Exhibit 99.2
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "AGREEMENT")
is made and entered into as of March 19, 2002, among Aspen Technology, Inc., a
Delaware corporation (the "COMPANY"), and the investors signatory hereto (each
such investor is a "Purchaser" and all such investors are, collectively, the
"PURCHASERS").
WHEREAS, the Company and the Purchasers entered into a Registration Rights
Agreement, dated as of February 6, 2002 (the "ORIGINAL REGISTRATION RIGHTS
AGREEMENT") pursuant to which the Company and the Purchasers provided for
certain arrangements with respect to the registration of shares of common stock
of the Company under the Securities Act of 1933, as amended;
WHEREAS, the Company and the Purchasers 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; and
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 the Original Registration Rights
Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers agree
that the terms of the Original Registration Rights Agreement shall be amended
and restated as follows:
1. Definitions. In addition to the terms defined elsewhere in this
Agreement, (a) capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Purchase Agreement, and (b) the following
terms have the meanings indicated:
"FILING DATE" means, with respect to the initial Registration
Statement required to be filed pursuant to Section 2, March 25, 2002, and,
with respect to any additional Registration Statements that may be
required pursuant to Section 3(c), the 15th day following the date on
which the Company first knows, or reasonably should have known, that such
additional Registration Statement is required under such Section.
"HOLDER" means any holder, from time to time, of Registrable
Securities.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of
the Registrable Securities covered by the Registration Statement, and all
other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means any Common Stock (including
Underlying Shares) issued or issuable pursuant to the Transaction
Documents, together with any securities issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing.
"REGISTRATION STATEMENT" means the initial registration statement
required to be filed hereunder and any additional registration statements
contemplated by Section 3(c), including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"REQUIRED EFFECTIVENESS DATE" means, with respect to the initial
Registration Statement required to be filed hereunder, May 30, 2002, and,
with respect to any additional Registration Statements that may be
required pursuant to Section 3(c), the 60th day following the date on
which such additional Registration Statement is required to be filed
hereunder.
"RULE 415," "RULE 424" and "RULE 461" means Rule 415, Rule 424 and
Rule 461, respectively, promulgated by the Commission pursuant to the
Securities Act, as such Rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SPECIAL COUNSEL" means one special counsel to the Holders. Unless
the Holders notify the Company otherwise, the Special Counsel will be the
Purchaser Counsel identified in the Purchase Agreement.
2. Shelf Registration
(a) As promptly as possible, and in any event on or prior to each
Filing Date, the Company shall prepare and file with the Commission a "shelf"
Registration Statement covering the resale of all Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-3 (except if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3, in which case such
registration shall be on such other form as the Company is eligible to use, and
shall contain (except if otherwise directed by the Holders) the "Plan of
Distribution" attached hereto as Annex A. The Company shall use its best efforts
to cause the Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in any
event on or prior to the Required Effectiveness Date, and shall use its best
efforts to keep such Registration Statement continuously effective under the
Securities Act until the earlier of (i) the second anniversary of the Third
Closing and (ii) when all Registrable Securities covered by such Registration
Statement have been sold (the "EFFECTIVENESS PERIOD"). The Company shall notify
each Holder in writing promptly (and in any event within one business day) after
receiving notification from the Commission that a Registration Statement has
been declared effective.
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(b) The initial Registration Statement to be filed hereunder shall
cover the sale by the Holders of at least the Required Minimum number of shares
of Common Stock.
(c) Notwithstanding anything in this Agreement to the contrary, if
after the Third Closing and prior to the Required Effectiveness Date applicable
to the initial Registration Statement to be filed hereunder, the Company is
engaged in a material merger, acquisition or sale and the Board of Directors
determines in good faith, by appropriate resolutions, that, as a result of such
activity, (A) it would be materially detrimental to the Company (other than as
relating solely to the price of the Common Stock) to file a Registration
Statement at such time and (B) it is in the best interests of the Company to
defer proceeding with such registration at such time, then the Filing Date for
the initial Registration Statement to be filed hereunder may be extended and the
Required Effectiveness Date may be extended, but the Required Effectiveness Date
shall not be extended, in any event, beyond June 28, 2002. In no event, however,
shall this right be exercised to delay the filing of or proceeding with a
Registration Statement beyond the period during which (in the good faith
determination of the Company's Board of Directors) such filing or proceeding
would be materially detrimental to the Company.
(d) Notwithstanding anything in this Agreement to the contrary,
after 20 consecutive trading days of continuous effectiveness of the initial
Registration Statement filed and declared effective pursuant to this Agreement,
the Company may, by written notice to the Holders, suspend sales under a
Registration Statement after the effective date thereof and/or require that the
Holders immediately cease the sale of shares of Common Stock pursuant thereto
and/or defer the filing of any subsequent Registration Statement if:
(i) the Company is engaged in a material merger, acquisition
or sale and the Board of Directors determines in good faith, by
appropriate resolutions, that, as a result of such activity, (A) it
would be materially detrimental to the Company (other than as
relating solely to the price of the Common Stock) to file a
Registration Statement at such time and (B) it is in the best
interests of the Company to defer proceeding with such registration
at such time, or
(ii) the Company files a Registration Statement with the
Commission for the purpose of registering under the Securities Act
any securities to be publicly offered and sold by the Company in a
bona fide firm commitment underwritten offering.
Upon receipt of such notice, each Holder shall immediately
discontinue any sales of Registrable Securities pursuant to such registration
until such Holder has received copies of a supplemented or amended Prospectus or
until such Holder is advised in writing by the Company 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. In no event, however, shall this right be exercised to suspend sales
beyond the period during which (in the good faith determination of the Company's
Board of Directors) the failure to require such suspension would be materially
detrimental to the Company. The Company's rights under this Section 2(d) may be
exercised (A) with respect to clause (i) above, not more than three (3) times
(which may be consecutive) in any twelve-month period and may not be exercised
for a period of more than 30 days each, and (B) with respect to clause (ii)
above, not
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more than one (1) time and may not be exercised for a period of more than 20
days in any twelve-month period. In no event may the Company exercise its rights
pursuant to subclauses (A) and (B) above for an aggregate of more than 90 days.
Immediately after the end of any suspension period under this Section 2(d), the
Company shall take all necessary actions (including filing any required
supplemental prospectus) to restore the effectiveness of the applicable
Registration Statement and the ability of the Holders to publicly resell their
Registrable Securities pursuant to such effective Registration Statement.
(e) Upon the occurrence of any Event (as defined below) and on every
monthly anniversary thereof until the applicable Event is cured, as partial
relief for the damages suffered therefrom by the Holders (which remedy shall not
be exclusive of any other remedies available at law or in equity), the Company
shall pay to each Holder an amount (the "Registration Damage Amount"), as
liquidated damages and not as a penalty, equal to 1.0% for the first two months
and 2% for each month thereafter of the aggregate purchase price paid under the
Purchase Agreement for the Securities held by such Holder, with such purchase
price being allocated between the Shares and Warrants in the same manner as such
purchase price is allocated for the purposes of the Company's consolidated
financial statements, provided that the Registration Damage Amount shall not
accrue after the date, if any, on which such Holder has exercised its rights
under Section 10 of the Series B Certificate of Designations to have the Company
repurchase its Shares or Underlying Shares with respect to such repurchased
interest. The Registration Damage Amount payable pursuant to the terms hereof
shall apply on a pro-rata basis for any portion of a month prior to the cure of
an Event. The accrued but unpaid Registration Damage Amount payable to each
Holder shall be paid on the last day of each calendar month, and may be paid at
the Company's option in cash or in Series C Preferred Stock. The Company shall
deliver written notice to the Holders indicating the manner in which it intends
to pay the Registration Damage Amount at least five Trading Days before the
payment date for such Registration Damage Amount. Failure to timely provide such
written notice shall be deemed an election by the Company to make the payment in
cash. In the event that the Company elects to pay the Registration Damage Amount
in shares of Series C Preferred Stock, the number of shares of Series C
Preferred Stock to be issued to the Holder in payment of the Registration Damage
Amount shall be determined by dividing the total Registration Damage Amount then
payable to such Holder with respect to all of such Holder's Shares and Warrants
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 Holder in cash the
amount, if any, by which the Registration Damage Amount payable to such Holder
exceeds the aggregate Stated Value of the Series C Preferred Stock issued
pursuant to the preceding sentence. If the total Redemption Price payable to the
Holder is less than $10,000, then the Corporation shall pay such amount to such
Holder entirely in cash. For purposes hereof, each of the following shall
constitute an "Event":
(i) a Registration Statement is not filed on or prior to the
applicable Filing Date or is not declared effective on or prior to
the applicable Required Effectiveness Date, except as a result of an
extension permitted pursuant to Section 2(c); or
(ii) after the Effective Date for a Registration Statement and
until the end of the Effectiveness Period, a Holder is not permitted
to sell Registrable
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Securities under such Registration Statement (or a subsequent
Registration Statement filed in replacement thereof) for any reason
except (A) as a result of a suspension permitted pursuant to Section
2(d) and (B) for five or more Trading Days, whether or not
consecutive, for which such sales are not permitted other than as a
result of a suspension pursuant to Section 2(d).
(iii) the Common Stock is not listed or quoted, or is
suspended from trading, on an Eligible Market for a period of five
consecutive Trading Days or ten aggregate Trading Days in any
365-day period;
(iv) the Company fails for any reason to deliver a certificate
evidencing any Securities to a Holder within ten Trading Days after
delivery of such certificate is required pursuant to any Transaction
Document or the exercise or conversion rights of the Holders
pursuant to the Transaction Documents are otherwise suspended for
any reason;
(v) the Company fails to have available both (A) a sufficient
number of authorized but unissued and otherwise unreserved shares of
Common Stock available to issue Underlying Shares upon any exercise
of the Warrants or any conversion of the Shares and does not make
available a sufficient number of authorized but unissued and
otherwise unreserved shares of Common Stock for such issuance within
60 days after the occurrence of such deficiency and (B) at least
6,401,394 authorized but unissued and otherwise unreserved shares of
Common Stock (as adjusted for any stock splits, stock combinations
or similar events), less any shares of Common Stock issued upon
conversion of the Shares, as dividends on the Shares, upon exercise
of the Warrants or upon redemption of the Shares; or
(vi) after the Effective Date for a Registration Statement,
any Registrable Securities covered by such Registration Statement
are not listed on an Eligible Market.
(f) At the election of any Holder, any Registration Damage Amount
required to be paid by the Company to such Holder pursuant to Section 2(e) may
instead be added to the Stated Value of the outstanding Series B Preferred Stock
then owned by such Holder. A Holder may make such election by delivering written
notice to the Company at any time before payment of such Registration Damage
Amount is received by such Holder.
(g) If (i) any Event occurs and remains uncured for 60 days; (ii)
the Company fails to make any cash payment required under the Transaction
Documents and such failure is not cured within five days after notice of such
default is first given to the Company by a Holder; or (iii) the Company defaults
in the timely performance of any other obligation under the Transaction
Documents and such default continues uncured for a period of 20 days after the
date on which notice of such default is first given to the Company by a Holder
(it being understood that no prior notice need be given in the case of a default
that cannot reasonably be cured within 20 days), then at any time or times
thereafter any Holder may deliver to the Company a notice (a "Repurchase
Notice") requiring the Company to repurchase all or any portion of the Shares
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and any Underlying Shares issued upon conversion of the Shares then held by such
Holder at a price per share equal to the Event Equity Value (measured based on
the Underlying Shares into which Shares or Warrants are convertible or
exercisable, without giving effect to any limitations on conversion or
exercise). Notwithstanding the foregoing, if the Holder is entitled to deliver
the Repurchase Notice for the reasons set forth in clause (i) hereof, and the
Holder is entitled to receive payments in accordance with Section 2(e), then the
Holder shall deliver such Repurchase Notice to the Company either (x) within
three days of the date on which the Event occurred, or (y) if not delivered to
the Company within three days, then no earlier than the 61st day following the
date on which the Event occurred. If a Holder delivers a Repurchase Notice
pursuant to this Section, the Company shall pay the aggregate repurchase price
(together with any other payments, expenses and liquidated damages then due and
payable pursuant to the Transaction Documents) to such Holder in cash or in
shares of Series C Preferred Stock, at the option of the Company, no later than
the fifth Trading Day following the date of delivery of the Repurchase Notice,
and upon receipt thereof such Holder shall deliver original certificates
evidencing the Securities so repurchased to the Company (to the extent such
certificates have been delivered to such Holder). Notwithstanding the foregoing,
immediately upon the occurrence of a Bankruptcy Event, each Holder will
automatically be deemed to have delivered a Repurchase Notice pursuant to this
Section and will be entitled to receive the corresponding repurchase price
without any further action or notice to the Company, except that, in the event
of an event described in clause (a), (e), (f) or (g) of the definition of
"Bankruptcy Event" set forth in the Purchase Agreement, the Company shall not
have the option to elect to pay the repurchase price in shares of Series C
Preferred Stock. In the event that the Company elects to pay the aggregate
repurchase price (together with such other payments, expenses and liquidated
damages as aforesaid) in shares of Series C Preferred Stock, the number of such
shares shall be determined in the manner described in the sixth and seventh
sentences of Section 2(e).
3. Registration Procedures. In connection with the Company's registration
obligations hereunder, the Company shall:
(a) Not less than three Trading Days prior to the filing of each
Registration Statement or any related Prospectus or any amendment or supplement
thereto (including any document that would be incorporated or deemed to be
incorporated therein by reference), the Company shall (i) furnish to the Holders
and their Special Counsel copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Holders and their Special
Counsel, and (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary,
in the reasonable opinion of respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file the Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable
Securities and their Special Counsel shall reasonably object, provided that such
objection is communicated to the Company within three Trading Days of receipt of
such documents.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the
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Commission such additional Registration Statements in order to register for
resale under the Securities Act all of the Registrable Securities; (ii) cause
the related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented or amended to be filed pursuant to Rule 424;
and (iii) respond as promptly as reasonably possible, and in any event within
ten Trading Days, to any comments received from the Commission with respect to
the Registration Statement or any amendment thereto and as promptly as
reasonably possible provide the Special Counsel true and complete copies of all
correspondence from and to the Commission relating to the Registration
Statement.
(c) If, on any date the number of shares of Common Stock previously
registered under all existing Registration Statements is less than 125% of the
Actual Minimum on such date, file an additional Registration Statement covering
a number of shares of Common Stock at least equal to (i) the Required Minimum on
such date, less (ii) the number of shares of Common Stock previously registered
under all existing Registration Statements; provided that the Company will not
be required at any time to register a number of shares of Common Stock greater
than the maximum number of shares of Common Stock that could possibly be issued
pursuant to the Transaction Documents.
(d) Notify the Holders of Registrable Securities to be sold and
their Special Counsel as promptly as reasonably possible, and (if requested by
any such Person) confirm such notice in writing no later than one Trading Day
thereafter, of any of the following events: (i) the Commission notifies the
Company whether there will be a "review" of any Registration Statement; (ii) the
Commission comments in writing on any Registration Statement (in which case the
Company shall deliver to each Holder a copy of such comments and of all written
responses thereto); (iii) any Registration Statement or any post-effective
amendment is declared effective; (iv) the Commission or any other Federal or
state governmental authority requests any amendment or supplement to a
Registration Statement or Prospectus or requests additional information related
thereto; (v) the Commission issues any stop order suspending the effectiveness
of any Registration Statement or initiates any Proceedings for that purpose;
(vi) the Company receives notice of any suspension of the qualification or
exemption from qualification of any Registrable Securities for sale in any
jurisdiction, or the initiation or threat of any Proceeding for such purpose; or
(vii) the financial statements included in any Registration Statement become
ineligible for inclusion therein or any statement made in any Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference is untrue in any material respect or any
revision to a Registration Statement, Prospectus or other document is required
so that it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) Use its best efforts to avoid the issuance of or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of any
Registration Statement or (ii) any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction as soon as reasonably practicable.
(f) Furnish to each Holder and their Special Counsel, without
charge, at least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by
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reference, and all exhibits to the extent requested by such Person (including
those previously furnished or incorporated by reference) promptly after the
filing of such documents with the Commission.
(g) Promptly deliver to each Holder and their Special Counsel,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as such Persons may
reasonably request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Use its best efforts to list the Registrable Securities covered
by such Registration Statement with each Trading Market;
(i) Prior to any public offering of Registrable Securities, use its
best efforts to register or qualify or cooperate with the selling Holders and
their Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder requests in writing, to
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by a Registration Statement.
(j) Cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to a Registration Statement, which certificates shall
be free, to the extent permitted by the Purchase Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such Holders may request.
(k) Upon the occurrence of any event described in Section 3(d)(vii),
as promptly as reasonably possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(l) Cooperate with any due diligence investigation undertaken by the
Holders in connection with the sale of Registrable Securities, including without
limitation by making available any documents and information; provided that the
Company will not deliver or make available to any Holder material, nonpublic
information.
(m) If the Holders of a majority of the Registrable Securities being
offered pursuant to a Registration Statement select underwriters for the
offering, the Company shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form,
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including, without limitation, by providing customary legal opinions, comfort
letters and indemnification and contribution obligations.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to
the Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (a) all registration and filing fees
(including, without limitation, fees and expenses (i) with respect to filings
required to be made with any Trading Market, and (ii) in compliance with
applicable state securities or Blue Sky laws (including, without limitation,
fees and disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities )) and determination
of the eligibility of the Registrable Securities for investment under the laws
of such jurisdictions as requested by the Holders )), (b) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses requested by the Holders),
(c) messenger, telephone and delivery expenses of the Company, (d) fees and
expenses reasonably incurred by Special Counsel up to $5,000, but in no event
shall the aggregate amount paid by the Company to the Special Counsel exceed
$50,000, including the fees and expenses paid pursuant to Section 6.2 of the
Purchase Agreement, and (e) fees and expenses of all other Persons retained by
the Company in connection with the consummation of the transactions contemplated
by this Agreement.
5. Indemnification
(a) Indemnification by the Company. In the event of any registration
of Registrable Securities pursuant to this Agreement, the Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, partners, members, agents, brokers
(including brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of Common
Stock), investment advisors and employees of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, partners,
members, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all Losses, as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in the Registration Statement, any Prospectus or
any form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (i) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (ii) in the case of an occurrence of an event
of the type specified in Section 3(d)(v) through (vii), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to the
receipt by such
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Holder of the Advice contemplated in Section 6(f). The Company shall notify the
Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by
this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses arising
solely out of any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto, or arising solely out of any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Holder to the Company specifically for inclusion in such Registration
Statement or such Prospectus. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify the Person
from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing, and the
Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses incurred in connection with defense
thereof; provided that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have
proximately and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such
fees and expenses; or (ii) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (iii) the
named parties to any such Proceeding (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in
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respect of which any Indemnified Party is a party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten Trading
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and expenses to the
extent it is finally judicially determined that such Indemnified Party is not
entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a)
or 5(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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. 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.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
11
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a Holder
of any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of at least two-thirds of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(c) Information by Holders. Each Holder included in any registration
pursuant to this Agreement shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder (if different
than Annex A) as the Company may reasonably request in writing and that is
required under applicable law in connection with any registration, qualification
or compliance referred to in this Agreement.
(d) No Inconsistent Agreements. Neither the Company nor any of its
subsidiaries has entered, as of the date hereof, nor shall the Company or any of
its subsidiaries, on or after the date of this Agreement, enter into any
agreement with respect to its securities that would conflict with the provisions
hereof.
(e) No Piggyback on Registrations. Except as and to the extent
specified in Schedule 3.1(w) to the Purchase Agreement, neither the Company nor
any of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in the Registration Statement
other than the Registrable Securities, and the Company shall not after the date
hereof enter into any agreement providing any such right to any of its security
holders.
(f) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as applicable to
it in connection with sales of Registrable Securities pursuant to the
Registration Statement.
(g) Discontinued Disposition. Each Holder agrees by its acquisition
of such Registrable Securities that, upon receipt of a notice from the Company
of the occurrence of any
12
event of the kind described in Section 3(d)(v), 3(d)(vi), or 3(d)(vii), such
Holder will forthwith discontinue disposition of such Registrable Securities
under the Registration Statement until such Holder's receipt of the copies of
the supplemented Prospectus and/or amended Registration Statement contemplated
by Section 3(k), or until it is advised in writing (the "ADVICE") by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(h) Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine to prepare and
file with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under
the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen days after receipt of such notice, any such
Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered, subject to customary underwriter cutbacks no
less favorable to each Holder than to any other participating stockholder of the
Company, in the event of an underwritten offering. The Company shall have the
right to delay, suspend or withdraw any registration of Registrable Securities
effected pursuant to this Section 6(h) without any obligation or liability to
any Holder.
(i) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) and earlier than 11:59
p.m. (New York City time) on any Trading Day, (c) the Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set
forth in the Purchase Agreement.
(j) Successors and Assigns. This Agreement, together with the other
Transaction Documents, constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each Holder. The Company may
not assign its rights or obligations hereunder without the prior written consent
of each Holder. Each Holder may assign its rights and obligations hereunder in
the manner and to the extent permitted under the Purchase Agreement.
13
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(l) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. THE CORPORATE LAWS
OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS
OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO
THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR
CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY HEREBY WAIVES ALL
RIGHTS TO A TRIAL BY JURY.
(m) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(n) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
14
(o) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
15
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
ASPEN TECHNOLOGY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASERS TO FOLLOW]
16
PINE RIDGE FINANCIAL INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary
Pine Ridge Financial Inc.
c/▇ ▇▇▇▇▇▇▇ Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Avi Vigder
With a copy to
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
17
SMITHFIELD FIDUCIARY LLC
By: /s/ ▇▇▇▇ ▇. Chill
-----------------------------------
Name: ▇▇▇▇ ▇. Chill
Title: Authorized Signatory
Address for Notice:
Smithfield Fiduciary LLC
c/o Highbridge Capital Management, LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇ / ▇▇▇▇ ▇. Chill
With a copy to
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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PERSEVERANCE LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Perseverance LLC.
c/▇ ▇▇▇▇▇▇▇ Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Avi Vigder
With a copy to
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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Annex A
PLAN OF DISTRIBUTION
The selling stockholders may, from time to time, sell any or all of their
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. The selling stockholders may use any one or more of
the following methods when selling shares:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
- an exchange distribution in accordance with the rules of the applicable
exchange;
- privately negotiated transactions;
- short sales;
- broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
The selling stockholders may also engage in short sales against the box,
puts and calls and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades.
Broker-dealers engaged by the selling stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved. Any
profits on the resale of shares of common stock by a broker-dealer acting as
principal might be deemed to be underwriting discounts or commissions under the
Securities Act. Discounts, concessions, commissions and similar selling
expenses, if any, attributable to the sale of shares will be borne by a selling
stockholder. The selling stockholders may agree to indemnify any
20
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares if liabilities are imposed on that person under the Securities
Act.
The selling stockholders may from time to time pledge or grant a security
interest in some or all of the shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of common stock from time to time under
this prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus and may sell the shares of common stock from time to time under this
prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares of common stock may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such broker-dealers or agents
and any profit on the resale of the shares of common stock purchased by them may
be deemed to be underwriting commissions or discounts under the Securities Act.
We are required to pay certain fees and expenses incident to the
registration of the shares of common stock, including certain fees and
disbursements of counsel to the selling stockholders. We have agreed to
indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
The selling stockholders have advised us that they have not entered into
any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of common stock, nor is there
an underwriter or coordinating broker acting in connection with a proposed sale
of shares of common stock by any selling stockholder. If we are notified by any
selling stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares of common stock, if required, we will file
a supplement to this prospectus. If the selling stockholders use this prospectus
for any sale of the shares of common stock, they will be subject to the
prospectus delivery requirements of the Securities Act.
The anti-manipulation rules of Regulation M under the Securities Exchange
Act of 1934 may apply to sales of our common stock and activities of the selling
stockholders.
21