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Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of October 1, 1996 (this
"Agreement") is entered into among Aspen Technology, Inc., a Massachusetts
corporation ("Aspen"), and Xxxxxxxx X. Xxx, Xxxxx X. Xxx, Xxxx X. Xxx and B-JAC
International, Inc. Employees Stock Ownership Plan (collectively the "Initial
Holders"), and any of their respective (a) successors-in-interest, (b) family
members, trusts wholly or principally for the benefit of family members and
affiliates to whom an Initial Holder or its successor-in-interest transfers any
of the Registrable Securities (as defined in Section 1) initially issued to such
Initial Holder and (c) any other person or persons to whom an Initial Holder
transfers all or substantially all of the Registrable Securities initially
issued to such Initial Holder (including any participants of B-JAC
International, Inc. Employees Stock Ownership Plan to whom Registrable
Securities are distributed under such Plan), which family member, trust,
affiliate or person described in clause (b) or (c) is registered on the books of
Aspen (together with the Initial Holders, such successors-in-interest, family
members, trusts, affiliates and other persons are hereinafter sometimes referred
to as the "Holders").
This Agreement is made pursuant to the Agreement and Plan of Reorganization
dated as of September 25, 1996 (the "Reorganization Agreement") among Aspen,
Aspen Acquisition Corp. II, B-JAC International, Inc. ("B-JAC") and the Initial
Holders, pursuant to which, among other things, (a) Aspen Acquisition Corp. II
is merging with and into B-JAC (the "Merger"), with B-JAC being the surviving
corporation and thereby becoming a wholly owned subsidiary of Aspen and (b)
Aspen is issuing shares (the "Shares") of its common stock, $.10 par value
("Aspen Common"), to the Initial Holders, which will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"). In order to induce
B-JAC to enter into the Reorganization Agreement and the Initial Holders to vote
in favor of the Merger, Aspen has agreed to provide certain registration rights
with respect to the Shares as set forth in this Agreement.
NOW, THEREFORE, Aspen and the Initial Holders hereby agree as follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to the
benefits of this Agreement are the Shares and any other securities issued by
Aspen in exchange for any of the Shares (collectively the "Registrable
Securities") but, with respect to any particular Registrable Security, only so
long as it continues to be a Registrable Security. Registrable Securities shall
include any securities issued as a dividend or distribution on account of
Registrable Securities or resulting from a subdivision of the outstanding shares
of Registrable Securities into a greater number of shares (by reclassification,
stock split or otherwise). For the purposes of this Agreement, a security that
was at one time a Registrable Security shall cease to be a Registrable Security
when (a) such security has been effectively registered under the Securities Act
and has been disposed of pursuant to such registration statement, (b) such
security is or can be distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, (c) such security has
been otherwise transferred and (i) Aspen has delivered a new certificate or
other evidence of ownership not bearing the legend set forth on the Shares upon
the initial issuance thereof (or other legend of similar import) and (ii) in the
opinion of counsel to Aspen, the subsequent disposition of such security shall
not require the registration or qualification under the Securities Act or (d)
such security has ceased to be outstanding.
2. SHELF REGISTRATION. Aspen agrees that it shall cause to be filed a
registration statement (the "Shelf Registration") on Form S-3 or any other
appropriate form under the Securities Act for an offering
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to be made on a delayed or continuous basis pursuant to Rule 415 thereunder or
any similar rule that may be adopted by the Securities and Exchange Commission
(the "Commission") and permitting sales in ordinary course brokerage or dealer
transactions not involving an underwritten public offering (and shall register
or qualify the shares to be sold in such offering under such other securities or
"blue sky" laws as would be required pursuant to clause (A) of Section 5 hereof)
covering the entire issue of Registrable Securities (other than Registrable
Securities held in escrow pursuant to the Escrow Agreement dated the date
hereof) and such other shares of Aspen Common as may be included pursuant to
registration rights of other holders of Aspen Common. Prior to the filing of the
Shelf Registration or any supplement or amendment thereto, Aspen will furnish
copies of the Shelf Registration or such amendment to one counsel designated by
the Holders of a majority of the Registrable Shares, and will not file the Shelf
Registration or such amendment without the prior consent of such counsel, which
consent shall not be unreasonably withheld. Aspen shall use its best efforts to
(a) cause the Shelf Registration to be declared effective by the Commission on,
or as soon as practicable after, the date on which Aspen first publishes
financial results covering at least thirty days of post-acquisition combined
operations of Aspen and B-JAC as the surviving company and (b) keep the Shelf
Registration continuously effective (and register or qualify the shares to be
sold in such offering under such other securities or "blue sky" laws as would be
required pursuant to clause (A) of Section 5 hereof) for a period (the "Shelf
Registration Period") of ninety days after the date on which the Shelf
Registration is declared effective by the Commission (or such shorter period
that will terminate when all Registrable Securities covered by the Shelf
Registration have been sold). Aspen agrees, if necessary, to supplement or make
amendments to the Shelf Registration, if required by the registration form used
by Aspen for the Shelf Registration or by the instructions applicable to such
registration form or by the Securities Act or the rules or regulations
thereunder or as may reasonably be requested by the Holders of a majority of the
Registrable Securities then outstanding.
3. PIGGYBACK REGISTRATION. At any time prior to the second anniversary of
the date hereof, whenever Aspen proposes to file a registration statement under
the Securities Act with respect to an underwritten public offering of Aspen
Common for cash sale by Aspen for its own account or by any of Aspen's
securityholders, Aspen shall give written notice (the "Offering Notice") of such
proposed filing to each of the Holders at least thirty days before the
anticipated filing date. Such Offering Notice shall offer all such Holders the
opportunity to register such number of Registrable Securities as each such
Holder may request in writing, which request for registration (each, a
"Piggyback Registration") must be received by Aspen within fifteen days after
the Offering Notice is given. Aspen shall use all reasonable efforts to cause
the managing underwriter or underwriters of a proposed underwritten offering to
permit the holders of the Registrable Securities requested to be included in the
registration for such offering to include such Registrable Securities in such
offering on the same terms and conditions as the shares of Aspen Common included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of a proposed underwritten offering advise Aspen in writing that in
its or their opinion the number of Registrable Securities proposed to be sold in
such offering exceeds the number of Registrable Securities that can be sold in
such offering without adversely affecting the market for Aspen Common, Aspen
will include in such registration the number of Registrable Securities that in
the opinion of such managing underwriter or underwriters can be sold without
adversely affecting the market for Aspen Common. In such event, the number of
Registrable Securities, if any, to be offered for the accounts of Holders shall
be reduced PRO RATA on the basis of the relative number of any Registrable
Securities requested by each such Holder to be included in such registration to
the extent necessary to reduce the total number of Registrable Securities to be
included in such offering to the number recommended by such managing underwriter
or underwriters.
4. HOLDBACK AGREEMENTS.
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4.1. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES. Each
Holder agrees, if reasonably requested by the managing underwriter or
underwriters for any underwritten offering covered by any Piggyback Registration
(whether or not such Holder is participating therein), not to effect any public
sale or distribution of Registrable Securities, including a sale pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act,
during the 30 days prior to, and during the 180-day period beginning on, the
effective date of such Piggyback Registration (except as part of such
underwritten offering).
4.2. RESTRICTIONS ON PUBLIC SALE BY ASPEN. Aspen agrees (a) not to effect
any public sale or distribution of any of its securities similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor or similar forms thereto) during the thirty-day period beginning on
the effective date of the Shelf Registration and (b) to give each Holder written
notice of the effectiveness of the Shelf Registration as soon as practicable
following, but in any event within two business days following, the effective
date.
5. REGISTRATION PROCEDURES. Whenever the Holders have requested that any
Registrable Securities be registered pursuant to Section 2 or 3 hereof, Aspen
shall use its best efforts to effect the registration of Registrable
Securities in accordance with the intended method of disposition thereof as
expeditiously as practicable and, in connection with any such request, Aspen
shall as expeditiously as possible:
(a) furnish to each seller of Registrable Securities such number of copies
of the registration statement, each amendment and supplement thereto
(in each case including all exhibits thereto), the prospectus included
in such registration statement (including each preliminary prospectus)
and such other documents as each seller may reasonably request in
order to facilitate the disposition of the Registrable Securities
owned by such seller;
(b) use reasonable efforts to cause the Registrable Securities covered by
such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by
virtue of the business and operations of Aspen to enable the seller or
sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(c) notify each seller of such Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits 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, and prepare and file with the Commission a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an 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, PROVIDED that prior to the filing of such
supplement or amendment, Aspen will furnish copies thereof to the
Holders, any underwriters and counsel for the Holders and will not
file such supplement or amendment without the prior consent of such
counsel, which consent shall not be unreasonably withheld;
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(d) notify the Holder (i) when a registration statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a registration
statement and prospectus or for additional information after the
registration statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a registration statement or the initiation of any
proceedings for that purpose, (iv) if between the effective date of a
registration statement and the closing of any sale of Registrable
Securities covered thereby Aspen receives any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (v) of the happening of any event
during the period a registration statement is effective which makes
any statement made in such registration statement or the related
prospectus untrue in any material respect or which requires the making
of any changes in such registration statement or prospectus in order
to make the statements therein not misleading;
(e) use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of a registration statement;
(f) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of Aspen (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause Aspen's officers, directors,
employees and agents to supply all information reasonably requested by
any such Inspector in connection with such registration statement.
Records that Aspen determines, in good faith, to be confidential and
that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is, in the reasonable judgment of any Inspector, necessary to avoid or
correct a misstatement or omission of a material fact in the
registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court or governmental
agency of competent jurisdiction or required (in the written opinion
of counsel to such seller or underwriter, which counsel shall be
reasonably acceptable to Aspen) pursuant to applicable state or
federal law. Each seller of Registrable Securities agrees that it
will, upon learning that disclosure of such Records are sought by a
court or governmental agency, give notice to Aspen and allow Aspen, at
Aspen's expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential;
(g) otherwise use reasonable efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its
security holders, as soon as reasonably practicable, an earnings
statement covering a period of twelve months, beginning within three
months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act; and
(h) use reasonable efforts to cause all Registrable Securities covered by
the registration statement to be listed on each securities exchange or
market, if any, on which similar
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securities issued by Aspen are then listed, PROVIDED that the
applicable listing requirements are satisfied.
Whenever the Holders have requested that any Registrable Securities be
registered pursuant to Section 3 hereof, Aspen shall also:
(A) use reasonable efforts to register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller or underwriter reasonably requests in
writing and to do any and all other acts and things that may be
reasonably necessary or advisable to register or qualify for sale
in such jurisdictions the Registrable Securities owned by such
seller; PROVIDED, HOWEVER, that Aspen shall not be required to
(i) qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) subject itself to taxation in any
such jurisdiction, (iii) consent to general service of process in
any such jurisdiction or (iv) provide any undertaking required by
such other securities or "blue sky" laws or make any change in
its charter or by-laws that the Board of Directors of Aspen
determines in good faith to be contrary to the best interest of
Aspen and its stockholders;
(B) enter into customary agreements (including an underwriting
agreement in customary form, if the offering is an underwritten
offering) and take such other actions as are reasonably required
in order to expedite or facilitate the disposition of such
Registrable Securities; and
(C) if such sale is pursuant to an underwritten offering, use
reasonable efforts to obtain a "cold comfort" letter and updates
thereof from Aspen's independent public accountants in customary
form and covering such matters of the type customarily covered by
"cold comfort" letters as the managing underwriter or
underwriters reasonably request.
Aspen may require each seller or prospective seller of Registrable
Securities as to which any registration is being effected to furnish to Aspen
such information regarding the distribution of such securities and other matters
as may be required to be included in the registration statement.
Each Holder agrees that, upon receipt of any notice from Aspen of the
happening of any event of the kind described in Section 5(c), such Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5(c) and, if so directed by Aspen, such Holder shall deliver to Aspen
(at Aspen's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. If Aspen shall give any such
notice, Aspen shall extend the period during which such registration statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5(c) to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 5(c). Notwithstanding anything to the contrary set forth above in this
paragraph, Aspen agrees that it may not require the Holders of Registrable
Securities to discontinue disposition of Registrable Securities for purposes
of effecting a public offering of any securities of Aspen by any of its
security holders (other than an offering made pursuant to a registration on
Form S-8).
Notwithstanding the foregoing, but subject to Section 4.2(a), if Aspen
shall furnish to the Holders a certificate signed by the Chief Financial
Officer of Aspen stating that (i) in the good faith judgment of
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the Board of Directors of Aspen it would be significantly disadvantageous to
Aspen and its stockholders for any such registration statement to be amended or
supplemented because Aspen would be required to disclose in such registration
statement, either directly or through incorporation by reference, non-public
information that it would not otherwise be obligated to disclose at such time
and (ii) the need for such an amendment or supplement is not caused by a
proposed secondary public offering of securities of Aspen by any of its
securityholders (other than an offering made pursuant to a registration on Form
S-8), Aspen may defer such amending or supplementing of such registration
statement for not more than 45 days and in such event the Holders shall be
required to discontinue disposition of any Registrable Securities covered by
such registration statement during such period. Notwithstanding the foregoing,
in connection with any amendment or supplement required to reflect a public
offering of securities by Aspen, Aspen shall file such amendment or supplement
no later than the same day that it files a registration statement relating to
such offering and shall provide written notice of the filing of such amendment
or supplement to the Holders of Registrable Securities promptly following such
filing. If Aspen shall deliver any certificate pursuant to the second preceding
sentence in connection with the Shelf Registration pursuant to Section 2, Aspen
shall extend the period during which the Shelf Registration shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the delivery of such certificate to and including
the date when each Holder of Registrable Securities covered by the Shelf
Registration shall have received written notice that dispositions can be resumed
under the Shelf Registration.
6. EXPENSES. Aspen shall pay all expenses incident to its performance of or
compliance with this Agreement, regardless of whether such registration becomes
effective, including (a) all Commission, stock exchange or market registration
and filing fees, (b) all fees and expenses incurred in complying with securities
or "blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Securities), (c)
all printing, messenger and delivery expenses, (d) all fees and disbursements of
Aspen's independent public accountants and counsel and (e) all fees and expenses
of any special experts retained by Aspen in connection with any registration
pursuant to the terms of this Agreement; PROVIDED, HOWEVER, that the Holders
shall be liable for (i) any fees or commissions of brokers, dealers or
underwriters, (ii) any transfer taxes and (iii) any fees or expenses of
consultants, financial advisors, counsel and other professionals acting on
behalf of the Holders in connection with any registration pursuant to the terms
of this Agreement.
7. INDEMNIFICATION; CONTRIBUTION.
7.1. INDEMNIFICATION BY ASPEN. Aspen agrees to indemnify, to the
fullest extent permitted by law, each Holder and each person, if any, who
controls such Holder (within the meaning of the Securities Act), against
any and all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading, except
insofar as the same are caused by or contained in any information with
respect to such Holder furnished in writing to Aspen by such Holder
expressly for use therein or by such Holder's failure to deliver a copy of
the prospectus or any supplements thereto after Aspen has furnished such
Holder with a sufficient number of copies of the same or by the delivery of
prospectuses by such Holder after Aspen notified such Holder in writing to
discontinue delivery of prospectuses. Aspen also shall indemnify any
underwriters of the Registrable Securities, their officers and directors
and each person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders.
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7.2. INDEMNIFICATION BY HOLDERS. In connection with any registration
statement in which a Holder is participating, each such Holder shall
furnish to Aspen in writing such information and affidavits with respect to
such Holder as Aspen reasonably requests for use in connection with any
such registration statement or prospectus and agrees to indemnify,
severally and not jointly, to the fullest extent permitted by law, Aspen,
its officers, directors and agents and each person, if any, who controls
Aspen (within the meaning of the Securities Act) against any and all
losses, claims, damages, liabilities and expenses resulting from any untrue
or alleged untrue statement of a material fact or any omission or alleged
omission of a material fact required to be stated in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein (in the case
of a prospectus, in light of the circumstances under which they were made)
not misleading, to the extent, but only to the extent, that such untrue or
alleged untrue statement or omission is contained in or improperly omitted
from, as the case may be, any information or affidavit with respect to such
Holder so furnished in writing by such Holder. Each Holder also shall
indemnify any underwriters of the Registrable Securities, their officers
and directors and each person who controls such underwriters (within the
meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of Aspen.
7.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any party that proposes
to assert the right to be indemnified under this Section 7 shall, promptly
after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 7, notify each such indemnifying party
of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve it
from any liability that it may have to any indemnified party under the
foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnifying party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable
to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. If the indemnifying party assumes the defense,the indemnifying
party shall have the right to settle such action without the consent of
the indemnified party; PROVIDED, HOWEVER, that the indemnifying party
shall be required to obtain such consent (which consent shall not be
unreasonably withheld) if the settlement includes any admission of
wrongdoing on the part of the indemnified party or any decree or
restriction on the indemnified party or its officers or directors;
PROVIDED, FURTHER, that no indemnifying party, in the defense of any such
action, shall, except with the consent of the indemnified party
(which consent shall not be unreasonably withheld), consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability with respect
to such action. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless
(a) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (b) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (c) a
conflict or potential conflict exists (based on advice of
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counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified
party) or (d) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time from all
such indemnified party or parties unless (x) the employment of more than
one counsel has been authorized in writing by the indemnifying party or
parties, (y) an indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it that
are different from or in addition to those available to the other
indemnified parties or (z) a conflict or potential conflict exists (based
on advice of counsel to an indemnified party) between such indemnified
party and the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel or counsels. An indemnifying party
will not be liable for any settlement of any action or claim effected
without its written consent (which consent shall not be unreasonably
withheld).
7.4. CONTRIBUTION. If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the indemnifying party, to the extent
such indemnification is unavailable, 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, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in connection with
the actions that resulted in such losses, claims, damages, liabilities or
expenses. The relative fault of such indemnifying party and indemnified
parties 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 to state a material
fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
Section 7.3 hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by PRO RATA allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall by entitled to contribution from any person.
If indemnification is available under this Section 7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Sections 7.1 and 7.2 hereof without regard to the relative fault of said
indemnifying parties or indemnified party.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may participate
in any underwritten registration hereunder unless such person (a) agrees to sell
such person's securities on the basis provided in any underwriting agreements
approved by the persons entitled hereunder to approve such arrangements
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and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. RULE 144. Aspen covenants that it shall use its best efforts to file the
reports required to be filed by it under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder if and when
Aspen becomes obligated to file such reports, and it shall, if feasible, take
such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time or (b) any similar rules or regulations hereafter
adopted by the Commission. Upon the written request of any Holder, Aspen shall
deliver to such Holder a written statement as to whether it has complied with
such requirements.
In addition, if any of the Registrable Securities have not been registered
within three years of the Closing Date (as defined in the Reorganization
Agreement), Aspen will, upon request of a Holder, use its best efforts (subject
to applicable law) to arrange for the exchange of the certificates representing
the then-outstanding Registrable Securities of such Holder for certificates
omitting the legend specified in Section 3.2.5 of the Reorganization Agreement;
PROVIDED, HOWEVER, that such Holder has not violated any provision of Rule 145
which would preclude such exchange.
10. MISCELLANEOUS.
10.1. REMEDIES. Each Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. Aspen agrees
that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
10.2. AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless Aspen has obtained the written consent of the Holders that
own, in the aggregate, at least a majority of the Registrable Securities
then outstanding.
10.3. NOTICES. Any notice, request, instruction or other document to
be given hereunder by any party to the other shall be in writing and
delivered personally or sent by certified mail, postage prepaid, by
facsimile (with receipt confirmed), or by courier service, as follows:
To Aspen: Aspen Technology, Inc.
Xxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
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With a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
To any Holder: Xxxx X. Xxx
0000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, III
or to such other persons as may be designated in writing by the parties, by
a notice given as aforesaid.
10.4. CONSTRUCTION. The headings in this Agreement are included only
for convenience and shall not affect the meaning or interpretation of this
Agreement. The words "herein" and "hereof" and other words of similar
import refer to this Agreement as a whole and not to any particular part of
this Agreement. The word "including" as used herein shall not be construed
so as to exclude any other thing not referred to or described.
10.5. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the Holders and the successors and assigns
of Aspen.
10.6. ENTIRE AGREEMENT, ASSIGNABILITY, ETC. This Agreement (1)
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, (2) is not intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder, except as
otherwise expressly provided herein, and (3) shall not be assignable by
operation of law or otherwise except to each Stockholder's heirs upon such
Stockholder's death. No provisions of this Agreement are intended, nor will
be interpreted, to provide or create any third party beneficiary rights or
any other rights of any kind in any client, customer, affiliate,
stockholder, partner or employee of any party hereto or any other Person
unless specifically provided otherwise herein, and, except as so provided,
all provisions hereof will be personal solely between the parties to this
Agreement.
10.7. VALIDITY. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the validity or enforceability of any
other provisions of this Agreement, each of which shall remain in full
force and effect.
10.8. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed
by the laws of The Commonwealth of Massachusetts. Aspen hereby consents to
personal jurisdiction in the U.S. District Court for the Eastern District
sitting in Richmond, Virginia, with respect to claims arising under this
Agreement.
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10.9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
* * *
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
ASPEN TECHNOLOGY, INC.
By: /s/ XXXXXXXX X. XXXXX
------------------------------------------------
Xxxxxxxx X. Xxxxx, President
INITIAL HOLDERS
/s/ XXXXXXXX X. XXX
---------------------------------------------------
Xxxxxxxx X. Xxx
/s/ XXXXX X. XXX
---------------------------------------------------
Xxxxx X. Xxx
/s/ XXXX X. XXX
---------------------------------------------------
Xxxx X. Xxx
B-JAC International, Inc. Employees Stock Ownership
Plan (formerly B-JAC Computer Services, Inc.
Employees Stock Ownership Plan)
/s/ XXXX X. XXX
---------------------------------------------------
Trustee
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