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EXHIBIT 10.19
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of August 29, 2000 is entered
into between Aspen Technology, Inc., a Delaware corporation ("Aspen"), and
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx (together, the "Stockholders").
A. Aspen, Iris Acquisition Corporation, ICARUS Corporation, ICARUS Services
Limited and the Stockholders are parties to an Agreement and Plan of Acquisition
dated as of the date hereof (the "Acquisition Agreement").
B. Aspen and the Stockholders desire to provide for certain arrangements
with respect to the registration under the Securities Act of 1933 of shares of
common stock of Aspen issued to the Stockholders pursuant to the Acquisition
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and pursuant to
Section 7.2(b) of the Acquisition Agreement, the parties hereto agree as
follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"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.
"Common Stock" means the common stock, $.10 par value per share, of
Aspen.
"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.
"Initiating Holders" means the Stockholders initiating a request for
registration pursuant to Section 2.1(a).
"Other Holders" shall have the meaning set forth in Section 2.2(b)(i).
"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.
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"Registrable Shares" means, with respect to a Stockholder, (a) the
shares of Common Stock issued to such Stockholder pursuant to the
Acquisition Agreement (including shares initially deposited in escrow
pursuant to the terms of the Acquisition Agreement and subsequently
delivered to such Stockholder), (b) any other securities issued by Aspen in
exchange for any of such shares of Common Stock (but, with respect to any
particular Registrable Share, only so long as it continues to be a
Registrable Share) and (c) any shares of Common Stock issued as a dividend
or distribution on account of Registrable Shares or resulting from a
subdivision of outstanding Registrable Shares into a greater number of
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 a Stockholder.
"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 Stockholder" means any Stockholder owning Registrable Shares
included in a Registration Statement.
"Stockholders" means the Stockholders and any other persons or entities
constituting Stockholders pursuant to Section 3.
2. Registration Rights
2.1. Demand Registrations
(a) Request for Registration. On up to two occasions after
October 31, 2000, a Stockholder or Stockholders holding a majority of the
then-existing Registrable Shares ("Initiating Holders") may, by written
request but subject to Section 2.1(b), require that Aspen register all or a
portion of their Registrable Shares pursuant to a shelf Registration
Statement on Form S-3 (a "Demand Registration"). Upon receipt of such a
written request for a Demand Registration, Aspen shall promptly provide
written notice of the proposed registration (the "Notice") to each
remaining Stockholder. Each such remaining Stockholder may, subject to
Section 2.1(b), elect to have all or a portion of such Stockholder's
Registrable Shares included in such Demand Registration by providing notice
to Aspen within five Business Days after delivery of the Notice. Thereupon,
Aspen shall comply with the registration procedures of Section 2.3 with
respect to the Demand Registration of all Registrable Shares that Aspen has
been requested to so register.
(b) Share Limitation. In each Demand Registration, each
Stockholder may request registration of all or a portion of the Registrable
Shares held by such Stockholder. If the Stockholders have notified Aspen
that they collectively wish to have more than 124,206 Registrable Shares
registered pursuant to a Demand Registration, the 124,206 Registrable
Shares shall be allocated among the Stockholders in proportion (as nearly
as practicable) to the respective numbers of Registrable Shares held by
them at the time Aspen delivered the Notice for such Demand Registration.
(c) Demand Registrations. Aspen shall not be required to effect
more than two Demand Registrations pursuant to Section 2.1(a). In addition,
Aspen shall not be required to effect the second Demand Registration prior
to three months after the termination of the initial Demand Registration.
For purposes of this Section 2.1(c), a Registration Statement shall only be
counted as a Demand Registration when it has been declared effective by the
Commission (unless Initiating Holders withdraw their request for such
registration (other than as a result of information concerning the
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business or financial condition of Aspen that is made known to the
Stockholders after the date on which such registration was requested) and
elect not to pay the Registration Expenses therefor pursuant to Section
2.4).
(d) Deferral of Demand Registration. If at the time of a Demand
Registration pursuant to Section 2.1(a),
(i) Aspen is engaged or has plans to engage in a
registered public offering or any other activity that,
in the good faith determination of Aspen's Board of
Directors, would be adversely affected by the
requested Demand 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 Common Stock) to file the Demand
Registration at such time and (B) it is in the best
interests of Aspen to defer proceeding with the Demand
Registration at such time,
then Aspen may direct that the filing of the Demand Registration be delayed
for a period not to exceed (x) 120 days from the date of such request or
(y) the period during which (in the good faith determination of Aspen's
Board of Directors) filing the Demand Registration would be detrimental to
Aspen, whichever occurs first. This right to delay filing a Demand
Registration may not be exercised by Aspen more than once in any 12-month
period.
(e) Suspension of Demand Registration. Aspen shall maintain the
effectiveness of any Demand Registration for a period of up to 90 days
after the same has been first declared effective by the Commission,
provided that Aspen may, by written notice to the Selling Stockholders,
suspend or withdraw any such registration statement and require that the
Selling Stockholders 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 (other than a
Registration Statement on Form S-4 or Form S-8, or
any successor form) 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, each such Selling Stockholder shall
immediately discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Stockholder has received copies
of a supplemented or amended Prospectus or until such Selling Stockholder
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.
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2.2. Piggyback Registration
(a) Request for Inclusion and Best Efforts. If Aspen determines
to file a Registration Statement for an underwritten public offering (other
than a Registration Statement filed pursuant to Section 2.1) (a "Piggyback
Registration"), then Aspen shall promptly, prior to such filing, provide
written notice to all Stockholders 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 Stockholder or
Stockholders 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 Stockholder or Stockholders 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 Stockholder or
Stockholders, provided that Aspen shall have the right to postpone or
withdraw any registration effected pursuant to this Section 2.2 without
obligation to any Stockholder.
(b) Underwriting. The right of any Stockholder to include its
Registrable Shares in such registration pursuant to Section 2.2 shall be
conditioned upon such Stockholder's participation in the contemplated
underwritten public offering on the terms set forth in this Agreement. All
Stockholders 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 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
Stockholders 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 Stockholders and Other Holders requesting
registration in accordance with the respective
number of shares of Common Stock held when Aspen
provides notice as specified in Section 2.2(a).
(ii) If any Stockholder or Other Holder is entitled to
include more securities than such Stockholder or
Other Holder requested to be registered, then the
excess securities shall be allocated among other
requesting Stockholders 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.
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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 on an appropriate form as soon as
practicable, and cause such Registration Statement
to be declared effective by the Commission at the
earliest practicable date and in any event within 20
Business Days, provided that Aspen shall not be
required to file within such 20-Business Days if the
Registration Statement is required to include any
historical or pro forma financial statements not
previously filed by Aspen with the Commission;
(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 such lesser
period until all such Registrable Shares are sold;
(iii) as expeditiously as possible furnish to each Selling
Stockholder 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
Stockholder may reasonably request in order to
facilitate the public sale or other disposition of
the Registrable Shares owned by such Selling
Stockholder;
(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 of such states as the Selling
Stockholders shall reasonably request, and do any
and all other acts and things that may be necessary
or desirable to enable the Selling Stockholders to
consummate the public sale or other disposition in
such states of the Registrable Shares owned by the
Selling Stockholder, 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 Stockholders, 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 Stockholders,
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
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information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in
connection with such Registration Statement;
(viii) notify each Selling Stockholder 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
Stockholder, 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 Stockholders and after having done so the Prospectus is
amended to comply with the requirements of the Securities Act, Aspen shall
promptly notify the Selling Stockholders and, if requested, the Selling
Stockholders shall immediately cease making offers of Registrable Shares
and return all Prospectuses to Aspen. Aspen shall promptly provide the
Selling Stockholders with revised Prospectuses and, following receipt of
the revised Prospectuses, the Selling Stockholders shall be free to resume
making offers of the Registrable Shares.
2.4. Allocation of Expenses. Aspen will pay all Registration Expenses
for all registrations under this Agreement; provided, however, that if a Demand
Registration under Section 2.1 is withdrawn at the request of the Initiating
Holders (other than as a result of information concerning the business or
financial condition of Aspen that is made known to the Stockholders after the
date on which such registration was requested) and if the Initiating Holders
elect not to have such registration counted as a registration requested under
Section 2.1(a), then the Initiating Holders shall pay the Registration Expenses
of such registration pro rata in accordance with the number of their Registrable
Shares included in the Demand Registration. 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 and the fees and expenses of one
counsel selected by the Selling Stockholders to represent the Selling
Stockholders, 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 Stockholders' own counsel (other than the counsel selected to
represent all Selling Stockholders).
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 Stockholder,
each underwriter of such Registrable Shares, and each other person, if any,
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who controls such Selling Stockholder 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
Stockholder, 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 Stockholder, underwriter and each such controlling person for any
legal or any other expenses reasonably incurred by such Selling
Stockholder, 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 Stockholder,
underwriter or controlling person and stated to be specifically for use in
the preparation thereof.
(b) Indemnification by Selling Stockholders. In the event of any
registration of any of the Registrable Shares under the Securities Act
pursuant to this Agreement, each Selling Stockholder, 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
necessary to make the statements therein not misleading, if the statement
or omission was made in reliance upon and in conformity with information
relating to such Selling Stockholder furnished in writing to Aspen by or on
behalf of such Selling Stockholder specifically for use in connection with
the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of a Selling
Stockholder hereunder shall be limited to an amount equal to the net
proceeds to such Selling Stockholder 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
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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 Stockholders 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 Stockholders
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 Stockholders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Aspen and the
Selling Stockholders 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 Stockholder be liable or responsible for any amount in excess of
the net proceeds received by such Selling Stockholder from the offering of
Registrable Shares and (b) Aspen shall be liable and responsible for any
amount in excess of such 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.
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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 Stockholder included in any
registration shall furnish to Aspen such information regarding such Stockholder
and the distribution proposed by such Stockholder 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
Stockholder, if requested by Aspen and the managing underwriters of an
underwritten public offering by Aspen of Common Stock, shall not sell or
otherwise transfer or dispose of any Registrable Shares or other securities of
Aspen other than the securities covered by the registration statement held by
such Stockholder 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 Stockholder 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 (A) 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),
(B) a copy of the most recent annual or quarterly report of
Aspen, and (C) such other reports and documents of 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 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 after the first anniversary of the date of this Agreement any date on
which (i) all of the Registrable Shares of such Stockholder may be sold within a
three-month period pursuant to Rule 144 and (ii) the number of Registrable
Shares held by such Stockholder is less than the limitation set forth in
paragraph (e)(1)(i) of Rule 144.
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3. Transfers of Rights
This Agreement, and the rights and obligations of each Stockholder
hereunder, may be assigned by such Stockholder to any person or entity to which
at least 25,000 Shares are transferred by such Stockholder, and such transferee
shall be deemed a "Stockholder" 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 Stockholders. 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 of 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.
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.
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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 Stockholder: At such Stockholder's address of
record in the stock transfer records
of Aspen
With a copy to: Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 202.347.2172
Attention: Xxxxxxx X. Xxxxxxx
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 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 two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile signature.
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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: Executive Vice President
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
XXXXXXX X. XXXXXXX
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