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As filed with the Securities and Exchange Commission on July 28, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ASPEN TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
04-2739697
(I.R.S. Employer Identification No.)
Ten Canal Park, Cambridge, Massachusetts 02141
(Address of Principal Executive Offices) (Zip Code)
Petrolsoft Corporation Stock Option Plan
(Full Title of the Plan)
Lawrence B. Evans
Chairman of the Board and Chief Executive Officer
Aspen Technology, Inc.
Ten Canal Park
Cambridge, Massachusetts 02141
(Name and Address of Agent for Service)
(617) 949-1000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Price Aggregate Offering Amount of
To Be Registered To Be Registered Per Share Price Registration Fee
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Common Stock, $.10 par value.............. 123,885 $11.36(1) $1,407,333.60(1) $371.54
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(1) Calculated in accordance with Rule 457(h) under the Securities Act of 1933.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Petrolsoft Corporation Stock Option Plan pursuant
to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements
have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.10 par
value per share (the "Common Stock"), contained in the Registrant's
registration statement on Form 8-A filed with the Commission under
Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. 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 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 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
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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 Registrant maintains a directors' and officers' insurance policy
that covers certain liabilities of directors and officers of the Registrant,
including liabilities under the Securities Act of 1933. The Registrant maintains
a general liability insurance policy that covers certain liabilities of
directors and officers of the Registrant arising out of claims based on acts or
omissions in their capacities as directors or officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
4.1 Certificate of Incorporation of the Registrant. Incorporated by
reference to an exhibit to the Registrant's Form 8-K dated March
12, 1998 (filed March 27, 1998).
4.2 By-Laws of the Registrant. Incorporated by reference to an exhibit
to the Registrant's Registration Statement on Form 8-A (filed on
September 13, 1994), as amended by Amendment No. 1 thereto (filed
on June 12, 1998).
4.3 Rights Agreement dated as of October 9, 1997, between the
Registrant and American Stock Transfer and Trust Company, as Rights
Agent. Incorporated by reference to an exhibit to the Registrant's
Registration Statement on Form 8-A (filed on October 10, 1997), as
amended by Amendment No. 1 thereto (filed on June 12, 1998).
4.4 Specimen certificate representing Rights to Purchase Series A
Participating Cumulative Preferred Stock of Aspen Technology, Inc.
Incorporated by reference to Exhibit B to the Rights Agreement
referenced in Exhibit 4.3.
4.5 Specimen certificate for the Registrant's common stock, $.10 par
value. Incorporated by reference to an exhibit to the Registrant's
Registration Statement on Form 8-A (filed on October 10, 1997), as
amended by Amendment No. 1 thereto (filed on June 12, 1998) and
incorporated herein by reference.
4.6 Registrant's Petrolsoft Corporation Stock Option Plan.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page of this
Registration Statement).
Item 9. UNDERTAKINGS
The 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 to
include any material information with respect to the plan of
distribution not
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previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, 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; and
(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.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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 in the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Massachusetts, on this twenty-fourth day
of July, 2000.
ASPEN TECHNOLOGY, INC.
By: /s/ Lawrence B. Evans
----------------------------------
Lawrence B. Evans
Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Aspen Technology, Inc.
hereby severally constitute and appoint Lawrence B. Evans and Lisa W. Zappala,
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-8 filed herewith and any
and all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers and
directors to enable Aspen Technology, Inc. to comply with all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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 July 21, 2000.
NAME TITLE
---- -----
/s/ Lawrence B. Evans
___________________________________________________ Chairman of the Board and Chief Executive Officer
Lawrence B. Evans (principal executive officer)
/s/ Lisa W. Zappala
___________________________________________________ Senior Vice President and Chief Financial Officer
Lisa W. Zappala (principal financial and accounting officer)
/s/ Joseph F. Boston
___________________________________________________ Director
Joseph F. Boston
___________________________________________________ Director
Gresham T. Brebach, Jr.
___________________________________________________ Director
Douglas R. Brown
/s/ Stephen L. Brown
___________________________________________________ Director
Stephen L. Brown
/s/ /Stephen M. Jennings
___________________________________________________ Director
Stephen M. Jennings
/s/ Joan C. McArdle
___________________________________________________ Director
Joan C. McArdle
___________________________________________________ Director
Alison Ross
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Certificate of Incorporation of the Registrant. Incorporated by reference to an exhibit to the
Registrant's Form 8-K dated March 12, 1998 (filed March 27, 1998).
4.2 By-Laws of the Registrant. Incorporated by reference to an exhibit to the Registrant's Registration
Statement on Form 8-A (filed on September 13, 1994), as amended by Amendment No. 1 thereto (filed
on June 12, 1998).
4.3 Rights Agreement dated as of October 9, 1997, between the Registrant and American Stock Transfer
and Trust Company, as Rights Agent. Incorporated by reference to an exhibit to the Registrant's
Registration Statement on Form 8-A (filed on October 10, 1997), as amended by Amendment No. 1
thereto (filed on June 12, 1998).
4.4 Specimen certificate representing Rights to Purchase Series A Participating Cumulative Preferred
Stock of Aspen Technology, Inc. Incorporated by reference to Exhibit B to the Rights Agreement
referenced in Exhibit 4.3.
4.5 Specimen certificate for the Registrant's common stock, $.10 par value. Incorporated by reference to
an exhibit to the Registrant's Registration Statement on Form 8-A (filed on October 10, 1997), as
amended by Amendment No. 1 thereto (filed on June 12, 1998) and incorporated herein by reference.
4.6 Registrant's Petrolsoft Corporation Stock Option Plan.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page of this Registration Statement).
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EXHIBIT 4.6
PETROLSOFT CORPORATION
1998 STOCK OPTION PLAN
1. PURPOSE. This Stock Option Plan (the "Plan") is intended to serve as an
incentive to, and to encourage stock ownership by, certain eligible
participants rendering services to PetrolSoft Corporation, a California
corporation (the "Corporation"), and certain affiliates as set forth below,
so that they may acquire or increase their proprietary interest in the
Corporation.
2. ADMINISTRATION.
2.1 COMMITTEE. The Plan shall be administered by the Board of Directors of
the Corporation (the "Board of Directors") or a committee of three or
more members appointed by the Board of Directors (the "Committee").
The Committee shall select one of its members as Chairman and shall
appoint a Secretary, who need not be a member of the Committee. The
Committee shall hold meetings at such times and places as it may
determine and minutes of such meetings shall be recorded. Acts by a
majority of the Committee in a meeting at which a quorum is present
and acts approved in writing by a majority of the members of the
Committee shall be valid acts of the Committee. No member of the
Committee shall vote on any matter concerning his or her own
participation in the Plan.
2.2 TERM. If the Board of Directors selects a Committee, the members of
the Committee shall serve on the Committee for the period of time
determined by the Board of Directors and shall be subject to removal
by the Board of Directors at any time. The Board of Directors may
terminate the function of the Committee at any time and resume all
powers and authority previously delegated to the Committee.
2.3 AUTHORITY. The Committee shall have sole discretion and authority to
grant options under the Plan to eligible participants rendering
services to the Corporation or any "parent" or "subsidiary" of the
Corporation ("Parent or Subsidiary"), as defined in Section 424 of the
Internal Revenue Code of 1986, as amended (the "Code"), at such times,
under such terms and in such amounts as it may decide. For purposes of
this Plan and any Stock Option Agreement (as defined below), the term
"Corporation" shall include any Parent or Subsidiary, if applicable.
Subject to the express provisions of the Plan, the Committee shall
have complete authority to interpret the Plan, to prescribe, amend and
rescind the rules and regulations relating to the Plan, to determine
the details and provisions of any Stock Option Agreement, to
accelerate any options granted under the Plan and to make all other
determinations necessary or advisable for the administration of the
Plan.
2.4 TYPE OF OPTION. The Committee shall have full authority and discretion
to determine, and shall specify, whether the eligible individual will
be granted options intended to qualify as incentive options under
Section 422 of the Code ("Incentive Options") or options which are not
intended to qualify under Section 422 of the Code ("Non-Qualified
Options"); provided, however, that Incentive Options shall only be
granted to employees of the Corporation, or a Parent or Subsidiary
thereof, and shall be subject to the special limitations set forth
herein attributable to Incentive Options.
2.5 INTERPRETATION. The interpretation and construction by the Committee
of any provisions of the Plan or of any option granted under the Plan
shall be final and binding on all parties having an interest in this
Plan or any option granted hereunder. No member of the Committee shall
be liable for any action or determination made in good faith with
respect to the Plan or any option granted under the Plan.
Petrolsoft 1998 Stock Option Plan - Page 1
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3. ELIGIBILITY.
3.1 GENERAL. All directors, officers, employees of and certain persons
rendering services to the Corporation, or any Parent or Subsidiary,
relative to the Corporation's, or any Parent's or Subsidiaries',
management, operation or development shall be eligible to receive
options under the Plan. The selection of recipients of options shall
be within the sole and absolute discretion of the Committee. No person
shall be granted an option under this Plan unless such person has
executed the grant representation letter set forth on Exhibit "A," as
such Exhibit may be amended by the Committee from time to time and no
person shall be granted an Incentive Option under this Plan unless
such person is an employee of the Corporation, or a Parent or
Subsidiary, on the date of grant.
3.2 SHAREHOLDERS AGREEMENT; S CORPORATION STATUS. No optionee shall be
entitled to receive any common stock of the Corporation upon the
exercise of an option granted under this Plan unless such optionee has
first executed the Shareholders Agreement, attached hereto as Exhibit
"B," as such Exhibit may be amended from time to time by the Company
and the signatories thereto. Notwithstanding anything herein to the
contrary, no optionee shall be entitled to receive any common stock of
the Corporation upon the exercise of a option granted under this Plan
if it would in any way disqualify the Corporation as an "S"
Corporation, including (but not by way of limitation) issuance of
shares of common stock by the Company to more than seventy-five (75)
persons.
3.3 TERMINATION OF ELIGIBILITY. If an optionee ceases to be employed by
the Corporation, or its Parent or Subsidiary, is no longer an officer
or member of the Board of Directors of the Corporation or no longer
performs services for the Corporation, or its Parent or Subsidiary for
any reason (other than for "cause," as hereinafter defined, or such
optionee's death), any option granted hereunder to such optionee shall
expire three months after the occurrence giving rise to such
termination of eligibility (or 1 year in the event an optionee is
"disabled," as defined in Section 22(e)(3) of the Code) or upon the
date it expires by its terms, whichever is earlier. Any option that
has not vested in the optionee as of the date of such termination
shall immediately expire and shall be null and void. The Committee
shall, in its sole and absolute discretion, decide whether an
authorized leave of absence or absence for military or governmental
service, or absence for any other reason, shall constitute termination
of eligibility for purposes of this Section.
3.3.1 If an optionee ceases to be employed by the Corporation, or
its Parent or Subsidiary, is no longer an officer or member
of the Board of Directors of the Corporation, or no longer
performs services for the Corporation, or its Parent or
Subsidiary and such termination is as a result of "cause,"
as hereinafter defined, then all options granted hereunder
to such optionee shall expire on the date of the occurrence
giving rise to such termination of eligibility or upon the
date it expires by its terms, whichever is earlier, and such
optionee shall have no rights with respect to any
unexercised options. For purposes of this Plan, "cause"
shall mean an optionee's personal dishonesty, misconduct,
breach of fiduciary duty, incompetence, intentional failure
to perform stated obligations, willful violation of any law,
rule, regulation or final cease and desist order, or any
material breach of any provision of this Plan, any Stock
Option Agreement or any employment agreement.
3.4 DEATH OF OPTIONEE AND TRANSFER OF OPTION. In the event an optionee
shall die, an option may be exercised (subject to the condition that
no option shall be exercisable after its expiration and only to the
extent that the optionee's right to exercise such option had accrued
at the time of the optionee's death) at any time within six months
after the optionee's death by the executors or administrators of the
optionee or by any person or persons who shall have acquired the
option directly from the optionee by bequest or inheritance. Any
option that has not vested in the optionee as of the date of death or
termination of employment, whichever is earlier, shall immediately
expire and shall be null and void. No option shall be transferable by
the optionee other than by will or the laws of intestate succession.
Petrolsoft 1998 Stock Option Plan - Page 2
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3.5 LIMITATION ON OPTIONS. No person shall be granted any Incentive Option
to the extent that the aggregate fair market value of the Stock (as
defined below) to which such options are exercisable for the first
time by the optionee during any calendar year (under all plans of the
Corporation as determined under Section 422(d) of the Code) exceeds
$100,000.
4. IDENTIFICATION OF STOCK. The Stock, as defined herein, subject to the
options shall be shares of the Corporation's authorized but unissued or
acquired or reacquired common stock (the "Stock"). The aggregate number of
shares subject to outstanding options shall not exceed 600,000 shares of
Stock (subject to adjustment as provided in Section 6). If any option
granted hereunder shall expire or terminate for any reason without having
been exercised in full, the unpurchased shares subject thereto shall again
be available for purposes of this Plan.
5. TERMS AND CONDITIONS OF OPTIONS. Any option granted pursuant to the Plan
shall be evidenced by an agreement ("Stock Option Agreement") in such form
as the Committee shall from time to time determine, which agreement shall
comply with and be subject to the following terms and conditions:
5.1 NUMBER OF SHARES. Each option shall state the number of shares of
Stock to which it pertains.
5.2 OPTION EXERCISE PRICE. Each option shall state the option exercise
price, which shall be determined by the Committee; provided, however,
that (i) the exercise price of any Incentive Option shall not be less
than the fair market value of the Stock, as determined by the
Committee, on the date of grant of such option, (ii) the exercise
price of any Incentive Option granted to an employee who owns more
than 10% of the total combined voting power of all classes of the
Corporation's stock, as determined for purposes of Section 422 of the
Code, shall not be less than 110% of the fair market value of the
Stock, as determined by the Committee, on the date of grant of such
option, and (iii) the exercise price of any Non-Qualified Option shall
not be less than 90% of the fair market value of the Stock, as
determined by the Committee, on the date of grant of such option.
5.3 TERM OF OPTION. The term of an option granted hereunder shall be
determined by the Committee at the time of grant, but shall not exceed
ten years from the date of the grant. The term of any Incentive Option
granted to an employee who owns more than 10% of the total combined
voting power of all classes of the Corporation's stock as determined
for purposes of Section 422 of the Code, shall in no event exceed five
years from the date of grant. All options shall be subject to early
termination as set forth in this Plan. In no event shall any option be
exercisable after the expiration of its term.
5.4 METHOD OF EXERCISE. An option shall be exercised by written notice to
the Corporation by the optionee (or successor in the event of death)
and execution by the optionee of an exercise representation letter in
the form set forth on Exhibit "C," as such Exhibit may be amended by
the Committee from time to time. Such written notice shall state the
number of shares with respect to which the option is being exercised
and designate a time, during normal business hours of the Corporation,
for the delivery thereof ("Exercise Date"), which time shall be at
least 30 days after the giving of such notice unless an earlier date
shall have been mutually agreed upon. At the time specified in the
written notice, the Corporation shall deliver to the optionee at the
principal office of the Corporation, or such other appropriate place
as may be determined by the Committee, a certificate or certificates
for such shares. Notwithstanding the foregoing, the Corporation may
postpone delivery of any certificate or certificates after notice of
exercise for such reasonable period as may be required to comply with
any applicable listing requirements of any securities exchange. In the
event an option shall be exercisable by any person other than the
optionee, the required notice under this Section shall be accompanied
by appropriate proof of the right of such person to exercise the
option.
5.5 MEDIUM AND TIME OF PAYMENT. The option exercise price shall be payable
in full on or before the option Exercise Date in cash or certified
bank or cashier's check.
5.6 FAIR MARKET VALUE. The fair market value of a share of Stock on any
relevant date shall be determined in accordance with the following
provisions:
Petrolsoft 1998 Stock Option Plan - Page 3
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5.6.1 If the Stock is at the time neither listed nor admitted to
trading on any stock exchange nor traded in the
over-the-counter market, then the fair market value shall be
determined by the Committee after taking into account such
factors as the Committee shall deem appropriate.
5.6.2 If the Stock is not at the time listed or admitted to trading
on any stock exchange but is traded in the over-the-counter
market, the fair market value shall be the mean between the
highest bid and lowest asked prices (or, if such information
is available, the closing selling price) of one share of
Stock on the date in question in the over-the-counter
market, as such prices are reported by the National
Association of Securities Dealers through its NASDAQ system
or any successor system. If there are no reported bid and
asked prices (or closing selling price) for the Stock on the
date in question, then the mean between the highest bid
price and lowest asked price (or the closing selling price)
on the last preceding date for which such quotations exist
shall be determinative of fair market value.
5.6.3 If the Stock is at the time listed or admitted to trading on
any stock exchange, then the fair market value shall be the
closing selling price of one share of Stock on the date in
question on the stock exchange determined by the Committee
to be the primary market for the Stock, as such price is
officially quoted in the composite tape of transactions on
such exchange. If there is no reported sale of Stock on such
exchange on the date in question, then the fair market value
shall be the closing selling price on the exchange on the
last preceding date for which such quotation exists.
5.7 RIGHTS AS A SHAREHOLDER. An optionee or successor shall have no rights
as a shareholder with respect to any Stock underlying any option until
the date of the issuance to such optionee of a certificate for such
Stock. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to
the date such Stock certificate is issued, except as provided in
Section 6.
5.8 MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to the terms
and conditions of the Plan, the Committee may modify, extend or renew
outstanding options granted under the Plan, or accept the surrender of
outstanding options (to the extent not exercised) and authorize the
granting of new options in substitution therefor.
5.9 OTHER PROVISIONS. The Stock Option Agreements shall contain such other
provisions, including without limitation, restrictions or conditions
upon the exercise of options, as the Committee shall deem advisable.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
6.1 SUBDIVISION OR CONSOLIDATION. Subject to any required action by
shareholders of the Corporation, the number of shares of Stock covered
by each outstanding option, and the exercise price thereof, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Stock of the Corporation resulting from a subdivision
or consolidation of shares or the payment of a stock dividend (but
only on the Stock) or any other increase or decrease in the number of
such shares effected without receipt of consideration by the
Corporation. Any fraction of a share subject to option that would
otherwise result from an adjustment pursuant to this Section shall be
rounded downward to the next full number of shares without other
compensation or consideration to the holder of such option.
6.2 CAPITAL TRANSACTIONS. Upon a sale or exchange of all or substantially
all of the assets of the Corporation, a merger or consolidation in
which the Corporation is not the surviving corporation, a merger,
reorganization or consolidation in which the Corporation is the
surviving corporation and shareholders of the Corporation exchange
their stock for securities or property, a liquidation of the
Corporation or similar transaction ("Capital Transaction"), this Plan
and each option issued under this Plan, whether vested or unvested,
shall terminate, unless such options are assumed by a successor
corporation in a merger or consolidation, 15 days prior to such
Capital Transaction; provided, however, that unless the outstanding
options are assumed by a successor corporation in a merger or
consolidation, subject to terms approved by the Committee or the
options are repurchased pursuant to Section 8, all optionees will have
the right, until 15 days prior to such Capital Transaction, to
exercise all vested options. The Corporation shall, subject to
Petrolsoft 1998 Stock Option Plan - Page 4
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any nondisclosure provisions, attempt to provide optionees at least 15
days notice of the option termination date. The Committee may (but
shall not be obligated to) (i) accelerate the vesting of any option
(provided, however, the Committee may not accelerate such vesting if
acceleration would cause the Capital Transaction to not qualify to be
recorded as a pooling of interests for accounting purposes), or (ii)
apply the foregoing provisions, including but not limited to
termination of this Plan and any options granted pursuant to the Plan,
in the event there is a sale of 50% or more of the stock of the
Corporation in any two-year period or a transaction similar to a
Capital Transaction.
6.3 ADJUSTMENTS. To the extent that the foregoing adjustments relate to
stock or securities of the Corporation, such adjustments shall be made
by the Committee, whose determination in that respect shall be final,
binding and conclusive.
6.4 ABILITY TO ADJUST. The grant of an option pursuant to the Plan shall
not affect in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or assets.
6.5 NOTICE OF ADJUSTMENT. Whenever the Corporation shall take any action
resulting in any adjustment provided for in this Section, the
Corporation shall forthwith deliver notice of such action to each
optionee, which notice shall set forth the number of shares subject to
the option and the exercise price thereof resulting from such
adjustment.
6.6 LIMITATION ON ADJUSTMENTS. Any adjustment, assumption or substitution
of an Incentive Option shall comply with Section 425 of the Code, if
applicable.
7. NONASSIGNABILITY. Options granted under this Plan may not be sold, pledged,
assigned or transferred in any manner other than by will or by the laws of
intestate succession, and may be exercised during the lifetime of an
optionee only by such optionee. Any transfer by the optionee of any option
granted under this Plan in violation of this Section shall void such option
and any Stock Option Agreement entered into by the optionee and the
Corporation regarding such transferred option shall be void and have no
further force or effect. No option shall be pledged or hypothecated in any
way, nor shall any option be subject to execution, attachment or similar
process.
8. REPURCHASE OPTION.
8.1 The Corporation shall have the right to purchase all Stock held by an
optionee or any unexercised option held by an optionee which has been
obtained pursuant to the Plan, together with any rights, securities or
additional stock that has been received pursuant to a stock dividend,
stock split, reorganization or other similar transaction that has been
received as a result of an employee option or Stock acquired pursuant
thereto in the event (i) an optionee terminates his or her services
with the Corporation, or any Parent or Subsidiary thereof, or (ii) the
Corporation so elects, in the event of a Capital Transaction. The
price paid for any unexercised option or Stock shall be in cash at the
fair market value of such option or Stock as determined herein. The
fair market value assigned to any option shall be the fair market
value of the Stock as to which it is exercisable reduced by the
exercise price. The parties shall first negotiate in good faith to
reach an agreement as to the value of the option or Stock. Absent an
agreement within 30 days, the parties shall select one appraiser to
determine the value of the Stock. In the event the parties cannot
agree as to an appraiser, then each party shall appoint one appraiser
and the two appraisers shall jointly determine a third appraiser. In
the event the two appraisers cannot determine a third appraiser, such
third appraiser shall be appointed by a Judge of the Superior Court of
the County of San Diego, California. Such appraisers shall make their
determination of the fair market value of the Stock, and the average
of the two appraisers whose valuations are closest to each other shall
control. Any appraiser selected by any party shall be an appraiser
experienced in the area of valuing similar stock. The Corporation and
the optionee, or successor, shall each pay for one-half of the cost of
any such appraisal. If the Corporation desires to purchase the Stock
or options held by an employee as set forth in this Section, then the
Corporation shall provide written notice to such optionee at such
optionee's last known address within 90 days after the termination of
such optionee's employment, or at least 30 days prior to a Capital
Transaction.
Petrolsoft 1998 Stock Option Plan - Page 5
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8.2 The Committee may assign the Corporation's repurchase option under
this Section to any person selected by the Committee including one or
more of the shareholders of the Corporation.
8.2.1 The repurchase option set forth in this Section shall terminate
upon the consummation of an underwritten public offering of the
Corporation's Stock registered under the Securities Act of
1933, as amended (the "Act").
9. RIGHT OF FIRST REFUSAL.
9.1 Stock issued pursuant to this Plan together with any rights,
securities or additional stock that have been received pursuant to a
stock dividend, stock split, reorganization or other transaction that
has been received as a result of an employee option or stock acquired
pursuant thereto shall be subject to a right of first refusal by the
Corporation in the event the holder of such shares proposes to sell,
pledge or otherwise transfer said shares or any interest in said
shares to any person or entity. Any holder of shares of Stock (or
other securities) acquired under the Plan desiring to transfer such
Stock (or other securities) or any interest therein shall give written
notice to the Corporation describing the proposed transfer, including
the price of shares proposed to be transferred, the proposed transfer
price and terms, and the name and address of the proposed transferee.
Unless otherwise agreed by the Corporation and the holder of such
shares, repurchases by the Corporation under this Section shall be at
the lesser of (i) the proposed price and terms specified in the notice
to the Corporation; or (ii) the fair market value of the Stock as
determined in Section 8.1. The Corporation's rights under this Section
shall be freely assignable.
9.2 If the Corporation fails to exercise its right of first refusal within
30 days (as such period may be extended to determine the fair market
value of the Stock pursuant to the terms of Section 8.1) from the date
upon which the Corporation received the shareholder's written notice,
the shareholder may, within the next 90 days, conclude a transfer of
the exact number of shares covered by said notice on terms not more
favorable to the transferee than those described in the notice. Any
subsequent proposed transfer by such transferee shall again be subject
to the Corporation's right of first refusal. If the Corporation
exercises its right of first refusal, the shareholder shall endorse
and deliver to the Corporation the stock certificates representing the
shares being repurchased, and the Corporation shall promptly pay the
shareholder the total repurchase price as set forth in the terms of
the agreement. The holders of shares being repurchased pursuant to
this Section shall cease to have any rights with respect to such
shares immediately upon repurchase.
9.3 No written notice of a proposed transfer shall be required under this
Section and no right of first refusal shall exist with respect to
transfers by will or the laws of intestate succession.
9.4 The right of first refusal set forth in this Section shall terminate
upon the consummation of an underwritten public offering of the
Corporation's Stock registered under the Securities Act of 1933, as
amended (the "Act").
9.5 Any attempted transfer of any Stock or securities subject to this
right of first refusal which is not made in compliance with this
Section shall be null and void.
9.6 The Committee may assign the Corporation's repurchase option under
this Section to any person selected by the Committee including one or
more or the shareholders of the Corporation.
10. NO RIGHT OF EMPLOYMENT. Neither the grant nor exercise of any option nor
anything in this Plan shall impose upon the Corporation or any other
corporation any obligation to employ or continue to employ any optionee.
The right of the Corporation and any other corporation to terminate any
employee shall not be diminished or affected because an option has been
granted to such employee.
11. TERM OF PLAN. This Plan is effective on the date the Plan is adopted by the
Board of Directors and options may be granted pursuant to the Plan from
time to time within a period of ten (10) years from such date, or the date
of any required shareholder approval required under the Plan, if earlier.
Termination of the Plan shall not affect any option theretofore granted.
Petrolsoft 1998 Stock Option Plan - Page 6
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12. AMENDMENT OF THE PLAN. The Board of Directors of the Corporation may,
subject to any required shareholder approval, suspend, discontinue or
terminate the Plan, or revise or amend it in any respect whatsoever with
respect to any shares of Stock at that time not subject to options.
13. APPLICATION OF FUNDS. The proceeds received by the Corporation from the
sale of Stock pursuant to options may be used for general corporate
purposes.
14. RESERVATION OF SHARES. The Corporation, during the term of this Plan,
shall at all times reserve and keep available such number of shares of
Stock as shall be sufficient to satisfy the requirements of the Plan.
15. NO OBLIGATION TO EXERCISE OPTION. The granting of an option shall not
impose any obligation upon the optionee to exercise such option.
16. APPROVAL OF BOARD OF DIRECTORS AND SHAREHOLDERS. The Plan shall not take
effect until approved by the Board of Directors of the Corporation. This
Plan shall be approved by a vote of the shareholders within 12 months from
the date of approval by the Board of Directors. In the event such
shareholder vote is not obtained, all options granted hereunder, whether
vested or unvested, shall be null and void.
17. WITHHOLDING TAXES. Notwithstanding anything else to the contrary in this
Plan or any Stock Option Agreement, the exercise of any option shall be
conditioned upon payment by such optionee in cash, or other provisions
satisfactory to the Committee, of all local, state, federal or other
withholding taxes applicable, in the Committee's judgment, to the exercise
or to later disposition of shares acquired upon exercise of an option
(including any repurchase of an option or the Stock).
18. PARACHUTE PAYMENTS. Any outstanding option under the Plan may not be
accelerated to the extent any such acceleration of such option would, when
added to the present value of other payments in the nature of compensation
which becomes due and payable to the optionee would result in the payment
to such optionee of an excess parachute payment under Section 280G of the
Code. The existence of any such excess parachute payment shall be
determined in the sole and absolute discretion of the Committee.
19. SECURITIES LAWS COMPLIANCE. Notwithstanding anything contained herein, the
Corporation shall not be obligated to grant any option under this Plan or
to sell, issue or effect any transfer of any Stock unless such grant, sale,
issuance or transfer is at such time effectively (i) registered or exempt
from registration under the Act and (ii) qualified or exempt from
qualification under the California Corporate Securities Law of 1968 and any
other applicable state securities laws. As a condition to exercise of any
option, each optionee shall make such representations as may be deemed
appropriate by counsel to the Corporation for the Corporation to use any
available exemption from registration under the Act or any applicable state
securities law.
20. RESTRICTIVE LEGENDS. The certificates representing the Stock issued upon
exercise of options granted pursuant to this Plan will bear the following
legends giving notice of restrictions on transfer under the Act and this
Plan, as follows:
20.1 THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED OR
TRANSFERRED IN A TRANSACTION WHICH WAS NOT REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, IN RELIANCE UPON AN EXEMPTION
AFFORDED BY SUCH ACT. NO SALE OR TRANSFER OF THESE SHARES SHALL BE
MADE, NO ATTEMPTED SALE OR TRANSFER SHALL BE VALID, AND THE ISSUER
SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY SUCH TRANSACTION
UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY REGISTERED UNDER THE
ACT OR (B) THE ISSUER SHALL HAVE FIRST RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.
20.2 THE SALE, TRANSFER, HYPOTHECATION, OR ENCUMBRANCE OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE PROVISIONS OF A
STOCK
Petrolsoft 1998 Stock Option Plan - Page 7
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OPTION AGREEMENT DATED DECEMBER __, 1998 AND A STOCK OPTION PLAN DATED
DECEMBER __, 1998, A COPY OF WHICH MAY BE INSPECTED AT THE
CORPORATION'S PRINCIPAL OFFICE.
Any other legends required by applicable state securities laws as
determined by the Committee.
7. NOTICES. Any notice to be given under the terms of the Plan shall be
addressed to the Corporation in care of its Secretary at its principal
office, and any notice to be given to an optionee shall be addressed to
such optionee at the address maintained by the Corporation for such person
or at such other address as the optionee may specify in writing to the
Corporation.
As adopted by the Board of Directors as of December __, 1998.
PETROLSOFT CORPORATION, a California
corporation
By:
--------------------------------------
David J. Gamboa, President
Petrolsoft 1998 Stock Option Plan - Page 8
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HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
July 28, 2000
Aspen Technology, Inc.
Ten Canal Park
Cambridge, Massachusetts 02141
Re: Petrolsoft Corporation Stock Option Plan
----------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") relating to 123,885 shares of common stock, $.10
par value per share (the "Shares"), of Aspen Technology, Inc., a Delaware
corporation (the "Company"), issuable under the Company's Petrolsoft Corporation
Stock Option Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company and the
By-laws of the Company, each as amended, and originals, or copies certified to
our satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, photostatic or facsimile copies, the authenticity of the originals
of such latter documents and the legal competence of all signatories to such
documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the Delaware General Corporation Law and the federal laws of the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares covered by the Registration
Statement to be issued under the Plan, as described in the Registration
Statement, and such Shares, when issued in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended.
In giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of such Act or the rules and
regulations of the Commission.
Very truly yours,
HALE AND DORR LLP
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1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated August
4, 1999 included in the Annual Report on Form 10-K of Aspen Technology, Inc. and
subsidiaries for the fiscal year ended June 30, 1999 and to the reference to our
firm in this Registration Statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
July 27, 2000
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