13D Filing: Elliott Associates, L.P. and Advisory Board Co (ABCO)

(b)        Prior to the termination of this Agreement, each Stockholder covenants not to enter into any understanding or agreement with any Person to vote or give instructions with respect to the Stockholder’s Subject Shares that would reasonably be expected to result in a breach of Section 3(a).

(c)        Solely in the event of a failure by a Stockholder act in accordance with such Stockholder’s obligations as to voting pursuant to Section 3(a) prior to the termination of this Agreement, such Stockholder hereby irrevocably (until the termination of this Agreement) grants to, and appoints, Parent, and any individual designated in writing by Parent, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares in a manner consistent with Section 3(a). Each Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.  Each Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(c) is given in connection with the execution of the Merger Agreement and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Each Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Each Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Parent agrees not to exercise the proxy granted herein for any purpose other than the purposes describe in this Agreement. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, each such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(c).

4.       No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of, or with respect to, any Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Stockholders, and this Agreement shall not confer any right, power or authority upon Parent or any other Person (a) to direct the Stockholders in the voting of any of the Subject Shares, except as otherwise specifically provided herein, or (b) in the performance of any of the Stockholders’ duties or responsibilities as stockholders or officers or directors, as the case may be, of the Company.

5.       Representations, Warranties and Other Agreements of the Stockholders. Each Stockholder hereby represents and warrants to Parent as of the date hereof:

(a)        (i) the Stockholder is the beneficial owner of, and has good, valid and marketable title to, the Subject Shares set forth on Schedule I, (ii) the Stockholder has sole voting power, and sole power of disposition, in each case either individually or through the Stockholder’s representatives or Affiliates, with respect to all of its Subject Shares, (iii) the Subject Shares owned by the Stockholder are all of the equity securities of the Company owned, either of record or beneficially, by the Stockholder, (iv) the Subject Shares owned by the Stockholder are free and clear of all Liens, other than any permitted Liens or Liens created by this Agreement, as imposed by applicable securities Laws or not material to the Stockholder’s performance of its obligations under this Agreement and (v) the Stockholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Shares;