Preview of our top selling Stock Purchase Agreement
Aspen Technology - Share Purchase Agreement
DATED 10 MAY 2002 ----------------------------------------------------------------------------
(1) AEA TECHNOLOGY PLC
(2) ASPEN TECHNOLOGY, INC.
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A G R E E M E N T
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For the sale and purchase
of the Hyprotech Companies
EVERSHEDS
Cloth Hall Court
Infirmary Street
Leeds LS1 2JB
Tel: 0113 243 0391
Fax: 0113 245 6188
CONTENTS
CLAUSE PAGE
1 OPERATIVE CLAUSES....................................................... 1 2 SALE AND PURCHASE...................................................... 11 3 CONDITIONS............................................................. 12 4 CONSIDERATION.......................................................... 13 5 GUARANTEES............................................................. 14 6 REPRESENTATIONS AND WARRANTIES......................................... 14 7 INDEMNITIES AND LIMITATION ON CLAIMS................................... 17 8 COVENANTS.............................................................. 23 9 COMPLETION............................................................. 28 10 PENSIONS AND EMPLOYMENT................................................ 30 11 INFORMATION AND ACCESS AND BUSINESS INTELLECTUAL PROPERTY RIGHTS....... 31 12 GENERAL................................................................ 31 13 ANNOUNCEMENTS.......................................................... 32 14 COSTS.................................................................. 32 15 NOTICES................................................................ 32 16 GOVERNING LAW AND JURISDICTION......................................... 33
SCHEDULES 1 Details of each Hyprotech Company...................................... 36 2 The Property........................................................... 37 3 Business Intellectual Property Rights.................................. 38 4 Non-Taxation Warranties................................................ 50 5 Completion Arrangements................................................ 73 6 Limitation of Liability................................................ 76 7 The Permitted Activities............................................... 80 8 Conduct of the Business Pending Completion............................. 81 9 Hyprotech Organisation Chart........................................... 83 10 Taxation Warranties for Hyprotech UK Limited and Advanced Systems
Consultants Limited.................................................. 84 11 Tax Representations and Warranties for Hyprotech Malaysia SDN BHD...... 87 12 Tax Representations and Warranties for Hyprotech Japan Limited......... 89 13 Tax Representations and Warranties for AEA Technology Canada Limited
and Hyprotech Ltd.................................................... 90 14 Tax Representations and Warranties for Hyprotech Inc., EA Systems
Inc., EA Systems (California) Inc. and EA Systems (Europe) Inc.,
save for warranty 2.5 which shall be in respect of all Hyprotech
Companies............................................................ 94 15 Tax Representations and Warranties for Hyprotech Europe SL............. 96 16 Tax Representations and Warranties for Hyprotech India Private
Limited.............................................................. 99 17 Tax Deed...............................................................101 18 UKAEA Records Agreement................................................124 19 Draft Accounts.........................................................125
THIS AGREEMENT is made on 10 May 2002
BETWEEN
(1) AEA TECHNOLOGY PLC (registered number 3095862) whose registered office is
at 329 Harwell, Didcot, Oxfordshire OX11 0QJ (the "Vendor"); and
(2) ASPEN TECHNOLOGY, INC. whose principal place of business is at Ten Canal
Park, Cambridge Massachusetts 02141 (the "Purchaser").
1. OPERATIVE CLAUSES
In this Agreement:
1.1 the following expressions have the following meanings unless inconsistent
with the context:
"AEAT CANADA" AEA Technology Canada Limited, a corporation
incorporated under the laws of Alberta, Canada
"AEAT UK" Hyprotech UK Limited, a corporation incorporated
under the laws of England
"AEAT US" AEA Technology Inc, a corporation incorporated
under the laws of Delaware
"ASSOCIATED COMPANY" any company, not being a Hyprotech Company, which
at the relevant time is:
(a) a holding company of the Vendor; or
(b) a subsidiary or subsidiary undertaking of the
Vendor; or
(c) a subsidiary or subsidiary undertaking (other
than the Vendor itself) of any such holding
company;
and the expressions "HOLDING COMPANY",
"SUBSIDIARY" and "SUBSIDIARY UNDERTAKING" having
the meanings given to them by CA 1985
"AUDITED ACCOUNTS" collectively, the audited consolidated financial
statements including the balance sheet, income
statement and statement of cash flows of the
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Hyprotech Group for the financial year ended 31
March 2002 under United States generally accepted
accounting principles
"BUSINESS DAY" any day (other than a Saturday or Sunday) on which
banks are open in London except in relation to
CLAUSE 8.2 where the reference to "London" above
is replaced by "Toronto"
"THE BUSINESS all Intellectual Property Rights owned by,
INTELLECTUAL PROPERTY licensed to or otherwise utilized by any of the
RIGHTS" Hyprotech Companies in or for the benefit of the
Hyprotech Business, subject to any right, title or
interest of UKAEA in the UKAEA CS and IP
Agreements, particulars of such rights being set
out in SCHEDULE 3
"CA 1985" the Companies Act 1985 as amended
"CANADA SHARES" all of the issued and outstanding shares of AEAT
Canada
"COMPLETION" consummation of the sale and purchase contemplated
herein in accordance with the provisions hereof
"THE COMPLETION PAYMENT" the sum of (pounds)67,500,000 payable at
Completion pursuant to CLAUSE 9 and Completion
Date shall be construed accordingly
"THE CONDITIONS" shall have the meaning given in CLAUSE 3
"CONFIDENTIAL all information of a confidential or proprietary
INFORMATION" nature (whether or not specifically labelled or
identified as "confidential"), in any form or
medium, that relates to the business, products,
services, historical or projected financial
results, financial condition or research or
development of any Hyprotech Company or its
employees, customers, suppliers, contractors,
agents or other business relations, including
without limitation all technical documentation,
design documents, error and service reports,
source code, and diagnostic
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information associated with the Software
"THE CONSIDERATION" the aggregate consideration payable for the Shares
as stated in CLAUSE 4
"CONTRACTS" all agreements, contracts, instruments,
guarantees, obligations or undertakings to which
any of the Hyprotech Companies is a party or by
which or to which any of their properties are
bound or subject and which have an aggregate value
or cost in excess of US$200,000
"CONTRACTS REPORT" the report sent to the Purchaser on 30
April 2002 contained in the Data Room
"DATA ROOM" the documentation made available to the
Purchaser as part of the Purchaser's due diligence
exercise, the index of which is attached to the
Disclosure Letter and initialled by the parties
for the purposes of identification only
"DISCLOSURE LETTER" the letter having the same date as this
Agreement from the Vendor to the Purchaser
qualifying the Warranties
"DRAFT ACCOUNTS the unaudited draft revenue and profit
statements for the Hyprotech Group for the
financial year ended 31 March 2002 and balance
sheet as at 31 March 2002 under United States
generally accepted accounting principles appended
as SCHEDULE 19
"EA SYSTEMS" EA Systems Inc., a corporation
incorporated under the laws of California
"EC TREATY" The Treaty of Rome 1957, as amended
"THE EMPLOYEES" the employees employed in each Hyprotech Company
as listed at Reference 5.4.1.3 in the Data Room
"ENCUMBRANCE" any mortgage, hypothec, charge, pledge, lien,
assignment by way of security, option,
restriction, claim, right of pre-emption, right of
first refusal,
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third party right or interest, other encumbrance
or security interest of any kind, or other
preferential arrangement having similar effect
"EUROPEAN DIRECTIVE" any directive issued by or on behalf of the
European Commission
"THE FIELD" the development, support, marketing and sale of:
1. Software for:
(a) conceptual design, dynamic and steady state
process simulation and optimization as
exemplified by, amongst other things, the
HYSYS suite of programs;
(b) the fitting, estimation and storage of
physical properties and reaction kinetics of
products of the process industries;
(c) heat exchanger, air coolers and fired
heaters, process and their mechanical design,
rating, simulation optimisation, and
performance monitoring and real time
optimisation;
(d) flare and pressure relief systems design,
operation and safety studies;
(e) steady-state and dynamic, single and
multi-phase hydraulics, heat exchange,
thermal insulation and fouling for the design
and operation of well, pipes, pipelines,
plant piping, pipe networks and process
equipment;
(f) the creation of advanced process control
applications, including real time process
optimisation, data-reconciliation and
performance monitoring applications;
(g) the selection, sizing, capital costing of
process equipment and related bulks,
operational costing and optimisation for
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process plants and associated plant site
installations and operating costs such as
utility systems, control rooms, storage tanks
and areas;
(h) solid processing and handling,
crystallization and drying;
(i) the component based delivery of fundamental
science for thermodynamics, hydraulics, heat
transfer, reaction chemistry, math's solvers,
separation processes, solids handling,
bio-processing and separation and open
graphical interfaces;
(j) process design work management, engineering
data bases, automated Process Flow Diagram
(PFD) construction, automated Process &
Instrumentation Diagram (P&ID) construction,
automated selection and sizing, automated
transfer to CADCENTRE and Intergraph
products, all as exemplified by, amongst
other things, the Axsys suite of programs;
(k) fundamental discovery of chemicals and
pharmaceutical products including route
selection and design as well as process
design and optimisation down to the
documentation of recipes and usage of the
documentation in operating plans. Software
for the encapsulation, management and
dissemination of best practice, data and
knowledge for the batch based process
industries including pharmaceutical, fine
chemical, fragrances, catalyst manufacture;
(l) software encapsulating process engineering
expertise specific to ammonia, amines, crude
oil assays, sulfur
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plants and urea processes
(m) Risk Based Inspection (RBI) planning system
need to calculate likelihood of failure and
consequences of failure and thereby
determining the overall risk for Chemical and
Petrochemical facilities
2. specialised solvers for the various software,
including for example, equation oriented
solvers
3. steady state and dynamic process performance
monitoring, data reconciliation, and real
time process optimisation software and
application development and delivery for
process plants utilising first principle and
empirical engineering models
4. first principle plant and control system
models for training, start-up and shut-down
assessments and process improvement systems
with associated software and services for
process plants
5. end user telephone, web based, consulting and
training services to support the software
identified above
6. services to integrate, configure, deploy
update and operate the software identified
above
all the above services and products to be sold to
the upstream and/or downstream oil and gas, oil
refining, pharmaceutical, chemical, fine chemical,
specialty chemical, power, metals, polymers,
utilities, pulp and paper, consumer goods and
petrochemical markets including without
limitation, owner operators, contractors, process
licensors, engineering contractors and equipment
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procurement entities
"THE GEMINI PROPERTY" the premises described as plot 10.2, Harwell
Business Park, Harwell, Oxfordshire in SCHEDULE 2
"THE HYPROTECH BUSINESS" the operations of the Hyprotech Companies
"HYPROTECH COMPANY" each of the Vendor companies engaged in Field as
listed in SCHEDULE 1
"HYPROTECH GROUP" together the Hyprotech Companies
"HYPROTECH INC" Hyprotech Inc., a corporation incorporated under
the laws of Delaware
"HYPROTECH INTELLECTUAL all Business Intellectual Property Rights that are
PROPERTY RIGHTS" not Licensed Intellectual Property Rights
"HYPROTECH LIMITED" Hyprotech Limited, a corporation incorporated
under the laws of Alberta
"INDIA SHARES" all of the issued and outstanding shares in the
capital of Hyprotech India Private Ltd, a
corporation incorporated under the laws of India
"INTELLECTUAL PROPERTY all of the following throughout the world:
RIGHTS"
(a) software and software tools (including where
relevant source code, object code, data and
related documentation);
(b) technology, inventions, discoveries, designs
and all improvements thereto (whether
patentable or not) and all patents, patent
applications and patent disclosures and
utility models, together with all
re-issuances, continuations,
continuations-in-part, revisions, extensions
and re-examinations thereof;
(c) trademarks, service marks, famous names,
trade names, logos, Internet domain names and
corporate names and
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applications, registrations and renewals
related thereto (or portions thereof)
including moral rights;
(d) copyrightable works, copyrights, and
applications, registrations, and renewals
related thereto;
(e) Know-how; and
(f) other intellectual property rights of a
proprietary nature including, but not limited
to derivative rights, industrial property,
data, databases, models, integrated circuit
topographies and registered and unregistered
mask works
"INTRA GROUP DEBT" the aggregate amount including trading and other
inter-company balances owing at Completion by the
Hyprotech Companies to the Vendor on inter-company
loan and trading accounts, net of inter-company
receivables
"JAPAN SHARES" all of the issued and outstanding shares in the
capital of Hyprotech Japan Limited, a corporation
incorporated under the laws of Japan
"KNOW-HOW" all trade secrets, know-how, improvements,
designs, techniques and processes
"LICENSED INTELLECTUAL those Business Intellectual Property Rights
PROPERTY RIGHTS" licensed to a Hyprotech Company by any Person who
is not a Hyprotech Company or the Vendor,
including but not limited to those set out in PART
2A and 2C of SCHEDULE 3
"MASTER AGREEMENT" The master agreement dated 31 March 1999 between
KBC and the Vendor as amended to date
"THE PENSION SCHEME" the AEA Technology Pension Scheme
"THE PERMITTED those activities described in SCHEDULE 7
ACTIVITIES"
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"THE PROPERTY" the premises described in SCHEDULE 2
"PURCHASER'S SOLICITORS" Hale and Dorr LLP of 60 State Street, Boston,
Massachusetts 02109
"RELEVANT CLAIM" any claim for breach of any of the Warranties
"REQUISITE CONSENTS" any consent required in order to grant the
Underlease
"SENIOR EMPLOYEE" any employee of a Hyprotech Company who receives
an annual gross salary in excess of (pounds)45,000
or the equivalent in local currency
"SHARES" the Canada Shares, the India Shares, the Japan
Shares, the US Shares and the UK Shares
"SOFTWARE" any form of computer program, including
applications software, operating systems,
databases, software libraries, web pages and other
code, whether in source, object or machine code
form
"SOFTWARE REPORT" the Vendor's report dated 23 April 2002 detailing
all problems known to the Vendor relating to the
Hyprotech Intellectual Property Rights and
Licensed Intellectual Property Rights
"THE SUPPLEMENTARY the letter to be given as at the date of
DISCLOSURE LETTER" Completion from the Vendor to the Purchaser
qualifying the Warranties to be repeated
immediately before Completion
"TAX" OR "TAXATION" has the same meaning as in the Tax Deed
"TAX DEED" the tax deed to be entered into at Completion
between the Vendor and the Purchaser in the form
attached to SCHEDULE 17
"TAX WARRANTIES" has the same meaning as in the Tax Deed
"TAXES ACT" the Income and Corporation Taxes Act
"UKAEA" United Kingdom Atomic Energy Authority
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"THE UKAEA CS AND IP the computer software agreement and the
AGREEMENTS" intellectual property agreement each dated 31
March 1996 and made between UKAEA and the Vendor
"THE UKAEA RECORDS the agreement to be entered at Completion between
AGREEMENT" UKAEA, the Vendor and the Purchaser in the form
attached to SCHEDULE 18
"UK SHARES" all the issued and outstanding shares in the
capital of AEAT UK
"UKLA" United Kingdom Listing Authority
"UNDERLEASE" an underlease in a form to be agreed between the
parties hereto
"US SHARES" all of the issued and outstanding shares in the
capital of Hyprotech Inc and of EA Systems Inc,
both of which are corporations incorporated under
the laws of Delaware
"VATA" the Value Added Tax Act 1994
"VENDOR'S SOLICITORS" Eversheds of Cloth Hall Court, Infirmary Street,
Leeds LS1 2JB
"WARRANTIES" the representations and warranties set out or
referred to in CLAUSE 6, SCHEDULE 4, SCHEDULES
10-16 (inclusive).
1.2 references to any statute or statutory provision include, unless the
context otherwise requires, a reference to the statute or statutory
provision as modified or re-enacted and in force from time to time prior to
Completion and any subordinate legislation made under the relevant statute
or statutory provision in force prior to Completion;
1.3 references to persons will include bodies corporate, unincorporated
associations and partnerships;
1.4 references to a document being "in the agreed terms" are to that document
in the form agreed and for the purposes of identification initialled by or
on behalf of the Vendor and the Purchaser;
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1.5 references to clauses and Schedules are to clauses of and Schedules to this
Agreement, and references to paragraphs are to paragraphs in the Schedule
in which such references appear;
1.6 the Schedules form part of this Agreement and will have the same force and
effect as if expressly set out in the body of this Agreement;
1.7 the headings in this Agreement will not affect its interpretation;
1.8 any phrase introduced by the term "include", "including", "in particular"
or any similar expression will be construed as illustrative and will not
limit the sense of the words preceding that term; and
1.9 reference to any English legal term or statute or statutory provision is
deemed to include that term or statute or statutory provision which most
nearly approximates it in another jurisdiction in which a Hyprotech Company
is incorporated or has a branch or otherwise operates in.
2. SALE AND PURCHASE
2.1 The Vendor will sell or procure the sale with full title guarantee, and the
Purchaser, relying upon the Warranties, representations and undertakings,
will buy, the Shares and will underlet the Gemini Property. The Shares will
be sold free of any Encumbrance and with all rights attached or accruing to
them at or after the date of this Agreement and the Gemini Property will be
underlet in accordance with the provisions of PART 2 of SCHEDULE 2.
2.2 The Purchaser may by notice in writing prior to Completion request that the
Canadian Shares, the Indian Shares, the Japan Shares, the US Shares or the
UK Shares (or any of them) be transferred to and acquired by one or more
transferee companies on Completion as the Purchaser may reasonably request
("a Transferee Company") in satisfaction of the Vendor's obligation to
transfer such Shares to the Purchaser pursuant to this Agreement. The
Vendor may require such Transferor Company to agree to be bound to the same
terms of this Agreement as the Purchaser in relation to the Shares
transferred to such Transferor Company.
2.3 The Purchaser may by notice in writing to the Vendor require the Vendor to
undertake or to procure that a Hyprotech company undertakes any transaction
or action prior to Completion which the Purchaser may reasonably request.
The Vendor shall undertake or procure that the relevant Hyprotech company
shall undertake such action or transaction provided that:
2.3.1 the Vendor shall not procure the relevant Hyprotech company takes
any action which it reasonably considers prejudicial to the Vendor
or any
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company within the same group of companies as the Vendor or to which
it objects on any other reasonable ground; and
2.3.2 notwithstanding any other provision of the Agreement or the Tax Deed
the Vendor shall not be liable under this Agreement or the Tax Deed
whether for breach of Warranty or otherwise in respect of such
transaction or action.
3. CONDITIONS
3.1 This Agreement is conditional on the following:
3.1.1 the shareholders of the Vendor in general meeting passing a
resolution in the agreed terms to approve the terms of this
Agreement;
3.1.2 the Purchaser shall have received the Audited Accounts;
3.1.3 the total revenue figure in the Audited Accounts shall be not less
than 95% (excluding any adjustments made in relation to the revenues
associated with the contract with Conoco ref: (HYPUK447/02)) of the
equivalent figure in the Draft Accounts.
3.2 The Parties will use their reasonable endeavours to procure that the
Conditions are fulfilled on or before 12.00pm on 14 June, 2002. The
obligation of the Vendor in relation to CLAUSE 3.1.1 will be satisfied by
it sending a circular to its shareholders containing a recommendation to
vote in favour of the appropriate resolution.
3.3 If the Conditions have not been satisfied by 12.00pm on 14 June 2002, or
there has been a material breach of the Warranties in accordance with
CLAUSE 6.6 the Purchaser or the Vendor (as appropriate) may on that date or
at the date of such material breach by notice to the Vendor or the
Purchaser (as appropriate) terminate this Agreement. The Purchaser shall
not be entitled to terminate or rescind this Agreement in any circumstances
other than for a material breach in accordance with CLAUSE 6.6 or as a
result of the Conditions not having been satisfied by 12.00pm on 14 June
2002 and the provisions of this clause shall not affect the Purchaser's
remedies for breach of Warranties in accordance with the remaining terms of
this Agreement.
3.4 If the Purchaser or the Vendor terminates this Agreement in accordance with
this clause, none of the parties will have any rights against any other
party under this Agreement (other than in respect of any accrued rights).
3.5 Between the time of execution of this Agreement and Completion, the Vendor
shall comply with the provisions of Schedule 8. Notwithstanding any
provisions in Schedule 8 the Purchaser hereby agrees that:
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3.5.1 AEAT Canada transfer the entire issued share capital of AEA
Engineering Software Limited ("the AEAS Shares") to the Vendor (or
such other company as the Vendor may direct); and
3.5.2 AEAT Canada uses the proceeds of such sale to return capital to the
Vendor providing however that AEAT Canada shall retain out of such
proceeds an amount of cash equal to:
3.5.2.1 the product obtained by multiplying the gain arising on the
disposition of the AEAT Shares by the combined Canadian
Federal and Provincial statutory tax rate applicable to
AEAT Canada as reduced by;
3.5.2.2 the amount of tax that may be saved by the utilisation of
any Covenantor's Reliefs (as defined in the Tax Deed).
Provided always that the Purchaser is satisfied the transfer referred to in
clause 3.5.1 takes place at fair market value (as agreed by the Purchaser
and the Vendor, acting reasonably, and the Vendor shall give the Purchaser
reasonable access to its books and records for the purpose of agreeing to
fair market value. To the extent that the parties are unable to agree fair
market value at least 7 days prior to Completion, the parties shall appoint
an independent professional to determine the fair market value which
determination shall be final and binding on the parties) and that any legal
requirements in Canada as to maintenance of capital of AEAT Canada are
satisfied.
3.6 Between the time of execution of this Agreement and Completion, the Vendor
shall comply with the provisions set forth in SCHEDULE 8.
3.7 The parties shall observe and perform the requirements set out in SCHEDULE
2 (Property Provisions).
3.8 In the event that this Agreement is terminated in accordance with CLAUSE
3.3 or otherwise, the provisions that the Vendor and the Purchaser have
agreed to be bound by as set out in CLAUSE 7 of this Agreement shall
continue notwithstanding any such termination.
4. CONSIDERATION
The consideration for the sale of the Shares will be (pound)67,500,000 and
will be allocated as follows:
4.1 the UK Shares; (pound)13,000,000
4.2 the Canada Shares; (pound)47,728,830
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4.3 the US Shares; (pound)1,721,170
4.4 the India Shares; (pound)49,999
4.5 the Japan Shares; (pound)5,000,000
4.6 the Property; (pound)1
5. GUARANTEES
5.1 The Vendor will procure that on Completion each Hyprotech Company is
released from any guarantee, indemnity, counter-indemnity, letter of
comfort or other obligation given by such Hyprotech Company to any third
party in respect of a liability of any person other than a Hyprotech
Company.
5.2 Save in respect of KBC, the Purchaser undertakes to the Vendor that as soon
as reasonably practicable following Completion the Purchaser will use all
reasonable endeavours to obtain the release of the Vendor or any Associated
Company from any guarantee, indemnity, counte...
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