EXHIBIT 4.1
CONVERSION AGREEMENT
DATED AS OF FEBRUARY 13, 2004
AMONG
ASPECT COMMUNICATIONS CORPORATION,
VISTA EQUITY FUND II, L.P.
AND
VISTA EQUITY PARTNERS, LLC
TABLE OF CONTENTS
Page
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ARTICLE I Definitions..................................................2
1.1 General Terms..............................................2
1.2 Interpretation.............................................6
1.3 Knowledge..................................................6
ARTICLE II Conversion, Closing and Delivery...........................7
2.1 Conversion.................................................7
2.2 Closing....................................................7
2.3 Delivery...................................................7
ARTICLE III Representations and Warranties of the Company.............8
3.1 Existence; Qualification; Subsidiaries.....................8
3.2 Authorization, Noncontravention and Enforceability;
Issuance of Shares.........................................8
3.3 Capitalization.............................................9
3.4 Private Sale; No Shareholder Approval......................9
3.5 Litigation................................................10
3.6 Third-Party Approvals.....................................10
3.7 Registration Statement....................................10
3.8 No Misstatements..........................................11
3.9 Rights Agreement..........................................11
ARTICLE IV Representations and Warranties of Vista Fund and Vista
Partners .................................................11
4.1 Authorization and Enforceability..........................11
4.2 Government Approvals......................................12
4.3 Investment Intent.........................................12
4.4 Status of the Securities..................................12
4.5 Sophistication and Financial Condition....................12
4.6 Transfer of Series B Shares and Conversion Shares.........12
ARTICLE V Covenants..................................................13
5.1 Board Composition and Nomination..........................13
5.2 Veto Rights...............................................14
5.3 Registration Statement....................................16
5.4 Regulatory Matters........................................16
5.5 Amendment of Rights Agreement.............................16
5.6 Further Assurances........................................16
ARTICLE VI Conditions to Closing.....................................16
ii
6.2 Conditions to Obligations of Vista Fund and Vista
Partners..................................................16
6.3 Conditions to Obligations of the Company..................18
ARTICLE VII Termination..............................................18
7.1 Termination...............................................18
7.2 Effect of Termination.....................................19
ARTICLE VIII General Provisions......................................19
8.1 Public Announcements......................................19
8.2 Successors and Assigns....................................19
8.3 Entire Agreement, Absence of Presumption..................20
8.4 Notices...................................................20
8.5 Closing Fee; Vista's Fees and Expenses....................21
8.6 Amendment and Waiver......................................22
8.7 Counterparts..............................................22
8.8 Headings..................................................22
8.9 Specific Performance......................................22
8.10 Remedies Cumulative.......................................22
8.11 GOVERNING LAW.............................................22
8.12 No Third Party Beneficiaries..............................22
8.13 Severability..............................................23
8.14 Time of the Essence; Computation of Time..................23
Exhibit A Form of Registration Statement............................A-1
Exhibit B Form of Amendment to Preferred Shares Rights Agreement....B-1
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CONVERSION AGREEMENT, dated as of February 13, 2004 (the
"Agreement"), among Aspect Communications Corporation, a California corporation
(the "Company"), Vista Equity Fund II, L.P., a Cayman Islands exempted limited
partnership ("Vista Fund"), and Vista Equity Partners, LLC, a Delaware limited
liability company ("Vista Partners", and collectively with the Company and Vista
Fund, the "Parties").
WITNESSETH:
WHEREAS, Vista Fund is the record holder of 50,000 shares (the
"Series B Shares") of Series B Convertible Preferred Stock, par value $0.01 per
share, of the Company (the "Series B Preferred Stock"); and
WHEREAS, the Certificate of Determination of Rights, Preferences and
Privileges of Series B Convertible Preferred Stock of the Company, dated as of
January 21, 2003 (the "Certificate"), grants Vista Fund certain rights with
respect to conversion, voting rights, veto rights and preemptive rights; and
WHEREAS, the Company has requested that Vista Fund convert all of
its Series B Shares into an aggregate of 22,222,222 shares (the "Conversion
Shares") of Common Stock, par value $0.01 per share, of the Company (the "Common
Stock") pursuant to the Certificate; and
WHEREAS, Vista Fund is willing to effect such conversion if and only
if Vista Fund is granted rights and privileges substantially similar to those
granted to it in the Certificate, as more fully provided in this Agreement; and
WHEREAS, by unanimous vote of the members of the Company's Board of
Directors (the "Board") (other than directors who are Affiliates of Vista Fund
and Vista Partners), the Board has authorized the Company's grant of such rights
and privileges to Vista Fund and the execution, delivery and performance by the
Company of this Agreement; and
WHEREAS, immediately following the execution and delivery of this
Agreement, the Company intends to file a registration statement on Form S-3 in
substantially the form attached as Exhibit A (the "Registration Statement); and
WHEREAS, in connection with the offering contemplated by the
Registration Statement, the Company, Vista Fund, certain other selling
shareholders and representatives of the several underwriters in such offering
intend to enter into an Underwriting Agreement (the "Underwriting Agreement") on
mutually agreeable terms.
NOW, THEREFORE, in consideration of the premises, and the
representations, warranties, covenants and agreements contained in this
Agreement, the Parties agree as follows:
ARTICLE I
Definitions
1.1 General Terms. For purposes of this Agreement, the following
terms have the meanings indicated below:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person as of the time of determination.
"Agreement" has the meaning specified in the Recitals.
"Annual Budget" has the meaning specified in Section 5.2.
A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates
beneficially owns, directly or indirectly, for purposes of Section 13(d) of the
Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or
regulation);
(ii) which such Person or any of such Person's Affiliates has (A)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a Person shall not be
deemed to be the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, such security if
the agreement, arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations of the Exchange Act and (2) is not also
then reportable on Schedule 3D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate thereof) with which such Person or any of such
Person's Affiliates has any agreement, arrangement or understanding (whether or
not in writing) (other than customary agreements with and between underwriters
and selling group
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members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting or disposing of any securities of the
Company.
"Board" has the meaning specified in the Recitals.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which commercial banks in the County of Santa Clara, California are
authorized or obligated by law or executive order to close.
"Certificate" has the meaning specified in the Recitals.
"Change of Control" means: (i) the sale, lease, transfer, conveyance
or other disposition, in one or a series of related transactions, of all or
substantially all the assets of the Company and its subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d) (3) of the Exchange
Act), or (ii) the consummation of any transaction (including any merger or
consolidation) the result of which is that any "person" (as defined above),
becomes the beneficial owner (as determined in accordance with Rules 13d-3 and
13d-5 under the Exchange Act except that a person will be deemed to have
beneficial ownership of all shares that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the Voting Securities of the
Company.
"Closing" has the meaning specified in Section 2.2.
"Closing Date" has the meaning specified in Section 2.2.
"Closing Fee" has the meaning specified in Section 8.5.
"Common Stock" has the meaning specified in the Recitals.
"Common Stock Deemed Outstanding" means the number of shares of
Common Stock, determined on a fully diluted as if converted basis giving effect
to all outstanding Common Stock Equivalents.
"Common Stock Equivalent" means any security convertible into,
exercisable or exchangeable for, or that otherwise gives the holder the right to
obtain shares of Common Stock or securities convertible into, exercisable or
exchangeable for, or that otherwise gives the holder the right to obtain shares
of Common Stock.
"Company" has the meaning specified in the Recitals.
"Conversion Shares" has the meaning specified in the Recitals.
"Creditors Rights Laws" has the meaning set forth in Section 3.2(a).
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"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Governmental Agency" means any federal, state, local, foreign or
other governmental agency, instrumentality, commission, authority, board or body
and NASDAQ.
"Immediate Family" means an individual's spouse, descendants
(whether natural or adopted), siblings, parents or grandparents.
"Indebtedness" means at a particular time, without duplication, (i)
any indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the ordinary course of business which
are not more than six months past due), (iv) any commitment by which a Person
assures a creditor against loss (including contingent reimbursement obligations
with respect to letters of credit), (v) any indebtedness guaranteed in any
manner by a Person (including guarantees in the form of an agreement to
repurchase or reimburse), (vi) any obligations under capitalized leases with
respect to which a Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or with respect to which obligations a Person assures a
creditor against loss, (vii) any indebtedness secured by a lien on a Person's
assets and (viii) any unsatisfied obligation for "withdrawal liability" to a
"multiemployer plan" as such terms are defined under the Employee Retirement
Income Security Act of 1974, as amended.
"Liens" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Material Adverse Effect" means, with respect to the Company, any
occurrence, event or effect that either individually or in the aggregate with
all other such changes or effects is, or could reasonably be expected to be
(whether or not such change, event or effect has, at the time in question,
manifested itself in the Company's historical financial statements), materially
adverse to the business, operations, results of operations, properties,
condition, financial or otherwise, assets or liabilities of the Company and its
Subsidiaries taken as a whole on a consolidated basis.
"Options" means any rights, warrants or options to subscribe for or
purchase Common Stock or any stock or securities directly or indirectly
convertible into or exchangeable for Common Stock.
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"Ownership Ratio" means, at the time of determination, the
percentage obtained by dividing the number of shares of Common Stock owned by
Vista Fund, Vista Partners and their Affiliates at such time on a fully diluted
as if converted basis, by the aggregate number of shares of Common Stock Deemed
Outstanding at such time.
"Parties" has the meaning specified in the Recitals.
"Person" means any individual, firm, partnership, association, group
(as such term is used in Rule 13d-5 under the Exchange Act, as such Rule is in
effect on the date of this Agreement), corporation or other entity.
"Prospectus" has the meaning specified in Section 3.7.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of January 21, 2003, by and between the Company and Vista
Fund.
"Rights Agreement" means the Preferred Shares Rights Agreement,
dated as of May 11, 1999, as amended on December 12, 2001 and November 14, 2002,
by and between the Company and Equiserv Trust Company, N.A. as Rights Agent.
"Registration Statement" has the meaning specified in the Recitals.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Series B Preferred Stock" has the meaning specified in the
Recitals.
"Series B Shares" has the meaning specified in the Recitals.
"Stock Option Plan" means any capital stock plan adopted by the
Company for the benefit of the Company's officers, employees, consultants,
agents or directors which has been or is approved by the Board or a committee
thereof that has the authority to administer any such plan, including, without
limitation, the Company's 1989 Director's Stock Option Plan, the Company's 1990
Employee Stock Purchase Plan, the Company's 1995 Ten-Year Plan, the Company's
Annual Retainer Compensation Plan for the Board of Directors, the Company's
Amended and Restated 1998 Directors' Stock Option Plan, the Company's Amended
and Restated 1996 Employee Stock Option Plan, the Company's 1999 Equity
Incentive Plan, the Voicetek Corporation 1992 Equity Incentive Plan, the
Voicetek Corporation 1996 Stock Option Plan, the PakNetX Corporation 1997 Stock
Plan and the Newborn Stock Option Plan.
"Subsidiary" means any corporation, limited liability company,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any
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contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by the Company or
(ii) if a partnership, limited liability company, association or other business
entity, a majority of the partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by the
Company. For purposes of this definition, the Company shall be deemed to have a
majority ownership interest in a partnership, limited liability company,
association or other business entity if the Company, directly or indirectly, is
allocated a majority of partnership, limited liability company, association or
other business entity gains or losses, or is or controls the managing director
or general partner of such partnership, limited liability company, association
or other business entity.
"Underwriting Agreement" has the meaning specified in the Recitals.
"VEP Assignee" has the meaning specified in Section 8.2.
"VEP Shares" has the meaning specified in Section 2.3.
"Vista Appointee" has the meaning specified in Section 5.1(a).
"Vista Fund" has the meaning specified in the Recitals.
"Vista Partners" has the meaning specified in the Recitals.
"Voting Securities" means securities of the Company ordinarily
having the power to vote for the election of directors of the Company; provided
that when the term "Voting Securities" is used with respect to any other Person
it means the capital stock or other equity interests of any class or kind
ordinarily having the power to vote for the election of directors or other
members of the governing body of such Person.
1.2 Interpretation. The words "hereof," "herein," and "hereunder"
and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Terms defined in the singular shall have correlative meanings when used in the
plural, and vice versa. The table of contents and headings herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
Where a reference in this Agreement is made to an Article or a Section, such
reference shall be to the respective Article or Section of this Agreement unless
otherwise indicated. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." Whenever the context may require, any pronoun shall be
deemed to include the corresponding masculine, feminine and neuter forms.
1.3 Knowledge. References herein to the "Company's knowledge" or the
"knowledge of the Company" refer to the actual knowledge of the Company's
executive officers after reasonable investigation.
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ARTICLE II
Conversion, Closing and Delivery
2.1 Conversion. Vista Fund hereby irrevocably elects to convert the
Series B Shares, at the Closing, in accordance with the Certificate and on the
terms and subject to the satisfaction or waiver of the conditions set forth in
Sections 6.1, 6.2 and 6.3, into 22,222,222 Conversion Shares and the Company
hereby irrevocably agrees to issue, on such terms and subject to the
satisfaction or waiver of such conditions, the Conversion Shares to Vista Fund,
deliver such Conversion Shares in accordance with Section 2.3 and effect the
securities issuances and deliveries provided for in this Agreement.
2.2 Closing. Subject to the satisfaction or waiver of the conditions
precedent set forth in Article VI, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the same time
and place as the closing contemplated by the Underwriting Agreement, or at such
other time or place as the Parties may mutually agree (the date and time at
which such consummation occurs, the "Closing Date").
2.3 Delivery. At the Closing, subject to the terms and conditions of
this Agreement, the Company will (i) deliver to the representatives of the
several underwriters specified in the Underwriting Agreement, on behalf of Vista
Fund and subject to the terms and conditions of the Underwriting Agreement,
certificates representing such number of duly authorized, validly issued, fully
paid and nonassessable Conversion Shares as Vista Fund shall be obligated to
sell to the underwriters at the first closing contemplated by the Underwriting
Agreement, issued and countersigned in such denominations as the underwriters
shall designate in accordance with the Underwriting Agreement, (ii) deliver to
Vista Fund certificates duly issued and countersigned in such denominations as
Vista Fund shall designate no later than two Business Days prior to the Closing
Date and in the name of Vista Equity Fund II, L.P., representing an aggregate
number of duly authorized, validly issued, fully paid and nonassessable
Conversion Shares equal to the difference of (A) 22,222,222, minus (B) the
number of Conversion Shares delivered pursuant to clause (i) of this Section
2.3, (iii) make a wire transfer of immediately available funds in an amount
equal to the value of a fraction of a Conversion Share to which Vista Fund is
entitled upon conversion of the Series B Shares, if any, to an account
designated by Vista Fund in writing no later than two Business Days prior to the
Closing Date, calculated in accordance with the Certificate, (iv) duly issue to
Vista Partners or such members, employees and/or Affiliates thereof as Vista
Partners shall designate pursuant to Section 8.2, an aggregate of 200,000 duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock
(collectively, the "VEP Shares") and deliver certificates representing the VEP
Shares, in such denominations as Vista Partners or such members, employees
and/or Affiliates shall request, and (v) make a wire transfer of immediately
available funds in an amount equal to the Closing Fee to an account designated
by Vista Partners in writing no later than two Business Days prior
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to the Closing Date. At the Closing, subject to the terms and conditions of this
Agreement, Vista Fund will deliver to the Company certificates representing all
of the Series B Shares. The Company hereby waives any provision of the
Certificate that would require Vista Fund to provide the notice of conversion
specified therein. With reference to Sections 6 and 7 of the Certificate, Vista
Fund hereby waives its right to veto the offering of securities contemplated by
the Underwriting Agreement and waives any and all preemptive rights that it may
have with respect to the issuance and sale of the securities to be issued,
offered or sold in connection with this Agreement or such offering.
ARTICLE III
Representations and Warranties of the Company
The Company hereby represents and warrants to Vista Fund and Vista
Partners that, except as set forth on the Schedule of Exceptions provided to
Vista Fund and Vista Partners (which exceptions shall be deemed to be
representations and warranties as if made hereunder):
3.1 Existence; Qualification; Subsidiaries. The Company is duly
organized, validly existing and in good standing under the California General
Corporation Law and has full corporate power and authority to conduct its
business and own and operate its properties as now conducted, owned and
operated. The copies of the Articles of Incorporation and Bylaws of the Company
and all amendments thereto filed by the Company with the SEC prior to the date
of this Agreement are in full force and effect.
3.2 Authorization, Noncontravention and Enforceability; Issuance of
Shares.
(a) The Company has full power and authority and has taken all
required corporate and other action necessary to permit it to execute and
deliver this Agreement and to carry out the terms hereof and to issue and
deliver the Conversion Shares and the VEP Shares, and none of such actions will
(i) violate or conflict with any provision of the Articles of Incorporation of
the Company, the Bylaws of the Company or of any applicable law, regulation,
order, judgment or decree or rule of the Nasdaq National Market where the Common
Stock is listed, (ii) except as set forth on Schedule 3.2, result in the
material breach of or constitute a material default (or an event which, with
notice or lapse of time or both would constitute a default) under any agreement,
instrument or understanding to which the Company is a party or by which it is
bound, or (iii) result in or constitute a "change in control" under any
agreement, instrument or understanding to which the Company is a party or by
which it is bound. This Agreement has been duly authorized, executed and
delivered by the Company and
8
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent limited
by applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application related to the enforcement of creditor's rights
generally (collectively "Creditors Rights Laws").
(b) The Series B Shares have been duly authorized, validly issued,
are fully paid and are nonassessable. The Conversion Shares have been duly
authorized and reserved for issuance, and when issued and delivered upon
conversion of the Series B Shares, will be validly issued, fully paid and
nonassessable, and will be free of any and all Liens (other than any
restrictions on transfer under state and/or federal securities laws). The VEP
Shares have been duly authorized and reserved for issuance, and when issued and
delivered in accordance with this Agreement, will be validly issued, fully paid
and nonassessable, and will be free of any and all Liens (other than any
restrictions on transfer under state and/or federal securities laws). Neither
the issuance and delivery of the Conversion Shares or the VEP Shares is subject
to any preemptive right of any shareholder of the Company or to any right of
first refusal or other similar right in favor of any Person which has not been
waived.
3.3 Capitalization. The Registration Statement, collectively with
the other filings made by the Company with the SEC prior to the date of this
Agreement, contain a true and complete description of the equity capitalization
of the Company. Immediately following the Closing, all of the outstanding
capital stock of the Company will be validly issued, fully paid and
nonassessable and will have been issued in compliance with all applicable
securities laws (including the provisions of the Securities Act and the rules
and regulations promulgated thereunder). Except pursuant to a Stock Option Plan
or as described in the filings referred to in the first sentence of this Section
3.3, neither the Company nor any of its Subsidiaries has granted or issued any
options, convertible securities, warrants, calls, pledges, phantom stock, stock
appreciation rights, transfer restrictions (except restrictions imposed by
federal and state securities laws), Liens, currently effective rights of first
offer, currently effective rights of first refusal, currently effective anti
dilution provisions or commitments of any character relating to any issued or
unissued shares of capital stock of the Company other than as contemplated in
this Agreement. Except as contemplated in the filings referred to in the first
sentence of this Section 3.3, there are no preemptive rights, rights of first
offer, antidilution provisions or any other preferential rights applicable to
the issuance and sale of securities of the Company or any of its Subsidiaries,
including, but not limited to, the Conversion Shares and the VEP Shares.
3.4 Private Sale; No Shareholder Approval.
(a) Assuming the accuracy of the representations of Vista Fund and
Vista Partners contained herein and any Vista Assignee, if applicable, neither
the offer, sale or issuance of the Conversion Shares and the VEP Shares
hereunder requires or will require registration under the Securities Act or any
state securities laws.
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(b) No approval of the shareholders of the Company is required for
the execution, delivery or performance of this Agreement.
3.5 Litigation. Except as set forth in the Registration Statement
and the other filings made by the Company with the SEC prior to the date of this
Agreement, no claim, suit, proceeding or investigation is pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any officer or director thereof or the Company's and the
Subsidiaries' business which if decided adversely to any such Person could have
or reasonably be expected to have a Material Adverse Effect or prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement.
3.6 Third-Party Approvals. Assuming the accuracy of the
representations and warranties of Vista Fund and Vista Partners contained in
this Agreement and any Vista Assignee, if applicable, except for the
Registration Statement, the filings contemplated by Regulation D under the
Securities Act, and Section 25102(f) of the California Corporate Securities Act
of 1968, as amended, and filings to be made in connection with the authorization
contemplated by Section 6.2(e), the Company is not required to obtain any order,
consent, approval or authorization of, or to make any declaration or filing
with, any Governmental Agency or other third party (including under any state
securities or "blue sky" laws) in connection with the execution and delivery of
this Agreement, or the consummation of the transactions contemplated hereby or
thereby.
3.7 Registration Statement.
(a) At the effective date of the Registration Statement, the
Registration Statement will conform, and the prospectus contained in the
Registration Statement (the "Prospectus") and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Securities Act and the rules and
regulations of the Commission thereunder and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto, and
as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act , as applicable, and the rules and regulations of the SEC
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the SEC, as the case may be, will conform in all
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material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the SEC thereunder and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
3.8 No Misstatements. This Agreement, together with all exhibits and
schedules hereto, and the agreements, certificates and other documents furnished
to Vista Fund and Vista Partners by the Company and its Subsidiaries in
connection with the transactions contemplated under this Agreement, do not
contain any untrue statement of a material fact or, as supplemented by the
documents filed by the Company with the SEC, omit to state a material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which they were made, not misleading.
3.9 Rights Agreement. As of the Closing, the Rights (as defined in
the Rights Agreement) will not separate from the Shares (as defined in the
Rights Agreement) or become exercisable as a result of the execution, delivery
or performance of this Agreement, the issuance of the Conversion Shares or the
VEP Shares.
ARTICLE IV
Representations and Warranties of Vista Fund and Vista Partners
Each of Vista Fund and Vista Partners hereby represents and warrants
to the Company as follows:
4.1 Authorization and Enforceability. Each of Vista Fund and Vista
Partners has full power and authority and has taken all action necessary to
permit it to execute and deliver this Agreement and the other documents and
instruments to be executed by it pursuant hereto and to carry out the terms
hereof and thereof, and none of such actions will (i) violate or conflict with
any provision of the organizational documents of either Vista Fund or Vista
Partners or of any applicable law, regulation, order, judgment or decree, (ii)
result in the material breach of or constitute a material default (or an event
which, with notice or lapse of time or both would constitute a default) under
any agreement, instrument or understanding to which either Vista Fund or Vista
Partners is a party or by which it is bound, or (iii) result in or constitute a
"change in control" under any agreement, instrument or understanding to which
either Vista Fund or Vista Partners is a party or by which it is bound. This
Agreement has been duly authorized, executed and delivered by each of Vista Fund
and Vista Partners. This Agreement and such other documents and instruments each
constitutes a legal, valid and binding obligation of Vista Fund and Vista
Partners, enforceable against each of them in accordance with its terms, except
to the extent limited by applicable Creditors Rights Laws.
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4.2 Government Approvals. Neither Vista Fund nor Vista Partners is
required to obtain any order, consent, approval or authorization of, or to make
any declaration or filing with, any Governmental Agency in connection with the
execution and delivery of this Agreement and the other documents and instruments
to be executed by it pursuant hereto or the consummation of the transactions
contemplated hereby and thereby, except for such order, consent, approval,
authorization, declaration or filing as which has been or will be obtained or
made.
4.3 Investment Intent. Each of Vista Fund and Vista Partners is
acquiring the Conversion Shares and the VEP Shares for its own account, with no
present intentions of selling or otherwise distributing the same to the public.
4.4 Status of the Securities. Each of Vista Fund and Vista Partners
has been informed by the Company that the conversion of the Series B Shares and
the issuance of the VEP Shares have not been registered under the Securities Act
or under any state securities laws and are being offered and sold in reliance
upon federal and state exemptions for transactions not involving any public
offering.
4.5 Sophistication and Financial Condition. Each of Vista Fund and
Vista Partners is an "Accredited Investor" as defined in Regulation D under the
Securities Act and considers itself to be an experienced and sophisticated
investor and to have such knowledge and experience in financial and business
matters as are necessary to evaluate the merits and risks of an investment in
the Conversion Shares and the VEP Shares. Vista Fund and Vista Partners have
been given access to such information regarding the Company and its Subsidiaries
as it has requested and has had the opportunity to obtain additional information
as desired and to ask questions and has received answers regarding such
information in order to evaluate the merits and the risks inherent in holding
the Conversion Shares and the VEP Shares. The facts set forth in the preceding
sentence, shall not affect any representation or warranty in this Agreement of
any Party or any condition to the obligations of the parties hereto.
4.6 Transfer of Series B Shares and Conversion Shares.
(a) Each of Vista Fund and Vista Partners has been informed by the
Company and hereby agrees that the Conversion Shares and the VEP Shares may be
transferred only pursuant to public offerings registered under the Securities
Act or pursuant to an available exemption from such registration requirements.
(b) In connection with any transfer of any Conversion Shares or any
VEP Shares, Vista Fund or Vista Partners, as applicable, shall deliver written
notice to the Company describing in reasonable detail the proposed transfer,
together with an opinion of counsel (Sullivan & Cromwell LLP or such other
counsel which, to the Company's reasonable satisfaction, is knowledgeable in
securities law matters), to the effect that such transfer may be effected
without registration of such shares under the Securities Act. Neither Vista Fund
nor Vista Partners, as applicable, shall consummate a
12
transfer of the Conversion Shares or the VEP Shares until Vista Fund or Vista
Partners, as applicable, shall have delivered to the Company an opinion of such
counsel that no subsequent transfer of the Conversion Shares or the VEP Shares
by a holder which is not an Affiliate of the Company shall require registration
under the Securities Act. Promptly upon receipt of an opinion described in the
preceding sentence, the Company shall prepare and deliver in connection with the
consummation of the proposed transfer, new certificates for the Conversion
Shares or the VEP Shares being transferred that do not bear the legend set forth
in Section 4.6(c).
(c) Until transferred pursuant to Section 4.6(a), each certificate
evidencing the ownership of the Conversion Shares or the VEP Shares shall be
imprinted with a legend substantially in the following form, and a customary
"affiliates" legend to be mutually agreed by the Company and Vista Fund:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
THE CLOSING DATE AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY APPLICABLE STATE SECURITIES LAW. THE TRANSFER OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE CONVERSION AGREEMENT DATED AS OF FEBRUARY 13,
2004 BETWEEN THE COMPANY (THE "COMPANY") AND THE OTHER PARTIES THERETO.
THE COMPANY RESERVES THE RIGHT TO REFUSE ANY TRANSFER OF SUCH SECURITIES
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A
COPY OF SUCH CONDITIONS SHALL BE FURNISHED WITHOUT CHARGE TO THE HOLDER
HEREOF UPON WRITTEN REQUEST TO THE COMPANY.
ARTICLE V
Covenants
5.1 Board Composition and Nomination.
(a) For so long as Vista Fund, Vista Partners and their respective
Affiliates collectively have Beneficial Ownership of at least 4,500,000
Conversion Shares (as such share number is proportionately adjusted to reflect
any stock dividend, stock split, reverse stock split or other combination or
subdivision of the Conversion Shares on or following the date of this
Agreement), Vista Fund shall be entitled to designate two directors to serve on
the Board (any director designated by Vista Fund, a "Vista Appointee"), and each
such Vista Appointee shall so serve until such Vista Appointee is succeeded in
such service by another Vista Appointee or such Vista Appointee is removed
pursuant to this Agreement, and the Company shall take all lawful action
13
requested by Vista Fund to cause the Board at all times to include at least two
members who are Vista Appointees; provided, however, that the Company shall not
be obligated by the foregoing provision to call (or solicit proxies in
connection with) more than one special meeting of the Company's shareholders
during the period between any two annual meetings of the Company's shareholders.
(b) If Vista Fund for any reason fails to designate anyone to fill
any directorship pursuant to Section 5.1(a), the Company shall cause such
position not to be filled by resolution or vote of the Board and shall take all
lawful action requested by Vista Fund (including the solicitation of proxies) to
cause such position not to be filled by resolution or vote of or the Company's
other shareholders; provided, however, that the Company shall not be obligated
by the foregoing provision to call (or solicit proxies in connection with) more
than one special meeting of the Company's shareholders during the period between
any two annual meetings of the Company's shareholders. For so long as Vista Fund
is entitled to designate two Vista Appointees pursuant to Section 5.1(a), (i)
the Company shall take all lawful action requested by Vista Fund to cause the
Board to consist of nine directors unless the Company receives the prior written
consent of Vista Fund; provided, however, that the Company shall not be
obligated by the foregoing provision to call (or solicit proxies in connection
with) more than one special meeting of the Company's shareholders during the
period between any two annual meetings of the Company's shareholders, (ii) at
the request of Vista Fund, the Company shall take all lawful action requested by
Vista Fund to cause the board of directors of each Subsidiary of the Company to
be comprised of the same members as are on the Board, and (iii) to the extent
permitted by applicable law and the rules of any exchange or quotation system on
which the Common Stock is then listed or quoted, the Company shall take all
lawful action requested by Vista Fund to cause at least one Vista Appointee
specified by Vista Fund (who may specify a different Vista Appointee for each
such committee) to be appointed to the compensation committee and operating
committees of the Board, and such other committees of the Board and of the board
of directors of each Subsidiary of the Company as may be requested by Vista
Fund.
(c) At the request of Vista Fund, the Company shall take all lawful
action requested by Vista Fund to cause any Vista Appointee to be removed from
the Board as promptly as practicable, including soliciting the resignation of
such Vista Appointee; provided, however, that the Company shall not be obligated
by the foregoing provision to call (or solicit proxies in connection with) more
than one special meeting of the Company's shareholders during the period between
any two annual meetings of the Company's shareholders.
5.2 Veto Rights. For so long as Vista Fund, Vista Partners and their
respective Affiliates collectively have Beneficial Ownership of at least
4,500,000 Conversion Shares (as such share number is proportionately adjusted to
reflect any stock dividend, stock split, reverse stock split or other
combination or subdivision of the Conversion Shares on or following the date of
this Agreement), the Company shall not, without the prior written consent of
Vista Fund (i) create, authorize or issue any capital
14
stock of the Company or any Subsidiary of the Company or any security
convertible into, exchangeable for, or that otherwise gives the holder the right
to obtain, capital stock of the Company or any Subsidiary of the Company (other
than Options to acquire shares of Common Stock issued to employees, officers,
directors, consultants and agents of the Company, or shares of Common Stock
issuable pursuant to the exercise of such Options, pursuant to the Stock Option
Plan so long as the exercise price of such Options is not less than the Fair
Market Value of the Common Stock (as defined in the Stock Option Plan) on the
date such Options are issued as determined by the Board in its good faith
judgment (or with respect to the Company's 1990 Employee Stock Purchase Plan, at
no less than the price determined thereunder), or any issuance of shares of
Common Stock pursuant to the exercise of Options outstanding as of the date of
issuance of the Series B Shares), (ii) effect a Change of Control, (iii) create
or incur, or permit any Subsidiary of the Company to create or incur,
Indebtedness other than Indebtedness existing on the date of issuance of the
Series B Shares, Indebtedness approved in an Annual Budget and other
Indebtedness which (collectively with the Indebtedness referred to in the last
10 words of clause (vi) of Section 6(c) of the Certificate), does not exceed
$10,000,000 in the aggregate, (iv) effect a voluntary liquidation, dissolution
or winding up of the Company, (v) acquire, or permit any Subsidiary of the
Company to acquire, any interest in any company or business (whether by a
purchase of assets, purchase of stock, merger or otherwise), or enter into any
joint venture involving the operation of a business, or make any investment in
any company or business, except acquisitions and/or investments having an
aggregate purchase price of less than $10,000,000 in cash or other
consideration, (vi) enter into, amend, modify or supplement, or permit any
Subsidiary of the Company to enter into, amend, modify or supplement, any
agreement, transaction, commitment or arrangement with any of its or any
Subsidiary's officers, directors, shareholders holding at least 2% of the Common
Stock or Affiliates or with any Immediate Family of any such individual or with
any entity in which any such Person or individual owns a beneficial interest,
except for employment arrangements and benefit programs approved by the Board or
the applicable board of directors of the Subsidiaries or authorized committees
thereof, (vii) become subject to, or permit any of its Subsidiaries to become
subject to, (including by way of amendment to or modification of) any agreement
or instrument which by its terms would (under any circumstances) restrict the
Company's right to comply (but not the Company's ability to comply) with this
Agreement, (viii) approve or implement an annual budget of the Company and its
Subsidiaries (or "operating plan" as defined by the Company's management) (an
annual budget or "operating plan" so approved by Vista Fund and the Board, an
"Annual Budget") or materially deviate from an Annual Budget; (ix) declare or
pay any dividends or distributions on or in respect of the Common Stock; or (x)
change the compensation paid to, or terminate the employment of, the Chief
Executive Officer, the Chief Financial Officer, the President, Worldwide Sales
and Service, the Vice President of Human Resources or any replacements of any
such individuals or any Persons assuming similar roles, responsibilities or
functions.
15
5.3 Registration Statement. As soon as practicable following the
execution of this Agreement, the Company shall prepare and file with the SEC the
Registration Statement and shall comply with the Registration Rights Agreement
with respect to such preparation and filing.
5.4 Regulatory Matters. The Company, Vista Fund and Vista Partners
shall cooperate with each other and use (and shall cause their respective
Subsidiaries to use) their respective best efforts to take or cause to be taken
all actions, and do or cause to be done all things, necessary, proper or
advisable on its part under this Agreement and applicable Laws to consummate the
transactions contemplated by this Agreement as soon as practicable, including
preparing and filing as promptly as practicable all documentation to effect all
necessary notices, reports and other filings and to obtain as promptly as
practicable all consents, registrations, approvals, permits and authorizations
necessary or advisable to be obtained from any third party and/or any
Governmental Agency in order to consummate the transactions contemplated by this
Agreement and listing for quotation, subject to notice of issuance, the
Conversion Shares and the VEP Shares on the Nasdaq National Market.
5.5 Amendment of Rights Agreement. The Company shall use its best
efforts to execute an amendment to the Rights Agreement in the form attached to
this Agreement as Exhibit B.
5.6 Further Assurances. The Parties shall use their respective
reasonable efforts at any time and from time to time prior to, at and after the
Closing to execute and deliver to the applicable Parties such further documents
and instruments and to take all such further actions as such other Parties
reasonably may request to consummate the transactions contemplated by this
Agreement.
ARTICLE VI
Conditions to Closing
(a) Conditions to Obligations of Vista Fund, Vista Partners and the
Company. The obligations of each of Vista Fund, Vista Partners and the Company
to consummate the transactions contemplated by this Agreement at the Closing are
subject to the satisfaction or waiver, on or prior to the Closing Date, of the
condition precedent that the Underwriting Agreement shall have been executed and
delivered by all of the parties thereto and all of the conditions precedent to
the closing contemplated thereby shall have been satisfied or waived.
6.2 Conditions to Obligations of Vista Fund and Vista Partners. The
obligations of each of Vista Fund and Vista Partners to consummate the
transactions
16
contemplated by this Agreement at the Closing are subject to the satisfaction or
waiver, on or prior to the Closing Date, of the following conditions:
(a) Representations and Warranties. (i) The representations and
warranties of the Company set forth in this Agreement that are qualified by
reference to Material Adverse Effect shall be true and correct as of the date of
this Agreement and as of the Closing Date as though made on and as of such date
and time (except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation and
warranty shall be true and correct as of such earlier date); (ii) the
representations and warranties of the Company set forth in this Agreement that
are not qualified by reference to Material Adverse Effect shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of such date and time (except to the
extent that any such representation and warranty expressly speaks as of an
earlier date, in which case such representation and warranty shall be true and
correct as of such earlier date).
(b) Performance of Obligations. The Company shall have performed and
complied in all material respects with all covenants herein required to be
performed or complied with by the Company on or before the Closing Date.
(c) Compliance Certificate. The Chief Executive Officer of the
Company shall deliver to Vista Fund and Vista Partners at the Closing a
certificate, dated the Closing Date, certifying that the conditions specified in
Sections 6.2(a) and 6.2(b) have been satisfied.
(d) Consents. All applications and other filings required to be made
prior to the Closing by the Company with, and all consents, registrations,
approvals, permits, clearances and authorizations necessary or appropriate to be
obtained prior to the Closing by the Company from, any Governmental Agency or
other third party in connection with the execution and delivery of this
Agreement and the consummation of transactions contemplated hereby shall have
been made or obtained (as the case may be).
(e) Nasdaq Listing. The Conversion Shares and VEP Shares shall have
been authorized for quotation on the Nasdaq National Market upon official notice
of issuance.
(f) Effectiveness of the Registration Statement. The Registration
Statement to be filed with the SEC by the Company in connection with the sale of
shares of Common Stock by certain of the Company's shareholders shall have
become effective under the Securities Act. No stop order suspending the
effectiveness of the Registration Statement shall have been issued, and no
proceedings for that purpose shall have been initiated or be threatened, by the
SEC.
(g) Amendment of the Rights Agreement. An amendment to the Rights
Agreement in the form attached to this Agreement as Exhibit B shall have been
17
executed and delivered by the Company and the Rights Agent (as defined in the
Rights Agreement) and shall have been furnished to Vista Fund and Vista
Partners.
6.3 Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated by this Agreement at the
Closing are subject to the satisfaction or waiver, on or prior to the Closing
Date, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Vista Fund and Vista Partners set forth in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing Date as
though made on and as of such date and time (except to the extent that any such
representation and warranty expressly speaks as of an earlier date, in which
case such representation and warranty shall be true and correct as of such
earlier date).
(b) Performance of Obligations. Each of Vista Fund and Vista
Partners shall have performed and complied in all material respects with all
covenants herein required to be performed or complied with by each of them on or
before the Closing Date.
(c) Compliance Certificate. Each of the general partner of Vista
Fund and the managing member of Vista Partners shall deliver to the Company at
the Closing a certificate, dated the Closing Date, certifying that the
conditions specified in Sections 6.3(a) and 6.3(b) have been satisfied.
(d) Consents. All applications and other filings required to be made
prior to the Closing by Vista Fund and Vista Partners with, and all consents,
registrations, approvals, permits, clearances and authorizations necessary or
appropriate to be obtained prior to the Closing by Vista Fund and Vista Partners
from, any Governmental Agency or other third party in connection with the
execution and delivery of this Agreement and the consummation of transactions
contemplated hereby shall have been made or obtained (as the case may be).
ARTICLE VII
Termination
7.1 Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) by Vista Fund or Vista Partners, so long as neither entity is in
material breach of any covenant or agreement set forth in this Agreement, if
there has been a material breach by the Company or any of its Subsidiaries of
any covenant or agreement of the Company set forth in this Agreement;
18
(b) by the Company prior to the Closing Date, so long as the Company
is not in material breach of any covenant or agreement set forth in this
Agreement, if there has been a material breach by Vista Fund or Vista Partners
of any covenant or agreement of Vista Fund or Vista Partners set forth in this
Agreement; and
(c) by mutual written agreement of the Parties.
This Agreement shall terminate automatically if the Closing shall
not have been consummated on or before June 30, 2004.
7.2 Effect of Termination. If this Agreement is terminated as
permitted by Section 7.1, this Agreement and the election to convert the Series
B Shares contemplated hereby shall become void ab initio and there shall be no
liability or obligation of any Party (or any shareholder, partner, director,
officer, employee, agent, consultant or representative of such Party) to the
other Parties, except that (i) Article VIII shall continue in full force and
effect and all fees and expenses payable thereunder, if any, shall be payable,
and (ii) nothing herein will relieve any party from liability for any breach of
any representation, warranty, agreement or covenant contained herein prior to
such termination.
ARTICLE VIII
General Provisions
8.1 Public Announcements. Neither Party shall make, or permit any
agent or Affiliate to make, any public statements, including, without
limitation, any press releases, with respect to this Agreement and the
transactions contemplated hereby without the prior written consent of the other,
except as may be required by law or the rules of any exchange on which the
Company's securities may be listed or any inter-dealer quotation system in which
the Company's securities may be authorized to be quoted.
8.2 Successors and Assigns. This Agreement shall bind and inure to
the benefit of the Parties and their respective successors and assigns. Except
as otherwise specifically provided herein, this Agreement shall not be
assignable by any Party without the prior written consent of the other Parties;
provided, that Vista Fund and Vista Partners shall be entitled to assign its
rights and obligations under this Agreement to any of its Affiliates; and,
provided, further, that prior to the Closing, Vista Partners, upon notice to the
Company, may, without consent of the Company, assign its right to receive all or
any portion of the VEP Shares to such members, employees and Affiliates of Vista
Partners as Vista Partners shall designate in writing to the Company (any such
assignee, a "VEP Assignee"). In connection with any such designation, Vista
Partners will cause such VEP
19
Assignee to provide to the Company a representation letter making
representations in substantially the same form as set forth in Sections 4.3,
4.4, 4.5 and 4.6.
8.3 Entire Agreement, Absence of Presumption. This Agreement and
each other writing referred to herein or delivered pursuant hereto constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior arrangements or understandings. This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
8.4 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be (i)
delivered in person, (ii) transmitted by telecopy, (iii) sent by first class,
registered or certified mail, postage prepaid, or (iv) sent by reputable
overnight courier service, fees prepaid, to the recipient at the address or
telecopy number set forth below, or such other address or telecopy number as may
hereafter be designated in writing by such recipient. Notices shall be deemed
given upon personal delivery, seven days following deposit in the mail as set
forth above, upon acknowledgment by the receiving telecopier or one day
following deposit with an overnight courier service.
To the Company, to:
Aspect Communications Corporation
1310 Ridder Park Drive
San Jose, CA 95131-2313
Attention: Gary Barnett
Facsimile: (408) 325-2442
with a copy, which shall not constitute notice to the Company, to:
Venture Law Group
2775 Sand Hill Road
Menlo Park, CA 94025
Attention: Jon Gavenman
Facsimile: (650) 233-8386
To Vista Fund, to:
Vista Equity Fund II, L.P.
c/o Vista Equity Partners, LLC
150 California Street, 19th Floor
San Francisco, CA 94111
Attention: Robert F. Smith
Stephen J. Davis
Facsimile: (415) 765-6666
20
with a copy, which shall not constitute notice to Vista Fund, to:
Sullivan & Cromwell LLP
1870 Embarcadero Road
Palo Alto, California 94303
Attention: John L. Savva
Facsimile: (650) 461-5700
To Vista Partners, to:
Vista Equity Partners, LLC
150 California Street, 19th Floor
San Francisco, CA 94111
Attention: Robert F. Smith
Stephen J. Davis
Facsimile: (415) 765-6666
with a copy, which shall not constitute notice to Vista Fund, to:
Sullivan & Cromwell LLP
1870 Embarcadero Road
Palo Alto, California 94303
Attention: John L. Savva
Facsimile: (650) 461-5700
or, in each case, to such other address or to the attention of such other Person
as the recipient Party shall have specified by prior written notice to the
sending Party.
8.5 Closing Fee; Vista's Fees and Expenses. On the Closing Date, in
consideration for the services Vista Fund, Vista Partners or their Affiliates
performed in structuring and arranging the transactions contemplated by this
Agreement, the Company will pay to Vista Partners (or its Affiliate) a
transaction fee equal to $3,000,000 (the "Closing Fee"), by wire transfer of
immediately available funds to an account specified in writing to the Company by
Vista Partners no later than two Business Days prior to the Closing. In
addition, on the earlier of (x) the Closing Date, and (y) the third business day
after this Agreement is terminated, unless this Agreement is terminated pursuant
to Section 7.5(b), the Company shall reimburse Vista Fund, Vista Partners or
their Affiliates for (i) the reasonable fees and expenses of Sullivan & Cromwell
LLP incurred by Vista Fund, Vista Partners or their Affiliates in connection
with the documentation, negotiation and consummation of the transactions
contemplated by this Agreement, and (ii) all other reasonable fees and out of
pocket expenses incurred by Vista Fund, Vista Partners or their Affiliates in
connection with the transactions contemplated hereunder (including, without
limitation, fees and expenses of legal counsel, accountants or other
representatives). After the Closing, the Company agrees to reimburse Vista Fund,
Vista Partners or their Affiliates for all reasonable fees and expenses
(including reasonable
21
legal fees) incurred in connection with any future amendment to, waiver of or
the enforcement by Vista Fund or Vista Partners of any of its rights arising
under this Agreement. The parties' respective obligations to pay expenses
relating to the transaction contemplated by the Underwriting Agreement shall be
governed by the Underwriting Agreement.
8.6 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall be effective, unless the same shall be in writing and
signed by the Parties. No such waiver shall operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No failure by any Party to
take any action against any breach of this Agreement or default by any other
Party shall constitute a waiver of such Party's right to enforce any provision
hereof or to take any such action.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement.
8.8 Headings. The headings of the various sections of this Agreement
have been inserted for reference only and shall not be deemed to be a part of
this Agreement.
8.9 Specific Performance. The Company, on the one hand, and Vista
Fund or Vista Partners, on the other hand, acknowledges that money damages may
not be a sufficient remedy for any breach of this Agreement. It is accordingly
agreed that the parties shall be entitled to seek specific performance and
injunctive relief as remedies for any such breach, these remedies being in
addition to any of the remedies to which they may be entitled at law or equity.
8.10 Remedies Cumulative. Except as otherwise provided herein, the
remedies provided herein shall be cumulative and shall not preclude the
assertion by any Party hereto of any other rights or the seeking of any other
remedies against any other Party hereto.
8.11 GOVERNING LAW. ALL ISSUES AND QUESTIONS RELATING TO THE
CONSTRUCTION, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OR CHOICE
OF LAW OF THE STATE OF CALIFORNIA OR ANY OTHER JURISDICTION WHICH WOULD RESULT
IN THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA.
8.12 No Third Party Beneficiaries. Except as specifically set forth
or referred to herein, nothing herein is intended or shall be construed to
confer upon any
22
person or entity other than the Parties and their successors or assigns, any
rights or remedies under or by reason of this Agreement.
8.13 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.14 Time of the Essence; Computation of Time. Time is of the
essence for each and every provision of this Agreement. Whenever the last day
for the exercise of any privilege or the discharge or any duty hereunder shall
fall upon a non-Business Day, the Party having such privilege or duty may
exercise such privilege or discharge such duty on the next succeeding Business
Day.
23
IN WITNESS WHEREOF, the Parties hereby have caused this Agreement to
be executed by their proper officers, duly authorized so to do all as of the
date of this Agreement.
ASPECT COMMUNICATIONS CORPORATION
By: /s/ Aspect Communications Corporation
---------------------------------------
Name:
Title:
VISTA EQUITY FUND II, L.P.
By: /s/ Vista Equity Fund II, L.P.
-------------------------------
Name:
Title:
VISTA EQUITY PARTNERS, LLC
By: /s/ Vista Equity Partners, LLC
-------------------------
Name:
Title:
24
EXHIBIT A
[REGISTRATION STATEMENT]
A-1
EXHIBIT B
[FORM OF AMENDMENT TO
PREFERRED SHARES RIGHTS AGREEMENT]
B-1