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EXHIBIT 10.1
ASPEN TECHNOLOGY, INC.
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURES DUE JUNE 15, 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of
June 17, 1998
Xxxxxxx, Xxxxx & Co.,
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx Xxxxx & Company, L.L.C.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Aspen Technology, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 5 1/4% Convertible
Subordinated Debentures due June 15, 2005 (the "Securities"). As an inducement
to the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers (i) for the benefit of the Purchasers and (ii) for the
benefit of the holders (as defined herein) from time to time of the Securities
and the common stock, par value $.10 per share (the "Common Stock"), of the
Company, issued upon conversion of the Securities, including the Purchasers, as
follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"ACT" or "SECURITIES ACT" means the United States Securities Act of 1933,
as amended.
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or
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otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"COMMISSION" means the United States Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section 2(b)(i)
hereof.
"EFFECTIVE TIME" means the date on which the Commission declares the Shelf
Registration Statement effective or on which the Shelf Registration Statement
otherwise becomes effective.
"ELECTING HOLDER" has the meaning set forth in Section 3(a)(3) hereof.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"FIRST TIME OF DELIVERY" shall have the meaning set forth in Section 4 of
the Purchase Agreement.
The term "HOLDER" means, when used with respect to any Security, the
Holder (as defined in the Indenture) and, with respect to any Common Stock, the
record holder of such Common Stock.
"INDENTURE" means the Indenture, dated as of June 17, 1998, between the
Company and The Chase Manhattan Bank, as amended and supplemented from time to
time in accordance with its terms.
"MANAGING UNDERWRITERS" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
conducted pursuant to Section 6 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD RULES" means the Rules of the NASD, as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or government or agency or political subdivision
thereof.
"PROSPECTUS" means the prospectus included in the Shelf Registration
Statement (including, without limitation, the preliminary prospectus, and final
prospectus and any prospectus that
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discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the 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
Shelf Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"PURCHASE AGREEMENT" means the purchase agreement, dated June 17, 1998,
among the Purchasers and the Company.
"PURCHASERS" means the Purchasers named in Schedule I to the Purchase
Agreement.
"REGISTRABLE SECURITIES" means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issued or issuable upon conversion of such Securities; PROVIDED,
HOWEVER, that a security ceases to be a Registrable Security when it is not
longer a Restricted Security.
"RESTRICTED SECURITY" means any Security or share of Common Stock issued
or issuable upon conversion thereof except any such Security or share of Common
Stock which (i) has been effectively registered under the Securities Act and
sold in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
"RULES AND REGULATIONS" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SHELF REGISTRATION" means the registration effected pursuant to Section 2
hereof.
"SHELF REGISTRATION STATEMENT" means the shelf registration statement
filed with the Commission under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission, filed by the
Company pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to the registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in the registration statement.
"TRUSTEE" means The Chase Manhattan Bank or its successor from time to
time under the Indenture.
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"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "UNDERWRITER" means any underwriter of Registrable Securities in
connection with an offering thereof under the Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable Securities or to a percentage of Registrable
Securities, Common Stock shall be treated as representing the principal amount
of Securities which was surrendered for conversion or exchange in order to
receive such number of shares of Common Stock.
2. SHELF REGISTRATION. (a) The Company shall, within 90 calendar days
following the First Time of Delivery, file with the Commission a Shelf
Registration Statement relating to the offer and sale of all Registrable
Securities by the holders from time to time in accordance with the methods of
distribution elected by such holders and set forth in such Registration
Statement and, thereafter, shall use its reasonable best efforts to cause the
Shelf Registration Statement to be declared effective under the Act by the
Commission as promptly as practicable but no later than 90 calendar days after
the date of filing of the Shelf Registration Statement; PROVIDED, HOWEVER, that
no holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such holder is an Electing Holder.
(b) The Company shall use its reasonable best efforts:
(i) To keep the Shelf Registration Statement continuously effective
under the Securities Act in order to permit the Prospectus forming part
thereof to be usable by holders for resales of Registrable Securities
until the second anniversary of the later of (x) the Effective Time of the
Shelf Registration Statement and (y) the last Time of Delivery (as defined
in the Purchase Agreement), or such shorter period that will terminate
when there are no Registrable Securities outstanding (such period being
referred to herein as the "Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities that is
not then an Electing Holder, to take any action reasonably necessary in
such time as is reasonably practicable to enable such holder to use the
Prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement;
PROVIDED, HOWEVER, that nothing in this subparagraph shall relieve such
holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(2) hereof;
and
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(iii) If at any time the Securities, pursuant to Article XIII of the
Indenture, are convertible into securities other than Common Stock, the
Company shall, or shall cause any successor under the Indenture to, cause
such securities to be included in the Shelf Registration Statement no
later than the date on which the Securities may then be convertible into
such securities.
The Company shall be deemed not to have used its reasonable best efforts (within
the meaning of Section 11.12 of the Indenture) to keep the Shelf Registration
Statement effective during the Effectiveness Period if the Company voluntarily
takes any action that would result in any Electing Holders not being able to
offer and sell any of their Registrable Securities during such period, unless
(i) such action is required by applicable law, or (ii) the Company determines
based upon the advice of counsel that it is advisable to disclose in the Shelf
Registration Statement a financing, acquisition or other corporate transaction,
and the Board of Directors of the Company shall have determined in good faith
that such disclosure is not in the best interests of the Company and its
stockholders, and, in the case of clause (ii) above, the Company thereafter
promptly complies with the requirements of Section 3(j) below.
Except as may be permitted in Section 3 hereof, if (i) on or prior to the
date 90 days following the First Time of Delivery, the Shelf Registration
Statement has not been filed with the Commission, or (ii) on or prior to the
date 90 days following the filing of the Shelf Registration Statement, the Shelf
Registration Statement has not been declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on the
Securities from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date in respect of the Securities
following the date on which such Liquidated Damages begin to accrue, and will
accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount of the Securities to and including the ninetieth
day following such Registration Default and at a rate per annum equal to
one-half of one percent (0.50%) thereof from and after the ninety-first day
following such Registration Default. In the event that the Shelf Registration
Statement ceases to be effective during the Effectiveness Period for a period in
excess of 60 days, whether or not consecutive, during any 12-month period, then
the interest rate borne by the Securities shall increase by an additional
one-half of one percent (0.50%) per annum on such sixty-first day to but
excluding the earlier of the expiration of the Effectiveness Period or the day
on which the Shelf Registration Statement again becomes effective.
3. REGISTRATION PROCEDURES. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder
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shall be entitled to use the Prospectus forming a part thereof for resales
of Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; PROVIDED, HOWEVER, holders of
Registrable Securities shall have at least 25 calendar days from the date
on which the Notice and Questionnaire is first mailed by the Company to
return a completed and signed Notice and Questionnaire to the Company.
(2) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. After such holder has returned a completed
and signed Notice and Questionnaire to the Company, the Company shall
promptly take such action as is necessary to name such holder as a selling
securityholder in the Shelf Registration Statement and to enable such
holder to use the Prospectus forming a part thereof for resales of
Registrable Securities.
(3) The term "Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(1) or 3(a)(2)
hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to all Electing Holders, prior to the filing
thereof with the Commission, copies of each amendment thereto and each amendment
or supplement, if any, to the Prospectus included therein, and shall use its
best efforts to reflect in each such document, at the Effective Time or when so
filed with the Commission, as the case may be, such comments as such holders and
their respective counsel reasonably may propose.
(c) The Company shall promptly take such action as may be necessary so
that (i) each of the Shelf Registration Statement and any amendment thereto and
the Prospectus forming part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, 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 not misleading, and (iii) each of the Prospectus forming part of the
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such holder:
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(1) when the Shelf Registration Statement and any amendment thereto
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
(2) of any request by the Commission for amendments or supplements
to the Shelf Registration Statement or the Prospectus included therein or
for additional information;
(3) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for such purpose;
(4) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included in the
Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(5) of the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein so that, as of such date, the
Shelf Registration Statement and the Prospectus comply with the Securities
Act and the Exchange Act and the rules and regulations thereunder and
otherwise do not contain an untrue statement of a material fact and do not
omit to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to such holders to suspend the use
of the Prospectus until the requisite changes have been made).
(e) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of the Shelf Registration Statement at the earliest possible time.
(f) The Company shall furnish to each Electing Holder, without charge,
at least one copy of the Shelf Registration Statement and all post-effective
amendments thereto, including financial statements and schedules, and, if such
holder so requests in writing, all reports, other documents and exhibits that
are filed with or incorporated by reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Electing Holder may reasonably
request; and the Company consents (except during the continuance of any event
described in Section 3(d)(5) above) to the use of the Prospectus and any
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amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
(h) Prior to any offering of Registrable Securities pursuant to the Shelf
Registration Statement, the Company shall (1) register to qualify or cooperate
with the Electing Holders and their respective counsel in connection with the
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 Electing Holder may reasonably request, (2) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (3) take any and all other actions necessary or
advisable to enable the offer and sale in such jurisdictions of such Registrable
Securities; PROVIDED, HOWEVER, that in no event shall the Company be obligated
to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by Section
3(d)(5) above, the Company shall promptly prepare a post-effective amendment or
supplement to the Shelf Registration Statement or the Prospectus, or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, if the Company determines based upon
the advice of counsel that it is advisable to disclose in the Shelf Registration
Statement a financing, acquisition or other corporate transaction, and the Board
of Directors of the Company shall have determined in good faith that such
disclosure would not be in the best interests of the Company and its
stockholders, the Company shall not be required to prepare and file such
amendment, supplement or document for a period not to exceed 30 days. If the
Company notifies the Electing Holders of the occurrence of any event
contemplated by Section 3(d)(5) above, each Electing Holder agrees, as a
consequence of the inclusion of any of
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such holder's Registrable Securities in the Shelf Registration Statement, to
suspend the use of the Prospectus until the requisite changes to the Prospectus
have been made. Promptly upon the earliest of (x) public disclosure of such
non-public information, (y) the date on which such non-public information is no
longer material and (z) 30 days after the date such notice is given to the
Electing Holders, the Company shall supplement or amend the Shelf Registration
Statement as required by the immediately preceding sentence and give notice to
the Electing Holders that offers and sales under the Registration Statement may
be resumed.
(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l) The Company shall use its best efforts to comply with all applicable
Rules and Regulations, and to make generally available to its securityholders or
otherwise provided in accordance with Section 11(a) of the Securities Act as
soon as practicable, but in any event not later than eighteen months after (i)
the effective date (as defined in Rule 158(c) under the Securities Act) of the
Shelf Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement, and (iii) the date of each filing
by the Company with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration Statement, an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act and, in connection with such
qualification, the Company shall cooperate with the Trustee under the Indenture
and the Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and the Company shall execute, and
shall use all reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
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(o) The Company shall enter into such customary agreements (including an
underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 6 hereof) and take all other appropriate
actions in order to expedite and facilitate the registration and disposition of
the Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to Section 5 hereof.
(p) The Company shall:
(i)(A) make reasonably available for inspection by Electing Holders,
any underwriter participating in any disposition pursuant to the Shelf
Registration Statement, and one counsel and one accountant to each of the
Electing Holders and the underwriters (and any agent other than counsel or
an equivalent) designated by or on behalf of the Electing Holders or the
underwriters, as the case may be, all relevant financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries; and (B) cause the Company's officers, directors and
employees to supply all information reasonably requested by such holders
or any such underwriter, counsel, accountant or agent in connection with
the Shelf Registration Statement, in each case, as is customary for
similar due diligence examinations; PROVIDED, HOWEVER, that all records,
information and documents that are designated in writing by the Company,
in good faith, as confidential shall be kept confidential by such holders
and any such underwriter, counsel, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, or such records, information or documents become available to the
public generally or through a third party without an accompanying
obligation of confidentiality; and PROVIDED FURTHER that such inspection
and information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of Electing
Holders or the underwriters, as the case may be.
(ii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, make such representations and warranties to the
holders participating in such underwritten offering and to the Managing
Underwriters, in form, substance and scope as are customarily made by the
Company to underwriters in primary underwritten offerings of equity and
convertible debt securities and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in the form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters) addressed
to each holder participating in such underwritten offering and the
underwriters, covering such matters as are customarily covered in opinions
requested in primary underwritten offerings of equity and convertible
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debt securities and such other matters as may be reasonably requested by
such holders and underwriters (it being agreed that the matters to be
covered by such opinions shall include, without limitation, as of the date
of the opinion and as of the Effective Time of the Shelf Registration
Statement or the most recent post-effective amendment thereto, as the case
may be, the absence from the Shelf Registration Statement and the
Prospectus included therein, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if necessary,
from the independent public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each holder participating in such
underwritten offering (if such holder has provided such letter,
representations or documentation, if any, required for such cold comfort
letter to be so addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and
(v) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, deliver such documents and certificates as may be
reasonably requested by any holders participating in such underwritten
offering and the Managing Underwriters, if any, including, without
limitation, certificates to evidence compliance with Section 3(j) hereof
and with any conditions contained in the underwriting agreement or other
agreements entered into by the Company.
(q) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Securities to be listed for quotation on the
Nasdaq National Market or other stock exchange or trading system on which the
Common Stock primarily trades on or prior to the Effective Time of the Shelf
Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange Act
shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or any
successor provision thereto)) of the Company or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement, whether as a
holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company shall
assist such broker-dealer in complying with the requirements of the NASD Rules,
including, without limitation, by (A) engaging a "qualified independent
underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the Shelf Registration
Statement relating
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to such Registrable Securities, to exercise usual standards of due diligence in
respect thereto, and to recommend the public offering price of such Registrable
Securities, (B) indemnifying such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof, and
(C) providing such information to such broker-dealer as may be required in order
for such broker-dealer to comply with the requirements of the NASD Rules.
(s) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 6 hereof. In addition, the Company shall pay the fees and expenses of a
single counsel to the Electing Holders, up to a maximum of $25,000, in
connection with the Shelf Registration Statement
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement under which such Registrable Securities are to be
registered under the Securities Act, or any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus, or
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person expressly for
use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. Each
Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in the Shelf Registration Statement, and each
underwriter, selling agent or other securities
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professional, if any, which facilitates the disposition of Registrable
Securities shall agree, as a consequence of facilitating such disposition of
Registrable Securities, severally and not jointly, to (i) indemnify and hold
harmless the Company, its directors, officers who sign the Shelf Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which the Company or such
other persons may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or Prospectus,
or any amendment or supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such holder,
underwriter, selling agent or other securities professional expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under such subsection, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party shall not be
liable to such indemnified party under this Section 5 for any legal expenses or
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in
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respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), 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 the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
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 (even if
the Electing Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 5(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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. The obligations of the Electing
Holders and any underwriters, selling agents or other securities professionals
in this Section 5(d) to contribute shall be several in proportion to the
percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
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6. UNDERWRITTEN OFFERING. Any holder of Registrable Securities who
desires to do so may sell such Registrable Securities, in whole or in part, in
an underwritten offering; PROVIDED that (i) the Electing Holders of at least
33 1/3% in aggregate principal amount of the Registrable Securities then
covered by the Shelf Registration Statement shall request such an underwritten
offering and (ii) at least $25,000,000 in aggregate principal amount of such
Registrable Securities shall be included in such underwritten offering; and
PROVIDED FURTHER that the Company shall not be obligated to cooperate with more
than one underwritten offering during the Effectiveness Period. Upon receipt of
such a request, the Company shall provide all holders of Registrable Securities
written notice of the request, which notice shall inform such holders that they
have the opportunity to participate in the offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto (including the size of the offering) will be approved by,
the holders of a majority of the Registrable Securities to be included in such
offering; PROVIDED, HOWEVER, that such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company. No
holder may participate in any underwritten offering contemplated hereby unless
(a) such holder agrees to sell such holder's Registrable Securities to be
included in the underwritten offering in accordance with any approved
underwriting arrangements, (b) such holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such approved underwriting arrangements, and (c) if such holder is not then an
Electing Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(2) hereof within a
reasonable amount of time before such underwritten offering. The holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and expenses of their own
counsel. The Company shall pay all expenses customarily borne by issuers,
including but not limited to filing fees, the fees and disbursements of its
counsel and independent public accountants and any printing expenses incurred
in connection with such underwritten offering.
7. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may grant registration rights
that would permit any Person that is a third party the right to piggy-back on
the Shelf Registration Statement, PROVIDED, HOWEVER, that if the Managing
Underwriter, if any, of an underwritten offering conducted pursuant to Section 6
hereof notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggy-back rights
intend to include in the Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be reduced
to the extent necessary to reduce the total amount of securities to be included
in such offering to the amount, number and kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to be
included in the Shelf Registration Statement.
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(b) AMENDMENTS AND WAIVERS. This Agreement, including this Section 7(b),
may be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may be given, only by a written instrument
duly executed by the Company and the holders of a majority in aggregate
principal amount of Registrable Securities then outstanding. Each holder of
Registrable Securities outstanding at the time of any such amendment, waiver or
consent or thereafter shall be bound by any amendment, waiver or consent
effected pursuant to this Section 7(b), whether or not any notice, writing or
marking indicating such amendment, waiver or consent appears on the Registrable
Securities or is delivered to such holder.
(c) NOTICES. All notices and other communications provided
for or permitted hereunder shall be given as provided in the Indenture.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) PARTIES IN INTEREST. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in the Shelf Registration Statement.
All the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective successors
and assigns of the parties hereto and any holder from time to time of the
Registrable Securities to the aforesaid extent. In the event that any transferee
or any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing, consent or action of any
kind, be entitled to receive the benefits of and, if an Electing Holder, by
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement to the aforesaid extent.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate 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.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every
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other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(i) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman and Chief Excutive Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Xxxxxxx, Xxxxx & Co.
NationsBanc Xxxxxxxxxx Securities, LLC
Xxxxxxx Xxxxx & Company, L.L.C.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------------
(Xxxxxxx, Xxxxx & Co.)
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Exhibit A
ASPEN TECHNOLOGY, INC.
INSTRUCTION TO DTC PARTICIPANTS
__________ ____, 199__
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE:__________ __, 199__
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in 5 1/4% Convertible
Subordinated Debentures due June 15, 2005 (the "Securities") of Aspen
Technology, Inc. (the "Company") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF
THE ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by _________ ___, 1998. Please forward a copy of
the enclosed documents to each beneficial owner that holds interest in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact General Counsel,
Aspen Technology, Inc., 00 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, 00000,
Telephone No. (000) 000-0000.
20
ASPEN TECHNOLOGY, INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
___________ ____, 199__
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") among Aspen Technology, Inc. (the "Company")
and the Purchasers named therein. Pursuant to the Registration Rights Agreement,
the Company has filed with the United Stated Securities and Exchange Commission
(the "Commission") a registration statement (the "Shelf Registration Statement")
for the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of the Company's 5 1/4% Convertible Subordinated
Debentures due June 15, 2005 (the "Securities") and the shares of common stock,
par value $.10 per share (the "Common Stock"), issuable upon conversion thereof.
A copy of the Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE __________ ____, 1998.
Beneficial Owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture in registered form and the shares of Common Stock issued or
issuable upon conversion of such Securities; PROVIDED, HOWEVER, that a security
ceases to be a Registrable Security when it is no longer a Restricted Security.
A-2
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The term "RESTRICTED SECURITY" is defined in the Registration Rights
Agreement to mean any Security or share of Common Stock issuable upon conversion
thereof except any such Security or share of Common Stock which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), or (iii) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth as Exhibit B to the Registration
Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
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QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
____________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
_____________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in (3) below are Held:
_____________________________________________________________________
(2) Address for Notices to Selling Securityholder:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Telephone: ________________________
Fax: ________________________
Contact Person: ________________________
(3) Beneficial Ownership of Securities and shares of Common Stock issued
upon conversion of Securities:
Except as set forth in this Item (3), the undersigned does not beneficially
own any Securities or shares of Common Stock issued upon conversion of any
Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:___________________
CUSIP No(s). of such Registrable Securities:_________________________
A-4
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Number of shares of Common Stock (if any) issued upon conversion of
such Registrable Securities:_________________________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:__________________________________________________
CUSIP No(s). of such other Securities:_______________________________
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:_______________________________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:___________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:________________________________________
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:_____________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
A-5
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(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company or as provided in the Registration Rights Agreement.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
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In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
Aspen Technology, Inc.
00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
(ii) With a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder with respect to the Registrable
Securities beneficially owned by such Securityholder and listed in Item (3)
above. This Agreement shall be governed in all respects by the laws of the State
of New York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ____________
_________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE __________ ____, 1998 TO THE COMPANY'S COUNSEL AT:
Aspen Technology, Inc.
00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
A-8
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Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Chase Manhattan Bank
Aspen Technology, Inc.
[Address of Trustee]
Attention: [Corporate Trust Services]
Re: ASPEN TECHNOLOGY, INC. (THE "COMPANY") 5 1/4% CONVERTIBLE
SUBORDINATED DEBENTURES DUE JUNE 15, 2005 (THE
"DEBENTURES") AND COMMON STOCK, $.10 PAR VALUE PER SHARE, ISSUED OR
ISSUABLE UPON CONVERSION OF DEBENTURES
Dear Sirs:
Please be advised that _________________________ has transferred
[$________________ aggregate principal amount of the above-referenced
Debentures][_______ shares of Common Stock] pursuant to an effective
Registration Statement (File No. 333-___) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the [Debentures][Common Stock] is named as a "Selling
Holder" in the Prospectus dated __________ ____, 199__ or in supplements
thereto, and that the [aggregate principal amount of the Debentures][number of
shares of Common Stock] transferred are the [Debentures][shares of Common Stock]
listed in such Prospectus opposite such owner's name.
Date:
Very truly yours,
___________________________________________
(Name)
By: ___________________________________________
(Authorized Signature)
