Exhibit 4.4
RIGHTS AGREEMENT
AMENDMENT NO. 1
This Agreement, dated October 26, 2001 is between ASPEN TECHNOLOGY,
INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent.
Whereas, pursuant to Section 26 of the Rights Agreement (as defined
below), the Company may from time to time supplement or amend the Rights
Agreement in accordance with its terms; and
Whereas, the Company desires to make certain amendments to the Rights
Agreement; and
Whereas, the execution and delivery of this Agreement by the Company
and the Rights Agent have been, in all respects, duly authorized by each of
them;
Now Therefore, in consideration of the premises and mutual agreements
set forth herein, the parties agree as follows:
1. RIGHTS AGREEMENT; DEFINITIONS. This Agreement amends the Rights Agreement
dated March 12, 1998 between the parties hereto (as in effect prior to giving
effect to this Agreement, the "Rights Agreement" and after giving effect to this
Agreement, the "Amended Rights Agreement"). Terms defined in the Rights
Agreement and not otherwise defined herein shall have the respective meaning
ascribed to them therein.
2. AMENDMENT OF RIGHTS AGREEMENT. Effective upon the date hereof, the Rights
Agreement is amended as follows:
2.1. AMENDMENT OF SECTION 1. CERTAIN DEFINITIONS. The definition of
"OWNERSHIP THRESHOLD" is amended to read in its entirety as follows:
"OWNERSHIP THRESHOLD" shall mean, with respect to any Person,
Beneficial Ownership of the GREATER of (A) twenty percent (20%)
of the Common Shares at any time outstanding or (B) the
percentage of the outstanding Common Shares Beneficially Owned by
such Person on the date of this Rights Agreement, plus in the
case of this clause (B) one percent (1%) of the Common Shares
outstanding on such date.
2.2. AMENDMENT OF SECTION 28. BENEFITS OF RIGHTS AGREEMENT;
DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC. SUBSECTION
(b) of Section 28 of the Rights Agreement is amended to read in its
entirety; a new Subsection (c) of Section 28 is added; and the prior
Subsection (c) of Section 28 is hereby re-numbered as Subsection (d) of
Section 28; all as follows:
"(b) Except as explicitly otherwise provided in this Rights
Agreement, the Board of Directors of the Company shall have the
exclusive power and authority to administer this Rights Agreement
and to exercise all rights and powers specifically granted to the
Board of Directors of the Company, or to the Company, or as may
be necessary or advisable in the administration of the Rights
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Rights Agreement and (ii)
make all determinations deemed necessary or advisable for the
administration of this Rights Agreement (including, without
limitation, a determination to redeem or not redeem the Rights or
to amend this Rights Agreement and a determination of whether
there is an Acquiring Person).
"(c) It is understood that the TIDE Committee (as described
below) of the Board of Directors of the Company shall review and
evaluate this Rights Agreement in order to consider whether the
maintenance of this Rights Agreement continues to be in the
interests of the Company, its stockholders and any other relevant
constituencies of the Company, at least every three (3) years, or
sooner if any Person shall have made a proposal to the Company,
or taken any other action,
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that, if effective, could cause such Person to become an
Acquiring Person hereunder, if a majority of the members of the
TIDE Committee shall deem such review and evaluation appropriate
after giving due regard to all relevant circumstances. Following
each such review, the TIDE Committee will communicate its
conclusions to the full Board of Directors of the Company,
including any recommendation in light thereof as to whether this
Rights Agreement should be modified or the Rights should be
redeemed. The TIDE Committee shall be appointed by the Board of
Directors of the Company and shall be comprised of at least three
(3) Directors of the Company who are not officers, employees or
Affiliates of the Company.
"(d) Nothing contained in this Rights Agreement shall be deemed
to be in derogation of the obligation of the Board of Directors
of the Company to exercise its fiduciary duty. Without limiting
the foregoing, nothing contained herein shall be construed to
suggest or imply that the Board of Directors shall not be
entitled to reject any tender offer, or to recommend that holders
of Common Shares reject any tender offer, or to take any other
action (including, without limitation, the commencement,
prosecution, defense or settlement of any litigation and the
submission of additional or alternative offers or other
proposals) with respect to any tender offer that the Board of
Directors believes is necessary or appropriate in the exercise of
such fiduciary duty."
3. GENERAL. This Agreement and the Amended Rights Agreement referred to
herein constitute the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement
may be executed in any number of counterparts, which together shall
constitute one instrument, and shall bind and inure to the benefit of
the parties and their respective successors and assigns. This Agreement
shall be governed by and construed in accordance with the laws (other
than the conflict of law rules) of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxxxxxx X. Xxxxx
_____________________________
Name: Xxxxxxxx X. Xxxxx
Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trust Agent
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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