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

9.       No Solicitation. Each Stockholder agrees that it will not take any action that the Company is prohibited from taking pursuant to Section 5.02 of the Merger Agreement, except with respect to any person whom the Company Board has determined, in accordance with Section 5.02(b) of the Merger Agreement, has submitted a Company Takeover Proposal that would reasonably be expected to result in a Superior Proposal.  Each Stockholder shall not, and shall use commercially reasonable efforts to cause its Affiliates not to, make any Company Takeover Proposal.

10.       Further Assurances.  Each of the parties hereto shall execute and deliver any additional certificate, instruments and other documents, and take any additional actions, reasonably necessary under applicable Law to perform its obligations as expressly set forth under this Agreement. No later than five (5) Business Days after any record date that is set for the Company Stockholders Meeting (or any postponement or adjourment thereof), the Stockholders shall deliver written notice to Parent setting forth the number of Subject Shares held, as of such record date, by each Stockholder.

11.       Miscellaneous.

(a)        Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

(b)        Waiver. Except as provided in this Agreement, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of any other party’s obligations to comply with its representations, warranties, covenants and agreements contained in this Agreement. The waiver by any party hereto of a breach of any provision hereunder (or any delay in asserting any such breach) shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder or in any other context.

(c)        Severability. If any provision of this Agreement, or the application thereof to any Person or circumstance, is to be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other Persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

(d)        Assignment. Except as expressly permitted by the terms hereof, no party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of each other party hereto, and any attempted assignment without such prior written approval shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(e)        Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

(f)        Specific Performance; Injunctive Relief. The parties agree that irreparable damage for which monetary damages would not be an adequate remedy would occur in the event that any party fails to perform of its obligations under this Agreement, and that the non-breaching party shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which the non-breaching party is entitled at law or in equity. Any party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to enforce the covenants and obligations contained herein on the basis that the non-breaching party has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and the non-breaching party shall not be required to post a bond or other security in connection with any such order or injunction.