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EXHIBIT 99.1
[Excerpted from Share Exchange Agreement dated as of October 14, 1998
among Aspen Technology, Inc., Syllogistics, Inc., Xxxxxx Xxxx Xxxx and Xxxxx X.
Xxxxx]
6. REGISTRATION RIGHTS
6.1 REGISTRATION STATEMENT. After the Publication Date, Aspen shall
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 as soon as practicable after the Publication Date
(the "Registration Statement"). Aspen agrees to use reasonable efforts
to keep such registration statement continuously effective for a
period of sixty (60) days after its effective date. The Stockholder
and Xxxxx shall furnish all information that Aspen may reasonably
request in connection with the foregoing registration or any other
filings required to be made in connection with this transaction.
6.2 OBLIGATIONS OF ASPEN.
(a) In connection with registration under this Section, and subject
to the limitations of this Section, Aspen shall:
(i) prepare and file with the SEC such amendments and
supplements to such Registration Statement 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
Statement;
(ii) furnish to the Stockholder and Xxxxx such number of copies
of any documents, as they may reasonably request in order
to effect the offering and sale of the Registrable Shares
to be offered and sold, but only while Aspen shall be
required under the provisions hereof to cause the
Registration Statement to remain current;
(iii) use its reasonable efforts to register or qualify the
Registrable Shares covered by such Registration Statement
under the securities or blue sky laws of such jurisdictions
as the Stockholder and Xxxxx shall reasonably request
(provided that Aspen shall not be required in 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) Aspen shall promptly notify the Stockholder and Xxxxx once the
Registrable Shares are covered by a Registration Statement
hereunder:
(i) when any post-effective amendment has been filed, and, with
respect to the Registration Statement 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 Statement for amendments or supplements
to the Registration Statement or for additional information
relating to the Registration Statement;
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(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 Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by Aspen 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 Statement or any document
incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires
the making of any changes in the Registration Statement so
that, in the case of the Registration Statement, 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.
Upon the happening of any event that, in the good faith judgment
of Aspen's Board of Directors, renders it advisable to suspend or
terminate use of the Registration Statement, Aspen may either
suspend or terminate the Shelf Registration on written notice to
the Stockholder and Xxxxx, in which case the Stockholder and
Xxxxx shall discontinue dispositions of such Registrable Shares
and in the event of termination, Aspen shall de-register any
shares registered but unsold thereunder. In such event the Chief
Financial Officer shall furnish a certificate of Aspen stating
that in the good faith judgment of the Board of Directors of
Aspen it would be significantly disadvantageous to Aspen and its
stockholders for any such registration statement to be amended or
supplemented or continued because Aspen would be required to
disclose in such registration statement, either directly or
through incorporation by reference, non-public information that
it would not otherwise be obligated to disclose at such time. If
Aspen provides Stockholder and Xxxxx with notice of suspension,
Aspen 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 and Xxxxx
are required to discontinue dispositions thereunder. If Aspen
provides Stockholder and Xxxxx with notice of termination, Aspen
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. Aspen agrees to (a) use its
reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of Aspen under the
Securities Act and the Exchange Act and (b) furnish to the
Stockholder and Xxxxx forthwith upon request (i) a written
statement by Aspen 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 and Xxxxx of any rule or regulation of the SEC
which permits the selling of any such securities pursuant to Form
S-3.
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6.3 OBLIGATIONS OF STOCKHOLDER AND XXXXX.
In order for any Registrable Shares to be included in a Shelf
Registration, the Stockholder and Xxxxx shall provide all such
information and materials to Aspen and take all such action as may be
required in order to permit Aspen 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 the Registration Statement. Such provision of
information and materials is a condition precedent to the obligations
of Aspen pursuant to Section 6.1, provided that Aspen 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 and Xxxxx a reasonable opportunity to provide such
materials and to take such action.
6.4 EXPENSES.
Aspen 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 printing, messenger and delivery
expenses, all fees and expenses of Aspen's transfer agent and
registrar, all fees and disbursements of Aspen's independent public
accountants and counsel and all fees and expenses of any special
experts retained by Aspen in connection with any registration pursuant
to the terms of this Section; provided, however, that in connection
with the sale of Registrable Shares by the Stockholder and Xxxxx 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 and Xxxxx in connection with any registration pursuant to
the terms of this Section.
6.5 INDEMNIFICATION.
In the event of any offering registered pursuant to this Section:
(a) Aspen will indemnify the Stockholder and Xxxxx 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 Aspen of any rule or
regulation promulgated under the Securities Act, or state
securities laws applicable to Aspen in connection with any such
registration, and subject to Section 6.4, will reimburse the
Stockholder and Xxxxx 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 Aspen 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,
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made in reliance upon and in conformity with written information
furnished to Aspen by the Stockholder and Xxxxx.
(b) The Stockholder and Xxxxx will indemnify Aspen, each of its
directors and officers and its legal counsel and independent
accountants, each underwriter, if any, of Aspen's securities
covered by such a registration statement, each person who
controls Aspen 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, 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 Aspen, 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 Aspen by the Stockholder and
Xxxxx.
(c) Each party entitled to indemnification under this Section 6.5
(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.
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(d) The obligations of Aspen, the Stockholder and Xxxxx under this
Section 6 shall survive the completion of any offering of stock
in a registration statement under this Section and otherwise.
[For purposes of the foregoing Section 6, the following terms have the indicated
meanings:
"Aspen" means Aspen Technology, Inc.
"Xxxxx" means Xxxxx X. Xxxxx.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Publication Date" means the date on which Aspen initially publishes financial
results reflecting the first thirty days of combined operations of Aspen and
Syllogistics, Inc.
"Registrable Shares" means, with respect to the Stockholder and Xxxxx, (a)
twenty percent (20%) of the shares of Aspen common stock issued to each of the
Stockholder and Xxxxx pursuant to this Agreement, (b) any other securities
issued by Aspen 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 stock 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 (a)
it has been effectively registered under the Securities Act and has been
disposed of pursuant to a registration statement or (b) it has been transferred
and is no longer held of record by the Stockholder.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder" means Xxxxxx Xxxx Xxxx.]
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