1
EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of June 15, 2001 is entered
into between Aspen Technology, Inc., a Delaware corporation ("Aspen"), and
Xxxxxxx X. Xxxxxxx (the "Shareholder").
PRELIMINARY STATEMENT
A. This Agreement is being entered into in connection with the Agreement
and Plan of Merger dated as of the date hereof among Aspen, Hunter Acquisition
Corporation, Houston Consulting Group, L.P. ("HCG") and the Shareholder (the
"Merger Agreement").
B. Pursuant to the Merger Agreement, among other things, Aspen is agreeing
to provide for certain arrangements with respect to the registration under the
Securities Act of 1933 of shares of its common stock being issued to the
Shareholder.
C. The parties hereto desire to establish the terms and conditions
pursuant to which registration will be effected.
NOW, THEREFORE, in consideration of the premises herein contained, the
parties hereby agree as follows:
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"ASPEN COMMON" means the common stock, $.10 par value per share, of Aspen.
"BUSINESS DAY" means any day that the Securities and Exchange Commission is
open and conducting business.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"PROSPECTUS" means the prospectus included in any Registration Statement,
as amended or supplemented by an amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"REGISTRATION STATEMENT" means a registration statement filed by Aspen with
the Commission for a public offering and sale of securities of Aspen (other than
a registration statement on Form S-8 or Form S-4, or their successors, or any
other form for a similar limited purpose, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of
another corporation).
"REGISTRATION EXPENSES" means the expenses described in Section 2.4.
"REGISTRABLE SHARES" means, with respect to the Shareholder, (a) the shares
of Aspen Common issued to the Shareholder pursuant to the Merger Agreement
(including shares initially deposited in escrow pursuant to the terms of the
Merger Agreement and subsequently delivered to the Shareholder), (b) any other
securities issued by Aspen in exchange for any of such shares of Aspen Common
(but, with respect
2
to any particular Registrable Share, only so long as it continues to be a
Registrable Share) and (c) any shares of Aspen Common issued as a dividend or
distribution on account of Registrable Shares or resulting from a subdivision of
outstanding Registrable Shares into a greater number of shares (by
reclassification, stock split or otherwise); PROVIDED that a security that was
at one time a Registrable Share shall cease to be a Registrable Share when (i)
it has been effectively registered and sold pursuant to a Registration Statement
or (ii) it has been transferred and is no longer held of record by the
Shareholder.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"SELLING SHAREHOLDER" means any Shareholder owning Registrable Shares
included in a Registration Statement.
"SHAREHOLDERS" means the Shareholder and any other persons or entities
constituting Shareholders pursuant to Section 3.
2. REGISTRATION RIGHTS
2.1. INITIAL REGISTRATION
(a) TIMING OF INITIAL REGISTRATION. On June 15, 2001 or as soon
thereafter as practicable, Aspen shall file a shelf Registration Statement
on Form S-3 (the "Initial Registration") to register 193,994 of the
Registrable Shares issued to the Shareholder pursuant to the Merger
Agreement. Thereupon, Aspen shall comply with the registration procedures
of Section 2.3 with respect to the Initial Registration.
(b) DEFERRAL OF INITIAL REGISTRATION. If at the time of the Initial
Registration pursuant to Section 2.1(a),
(i) Aspen is engaged (or Aspen's Board of Directors has
determined in good faith to engage within 90 days of the
time of the Initial Registration) in a registered public
offering of securities for its own account or any other
activity that, in the good faith determination of Aspen's
Board of Directors, would be adversely affected by the
Initial Registration, and
(ii) Aspen's Board of Directors determines in good faith, by
appropriate resolutions, that, as a result of such offering
or other activity, (A) it would be detrimental to Aspen
(other than as relating solely to the price of the Aspen
Common) to file the Initial Registration at such time and
(B) it is in the best interests of Aspen to defer proceeding
with the Initial Registration at such time,
then Aspen may direct that the filing of the Initial Registration be
delayed for a period not to exceed (x) 120 days from the date on which
Aspen provides such direction or (y) the period during which (in the good
faith determination of Aspen's Board of Directors) filing the Initial
Registration would be detrimental to Aspen, whichever occurs first. This
right to delay filing the Initial Registration may not be exercised by
Aspen more than once. Aspen represents and warrants to the Shareholders
that, as of the date hereof, there are no facts that would form the basis
of a good faith determination by the Board of Directors pursuant to this
Section 2.1(b) to delay filing the Initial Registration.
(c) SUSPENSION OF INITIAL REGISTRATION. Aspen shall maintain the
effectiveness of the Initial Registration for a period of 90 days after it
has been first declared effective by the Commission,
-2-
3
PROVIDED that if, as of the final date of such 90-day period, any other
secondary shelf Registration Statement on Form S-3 of Aspen is effective,
Aspen shall continue to maintain the effectiveness of the Initial
Registration until such date as of which no other such secondary shelf
Registration Statement is in effect. Notwithstanding the foregoing, Aspen
may, by written notice to the Shareholder, suspend or withdraw any such
Registration Statement and require that the Shareholder immediately cease
the sale of shares of Aspen pursuant thereto if:
(i) Aspen is engaged in any activity or transaction or
preparations or negotiations for any activity or transaction
that Aspen desires to keep confidential for business
reasons, and Aspen's Board of Directors determines in good
faith, by appropriate resolutions, that the public
disclosure requirements imposed on Aspen pursuant to such
Registration Statement would require disclosure of such
activity or transaction;
(ii) Aspen files a Registration Statement with the Commission for
the purpose of registering under the Securities Act, any
securities to be publicly offered and sold by Aspen; or
(iii) Aspen fails to satisfy the requirements for use of Form
S-3, as set forth in the general instructions to Form S-3.
Upon receipt of such notice, the Shareholder shall immediately discontinue
any sales of Registrable Shares pursuant to the Initial Registration until
the Shareholder has received copies of a supplemented or amended Prospectus
or until the Shareholder is advised in writing by Aspen that the
then-current Prospectus may be used and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.
(d) SALES THROUGH MARKET MAKER. All sales of Registrable Shares
pursuant to the Initial Registration shall be effected through either or
both of Banc of America Securities LLC and First Union Securities, Inc. as
brokers or, to the extent agreed upon by Aspen (which agreement shall not
be unreasonably withheld), any other brokerage firm acting as a market
maker for Aspen Common.
2.2. PIGGYBACK REGISTRATION
(a) REQUEST FOR INCLUSION AND BEST EFFORTS. If Aspen determines to
file a Registration Statement for an underwritten public offering (a
"Piggyback Registration"), then Aspen shall promptly, prior to such filing,
provide written notice to all Shareholders of its intention to do so,
PROVIDED that no such notice is required to be given if no Registrable
Shares are to be included therein as a result of a determination of the
managing underwriter pursuant to Section 2.2(b). Upon the written request
of a Shareholder or Shareholders given within 20 days after Aspen provides
such notice (which request shall state the intended method of disposition
of such Registrable Shares), Aspen shall use its best efforts to cause all
Registrable Shares that Aspen has been requested by such Shareholder or
Shareholders to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such
Shareholder or Shareholders, PROVIDED that Aspen shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2.2
without obligation to any Shareholder.
(b) UNDERWRITING. The right of any Shareholder to include its
Registrable Shares in such registration pursuant to Section 2.2 shall be
conditioned upon such Shareholder's participation in the contemplated
underwritten public offering on the terms set forth in this Agreement. All
Shareholders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for the underwriting by
Aspen. Notwithstanding any other provision of this Section 2.2, if the
managing underwriters
-3-
4
determine that the inclusion of all shares requested to be registered would
adversely affect the offering, then Aspen may limit the number of
Registrable Shares to be included in the Piggyback Registration and shall
so advise all holders of Registrable Shares requesting registration. The
number of shares that are entitled to be included in the registration and
underwriting shall be allocated in the following manner:
(i) The securities of Aspen held by holders other than
Shareholders and other holders of securities of Aspen who
are entitled, by contract with Aspen, to have their
securities included in such registration (each an "Other
Holder") shall be excluded from such Piggyback Registration
to the extent deemed advisable by the managing underwriters,
and, if a further limitation on the number of shares is
required, then the number of shares that may be included in
such Piggyback Registration shall be allocated PRO RATA (on
an as-converted basis) among all Shareholders and Other
Holders requesting registration in accordance with the
respective number of shares of Aspen Common held when Aspen
provides notice as specified in Section 2.2(a).
(ii) If any Shareholder or Other Holder is entitled to include
more securities than such Shareholder or Other Holder
requested to be registered, then the excess securities shall
be allocated among other requesting Shareholders and Other
Holders pro rata in the manner described in the preceding
clause (i).
If any holder of Registrable Shares or Other Holder disapproves of the
terms of any such underwriting, such person may elect to withdraw therefrom
by written notice to Aspen, and any Registrable Shares or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
2.3. REGISTRATION PROCEDURES
(a) GENERAL. If and whenever Aspen is required by the provisions of
this Agreement to use its best efforts to effect the registration of any
Registrable Shares under the Securities Act, Aspen shall:
(i) prepare and file with the Commission a Registration Statement
(including the Initial Registration) on an appropriate form
as expeditiously as possible, and cause such Registration
Statement to be declared effective by the Commission at the
earliest practicable date;
(ii) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the
Registration Statement and the Prospectus included in the
Registration Statement as may be necessary to comply with
the provisions of the Securities Act (including the
anti-fraud provisions thereof) and to keep the Registration
Statement effective for at least 90 days from the effective
date (or, in the case of the Initial Registration, for the
period specified in Section 2.1(c)) or such lesser period
until all such Registrable Shares are sold;
(iii) as expeditiously as possible furnish to each Selling
Shareholder such reasonable numbers of copies of the
Prospectus, including any preliminary Prospectus, in
conformity with the requirements of the Securities Act, and
such other documents as such Selling Shareholder may
reasonably request in order to facilitate the public sale or
other disposition of the Registrable Shares owned by such
Selling Shareholder;
(iv) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws
-4-
5
of such states as the Selling Shareholders shall reasonably
request, and do any and all other acts and things that may
be necessary or desirable to enable the Selling Shareholders
to consummate the public sale or other disposition in such
states of the Registrable Shares owned by the Selling
Shareholder, PROVIDED that Aspen shall not be required in
connection with this paragraph (iv) to qualify as a foreign
corporation or execute a general consent to service of
process in any jurisdiction;
(v) prior to the effective date of the Registration Statement,
cause all such Registrable Shares to be listed on each
securities exchange or automated or inter-dealer quotation
system on which similar securities issued by Aspen are then
listed;
(vi) promptly provide a transfer agent and registrar for all such
Registrable Shares no later than the effective date of such
Registration Statement;
(vii) promptly make available for inspection by the Selling
Shareholders, any managing underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant or other agent retained by any such
underwriter or selected by the Selling Shareholders, all
financial and other records, pertinent corporate documents
and properties of Aspen and cause Aspen's officers,
directors, employees and independent accountants to supply
all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection
with such Registration Statement;
(viii) as expeditiously as possible, notify each Selling
Shareholder at any time when a Prospectus relating to the
Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of
which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statement therein not misleading or incomplete in light of
the circumstances then existing, and promptly amend the
Registration Statement and/or related Prospectus to correct
such untrue statement or to include the omitted information;
(ix) as expeditiously as possible, notify each Selling
Shareholder, promptly after it shall receive notice thereof,
of the time when such Registration Statement has become
effective or a supplement to any Prospectus forming a part
of such Registration Statement has been filed; and
(x) as expeditiously as possible following the effectiveness of
such Registration Statement, notify each seller of such
Registrable Shares of any stop order, order of formal or
informal investigation or any request by the Commission for
the amending or supplementing of such Registration Statement
or Prospectus.
(b) PROSPECTIVE AMENDMENTS. If Aspen has delivered a Prospectus to the
Selling Shareholders and after having done so the Prospectus is amended to
comply with the requirements of the Securities Act, Aspen shall, as
expeditiously as possible, notify the Selling Shareholders and, if
requested, the Selling Shareholders shall immediately cease making offers
of Registrable Shares and return all Prospectuses to Aspen. Aspen shall, as
expeditiously as possible, provide the Selling Shareholders with revised
Prospectuses and, following receipt of the revised Prospectuses, the
Selling Shareholders shall be free to resume making offers of the
Registrable Shares.
-5-
6
2.4. ALLOCATION OF EXPENSES. Aspen will pay all Registration Expenses for
all registrations under this Agreement. For purposes of this Section, the term
"Registration Expenses" shall mean all reasonable expenses incurred in effecting
any registration pursuant to this Agreement, including all registration and
filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel and accountants for Aspen, state Blue Sky fees and expenses, and the
expense of any regular or special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and the
fees and expenses of Selling Shareholders' own counsel.
2.5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY ASPEN. In the event of any registration of any
of the Registrable Shares under the Securities Act pursuant to this
Agreement, Aspen will indemnify and hold harmless each Selling Shareholder,
each underwriter of such Registrable Shares, and each other person, if any,
who controls such Selling Shareholder or underwriter within the meaning of
the Securities Act or the Exchange Act, with respect to each registration,
qualification or compliance effected pursuant to this Section 2, against
any losses, claims, damages, liabilities (or actions, proceedings or
settlements in respect thereof), joint or several, to which such Selling
Shareholder, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions, proceedings or settlements in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Shares were registered under the Securities Act, any preliminary prospectus
or final prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, incident to any
such registration, qualification or compliance, or arise out of or are
based upon the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; or any violation by Aspen of the Securities Act or Exchange
Act or any rule or regulation thereunder applicable to Aspen and relating
to action or inaction required by Aspen in connection with any such
registration, qualification or compliance; and Aspen will reimburse such
Selling Shareholder, underwriter and each such controlling person for any
legal or any other expenses reasonably incurred by such Selling
Shareholder, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that Aspen will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or omission made in such Registration
Statement, preliminary prospectus or prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to Aspen, by or on behalf of such Selling Shareholder,
underwriter or controlling person and stated to be specifically for use in
the preparation thereof.
(b) INDEMNIFICATION BY SELLING SHAREHOLDERS. In the event of any
registration of any of the Registrable Shares under the Securities Act
pursuant to this Agreement, each Selling Shareholder, severally and not
jointly, will indemnify and hold harmless Aspen, each of its directors and
officers and each underwriter (if any) and each person, if any, who
controls Aspen or any such underwriter within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which Aspen, such directors and officers,
underwriter or controlling person may become subject under the Securities
Act, Exchange Act, state securities or Blue Sky laws or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities
Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged
omission to state a material fact required to be stated therein or
-6-
7
necessary to make the statements therein not misleading, if and to the
extent that the statement or omission was made in reliance upon and in
conformity with information relating to such Selling Shareholder furnished
in writing to Aspen by or on behalf of such Selling Shareholder
specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement; PROVIDED,
HOWEVER, that the obligations of a Selling Shareholder hereunder shall be
limited to an amount equal to the net proceeds to such Selling Shareholder
of Registrable Shares sold in connection with such registration.
(c) INDEMNIFICATION PROCEDURES. Each party entitled to indemnification
under this Section (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom;
PROVIDED, that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld); and, PROVIDED,
FURTHER, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section except to the extent that the Indemnifying Party is
adversely affected by such failure. The Indemnified Party may participate
in such defense at such party's expense; PROVIDED that the Indemnifying
Party shall pay such expense if representation of such Indemnified Party by
the counsel retained by the Indemnifying Party is determined to be
inappropriate, based upon the advice of counsel, for the Indemnified Party
due to actual or potential differing interests between the Indemnified
Party and any other party represented by such counsel in such proceeding;
PROVIDED, FURTHER, that in no event shall the Indemnifying Party be
required to pay the expenses of more than one law firm per jurisdiction as
counsel for the Indemnified Party. The Indemnifying Party also shall be
responsible for the expenses of such defense if the Indemnifying Party does
not elect to assume such defense. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgment or settle such
claim or litigation without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
this Section 2.5 is due in accordance with its terms but for any reason is
held to be unavailable to an Indemnified Party in respect to any losses,
claims, damages and liabilities referred to herein, then the Indemnifying
Party shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities to which such party may be subject
in such proportion as is appropriate to reflect the relative fault of Aspen
on the one hand and the Selling Shareholders on the other in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of Aspen and the Selling Shareholders
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of material fact related to information
supplied (or required to be supplied) by Aspen or the Selling Shareholders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Aspen and the
Selling Shareholders agree that it would not be just and equitable if
contribution pursuant to this Section 2.5 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph of Section 2.5, (a) in no case shall any one
Selling Shareholder be liable or responsible for any amount in excess of
the net proceeds received by such Selling Shareholder from the offering of
Registrable Shares and (b) Aspen shall be liable and responsible for any
amount in excess of such
-7-
8
proceeds; PROVIDED that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may be made against another party or parties under this Section, notify
such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they
may have thereunder or otherwise under this Section. No party shall be
liable for contribution with respect to any action, suit, proceeding or
claim settled without its prior written consent, which consent shall not be
unreasonably withheld.
2.6. OTHER MATTERS WITH RESPECT TO UNDERWRITTEN OFFERINGS. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2.1, Aspen agrees to: (a) enter into
an underwriting agreement containing customary representations and warranties
with respect to the business and operations of Aspen and customary covenants and
agreements to be performed by Aspen, including without limitation customary
provisions with respect to indemnification by Aspen of the underwriters of such
offering; (b) use its best efforts to cause its legal counsel to render
customary opinions to the underwriters with respect to the Registration
Statement; and (c) use its best efforts to cause its independent public
accounting firm to issue a customary "cold comfort letter" to the underwriters
with respect to the Registration Statement.
2.7. INFORMATION BY HOLDER. Each Shareholder included in any registration
shall furnish to Aspen such information regarding such Shareholder and the
distribution proposed by such Shareholder as Aspen may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
2.8. "STAND-OFF" AGREEMENT; CONFIDENTIALITY OF NOTICES. Each Shareholder,
if requested by Aspen and the managing underwriters of an underwritten public
offering by Aspen of Aspen Common, shall not sell or otherwise transfer or
dispose of any Registrable Shares or other securities of Aspen other than
Registrable Shares covered by the Initial Registration for the applicable
lock-up period under lock-up arrangements generally entered into by selling
stockholders, executive officers and directors of Aspen at the request of such
managing underwriters, PROVIDED that such period shall not extend beyond 180
days after the date of the final prospectus for such offering. Aspen may impose
stop-transfer instructions with respect to the Registrable Shares or other
securities subject to the foregoing restriction until the end of such 180-day
period. Any Shareholder receiving any written notice from Aspen regarding
Aspen's plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise his rights under this Agreement.
2.9. RULE 144 REQUIREMENTS. Aspen agrees to:
(a) make and keep current public information about Aspen available, as
those terms are understood and defined in Rule 144;
(b) use its best efforts to prepare and file with the Commission in a
timely manner all reports and other documents required of Aspen under the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) promptly furnish to any holder of Registrable Shares upon request
(i) a written statement by Aspen as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), (ii)
a copy of the most recent annual or quarterly report of Aspen, and (iii)
such other reports and documents of
-8-
9
Aspen as such holder may reasonably request to avail itself of any similar
rule or regulation of the Commission allowing it to sell any such
securities without registration.
2.10. SECTIONS 2.1 AND 2.2 TERMINATION. All of Aspen's obligations to
register Registrable Shares of any Shareholder under Sections 2.1 and 2.2 shall
terminate on the earlier of (a) the second anniversary of the date of this
Agreement and (b) the first date on which all of the Registrable Shares of such
Shareholder may be sold within a three-month period pursuant to Rule 144.
3. TRANSFERS OF RIGHTS.
This Agreement, and the rights and obligations of each Shareholder
hereunder, may be assigned by such Shareholder to any person or entity to which
at least 25,000 Shares are transferred by such Shareholder, and such transferee
shall be deemed a "Shareholder" for purposes of this Agreement; PROVIDED that
the transferee provides written notice of such assignment to Aspen and agrees in
writing to be bound hereby.
4. GENERAL
4.1. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or
terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of Aspen and the holders of at least a
majority of the Registrable Shares held by all of the Shareholders. Any such
amendment, termination or waiver effected in accordance with this Section 4.1
shall be binding on all parties hereto, even if they do not execute such
consent. No waiver by any party hereto with respect to any condition or breach
hereunder shall be deemed to extend to any prior or subsequent condition or
breach hereunder or affect in any way any rights arising by virtue of any prior
or subsequent condition or breach. No failure on the part of any parties hereto
to exercise, and no delay in exercising any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right.
4.2. CONSTRUCTION.
(a) The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(b) The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied
against a party hereto.
(c) The term "including" as used herein shall not be construed so as
to exclude any other thing not referred to or described.
(d) References herein to "Sections" shall be deemed to be to sections
of this Agreement, unless otherwise specified.
4.3. ENTIRE AGREEMENT; SUCCESSORS. This Agreement (a) constitutes the
entire agreement, and supersedes all other prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof, and (b) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except as otherwise expressly provided
herein. Subject to the preceding sentence, this Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns.
-9-
10
4.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the Commonwealth of
Massachusetts. THE PARTIES HERETO WAIVE ANY RIGHT THEY MAY HAVE, AND AGREE NOT
TO DEMAND, A TRIAL BY JURY.
4.5. NOTICES. All notices, instructions, demands, claims, requests and
other communications given hereunder or in connection herewith shall be in
writing. Any such communication shall be sent either (a) by registered or
certified mail, return receipt requested, postage prepaid, or (b) via a
reputable nationwide overnight courier service, in each case to the address set
forth below. Any such communication shall be deemed to have been delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service.
To Aspen: Aspen Technology, Inc.
Xxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 000.000.0000
Attention: Chief Executive Officer
WITH A COPY TO: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617.526.5000
Attention: Xxxx X. Xxxxxxx
To any Shareholder: At such Shareholder's address of
record in the stock transfer
records of Aspen
WITH A COPY TO: Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: 713.226.0296
Attention: Xxxx X. Xxxxxx
Any party hereto may give any notice, instruction, demand, claim, request or
other communication hereunder using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail
or electronic mail), but no such communication shall be deemed to have been duly
given unless and until it actually is received by the party for which it is
intended. Any party hereto may change the address to which notices,
instructions, demands, claims, requests and other communications hereunder are
to be delivered by giving the other parties hereto notice in the manner set
forth in this Section 4.5.
4.6. SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any circumstances in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
circumstances or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power to limit the term or
-10-
11
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified.
4.7. SIGNATURES. This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which together shall constitute
one and the same instrument. This Agreement may be executed by facsimile
signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Title: Xxxx X. Xxxxxxx, COO
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
XXXXXXX X. XXXXXXX
-11-
