Exhibit 99.7
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT dated as of February 8, 2002 is entered into
between Aspen Technology, Inc., a Delaware corporation ("Aspen"), and Accenture
LLP, an Illinois general partnership registered as a limited liability
partnership ("Accenture").
PRELIMINARY STATEMENT
A. Contemporaneously with their execution and delivery of this Agreement,
Aspen and Accenture are entering into agreements pursuant to which, among other
things, Accenture is agreeing to provide Aspen with a license to named
intellectual property, access to functional and technical personnel of
Accenture, and a specified work product and Aspen is agreeing to issue to
Accenture shares of common stock of Aspen at the times, and in the numbers,
determined in accordance with such Agreement.
B. In anticipation of Accenture becoming a stockholder of Aspen, the
parties hereto deem it in their mutual best interests to provide for certain
matters with respect to the governance of Aspen and are entering into this
Agreement in order to effectuate that purpose.
NOW, THEREFORE, in consideration of the premises herein contained, the
parties hereby agree as follows:
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below:
"ACCENTURE" shall include the permitted successors and permitted assigns of
Accenture pursuant to Section 4.3.
"AFFILIATE" shall mean, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such Person. As used in this definition, "control" (including its
correlative meanings, "controlled by" and "under common control with") shall
mean the possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"THIS AGREEMENT" shall mean this Agreement as in effect on the date hereof
and as hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
"ASPEN" shall include the permitted successors and permitted assigns of
Aspen pursuant to Section 4.3.
"ASPEN COMMON" shall mean the common stock, par value $.10 per share, of
Aspen and any securities of Aspen into which such common stock may be
reclassified, exchanged or converted.
"BENEFICIALLY OWN" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act, except that a Person shall be deemed to "Beneficially Own" all
securities that such Person has a right to acquire, whether such right is
exercisable immediately or only after the passage of time (and without any
additional condition).
"CHANGE IN CONTROL OF ASPEN" shall mean any of the following: (i) a merger,
consolidation or other business combination or transaction to which Aspen is a
party if the stockholders of Aspen immediately prior to the effective date of
such merger, consolidation or other business combination or transaction, as a
result of such merger, consolidation or other business combination or
transaction, do not have Beneficial
Ownership of voting securities representing 50% or more of the Total Current
Voting Power of the surviving corporation (or its parent corporation) following
such merger, consolidation or other business combination or transaction; (ii) an
acquisition by any Person (other than the Restricted Parties and their
Affiliates or any 13D Group to which any of them is a member) of Beneficial
Ownership of Voting Stock of Aspen representing 25% or more of the Total Current
Voting Power of Aspen, (iii) a sale of assets of Aspen to any Person or Persons
(other than Restricted Parties and their Affiliates or any 13D Group to which
any of them is a member) for a total price in excess of 25% of the market value
of the outstanding Aspen Common (calculated using the last sale price of the
Aspen Common on the last full trading day immediately preceding the date such
sale transaction is entered into); or (iv) a liquidation or dissolution of
Aspen.
"DISINTERESTED STOCKHOLDERS" shall mean the stockholders of Aspen who are
not (i) a Restricted Party, (ii) an Affiliate of a Restricted Party, (iii) a
member of a 13D Group in which a Restricted Party or an Affiliate of a
Restricted Party is also a member, or (iv) a director or officer of Aspen or an
Affiliate of such director or officer.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"IP AGREEMENTS" shall mean the License Agreement and the Development
Agreement, each dated as of the date hereof between Aspen and Accenture, as such
agreements may be amended from time to time.
"PERSON" shall mean an individual, corporation, unincorporated association,
partnership, group (as defined in Section 13(d)(3) of the Exchange Act), trust,
joint stock company, joint venture, business trust or unincorporated
organization, limited liability company, any governmental entity or any other
entity of whatever nature.
"REPRESENTATIVES" shall mean, with respect to any Person, such Person's
directors, officers, employees, agents and other representatives acting in such
capacity.
"RESTRICTED PARTIES" shall mean each of (i) Accenture and each Subsidiary
of Accenture and (ii) any Affiliate of any Person that is a Restricted Party
described in clause (i) if (and only if) such Restricted Party has the right or
power (acting alone or solely with other Restricted Parties) to either cause
such Affiliate to comply with or prevent such Affiliate from not complying with
all of the terms of this Agreement that are applicable to Restricted Parties.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SUBSIDIARY" shall mean, as to any Person, a corporation, partnership,
limited liability company, joint venture or other entity of which shares of
stock or other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the Board of Directors or
other managers of such corporation, partnership or other entity are at the time
owned, directly or indirectly through one or more intermediaries (including
other Subsidiaries), or both, by such Person.
"THIRD PARTY TENDER OFFER" shall mean a bona fide public offer subject to
the provisions of Regulation 14D under the Exchange Act (or any success or
regulation, rule or statute) by a Person (which is not made by and does not
include any of Aspen, a Restricted Party or any Affiliate of any of them or any
13D Group that includes Aspen, a Restricted Party or any Affiliate of them) to
purchase or exchange for cash or other consideration any Voting Stock and which
consists of an offer to acquire 25% or more of the then Total Current Voting
Power of Aspen.
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"13D GROUP" means any group (within the meaning of Section 13(d) of the
Exchange Act) formed for the purpose of acquiring, holding, voting or disposing
of Voting Stock.
"TOTAL CURRENT VOTING POWER" shall mean, with respect to any corporation,
the total number of votes that may be cast in the election of members of the
Board of Directors of such corporation if all securities entitled to vote in the
election of such directors (excluding shares of preferred stock that are
entitled to elect directors only upon the occurrence of customary events of
default) are present and voted.
"TRANSFER" shall have the meaning set forth in Section 3.2.
"ULTIMATE PARENT ENTITY" shall mean, with respect to any Person (the
"Subject Person"), the Person (if any) that (i) owns, directly or indirectly
through one or more intermediaries, or both, shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of the Subject
Person and (ii) is not itself a Subsidiary of any other Person or is a natural
person.
"VOTING STOCK" shall mean shares of Aspen Common and any other securities
of Aspen having the ordinary power to vote in the election of directors of
Aspen.
2. CORPORATE GOVERNANCE
2.1. BOARD OF DIRECTORS
Subject to Section 2.2, the Restricted Parties will vote (or execute a
written consent in lieu of) in each stockholder vote (or written consent in lieu
of) for the election of directors of Aspen all of their Voting Stock:
(a) if there is no bona fide proxy contest for the election of
directors, in favor of the management slate that is included in
the proxy statement (or consent solicitation or similar document)
of Aspen relating to the election of directors; or
(b) if there is a bona fide proxy contest for the election of
directors, at the election of each Restricted Party either (i) in
favor of the management slate that is included in the proxy
statement (or consent solicitation or other similar document) of
Aspen relating to the election of directors or (ii) in the same
proportion as all votes cast by Disinterested Stockholders.
2.2. TERMINATION. The provisions of Section 2.1 shall terminate upon the
earliest to occur of (i) the first date after June 30, 2004 on which the
Restricted Parties' aggregate Beneficial Ownership of Voting Stock is less than
five percent of the Total Current Voting Power of all outstanding Voting Stock,
(ii) June 30, 2006 and (iii) a Change in Control of Aspen.
3. STANDSTILL AGREEMENTS
3.1. STANDSTILL
(a) Subject to Section 3.1(d), no Restricted Party will, directly or
indirectly, nor will it authorize or permit any of its Representatives to,
in each case unless specifically permitted by this agreement or authorized
or consented to do so in writing in advance by Aspen:
(i) acquire or agree, offer, seek or propose to acquire, or
cause to be acquired, Beneficial Ownership of any Voting
Stock of Aspen or any of its Subsidiaries, or any options,
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warrants or other rights (including any convertible or
exchangeable securities) to acquire any such Voting Stock in
excess of such Restricted Party's (or Representatives', as
the case may be) Beneficial Ownership of Voting Stock as of
the date of this Agreement other than pursuant to the IP
Agreements;
(ii) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined in Rule 14a-1 under the
Exchange Act) with respect to the voting of any securities
of Aspen or any of its Subsidiaries;
(iii) deposit any securities of Aspen or any of its Subsidiaries
in a voting trust or subject any such securities to any
arrangement or agreement with any Person (other than one or
more Restricted Parties);
(iv) form, join, or in any way become a member of a 13D Group
with respect to any voting securities of Aspen or any of its
Subsidiaries (other than a "group" consisting solely of
Restricted Parties);
(v) arrange any financing for, or provide any financing
commitment specifically for, the purchase of any voting
securities or securities convertible or exchangeable into or
exercisable for any voting securities or assets of Aspen or
any of its Subsidiaries, except for such assets as are then
being offered for sale by Aspen or such Subsidiary;
provided, however, that this clause (v) shall not apply to
any such financing arrangements or commitments to the extent
involving a Transfer of Aspen Common Beneficially Owned by a
Restricted Party to any Person that is not a Restricted
Party;
(vi) seek to propose or propose, whether alone or in concert with
other Restricted Parties, any tender offer, exchange offer,
merger, business combination, restructuring, liquidation,
recapitalization or similar transaction involving Aspen or
any of its Subsidiaries;
(vii) nominate any person as a director of Aspen who is not
nominated by the then incumbent directors, or propose any
matter to be voted upon by the stockholders of Aspen;
(viii) solicit, initiate, encourage or knowingly or intentionally
facilitate the taking of any action by any Affiliate of a
Restricted Party (that is not itself a Restricted Party)
that would be prohibited by this Section 3.1 if that
Affiliate were a Restricted Party; or
(ix) publicly announce or disclose any intention, plan or
arrangement inconsistent with the foregoing.
Notwithstanding the foregoing, a Restricted Party shall not be prohibited from
taking any action described in clauses (i) through (ix) to the extent such
action is taken in response to, and in competition with, a similar action that
has been undertaken by a Person who is not a Restricted Party.
(b) No Restricted Party will, nor will it authorize or permit any of its
respective Representatives to, take any action that would require Aspen to make
a public announcement regarding any of the matters set forth in Section 3.1(a).
(c) Anything in this Section 3.1 to the contrary notwithstanding, this
Section 3.1 shall not prohibit or restrict any of the following: (i) the voting
of the Restricted Parties' Voting Stock, subject to Section 2.1 or (ii) any
disclosure pursuant to Section 13(d) of the Exchange Act which a Restricted
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Party reasonably believes, based on the advice of outside counsel, is required
in connection with any action taken by a Restricted Party pursuant to
Section 3.1(b).
(d) The foregoing provisions of this Section 3.1 shall apply only on such
dates, if any, on which the Restricted Parties' aggregate Beneficial Ownership
of Voting Stock is greater than five percent of the Total Current Voting Power
of all outstanding Voting Stock and shall terminate in any event as of the
earlier to occur of (i) June 30, 2006 and (ii) a Change in Control of Aspen.
3.2. RESTRICTIONS.
(a) The Restricted Parties shall not, directly or indirectly sell,
transfer or otherwise dispose of (collectively, "Transfer") any shares of Aspen
Common Beneficially Owned by such Persons or any legal or beneficial interest
therein except for Transfers: (i) to Persons who agree to be Restricted Parties
bound by the provisions of this Agreement in a written instrument delivered to
Aspen in form and substance reasonably acceptable to Aspen, (ii) that have been
consented to in writing by Aspen, (iii) pursuant to a Third Party Tender Offer,
(iv) pursuant to a merger, consolidation or reorganization to which Aspen is a
party, (v) in a bona fide public distribution or bona fide underwritten public
offering (including pursuant to the exercise of rights granted in the
Registration Rights Agreement dated as of the date hereof between Aspen and
Accenture, as it may be amended from time to time (the "Registration Rights
Agreement")) or under a Shelf Registration under the Registration Rights
Agreement, (vi) pursuant to Rule 144 of the Securities Act or pursuant to a
privately negotiated transaction or (vii) pursuant to bona fide "cashless
collar" hedging or other hedging transaction; provided that, in the case of any
Transfer pursuant to clause (vi), such Transfer does not result in, to the
knowledge of the Restricted Parties after reasonable inquiry, any other Person
acquiring, after giving effect to such Transfer, Beneficial Ownership,
individually or in the aggregate with such Person's Ultimate Parent Entity,
Subsidiaries and Affiliates, of more than ten percent of the total number of
shares of Aspen Common then outstanding. In regard to any Transfer in a
privately negotiated transaction contemplated by clause (vi) of this Section
3.2(a), Restricted Parties shall provide that their brokers not arrange for any
such Transfer to any Person that, with such Person's Ultimate Parent Entity,
Subsidiaries and Affiliates, Beneficially Owns five percent or more of the total
number of shares of Aspen Common, it being understood that such determination
shall be made based solely upon a review of publicly available filings made with
respect to Aspen on Forms 13D and 13G under the Exchange Act. Furthermore, a
Restricted Party shall give Aspen notice two trading days (or, if such notice
period is not reasonably practicable in connection with a particular Transfer,
such shorter period as is reasonably practicable) prior to any Transfer of a
number of shares of Aspen Common in excess of the greater of (x) 100,000 shares
of Aspen Common or (y) 50% of the average daily reported volume of trading in
the Aspen Common on all national securities exchanges and/or reported through
the automated quotation system of a registered securities association for the
five trading days preceding the giving of such notice. It is understood that the
notice provided for in the preceding sentence is solely for the purpose of
allowing Aspen an opportunity to discuss with the Restricted Party making the
Transfer the manner in which the offer and sale of the Aspen Common is
contemplated to be made and the potential to minimize a disruption, if any, in
the market for the Aspen Common as a result of such Transfer.
(b) If any Restricted Party decides to dispose of any of the Aspen Common,
each Restricted Party understands and agrees that it may do so only pursuant to
an effective registration statement under the Securities Act or pursuant to an
exemption from registration under the Securities Act. Each Restricted Party
agrees to the imprinting, so long as appropriate, of substantially the following
legends on certificates representing any of the securities referenced in the
preceding sentence.
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW, AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A STOCKHOLDER AGREEMENT
DATED AS OF FEBRUARY 8, 2002 BETWEEN ASPEN TECHNOLOGY, INC. AND
ACCENTURE LLP."
The legend set forth above shall be removed if and when (i) the securities
represented by such certificate are disposed of pursuant to an effective
registration statement under the Securities Act or (ii) Accenture delivers
to Aspen an opinion of counsel reasonably acceptable to Aspen to the effect
that such legends are no longer necessary.
(c) The provisions of Section 3.2(a) shall apply only on such dates,
if any, on which the Restricted Parties' aggregate Beneficial Ownership of
Voting Stock is greater than five percent of the Total Current Voting Power
of all outstanding Voting Stock and shall terminate in any event as of the
second anniversary of the date of this Agreement.
3.3. CERTAIN PERMITTED TRANSACTIONS AND COMMUNICATIONS. Notwithstanding the
foregoing, this Agreement shall not prohibit (a) the consummation of any
transaction expressly provided for in the IP Agreements, (b) the acquisition,
holding or sale of securities or rights in the ordinary course of business by
any employee benefit plan whose trustees, investment managers or similar
advisors are not Affiliates of any Restricted Party or (c) officers and
employees of the Restricted Parties from communicating with officers of Aspen or
its Affiliates on matters related to or governed by the IP Agreements or other
operational matters, or the Restricted Parties from communicating with the Board
of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer or the Chief Financial Officer of Aspen, so long as any such
communication is conveyed in confidence, would not require public disclosure by
the Restricted Parties or by Aspen, and is not intended to (i) elicit, and, in
the reasonable belief (based on the advice of outside counsel) of the Restricted
Party making such communication, does not require the issuance of, a public
response by Aspen or (ii) otherwise circumvent the provisions of Section 3.2.
4. GENERAL
4.1. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or
terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of Aspen and Accenture. Any such
amendment, termination or waiver effected in accordance with this Section 4.1
shall be binding on all parties hereto, even if they do not execute such
consent. No waiver by any party hereto with respect to any condition or breach
hereunder shall be deemed to extend to any prior or subsequent condition or
breach hereunder or affect in any way any rights arising by virtue of any prior
or subsequent condition or breach. No failure on the part of any parties hereto
to exercise, and no delay in exercising any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right.
4.2. CONSTRUCTION
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(a) The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against a party hereto.
(b) The term "including" as used herein shall not be construed so as to
exclude any other thing not referred to or described.
(c) References herein to "Sections" shall be deemed to be to sections of
this Agreement, unless otherwise specified.
4.3. ENTIRE AGREEMENT; SUCCESSORS. This Agreement constitutes the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
Accenture and any other Restricted Party that agrees to be bound by the terms
hereof may not assign any of its rights or delegate any of its duties under this
Agreement except to another Restricted Party that confirms in writing that it is
bound by the terms of this Agreement. Aspen may not assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of Accenture, provided that in the event of any merger or consolidation
of Aspen with any Person in which the holders of Aspen Common receive securities
of any other Person (the "Successor Issuer") Aspen may assign all of its rights
and delegate all of its obligations under this Agreement to such Successor
Issuer in which event the Successor Issuer will become "Aspen" for all purposes
of this Agreement. Any purported assignment in violation of this Section shall
be void. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any Person other than the Restricted Parties (who shall be
third party beneficiaries of this Agreement entitled to the benefit of, and to
enforce, its terms) and Aspen and their respective successors, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Restricted
Parties and Aspen and their respective successors, and for the benefit of no
other Person. No purchaser of Aspen Common from a Restricted Party (other than
another Restricted Party) shall be deemed to be a successor or assignee by
reason merely of such purchase.
4.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of New York. THE PARTIES HERETO
WAIVE ANY RIGHT THEY MAY HAVE, AND AGREE NOT TO DEMAND, A TRIAL BY JURY.
4.5. NOTICES. All notices, instructions, demands, claims, requests and
other communications given hereunder or in connection herewith shall be in
writing. Any such communication shall be sent either (a) by registered or
certified mail, return receipt requested, postage prepaid, or (b) via a
reputable nationwide overnight courier service, in each case to the address set
forth below. Any such communication shall be deemed to have been delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service.
To Aspen: Aspen Technology, Inc.
Xxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617.949.1722
Attention: Chief Executive Officer and General Counsel
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With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617.526.5000
Attention: Xxxx X. Xxxxxxx
To Accenture: Accenture LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx
With copies to: Accenture LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal and Commercial Department
Accenture LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: 312.652.8136
Attention: General Counsel
Any party hereto may give any notice, instruction, demand, claim, request or
other communication hereunder using any other means (including facsimile
transmission, personal delivery, expedited courier, messenger service, telex,
ordinary mail or electronic mail), but no such communication shall be deemed to
have been duly given unless and until it actually is received by the party for
which it is intended. Any party hereto may change the address to which notices,
instructions, demands, claims, requests and other communications hereunder are
to be delivered by giving the other parties hereto notice in the manner set
forth in this Section 4.5.
4.6. SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any circumstances in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
circumstances or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified.
4.7. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in addition to any other
remedy to which they are entitled at law or in equity.
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4.8. SIGNATURES. This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which together shall constitute
one and the same instrument. This Agreement may be executed by facsimile
signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
ASPEN TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Senior Vice President, Finance
and Chief Financial Officer
ACCENTURE LLP
By: /s/ Xxxxx X. Xxxx
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Title: Partner
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