AMENDMENT NO. 2 TO TRANSACTION AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

This AMENDMENT NO. 2 TO TRANSACTION AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of May 3, 2022, is by and among Aspen Technology, Inc., a Delaware corporation (“Aspen”), Xxxxxxx Electric Co., a Missouri corporation (“Xxxxxxx”), EMR Worldwide Inc., a Delaware corporation and a wholly owned subsidiary of Emerson (“Xxxxxxx Sub”), Emersub CX, Inc., a Delaware corporation and a wholly owned subsidiary of Xxxxxxx (“Newco”), and Emersub CXI, Inc., a Delaware corporation and a wholly owned subsidiary of Newco (“Merger Subsidiary”). Each of Aspen, Xxxxxxx, Xxxxxxx Sub, Newco and Merger Subsidiary are referred to as a “Party,” and collectively, as the “Parties.”

WHEREAS, the Parties are parties to that certain Transaction Agreement and Plan of Merger, dated as of October 10, 2021 (the “Original Execution Date”) as amended on March 23, 2022 (the “Agreement”);

WHEREAS, this Amendment is being delivered pursuant to Section 13.03 of the Agreement which provides that the Agreement may not be amended except by an instrument in writing signed by each of the Parties; and

WHEREAS, the Parties desire to amend certain terms of the Agreement to the extent provided herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

Section 1. Defined Terms. Each capitalized term used herein but not defined herein has the meaning assigned to such term in the Agreement.

Section 2. Amendment to Certain Sections of the Agreement.

(a)

The definition of “Xxxxxxx Excluded Assets” in Section 1.01(a) of the Agreement is hereby amended by (i) striking the word “and” that appears at the end of clause (x) thereof, (ii) adding at the end of clause (xi) thereof the word “and” and (iii) adding a new clause (xii) as follows:

(xii) the other property and assets described on Section 1.01(m) of the Xxxxxxx Disclosure Schedule;

(b)

The definition of “Automatic Transfer Echo Business Employees” in Section 1.01(a) of the Agreement is hereby amended and restated as follows:

“Automatic Transfer Echo Business Employees” means the Echo Business Employees (other than the Deferred TSA Automatic Transfer Business Employees) who fall within the scope of the Automatic Transfer Regulations and whose employment will automatically transfer at the Effective Time to Newco or one of its Subsidiaries (including an Xxxxxxx Contributed Subsidiary) pursuant to the Automatic Transfer Regulations in connection with the Transactions.

(c)

The definition of “Continuing Echo Business Employees” in Section 1.01(a) of the Agreement is hereby amended and restated as follows:

“Continuing Echo Business Employees” means, collectively, (i) the Automatic Transfer Echo Business Employees and the Deferred TSA Automatic Transfer Business Employees who do not expressly object to the transfer of their employment, (ii) the Xxxxxxx Contributed Subsidiary Business Employees who are employed by an Xxxxxxx Contributed Subsidiary or any Subsidiary of an Xxxxxxx Contributed Subsidiary as of immediately prior to the Closing and (iii) the Xxxxxxx Offer Business Employees, the Deferred Transfer Business Employees and the Deferred TSA Non-Automatic Transfer Business Employees who accept (or are deemed to accept) an offer of employment from Newco or Aspen or one of their Subsidiaries, in each case of the foregoing clauses (i), (ii) and (iii), who continue as employees of Newco or Aspen or one of their Subsidiaries immediately following the Applicable Transfer Time (or such later time as may be required by Applicable Law).

(d)

The definition of “Xxxxxxx Offer Business Employee” in Section 1.01(a) of the Agreement is hereby amended and restated as follows:

“Xxxxxxx Offer Business Employee” means any Echo Business Employee who is not an Automatic Transfer Echo Business Employee, a Deferred Transfer Business Employee, a Deferred TSA Automatic Transfer Business Employee, a Deferred TSA Non-Automatic Transfer Business Employee, or an Xxxxxxx Contributed Subsidiary Business Employee.

(e)

Section 1.01(a) of the Agreement is hereby amended by adding new definitions as follows:

“Abu Dhabi Conditions” means the closing conditions set forth under the heading “Abu Dhabi Conditions” on Section 7.05(c) of the Xxxxxxx Disclosure Schedule.

“Applicable Transfer Time” means, (a) with respect to a Continuing Employee who is either (i) an Xxxxxxx Offer Business Employee, (ii) an Aspen Offer Employee, (iii) an Xxxxxxx Contributed Subsidiary Business Employee, (iv) an Automatic Transfer Echo Business Employee or (v) an Aspen Employee, the Effective Time, (b) with respect to a Continuing Employee who is a Deferred Transfer Business Employee, in the case (i) the Deferred Transfer Business Employee’s jurisdiction of employment is Malaysia, the effective time of the Deferred Malaysia Closing, (ii) the Deferred Transfer Business Employee’s jurisdiction of employment is Saudi Arabia, the effective time of the Deferred Saudi Closing, (iii) the Deferred Transfer Business Employee’s jurisdiction of employment is Bahrain, the effective time of the Deferred Bahrain Closing, and (iv) the Deferred Transfer Business Employee’s jurisdiction of employment is Abu Dhabi, the effective time of the Deferred Abu Dhabi Closing and (c) with respect to a Continuing Employee who is a Deferred TSA Automatic Transfer Business Employee or a Deferred TSA Non-Automatic Transfer Business Employee, the date such employee ceases to provide services pursuant to the Transition Services Agreement.

“Bahrain Conditions” means the closing conditions set forth under the heading “Bahrain Conditions” on Section 7.05(c) of the Xxxxxxx Disclosure Schedule.

“Deferred Abu Dhabi Business” means the Xxxxxxx Contributed Assets and Xxxxxxx Assumed Liabilities held by the UAE branch of Xxxxxxx Process Management Distribution Limited.

“Deferred Abu Dhabi Closing” means the transfer of the Deferred Abu Dhabi Business to Newco or one of its designated Subsidiaries at or after the Closing upon the satisfaction or waiver of Abu Dhabi Conditions.

“Deferred Bahrain Business” means the Deferred Transfer Business Employees employed by Rosemount Tank Gauging (Middle East) SPC and the services provided by such employees.

“Deferred Bahrain Closing” means the transfer of the Deferred Bahrain Business to Newco or one of its designated Subsidiaries at or after the Closing upon the satisfaction or waiver of Bahrain Conditions.

“Deferred Business” means the Deferred Malaysia Business, the Deferred Saudi Business, the Deferred Bahrain Business or the Deferred Abu Dhabi Business, as applicable.

“Deferred Closing” means the Deferred Malaysia Closing, Deferred Saudi Closing, the Deferred Bahrain Closing and Deferred Abu Dhabi Closing, as applicable.

“Deferred Closing Conditions” means the Malaysia Conditions, Saudi Conditions, Bahrain Conditions and Abu Dhabi Conditions, as applicable.

“Deferred Closing Date” means the date of the Deferred Malaysia Closing, the date of the Deferred Saudi Closing, the date of the Deferred Bahrain Closing or the date of the Deferred Abu Dhabi Closing, as applicable.

“Deferred Closing Period Taxes” means, with respect to a Deferred Business, Taxes for the period beginning on the day after the Closing Date and ending on the applicable Deferred Closing Date (the “Deferred Closing Period”) incurred by, or imposed on, such Deferred Business, computed on the basis of apportioning items attributable to each Deferred Business under applicable accounting principles, as if such Deferred Business were a separate legal entity, solely during the Deferred Closing Period that was not part of any Combined Group (as defined in the Tax Matters Agreement) with any Xxxxxxx Retained Subsidiary as follows:

with respect to Taxes that are based on or measured by income, sales, use, receipts, or other similar items, the amount of such Taxes attributable to the Deferred Closing Period shall be determined based on a hypothetical closing of the books and records on the close of the Closing Date and a hypothetical closing of the books and records on the close of the applicable Deferred Closing Date; provided that, exemptions, allowances or deductions that are attributable to such Deferred Business under applicable accounting principles and are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated to the Deferred Closing Period by multiplying the total amount of such exemptions, allowances or deductions for the annual period by a fraction, the numerator of which is the number of calendar days in the Deferred Closing Period, and the denominator of which is the number of calendar days in the annual period (except to the extent otherwise agreed by Xxxxxxx and Newco); and

for Taxes other than those described in the preceding clause a, the amount of such Taxes attributable to the Deferred Closing Period shall be determined by multiplying the total amount of such Tax for the entire taxable period by a fraction, the numerator of which is the number of calendar days in the Deferred Closing Period, and the denominator of which is the number of calendar days in the entire taxable period.

“Deferred Malaysia Business” means the Xxxxxxx Contributed Assets and Xxxxxxx Assumed Liabilities held by Xxxxxxx Process Management (Malaysia) Sdn Bhd.

“Deferred Malaysia Closing” means the transfer of the Deferred Malaysia Business to Newco or one of its designated Subsidiaries at or after the Closing upon the satisfaction or waiver of Malaysia Conditions.

“Deferred Saudi Business” means the Xxxxxxx Contributed Assets and Xxxxxxx Assumed Liabilities held by Xxxxxxx Saudi Arabia LLC.

“Deferred Saudi Closing” means the transfer of the Deferred Saudi Business to Newco or one of its designated Subsidiaries at or after the Closing upon the satisfaction or waiver of Saudi Conditions.

“Deferred Transfer Business Employee” means each Echo Business Employee who, as of immediately prior to the Effective Time, is employed by Xxxxxxx or any of its Subsidiaries (other than the Xxxxxxx Contributed Subsidiaries) in either Saudi Arabia, Bahrain, Abu Dhabi or Malaysia.

“Deferred TSA Automatic Transfer Business Employee” means each Echo Business Employee who (i) as of immediately prior to the Effective Time, is employed by Xxxxxxx or any of its Subsidiaries (other than the Xxxxxxx Contributed Subsidiaries), (ii) from and after the Effective Time provides services under the Transition Services Agreement and (iii) falls within the scope of the Automatic Transfer Regulations and whose employment will automatically transfer at the Applicable Transfer Time to Newco or one of its Subsidiaries (including an Xxxxxxx Contributed Subsidiary) pursuant to the Automatic Transfer Regulations in connection with the cessation of his or her provision of services pursuant to the Transition Services Agreement.

“Deferred TSA Non-Automatic Transfer Business Employee” means each Echo Business Employee (other than any Deferred TSA Automatic Transfer Business Employee) who, (i) as of immediately prior to the Effective Time, is employed by Xxxxxxx or any of its Subsidiaries (other than the Xxxxxxx Contributed Subsidiaries) and (ii) from and after the Effective Time provides services under the Transition Services Agreement.

“Malaysia Conditions” means the closing conditions set forth under the heading “Malaysia Conditions” on Section 7.05(c) of the Xxxxxxx Disclosure Schedule.

“Recipient,” when used in connection with the Specified Agreements, shall have the meaning ascribed to it as set forth on Section 4.14(d) of the Xxxxxxx Disclosure Schedule.

“Saudi Conditions” means the closing conditions set forth under the heading “Saudi Conditions” on Section 7.05(c) of the Xxxxxxx Disclosure Schedule.

“Specified Agreements” means (a) the Specified License Agreement and (b) any and all other Contracts between Xxxxxxx or any of its Affiliates, on the one hand, and the Recipient, on the other hand, in each case, in effect (in whole or in part) as of the Closing Date and any and all amendments, attachments, exhibits, annexes, schedules, extensions and other modifications thereto.

“Specified Amount,” when used in connection with the Specified License Agreement, shall have the meaning ascribed to it as set forth on Section 4.14(d) of the Xxxxxxx Disclosure Schedule.

“Specified License Agreement” means the license agreement set forth on Section 4.14(d) of the Xxxxxxx Disclosure Schedule.

(f)

Section 2.01 of the Agreement is hereby amended and restated as follows:

The Closing. Except for the Deferred Closings, the closing of the Transactions (the “Closing”) shall take place in New York City at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 at 10:00 a.m., Eastern time, as soon as possible after (but in any event no later than the second Business Day after) the date the conditions set forth in Article 10 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by Applicable Law, waiver of such conditions by the party or parties entitled to the benefit thereof at the Closing) have been satisfied or, to the extent permitted by Applicable Law, waived by the party or parties entitled to the benefit thereof, or at such other place, at such other time or on such other date as Xxxxxxx and Aspen may mutually agree (the date on which the Closing occurs, the “Closing Date”).

(g)

Section 2.02(a)(ii) of the Agreement is hereby amended by changing the reference to “Section 2.02(a)” therein to “Section 2.02(a)(i)”.

(h)

Section 4.03 of the Agreement is hereby amended by striking “and” and adding “(iv) as described in the Deferred Closing Conditions and (v)” after “federal securities laws,” therein.

(i)

Each of Sections 4.12, 4.13(a), 4.13(b) and 4.13(c) of the Agreement is hereby amended by adding “and the Deferred Closings” after “after giving effect to the Pre-Closing Restructuring” in each place where such language occurs.

(j)

Section 4.13(d) of the Agreement is hereby amended and restated as follows:

(i)

(1) The properties and assets of Newco, Merger Subsidiary and the Emerson Contributed Subsidiaries ((x) including, after giving effect to the Pre-Closing Restructuring, the Emerson Contributed Assets, but (y) excluding the Emerson Contributed Assets held by all Deferred Businesses, and (z) taking into account any property and services to be provided under the Ancillary Agreements and the Intellectual Property licensed under Section 7.17(b)) constitute in all material respects all of the property and assets that are owned, licensed or controlled by Xxxxxxx or any of its Affiliates as of the Closing Date that are reasonably necessary for the conduct of the Echo Business (other than the Deferred Businesses) as conducted as of the date hereof and as of the Closing Date.

(2)

Other than with respect to Intellectual Property, none of the Xxxxxxx Excluded Assets are owned, used or held for use primarily in the conduct of the Echo Business.

(ii)

With respect to each Deferred Business, after giving effect to the Deferred Closings, the properties and assets of Newco, Merger Subsidiary and the Xxxxxxx Contributed Subsidiaries (including, after giving effect to the Deferred Closings in the applicable jurisdiction, the Xxxxxxx Contributed Assets, and taking into account any property and services to be provided under the Ancillary Agreements and the Intellectual Property licensed under Section 7.17(b)) constitute in all material respects all of the property and assets that are owned, licensed or controlled by Xxxxxxx or any of its Affiliates as of the applicable Deferred Closing Date that are reasonably necessary for the conduct of the Echo Business in the jurisdiction of such Deferred Business as conducted as of the date hereof and as of the applicable Deferred Closing Date.

(iii)

The properties and assets of Newco, Merger Subsidiary and the Emerson Contributed Subsidiaries ((x) including, after giving effect to the Pre-Closing Restructuring but without giving effect to the Deferred Closings, the Emerson Contributed Assets and (y) taking into account the Intellectual Property licensed under Section 7.17(b)), together with the Echo Business Employees (excluding the Deferred Transfer Business Employees) and with any property and services to be provided by Xxxxxxx and the Xxxxxxx Retained Subsidiaries to Newco, Merger Subsidiary or the Xxxxxxx Contributed Subsidiaries under the Ancillary Agreements (and if applicable, the Commercial Agreement Term Sheet), comprise all of the assets, personnel and properties that would be necessary and sufficient in all material respects for Newco to conduct the Echo Business (other than the Deferred Businesses) in substantially the same manner as conducted as of the date hereof and as of the Closing Date.

(iv)

With respect to each Deferred Business, after giving effect to the Deferred Closings, the properties and assets of Newco, Merger Subsidiary and the Emerson Contributed Subsidiaries ((x) including, after giving effect to the Pre-Closing Restructuring and the applicable Deferred Closing, the Emerson Contributed Assets as of the Closing, (y) including the Emerson Contributed Assets transferred to Newco or its Subsidiaries at the applicable Deferred Closing pursuant to Section 7.05, and (z) taking into account the Intellectual Property licensed under Section 7.17(b)), together with the Echo Business Employees (excluding the Deferred Transfer Business Employees but including any such employee transferred at the applicable Deferred Closing) and with any property and services to be provided by Xxxxxxx and the Xxxxxxx Retained Subsidiaries to Newco, Merger Subsidiary or the Xxxxxxx Contributed Subsidiaries under the Ancillary Agreements (and if applicable, the Commercial Agreement Term Sheet), comprise all of the assets, personnel and properties that would be necessary and sufficient in all material respects for Newco to conduct the Echo Business in the jurisdiction of such Deferred Business in substantially the same manner as conducted as of the date hereof and as of the Closing Date.

(k)

Section 4.14(b) of the Agreement is hereby amended by adding “and the Deferred Closings” after “after giving effect to the Pre-Closing Restructuring” in each of the four places where such language occurs in Section 4.14(b).

(l)

Section 4.14(c) of the Agreement is hereby amended by adding “(excluding any Echo Business Intellectual Property owned by any Deferred Business)” after “all Echo Business Intellectual Property”.

(m)

Section 4.14 of the Agreement is hereby amended by adding the following section “(d)” at the end thereof.

Except as would not reasonably be expected to have, individually or in the aggregate, an Xxxxxxx Material Adverse Effect: (i) the Specified Agreements are in writing and true, complete and correct copies of the Specified Agreements have been made available to Aspen, (ii) the Specified Agreements are in full force and effect, (iii) Xxxxxxx and its Affiliates have timely paid any and all amounts, including royalties, owed to the Recipient under the Specified Agreements and all amounts payable or paid under the Specified Agreements have been fully reflected in Xxxxxxx Carveout Financial Statements, (iv) following Closing, none of Newco or any of its Subsidiaries will be restricted from using, or sublicensing, in connection with the operation of the Echo Business, or assigning to any Affiliates of Newco, any Intellectual Property owned (solely or jointly) by, or licensed to, Newco or its Affiliates as a result of or pursuant to the Specified License Agreement and (v) under the Specified License Agreement, no more than the Specified Amount has been owed to the Recipient during each of the past five (5) years.

(n)

The first paragraph of Section 6.01 of the Agreement is hereby amended by adding “and the Deferred Closings” after “(including with respect to the implementation of the Pre-Closing Restructuring”.

(o)

Section 6.05 of the Agreement is hereby amended by adding the following before “.” at the end of Section 6.05:

; provided that, at Xxxxxxx’x and Aspen’s mutual election, the foregoing termination with respect to any Contract or intercompany account relating to a Deferred Business need not occur until at or prior to the applicable Deferred Closing. For the avoidance of doubt, the Parties acknowledge that Newco and/or its applicable Subsidiaries, if any, shall be entitled to all benefits and will bear all Liabilities with respect to such Contracts during the period between the Closing and the applicable Deferred Closing to the same extent as provided for in Section 7.05(e).

(p)

Section 7.01(c) of the Agreement is hereby amended by adding “(it being understood that the Deferred Closings shall not be a breach of this Section 7.01)” after “so as to enable the Merger to occur prior to the End Date”.

(q)

Section 7.05 of the Agreement is hereby amended and restated as follows:

Pre-Closing Restructuring.

(a)

Prior to the Closing, Xxxxxxx shall, and shall cause its Affiliates to, at Xxxxxxx’x sole cost and expense, undertake the restructuring transactions set forth on Exhibit I (the “Pre-Closing Restructuring”) in the manner described on such Exhibit I (the “Pre-Closing Restructuring Plan”), including (a) the transfer by Emerson and the Emerson Retained Subsidiaries to an Emerson Contributed Subsidiary of each Emerson Contributed Asset, (b) the assumption by an Xxxxxxx Contributed Subsidiary of each Xxxxxxx Assumed Liability, (c) the transfer by each Xxxxxxx Contributed Subsidiary to Xxxxxxx or an Xxxxxxx Retained Subsidiary of each asset of such Xxxxxxx Contributed Subsidiary that would be an Xxxxxxx Excluded Asset were it held by an Xxxxxxx Retained Subsidiary and (d) the assumption by Xxxxxxx or an Xxxxxxx Retained Subsidiary of each Liability of an Xxxxxxx Contributed Subsidiary that would be an Xxxxxxx Excluded Liability were it a Liability of an Xxxxxxx Retained Subsidiary. Notwithstanding the foregoing, Xxxxxxx shall not, and shall cause its Affiliates not to, (A) transfer any assets, properties or businesses of any Xxxxxxx Contributed Subsidiary to Xxxxxxx or any Xxxxxxx Retained Subsidiary (other than any asset that would be an Xxxxxxx Excluded Asset were it held by an Xxxxxxx Retained Subsidiary) or (B) transfer to any Xxxxxxx Contributed Subsidiary, or have any Xxxxxxx Contributed Subsidiary otherwise assume, any Liabilities of Xxxxxxx or any Xxxxxxx Retained Subsidiary (other than the Xxxxxxx Assumed Liabilities). The Pre-Closing Restructuring shall be consummated in compliance with Applicable Law and pursuant to local share and asset transfer documentation that Aspen has had a reasonable opportunity to review and comment upon (which final documentation shall incorporate such reasonable comments of Aspen); provided that in the event of any conflict or inconsistency between the terms of any such local transfer documentation and the Transaction Documents, the terms of the Transaction Documents shall control in all respects. For the avoidance of doubt, without limiting any rights of Xxxxxxx and Newco hereunder, Xxxxxxx and Newco shall not, and shall cause their respective Affiliates not to, bring any claim for any cause of action under any such local transfer documentation. For the avoidance of doubt, except as expressly set forth in this Agreement, the Tax Matters Agreement governs all tax related matters between or among the Parties or any of their Subsidiaries with respect to the Pre-Closing Restructuring. The Pre-Closing Restructuring may be amended or modified by Xxxxxxx so long as such amendments or modifications would not reasonably be expected, individually or in the aggregate (1) to be material to Newco and its Subsidiaries (after giving effect to the Closing) (including any new material Liability), (2) to prevent or materially delay the consummation of the Transactions, (3) to materially interfere with, prevent or materially delay the ability of Aspen or, following the Closing, Newco or any of its Subsidiaries to perform their obligations under the Transaction Documents or consummate the transactions contemplated thereby, (4) to change in any material way the scope of the Echo Business being transferred to Newco under this Agreement or the allocation of assets and Liabilities contemplated by this Agreement, (5) to impose restrictions on the business of Newco following the Closing (other than pursuant to the Tax Matters Agreement) or (6) to result in material adverse Tax consequences to Aspen, its Affiliates, Newco or any Xxxxxxx Contributed Subsidiary that would not be the subject of indemnification by Xxxxxxx under the Tax Matters Agreement; provided that, in each case, Xxxxxxx shall reasonably in advance consult in good faith with Aspen in connection with, and provide Aspen with written notice of, any such amendments and modifications. Xxxxxxx shall keep Aspen reasonably informed, upon request, of the status and details of the Pre-Closing Restructuring.

(b)

Xxxxxxx agrees that, as of the Closing, each of the Xxxxxxx Contributed Subsidiaries set forth on Section 7.05(b) of the Xxxxxxx Disclosure Schedule shall have at least the amount of cash set forth opposite such Xxxxxxx Contributed Subsidiary on Section 7.05(b) of the Xxxxxxx Disclosure Schedule and such cash shall be used to effect the applicable Deferred Closings. The Parties agree that the purchase price for the applicable Deferred Business shall be the amount of cash set forth opposite such Deferred Business on Section 7.05(b) of the Xxxxxxx Disclosure Schedule.

(c)

If one or more of the Malaysia Conditions, the Saudi Conditions, the Bahrain Conditions or the Abu Dhabi Conditions have not been satisfied or waived as of the Closing, then, notwithstanding anything to the contrary in this Agreement, the Deferred Malaysia Business, the Deferred Saudi Business, the Deferred Bahrain Business and the Deferred Abu Dhabi Business, as applicable, shall not be transferred to Newco or its Subsidiaries at the Closing, and the Parties shall work together to effect such transfer as follows: for each Deferred Closing, the applicable Deferred Business shall be transferred to Newco or its Subsidiaries as soon as possible after (but in any event no later than the second Business Day after) the date all of the conditions to the relevant Deferred Closing (other than conditions that by their nature are to be satisfied at such Deferred Closing, but subject to the satisfaction or, to the extent permitted by Applicable Law or the applicable Deferred Closing Conditions, waiver of such conditions by Xxxxxxx and Newco at the applicable Deferred Closing) have been satisfied or, to the extent permitted by Applicable Law or the applicable Deferred Closing Conditions, waived by Xxxxxxx and Newco, or at such other place, at such other time or on such other date as Xxxxxxx and Newco may mutually agree; provided that (i) it is understood and agreed that not all Deferred Closings need to occur contemporaneously, (ii) Xxxxxxx and Newco may mutually elect to waive any applicable Deferred Closing Conditions and may further mutually elect not to proceed with consummation of any Deferred Closing, and (iii) to the extent a Deferred Closing shall not have occurred by the date that is eighteen months following the Closing (or such other date as Xxxxxxx and Newco may mutually agree), such Deferred Closing shall occur on such date. For the avoidance of doubt, if the Malaysia Conditions, the Saudi Conditions, the Bahrain Conditions or the Abu Dhabi Conditions are satisfied or waived by Xxxxxxx and Aspen prior to the Closing, then the Deferred Malaysia Closing, the Deferred Saudi Closing, the Deferred Bahrain Closing and the Deferred Abu Dhabi Closing, respectively, shall occur at the Closing. In no event shall the Deferred Malaysia Closing, the Deferred Saudi Closing, the Deferred Bahrain Closing or the Deferred Abu Dhabi Closing occur prior to the Closing.

(d)

At each Deferred Closing, (i) each of Xxxxxxx and Newco shall deliver, or cause to be delivered, to the other party a duly signed counterpart to a local transfer agreement in a form substantially similar to the forms included on Section 7.05(d)(i) of the Xxxxxxx Disclosure Schedule to effectuate each of the Deferred Closings, and any other documents to the extent required by Applicable Law and (ii) with respect to each Deferred Closing, Newco shall cause the payment of the cash amount and in such currency, in each case, as set forth opposite such Deferred Closing on Section 7.05(d)(ii) of the Xxxxxxx Disclosure Schedule in immediately available funds by wire transfer to such Person and to such account designated by Xxxxxxx. In the event of any conflict or inconsistency between the terms of any such local transfer agreement and the Transaction Documents, the terms of the Transaction Documents shall control in all respects.

(e)

(i)

With respect to each Deferred Business, as of the Effective Time, Xxxxxxx shall transfer, assign and convey, and Newco (or its Affiliates) shall acquire and accept all of Xxxxxxx’x (or its Affiliates’) economic rights, benefits, and interests in and to each Deferred Business; provided that, the foregoing shall not entitle Newco or any of its Affiliates to the benefit of any payments (including under any “cost-plus” arrangement) made by Newco or its Affiliates to Xxxxxxx or its Affiliates, under the Transition Services Agreement, in respect of the operation of such Deferred Business between the Closing and the applicable Deferred Closing. Newco (or one or more of its Affiliates) shall assume all of Xxxxxxx’x economic risk, encumbrances and obligations with respect to ownership and management of the Deferred Businesses and the employment of the Deferred Transfer Business Employees. For the avoidance of doubt, such economic rights and interest in and to the Deferred Businesses include all income, profits, and gains arising from, attributable to, or inuring to the benefit of each Deferred Business after the Effective Time through the applicable Deferred Closing Date. Such economic risk, encumbrances and obligations with respect to the Deferred Businesses include the Xxxxxxx Assumed Liabilities and include all risk of economic loss with respect to each Deferred Business solely to the extent such Deferred Business is operated by Xxxxxxx in the manner described herein. As of the Effective Time, Newco (or its Affiliates) shall, assume the obligations and bear the economic burdens, costs and Liabilities (including (x) any Liability for Deferred Closing Period Taxes with respect to such Deferred Business and (y) the cost of any compensation or benefits (including any base salary, wages, commissions, incentive compensation, health or welfare benefits or other employee benefits, severance or other termination-related payments or benefits) in respect of any Deferred Transfer Business Employee) associated with managing, operating and owning such Deferred Business and the employment of the Deferred Transfer Business Employees solely to the extent the Deferred Business is operated by Xxxxxxx in the manner described herein (determined as if such Deferred Business had been transferred to Newco or one of its Subsidiaries on the Closing Date pursuant to the terms of this Agreement, rather than the applicable Deferred Closing Date). Newco shall, subject to Xxxxxxx’x compliance with the terms hereof, be solely responsible for any Liability arising out of the ownership and management of such Deferred Business in such period consistent with the terms and conditions of this Section 7.05(e). In the event that the transfer of the benefits, obligations, and burdens as contemplated by this Section 7.05(e)(i) is not permitted under Applicable Law or Contract, Xxxxxxx and Newco shall work together in good faith to implement an alternative arrangement with equivalent effect as permissible under Applicable Law or Contract with respect to the operation of such Deferred Business until the applicable Deferred Closing.

(ii)

Newco and Xxxxxxx shall use reasonable best efforts to cooperate in a mutually agreeable arrangement to effect the provisions of Section 7.05(e)(i). With respect to each Deferred Business, for the period between Closing and the applicable Deferred Closing, Newco and Xxxxxxx agree that Newco will, after reasonable consultation with the Xxxxxxx personnel, direct the operation and management of the Deferred Businesses and shall have the sole authority to undertake any material decision that relate to such Deferred Business, subject to Applicable Law and provided that Xxxxxxx may undertake any such decision to ensure that the Deferred Businesses comply with all policies and procedures that apply to Xxxxxxx and its Subsidiaries generally and any decision permitted to be taken by Xxxxxxx in Section 7.05(e)(iii)(2) without the consent of Newco; provided that Xxxxxxx shall not be responsible for any losses or expenses incurred as a result of Newco’s delay in making any decisions in a timely manner. Xxxxxxx shall, or cause its Affiliates to, (i) provide Newco and its Affiliates reasonable access to the offices, properties, books, records and personnel of the Deferred Business, during normal business hours and with reasonable prior notice, (ii) furnish such financial and operating data and other information relating to the Deferred Businesses as Newco may reasonably request and (iii) instruct its employees, counsel, financial advisors, auditors and other authorized representatives to reasonably cooperate with Newco and its Affiliates in support of the operation of the Deferred Business. All information furnished pursuant to this Section shall be subject to the Confidentiality Agreement. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Xxxxxxx.

(iii)

Subject to Section 7.05(e)(ii), with respect to each Deferred Business, from the Closing Date through the applicable Deferred Closing Date:

(1)

Xxxxxxx shall, and shall cause its Subsidiaries to, use reasonable best efforts to (A) to conduct such Deferred Business in the ordinary course of business consistent with past practice and in compliance with Applicable Law, (B) maintain and preserve intact such Deferred Business and, to the extent relating to the Deferred Business, their business organizations, their rights, franchises and other authorizations issued by Governmental Authorities and their relationships with their customers, regulators and other Persons with which they have advantageous business relationships (including any employees of the Deferred Businesses), and (C) maintain and keep in good repair (ordinary wear and tear excepted) the material properties, assets and businesses of such Deferred Business; and

(2)

Xxxxxxx shall not and shall cause its Affiliates not to, without the prior written consent of Newco (x) incur or assume any Liabilities over $10,000 other than in the ordinary course of business consistent with past practice, or (y) distribute, transfer or sell any assets other than sales of inventory and dispositions of obsolete assets, in each case, in the ordinary course of business consistent with past practice, or except to effect the Deferred Closings in each case of clauses (x) and (y) with respect to such Deferred Business.

(iv)

Without limiting the generality of Section 7.05(e)(i), (A) with respect to each Deferred Business, from and after the Closing Date until the applicable Deferred Closing Date with respect to such Deferred Business, Xxxxxxx shall, or shall cause its Affiliates to, fund the ongoing operations and maintenance of such Deferred Business, including any liability for Deferred Closing Period Taxes with respect to such Deferred Business and (B) with respect to each Deferred Transfer Business Employee, from and after the Closing Date until the Applicable Transfer Time, Xxxxxxx shall, or shall cause its Affiliates to, fund the cost of any compensation or benefits (including any base salary, wages, commissions, incentive compensation, health or welfare benefits or other employee benefits, severance or other termination-related payments or benefits) in respect of Deferred Transfer Business Employees (the “Operating Expenses”). Xxxxxxx’x expenditure of Operating Expenses of each Deferred Business shall be consistent with the ordinary course operations of such Deferred Business consistent with past practice at Aspen’s direction and, in the case of the Deferred Transfer Business Employees, subject to the terms of Section 6.01(k) (including, for the avoidance of doubt, any exceptions thereto set forth in Section 6.01 of the Xxxxxxx Disclosure Schedule), until the Applicable Transfer Time; provided that Xxxxxxx shall not be responsible for any losses or expenses incurred due to Aspen’s failure to approve any such Operating Expenses.

(v)

With respect to each Deferred Business, in the event Xxxxxxx or any of its Affiliates receives any income, profits, or gains attributable to such Deferred Business, or any property with respect to such Deferred Business, on or after the Effective Time, it will do so as custodian or, to the fullest extent permissible under Applicable Law, in trust for and on behalf of Newco. All such income, profits, gains or property (together with interest thereon at an arm’s length rate from the date of receipt) received by Xxxxxxx shall be offset against the Operating Expenses funded by Xxxxxxx with respect to the applicable Deferred Business and (i) the net amount shall be paid to Newco on the applicable Deferred Closing Date (taking into account the net result of the benefits and liabilities set forth in Section 7.05(e)(i)) and (ii) to the extent that the Operating Expenses are greater than such income, profits, gains or property received by Xxxxxxx or there is otherwise insufficient cash of the Deferred Business to reimburse Xxxxxxx for the Operating Expenses (taking into account the net result of the benefits and liabilities set forth in Section 7.05(e)(i)), such Operating Expenses shall be paid by Newco to Xxxxxxx on the applicable Deferred Closing Date. Xxxxxxx shall and shall cause its Affiliates to furnish such financial and operating data and other supporting information as Newco may reasonably request to support the calculation of the net amount (including the Operating Expenses as set out above).

(vi)

Without limiting any Party’s obligations under Section 7.01, but subject to the terms thereof, with respect to each Deferred Business, from the Closing Date until the applicable Deferred Closing, each Party shall use its reasonable best efforts to execute and deliver all documents, certificates, agreements or other writings, and take such other actions as may be reasonably requested by the other Party in furtherance of the transfer of each Deferred Business to Newco (or one or more of its Subsidiaries).

(vii)

For all Tax purposes, the Parties will cooperate to characterize the arrangements adopted in connection with each Deferred Closing consistent with one another and in a manner consistent with the principles set forth in this Section 7.05(e).

(viii)

Solely for the period between the Closing Date and the Deferred Closing Date with respect to each Deferred Business, Newco (on behalf of itself and its Subsidiaries) hereby grants Xxxxxxx or any of the Xxxxxxx Retained Subsidiaries a non-exclusive, limited, royalty-free, non-transferable license to use the Echo Business Intellectual Property owned by Newco or any of the Xxxxxxx Contributed Subsidiaries, to the extent licensable, solely for use in the conduct of such Deferred Business in a manner contemplated by Section 7.05(e)(ii).

(ix)

With respect to each Deferred Business, from and after the Closing Date until the applicable Deferred Closing Date, Xxxxxxx and Newco shall, and shall cause their respective Affiliates to, use reasonable best efforts to cooperate with each other and to facilitate and expedite the identification and resolution of any issues arising with respect to such Deferred Business at the earliest practicable dates. Such reasonable best efforts and cooperation shall include, but are not limited to (i) keeping each other reasonably informed of communications from and to personnel of relevant Governmental Authorities and (ii) conferring with each other regarding contacts with and response to personnel of such Governmental Authorities and the content of any such contacts or responses prior to making any such contacts or responses, in each case with respect to any material matter.

(r)

Section 7.06 of the Agreement is hereby amended and restated as follows:

Third-Party Approval and Permits.

(a)

Except with respect to Consents which are addressed in Section 7.01, subject to the terms and conditions of this Agreement, prior to the Closing or the Deferred Closing as applicable, (i) each of Aspen and Xxxxxxx shall, and shall cause its respective Affiliates to, use its reasonable best efforts to obtain, as promptly as practicable, all Consents required to be obtained from any third party that are necessary to (x) consummate the Transactions (including, to the extent Aspen does not replace, renew, refinance or refund the indebtedness under the Aspen Credit Agreement, the Aspen Credit Agreement Consents) and (y) in the case of Xxxxxxx and its Affiliates, transfer and assign the Xxxxxxx Contributed Assets to Newco or one of the Xxxxxxx Contributed Subsidiaries and otherwise complete the Pre-Closing Restructuring and the Deferred Closings, in each case, pursuant to Section 7.05, and (ii) each of Aspen and Xxxxxxx shall, and shall cause its respective Affiliates to, use its reasonable best efforts to provide all notices and otherwise take all actions necessary to transfer any transferable Aspen Permits and Xxxxxxx Permits, respectively, or reissue or obtain any replacement Aspen Permits and Xxxxxxx Permits, respectively, in each case, to the extent necessary to consummate the Transaction (including, in the case of Xxxxxxx, for Newco and the Xxxxxxx Contributed Subsidiaries to operate, as of the Closing Date, the Echo Business).

(b)

Without limiting the foregoing, Section 7.05 or Section 10.03(a)(i), to the extent permitted by Applicable Law, in the event any Consent required to be obtained from any third party or Governmental Authority in connection with the transfer of any Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset has not been obtained by the Closing or the applicable Deferred Closing, then this Agreement (or the applicable transfer instrument) shall not constitute an agreement to sell, assign, transfer or convey such asset. The party contemplated to be transferring or causing to be transferred such asset (the “Transferring Party”) shall hold in trust for the party to whom such asset is contemplated to be transferred under this Agreement (the “Transferee”), and shall promptly forward to the Transferee any income, proceeds and other monies received in respect of, the relevant Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, and Transferee will promptly pay, perform or discharge when due any Liabilities arising thereunder, in each case, until such time as the required Consent is obtained and the transfer is effectuated. To the extent not prohibited by the relevant Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, or under Applicable Law, (i) the Transferring Party agrees to use reasonable best efforts to provide the Transferee with the economic benefits of any such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, and the Transferee agrees to assume and bear all costs and Liabilities thereunder, in each case, in a manner to place the Transferring Party and Transferee in a substantially similar position as if such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, had been assigned or transferred at the Closing or the applicable Deferred Closing, (ii) the parties agree to use reasonable best efforts to enter into and cooperate in arrangements with each other and the relevant third party intended to transitionally allow the Transferring Party to operate with or under the relevant Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, so that the Transferee can receive or incur the relevant benefits and Liabilities of such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, until the expiration or renewal thereof in a manner to place the Transferring Party and the Transferee in a substantially similar position as if such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, had been assigned or transferred at the Closing or the applicable Deferred Closing and (iii) the Transferring Party agrees to perform all applicable obligations under such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, and enforce, at the request and for the account of the Transferee, or allow the Transferee and its Affiliates to enforce, in a commercially reasonable manner, any rights in respect of such Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable. Except for as otherwise provided in Section 7.05, upon obtaining any such requisite Consent, the relevant Xxxxxxx Contributed Asset or Xxxxxxx Excluded Asset, as applicable, shall promptly be transferred and assigned to the Transferee at no additional cost to Newco or any of its Subsidiaries.

(s)

Section 7.08 of the Agreement is hereby amended by replacing “If following the Closing,” with “If, following the Closing and the applicable Deferred Closings,”.

(t)

Section 7.12(b) of the Agreement is hereby amended by replacing “no later than twelve months from the Closing Date (the “Transition Period”)” with “no later than twenty-four (24) months from the Closing Date (or, with respect to the Deferred Businesses, as soon as reasonably practicable following the Deferred Closing, but in any event no later than twenty-four (24) months from the applicable Deferred Closing Date) (the “Transition Period”)”.

(u)

Section 7.12(e) of the Agreement is hereby amended by replacing “twelve months after the Closing” with “twelve (12) months after the Closing” and replacing “during the twelve month period following the Closing” with “during the twelve (12)-month period following the Closing”.

(v)

Section 8.01 of the Agreement is hereby amended and restated as follows:

Xxxxxxx Contributed Subsidiary Business Employee, Xxxxxxx Offer Business Employees, Deferred Transfer Business Employees and Deferred TSA Transfer Business Employees. Newco shall (or shall cause the Subsidiaries of Newco to) (i) continue the employment as of the Closing of each Xxxxxxx Contributed Subsidiary Business Employee and (ii) within a reasonable period of time (but not fewer than fifteen Business Days) prior to the Applicable Transfer Time, make an offer to employ each Xxxxxxx Offer Business Employee, each Deferred Transfer Business Employee and each Deferred TSA Non-Automatic Transfer Business Employee which such offer of employment shall be contingent upon the occurrence of the Closing and effective as of the Applicable Transfer Time and that (A) in each case provides for terms consistent with the terms of this Article 8, and (B) in the case of each Deferred Transfer Business Employee and each Deferred TSA Non-Automatic Transfer Business Employee, with terms and conditions of employment substantially comparable to the terms and conditions of employment applicable to such Deferred Transfer Business Employee or such Deferred TSA Non-Automatic Transfer Business Employee, as applicable, as of immediately prior to the date of such employment offer. If it is agreed between the parties that an Xxxxxxx Offer Business Employee, a Deferred Transfer Business Employee or a Deferred TSA Non-Automatic Transfer Business Employee, as applicable, should be employed by Aspen or one of its Subsidiaries with effect from the Applicable Transfer Time (each an “Aspen Offer Employee”), Aspen shall (or shall cause its appropriate Subsidiary to) within a reasonable period of time (but not fewer than fifteen Business Days if practicable) prior to the Applicable Transfer Time, make an offer to employ such Aspen Offer Employee (x) on terms consistent with the terms of this Article 8 and (y) with terms and conditions of employment substantially comparable to the terms and conditions of employment applicable to such Aspen Offer Employee as of immediately prior to the date of such employment offer, which such offer of employment shall be contingent upon the occurrence of the Closing and effective as of the Applicable Transfer Time (each such offer, and “Aspen Qualifying Offer”). Unless a written acceptance of an offer of employment is required by Applicable Law, any Xxxxxxx Offer Business Employee, Deferred Transfer Business Employee or Deferred TSA Non-Automatic Transfer Business Employee, as applicable, who does not expressly reject Newco’s (or as it may be, Aspen’s) offer of employment prior to the Applicable Transfer Time and actually commences employment with Newco (or Aspen) or one of its Subsidiaries immediately following the Applicable Transfer Time (or such later time as may be required by Applicable Law) shall be deemed for purposes of this Agreement to have accepted such offer as of the Applicable Transfer Time. Effective as of immediately prior to the Applicable Transfer Time (or such later time as may be required by Applicable Law), Xxxxxxx shall, or shall cause its applicable Subsidiary to, terminate the employment of any Xxxxxxx Offer Business Employee, any Deferred Transfer Business Employee or any Deferred TSA Non-Automatic Transfer Business Employee, as applicable, who does not accept an offer of employment from Newco or its applicable Subsidiary (or, if applicable, Aspen or its applicable Subsidiary). Xxxxxxx shall be solely liable, and shall reimburse Newco (or Aspen) or its applicable Subsidiary for any severance, statutory or other termination-related payments or benefits paid or provided by Newco (or Aspen) or its applicable Subsidiary to any such Xxxxxxx Offer Business Employee, Deferred Transfer Business Employee or Deferred TSA Non-Automatic Transfer Business Employee who does not accept such offer of employment made in accordance with this Section 8.01; provided, however, that solely to the extent the parties determine pursuant to this Section 8.01 that Aspen or one of its Subsidiaries shall employ any applicable Aspen Offer Employee, Newco shall be solely liable, and shall reimburse Xxxxxxx or its applicable Subsidiary for any severance, statutory or other termination-related payments or benefits paid or provided by Xxxxxxx or its applicable Subsidiary to any such Aspen Offer Employee who does not receive an Aspen Qualifying Offer.

(w)

Section 8.02 of the Agreement is hereby amended and restated as follows:

Automatic Transfer Echo Business Employees and Deferred TSA Automatic Transfer Business Employees. Each of Xxxxxxx, Aspen and Newco intend that the Automatic Transfer Regulations will apply to the employment of each of the Automatic Transfer Echo Business Employees and the Deferred TSA Automatic Transfer Business Employees and the transfer of each such Automatic Transfer Echo Business Employee’s or such Deferred TSA Automatic Transfer Business Employee’s employment contract from Xxxxxxx and its applicable Subsidiaries to Newco and its Subsidiaries, effective as of the Applicable Transfer Time. If any such Automatic Transfer Echo Business Employees or such Deferred TSA Automatic Transfer Business Employee do not transfer automatically pursuant to the Automatic Transfer Regulations, Newco shall, or shall cause the relevant Subsidiary of Newco to, make an offer to employ such employee in accordance with Section 8.01 as soon as reasonably practicable following such determination and such employee shall constitute an Xxxxxxx Offer Business Employee or a Deferred TSA Non-Automatic Transfer Business Employee, respectively, for purposes of this Agreement.

(x)

Section 8.03 of the Agreement is hereby amended and restated as follows:

Retained Automatic Transfer Employees. If the contract of employment of any individual who is not an Automatic Transfer Echo Business Employee, an Xxxxxxx Offer Business Employee, a Deferred Transfer Business Employee, a Deferred TSA Automatic Transfer Business Employee, or a Deferred TSA Non-Automatic Transfer Business Employee transfers to Newco or any of its Subsidiaries pursuant to the Automatic Transfer Regulations in connection with the consummation of the transactions contemplated by the Transaction Documents, or any such individual asserts that this is the case, Newco, Aspen or their Subsidiaries shall notify Xxxxxxx as soon as reasonably practicable after becoming aware and may, where relevant, terminate the employment of such individual no later than twenty-eight days after such individual’s contract of employment transfers to Newco and Xxxxxxx will indemnify and hold harmless Newco, Aspen and their Subsidiaries, as applicable, for fifty percent of the aggregate Liabilities arising from, or relating to, (a) the employment of the individual up to the date of any such termination, (b) the termination by Newco, Aspen or any of their Subsidiaries of the contract of employment of such individual, and (c) all other Liabilities Newco, Aspen or their Subsidiaries may incur pursuant to the Automatic Transfer Regulations (including any Liability for failure to consult) in relation to such individual.

(y)

Section 8.04 of the Agreement is hereby amended and restated as follows:

Maintenance of Compensation and Benefits. Subject, and in addition, to the requirements imposed by Applicable Law (including, in the case of Automatic Transfer Echo Business Employees and Deferred TSA Automatic Transfer Business Employees, the Automatic Transfer Regulations), for a period of 12 months following the Closing Date, Newco shall provide, or shall cause its Subsidiaries to provide, Continuing Employees who remain employed by Newco and its Subsidiaries following the Applicable Transfer Time with (i) at least the same base salary or wage rate and target annual cash bonus opportunity as provided to such Continuing Employee as of immediately prior to the Applicable Transfer Time and (ii) employee benefits (excluding defined benefit pension benefits, retiree health or welfare benefits, severance or other termination-related compensation or benefits, equity-based compensation or change in control, transaction or retention bonuses (collectively, the “Excluded Benefits”)) that are substantially comparable to in the aggregate to the employee benefits (other than the Excluded Benefits) provided to such Continuing Employees under Aspen Benefits Plans (in the case of Continuing Aspen Employees) or Echo Business Benefit Plans (in the case of Continuing Echo Business Employees), as applicable, as of immediately prior to the Applicable Transfer Time; provided that in the case of any Continuing Employee whose terms and conditions of employment are subject to a collective bargaining agreement, Newco shall provide for such continued employment to be on such terms and conditions as may be required under that collective bargaining agreement.

(z)

Section 8.05 of the Agreement is hereby amended and restated as follows:

Service Credit. Subject, and in addition, to the requirements imposed by Applicable Law (including, in the case of Automatic Transfer Echo Business Employees and Deferred TSA Automatic Transfer Business Employees, the Automatic Transfer Regulations), from and after the Applicable Transfer Time, with respect to any “employee benefit plan” (as defined under Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Newco or any of its Subsidiaries (“Newco Benefit Plans”) in which any Continuing Employee becomes a participant following the Applicable Transfer Time, for purposes of determining eligibility to participate, vesting and level of benefits (but not for benefit accrual purposes, except for purposes of severance and paid time off), (i) each Continuing Aspen Employee’s service with Aspen and its Subsidiaries (as well as service with any predecessor employer, to the extent recognized by Aspen or any of its Subsidiaries prior to the Applicable Transfer Time) shall be treated as service with Newco and its Subsidiaries and (ii) each Continuing Echo Business Employee’s service with Xxxxxxx or any of its Subsidiaries (as well as service with any predecessor employer, to the extent recognized by Xxxxxxx or any of its Subsidiaries prior to the Applicable Transfer Time) shall be treated as service with Newco and its Subsidiaries, in each case (A) to the same extent such service was recognized under an analogous Aspen Benefit Plan or Echo Business Benefit Plan, respectively, and (B) to the extent that such recognition would not result in any duplication of benefits. With respect to any Newco Benefit Plans that are health or welfare benefit plans in which any Continuing Employee (and his or her eligible dependents participates) from and after the Applicable Transfer Time, (i) Newco shall waive, or shall cause its Subsidiaries to waive, any preexisting conditions limitations or exclusions, actively at work requirements and waiting periods, except to the extent that such items would not have been satisfied or waived under an analogous Aspen Benefit Plan (in the case of Continuing Aspen Employees) or Echo Business Benefit Plan (in the case of Continuing Echo Business Employees), as applicable, as of immediately prior to the Applicable Transfer Time, and (ii) Newco shall recognize, or shall cause its Subsidiaries to recognize, all co-payments, deductibles and similar expenses and out-of-pocket maximums incurred by each Continuing Employee (and his or her eligible dependents) prior to the Applicable Transfer Time during the plan year in which Applicable Transfer Time occurs for purposes of satisfying any comparable deductible and co-payment limitations and out-of-pocket requirements under the Newco Benefit Plans, to the extent recognized under an analogous Aspen Benefit Plan (in the case of Continuing Aspen Employees) or Echo Business Benefit Plan (in the case of Continuing Echo Business Employees), as applicable, as of immediately prior to the Applicable Transfer Time.

(aa)

Section 8.07 of the Agreement is hereby amended by replacing “prior to the Effective Time” with “prior to the Applicable Transfer Time”.

(bb)

Section 8.08 of the Agreement is hereby amended by replacing “effective as of the Closing” with “effective as of the Applicable Transfer Time”.

(cc)

Section 8.10 of the Agreement is hereby amended by replacing “on or after the Closing” with “on or after the Applicable Transfer Time” and replacing “prior to the Closing” with “prior to the Applicable Transfer Time”.

(dd)

Section 8.15 of the Agreement is hereby amended and restated as follows:

Newco Omnibus Incentive Plan; Assumption of Agreements. In the event that Aspen and Xxxxxxx mutually determine in good faith that Continuing Echo Business Employees will not be eligible to receive awards under the Aspen 2016 Omnibus Incentive Plan following the Closing, then, prior to the Aspen Stockholder Meeting, Newco shall approve and adopt an incentive equity plan, the principal terms of which are substantially similar to the Aspen 2016 Omnibus Incentive Plan and the final form of which (including any changes to the terms of the Aspen 2016 Omnibus Incentive Plan and the aggregate number of shares of Newco Stock to be reserved for issuance under such incentive equity plan) shall be mutually agreed to in good faith by Aspen and Xxxxxxx (the “Omnibus Incentive Plan”), and the parties shall cause such Omnibus Incentive Plan to be submitted for applicable stockholder approval. As soon as practicable following the Closing Date, Newco shall (if such stockholder approval is obtained) file an effective registration statement on Form S-8 (or other applicable form) with respect to the Newco Stock issuable under the Omnibus Incentive Plan (to the extent applicable, as adjusted by the Aspen Equity Award Exchange Ratio), and Newco shall use reasonable best efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Omnibus Incentive Plan remain outstanding. From and after the Effective Time, Newco shall assume and agree to perform the agreements set forth on Section 8.16 of the Aspen Disclosure Schedule, subject to the terms of such applicable agreements.

(ee)

Section 8.16 of the Agreement is hereby amended and restated as follows:

Echo Business Employee Census. Xxxxxxx shall update Sections 1.01(c), 1.01(d) and 1.01(e) of the Xxxxxxx Disclosure Schedule at reasonable intervals before the Closing and, solely with respect to the Deferred Transfer Business Employees, the Deferred TSA Automatic Transfer Business Employees, and the Deferred TSA Non-Automatic Transfer Business Employees, before the Applicable Transfer Time (each, a “Census Update Time”) (it being understood that the last such Census Update Time shall occur no later than five Business Days prior to the Closing Date (or, in the case of the Deferred Transfer Business Employees, the Deferred TSA Automatic Transfer Business Employees, and the Deferred TSA Non-Automatic Transfer Business Employees, the Applicable Transfer Time); provided, however, that any updates to the foregoing sections of the Xxxxxxx Disclosure Schedule at any Census Update Time (a) shall not add any individual to Section 1.01(c) of the Xxxxxxx Disclosure Schedule unless such individual (i) was primarily employed in or dedicated to the Echo Business as of the date of this Agreement or (ii) becomes primarily employed in or dedicated to the Echo Business following the date of this Agreement in the ordinary course of business consistent with past practice, (b) shall not add any individual to Section 1.01(e) or remove any individual from Section 1.01(c) of the Xxxxxxx Disclosure Schedule who is primarily employed in or dedicated to the Echo Business (other than any individual who ceases to be primarily employed in or dedicated to the Echo Business in the ordinary course of business consistent with past practice) and (c) shall not update Section 1.01(d) of the Xxxxxxx Disclosure Schedule without Aspen’s prior consent (which consent shall not be unreasonably withheld, delayed or conditioned); provided, further, that, in connection with any such updates to such sections of the Xxxxxxx Disclosure Schedule in accordance with sub-clauses (a) and (b) above, at any applicable Census Update Time, Xxxxxxx shall provide such updated schedules to Aspen for its prior review and Aspen shall have the right to provide reasonable comments on such proposed updates (which will be considered by Xxxxxxx in good faith). Notwithstanding anything to the contrary herein, Xxxxxxx may update Sections 1.01(c), 1.01(d) and 1.01(e) of the Xxxxxxx Disclosure Schedule in order to (A) reflect the hiring or termination of individuals, subject to the restrictions set forth in Section 6.01(k)(iv), and (B) to add the Dutch Xxxxxxx Employees in accordance with Section 8.18, if applicable. For the avoidance of doubt, any individual listed on Section 1.01(e) of the Xxxxxxx Disclosure Schedule shall not constitute an Echo Business Employee.

(ff)

Section 8.19 of the Agreement is hereby amended and restated as follows:

Echo Business Employee Retention Program.

(a)

On or promptly following the Applicable Transfer Time, but in any event no later than five (5) Business Days after the Applicable Transfer Time, Newco shall implement the retention program for the Continuing Echo Business Employees set forth on Section 8.19(a) of the Xxxxxxx Disclosure Schedule (including by making all applicable grants thereunder).

(b)

On or promptly following the Effective Time, but in any event no later than five (5) Business Days after the Effective Time, Xxxxxxx shall implement the retention program set forth on Section 8.19(b) of the Xxxxxxx Disclosure Schedules for the Non-Transferring TSA Employees (including by making all applicable grants thereunder), the cost of which shall be the sole responsibility of Newco and which shall constitute Xxxxxxx Assumed Liabilities.

(gg)

A new Section 8.20 of the Agreement is hereby added as follows:

Treatment of Liabilities for Non-Transferring TSA Employees, Deferred TSA Automatic Transfer Business Employees, and Deferred TSA Non-Automatic Transfer Business Employees. Notwithstanding anything to the contrary herein, with respect to (i) the individuals listed in Section 1.01(e) to the Xxxxxxx Disclosure Schedule (other than the first four individuals listed thereon) (and such other individuals as may be mutually agreed by the Parties) (such individuals, collectively, the “Non-Transferring TSA Employees”) (who, for the avoidance of doubt, shall not constitute Echo Business Employees), and (ii) the Deferred TSA Automatic Transfer Business Employees and the Deferred TSA Non-Automatic Transfer Business Employees, Newco shall be solely liable for, and shall reimburse Xxxxxxx or its applicable Subsidiary for, (A) the cost of any compensation and benefits (including any base salary, wages, commissions, incentive compensation, health or welfare benefits and other employee benefits) payable in respect of the period during which such Non-Transferring TSA Employees, Deferred TSA Automatic Transfer Business Employees, or Deferred TSA Non-Automatic Transfer Business Employees, as applicable, are providing services pursuant to the Transition Services Agreement, and (B) subject to Xxxxxxx’x obligations pursuant to Section 8.01 in respect of severance costs related to Deferred TSA Non-Automatic Transfer Business Employees who do not accept an offer of employment from Newco, any severance, statutory or other termination-related payments or benefits paid or provided consistent with past practice, by Xxxxxxx or its applicable Subsidiary to any such Non-Transferring TSA Employee or Deferred TSA Non-Automatic Transfer Business Employee, in each case which shall constitute Xxxxxxx Assumed Liabilities (clauses (A) and (B) collectively, the “TSA Employee Costs”). For the avoidance of doubt, the reimbursement by Newco of the TSA Employment Costs hereunder shall be without duplication of any amounts paid by Newco to Xxxxxxx under the Transition Services Agreement.

(hh)

Section 9.01 of the Agreement is hereby amended by replacing “use reasonable its best efforts” with “use its reasonable best efforts”.

(ii)

Section 9.02 of the Agreement is hereby amended by adding “or the Deferred Closings,” after “incurred with respect to the Pre-Closing Restructuring,”.

(jj)

The first paragraph of Section 10.01 of the Agreement is hereby amended by adding “(excluding the Deferred Closings)” after “to consummate the Transactions”.

(kk)

The first paragraph of Section 10.02 of the Agreement is hereby amended by adding “(excluding the Deferred Closings)” after “to consummate the Transactions”.

(ll)

The first paragraph of Section 10.03 of the Agreement is hereby amended by adding “(excluding the Deferred Closings)” after “to consummate the Transactions”.

(mm)

Section 10.03(d) of the Agreement is hereby amended by changing “Section 7.05” to “Section 7.05(a)”.

(nn)

Section 12.02 of the Agreement is hereby amended by deleting “and” at the end of subsection (a), adding “; and” at the end of subsection (b), and adding the following new subsection (c):

any Liability to the extent resulting from or arising in connection with (i) the legal ownership and operation of each Deferred Business from and after the Effective Time by Xxxxxxx or its Affiliates or (ii) the employment, or termination of employment, of each Deferred Transfer Business Employee from and after the Effective Time, in each case in the manner required by Section 7.05(e) (including any Liabilities related to (x) any compensation or benefits (including any base salary, wages, commissions, incentive compensation, health or welfare benefits or other employee benefits, severance or other termination-related payments or benefits) in respect of any Deferred Transfer Business Employee or (y) the employment or termination of employment of any Deferred Transfer Business Employee); provided that this Section 12.02(c) does not apply to any Liability as a result of or related to gross negligence or willful misconduct on the part of Xxxxxxx or its Affiliates. For the avoidance of doubt, this Section 12.02(c) shall not limit the generality of Newco’s assumption of Xxxxxxx Assumed Liabilities.

(oo)

Section 13.02 of the Agreement is hereby amended and restated as follows:

Survival of Representations, Warranties and Agreements. The representations, warranties, covenants and agreements contained herein and in any certificate or other writing delivered pursuant hereto shall not survive the Effective Time, except for (a) the representations and warranties set forth in Section 3.11, Section 4.09, Section 4.13(d)(i) and Section 4.13(d)(iii), which shall survive the Closing until the date that is eighteen months after the Closing Date, (b) and the representations and warranties set forth in Section 4.13(d)(ii) and Section 4.13(d)(iv), which shall survive the Closing, with respect to each Deferred Business, until the date that is eighteen months after the applicable Deferred Closing Date and (c) such covenants or agreements that by their terms are to be performed (in whole or in part) after the Effective Time, which shall survive the Closing until fully performed in accordance with their terms. For clarity, covenants and agreements under Section 12.01(a) and 12.02 shall survive indefinitely. Any claim for indemnification under Article 12 asserted in writing prior to the expiration of any such survival period as provided in this Section 13.02 shall have been timely made for purposes of this Section 13.02 such that the representation, warranty, covenant, agreement or obligation that is the subject of such claim, to the extent of such claim only, shall survive until such claim has been fully and finally resolved in accordance with the terms of this Agreement.

Section 3. Amendment to the Xxxxxxx Disclosure Schedule.

(a)

The content of Annex 1.01(c)(i) to the Xxxxxxx Disclosure Schedule is hereby amended and replaced in its entirety with the content of Schedule 1 hereto.

(b)

The content of Section 1.01(e) of the Xxxxxxx Disclosure Schedules is hereby amended and replaced in its entirety with the content of Schedule 2 hereto.

(c)

The Xxxxxxx Disclosure Schedules are amended hereby by adding a new Section 1.01(m) thereof which shall have the text as set forth on Schedule 3 hereto.

(d)

The Xxxxxxx Disclosure Schedules are amended hereby by adding a new Section 4.14(d) thereof which shall have the text as set forth on Schedule 4 hereto.

(e)

Section 6.05 of the Xxxxxxx Disclosure Schedules is hereby amended by adding new Items 3 and 4 which shall have the text as set forth on Schedule 5 hereto.

(f)

The Xxxxxxx Disclosure Schedules are amended hereby by adding a new Section 7.05 thereof which shall have the text as set forth on Schedule 6 hereto.

(g)

The content of Annex 4.14(a)-1 to the Xxxxxxx Disclosure Schedules is hereby amended and replaced in its entirety with the content of Schedule 7 hereto.

(h)

The content of Annex 4.14(a)-2 to the Xxxxxxx Disclosure Schedules is hereby amended and replaced in its entirety with the content of Schedule 8 hereto.

(i)

The Xxxxxxx Disclosure Schedules are hereby amended by renaming Section 8.19 of the Xxxxxxx Disclosure Schedules as Section 8.19(a) of the Xxxxxxx Disclosure Schedules.

(j)

The Xxxxxxx Disclosure Schedules are hereby amended by adding a new Section 8.19(b) thereof which shall have the text as set forth on Schedule 9 hereto.

Section 4. Amendment to Exhibits. Each of Exhibit B (Form of Stockholders Agreement), Exhibit C (Form of Tax Matters Agreement), Exhibit D (Form of Transition Services Agreement) and Exhibit I (Pre-Closing Restructuring Plan) is hereby amended and replaced in its entirety with the content of Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0 and Exhibit I-1, respectively, hereto.

Section 5. Conforming Section References. All references and cross-references in the Agreement shall be revised as necessary to be consistent with the revisions to the Agreement set forth in this Amendment.

Section 6. Effect of Amendment. From and after the date hereof, each reference in the Agreement to “this Agreement,” “hereof,” “hereunder” or words of like import referring to the Agreement (or any schedule thereof) shall be deemed a reference to the Agreement (and such schedule) as amended hereby. The Parties agree that all references in the Agreement to “the date hereof” or “the date of this Agreement” shall refer to the Original Execution Date. Except as and to the extent expressly modified by this Amendment, the Agreement is not otherwise being amended, modified or supplemented. The Agreement shall remain in full force and effect in accordance with its terms.

Section 7. Other Provisions. This Amendment hereby incorporates the provisions of Sections 1.02 (Other Definitional and Interpretive Provisions), 13.03 (Amendments and Waivers), 13.05 (Disclosure Schedules), 13.06 (Binding Effect; Benefit; Assignment), 13.07 (Governing Law), 13.08 (Jurisdiction), 13.09 (Counterparts; Effectiveness); 13.10 (Entire Agreement), 13.11 (Severability) and 13.12 (Specific Performance) of the Agreement as if fully set forth herein, mutatis mutandis.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

ASPEN TECHNOLOGY, INC.

By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	President and Chief Executive Officer

XXXXXXX ELECTRIC CO.

By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	Vice President

EMR WORLDWIDE INC.

By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	Vice President

EMERSUB CX, INC.

By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	Vice President

EMERSUB CXI, INC.

By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	Vice President

[Signature Page to Amendment No. 2 to the Transaction Agreement and Plan of Merger]

Exhibit B-1

[Form of Stockholders Agreement]

		PAGE
ARTICLE I
DEFINITIONS

Section 1.1.	Certain Definitions	4
Section 1.2.	Other Terms	8

ARTICLE II
TERM

Section 2.1.	Term and Termination	9

ARTICLE III
CORPORATE GOVERNANCE MATTERS

Section 3.1.	Initial Board Composition	9
Section 3.2.	Subsequent Board Composition	10
Section 3.3.	Committees of the Company Board	11
Section 3.4.	Xxxxxxx Agreement to Vote	12
Section 3.5.	Chief Executive Officer	12
Section 3.6.	Consent Rights	12
Section 3.7.	Modifications to Business Strategy	14

ARTICLE IV
OTHER AGREEMENTS

Section 4.1.	Confidentiality	15
Section 4.2.	Restrictions on Transferability and Acquisitions	16
Section 4.3.	Preemptive Rights	17
Section 4.4.	Percentage Maintenance Rights	19
Section 4.5.	Related Party Transactions	20
Section 4.6.	Non-Compete	20
Section 4.7.	No Solicitation of Employees	21
Section 4.8.	Intercompany Agreements	21
Section 4.9.	Corporate Opportunity	21
Section 4.10.	Nasdaq	22

ARTICLE V
FINANCIAL AND OTHER INFORMATION

Section 5.1.	Annual, Quarterly and Monthly Financial Information; Xxxxxxx’x Operating Reviews	23
Section 5.2.	Xxxxxxx Public Filings	23
Section 5.3.	Other Financial Reporting and Compliance Matters	24
Section 5.4.	Production of Witnesses; Records; Cooperation	26
Section 5.5.	Privilege	26

		PAGE
ARTICLE VI
DISPUTE RESOLUTION

Section 6.1.	General Provisions	26
Section 6.2.	Consideration by Senior Executives	27
Section 6.3.	Attorneys’ Fees and Costs	27

ARTICLE VII
MISCELLANEOUS

Section 7.1.	Corporate Power	27
Section 7.2.	Governing Law	27
Section 7.3.	Notices	27
Section 7.4.	Severability	28
Section 7.5.	Entire Agreement; No Other Representations and Warranties	29
Section 7.6.	Assignment; No Third-Party Beneficiaries	29
Section 7.7.	Amendment; Waiver	29
Section 7.8.	Interpretations	29
Section 7.9.	Exercise of Rights	29
Section 7.10.	Privileged Matters	30
Section 7.11.	Counterparts; Electronic Transmission of Signatures	31
Section 7.12.	Specific Performance	31

Term			Section
Agreement			Preamble
Audit Committee			3.2(e)
Company			Preamble
Company Auditors			5.3(d)(ii)
Company Confidential Information			4.1(a)
Company Public Documents			5.3(b)
Compensation Committee			3.1
Compliance Audit			5.3(g)
Compliance Program			5.3(g)
Disclosure Committee			5.3(f)
Dispute			6.1(a)
Xxxxxxx			Preamble
Xxxxxxx Auditors			5.3(d)(ii)

Term			Section
Xxxxxxx Confidential Information			4.1(b)
Xxxxxxx Designee			3.2(a)
Xxxxxxx Law Firms			7.10(a)
Xxxxxxx Parent			Preamble
Xxxxxxx Public Filings			5.2
Election Period			4.3(c)
Initial Notice			6.2
Issuance Notice			4.3(b)
Lead Independent Director			3.2(i)
Lockup Period			4.2(a)
M&A Committee			3.3(a)
Nominating & Governance Committee			3.2(e)
Non-Xxxxxxx Designee			3.2(e)
Non-Xxxxxxx Director			3.2(e)
Non-Privileged Deal Communications			7.10(c)
Old Aspen Tech			Preamble
Old Aspen Tech Board			3.1(i)
Old Aspen Tech Chair			3.1(i)
Other Committees			3.3(d)(i)
Other Stockholders			4.2(c)
Percentage Maintenance Share			4.3(b)
Pre-Agreed Procedures			4.5(c)(i)
Pre-Closing Related Party Transactions			4.5(a)
Privilege			5.5
Privileged Communications			7.10(a)
Privileged Deal Communications			7.10(b)
Proposed Purchase Price			4.3(b)(ii)
Related Party Transactions Policy			4.5(b)
Representatives			4.1(a)
Response			6.2
Significant Subsidiary			3.6(a)(i)
Standstill Period			4.2(b)(i)
Transaction Agreement			Preamble

If to Xxxxxxx Parent or Xxxxxxx, to:

	Xxxxxxx Electric Co.
	8000 West Florissant Avenue
	P.O. Box 4100
	St. Louis, MO 63136
	Attention	[name]
	Fascimile No.:	[number]
	E-mail:	[address]

with a copy to (which shall not constitute notice):

	Xxxxx Xxxx & Xxxxxxxx LLP
	450 Lexington Avenue
	New York, NY 10017
	Attention:	Xxxxxxx X. Xxxxx
		Xxxx X. Xxxxxxxx
		Xxxxxx Xxxx
	Facsimile No.:	(000) 000-0000
	E-mail:	xxxxxxx.xxxxx@xxxxxxxxx.xxx
		xxxx.xxxxxxxx@xxxxxxxxx.xxx
		xxxxxx.xxxx@xxxxxxxxx.xxx

If to the Company, to:

	Aspen Technology, Inc.
	20 Xxxxxx Drive
	Bedford, MA 01703
	Attention:	SVP and General Counsel
	Email:	xxxxxxxxxxxx@xxxxxxxxx.xxx

with copies to (which shall not constitute notice):

	Aspen Technology, Inc.
	20 Xxxxxx Drive
	Bedford, MA 01703
	Attention:	President and CEO
	Email:	xxxxxxxxxxxx@xxxxxxxxx.xxx

and

	Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
	500 Boylston Street
	Boston, MA 02116
	Attention:	Xxxxxx Xxxxxxxx
		Xxxxx Xxxxxxx
	Facsimile No.:	(000) 000-0000
	Email:	xxxxxx.xxxxxxxx@xxxxxxx.xxx
		xxxxx.xxxxxxx@xxxxxxx.xxx

		PAGE
Section 1.	Definitions	1
Section 2.	Sole Tax Sharing Agreement	5
Section 3.	Liability for Taxes	5
Section 4.	Preparation and Filing of Tax Returns	7
Section 5.	Apportionment of Earnings and Profits and Tax Attributes	8
Section 6.	Utilization of Tax Attributes	9
Section 7.	Certain Tax Benefits	10
Section 8.	Certain Tax Elections	10
Section 9.	Certain Representations and Covenants	10
Section 10.	Indemnities	14
Section 11.	Payments	15
Section 12.	Guarantees	15
Section 13.	Communication and Cooperation	15
Section 14.	Audits and Contests	16
Section 15.	Deferred Business Tax Matters	17
Section 16.	Notices	17
Section 17.	Costs and Expenses	18
Section 18.	Effectiveness; Termination and Survival	18
Section 19.	Specific Performance	18
Section 20.	Construction	19
Section 21.	Entire Agreement; Amendments and Waivers	19
Section 22.	Governing Law	20
Section 23.	Jurisdiction	20
Section 24.	WAIVER OF JURY TRIAL	20
Section 25.	Dispute Resolution	20
Section 26.	Counterparts; Effectiveness; Third-Party Beneficiaries	21
Section 27.	Successors and Assigns	21
Section 28.	Authorization	21
Section 29.	Change in Tax Law	21
Section 30.	Performance	21

Term			Section
Due Date			Section 11(a)
Final Allocation			Section 5(b)
OSI Acquisition			Section 9(c)(i)
OSI Acquisition Date			Section 9(c)(i)
OSI Covered Tax Period			Section 9(c)(i)
OSI Pass-Through Tax Contest			Section 9(c)(ii)
OSI Pass-Through Tax Return			Section 9(c)(i)
OSI Sellers			Section 9(c)(iii)
Past Practices			Section 4(e)(i)
Paradigm Software Business			Schedule A-2
Proposed Allocation			Section 5(b)
PTI			Section 5(b)
Roxar Software Business			Schedule A-1
Specified OSI Refunds			Section 9(c)(iii)
Spinco			Section 9(a)(i)
Tax Arbiter			Section 25
Tax Refund Recipient			Section 7(c)

if to Newco or the Newco Group, to:

	Aspen Technology, Inc.
	[•]
	Attention: [•]
	Email: [•]

	with a copy (which shall not constitute notice) to:

	Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
	500 Boylston Street
	Xxxxxx, Xxxxxxxxxxxxx 00000
	Attention:	Xxxxxx Xxxxxxxx
		Xxxxx Xxxxxxxxx
		Xxxxx Xxxxxxx
	E-mail:	xxxxxx.xxxxxxxx@xxxxxxx.xxx
		xxxxx.xxxxxxxxx@xxxxxxx.xxx
		xxxxx.xxxxxxx@xxxxxxx.xxx

XXXXXXX ELECTRIC CO., on its own behalf and on behalf of the members of the Xxxxxxx Group

By:
	Name:	[•]
	Title:	[•]

ASPEN TECHNOLOGY, INC. (formerly known as Emersub CX, Inc.) on its own behalf and on behalf of the members of the Newco Group

By:
	Name:	[•]
	Title:	[•]

AMENDMENT NO. 2 TO TRANSACTION AGREEMENT AND PLAN OF MERGER

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