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

(b)        the Stockholder has full capacity, power and authority to make, enter into and carry out the terms of this Agreement applicable to the Stockholder;

(c)        the Stockholder agrees not to bring, commence, institute, maintain, prosecute, participate in or voluntarily aid any action, claim, suit or cause of action, in law or in equity, in any court or before any Governmental Authority, which alleges that (i) the execution and delivery of this Agreement by the Stockholder and the granting of any proxies to be delivered in connection with the execution of the Merger Agreement or the execution of the Education Purchase Agreement by the Company, or (ii) the approval of the Merger Agreement or the Education Purchase Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof;

(d)        the execution and delivery of this Agreement by the Stockholder does not, and the performance of this Agreement by the Stockholder will not, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice of or the passage of time or both) under any  Law applicable to the Stockholder or the Subject Shares or any contract to which the Stockholder is a party or which is binding on the Stockholder or the Stockholder’s Subject Shares, and will not result in the creation of any Lien on any of the Stockholder’s Subject Shares;

(e)        this Agreement has been duly executed by the Stockholder and constitutes the valid and legally binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that (i) such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Claim therefor may be brought;

(f)        the execution and delivery of this Agreement by the Stockholder does not, and the performance of this Agreement by the Stockholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority by the Stockholder, (i) except for any applicable requirements and filings with the SEC, if any, under the Exchange Act, and (ii) except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by the Stockholder of the Stockholder’s obligations under this Agreement in any material respect; and