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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ASPEN TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2739697
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
TEN CANAL PARK
CAMBRIDGE, MASSACHUSETTS 02141
(617) 577-0100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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LAWRENCE B. EVANS
Chairman of the Board and Chief Executive Officer
ASPEN TECHNOLOGY, INC.
Ten Canal Park
Cambridge, Massachusetts 02141
(617) 577-0100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
STEPHEN J. DOYLE, ESQ. MARK L. JOHNSON, ESQ.
Vice President, General Counsel, FOLEY, HOAG & ELIOT LLP
Chief Legal Officer and Secretary One Post Office Square
ASPEN TECHNOLOGY, INC. Boston, Massachusetts 02109
Ten Canal Park
Cambridge, Massachusetts 02141
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Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]_________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, $.10 par value ...... 127,645 shares $41.625 $5,313,223 $1,568
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(1) Estimated solely for the purpose of determining the registration fee. In
accordance with Rule 457(c) under the Securities Act of 1933, the above
calculation is based on the average of the high and low sale prices
reported in the consolidated reporting system of the Nasdaq National
Market on June 15, 1998.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JUNE 19, 1998
127,645 SHARES
ASPEN TECHNOLOGY, INC.
COMMON STOCK
All of the 127,645 shares of common stock, $.10 par value ("Common
Stock"), of Aspen Technology, Inc. ("AspenTech" or the "Company") offered hereby
are being sold by the Selling Stockholders named under "Selling Stockholders."
The Company will not receive any of the proceeds from the sales of shares by the
Selling Stockholders.
The Common Stock trades on the Nasdaq National Market under the symbol
"AZPN." On June 18, 1998, the closing sale price of the Common Stock, as
reported by the Nasdaq National Market, was $45.00 per share.
The shares of Common Stock offered hereby may be sold from time to time
by the Selling Stockholders, or by pledgees, donees, transferees or other
successors in interest of the Selling Stockholders. Such sales may be made on
the Nasdaq National Market, or otherwise, at prices and on terms then prevailing
or at prices related to the then-current market prices, or in negotiated
transactions at negotiated prices. The shares may be sold by one or a
combination of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent, but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. Brokers or dealers will
receive commissions or discounts from Selling Stockholders in amounts to be
negotiated immediately prior to the sale. The Selling Stockholders will be
responsible for any discounts, concessions, commissions or other compensation
due to any broker or dealer in connection with the sale of any of the shares
offered hereby. All of the other expenses of this offering, estimated at $7,500,
will be paid by the Company. See "Plan of Distribution."
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SEE "RISK FACTORS" COMMENCING ON PAGE 5 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF SHARES OF COMMON
STOCK OFFERED HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
, 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other information may
be inspected and copies may be obtained (at prescribed rates) at the
Commission's Public Reference Section, 450 Fifth Street, N.W., Room 1024,
Washington D.C. 20549, and at the Commission's Regional Offices at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511
and 7 World Trade Center, Suite 1300, New York, New York 10048.
This Prospectus constitutes part of a Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus does not contain all of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and
related exhibits for further information with respect to the Company and the
securities offered hereby. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in such instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended June 30, 1997; (2)
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 1997,
Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 1997 (as
amended by Amendment No. 1 thereto on Form 10-Q/A), and Quarterly Report on Form
10-Q for the fiscal quarter ended March 31, 1998 (as amended by Amendment No. 1
thereto on Form 10-Q/A); (3) Current Report on Form 8-K dated October 9, 1997,
Current Report on Form 8-K dated March 12, 1998 (as amended by Amendment No. 1
thereto on Form 8-K/A), Current Report on Form 8-K dated April 28, 1998, Current
Report on Form 8-K dated May 27, 1998 and Current Report on Form 8-K dated June
19, 1998; and (4) definitive Proxy Statement dated November 25, 1997 used in
connection with its Annual Meeting of Stockholders held on December 16, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering made hereby
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such reports and documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
Any person to whom a copy of this Prospectus is delivered may obtain,
without charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the exhibits to such documents
(other than exhibits expressly incorporated by reference into such documents).
Requests for such documents should be addressed to the Manager of Investor
Relations of the Company, Ten Canal Park, Cambridge, Massachusetts 02141 or
directed to the Manager of Investor Relations at either telephone number (617)
577-0100 or e-mail address invest@aspentech.com.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus or incorporated by reference herein. This
Prospectus contains and incorporates by reference certain forward-looking
statements that involve risks and uncertainties. See "Risk Factors" and
"Forward-Looking Statements."
THE COMPANY
Aspen Technology, Inc. (the "Company" or "AspenTech") is the leading
supplier of software and service solutions used by companies in the process
industries to design, operate and manage their manufacturing processes. The
process industries include manufacturers of chemicals, petrochemicals, petroleum
products, pharmaceuticals, pulp and paper, electric power, food and beverages,
consumer products, and metals and minerals. AspenTech offers a comprehensive,
integrated suite of process manufacturing optimization solutions that help
process manufacturers enhance profitability by improving efficiency,
productivity, capacity utilization, safety and environmental compliance
throughout the entire manufacturing life-cycle, from research and development to
engineering, planning and scheduling, procurement, production and distribution.
In addition to its software solutions, AspenTech offers systems implementation,
advanced process control, real-time optimization and other consulting services
through its staff of more than 450 project engineers. As part of its strategy to
offer the broadest, most integrated suite of process manufacturing optimization
solutions, AspenTech has acquired businesses from time to time to obtain
technologies and expertise that complement or enhance its core solutions.
AspenTech currently has more than 750 customers worldwide, including 44 of the
50 largest chemical companies, 17 of the 20 largest petroleum refiners and 16 of
the 20 largest pharmaceutical companies.
AspenTech believes its customers increasingly view their investments in
its solutions as strategic because of the substantial potential economic
benefits these solutions offer and the broad range of production issues they
address. The Company's competitive advantage is based upon its technology
leadership, broad suite of integrated solutions and substantial process industry
expertise. AspenTech believes that, through its research and development and
strategic acquisitions and partnerships, it has established itself as the
technology leader among providers of process manufacturing optimization
solutions. The Company's technologies have been applied to create what the
Company believes is the most complete suite of integrated software and service
solutions available for the design, operation and management of manufacturing
processes in the process industries. Over the past 17 years, AspenTech has
developed a significant base of chemical engineering and process manufacturing
experience and knowledge, which it has enhanced through extensive interaction
with customers that have performed millions of simulations using AspenTech's
software. To complement its software expertise, AspenTech has assembled a large
engineering team that the Company believes provides an important source of
competitive differentiation.
AspenTech's principal objective is to extend its leadership in
providing process management optimization solutions to the process industries.
Key elements of the Company's strategy to achieve this objective are to:
(i) extend its technology leadership position by continuing to invest in
research and development and to identify and pursue opportunities for strategic
acquisitions; (ii) leverage its installed customer base in the chemical,
petrochemicals, petroleum products, and pharmaceuticals industries by increasing
the number of users of software currently licensed by its existing customers and
by licensing complementary software and services to those customers;
(iii) increase its penetration of other process industries, particularly the
pulp and paper, electric power, and food and beverage industries, as well as the
semiconductor industry; (iv) pursue strategic acquisitions of complementary
technologies and services capabilities; and (v) selectively partner with
providers of complementary products and services to supplement the Company's
ability to offer enterprise-wide solutions.
The Company was incorporated as a Massachusetts corporation on August
11, 1981 and was reincorporated in Delaware on March 12, 1998. AspenTech's
principal executive offices are located at Ten Canal Park, Cambridge,
Massachusetts 02141, and its telephone number at that address is (617) 949-1000.
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THE OFFERING
All of the 127,645 shares of Common Stock offered hereby are being sold
by the Selling Stockholders. The offered shares were issued to the Selling
Stockholders pursuant to (i) the Share Exchange Agreement dated as of February
25, 1998 (the "Cimtech Agreement") between the Company and Stockholders of
Cimtech S.A./N.V. ("Cimtech"), under which 118,299 of the offered shares were
issued in partial exchange for all of the outstanding capital stock of Cimtech,
and (ii) the Acquisition Agreement dated as of February 27, 1998 (the "Contas
Agreement") between the Company and Ms. Bernieri of Contas Process Control
s.r.l. ("Contas"), under which 21,975 of the offered shares were issued for all
of the outstanding capital stock of Contas.
Under the Cimtech Agreement and the Contas Agreement, the Company is
obligated to keep the Registration Statement in effect until (a) a period of
ninety days has elapsed since the date of this Prospectus or (b) all of the
shares offered hereby have been sold hereunder.
The Company will not receive any of the proceeds from the sale of
shares by the Selling Stockholders. See "Use of Proceeds."
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"ASPENTECH" is a registered trademark of the Company.
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RISK FACTORS
In addition to the other information in this Prospectus, the following
risk factors should be considered in evaluating the Company and its business.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS AND CASH FLOW
The Company's operating results and cash flow have fluctuated in the
past and may fluctuate significantly in the future as a result of a variety of
factors, including purchasing patterns, timing of introductions of new solutions
and enhancements by the Company and its competitors, and fluctuating economic
conditions. Because license fees for the Company's software products are
substantial and the implementation of the Company's solutions often requires the
services of the Company's engineers over an extended period of time, the sales
process for the Company's solutions is lengthy and can exceed one year.
Accordingly, software revenue is difficult to predict, and the delay of any
order could cause the Company's quarterly revenues to fall substantially below
expectations. Moreover, to the extent that the Company succeeds in shifting
customer purchases away from individual software solutions and toward integrated
suites of its software and service solutions, the likelihood of delays in
ordering may increase and the effect of any delay may become more pronounced.
The Company ships software products within a short period after receipt
of an order and usually does not have a material backlog of unfilled orders of
software products. Consequently, revenues from software licenses in any quarter
are substantially dependent on orders booked and shipped in that quarter.
Historically, a majority of each quarter's revenues from software licenses has
been derived from license agreements that have been consummated in the final
weeks of the quarter. Therefore, even a short delay in the consummation of an
agreement may cause revenues to fall below expectations for that quarter. Since
the Company's expense levels are based in part on anticipated revenues, the
Company may be unable to adjust spending in a timely manner to compensate for
any revenue shortfall and any revenue shortfalls would likely have a
disproportionately adverse effect on net income. The Company expects that these
factors will continue to affect its operating results for the foreseeable
future.
Prior to fiscal 1996, the Company experienced a net loss for the first
quarter of each fiscal year, in part because a substantial portion of the
Company's total revenues is derived from countries other than the United States
where business is slow during the summer months and also in part because of the
timing of renewals of software licenses. Although the Company has generated a
profit for the first quarter of each of fiscal 1997 and fiscal 1998, the Company
expects that it will continue to experience declines in total revenues and net
income in the first fiscal quarter as compared to the immediately preceding
fiscal quarter. Because of the foregoing factors, the Company believes that
period-to-period comparisons of its operating results are not necessarily
meaningful and should not be relied upon as indications of future performance.
Due to all of the foregoing factors, it is possible that in some future quarter
the Company's operating results will be below the expectations of public market
analysts and investors. In such event, the price the Common Stock would likely
be materially adversely affected.
The Company derives a substantial portion of its total revenues from
service engagements and a majority of these engagements have been undertaken on
a fixed-price basis. The Company bears the risk of cost overruns and inflation
in connection with fixed-price engagements, and as a result, any of these
engagements may be unprofitable.
LIMITED SUPPLY OF QUALIFIED PROJECT ENGINEERS
The Company derives a substantial portion of its total revenues from
services, particularly projects involving advanced process control and
optimization and similar projects. These projects can be extremely complex and
in general only highly qualified, highly educated project engineers have the
necessary training and skills to complete these projects successfully. In order
to continue to staff its current and future projects, the Company will need to
attract, motivate and retain a significant number of highly qualified, highly
educated chemical and other
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project engineers. The Company primarily hires as project engineers individuals
who have obtained a doctoral or master's degree in chemical engineering or a
related discipline or who have significant relevant industry experience. As a
result, the pool of potential qualified employees is relatively small, and the
Company faces significant competition for these employees, from not only the
Company's direct competitors but also the Company's clients, academic
institutions and other enterprises. Many of these competing employers are able
to offer potential employees significantly greater compensation and benefits or
more attractive lifestyle choices, career paths or geographic locations than the
Company. The failure to recruit and retain a significant number of qualified
project engineers could have a material adverse effect on the Company's
business, operating results and financial condition. Moreover, increasing
competition for these engineers may also result in significant increases in the
Company's labor costs, which could have a material adverse effect on the
Company's business, operating results and financial condition.
INTEGRATION OF CHESAPEAKE AND OTHER RECENTLY ACQUIRED COMPANIES
Through its acquisitions of Chesapeake Decision Sciences, Inc.
("Chesapeake") and several smaller companies in 1998, the Company has expanded
its product and service offerings, has entered new markets and has increased its
scope of operations and the number of its employees. The successful and timely
integration of Chesapeake and these other companies into the Company's
operations is critical to the Company's future financial performance. This
integration will require that the Company, among other things, integrate the
companies' software products and technologies, retain key employees, assimilate
diverse corporate cultures, integrate management information systems,
consolidate the acquired operations and manage geographically dispersed
operations, each of which could pose significant challenges. To succeed in the
market for supply chain management solutions, the Company must also invest
additional resources, primarily in the areas of sales and marketing, to extend
name recognition and increase market share. The diversion of the attention of
management created by the integration process, any disruptions or other
difficulties encountered in the integration process, and unforseen liabilities
or unanticipated problems with the acquired businesses could have a material
adverse effect on the business, operating results and financial condition of the
Company. The difficulty of combining these companies may be increased by the
need to integrate personnel, and changes effected in the combination may cause
key employees to leave. There can be no assurance that these acquisitions will
provide the benefits expected by the Company or that the Company will be able to
integrate and develop the operations of Chesapeake and these other companies
successfully. Any failure to do so could have a material adverse effect on the
Company's business, operating results and financial condition.
COMPETITION
The Company faces three primary sources of competition: commercial
vendors of software products for one or more elements in the design, operation
and management of manufacturing processes; vendors of hardware that offer
software solutions in order to add value to their proprietary DCS; and large
companies in the process industries that have developed their own proprietary
software solutions. Because of the breadth of its software and service
offerings, the Company faces competition from different vendors depending on the
solution in question. The Company competes with respect to the largest number of
its solutions with Simulation Sciences, Inc., a subsidiary of Siebe plc. With
respect to particular software solutions, the Company also competes with
Chemstations, Inc., Hyprotech, Ltd. (a subsidiary of AEA Technology plc), The
Foxboro Company and Wonderware Corporation (both of which are subsidiaries of
Siebe plc), OSI Software, Inc., the Simcon division of ABB Asea Brown Boveri
(Holding) Ltd., and several smaller competitors, such as Pavilion Technologies,
Inc. With the acquisition of Chesapeake, the Company now competes with
established commercial vendors of supply chain management software, including i2
Technologies, Inc. and Manugistics Group, Inc. A number of vendors of ERP
software products, such as Baan Company N.V., J.D. Edwards Inc., Oracle
Corporation, PeopleSoft, Inc., and SAP A.G., have announced their intentions to
enter or expand their existing presence in the market for supply chain
management solutions. The Company also expects to encounter increasing
competition from DCS solution vendors, such as Honeywell Inc., as they expand
their software and service offerings to include additional aspects of process
manufacturing. Moreover, in recent years, there has been consolidation in the
markets in which the
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Company competes that has expanded the breadth of product and service offerings
by certain of the Company's competitors, such as the acquisitions by Siebe plc
of Simulation Sciences, Inc. and Wonderware Corporation. As a result of this
consolidation and the expansion of DCS and ERP vendors into additional markets,
the Company from time to time may compete with divisions of companies with which
it collaborates on other occasions, such as Honeywell Inc. and Siebe plc. There
can be no assurance that the Company's efforts to compete and cooperate
simultaneously with these or other companies will be successful. The further
consolidation of existing competitors or the emergence of new competitors could
have a material adverse effect on the Company's business, operating results and
financial condition. Certain competitors also supply related hardware products
to existing and potential customers of the Company and may have established
relationships that afford those competitors an advantage in supplying software
and services to those customers. The Company's continued success depends on its
ability to compete effectively with its commercial competitors and to persuade
prospective customers to use the Company's products and services instead of, or
in addition to, software developed internally or services provided by their own
personnel. In light of these factors, there can be no assurance that the Company
will be able to maintain its competitive position.
RISKS ASSOCIATED WITH FUTURE ACQUISITIONS
An element of the Company's business strategy is to continue to pursue
strategic acquisitions that will provide it with complementary products,
services and technologies and with additional engineering personnel. The
identification and pursuit of these acquisition opportunities and the
integration of acquired personnel, products, technologies and businesses require
a significant amount of management time and skill. There can be no assurance
that the Company will be able to identify suitable acquisition candidates,
consummate any acquisition on acceptable terms or successfully integrate any
acquired business into the Company's operations. In light of the consolidation
trend in the Company's industry, the Company expects to face competition for
acquisition opportunities, which may substantially increase the cost of any
acquisition consummated by the Company. There can also be no assurance that any
future acquisition will not have a material adverse effect upon the Company's
operating results as a result of non-recurring charges associated with the
acquisition or as a result of integration problems in the fiscal quarters
following consummation of the acquisition. Acquisitions may also expose the
Company to additional risks, including diversion of management's attention,
failure to retain key acquired personnel, assumption of legal or other
liabilities and contingencies, and amortization of goodwill and other acquired
intangible assets, some or all of which could have a material adverse effect on
the Company's business, operating results and financial condition. Moreover,
customer dissatisfaction with, or problems caused by, the performance of any
acquired technologies could have a material adverse impact on the reputation of
the Company as a whole. In addition, there can be no assurance that acquired
businesses will achieve anticipated revenues and earnings. The Company may use
Common Stock or Preferred Stock or may incur long-term indebtedness or a
combination thereof for all or a portion of the consideration to be paid in
future acquisitions. The issuance of Common Stock or Preferred Stock in
acquisitions could result in dilution to existing stockholders, while the use of
cash reserves or significant debt financing to fund acquisitions could reduce
the Company's liquidity.
CONCENTRATION OF REVENUES IN THE CHEMICALS, PETROCHEMICALS AND PETROLEUM
INDUSTRIES
The Company derives a substantial majority of its total revenues from
companies in the chemicals, petrochemicals and petroleum industries.
Accordingly, the Company's future success depends upon the continued demand for
process manufacturing optimization software and services by companies in these
industries. The chemicals, petrochemicals and petroleum industries are highly
cyclical. The Company believes that worldwide economic downturns and pricing
pressures experienced by chemical, petrochemical and petroleum companies in
connection with cost-containment measures and environmental regulatory pressures
have in the past led to worldwide delays and reductions in certain capital and
operating expenditures by many of these companies. There can be no assurance
that these industry patterns, as well as general domestic and foreign economic
conditions and other factors affecting spending by companies in these
industries, will not have a material adverse effect on the Company's business,
operating results and financial condition.
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PRODUCT DEVELOPMENT AND TECHNOLOGICAL CHANGE
The market for software and services for process manufacturing
optimization is characterized by rapidly changing technology and continuing
improvements in computer hardware, operating systems, programming tools,
programming languages and database technology. The Company's future success will
depend on its ability to enhance its current software products and services,
integrate its current and future software offerings, modify its products to
operate on additional or new operating platforms or systems, and develop in a
timely and cost-effective manner new software and services that meet changing
market conditions, including evolving customer needs, new competitive software
and service offerings, emerging industry standards and changing technology. The
Company has announced its intention to further integrate its software products
with each other and to integrate those products with ERP, DCS and other business
software solutions. The Company believes additional development will be
necessary before its products are fully integrated with each other and with
these other solutions, particularly with respect to ERP solutions. In the past,
the Company has experienced delays in the development and enhancement of new and
existing products, particularly the Windows version of Aspen Plus, and has on
occasion postponed scheduled delivery dates for certain of its products. There
can be no assurance that the Company will be able to meet customers'
expectations with respect to product development, enhancement and integration or
that the Company's software and services will otherwise address adequately the
needs of customers. Like many other software products, the Company's software
has on occasion contained undetected errors or "bugs." Because new releases of
the Company's software products are initially installed only by a selected group
of customers, any errors or "bugs" in those new releases may not be detected for
a number of months after the delivery of the software. If the Company's products
do not perform substantially as expected or are not accepted in the marketplace,
the Company's business, operating results and financial condition would be
materially adversely affected.
DEPENDENCE ON KEY PERSONNEL
The Company's future success depends to a significant extent on
Lawrence B. Evans, the principal founder of the Company and its Chairman and
Chief Executive Officer, its other executive officers, and certain engineering,
technical, managerial and marketing personnel. The loss of the services of any
of these individuals or groups of individuals could have a material adverse
effect on the Company's business, operating results and financial condition.
None of the Company's executive officers has entered into an employment
agreement with the Company, and the Company does not have, and is not
contemplating securing, any significant amount of key-person life insurance on
any of its executive officers or other key employees. In addition to the need to
recruit qualified project engineers, the Company believes that its future
success will also depend significantly upon its ability to attract, motivate and
retain additional highly skilled technical, managerial and marketing personnel.
Competition for such personnel is intense, and there can be no assurance that
the Company will be successful in attracting, motivating and retaining the
personnel it requires to continue to grow and operate profitably.
PRODUCT LIABILITY
The sale and implementation of certain of the Company's software
products and services, particularly in the areas of advanced process control and
optimization, may entail the risk of product liability claims. The Company's
software products and services are used in the design, operation and management
of manufacturing processes at large facilities, and any failure of the software
at those facilities could result in significant claims for damages or for
violations of environmental, safety and other laws and regulations. The
Company's agreements with its customers generally contain provisions designed to
limit the Company's exposure to potential product liability claims. It is
possible, however, that the limitation of liability provisions in the Company's
agreements may not be effective as a result of federal, state or local laws or
ordinances or unfavorable judicial decisions. A substantial product liability
claim against the Company could have a material adverse effect upon the
Company's business, operating results and financial condition.
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DEPENDENCE ON PROPRIETARY TECHNOLOGY
The Company regards its software as proprietary and relies on a
combination of copyright, patent, trademark and trade secret laws, license and
confidentiality agreements, and software security measures to protect its
proprietary rights. AspenTech has United States patents for the expert guidance
system in its proprietary graphical user interface, the simulation and
optimization methods in its optimization software, a process flow diagram
generator in its planning and scheduling software, and a process simulation
apparatus in its polymers software. The Company has registered or has applied to
register certain of its significant trademarks in the United States and in
certain other countries. The Company generally enters into non-disclosure
agreements with its employees and customers, and historically has restricted
access to its software products' source codes, which it regards as proprietary
information. In a few cases, the Company has provided copies of the source code
for certain products to customers solely for the purpose of special
customization of the products and has deposited copies of the source code for
certain products in third-party escrow accounts as security for on-going service
and license obligations. In these cases, the Company relies on nondisclosure and
other contractual provisions to protect its proprietary rights.
The laws of certain countries in which the Company's products are
licensed do not protect the Company's products and intellectual property rights
to the same extent as the laws of the United States. The laws of many countries
in which the Company licenses its products protect trademarks solely on the
basis of registration. The Company currently possesses a limited number of
trademark registrations in certain foreign jurisdictions and does not possess,
and has not applied for, any foreign copyright or patent registrations. In
fiscal 1996, fiscal 1997 and the nine months ended March 31, 1998, the Company
derived approximately 42.0%, 50.0% and 45.3% of its total revenues,
respectively, from customers outside the United States. There can be no
assurance that the steps taken by the Company to protect its proprietary rights
will be adequate to deter misappropriation of its technology or independent
development by others of technologies that are substantially equivalent or
superior to the Company's technology. Any such misappropriation of the Company's
technology or development of competitive technologies could have a material
adverse effect on the Company's business, operating results and financial
condition. The Company could incur substantial costs in protecting and enforcing
its intellectual property rights. Moreover, from time to time third parties may
assert patent, trademark, copyright and other intellectual property rights to
technologies that are important to the Company. In such an event, the Company
may be required to incur significant costs in litigating a resolution to the
asserted claims. There can be no assurance that such a resolution would not
require that the Company pay damages or obtain a license of a third party's
proprietary rights in order to continue licensing its products as currently
offered or, if such a license is required, that it will be available on terms
acceptable to the Company, if at all.
MANAGEMENT OF GROWTH
The Company has experienced substantial growth in recent years in the
number of its employees, the scope of its operating and financial systems, and
the geographic area of its operations. The Company's operations have expanded
significantly through both internally generated growth and acquisitions. This
growth has resulted in increased responsibilities for the Company's management.
To manage its growth effectively, the Company must continue to expand its
management team, attract, motivate and retain employees, including qualified
project engineers, and implement and improve its operating and financial
systems. There can be no assurance that the Company's current management systems
will be adequate or that the Company will be able to manage the Company's recent
or future growth successfully. Any failure to do so could have a material
adverse effect on the Company's business, operating results and financial
condition.
INTERNATIONAL OPERATIONS
In fiscal 1996, fiscal 1997 and the nine months ended March 31, 1998,
the Company derived approximately 42.0%, 50.0% and 45.3% of its total revenues,
respectively, from customers outside the United States. The
9
11
Company anticipates that revenues from customers outside the United States will
continue to account for a significant portion of its total revenues for the
foreseeable future. The Company's operations outside the United States are
subject to additional risks, including unexpected changes in regulatory
requirements, exchange rates, tariffs and other barriers, political and economic
instability, difficulties in managing distributors or representatives,
difficulties in staffing and managing foreign subsidiary operations,
difficulties or delays in translating products and product documentation into
foreign languages, and potentially adverse tax consequences. In addition, the
Company currently is unable to determine the effect, if any, that recent
economic downturns in Asia, particularly Japan, or the adoption and use of the
euro, the single European currency to be introduced in January 1999, will have
on the Company's business. There can be no assurance that any of these factors
will not have a material adverse effect on the Company's business, operating
results and financial condition.
The impact of future exchange rate fluctuations on the Company's
financial condition and operating results cannot be accurately predicted. In
recent years, the Company has increased the extent to which it denominates
arrangements with customers outside the United States in the currencies of the
country in which the software or services are provided. From time to time the
Company has engaged in, and may continue to engage in, hedges of a significant
portion of installment contracts denominated in foreign currencies. There can be
no assurance that any hedging policies implemented by the Company will be
successful or that the cost of such hedging techniques will not have a
significant impact on the Company's business, operating results and financial
condition.
DEPENDENCE ON INCREASED MARKET PENETRATION
Increased use in the process industries of software and services for
process manufacturing optimization in general and of the Company's software
products and services in particular is critical to the Company's future growth.
The Company believes that a number of factors will determine its ability to
increase market penetration. These factors include product performance, accuracy
of results, reliability, breadth and integration of product offerings, scope of
applications, and ease of implementation and use. Failure of the Company to
achieve increased market penetration in the process industries would
substantially restrict the future growth of the Company and could have a
material adverse effect on the Company's business, operating results and
financial condition.
YEAR 2000 COMPLIANCE
Many currently installed computer systems and software applications are
designed to accept only two digit entries in the date code field used to
identify years. These date code fields will need to be modified to recognize
twenty-first century years. As a result, computer systems and software
applications used by many companies may need to be upgraded to comply with "year
2000" requirements. Significant uncertainty exists in the software industry
concerning the potential effects of failure to comply with such requirements.
The Company has developed a testing and compliance program to ascertain whether
and to what extent the Company may need to update its software products to
become year 2000 compliant. The Company does not intend to test or modify all
prior versions of its software products, current products used on year 2000
non-compliant systems, custom applications developed by or for customers, or
certain current software products that the Company plans to replace with either
new software products or year 2000 compliant releases by the end of 1999.
Certain of the Company's software products are currently year 2000 compliant;
however, the Company has not completed testing on many of the other software
products that it intends to test. There can be no assurance that the Company
will complete in a timely manner the testing of such software products or the
development of any updates necessary to render such software products year 2000
compliant. Although the Company has obtained representations as to year 2000
compliance from the sellers of certain of its recently acquired technologies,
there can be no assurance that the Company will not encounter year 2000 problems
arising from these technologies or any other technologies that the Company may
acquire in the future. Moreover, the ability of the Company's software products
to comply with year 2000 requirements depends in part upon the availability of
year 2000 compliant versions of operating systems and software applications used
by or with the Company's products. Any delay in developing or offering, or the
failure to develop or offer year 2000 compliant products or any necessary
updates to existing products, could result
10
12
in delays in the purchasing of the Company's products and services or in reduced
demand for those products and services, and could also result in errors that
materially impair the utility of one or more of the Company's products, any of
which could have a material adverse effect on the Company's business, operating
results and financial condition. Although the Company does not expect the costs
associated with its year 2000 compliance program to be material, there can be no
assurance that unidentified year 2000 problems will not cause the Company to
incur material expenses in responding to such problems or otherwise have a
material adverse effect on the Company's business, operating results and
financial condition. Moreover, customer purchasing patterns may be affected by
year 2000 issues as customers delay purchases in anticipation of the future
release of year 2000 compliant products or releases, and as customers expend
significant resources to upgrade their current software systems and applications
for year 2000 compliance. These expenditures may result in reduced funds
available to purchase software products such as those offered by the Company.
NEW ACCOUNTING STANDARD
In October 1997, the American Institute of Certified Public Accountants
("AICPA") issued Statement of Position No. 97-2 ("SOP 97-2"), "Software Revenue
Recognition," which the Company adopted for software license agreements entered
into with customers on or after January 1, 1998. This statement provides
accounting standards for software revenue recognition. The Company believes that
its revenue recognition policies comply with SOP 97-2; however, unanticipated
changes or new interpretations by the AICPA of SOP 97-2 could require changes in
the Company's revenue recognition practices, which could have a material adverse
effect on the Company's operating results and financial condition.
POTENTIAL VOLATILITY OF PRICE OF COMMON STOCK
The equity markets have from time to time experienced extreme price and
volume fluctuations, particularly in the high technology sector, and those
fluctuations have often been unrelated to the operating performance of
particular companies. In addition, factors such as the financial performance of
the Company, announcements of technological innovations or new products by the
Company or its competitors, as well as market conditions in the computer
software or hardware industries, may have a significant impact on the market
price of the Common Stock.
EFFECT OF CERTAIN CHARTER AND BY-LAW PROVISIONS AND ANTI-TAKEOVER PROVISIONS;
POSSIBLE ISSUANCES OF PREFERRED STOCK; STOCKHOLDER RIGHTS PLAN
The Company's Certificate of Incorporation, its By-Laws and certain
Delaware laws contain provisions that may discourage acquisition bids for the
Company and that may deprive stockholders of certain opportunities to receive a
premium for their shares as part of an acquisition of the Company. Preferred
Stock may be issued by the Company in the future without stockholder approval
and upon such terms as the Board of Directors may determine. The rights of the
holders of Common Stock will be subject to, and may be adversely affected by,
the rights of the holders of any Preferred Stock that may be issued in the
future. The issuance of Preferred Stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third party to acquire, or of
discouraging a third party from acquiring, a majority of the outstanding stock
of the Company. The Company has adopted a stockholder rights plan, which may
deter or delay attempts to acquire the Company or accumulate shares of Common
Stock. Except for the stockholder rights plan, the Company has no present plans
to designate or issue any shares of Preferred Stock.
11
13
FORWARD-LOOKING STATEMENTS
This Prospectus contains and incorporates by reference certain
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act, which are intended to be covered by the
safe harbors created thereby. For this purpose, any statements contained or
incorporated by reference herein that are not statements of historical fact may
be deemed to be forward-looking statements. Without limiting the foregoing, the
words "believes," "anticipates," "plans," "expects," and similar expressions are
intended to identify forward-looking statements. Readers are cautioned that all
forward-looking statements involve risks and uncertainties, many of which are
beyond the Company's control, including the factors set forth under "Risk
Factors." Although the Company believes that the assumptions underlying the
forward-looking statements contained or incorporated by reference herein are
reasonable, any of the assumptions could be inaccurate and there can be no
assurance that actual results will be the same as those indicated by the
forward-looking statements included or incorporated by reference in this
Prospectus. In light of the significant uncertainties inherent in the
forward-looking statements included herein, the inclusion or incorporation by
reference of such information should not be regarded as a representation by the
Company or any other person that the objectives and plans of the Company will be
achieved. Moreover, the Company assumes no obligation to update these
forward-looking statements to reflect actual results, changes in assumptions or
changes in other factors affecting such forward-looking statements.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholders, nor will any such proceeds be available for use by
the Company or otherwise for the Company's benefit. See "Selling Stockholders."
12
14
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of Common Stock by the Selling Stockholders as of June 17,
1998 and as adjusted to reflect the sale of the shares of Common Stock offered
hereby. Except as indicated, each of the Selling Stockholders possesses sole
voting and investment power with respect to shares, subject to community
property laws where applicable.
Shares Number Shares to be
Beneficially of Beneficially Owned
Owned Shares After Offering if
Prior to Offering Being All Shares Sold
------------------- -----------------------
Name Number Percent Offered Number Percent
- ---- -------- -------- --------- -------- --------
Chiara Bernieri..................... 21,975 * 21,975 -- --
C.D. Technicom...................... 13,429 * 11,996 1,433 *
Philippe Chavez..................... 1,918 * 1,713 205 *
Jean-Louis Deckers(1)............... 23,340 * 20,848 2,492 *
Jules Delplace...................... 64 * 57 7 *
Michel Devos........................ 2,558 * 2,285 273 *
Jean-Louis Mentior.................. 448 * 400 48 *
Alain Rondenbosch................... 19,375 * 17,307 2,068 *
Synerfi SA.......................... 33,699 * 30,101 3,598 *
Jacques Talbot...................... 21,422 * 19,135 2,287 *
Andre Vanden Bosch.................. 2,046 * 1,828 218 *
- ----------
* Percentage of shares beneficially owned is less than 1.0%.
(1) Includes 11,894 shares beneficially owned by G.I.S.C. S.A., of which 10,624
are being offered hereby. Mr. Deckers is the sole stockholder and the
principal officer of G.I.S.C. S.A.
13
15
PLAN OF DISTRIBUTION
This Prospectus and the Registration Statement are in furtherance of a
"shelf" registration pursuant to Rule 415 promulgated by the Commission under
the Securities Act. Under the Cimtech Agreement and the Contas Agreement, the
Company is obligated to keep the shelf registration in effect until (a) a period
of ninety days has elapsed since the date of this Prospectus or (b) all of the
shares offered hereby have been sold hereunder.
The shares offered hereby may be sold from time to time by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest of the Selling Stockholders. Such sales may be made on the Nasdaq
National Market, or otherwise, at prices and on terms then prevailing or at
prices related to the then-current market prices, or in negotiated transactions
at negotiated prices. The shares may be sold by one or a combination of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction; (b) purchases by a broker
or dealer as principal and resale by such broker or dealer for its account
pursuant to this Prospectus; and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Stockholders may arrange for other
brokers or dealers to participate. Brokers or dealers will receive commissions
or discounts from Selling Stockholders in amounts to be negotiated immediately
prior to the sale. The Selling Stockholders and any broker-dealers that
participate in the distribution may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commission received by
them and any profit on the resale of shares sold by them may be deemed to be
underwriting discounts and commissions.
Upon the Company being notified by the Selling Stockholders that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplemented
prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act, setting forth (i) the name of each of the participating
broker-dealers, (ii) the number of shares involved, (iii) the price at which
such shares were sold, (iv) the commissions paid or discounts or concessions
allowed to such broker-dealers, where applicable, (v) a statement to the effect
that such broker-dealers did not conduct any investigation to verify the
information set out or incorporated by reference in this Prospectus, and
(vi) other facts material to the transaction.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
EXPERTS
The consolidated and supplemental consolidated balance sheets of the
Company as of June 30, 1996 and 1997 and the related consolidated and
supplemental consolidated statements of operations, stockholders' equity and
cash flows for the years ended June 30, 1995, 1996 and 1997 incorporated by
reference herein from the Company's Current Report on Form 8-K dated May 27,
1998 have been audited by Arthur Andersen LLP, independent public accountants,
to the extent and for the periods indicated in their reports included in such
Form 8-K, and are incorporated by reference herein in reliance upon the
authority of that firm as experts in giving those reports.
14
16
===============================================================================
No broker, dealer or any other person has been authorized to give any
information or to make any representations in connection with this offering
other than those contained in this Prospectus, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Selling Stockholders. This Prospectus does not constitute
an offer to sell or a solicitation of an offer to buy any securities other than
the shares of Common Stock to which it relates or an offer to, or a solicitation
of, any person in any jurisdiction where such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or that information
contained herein is correct as of any time subsequent to its date.
-----------------
TABLE OF CONTENTS
-----------------
PAGE
Available Information................................................. 2
Information Incorporated by Reference................................. 2
Prospectus Summary.................................................... 3
Risk Factors.......................................................... 5
Forward-Looking Information........................................... 12
Use of Proceeds....................................................... 12
Selling Stockholders.................................................. 13
Plan of Distribution.................................................. 14
Legal Matters......................................................... 14
Experts............................................................... 14
================================================================================
127,645 SHARES
ASPEN TECHNOLOGY, INC.
COMMON STOCK
----------
PROSPECTUS
----------
, 1998
================================================================================
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by the
Registrant in connection with the issuance and distribution of the shares of
Common Stock being registered. All amounts shown are estimates except for the
Securities and Exchange Commission registration fee. The Registrant will pay all
expenses in connection with the distribution of the shares of Common Stock being
sold by the Selling Stockholders (including fees and expenses of counsel for the
Company), except for any discounts, concessions, commissions or other
compensation due to any broker or dealer in connection with the sale of any of
the shares offered hereby.
Securities and Exchange Commission registration fee........... $1,568
Legal fees and expenses....................................... 4,500
Printing, EDGAR formatting and mailing expenses............... 500
Miscellaneous................................................. 932
------
Total.................................................... $7,500
======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article SEVENTH of the Registrant's Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), provides that no director of the
Registrant shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
Article EIGHTH of the Certificate of Incorporation provides that a
director or officer of the Registrant shall be indemnified by the Registrant
against (a) all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection with any litigation or other
legal proceeding (other than an action by or in the right of the Registrant)
brought against him or her by virtue of his or her position as a director or
officer of the Registrant if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful and (b) all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him or her by virtue of his or her position as a director or officer of the
Registrant if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Registrant,
except that no indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to the Registrant,
unless a court determines that, despite such adjudication but in view of all of
the circumstances, he or she is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including the dismissal of an action
without prejudice, he or she is required to be indemnified by the Registrant
against all expenses (including attorneys' fees) incurred in connection
therewith. Expenses shall be advanced to a director or officer at his or her
request, provided that he or she undertakes to repay the amount advanced if it
is ultimately determined that he or she is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within sixty days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the
II-1
18
Registrant notice of the action for which indemnity is sought and the Registrant
has the right to participate in such action or assume the defense thereof.
Article EIGHTH of the Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive, and provides that in
the event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers the Registrant must indemnify
those persons to the fullest extent permitted by such law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is or is threatened
to be made a party by reason of such position, if such person shall have acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his or her conduct
was unlawful; provided that, in the case of actions brought by or in the right
of the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Company maintains a directors' and officers' insurance policy that
covers certain liabilities of directors and officers of the Company, including
liabilities under the Securities Act. The Company maintains a general liability
insurance policy that covers certain liabilities of directors and officers of
the Company arising out of claims based on acts or omissions in their capacities
as directors or officers.
ITEM 16. EXHIBITS
EXHIBIT NO.
- ----------
5.1 Opinion of Foley, Hoag & Eliot LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on pages II-4 and II-5)
99.1 Section 5.9 (Registration of Exchanged Shares) of Share Exchange
Agreement dated as of February 25, 1998 between Aspen Technology, Inc.
and Stockholders of Cimtech S.A./N.V.
99.2 Section 5.7 (Registration of Exchanged Shares) of Acquisition
Agreement dated as of February 27, 1998 (the "Contas Agreement")
between Aspen Technology, Inc. and Ms. Bernieri of Contas Process
Control s.r.l.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required to Section 10(a)(3)
of the Securities Act of 1933;
II-2
19
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8, or Form S-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration, by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference to the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on June 18,
1998.
ASPEN TECHNOLOGY, INC.
By: /s/ LAWRENCE B. EVANS
-----------------------------------
LAWRENCE B. EVANS
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Aspen Technology, Inc.,
hereby severally constitute and appoint Lawrence B. Evans, Mary A. Palermo and
Stephen J. Doyle, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-3 filed
herewith and any and all pre-effective and post-effective amendments to said
Registration Statement, and any subsequent Registration Statement for the same
offering which may be filed under Rule 462(b) under the Securities Act of 1933
and generally to do all such things in our names and on our behalf in our
capacities as officers and directors to enable Aspen Technology, Inc. to comply
with the provisions of the Securities Act of 1933 and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto or to any subsequent
Registration Statement for the same offering which may be filed under said Rule
462(b).
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated as of June 18, 1998.
SIGNATURE TITLE
--------- -----
/s/ LAWRENCE B. EVANS Chairman of the Board and Chief Executive
- ------------------------------- Officer (Principal Executive Officer)
LAWRENCE B. EVANS
/s/ MARY A. PALERMO Executive Vice President, Finance and
- ------------------------------- Chief Financial Officer (Principal Financial
MARY A. PALERMO and Accounting Officer)
/s/ JOSEPH F. BOSTON Director
- -------------------------------
JOSEPH F. BOSTON
/s/ GRESHAM T. BREBACH, JR. Director
- -------------------------------
GRESHAM T. BREBACH, JR.
/s/ DOUGLAS R. BROWN Director
- -------------------------------
DOUGLAS R. BROWN
/s/ JOAN C. MCARDLE Director
- -------------------------------
JOAN C. MCARDLE
/s/ ALISON ROSS Director
- -------------------------------
ALISON ROSS
II-4
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EXHIBIT 5.1
FOLEY, HOAG & ELIOT LLP
One Post Office Square
Boston, Massachusetts 02109-2170
Telephone: (617) 832-1000
Facsimile: (617) 832-7000
Telex 940693
http://www.fhe.com
June 19, 1998
ASPEN TECHNOLOGY, INC.
Ten Canal Park
Cambridge, Massachusetts 02141
Ladies and Gentlemen:
We have acted as special counsel for Aspen Technology, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement on Form S-3 (the "Registration Statement")
relating to the offering of up to 127,645 shares (the "Shares") of the Company's
common stock, $.10 par value, by certain stockholders of the Company.
In arriving at the opinion expressed below, we have examined and relied
on: (i) the Registration Statement; (ii) the Certificate of Incorporation of the
Company, as amended; (iii) the By-Laws of the Company; and (iv) minutes of the
meeting of the Board of Directors of the Company held on February 24, 1998. In
addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such other records, documents
and instruments of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. We have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
We express no opinion other than as to the corporation laws of the State
of Delaware.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and validly issued and are fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By /s/ MARK L. JOHNSON
-----------------------------
A Partner
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated May 29, 1998
included in Aspen Technology Inc.'s Form 8-K dated May 27, 1998 related to the
consolidated financial statements of Aspen Technology, Inc. and subsidiaries
and the supplemental consolidated financial statements of Aspen Technology,
Inc. and subsidiaries for the year ended June 30, 1997 and to all references to
our firm in this Registration Statement.
ARTHUR ANDERSEN LLP
June 15, 1998
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EXHIBIT 99.1
[Excerpted from Share Exchange Agreement dated as of February 25, 1998
between Aspen Technology, Inc. and Stockholders of Cimtech S.A./N.V.]
5.9. REGISTRATION OF EXCHANGED SHARES.
a. HOLDERS AND INITIAL HOLDERS. The rights to registration of shares
under this section are for the Stockholders and any of their
respective (i) successors-in-interest, (ii) family members, trusts
wholly or principally for the benefit of family members and
affiliates to whom a Stockholder or its successor-in-interest
transfers any of the Registrable Securities (as defined in paragraph
(b) of this section) initially issued to such Stockholder and
(iii) any other person or persons to whom a Stockholder transfers
all or substantially all of the Registrable Securities initially
issued to such Stockholder, which family member, trust, affiliate or
person described in clause (ii) or (iii) is registered on the books
of AspenTech (together with the Stockholders, such
successors-in-interest, family members, trusts, affiliates and other
persons are hereinafter sometimes referred to as the "Holders").
b. SECURITIES SUBJECT TO THIS SECTION. The securities entitled to the
benefits of this section are the Exchanged Shares, the Reserved
Shares (but only after delivery thereof to the Derivative Rights
Holders in accordance with Section 2.1.b) and any other securities
issued by AspenTech in exchange for any of the Exchanged Shares and
Reserved 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
(i) such security has been effectively registered under the
Securities Act and has been disposed of pursuant to such
registration statement, (ii) 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, (iii) such security has been
otherwise transferred and (A) AspenTech has delivered a new
certificate or other evidence of ownership not bearing the legend
set forth on the Exchanged Shares upon the initial issuance thereof
(or other legend of similar import) and (B) in the opinion of
counsel to AspenTech, the subsequent disposition of such security
shall not require the registration or qualification under the
Securities Act or (C) such security has ceased to be outstanding.
c. SHELF REGISTRATION. AspenTech 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
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 reasonably be required) covering the entire
issue of Registrable Securities and such other shares of Aspen
Common as may be included pursuant to registration rights of other
holders of Aspen Common. AspenTech shall use its best efforts to
(i) cause the Shelf Registration to be declared effective by the
Commission on, or as soon as practicable after, the date on which
AspenTech first publishes financial results covering at least thirty
days of post-acquisition combined operations of AspenTech and
Cimtech and (ii) keep the Shelf Registration continuously effective
for a period (the "Shelf Registration Period") of ninety (90) days
after the date on which the Shelf
2
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), provided that
AspenTech may terminate the effectiveness of the Shelf Registration
upon a finding in good faith by AspenTech board of directors that
continuation would be significantly disadvantageous to AspenTech
because AspenTech 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.
(d) EXPENSES. AspenTech shall pay all expenses incident to its
performance of or compliance with this Section 5.9, regardless of
whether such registration becomes effective, including (i) all
Commission, stock exchange or market registration and filing fees,
(ii) 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), (iii) all printing, messenger and delivery
expenses, (iv) all fees and disbursements of AspenTech's independent
public accounts and counsel and (v) all fees and expenses of any
special experts retained by AspenTech in connection with any
registration pursuant to the terms of this Agreement; provided,
however, that the Holders shall be liable for (A) any fees or
commissions of brokers, dealers or underwriters, (B) any transfer
taxes and (C) 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.
[For purposes of the foregoing Section 5.9, the following terms have the
indicated meanings:
"Aspen Common" means common stock, $.10 par value, of AspenTech.
"AspenTech" means Aspen Technology, Inc.
"Cimtech" means Cimtech S.A./N.V.
"Derivative Rights Holders" means certain persons identified as holders of
convertible debentures, options, warrants or other rights to shares of Cimtech.
"Exchanged Shares" means 118,299 shares of Aspen Common exchanged for previously
outstanding shares of capital stock of Cimtech.
"Reserved Shares" means 7,993 shares of Aspen Common reserved for issuances upon
convertible debentures held by a former stockholder of Cimtech.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders" means the former stockholders of Cimtech.]
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EXHIBIT 99.2
[Excerpted from Acquisition Agreement dated as of February 27, 1998
between Aspen Technology, Inc. and Ms. Bernieri of Contas Process
Control s.r.l.]
5.7. REGISTRATION OF EXCHANGED SHARES.
(a) HOLDERS AND INITIAL HOLDERS. The rights to registration of shares
under this section is for Ms. Bernieri, and any of her respective
(i) successors-in-interest, (ii) family members, trusts wholly or
principally for the benefit of family members and affiliates to whom
Ms. Bernieri or her successor-in-interest transfers any of the
Registrable Securities (as defined in paragraph (b) of this section)
initially issued to Ms. Bernieri and (iii) any other person or
persons to whom Ms. Bernieri transfers all or substantially all of
the Registrable Securities initially issued to her, which family
member, trust, affiliate or person described in clause (ii) or (iii)
is registered on the books of AspenTech (together with Ms. Bernieri,
such successors-in-interest, family members, trusts, affiliates and
other persons are hereinafter sometimes referred to as the
"Holders").
(b) SECURITIES SUBJECT TO THIS SECTION. The securities entitled to the
benefits of this section are the Exchanged Shares and any other
securities issued by AspenTech in exchange for any of the Exchanged
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
(i) such security has been effectively registered under the
Securities Act and has been disposed of pursuant to such
registration statement, (ii) 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, (iii) such security has been
otherwise transferred and (A) AspenTech has delivered a new
certificate or other evidence of ownership not bearing the legend
set forth on the Exchanged Shares upon the initial issuance thereof
(or other legend of similar import) and (B) in the opinion of
counsel to AspenTech, the subsequent disposition of such security
shall not require the registration or qualification under the
Securities Act or (C) such security has ceased to be outstanding.
(c) SHELF REGISTRATION. AspenTech 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
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 covering the entire issue of Exchanged
Shares and such other shares of Aspen Common as may be included
pursuant to registration rights of other holders of Aspen Common.
AspenTech shall use its best efforts to (i) cause the Shelf
Registration to be declared effective by the Commission on, or as
soon as practicable after, the date on which AspenTech first
publishes financial results covering at least thirty days of
post-acquisition combined operations of AspenTech and Contas and
(ii) keep the Shelf Registration continuously effective for a period
(the "Shelf Registration Period") of ninety (90) days after the date
on which the Shelf Registration is declared effective by the
Commission (or such shorter period that will terminate when all
Exchanged Shares covered by the Shelf Registration have been sold).
2
(d) EXPENSES. AspenTech shall pay all expenses incident to its
performance of or compliance with this Section.
[For purposes of the foregoing Section 5.7, the following terms have the
indicated meanings:
"Aspen Common" means common stock, $.10 par value, of AspenTech.
"AspenTech" means Aspen Technology, Inc.
"Contas" means Contas Process Control s.r.l.
"Exchanged Shares" means 21,975 shares of Aspen Common exchanged for all
ownership interest in and to Contas.
"Ms. Bernieri" means Ms. Shiara Bernieri, Director and sole equity holder of
Contas.
"Securities Act" means the Securities Act of 1933, as amended.]
