformity with written information furnished to AspenTech by
the Stockholder.
6. The Stockholder will indemnify AspenTech, each of its
directors and officers and its legal counsel and independent
accountants, each underwriter, if any, of AspenTech's
securities covered by such a registration statement, each
person who controls AspenTech or such underwriter within the
meaning of Section 15 of the Securities Act, and each other
such Stockholder of shares included in the offering, and such
Stockholder's legal counsel and independent accountants,
against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) or a material
fact contained in any such registration statement, prospectus,
offering circular or any amendment or supplement thereto, or
any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse
AspenTech, such Stockholders, such directors, officers, legal
counsel, independent accountants, underwriters or control
persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus,
offering circular or any amendment or supplement thereto in
reliance upon and in conformity with written information
furnished to AspenTech by the Stockholder.
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c. Each party entitled to indemnification under this Section 6.6
(the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party receives written notice
of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such
defense at such Indemnified Party's expense, and provided
further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section, except to the
extent, but only to the extent, that the Indemnifying Party's
ability to defend against such claim or litigation is impaired
as a result of such failure to give notice. Notwithstanding
the foregoing sentence, the Indemnified Party may retain its
own counsel to conduct the defense of any such claim or
litigation, and shall be entitled to be reimbursed by the
Indemnifying Party for expenses reasonably incurred by the
Indemnified Party in defense of such claim or litigation, in
the event that (i) the Indemnifying Party does not assume the
defense of such claim or litigation within ten days after the
Indemnifying Party receives notice thereof from the
Indemnified Party or (ii) the Indemnified Party reasonably
determines that counsel for the Indemnifying Party has a
conflict of interest in representing the Indemnified Party.
Further, an Indemnifying Party shall be liable for amounts
paid in settlement of any such claim or litigation only if the
Indemnifying Party consents in writing to such settlement
(which consent shall not be reasonably withheld). No
Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter any
settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
Indemnified Party a release from all liability in respect to
such claim or litigation.
[For purposes of the foregoing Section 6, the following terms have the indicated
meanings:
"Aspen Common" means common stock, $.10 par value, of AspenTech.
"AspenTech" means Aspen Technology, Inc.
"Closing Date" means May 29, 1998.
"Exchanged Shares" means 140,000 shares of Aspen Common exchanged for all
ownership interest in and to Treiber Controls Inc..
"Publication Date" means the date on which AspenTech initially publishes
financial results reflecting the first thirty days of combined operations of
AspenTech and Treiber Controls Inc.
"Registrable Shares" means (a) the shares of Aspen Common issued to the
Stockholder in exchange for all of the outstanding equity of Treiber Controls
Inc., (b) any other securities issued by AspenTech in exchange for any of such
shares (but, with respect to any particular Registrable Share, only so long as
it continues to be a Registrable Share) and (c) any shares of Aspen Common
issued as a dividend or distribution on account of Registrable Shares or
resulting from a subdivision of outstanding Registrable Shares into a greater
number of securities (by reclassification, stock split or otherwise), provided
that a security that was at one time a Registrable Share shall cease to be a
Registrable Share when (i) it has been effectively registered under the
Securities Act and has been disposed of pursuant to a registration statement or
(ii) it has been transferred and is no longer held of record by the Stockholder.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Stockholder" means Xx. Xxxxxx Xxxxxxx, sole equity holder of Treiber Controls
Inc.]
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