EXHIBIT 99.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated
as of May 9, 2002, among Aspen Technology, Inc., a Delaware corporation (the
"Company"), and the purchasers identified on the signature pages hereto (each, a
"Purchaser" and collectively, the "Purchasers").
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended
(the "Securities Act"), the Company desires to issue and sell to the Purchasers,
and the Purchasers, severally and not jointly, desire to purchase from the
Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
contained in this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company and the
Purchasers agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in
this Agreement, the following terms have the meanings indicated:
"ADDITIONAL SHARES" means the shares of Common Stock issuable
upon exercise of the Unit Warrants (without regard to the further exercise of
the Additional Warrants issuable upon exercise of the Unit Warrants).
"ADDITIONAL WARRANT SHARES" means the shares of Common Stock
issuable upon exercise of the Additional Warrants.
"ADDITIONAL WARRANTS" means the Common Stock purchase
warrants, in the form of Exhibit B-3, issuable upon exercise of the Unit
Warrants.
"AFFILIATE" means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under Rule
144. With respect to a Purchaser, any investment fund or managed account that is
managed on a discretionary basis by the same investment manager as such
Purchaser will be deemed to be an Affiliate of such Purchaser.
"CLOSING" means the closing of the purchase and sale of the
Securities pursuant to Section 2.3(a).
"CLOSING DATE" means the date of the Closing.
"CLOSING PRICE" means, for any date, the price determined by
the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on an Eligible Market or any other national securities
exchange, the last closing price per share of the Common
Stock for such date (or the nearest preceding date) on the primary Eligible
Market or exchange on which the Common Stock is then listed or quoted; (b) if
prices for the Common Stock are then quoted on the OTC Bulletin Board, the
average of the highest closing bid price and the lowest closing ask price per
share of the Common Stock for such date (or the nearest preceding date) so
quoted; (c) if prices for the Common Stock are then reported in the "Pink
Sheets" published by the National Quotation Bureau Incorporated (or a similar
organization or agency succeeding to its functions of reporting prices), the
most recent bid price per share of the Common Stock so reported; or (d) in all
other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by a majority-in-interest of the
Purchasers and the Company.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, par
value $0.10 per share.
"COMMON STOCK EQUIVALENTS" means, collectively, shares of
Common Stock and Convertible Securities.
"COMPANY COUNSEL" means Xxxx and Xxxx LLP, counsel to the
Company.
"CONVERTIBLE SECURITIES" means any evidence of indebtedness,
shares, options, warrants or other securities directly or indirectly convertible
into or exercisable or exchangeable for shares of Common Stock.
"EFFECTIVE DATE" means the date that the Registration
Statement is declared effective by the Commission.
"ELIGIBLE MARKET" means the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap
Market.
"EVENT EQUITY VALUE" means, with respect to a required
payment, 100% of the average of the Closing Prices for the five Trading Days
preceding the date on which such required payment is paid in full.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCLUDED STOCK" means any shares of Common Stock issued or
issuable (a) upon exercise, conversion or exchange of any Common Stock
Equivalents described in Schedule 3.1(g) (provided that such exercise or
conversion occurs in accordance with the terms thereof, without amendment or
modification, and that the applicable exercise or conversion price or ratio is
described in such schedule); (b) to officers, directors, employees or
consultants of the Company pursuant to a stock option plan, employee stock
purchase plan or other equity incentive plan approved by the Board of Directors
of the Company; (c) pursuant to as part of a bona fide firm commitment
underwritten public offering with a nationally recognized underwriter (including
any "at the market offering," as defined in Rule 415(a)(4) under the Securities
Act, only if such offering does not constitute an "equity line" and generates
aggregate gross proceeds of at least $50,000,000); (d) in connection with any
transaction with a strategic
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investor, vendor, lessor, customer, supplier, marketing partner, developer or
integrator or any similar arrangement, in each case the primary purpose of which
is not to raise equity capital; (e) in connection with a transaction involving a
merger or acquisition of an entity, business or assets (not principally for the
purpose of obtaining cash); or (f) in connection with any other transaction for
consideration other than cash up to 108,166 shares of Common Stock in the
aggregate (as adjusted for stock splits, stock combinations and similar events).
"INDIVIDUAL PURCHASER" means each of Xxxxx Sim and Xxxxxxxxx
Xxxxx Marcet.
"LOSSES" means any and all losses, claims, damages,
liabilities, settlement costs and expenses, including without limitation costs
of preparation of legal action and reasonable attorneys' fees.
"MATERIAL SUBSIDIARY" means any significant subsidiary, as
defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission, of the
Company.
"PERSON" means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PURCHASER COUNSEL" means Proskauer Rose LLP, counsel to the
Purchasers.
"QUALIFIED TRANSFER" means the assignment of rights by a
Purchaser under this Agreement and the Registration Rights Agreement to any
Person who agrees to be bound by the provisions of this Agreement and the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Closing Date, among the Company and the Purchasers,
in the form of Exhibit A.
"REGISTRATION STATEMENT" means a registration statement
meeting the requirements set forth in the Registration Rights Agreement and
covering the resale of the Shares and Underlying Shares by the Purchasers.
"REQUIRED EFFECTIVENESS DATE" means the date on which the
Registration Statement is required to become effective pursuant to the
Registration Rights Agreement.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES" means the Shares, the Warrants, the Warrant
Shares, the Unit Warrants, the Additional Shares, the Additional Warrants and
the Additional Warrant Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SHARES" means the shares of Common Stock which are being
purchased by the Purchasers at the Closing.
"SUBSIDIARY" means any subsidiary, as defined in Rule 1-02(x)
of Regulation S-X promulgated by the Commission, of the Company.
"TRADING DAY" means (a) any day on which the Common Stock is
listed or quoted and traded on its primary Trading Market, or (b) if the Common
Stock is not then listed or quoted and traded on any Eligible Market, then a day
on which trading occurs on the New York Stock Exchange (or any successor
thereto).
"TRADING MARKET" means the Nasdaq National Market or any other
Eligible Market on which the Common Stock is then listed or quoted.
"TRANSACTION DOCUMENTS" means this Agreement, the Registration
Rights Agreement, the Warrants and the Unit Warrants.
"UNDERLYING SHARES" means the Warrant Shares, the Additional
Shares and the Additional Warrant Shares.
"UNIT WARRANTS" means the warrants to purchase (a) the
Additional Shares and (b) the Additional Warrants, in the form of Exhibit B-2.
"WARRANT SHARES" means the shares of Common Stock issuable
upon exercise of the Warrants.
"WARRANTS" means the Common Stock purchase warrants, in the
form of Exhibit B-1.
ARTICLE II
PURCHASE AND SALE
2.1 Sale and Issuance of Securities at Closing. Subject to the
terms and conditions of this Agreement, each Purchaser agrees, severally and not
jointly, to purchase at the Closing and the Company agrees to sell and issue to
each Purchaser at the Closing, for the aggregate purchase price set forth
opposite such Purchaser's name on Schedule A hereto under the heading "Closing
Purchase Price":
(a) the number of shares of Common Stock set forth opposite
such Purchaser's name on Schedule A hereto under the heading "Shares;"
(b) a Warrant exercisable for the number of shares of Common
Stock set forth opposite such Purchaser's name on Schedule A hereto under the
heading "Warrants;" and
(c) a Unit Warrant exercisable for (i) the number of shares of
Common Stock set forth opposite such Purchaser's name on Schedule A hereto under
the heading "Unit Warrants-Additional Shares;" and (ii) an Additional Warrant
exercisable for the number of
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shares of Common Stock set forth opposite such Purchaser's name on Schedule A
hereto under the heading "Additional Warrants-Additional Warrant Shares."
2.2 Closing. The purchase and sale of the Shares, the Warrants and
the Unit Warrants pursuant to the terms of Section 2.1 shall take place at the
offices of Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
contemporaneous with delivery of this Agreement or as soon as reasonably
practicable thereafter, or at such other time and place as the Company and the
Purchasers mutually agree upon in writing (which time and place are designated
as the "Closing").
2.3 Closing Deliveries.
(a) At the Closing, the Company shall deliver or cause to
be delivered to each Purchaser the following:
(i) one or more stock certificates, registered
in the name of such Purchaser, evidencing that number of Shares
indicated on Schedule A hereto under the heading "Shares;"
(ii) a Warrant, registered in the name of such
Purchaser, pursuant to which such Purchaser shall have the right to
acquire that number of shares of Common Stock set forth in Section
2.1(b) above;
(iii) a Unit Warrant, registered in the name of
such Purchaser, as set forth in Section 2.1(c) above;
(iv) the legal opinion of Company Counsel, in the
form of Exhibit C, executed by such counsel and delivered to the
Purchasers;
(v) the Registration Rights Agreement duly
executed by the Company; and
(vi) any other documents reasonably requested by
the Purchasers or Purchaser Counsel in connection with the Closing.
(b) At the Closing, each Purchaser shall deliver or cause
to be delivered to the Company the following:
(i) the purchase price set forth opposite such
Purchaser's name on Schedule A hereto under the heading "Closing
Purchase Price", in United States dollars and in immediately available
funds, by wire transfer to an account designated in writing by the
Company for such purpose;
(ii) the Registration Rights Agreement duly
executed by such Purchaser; and
(iii) if such Purchaser is an Individual
Purchaser, the Representation Letter in the form of Exhibit D.
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2.4 Escrow. Notwithstanding any other provisions of this
Agreement, the obligation of an Individual Purchaser to pay to the Company the
purchase price in accordance with Section 2.3(b)(i) and the related obligation
of the Company to deliver Shares, a Warrant and a Unit Warrant to such
Individual Purchaser in accordance with Section 2.3(a)(i), (ii) and (iii) shall
be subject to, and shall be satisfied contemporaneously with, the completion to
be held pursuant to the Agreement, dated as of the date hereof, being entered
into between AEA Technology PLC and the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company
hereby makes the following representations and warranties to each of the
Purchasers:
(a) Subsidiaries. The Company does not directly or
indirectly control or own any interest in any other corporation, partnership,
joint venture or other business association or entity, other than those listed
in Schedule 3.1(a). Except as disclosed in Schedule 3.1(a), the Company owns,
directly or indirectly, all of the capital stock of each Subsidiary free and
clear of any lien, charge, claim, security interest, encumbrance, right of first
refusal or other restriction (collectively, "Liens"), and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights.
(b) Organization and Qualification. Each of the Company
and the Material Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. Neither the Company nor any
Material Subsidiary is in violation of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Material Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation or
other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not,
individually or in the aggregate, (i) adversely affect the legality, validity or
enforceability of any Transaction Document, (ii) have or result in a material
adverse effect on the results of operations, assets, prospects, business or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (iii) adversely impair the Company's ability to perform fully on a
timely basis its obligations under any of the Transaction Documents (any of (i),
(ii) or (iii), a "Material Adverse Effect").
(c) Authorization; Enforcement. The Company has the
requisite corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery
of each of the Transaction Documents by the Company and the consummation by it
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary action on the part of the Company and no further consent or action
is required by the Company, its Board of Directors or its stockholders. Each of
the Transaction
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Documents has been (or upon delivery will be) duly executed by the Company and
is, or when delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
(d) No Conflicts. The execution, delivery and performance
of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby, including the issuance of
the Securities, do not and will not (i) conflict with or violate any provision
of the Company's certificate of incorporation or bylaws, or (ii) subject to
obtaining the Required Approvals (as defined below), conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to
which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or
a Subsidiary is subject (including federal and state securities laws and
regulations) and the rules and regulations of any self-regulatory organization
to which the Company or its securities are subject, or by which any property or
asset of the Company or a Subsidiary is bound or affected; except in the case of
each of clauses (ii) and (iii), such as could not reasonably be expected to have
or result in, individually or in the aggregate, a Material Adverse Effect.
(e) Filings, Consents and Approvals. Neither the Company
nor any Subsidiary is required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any court
or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filings required under Section 4.8,
(ii) the filing with the Commission of the Registration Statement, (iii) the
application(s) to each Trading Market for the listing of the Shares and the
Underlying Shares for trading thereon in the time and manner required thereby,
(iv) applicable Blue Sky filings, and (v) in all other cases where the failure
to obtain such consent, waiver, authorization or order, or to give such notice
or make such filing or registration could not reasonably be expected to have or
result in, individually or in the aggregate, a Material Adverse Effect
(collectively, the "Required Approvals").
(f) Issuance of the Securities. The Shares and the
Underlying Shares have been duly authorized and, when issued and paid for in
accordance with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens and shall not be
subject to preemptive rights or similar rights of stockholders. The Warrants,
the Unit Warrants and the Additional Warrants have been duly authorized and the
issuance thereof is not subject to preemptive rights or similar rights of
stockholders. The Company has reserved from its duly authorized capital stock
3,208,333 shares of Common Stock for issuance upon exercise of the Warrants, the
Unit Warrants and the Additional Warrants.
(g) Capitalization. The number of shares and type of all
authorized, issued and outstanding capital stock, options and other securities
of the Company (whether or not
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presently convertible into or exercisable or exchangeable for shares of capital
stock of the Company) are set forth in Schedule 3.1(g). All outstanding shares
of capital stock are duly authorized, validly issued, fully paid and
nonassessable and have been issued in compliance with all applicable securities
laws. Except as disclosed in Schedule 3.1(g), there are no outstanding options,
warrants, script rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible
into or exercisable or exchangeable for shares of Common Stock. Except as
disclosed in Schedule 3.1(g), there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in any agreement
providing rights to security holders) and the issue and sale of the Securities
(including the Underlying Shares) will not obligate the Company to issue shares
of Common Stock or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such securities. To the
knowledge of the Company, except as specifically disclosed in Schedule 3.1(g),
no Person or group of related Persons beneficially owns (as determined pursuant
to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement
with or by obligation binding upon the Company, beneficial ownership of in
excess of 5% of the outstanding Common Stock, ignoring for such purposes any
limitation on the number of shares of Common Stock that may be owned at any
single time.
(h) SEC Reports; Financial Statements. The Company has
filed all reports required to be filed by it under the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date
hereof (or such shorter period as the Company was required by law to file such
material) (the foregoing materials being collectively referred to herein as the
"SEC Reports" and, together with this Agreement and the Schedules to this
Agreement, the "Disclosure Materials"). The Company has delivered to the
Purchasers a copy of all SEC Reports filed within the 10 days preceding the date
hereof. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Reports complied in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements were
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved ("GAAP"),
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position of
the Company and its consolidated subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal year-end audit
adjustments and the absence of footnotes. All material agreements to which the
Company or any Subsidiary is a party or to which the property or assets of the
Company or any Subsidiary are subject have been included as part of or
specifically
8
identified in the SEC Reports to the extent required by the rules and
regulations of the Commission.
(i) Material Changes. Since the date of the latest
audited financial statements included within the SEC Reports, except as
specifically disclosed in the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not incurred any
material liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business, (B) liabilities
not required to be reflected in the Company's financial statements pursuant to
GAAP, and (C) as set forth in the press release issued by the Company on April
25, 2002, (iii) the Company has not altered its method of accounting or the
identity of its auditors, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock (other than in connection with restricted stock grants to employees), and
(v) the Company has not issued any equity securities to any officer, director or
Affiliate, except pursuant to existing Company stock option plans.
(j) Litigation. There is no action, suit, inquiry, notice
of violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign) (collectively, an "Action") which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or
the Securities or (ii) could, if there were an unfavorable decision,
individually or in the aggregate, reasonably be expected to have or result in a
Material Adverse Effect. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws with
respect to the Company or a Subsidiary or a claim of breach of fiduciary duty
with respect to the Company or a Subsidiary. The Company does not have pending
before the Commission any request for confidential treatment of information, and
the Company does not expect to make any such request prior to the Required
Effectiveness Date. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the
Company with respect to the Company or a Subsidiary. The SEC has not issued any
stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act. No strike, work stoppage, slow down or other material labor
problem exists or, to the knowledge of the Company, is threatened or imminent
with respect to any of the employees of the Company or the Subsidiaries.
(k) Compliance. Neither the Company nor any Subsidiary
(i) is in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received notice of a claim that it is in default under or that it is
in violation of, any indenture, loan or credit agreement or any other agreement
or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in
violation of any order of any court, arbitrator or governmental body, or (iii)
is or has been in violation of any statute, rule or regulation of any
9
governmental authority, including without limitation all foreign, federal, state
and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except
in each case as, individually or in the aggregate, are not reasonably likely to
have or result in a Material Adverse Effect.
(l) Regulatory Permits. The Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
their respective businesses as described in the SEC Reports, except where the
failure to possess such permits, individually or in the aggregate, are not
reasonably likely to have or result in a Material Adverse Effect ("Material
Permits"), and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit.
(m) Transactions With Affiliates and Employees. Except as
set forth in SEC Reports filed at least ten days prior to the date hereof, none
of the officers or directors of the Company is presently a party to any
transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer or director or, to the knowledge of the Company, any
entity in which any officer or director has a material interest.
(n) Internal Accounting Controls. The Company and the
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(o) Certain Fees. Except for the fees described in
Schedule 3.1(o), all of which are payable to registered broker-dealers, no
brokerage or finder's fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement, and the Company has not taken any action that
would cause any Purchaser to be liable for any such fees or commissions.
(p) Private Placement. Neither the Company nor any Person
acting on the Company's behalf has sold or offered to sell or solicited any
offer to buy the Securities by means of any form of general solicitation or
advertising. Neither the Company nor any of its Affiliates nor any person acting
on the Company's behalf has, directly or indirectly, at any time within the past
six months, made any offer or sale of any security or solicitation of any offer
to buy any security under circumstances that would (i) eliminate the
availability of an exemption from registration under the Securities Act in
connection with the offer and sale of the Securities as contemplated hereby or
(ii) cause the offering of the Securities pursuant to the Transaction Documents
to be integrated with prior offerings by the Company for purposes of any
applicable
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law, regulation or shareholder approval provisions, including without limitation
under rules and regulations of any Trading Market. The Company is not, and is
not an Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. The Company is not a United States
real property holding corporation within the meaning of the Foreign Investment
in Real Property Tax Act of 1980.
(q) Form S-3 Eligibility. The Company has the ability to
register its Common Stock for resale by the Purchasers under Form S-3
promulgated under the Securities Act.
(r) Listing and Maintenance Requirements. The Company has
not, in the two years preceding the date hereof, received notice (written or
oral) from any Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and has no
reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements.
(s) Registration Rights. Except as described in Schedule
3.1(s), the Company has not granted or agreed to grant to any Person any rights
(including "piggy-back" registration rights) to have any securities of the
Company registered with the Commission or any other governmental authority that
have not been satisfied.
(t) Application of Takeover Protections. The Company and
its Board of Directors have taken all necessary action, if any, in order to
render inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company's certificate of incorporation or the
laws of its state of incorporation that is or could become applicable to the
Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents,
including without limitation the Company's issuance of the Securities and the
Purchasers' ownership of the Securities.
(u) Disclosure. Except as disclosed by the Company on May
6, 7 or 8, 2002 pursuant to the Non-Disclosure Agreement delivered by certain
Purchasers to the Company (the "Non-Disclosure Agreement"), the Company confirms
that neither it nor any other Person acting on its behalf has provided any of
the Purchasers (other than an Individual Purchaser) or the agents or counsel of
any Purchaser (other than an Individual Purchaser) with any information that
constitutes or could reasonably be expected to constitute material, nonpublic
information. The Company understands and confirms that each of the Purchasers
(other than an Individual Purchaser) will rely on the foregoing representations
in effecting transactions in securities of the Company. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.2.
(v) Acknowledgment Regarding Purchasers' Purchase of
Securities. The Company acknowledges and agrees that each of the Purchasers is
acting solely in the capacity of an arm's length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to this Agreement and the
11
transactions contemplated hereby and any advice given by any Purchaser or any of
their respective representatives or agents in connection with this Agreement and
the transactions contemplated hereby is merely incidental to the Purchasers'
purchase of the Securities. The Company further represents to each Purchaser
that the Company's decision to enter into this Agreement has been based solely
on the independent evaluation of the Company and its representatives.
3.2 Representations and Warranties of the Purchasers. Each
Purchaser hereby, as to itself only and for no other Purchaser, represents and
warrants to the Company as follows:
(a) Organization; Authority. Such Purchaser (other than
an Individual Purchaser) is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization with the
requisite corporate or partnership power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents and
otherwise to carry out its obligations thereunder. If such Purchaser is an
Individual Purchaser, he hereby confirms the accuracy of the information set
forth in the Investor Questionnaire for Individual Investors delivered by him to
the Company on the date hereof, as if such information were set forth herein and
provided as of the time of delivery hereof. The purchase by such Purchaser of
the Securities hereunder has been duly authorized by all necessary action on the
part of such Purchaser. Each of this Agreement and the Registration Rights
Agreement has been duly executed by such Purchaser, and when delivered by such
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Purchaser, enforceable against such Purchaser
in accordance with its terms.
(b) Investment Intent. Such Purchaser is acquiring the
Securities as principal for such Purchaser's own account for investment purposes
only and not with a view to or for distributing or reselling such Securities or
any part thereof, without prejudice, however, to such Purchaser's right, subject
to the provisions of this Agreement and the Registration Rights Agreement, at
all times to sell or otherwise dispose of all or any part of such Securities
pursuant to an effective registration statement under the Securities Act or
under an exemption from such registration and in compliance with applicable
federal and state securities laws. Nothing contained herein shall be deemed a
representation or warranty by such Purchaser to hold Securities for any period
of time. Such Purchaser (other than an Individual Purchaser) is acquiring the
Securities hereunder in the ordinary course of its business. Such Purchaser does
not have any agreement or understanding, directly or indirectly, with any Person
to distribute any of the Securities.
(c) Purchaser Status. From the time such Purchaser was
initially offered the Securities through the Closing Date, the Purchaser has
been or will be, as the case may be, an "accredited investor" as defined in Rule
501(a) under the Securities Act.
(d) Experience of such Purchaser. Such Purchaser, either
alone or together with such Purchaser's representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment. Such
Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such investment.
12
(e) Access to Information. Such Purchaser acknowledges
that such Purchaser has reviewed the Disclosure Materials and has been afforded:
(i) the opportunity to ask such questions as it has deemed necessary of, and to
receive answers from, representatives of the Company concerning the terms and
conditions of the offering of the Securities and the merits and risks of
investing in the Securities; (ii) access to information about the Company and
the Subsidiaries and their respective financial condition sufficient to enable
it to evaluate such Purchaser's investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of such Purchaser or such Purchaser's
representatives or counsel, nor any other provisions of this Section 3.2, shall
modify, amend or affect such Purchaser's right to rely on the truth, accuracy
and completeness of the Disclosure Materials and the Company's representations
and warranties contained in the Transaction Documents. Such Purchaser does not
have actual knowledge that any representation or warranty of the Company in the
Transaction Documents is not accurate as of the date hereof.
(f) General Solicitation. Such Purchaser is not
purchasing the Securities as a result of any advertisement, article, notice or
other communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general solicitation or general advertisement.
(g) Reliance. Such Purchaser understands and acknowledges
that (i) the Securities are being offered and sold to such Purchaser without
registration under the Securities Act in a private placement that is exempt from
the registration provisions of the Securities Act and (ii) the availability of
such exemption depends in part on, and the Company will rely upon the accuracy
and truthfulness of, the foregoing representations and such Purchaser hereby
consents to such reliance.
(h) Alberta Resident Purchasing as Principal. If such
Purchaser is an Individual Purchaser, unless purchasing under subparagraph
3.2(i) below, such Individual Purchaser is purchasing the Securities as
principal for his own account, not for the benefit of any other person, for
investment only, and not with a view to the resale or distribution of all or any
of the Securities and unless exempted by an order of the securities commission
or similar regulatory authority of the province in which such Individual
Purchaser resides:
(i) if such Individual Purchaser is resident in
Alberta the aggregate acquisition cost of the Securities purchased by
such Individual Purchaser is not less than $97,000 (Canadian) and, if
the Individual Purchaser is not an individual but is a corporate,
syndicate, partnership or other form of unincorporated organization,
such Individual Purchaser pre-existed the offering of the Securities
and has a bona fide purpose other than investment in the Securities or,
if created to permit such investment, the individual share of the
aggregate acquisition cost for each participant is not less than
$97,000 (Canadian); or
(ii) if such Individual Purchaser is a resident
of Alberta:
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(A) such Individual Purchaser is an
"accredited investor," as such term is defined in Multilateral Instrument 45-103
entitled "Capital Raising Exemptions" promulgated under the Securities Act
(Alberta) and has concurrently executed and delivered a Representation Letter in
the form attached as Exhibit D to this Agreement; or
(B) such Individual Purchaser is:
(I) a director, senior officer
or control person of the Company or
of an affiliate of the Company,
(II) a spouse, parent,
grandparent, brother, sister or
child of any person referred to in
subclause (I) above,
(III) a close personal friend of
any person referred to in subclause
(I) above,
(IV) a close business associate
of any person referred to in
subclause (I) above, or
(V) a person or company that
is wholly owned by any combination
of persons or companies described
in subclauses (I), (II), (III) or
(IV) above.
(i) Alberta Resident not Purchasing as Principal. If such
Purchaser is an Individual Purchaser who is not purchasing as principal and is a
resident in Alberta, such Individual Purchaser is purchasing Securities having
an aggregate acquisition cost of at least $97,000 (Canadian), is duly authorized
to enter into this Agreement and to execute and deliver all documentation in
connection with the purchase on behalf of each beneficial purchaser, each of
whom is purchasing as principal for its own account, not for the benefit of any
other person, and not with a view to the resale or distribution of all or any of
the Securities, acknowledges that the Company is required by law to disclose to
certain regulatory authorities the identity of each beneficial purchaser of the
Company for whom it may be acting, and:
(i) if such Individual Purchaser is resident in,
or otherwise subject to the securities legislation of Alberta, such
Individual Purchaser is purchasing Securities for accounts fully
managed by it and is a trust corporation trading as a trustee or an
agent, a portfolio manager trading as an agent, or a person or company
trading as an agent that, except for an exemption under the Securities
Act (Alberta) or the rules and regulations thereunder, is required to
be registered as a portfolio manager; or
(ii) if such Individual Purchaser is acting as
agent for one or more disclosed principals, each of such principals is
purchasing as a principal for its own account, not for the benefit of
any other person, and not with a view to the resale or distribution of
all or any of the Securities, and each of such principal complies with
such of subparagraph (i), (iii) and (iii) of paragraph 3.2(h) above as
are applicable to it by virtue of its place of residence.
14
(j) Alberta Resident not Purchasing in Alberta. If such
Purchaser is an Individual Purchaser who is a resident of Alberta but not
purchasing thereunder, such Individual Purchaser is purchasing pursuant to an
exemption from prospectus and registration requirements (particulars of which
are enclosed herewith) available to it under applicable securities legislation
and shall deliver to the Company such further particulars of the exemption(s)
and the Individual Purchaser's qualifications thereunder as the Company may
request.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) Securities may only be disposed of pursuant to an
effective registration statement under the Securities Act or pursuant to an
available exemption from the registration requirements of the Securities Act,
and in compliance with any applicable state securities laws. In connection with
any transfer of Securities other than pursuant to an effective registration
statement or to the Company or pursuant to Rule 144(k), except as otherwise set
forth herein, the Company may require the transferor to provide to the Company
an opinion of counsel selected by the transferor, the form and substance of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration under the Securities Act except
that in the case of an ordinary course transaction pursuant to Rule 144, the
Company shall arrange for such opinion to be delivered by its internal or
outside counsel at the Company's expense. The Securities and the rights and
obligations of each Purchaser under this Agreement may be assigned by such
Purchaser only pursuant to a Qualified Transfer. Notwithstanding the foregoing,
the Company hereby consents to and agrees to register on the books of the
Company and with its transfer agent, without any such legal opinion, any
transfer of Securities by a Purchaser to an Affiliate of such Purchaser,
provided that the transferee certifies to the Company that it is an "accredited
investor" as defined in Rule 501(a) under the Securities Act and is purchasing
such Shares for investment only and not with a view to distributing or reselling
such Securities and agrees in writing to be bound by the provisions of this
Agreement.
(b) The Purchasers agree to the imprinting, so long as is
required by this Section 4.1(b) of the following legend on any certificate
evidencing Securities:
NEITHER THESE SECURITIES [insert on certificate for warrants:
NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE]
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE [insert
in certificate issued to Individual Purchaser: OR PROVINCE] IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
[insert in certificate issued to Individual Purchaser: AND
APPLICABLE PROVINCIAL SECURITIES LAWS], AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION
15
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE [insert in certificate issued to Individual
Purchaser: AND PROVINCIAL] SECURITIES LAWS. NOTWITHSTANDING
THE FOREGOING, THESE SECURITIES [insert on certificate for
warrants: AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER OR FINANCING ARRANGEMENT LOAN SECURED
BY SUCH SECURITIES.
Certificates evidencing Securities shall not be required to
contain such legend or any other legend (i) pursuant to or following any sale of
such Securities pursuant to an effective Registration Statement covering the
resale of such Securities under the Securities Act, (ii) following any sale of
such Securities pursuant to Rule 144, (iii) if such Securities are eligible for
sale under Rule 144(k), or (iv) if such legend is not, in the reasonable opinion
of the Company Counsel, required under the circumstances under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the Staff of the Commission). Following the Effective
Date or at such earlier time as a legend is no longer required for certain
Securities, the Company will, no later than three Trading Days following the
delivery by a Purchaser to the Company or the Company's transfer agent of a
legended certificate representing such Securities, deliver or cause to be
delivered to such Purchaser a certificate representing such Securities that is
free from all restrictive and other legends. The Company may not make any
notation on its records or give instructions to any transfer agent of the
Company that enlarge the restriction on transfer set forth in this Section,
except as may be required by applicable law.
(c) The Company acknowledges and agrees that a Purchaser
may from time to time pledge pursuant to a bona fide margin agreement or other
loan or financing arrangement secured by the Securities or grant a security
interest in some or all of the Securities and, if required under the terms of
such agreement or other loan or financing arrangement, such Purchaser may
transfer pledged or secured Securities to the pledgees or secured parties. Such
a pledge or transfer would not be subject to approval of the Company and no
legal opinion of the pledgee, secured party or pledgor shall be required in
connection therewith except as required by applicable law. Further, no notice
shall be required of such pledge. At the appropriate Purchaser's expense, the
Company will execute and deliver such reasonable documentation as a pledgee or
secured party of Securities may reasonably request in connection with a pledge
or transfer of the Securities, including the preparation and filing of any
required prospectus supplement under Rule 424(b)(3) of the Securities Act or
other applicable provision of the Securities Act to appropriately amend the list
of Selling Stockholders thereunder.
4.2 Furnishing of Information. As long as any Purchaser owns
Securities, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Exchange Act. As long as any Purchaser owns Securities, if the Company is not
required to file reports pursuant to such laws, it will prepare and furnish to
the Purchasers and make publicly available in accordance with paragraph (c) of
Rule 144 such information as is required for the Purchasers to sell the
Securities under Rule 144. The Company further covenants that it will take such
further action as any holder of Securities may reasonably request
16
to satisfy the provisions of Rule 144 applicable to the issuer of securities
relating to transactions for the sale of securities pursuant to Rule 144.
4.3 Integration. The Company shall not, and shall use its best
efforts to ensure that no Affiliate of the Company shall, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities to the Purchasers, or
that would be integrated with the offer or sale of the Securities for purposes
of the rules and regulations of any Trading Market.
4.4 Listing of Securities. The Company shall (i) in the time and
manner required by each Trading Market, prepare and file with such Trading
Market an additional shares listing application covering 7,374,998 shares of
Common Stock, (ii) take all steps necessary to cause such shares of Common Stock
to be approved for listing on each Trading Market as soon as possible
thereafter, (iii) provide to the Purchasers evidence of such listing, and (iv)
maintain the listing of such Common Stock on each such Trading Market or another
Eligible Market.
4.5 Reservation of Shares. The Company shall reserve for issuance
and maintain a reserve of 3,208,333 shares of Common Stock for issuance upon
exercise of the Warrants, the Unit Warrants and the Additional Warrants, less
the number of shares issued upon exercise of such Warrants, Unit Warrants and
Additional Warrants. In the event that at any time the then authorized shares of
Common Stock are insufficient for the Company to satisfy its obligations in full
under the Transaction Documents, the Company shall promptly take such actions as
may be required to increase the number of authorized shares.
4.6 Exercise Procedures. The form of Election to Purchase included
in the Warrants, the Unit Warrants and the Additional Warrants, respectively,
sets forth the totality of the procedures required in order to exercise the
Warrants, the Unit Warrants and the Additional Warrants, respectively. No
additional legal opinion or other information or instructions shall be necessary
to enable the Purchasers to exercise their Warrants, the Unit Warrants or the
Additional Warrants, except as may be required by law. The Company shall honor
exercises of the Warrants, the Unit Warrants and the Additional Warrants and
shall deliver Warrant Shares (upon exercise of the Warrants) Additional Shares
and Additional Warrants (upon exercise of the Unit Warrants) and Additional
Warrant Shares (upon exercise of the Additional Warrants) in accordance with the
terms and conditions set forth in the Transaction Documents.
4.7 Securities Laws Disclosure; Publicity. The Company shall, on
or prior to 9:30 a.m., Eastern time May 10, 2002 or as soon as reasonably
practicable thereafter, issue a press release, in substantially the form
previously reviewed by the Purchasers, disclosing all material terms of the
transactions contemplated hereby and any information, including any non-public
information, provided to the Purchasers pursuant to the Non-Disclosure
Agreement. Thereafter, the Company shall timely file any filings and notices
required by the Commission or applicable law with respect to the transactions
contemplated hereby and provide copies thereof to the Purchasers promptly after
filing. The Company shall, at least one Trading Day prior to the filing or
dissemination of any disclosure required by the second sentence of this
paragraph, provide a copy thereof to the Purchasers for their review. The
Company and the Purchasers shall consult with each other in issuing any press
releases or otherwise making public statements or
17
filings and other communications with the Commission or any regulatory agency or
Trading Market with respect to the transactions contemplated hereby, and neither
party shall issue any such press release or otherwise make any such public
statement, filing or other communication without the prior consent of the other
(which consent shall not be unreasonably withheld), except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the
other party with prior notice of such public statement, filing or other
communication. Neither the Company nor any Person acting on its behalf will
provide any Purchaser with material, nonpublic information about the Company
unless such Purchaser consents to receive such information in writing in advance
even if otherwise required pursuant to the terms of any Transaction Document.
4.8 Reimbursement.
(a) The Company shall indemnify and hold harmless each
Purchaser and any of its Affiliates or any officer, director, partner,
controlling person, employee or agent of a Purchaser or any of its Affiliates (a
"Related Person") from and against any and all Losses, as incurred, arising out
of or relating to any breach by the Company of any of the representations,
warranties or covenants made by the Company in this Agreement or any other
Transaction Document, or any allegation by a third party that, if true, would
constitute such a breach. The conduct of any Proceedings for which
indemnification is available under this paragraph shall be governed by Section
5(c) of the Registration Rights Agreement. The indemnification obligations of
the Company under this paragraph shall be in addition to any liability that the
Company may otherwise have and shall be binding upon and inure to the benefit of
any successors, assigns, heirs and personal representatives of the Purchasers
and any such Related Persons. In no event shall the Company's liability under
this Section 4.8(a) to a Purchaser or its Related Persons exceed the total
purchase price paid by the Purchaser under this Agreement. If the Company
breaches its obligations under any Transaction Document, then, in addition to
any other liabilities the Company may have under any Transaction Document or
applicable law, the Company shall pay or reimburse the Purchasers on demand for
all costs of collection and enforcement (including reasonable attorney's fees
and expenses). Without limiting the generality of the foregoing, the Company
specifically agrees to reimburse the Purchasers on demand for all costs of
enforcing the indemnification obligations in this paragraph.
(b) Each Purchaser shall severally indemnify and hold
harmless the Company from and against any and all Losses, as incurred, arising
out of or relating to any breach by such Purchaser of any of the
representations, warranties or covenants made by such Purchaser in this
Agreement or any other Transaction Document, or any allegation by a third party
that, if true, would constitute such a breach. The conduct of any Proceedings
for which indemnification is available under this paragraph shall be governed by
Section 5(c) of the Registration Rights Agreement. The indemnification
obligations of such Purchaser under this paragraph shall be in addition to any
liability that such Purchaser may otherwise have and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company. In no event shall a Purchaser's liability under
this Section 4.8(b) to the Company exceed the total purchase price paid by such
Purchaser under this Agreement. If such Purchaser breaches its obligations under
any Transaction Document, then, in addition to any other liabilities such
Purchaser may have under any Transaction Document or applicable law, such
Purchaser shall pay or reimburse the Company on demand for all costs of
collection and
18
enforcement (including reasonable attorney's fees and expenses). Without
limiting the generality of the foregoing, such Purchaser specifically agrees to
reimburse the Company on demand for all costs of enforcing the indemnification
obligations in this paragraph.
4.9 Shareholders Rights Plan. In the event that a shareholders
rights plan is adopted by the Company, no claim will be made or enforced by the
Company or any other Person that any Purchaser is an "Acquiring Person" under
any such plan or in any way could be deemed to trigger the provisions of such
plan by virtue of receiving Securities under the Transaction Documents.
4.10 Default Interest. If the Company fails to make any cash
payment required by any Transaction Document in full when due, then the Company
shall pay interest thereon at a rate of 12% per annum (or such lesser maximum
rate that is permitted to be paid under applicable law) from the date such
payment was due until such amount, plus all such interest thereon, is paid in
full.
ARTICLE V
CONDITIONS
5.1 Conditions Precedent to the Obligations of the Purchasers. The
obligation of each Purchaser to acquire Securities at the Closing is subject to
the satisfaction or waiver by such Purchaser, at or before the Closing, of each
of the following conditions:
(a) Representations and Warranties. The representations
and warranties of the Company contained herein shall be true and correct in all
material respects as of the date when made and as of the Closing as though made
on and as of such date except for those representations and warranties made as
of a specific date which shall be true and correct in all material respects as
of such date;
(b) Performance. The Company and each other Purchaser
shall have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by it at or prior to the Closing;
(c) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents;
(d) No Suspensions of Trading in Common Stock; Listing.
Trading in the Common Stock shall not have been suspended by the Commission or
any Trading Market (except for any suspensions of trading of not more than one
Trading Day solely to permit dissemination of material information regarding the
Company) at any time since the date of execution of this Agreement, and the
Common Stock shall have been at all times since such date listed for trading on
an Eligible Market; and
19
(e) Adverse Changes. Since the date of execution of this
Agreement, no event or series of events shall have occurred that reasonably
could be expected to have or result in a Material Adverse Effect.
5.2 Conditions Precedent to the Obligations of the Company. The
obligation of the Company to sell Securities at the Closing is subject to the
satisfaction or waiver by the Company, at or before the Closing, of each of the
following conditions:
(a) Representations and Warranties. The representations
and warranties of the Purchasers contained herein shall be true and correct in
all material respects as of the date when made and as of the Closing Date as
though made on and as of such date;
(b) Performance. The Purchasers shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied
or complied with by the Purchasers at or prior to the Closing; and
(c) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.
ARTICLE VI
MISCELLANEOUS
6.1 Termination. This Agreement may be terminated by the Company
or any Purchaser, by written notice to the other parties, if the Closing has not
been consummated by the third business day following the date of this Agreement;
provided that no such termination will affect the right of any party to xxx for
any breach by the other party (or parties).
6.2 Fees and Expenses. At the Closing, the Company shall pay to
Pine Ridge Financial, Inc., an aggregate of $50,000 for their legal fees and
expenses in connection with the preparation and negotiation of this Agreement.
In lieu of the foregoing payment, Pine Ridge Financial, Inc. may retain the
amount of such payment instead of delivering such amount to the Company at the
Closing or require the Company to pay such amount directly to Purchaser Counsel.
Except as expressly set forth in the Transaction Documents to the contrary, each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all transfer agent fees, stamp taxes and other
taxes and duties levied in connection with the issuance of any Securities and
any and all costs and expenses relating to compliance with the Company's
obligations under Sections 4.4 and 4.5.
6.3 Entire Agreement. The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules. At or
after the Closing, and without further consideration, the Company
20
will execute and deliver to the Purchasers such further documents as may be
reasonably requested in order to give practical effect to the intention of the
parties under the Transaction Documents. Nothing herein shall be construed to
affect any rights of the Purchasers under any previously executed agreements
with the Company.
6.4 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 5:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number specified in this Section on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The addresses for such notices and communications are
those set forth on the signature pages hereof, or such other address as may be
designated in writing hereafter, in the same manner, by such Person.
6.5 Amendments; Waivers. No provision of this Agreement may be
waived or amended except in a written instrument signed by the Company and
holders of at least a majority of the Shares. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right.
6.6 Construction. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
6.7 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers. Any Purchaser may
only assign its rights under this Agreement and the Registration Rights
Agreement pursuant to a Qualified Transfer.
6.8 No Third-Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except that each Related Person is an intended third party
beneficiary of Section 4.8 and may enforce the provisions of such Section
directly against the Company.
6.9 Governing Law; Venue; Waiver Of Jury Trial. THE CORPORATE LAWS
OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS
OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND
21
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO
THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR
CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY HEREBY WAIVES ALL
RIGHTS TO A TRIAL BY JURY.
6.10 Survival. The representations, warranties, agreements and
covenants contained herein shall survive the Closing and the delivery and/or
exercise of the Securities, as applicable.
6.11 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
6.12 Severability. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
6.13 Rescission and Withdrawal Right. Notwithstanding anything to
the contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does not timely
perform its related obligations within the periods therein provided, then such
Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole
or in part without prejudice to its future actions and rights.
22
6.14 Replacement of Securities. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
6.15 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
6.16 Payment Set Aside. To the extent that the Company makes a
payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
6.17 Usury. To the extent it may lawfully do so, the Company hereby
agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of,
usury laws wherever enacted, now or at any time hereafter in force, in
connection with any claim, action or proceeding that may be brought by any
Purchaser in order to enforce any right or remedy under any Transaction
Document. Notwithstanding any provision to the contrary contained in any
Transaction Document, it is expressly agreed and provided that the total
liability of the Company under the Transaction Documents for payments in the
nature of interest shall not exceed the maximum lawful rate authorized under
applicable law (the "Maximum Rate"), and, without limiting the foregoing, in no
event shall any rate of interest or default interest, or both of them, when
aggregated with any other sums in the nature of interest that the Company may be
obligated to pay under the Transaction Documents exceed such Maximum Rate. It is
agreed that if the maximum contract rate of interest allowed by law and
applicable to the Transaction Documents is increased or decreased by statute or
any official governmental action subsequent to the date hereof, the new maximum
contract rate of interest allowed by law will be the Maximum Rate of interest
applicable to the Transaction Documents from the effective date forward, unless
such application is precluded by applicable law. If under any circumstances
whatsoever, interest in excess of the Maximum Rate is paid by the Company to any
Purchaser with respect to indebtedness evidenced by the Transaction Documents,
such excess shall be applied by such Purchaser to the unpaid
23
principal balance of any such indebtedness or be refunded to the Company, the
manner of handling such excess to be at such Purchaser's election.
6.18 Independent Nature of Purchasers. The obligations of each
Purchaser under any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in any
way for the performance of the obligations of any other Purchaser under any
Transaction Document. The decision of each Purchaser to purchase Shares pursuant
to this Agreement has been made by such Purchaser independently of any other
Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or of the Subsidiary which may have been made or given
by any other Purchaser or by any agent or employee of any other Purchaser, and
no Purchaser or any of its agents or employees shall have any liability to any
other Purchaser (or any other person) relating to or arising from any such
information, materials, statements or opinions. Nothing contained herein or in
any Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this Agreement or out of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose.
6.19 Adjustments in Share Numbers and Prices. In the event of any
stock split, subdivision, dividend or distribution payable in shares of Common
Stock (or other securities or rights convertible into, or entitling the holder
thereof to receive directly or indirectly shares of Common Stock), combination
or other similar recapitalization or event occurring after the date hereof, each
reference in this Agreement to a number of shares or a price per share shall be
amended to appropriately account for such event.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
24
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Address for Notice:
00 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Chief Executive Officer and General Counsel
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASERS FOLLOWS]
25
PINE RIDGE FINANCIAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Attorney-in-fact
Pine Ridge Financial Inc.
c/x Xxxxxxx Capital Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Avi Vigder
With a copy to
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
26
SMITHFIELD FIDUCIARY LLC
By: /s/ Xxx X. Xxxxxx
-----------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Signatory
Address for Notice:
Smithfield Fiduciary LLC
c/o Highbridge Capital Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxx X. Xxxxxx/Xxxx X. Chill
27
SMALLCAP WORLD FUND, INC.
By: Capital Research and Management Company,
its investment adviser
By: /s/ illegible
------------------------------
Name:
Title:
SMALLCAP World Fund, Inc.
c/o Capital Research and Management Company
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx and Xxxx Xxxxxxx
28
CITADEL EQUITY FUND LTD.
By: /s/ Xxxxxxx X. Simpler
----------------------------
Name: Xxxxxxx X. Simpler
Title: Vice President
Citadel Equity Fund Ltd.
c/o Citadel Investment Group, L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxxx X. Simpler
With a copy to
Xxxxxx Xxxxxx Xxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
29
/s/ Xxxxxxxxx ClaveMarcet
-------------------------------
Xxxxxxxxx ClaveMarcet
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.: ________________
Telephone No.: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx Xxxxxxx LLP
000-000 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
30
/s/ Xxxxx Sim
------------------------------
Xxxxx Sim
00 Xxxxxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 0XX 0X0
XXXXXX
Facsimile No.: ________________
Telephone No.: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx Xxxxxxx LLP
000-000 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
31
TABLE OF CONTENTS
Page Number
-----------
ARTICLE I DEFINITIONS...........................................................................................1
1.1 Definitions............................................................................................1
ARTICLE II PURCHASE AND SALE....................................................................................4
2.1 Sale and Issuance of Securities at Closing.............................................................4
2.2 Closing................................................................................................5
2.3 Closing Deliveries.....................................................................................5
2.4 Escrow.................................................................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................................................6
3.1 Representations and Warranties of the Company..........................................................6
3.2 Representations and Warranties of the Purchasers......................................................12
ARTICLE IV OTHER AGREEMENTS OF THE PARTIES......................................................................15
4.1 Transfer Restrictions.................................................................................15
4.2 Furnishing of Information.............................................................................16
4.3 Listing of Securities.................................................................................17
4.4 Reservation of Shares.................................................................................17
4.5 Exercise Procedures...................................................................................17
4.6 Securities Laws Disclosure; Publicity.................................................................17
4.7 Reimbursement.........................................................................................18
4.8 Shareholders Rights Plan..............................................................................19
4.9 Default Interest......................................................................................19
ARTICLE V CONDITIONS...........................................................................................19
5.1 Conditions Precedent to the Obligations of the Purchasers.............................................19
5.2 Conditions Precedent to the Obligations of the Company................................................20
ARTICLE VI MISCELLANEOUS........................................................................................20
6.1 Termination...........................................................................................20
6.2 Fees and Expenses.....................................................................................20
6.3 Entire Agreement......................................................................................20
6.4 Notices...............................................................................................21
6.5 Amendments; Waivers...................................................................................21
6.6 Construction..........................................................................................21
6.7 Successors and Assigns................................................................................21
6.8 No Third-Party Beneficiaries..........................................................................21
6.9 Governing Law; Venue; Waiver Of Jury Trial............................................................21
6.10 Survival..............................................................................................22
6.11 Execution.............................................................................................22
6.12 Severability..........................................................................................22
6.13 Rescission and Withdrawal Right.......................................................................22
6.14 Replacement of Securities.............................................................................23
6.15 Remedies..............................................................................................23
6.16 Payment Set Aside.....................................................................................23
6.17 Usury.................................................................................................23
6.18 Independent Nature of Purchasers......................................................................24
6.19 Adjustments in Share Numbers and Prices...............................................................24
Exhibits:
A Registration Rights Agreement
B-1 Form of Warrant
B-2 Form of Unit Warrant
C Opinion of Company Counsel for Closing
D Representation Letter
Schedules:
3.1(a) Subsidiaries
3.1(e) Filings, Consents and Approvals
3.1(g) Capitalization
3.1(h) SEC Reports; Financial Statements
3.1(o) Broker Fees
3.1(s) Registration Rights
SCHEDULE A
PURCHASERS
-------------------------------------------------------------------------------------------------------------------------
ADDITIONAL
UNIT WARRANTS -
WARRANTS - ADDITIONAL
NAME AND ADDRESS OF ADDITIONAL WARRANTS CLOSING
PURCHASERS SHARES WARRANTS SHARES SHARES PURCHASE PRICE
---------- ------ -------- ------ ------ --------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Pine Ridge Financial Inc. 1,683,000 302,940 841,500 151,470 $20,196,000
c/x Xxxxxxx Capital Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Smithfield Fiduciary LLC 1,200,000 216,000 600,000 108,000 14,400,000
c/o Highbridge Capital
Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
SMALLCAP World Fund, Inc. 467,000 84,060 233,500 42,030 5,604,000
c/o Capital Research and
Management Company
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Citadel Equity Fund Ltd. 250,000 45,000 125,000 22,500 3,000,000
c/o Citadel Investment Group,
L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx ClaveMarcet 16,665 3,000 8,333 1,500 199,980
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Xxxxx Sim 550,000 99,000 275,000 49,500 6,600,000
00 Xxxxxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 0XX 0X0
XXXXXX
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
TOTAL 4,166,665 750,000 2,083,333 375,000 $49,999,980
-----
-------------------------------------------------------------------------------------------------------------------------
-35-
EXHIBIT D
REPRESENTATION LETTER
TO: ASPEN TECHNOLOGY, INC. (THE "COMPANY")
In connection with the purchase by the undersigned subscriber
(the "Purchaser") of Shares, Warrants and Unit Warrants pursuant to the
Agreement, the Purchaser hereby represents, warrants, covenants and certifies to
the Company that:
1. The Purchaser is resident in Alberta or is subject to the laws
of the Province of Alberta;
2. The Purchaser is purchasing the Securities as principal for
its own account;
3. The Purchaser is an "accredited investor" within the meaning
of Multilateral Instrument 45-103 entitled "Capital Raising Exemptions" by
virtue of satisfying the indicated criterion as set out in Appendix "A" to this
Representation Letter;
4. Upon execution of this Exhibit D by the Purchaser, this
Exhibit D shall be incorporated into and form a part of the Agreement.
Dated: May , 2002
--------------
------------------------------------------------
Print Name of Purchaser
By:
--------------------------------------------
Signature
--------------------------------------------
Title
IMPORTANT: PLEASE INITIAL APPENDIX A ON THE NEXT PAGE
APPENDIX A
ACCREDITED INVESTOR - (defined in Multilateral Instrument 45-103) means:
(a) a Canadian financial institution, or an authorized foreign bank listed in Schedule III of the Bank Act
-------------- (Canada).
(b) the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act
-------------- (Canada),
(c) an association under the Cooperative Credit Associations Act (Canada) located in Canada,
--------------
(d) a subsidiary of any person or company referred to in paragraphs (a) to (c), if the person or company
-------------- owns all of the voting securities of the subsidiary, except the voting securities required by law to be
owned by directors of that subsidiary,
(e) a person or company registered under the securities legislation, or under the securities legislation of
-------------- another jurisdiction of Canada, as an adviser or dealer, other than a limited market dealer
registered under the Securities Act (Alberta),
(f) an individual registered or formerly registered under the securities legislation, or under the
-------------- securities legislation of another jurisdiction of Canada, as a representative of a person or company
referred to in paragraph (c),
(g) the government of Canada or a province, or any crown corporation or agency of the government of Canada
-------------- or a province;
(h) a municipality, public board or commission in Canada,
--------------
(i) any national, federal, state, provincial, territorial or municipal government of or in any foreign
-------------- jurisdiction, or any agency of that government,
(j) a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions
-------------- (Canada) or a provincial pension commission or similar regulatory authority;
(k) a registered charity under the Income Tax Act (Canada),
--------------
(l) an individual who, either alone or jointly with a spouse, beneficially owns, directly or indirectly,
-------------- FINANCIAL ASSETS having an aggregate realizable value that before taxes, but net of any RELATED
LIABILITIES, exceeds $1,000,000 (Canadian),
(m) an individual whose net income before taxes exceeded $200,000 (Canadian) in each of the two most recent
-------------- years or whose net income before taxes combined with that of a spouse exceeded $300,000 (Canadian) in
each of the two most recent years and who, in either case, reasonably expects to exceed that net income
level in the current year,
(n) a corporation, limited partnership, limited liability partnership, trust or estate, other than a
-------------- mutual fund or non-redeemable investment fund, that had net assets of at least $5,000,000 (Canadian) as
shown on its most recently prepared financial statements;
(o) a mutual fund or non-redeemable investment fund that, in the local jurisdiction, distributed its
-------------- securities only to persons or companies that are accredited investors,
(p) a mutual fund or non-redeemable investment fund that, in the local jurisdiction, distributes its
-------------- securities under a prospectus for which the regulator has issued a receipt,
(q) an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in
-------------- paragraphs (a) through (e) and paragraph (j) in form and function, or
(r) a person or company in respect of which all of the owners of interests, direct or indirect, legal or
-------------- beneficial, are persons or companies that are accredited investors;
NOTE: THE INVESTOR SHOULD INITIAL BESIDE THE PORTION OF THE ABOVE DEFINITION
APPLICABLE TO IT. FOR THE PURPOSES HEREOF:
(i) "financial assets" means cash and securities; and
(j) "related liabilities" means:
(i) liabilities incurred or assumed for the purpose of financing the
acquisition or ownership of financial assets; or
(ii) liabilities that are secured by financial assets.
ALL MONETARY REFERENCES IN THIS APPENDIX A ARE IN CANADIAN DOLLARS.
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to the Securities Purchase Agreement dated as of
May 9, 2002 (the "AGREEMENT") among Aspen Technology, Inc., a Delaware
corporation (the "COMPANY"), and the investors signatory hereto (the
"PURCHASERS") is made and entered into as of June 5, 2002 by and among the
Company and the Purchasers.
WHEREAS, the Company and the Purchasers wish to amend a certain
provision of the Agreement;
NOW, THEREFORE, IN CONSIDERATION of the premises and mutual agreements
set forth herein, the Company and the Purchasers agree as follows:
1. Amendment to Agreement. Clause (iv) of Section 4.4 of the
Agreement shall be deleted in its entirety and replaced with the following:
"(iv) shall use its best efforts to maintain the listing of such Common Stock on
each such Trading Market or another Eligible Market."
2. Full Force and Effect. Except as amended by this Amendment No.
1, the Agreement shall remain in full force and effect.
3. Counterparts. This Amendment No. 1 may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amendment No.
1 as of the date first written above.
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASERS TO FOLLOW]
2
PINE RIDGE FINANCIAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Attorney-in-Fact
-----------------------------
Pine Ridge Financial Inc.
c/x Xxxxxxx Capital Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Avi Vigder
With a copy to
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
3
SMITHFIELD FIDUCIARY LLC
By: /s/ Xxx X. Xxxxxx
-----------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Signatory
Smithfield Fiduciary LLC
c/o Highbridge Capital Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxx X. Xxxxxx/Xxxx X. Chill
4
SMALLCAP WORLD FUND, INC.
By: Capital Research and Management Company,
its investment adviser
By:
-----------------------------
Name:
Title:
SMALLCAP World Fund, Inc.
c/o Capital Research and Management Company
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx and Xxxx Xxxxxxx
5
CITADEL EQUITY FUND LTD.
By:
-----------------------------
Name: Xxxxxxx X. Simpler
Title: Vice President
Citadel Equity Fund Ltd.
c/o Citadel Investment Group, L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxxx X. Simpler
With a copy to
Xxxxxx Xxxxxx Zavis & Rosenman
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
6
-----------------------------------
Xxxxxxxxx ClaveMarcet
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.:
-----------------
Telephone No.: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx Gervais LLP
000-000 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.:
---------------
Telephone No.: (000) 000-0000
7
-----------------------------------
Xxxxx Sim
00 Xxxxxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 0XX 0X0
XXXXXX
Facsimile No.:
-----------------
Telephone No.: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx Xxxxxxx LLP
000-000 0xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Facsimile No.:
---------------
Telephone No.: (000) 000-0000
8
