EXHIBIT 99.3
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of June 1, 2003, by
and between Aspen Technology, Inc. (the "Company") and [___________________]
(the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, the Stockholder owns such number of (a) shares of Series B
Preferred Stock, par value $.10 per share (the "SERIES B PREFERRED STOCK"),
of the Company (b) shares of Common Stock, par value $.10 per share (the
"COMMON STOCK"), of the Company and/or (c) warrants or options to purchase
Common Stock, indicated next to his, her or its name on SCHEDULE A attached
hereto;
WHEREAS, pursuant to a Securities Purchase Agreement entered into as
of June 1, 2003 among the Company and certain other investors (including the
Stockholder) (the "PURCHASE AGREEMENT"), the Company and the Stockholder have
agreed to provide for certain agreements with respect to the voting and transfer
of Securities (as defined in Section 9 below) owned by the Stockholder pursuant
to this Agreement; and
WHEREAS, this Agreement is being entered into in order to induce the
Company to enter into the Purchase Agreement and to consummate the transactions
contemplated in the Purchase Agreement and Transaction Documents (as defined in
the Purchase Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. AGREEMENTS TO VOTE; IRREVOCABLE PROXY.
1.1. VOTING FOR THE MATTERS TO BE CONSIDERED. Stockholder
hereby agrees that, until the earliest to occur of (i) the termination of the
Purchase Agreement in accordance with its terms; (ii) approval of the issuance
of the Series D Preferred Stock, par value $0.10 per share, by the requisite
stockholders of the Company under the Delaware General Corporation Law ("DGCL")
at the Special Meeting (as defined in the Purchase Agreement) ("REQUIRED
APPROVAL"); (iii) the requisite stockholders of the Company vote to reject the
matters contemplated to be voted on pursuant to Section 6.05 of the Purchase
Agreement under the DGCL (the "MATTERS TO BE CONSIDERED") at any meeting of the
stockholders; or (iv) December 31, 2003 (the earliest to occur of (i), (ii),
(iii) or (iv), the "TERMINATION DATE"), Stockholder shall:
(a) vote all Securities which are entitled to be voted
under the DGCL, the Certificate of Incorporation or the By-laws to be voted at a
meeting of stockholders
of the Company and which are beneficially owned (as determined pursuant to Rule
13d-3 under the Securities Exchange Act of 1934, as amended, "beneficially
owned") by it ("VOTING SECURITIES"), in favor of the Matters to be Considered;
(b) vote all Voting Securities beneficially owned by it
against any action or agreement that, to its knowledge, would result in a breach
of any covenant, obligation or agreement or any representation or warranty of
the Company in the Purchase Agreement; and
(c) vote all Voting Securities beneficially owned by it
against any action or agreement that would reasonably be expected to impede,
interfere with, delay or postpone obtaining the Required Approval, including (i)
any merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving the Company, (ii) a sale
or transfer of a material amount of assets of the Company, (iii) any change in
the board of directors of the Company, except in accordance with the Purchase
Agreement, (iv) any change in the capitalization of the Company (except as may
be permitted under the Purchase Agreement), (v) any change in the Certificate of
Incorporation or By-laws, except in accordance with the Purchase Agreement, or
(vi) any Alternative Transaction (as defined in the Purchase Agreement).
Stockholder hereby acknowledges receipt and review of a copy of the Purchase
Agreement.
1.2. IRREVOCABLE PROXY. Contemporaneously with the execution
of this Agreement, Stockholder shall deliver, or cause to be delivered, to
the Company an irrevocable proxy coupled with an interest in the form
attached hereto as EXHIBIT A (the "IRREVOCABLE PROXY"), which shall designate
Xxxxx X. XxXxxxxxx, Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx as named proxies
(the "PROXIES") with respect to the Series B Preferred Stock held by such
Stockholder. Promptly after the record date for the stockholders meeting
called for the purpose of considering the Matters to be Considered, the
Stockholder shall immediately deliver to the Company an Irrevocable Proxy
with respect to all other Voting Securities held by such Stockholder as of
the record date for such stockholders meeting. The Irrevocable Proxy (i) as
to shares of Series B Preferred Stock shall be effective as of the date
hereof and shall be irrevocable to the fullest extent permitted by law and
(ii) as to all other Voting Securities shall be effective as of the date
delivered and shall be irrevocable to the fullest extent permitted by law
with respect to all Voting Securities then owned by the Stockholder.
1.3. WRITTEN CONSENTS. The provisions of this SECTION 1 shall
be equally applicable to any action taken or proposed to be taken by the
Company's stockholders without a meeting, including any such action taken or
proposed to be taken by written consent pursuant to Section 228 of the DGCL.
2. RESTRICTIONS ON TRANSFERS OF SECURITIES. Prior to the
Termination Date, Stockholder hereby agrees that it shall not Transfer, or
permit the Transfer of, all or any of the Voting Securities listed on
SCHEDULE A beneficially owned by it unless (a) as a condition to any such
Transfer the transferee agrees to be bound by the terms and provisions of
this Agreement and delivers an Irrevocable Proxy to the Company in accordance
with Section 1.2 hereof and (b) such Transfer is effected in accordance with
the Series B Agreement (as defined in the Purchase Agreement). No
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Transfer shall be effective and the Company shall not, and shall not be
compelled to, recognize any Transfer or record any Transfer on its books if such
Transfer is prohibited by this Agreement, or issue any certificate representing
any Securities to any Person who has received such Securities in a Transfer made
in contravention of the terms of this Agreement. The parties agree that the
restrictions on Transfer set forth in this Agreement are not manifestly
unreasonable.
3. STOCK SPLITS. If there shall be any change in the Securities of
the Company as a result of any merger, consolidation, reorganization,
recapitalization, stock dividend, split-up, combination, exchange or otherwise,
the provisions of this Agreement shall apply with equal force to additional
and/or substitute Securities, if any, received by the Stockholder in exchange
for or by virtue of its ownership of Securities.
4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
4.1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
Stockholder represents and warrants to the Company as follows:
(a) RIGHT TO VOTE SECURITIES. As of the date hereof,
Stockholder beneficially owns and has the right to vote all the Securities (in
accordance with the terms of such Securities) listed by its name on SCHEDULE A.
(b) POWER; BINDING AGREEMENT; NON-CONTRAVENTION.
Stockholder has the full, right, power and authority (or, if a natural person,
the legal capacity) to enter into this Agreement and perform all of its
obligations hereunder. Neither the execution, delivery nor performance of this
Agreement by Stockholder will violate the charter, by-laws or other
organizational or constitutive documents of Stockholder (if the Stockholder is
not a natural person), or any other agreement, contract or arrangement to which
Stockholder is a party or is bound, including any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly executed and delivered
by Stockholder and constitutes a legal, valid and binding agreement of the
Stockholder, enforceable in accordance with its terms. Neither the execution or
delivery of this Agreement will (a) require any material consent or approval of
or filing with any governmental or other regulatory body, other than filings
required under the federal or state securities laws, or (b) constitute a
violation of, conflict with or constitute a default under (i) any material law,
rule or regulation applicable to Stockholder, or (ii) any material order,
judgment or decree to which Stockholder is bound.
4.2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Stockholder that the Company has the full, right,
power and authority to enter into this Agreement and perform all of its
obligations hereunder. Neither the execution, delivery nor performance of this
Agreement by the Company will violate the charter, by-laws or other
organizational or constitutive documents of the Company, or any other agreement,
contract or arrangement to which the Company is a party or is bound. This
Agreement has been duly executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company, enforceable in accordance
with its terms. Neither the execution or delivery of this Agreement will (a)
require any material consent or approval of or filing with any governmental or
other regulatory body, other than filings required under the
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federal or state securities laws, or (b) constitute a violation of, conflict
with or constitute a default under (i) any material law, rule or regulation
applicable to the Company, or (ii) any material order, judgment or decree to
which the Company is bound.
5. TERMINATION. This Agreement shall terminate on the earlier to
occur of (i) the Termination Date and (ii) the date specified by mutual
agreement of the Stockholder and the Company.
6. STOCKHOLDER COVENANTS. Except in accordance with the express
provisions of this Agreement, Stockholder agrees not to, directly or indirectly,
grant any proxies, deposit any Securities into a voting trust or enter into any
other voting agreement with respect to any Securities.
7. COMPANY COVENANTS. The Company agrees that it will only exercise
the rights granted to it under this Agreement with respect to the subject matter
hereof, and that it will use its commercially reasonable efforts to ensure that
the Proxies exercise the Irrevocable Proxy, in a manner consistent with this
Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as expressly
set forth herein, the representations, warranties, covenants and agreements made
by Stockholder, or the Company in this Agreement shall survive the date hereof
and shall remain in full force and effect until the termination of this
Agreement in accordance with Section 5 above.
9. CERTAIN DEFINITIONS.
9.1. "PERSON" means any individual, corporation, partnership,
firm, joint venture, limited liability company or partnership, association,
joint-stock company, trust, unincorporated organization or Governmental Body.
9.2. "SECURITIES" means and include (a) all shares of the
common stock and preferred stock of the Company, (b) all options, warrants or
rights to acquire shares of common stock or preferred stock, (c) all securities
which are convertible into or exchangeable or exercisable for, common stock or
preferred stock, (d) all other securities of the Company which may be issued in
exchange for or in respect of shares of common stock or preferred stock (whether
by way of stock split, stock dividend, combination, reclassification,
reorganization or any other means), and (e) any other Voting Securities of the
Company acquired by Stockholder after the date hereof.
9.3. "TRANSFER" means any transfer of Securities, whether by
sale, assignment, gift, will, devise, bequest, operation of the laws of descent
and distribution, or in trust, pledge, hypothecation, mortgage, encumbrance or
other disposition (the verb to "TRANSFER" shall mean to sell, assign, give,
dispose, transfer (including by gift, will, devise, bequest, or operation of
laws of descent and distribution, or in trust), pledge, hypothecate, mortgage,
or encumber).
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
Irrevocable Proxy, Purchase Agreement and Transaction Documents, constitute the
entire agreement among the parties hereto with respect to the subject matter
contained herein and
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supersede all prior agreements and understandings among the parties with respect
to such subject matter (including any agreements between Stockholder and the
Company regarding the voting of Securities.) This Agreement may not be modified,
amended, altered or supplemented except by an agreement in writing executed by
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors, and
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties; provided that, Stockholder may
assign this Agreement in connection with any Transfer permitted by this
Agreement.
12. GOVERNING LAW; CONSENT TO JURISDICTION. Except as expressly set
forth below, this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
13. INJUNCTIVE RELIEF. The parties agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to seek in any court of competent jurisdiction a decree of specific performance
or to enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted, as well as to obtain damages for breach of
this Agreement. By seeking such relief, the aggrieved party will not be
precluded from seeking any other relief to which it may be entitled.
14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
15. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
16. FURTHER ASSURANCES. Each party hereto shall execute and deliver
such additional documents as may be necessary to effectuate the voting
agreements contemplated by this Agreement.
17. NO THIRD PARTY BENEFICIARIES; NO PARTNERSHIP OR FIDUCIARY
RELATIONSHIP. Nothing in this Agreement, expressed or implied, shall be
construed to give any Person, other than the parties hereto, any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein. Nothing in this Agreement shall create, or is
intended to create, a fiduciary relationship between Stockholder and the Company
or a partnership or similar arrangement between the Stockholder and the Company.
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18. LEGAL EXPENSES. In the event any legal proceeding is commenced by
any party to this Agreement to enforce, or recover damages for any breach of,
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees and disbursements.
19. [FIDUCIARY DUTIES. Stockholder is signing this Agreement solely
in such Stockholder's capacity as an owner of his or her respective Voting
Securities, and nothing herein shall prohibit, prevent or preclude such
Stockholder from taking or not taking any action in his or her capacity as an
officer or director of the Company.] [INCLUDED IN ENTITY AGREEMENTS ONLY]
20. INTERPRETATION. Unless the context of this Agreement otherwise
requires, (i) words of any gender include each gender and the neuter; (ii) words
using the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby" and derivative or
similar words refer to this entire Agreement; (iv) the term "Section" refers to
the specified Section of this Agreement; and (v) the term "including" or similar
words shall be construed as to refer to such matter without limitation thereof.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be executed as of the date and year first above written.
ASPEN TECHNOLOGY, INC.
By:
--------------------------
Name:
Title:
STOCKHOLDER:
------------------------------
Name:
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
FORM OF IRREVOCABLE PROXY
Reference is made to that certain Voting Agreement, dated as of the
date hereof (the "VOTING Agreement"), by and between Aspen Technology, Inc., a
Delaware corporation (the "COMPANY) and the undersigned stockholder of the
Company. Capitalized terms used herein but not otherwise defined shall have the
meaning ascribed to such term in the Voting Agreement.
The undersigned hereby irrevocably (to the fullest extent permitted by
Delaware law) appoints and constitutes each of Xxxxx X. XxXxxxxxx, Xxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxx the attorney and proxy of the undersigned with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to all Voting Securities owned of record by
the undersigned as of the date of this proxy (the "SUBJECT SHARES") to vote such
Subject Shares for, and only in connection with, and in favor of, the Matters
to be Considered. All prior proxies given by the undersigned with respect to
any of the Subject Shares are hereby revoked, and no subsequent proxies will
be given with respect to any of the Subject Shares.
This proxy is IRREVOCABLE, IS COUPLED WITH AN INTEREST and is granted
in connection with the Voting Agreement, a copy of which is attached hereto and
made a part hereof and is granted in consideration of the Company entering into
the Purchase Agreement.
Each attorney and proxy named above will be empowered, and may
exercise this proxy, to vote the Subject Shares, at any time and from time to
time, in his or her sole and absolute discretion consistent with the terms of
Section 1.1, at any meeting of the stockholders of the Company, however called,
or in any written action by consent of stockholders of the Company, with respect
to any and all matters brought before the stockholders with respect to the
matters set forth in Section 1.1.
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned.
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
[REMINDER OF PAGE INTENTIONALLY LEFT BLANK]
This proxy shall terminate immediately upon the termination of the
Voting Agreement pursuant to Section 5 thereof.
Dated: ____________, 2003
Name:
---------------------
By:
----------------------
Name:
Title:
Number of shares of Common Stock,
par value $.10 per share, of the Company
owned of record as of the date of this proxy: ______________________
Number of shares of Series B Preferred Stock,
par value $.10 per share, of the Company
owned of record as of the date of this proxy: ______________________
SIGNATURE PAGE TO IRREVOCABLE PROXY
SCHEDULE A
OWNERSHIP OF SECURITIES
COMMON STOCK SERIES B PREFERRED STOCK
------------------------------------------ -----------------------------------------
SERIES B-I SERIES B-II
NAME OF STOCKHOLDER NUMBER OF SHARES RIGHT TO ACQUIRE NUMBER OF SHARES NUMBER OF SHARES
------------------------------- -------------------- ----------------- ------------------ ------------------
Pine Ridge Financial, Inc.
Smithfield Fiduciary LLC
Perseverance LLC
Xxxxxxxx X. Xxxxx
Xxxxx X. XxXxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx, Xx.
Xxxx X. XxXxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
