EXHIBIT 99.5
AMENDMENT NO. 1
TO
WARRANT NO. __
OF
ASPEN TECHNOLOGY, INC.
This Amendment No. 1 (the "AMENDMENT") to Warrant No. __ dated February
___, 2002 (the "WARRANT"), is entered into as of March 19, 2002 between Aspen
Technology, Inc., a Delaware corporation (the "Company"), and [__________] (the
"Holder"). Terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Warrant.
WHEREAS, the Company and the Purchasers, including the Holder, are
contemporaneously entering into the Amended and Restated Securities Purchase
Agreement dated as of the date hereof (the "PURCHASE AGREEMENT") and
consummating the Third Closing under the Purchase Agreement;
WHEREAS, in connection with the execution and delivery of the Purchase
Agreement and the consummation of the Third Closing, the Company and the
Purchasers wish to amend certain provisions of each of the Warrants previously
issued to the Purchasers by the Company;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the Company and the Holder agree as follows:
1. Section 7 of the Warrant is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"7. Reservation of Warrant Shares. The Company covenants that it
will at all times reserve and keep available out of the aggregate of its
authorized but unissued and otherwise unreserved Common Stock, solely for
the purpose of enabling it to issue Warrant Shares upon exercise of the
Warrants, each as therein provided, 791,044 shares of Common Stock (as
adjusted for any stock splits, stock combinations or similar events), free
from preemptive rights or any other contingent purchase rights of persons
other than the Holder (taking into account the adjustments and
restrictions of Section 8), less any shares of Common Stock issued upon
exercise of the Warrants and reductions reasonably agreed to by the
Purchasers to reflect shares of Common Stock issued upon exercise of the
Warrants. The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company will take
all such action as may be necessary to assure that such shares of stock
may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any securities exchange or
automated quotation system upon which the stock may be listed (it being
understood that the Company shall not be required to take any action to
assure the issuance of stock to any Purchaser to the extent that such
issuance is prohibited by some act or failure to act of such Purchaser)."
2. Section 10(c) of the Warrant is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"(c) In the event that any Purchaser's receipt of shares of Common
Stock is restricted based on the Issuable Maximum, the Company shall
either: (i) use its best efforts to obtain the required shareholder
approval necessary to permit the issuance of such Excess Shares as soon as
is reasonably possible, but in any event not later than the 60th day after
the event giving rise to such Excess Shares, or (ii) within five Trading
Days after such event, pay to such Purchaser, as liquidated damages and
not as a penalty, in an amount equal to the difference between the
Black-Scholes value of this Warrant assuming the limitations in Section
10(b) were not applicable and the Black-Scholes value of this Warrant
after giving effect to the limitations in Section 10(b), measured as of
the date of such event or, if greater, the date of payment (such
difference, the "WARRANT DAMAGE AMOUNT"). For the purposes of this Section
10(c) the Black-Scholes value of this Warrant shall be calculated in a
manner consistent with the manner in which the Company performs
Black-Scholes calculations to determine the fair value of option grants
for the purposes of the financial statements contained in its SEC Reports.
If the Company elects the option set forth in clause (i) above and the
Company fails to obtain the required shareholder approval on or prior to
the 60th day after such event, then within three Trading Days after such
60th day, the Company shall pay the Warrant Damage Amount to such
Purchaser, as liquidated damages and not as a penalty. Any Warrant Damage
Amount may be paid at the Company's option in cash or in Series C
Preferred Stock. In the event that the Company elects to pay the Warrant
Damage Amount in shares of Series C Preferred Stock, the number of shares
of Series C Preferred Stock to be issued to the Purchaser in payment of
the Warrant Damage Amount shall be determined by dividing the total
Warrant Damage Amount then payable to such Purchaser by $10,000 (the
initial Stated Value per share of the Series C Preferred Stock) and
rounding downward to the nearest whole number of shares of Series C
Preferred Stock. In addition, the Company shall pay to the Purchaser in
cash the amount, if any, by which the Warrant Damage Amount payable to
such Purchaser exceeds the aggregate Stated Value of the Series C
Preferred Stock issued pursuant to the preceding sentence. If the Warrant
Damage Amount payable to such Purchaser is less than $10,000, then the
Corporation shall pay such amount to such Purchaser entirely in cash."
3. This Amendment may be executed in counterparts, both of which when
taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by both parties to this Amendment
and each party has delivered its counterpart to the other party.
4. Except as otherwise set forth in this Amendment, all other terms and
conditions of the Warrant shall remain the same and in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed by their respective authorized signatories as of the date first
indicated above.
ASPEN TECHNOLOGY, INC.
By:__________________________________
Xxxx X. Xxxxxxx
Senior Vice President and
Chief Financial Officer
[HOLDER]
By:__________________________________
Name:________________________________
Title:_______________________________
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