Exhibit 99.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of February 8, 2002 is entered
into between Aspen Technology, Inc., a Delaware corporation ("Aspen"), and
Accenture LLP, an Illinois general partnership registered as a limited liability
partnership ("Accenture").
PRELIMINARY STATEMENT
A. This Agreement is being entered into in connection with the Stock
Issuance Agreement for Development and the Stock Issuance Agreement for License
Fees, each dated as of the date hereof and entered into, between Aspen and
Accenture, pursuant to which, among other things, Aspen is agreeing to issue
shares of its common stock to Accenture in the circumstances set forth therein.
B. Aspen and Accenture desire to establish the terms and conditions
pursuant to which registration of such shares of common stock may 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:
"THIS AGREEMENT" shall mean this Agreement as in effect on the date hereof
and as hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
"ASPEN COMMON" shall mean the common stock, $.10 par value per share, of
Aspen.
"BUSINESS DAY" shall mean any day that the Commission is open and
conducting business.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean 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.
"ISSUANCE AGREEMENTS" shall mean, together, the Stock Issuance Agreement
for Development and the Stock Issuance Agreement for License Fees, each dated as
of the date hereof and entered into, between Aspen and Accenture, as either such
agreement may be amended from time to time.
"OTHER HOLDERS" shall mean holders of securities of Aspen (other than
Stockholders to the extent of their holdings of Registrable Shares) who are
entitled, by contract with Aspen, to have their securities included in a
Registration Statement.
"PROSPECTUS" shall mean 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.
"REGISTRABLE SHARES" shall mean (a) the shares of Aspen Common issued to
Accenture pursuant to the Issuance Agreements, (b) any other securities issued
by Aspen in exchange for any of such shares of Aspen Common (but, with respect
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 in a transaction in which the rights under this Agreement are not
assigned and is no longer held of record by a Stockholder.
"REGISTRATION EXPENSES" shall mean all reasonable expenses incurred by
Aspen in complying with the provisions of Section 2, 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, fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of any offering of Registrable Securities,
and expenses 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 the Stockholders' own counsel.
"REGISTRATION STATEMENT" shall mean 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).
"SECURITIES ACT" shall mean 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" shall mean any Stockholder owning Registrable Shares
included in a Registration Statement.
"STOCKHOLDERS" shall mean Accenture and any other persons or entities
constituting Stockholders pursuant to Section 3.
2. REGISTRATION RIGHTS
2.1. SHELF REGISTRATIONS
(a) TIMING OF SHELF REGISTRATIONS.
(i) Aspen shall file, by no later than 121 days after the date
hereof, a Registration Statement to cause the Initial Shares (as
defined in the Stock Issuance Agreement for License Fees dated the
date hereof between Aspen and Accenture) to be registered under the
Securities Act for resale by each Selling Stockholder in the manner
designated by it to the extent necessary to permit their sale on a
continuous basis pursuant to Rule 415 under the Securities Act in
accordance with Section 2.1(d).
(ii) In addition, Aspen shall file a Registration Statement (each
a "Subsequent Registration Statement") with respect to each subsequent
issuance to Accenture of shares of Aspen Common pursuant to either of
the Issuance Agreements to cause such Registrable Shares to be
registered under the Securities Act for resale by each Selling
Stockholder in the manner designated by it to the extent necessary to
permit their sale on a continuous basis pursuant to Rule 415 under the
Securities Act in accordance with Section 2.1(d), and shall use its
reasonable efforts to file such Registration Statement as soon as
practicable after the date of such issuance.
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(iii) Any registration of Registrable Shares pursuant to this
Section 2.1(a) is referred to herein as a "Shelf Registration."
(iv) Subject to Aspen's right to suspend or withdraw Registration
Statements pursuant to Section 2.1(b), Aspen shall maintain the
effectiveness of a Shelf Registration from the date of effectiveness
of such Shelf Registration until the first anniversary of the date on
which the Registrable Shares registered thereby were issued or, if
earlier, the date on which all Registrable Shares registered thereby
have been sold by the Selling Stockholders.
(b) DEFERRAL, WITHDRAWAL OR SUSPENSION OF SHELF REGISTRATIONS. If at any
time that Aspen would otherwise be required to file a Subsequent Registration
Statement, to obtain the effectiveness of a Subsequent Registration Statement or
to maintain the effectiveness of a Registration Statement, Aspen is engaged in
any activity, public offering or transaction or preparations or negotiations for
any activity, public offering or transaction (A) that Aspen desires to keep
confidential for bona fide business reasons or that would be adversely affected
by such Registration Statement and (B) 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, then Aspen may direct:
(i) that the filing of any Subsequent Registration Statement
otherwise required to be filed pursuant to Section 2(a) be delayed,
(ii) that any pending Subsequent Registration Statement that was
filed in accordance with Section 2(a)(iii) and that has not been
declared effective be withdrawn or that efforts to obtain the
effectiveness thereof be suspended, and
(iii) that any then-effective Registration Statement be withdrawn
and/or require that the Selling Stockholders immediately cease the
sale of shares of Aspen Common pursuant thereto by providing written
notice to the Selling Stockholders;
provided that Aspen may not direct any such delay, withdrawal, suspension or
cessation with respect to any Registration Statement (w) during the 45-day
period commencing on the date that the Initial Registration Statement is
declared effective, (x) during the 30-day period commencing on the date that the
Subsequent Registration Statement is declared effective, but such restriction
shall apply only if Aspen exercised its right under Section 2.1(b)(i) to delay
the filing of such Subsequent Registration Statement, (y) for more than a total
of 90 days during the one-year period commencing on the date that the Initial
Registration Statement is initially declared effective or (z) for more than a
total of 90 days during the one-year period commencing on the first anniversary
of the date that the Initial Registration Statement is initially declared
effective.
(c) CONSEQUENCES OF CESSATION OF SALES UNDER A SHELF REGISTRATION. Upon
receipt of a notice pursuant to Section 2.1(b)(iii), each Selling Stockholder
shall immediately discontinue any sales of Registrable Shares pursuant to such
Shelf Registration 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.
(d) SALES THROUGH MARKET MAKERS. All sales of Registrable Shares pursuant
to a Shelf Registration shall be effected through any or all of Banc of America
Securities LLC, First Union Securities, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxx Xxxxxxx Xxxx
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Xxxxxx as brokers or dealers or, to the extent agreed upon by Aspen (which
agreement shall not be unreasonably withheld), any other brokerage firm or
dealer acting as a market maker for Aspen Common. Sales of such Registrable
Shares shall not be effected through underwritten public offerings.
2.2. REQUIRED REGISTRATION
(a) TIMING OF REQUIRED REGISTRATION. Subject to the provisions of Section
2.2(b), at any time after the date hereof at which the number of Registrable
Shares exceeds ten percent of the total number of shares of Aspen Common then
outstanding, a Stockholder or Stockholders may request, in writing, that Aspen
effect the registration of Registrable Shares having an aggregate value of at
least $10,000,000, based on the public market price on the date of such request
(each a "Required Registration"), for sale in an underwritten public offering in
accordance with Section 2.2(d).
(b) NOTICE TO OTHER STOCKHOLDERS. Upon receipt of any request for
registration pursuant to this Section 2.2, Aspen shall promptly give written
notice of such proposed registration to all other Stockholders. Such
Stockholders shall have the right, by giving written notice to Aspen within 10
days after Aspen provides its notice, to elect to have included in such
registration such of their Registrable Shares as such Stockholders may request
in such notice of election, subject to Section 2.2(d). Thereupon, Aspen shall
use its reasonable efforts to cause such Registrable Shares to be registered
under the Securities Act to the extent necessary to permit their inclusion is
the underwritten public offering in accordance with Section 2.2(e).
(c) NUMBER OF REQUIRED REGISTRATIONS. Aspen shall not be required to
effect more than one Required Registration pursuant to Section 2.2(a). For
purposes of this Section 2.2(c), a Registration Statement shall not be counted
as a Required Registration until such time as such Registration Statement has
been declared effective by the Commission, unless the Stockholders requesting
registration withdraw their request for such registration (other than as a
result of information concerning the business or financial condition of Aspen
that is made known to such Stockholders after the date on which such
registration was requested) and do not elect to pay the Registration Expenses
therefor pursuant to Section 2.5.
(d) DEFERRAL OF REQUIRED REGISTRATION. If at the time of a Required
Registration request pursuant to Section 2.2(a),
(i) Aspen is engaged (or Aspen's Board of Directors has
determined in good faith to engage within 90 days after the date on
which such request was delivered to Aspen) 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 such Required 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 a Registration
Statement for such Required Registration at such time and (B) it is in
the best interests of Aspen to defer proceeding with such Required
Registration at such time,
then Aspen may direct that the filing of a Registration Statement for such
Required Registration be delayed for a period not to exceed (x) 90 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 such
Registration Statement would be detrimental to Aspen, whichever occurs first.
This right to
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delay filing such Required Registration may not be exercised by Aspen more than
once with respect to a Required Registration.
(e) UNDERWRITING. A Required Registration may be effected only in
connection with a firm commitment underwriting. The right of any Stockholder to
include its Registrable Shares in a Required Registration pursuant to Section
2.2(a) 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,
provided that the identity of the lead managing underwriter or co-lead managing
underwriters, as the case may be, shall be subject to the approval of the
Stockholder or Stockholders initiating the request for the Required
Registration, which approval shall not be unreasonably withheld or conditioned,
provided that such lead managing underwriter is, or such co-lead managing
underwriters are, investment banking firm(s) of nationally recognized standing.
Notwithstanding any other provision of this Section 2.2, if the managing
underwriters reasonably 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 Required Registration and
shall so advise all Stockholders 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) Any securities to be offered by Aspen and the securities of
Aspen held by holders other than the Stockholders and the Other
Holders shall be excluded from such Required 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 Required 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 Aspen Common 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 Stockholder or any 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 held by such Stockholder
or Other Holder shall be excluded or withdrawn from such registration.
2.3. PIGGYBACK REGISTRATION
(a) REQUEST FOR INCLUSION. If Aspen determines to file a Registration
Statement for an underwritten public offering (a "Piggyback Registration"), then
Aspen shall, 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 2.3(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 reasonable 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
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Stockholder or Stockholders, provided that Aspen shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2.3
without obligation to any Stockholder.
(b) UNDERWRITING. The right of any Stockholder to include its Registrable
Shares in a Piggyback Registration pursuant to Section 2.3(a) 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 2.3, if the managing
underwriters reasonably 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 Stockholders 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 the
Stockholders and the Other Holders 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
Aspen Common held when Aspen provides notice as specified in Section
2.3(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 Stockholder or any 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 held by such Stockholder
or Other Holder shall be excluded or withdrawn from such registration.
2.4. REGISTRATION PROCEDURES
(a) GENERAL. If and whenever Aspen is required by the provisions of this
Agreement to use its reasonable 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 expeditiously as practicable, and take such
additional steps as are reasonably practicable to cause or enable the
Commission to declare such Registration Statement to be effective at
the earliest practicable date;
(ii) as expeditiously as practicable 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 the period, if any, specified
elsewhere herein or for such lesser period until all such Registrable
Shares are sold;
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(iii) as expeditiously as practicable 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 practicable use its reasonable 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 Stockholders, 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 or quoted on each
securities exchange or automated or inter-dealer quotation system on
which similar securities issued by Aspen are then listed;
(vi) provide a transfer agent and registrar for all such
Registrable Shares no later than the effective date of such
Registration Statement;
(vii) subject to such confidentiality arrangements as Aspen may
reasonably require, make available for inspection by the Selling
Stockholders, any managing underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
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 information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with their
due diligence investigation with respect to such Registration
Statement;
(viii) in the case of an underwritten offering, obtain a "cold
comfort" letter or letters from Aspen's independent public accountants
and furnish a signed counterpart of a customary opinion of counsel of
Aspen, in each case, addressed to each Selling Stockholder, if
appropriate, and the underwriters dated the effective date of the
Registration Statement and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement;
(ix) as expeditiously as practicable, notify each Selling
Stockholder or, in the case of an underwritten offering, each managing
underwriter at any time when a Prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, of the
occurrence 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;
(x) as expeditiously as practicable, notify each Selling
Stockholder or, in the case of an underwritten offering, each managing
underwriter, promptly after Aspen shall receive notice thereof, of the
time when such Registration Statement has become
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effective or a supplement to any Prospectus forming a part of
such Registration Statement has been filed; and
(xi) as expeditiously as practicable following the
effectiveness of such Registration Statement, notify each Selling
Stockholder or, in the case of an underwritten offering, each
managing underwriter 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, as
expeditiously as practicable, notify the Selling Stockholders and, if
requested, the Selling Stockholders shall immediately cease making offers
of Registrable Shares. Aspen shall, as expeditiously as practicable,
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.
(c) MANAGEMENT COOPERATION. In connection with a Required
Registration of Registrable Shares, management of Aspen will make a good
faith effort to participate in such road show meetings as are requested by
the lead managing underwriter of such offering; provided that any such
request shall be reasonable in scope in light of the size and nature of the
offering and in light of the applicable management team members'
then-existing responsibilities to manage the business of Aspen.
2.5. ALLOCATION OF EXPENSES. Aspen will pay all Registration Expenses for
all registrations under this Agreement; provided, however, that if a
registration under Section 2.2(a) is withdrawn at the request of Accenture
(other than as a result of information concerning the business or financial
condition of Aspen that is made known to the Selling Stockholders after the date
on which such registration was requested) and if Selling Stockholders holding a
majority of the Registrable Shares proposed to have been registered elect not to
have such registration counted as a registration requested under Section 2.2,
the Selling Stockholders shall pay the reasonable Registration Expenses of such
registration.
2.6. 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,
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
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registration, qualification or compliance; and Aspen will reimburse each
such Selling Stockholder, underwriter and 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,
made in reliance upon and in conformity with written information furnished
to Aspen, by 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 and to the
extent that 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 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
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
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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 2.6 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 2.6 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 2.6, (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.
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 of Aspen Common that constitutes a Piggyback Registration, shall not
sell or otherwise transfer or dispose of any Registrable Shares or other
securities of Aspen 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 (a) such
period shall not extend beyond 90 days after the date of the final prospectus
for such offering and (b) such Stockholder was offered the opportunity pursuant
to Section 2.3(a) to have such Stockholder's Registrable Shares registered by
Aspen 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 and that the underwriters have not limited the number of such
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Stockholder's Registrable Shares to be included in the Piggyback Registration as
contemplated by the fourth sentence of Section 2.2(e). 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 90-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 its 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 reasonable 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 Stockholder 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 Aspen as such Stockholder 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 2.2, 2.3 AND 2.4 TERMINATION. All of Aspen's obligations to
register Registrable Shares of any Stockholder under Sections 2.2 and 2.4 shall
terminate on the first date on which (a) no additional shares of Aspen Common
are subject to issuance to Accenture under either of the Issuance Agreements and
(b) all of the Registrable Shares of such Stockholder may be sold within a
three-month period pursuant to Rule 144. All of Aspen's obligations to register
Registrable Shares under Section 2.3 shall terminate on June 30, 2006.
3. TRANSFERS OF RIGHTS
This Agreement, and the rights and obligations of each Stockholder
hereunder, may be assigned by such Stockholder without consideration to any
partner, limited liability company member or stockholder of such Stockholder or
to a controlled affiliate of Accenture Ltd, an exempted company organized under
the Companies Xxx 0000 of Bermuda or of any such partner, limited liability
company member or stockholder, and such assignee thereafter shall be deemed a
"Stockholder" for purposes of this Agreement; provided that the assignee
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 Stockholders holding at
least a majority of the Registrable Shares. Notwithstanding the foregoing, this
Agreement may not be amended or terminated and the observance of any term
hereunder may not be waived with respect to any Stockholder without the written
consent of such Stockholder unless such amendment, termination or waiver applies
to all Stockholders in the same fashion. Aspen shall give prompt written notice
of any amendment or termination hereof or waiver hereunder to any Stockholder
that did not consent in writing to such amendment, termination or waiver. 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
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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.
4.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of New York. 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
and General Counsel
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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 copies to: Accenture LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: 312.652.8136
Attention: General Counsel
Accenture LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal and Commercial Department
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 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.
* * *
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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: Senior Vice President, Finance
and Chief Financial Officer
ACCENTURE LLP
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Title: Partner
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