exv10w42



 





Exhibit 10.42



Pursuant to 17 CFR 240.24b-2, confidential information (indicated by [***]) has been omitted and
has been filed separately with the Securities and Exchange Commission pursuant to a Confidential
Treatment Application filed with the Commission.




COLLABORATION AGREEMENT




     This Collaboration Agreement (this “Agreement”) is entered into as of this 6th day of
February, 2007 (the “Effective Date”) by and between The Corporate Executive Board Company,
a Delaware corporation (“CEB”), and The Advisory Board Company, a Delaware corporation
(“ABCO”). CEB and ABCO are sometimes hereafter referred to individually as a
“Party” and together as the “Parties.”



W I T N E S S E T H:




     WHEREAS, each Party routinely explores opportunities and evaluates ways in which it can by
itself or in cooperation with others provide additional programs, products, services, and value to
its member and prospective member customers of its commercial programs, and each Party has
considered various means of offering to its members the programs, services and offerings
contemplated by this Agreement;



     WHEREAS, ABCO and CEB wish to capitalize on the expertise of the other Party to achieve in a
faster, more cost-efficient manner the (a) development of new best demonstrated practice
(“BDP”) research programs, products and services, (b) provision of new BDP research
programs, products and services to each Party’s members and prospective members, and (c)
availability of new services and enhanced research programs as part of each Party’s existing BDP
research programs, products, and service offerings; and



     WHEREAS, the Parties believe that combining their respective resources in the manner
contemplated by this Agreement will likely result in the faster provision of higher quality BDP
research programs, products and services that will benefit the Parties’ respective members and
prospective members.



     NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants, and
agreements herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:



1. CERTAIN DEFINITIONS




     Words and phrases not otherwise defined herein have the following respective meanings:



          “Collaborations” means, collectively, the General Counsel Collaboration, Employer
Health Collaboration, New Product Collaboration, and Enhancement Collaboration (as such terms are
defined in the first paragraphs of Sections 3.1, 3.2, 3.3 and 3.4,
respectively).




          “Commercially Reasonable Efforts” means, as to a Party, an undertaking by such Party
to perform or satisfy an obligation or duty or otherwise act in a manner reasonably calculated to
obtain the intended result by action or expenditure not disproportionate or unduly burdensome in
the circumstances, which means, among other things, that such Party will not be required to (a)
expend funds other than for payment of the reasonable and customary costs and expenses of
employees, counsel, consultants, representatives, or agents of such Party in connection with the
performance or satisfaction of such obligation or duty or other action or (b) institute litigation
or arbitration as a part of its Commercially Reasonable Efforts.




          “Confidential Information” means all such information (whether written, oral,
electronic, visual or otherwise) furnished or made available (whether before or after the Effective
Date) by either Party or any of its Representatives (as defined in Section 4.6(a)) to the
other Party or its Representatives (including, but not limited to, the information and materials
exchanged or made available by one Party’s Project Manager(s) (as defined in Section
4.1(a)) to the other Party’s Project Manager(s) in connection with this Agreement), and all
analyses, compilations, forecasts, studies, summaries, notes, data, and other documents and
materials in whatever form maintained, whether prepared by CEB, ABCO, or their respective
Representatives, which contain or reflect, or are generated from, any such information.
Notwithstanding the foregoing, Confidential Information does not include any information that:




52









 









          (a) at the time of disclosure is or later comes into the public domain or becomes
publicly known through no improper conduct of the Recipient (as defined in Section
4.6(a)), the Recipient’s Representatives, or the Recipient’s Third Party (as defined in
this Section 1 below) recipients;




          (b) can be demonstrated by documentation or other competent proof to have been in the
Recipient’s possession prior to disclosure by the Disclosing Party (as defined in Section
4.6);




          (c) is subsequently received by the Recipient from a Third Party who is not bound by any
obligation of confidentiality with respect to such information, and the Recipient is not
bound by any other obligation of confidentiality to the Disclosing Party with respect to such
information; or




          (d) can be demonstrated by documentation or other competent proof to have been
independently developed by or for the Recipient without reference to, or use of, the
Disclosing Party’s Confidential Information.



          “Covered Services” means and includes membership-based BDP subscription services in
which members receive a bundle of services incorporating a meaningful combination of the following:
(a) benchmarking efforts, case studies, root cause, economic and/or quantitative analysis, which
culminate in a syndicated research report; (b) meetings focused on the discussion of those
syndicated research reports in a single-client or multi-client setting; or (c) short answer custom
research.




          “Cross-Industry Covered Services” means and includes a Covered Service that draws from
a diverse group of industries and focuses on issues that are not the primary activity of those
industries.




          “Education Industry” means and includes any Entity that (a) falls under the
Educational Services sector or any of the subsectors referred to in Section 61 of the North
American Industry Classification System as of the Effective Date, as such section may be amended
from time to time (collectively, the “Educational Services Sector”), or (b) serves the
Educational Services Sector, such as technology, software, communications, financing, and services
vendors that sell their programs, products or services predominantly to the Educational Services
Sector. Local, state and federal government entities that directly govern Entities within the
Educational Services Sector are considered part of the Education Industry.




          “Entity” means an individual; corporation; partnership; limited liability company;
association; trust or unincorporated organization; a local, state or federal government entity; any
other entity, organization or institution; or any division or subsidiary of any of the foregoing.




          “General Counsel Roundtable” means the program developed and offered by CEB that, as
of the Effective Date, provides BDP research, services and tools designed to assist legal
executives with their management, communications and decision-making challenges.




          “Health Care Provider Company” means any Entity that is principally engaged in the
health care provider business, which will include providers of patient care (such as hospitals,
health systems, outpatient facilities, home health agencies, and relevant governmental entities)
and providers of medical professional services (such as physician and nursing services and
physician management companies).




          “Health-Related Companies” means, collectively, Health Care Provider Companies and
Other Health Care Companies (as defined in this Section 1 below).




          “Industry Covered Services” means and includes Covered Services, such as those Covered
Services that ABCO currently provides to members of its health care BDP syndicated research
programs; i.e., Covered Services (a) focused principally on the primary activity,
particular characteristic, or critical issue of and (b) sold to Health-Related Companies,
Not-for-Profit Organizations (as defined in this Section 1 below), or Entities in the
Education Industry. For the avoidance of doubt, for a Covered Service to be an Industry Covered
Service, it must be identified as exclusively serving one “vertical” (i.e., a discreet
industry sector), its content will draw primarily from that vertical, and all multi-client meetings
include only clients from that vertical. Further, while some content might be shared across
programs for reasons of leverage, any such content will be embedded within a program targeted at
one of the verticals identified above.




          “New ABCO Industries” means, collectively, (a) the Education Industry and (b)
Not-for-Profit Organizations.




          “New CEB Industries” means Entities that fall under the (a) [***] sector referred to
in Section [***] of the NAICS, (b) [***] sector referred to in Section [***] of the NAICS, (c)
[***] sector referred to in Section [***] of the NAICS, (d) [***] sector referred to in Section
[***] of the NAICS, (e) [***] sector referred to in Sections [***] of the NAICS, (f) [***] sector
referred to in Section [***] of the NAICS, (g) [***] sector referred to in Section [***] of the
NAICS, (h) [***] sector referred to in Sections [***] of the NAICS, (i) [***] sector referred to in
Section [***] of the NAICS, (j) [***] sector referred to in Section [***] of the NAICS,




53









 







(k) [***] sector referred to in Section [***] of the NAICS, (l) [***] sector referred to in
Sections [***] of the NAICS, (m) [***] sector referred to in Section [***] of the NAICS, (n) [***]
sector referred to in Section [***] of the NAICS, (o) [***] sector referred to in Section [***] of
the NAICS, (p) [***] sector referred to in Section [***] of the NAICS, (q) [***] sector referred to
in Section [***] of the NAICS, (r) [***] sector referred to in Section [***] of the NAICS, and (s)
[***] sector referred to in Section [***] of the NAICS, in each case to the extent such Entity does
not fall under a New ABCO Industry and is not a Health-Related Company.




          “Non-Compete Period” means the period commencing on the Effective Date and continuing
through the later of (x) February 5, 2011 or (y) the first anniversary of the last day that two (2)
Collaborations remain in effect (i.e., whose Term has not yet expired or been terminated),
provided that at least one (1) of the two (2) Collaborations that remain in effect is either the
New Product Collaboration or the Enhancement Collaboration.




          “Not-for-Profit Organizations” means and includes (a) any Entity that exists for
educational, social welfare, civic improvement, pleasure or recreation, charitable, or for any
other purposes except for-profit, no part of the income of which is payable to or is otherwise
available for the personal benefit of any proprietor, member, trustee, or shareholder, (b) any
Entity serving the Entities referred to in immediately preceding clause (a), such as technology,
software, communications, financing, and services vendors that sell their programs, products or
services predominantly to an Entity described in the immediately preceding clause (a), and (c)
local, state and federal government entities that directly govern Entities referred to in either of
immediately preceding clauses (a) or (b).




          “Other Health Care Company” means any Entity that is not a Health Care Provider
Company and that is principally engaged in other types of health care business, including:
pharmaceuticals companies; medical technology and device companies, medical supply companies;
medical equipment companies; technology, software, communications, financing, and services vendors
selling predominantly to Health Care Provider Companies; companies providing health insurance; and
managed care companies.




          “Term” means the period commencing on the Effective Date and continuing through the
last day of the (a) the GC Term, (b) the EH Term, (c) the NP Term, and (d) the EC Term (as such
terms are defined in Sections 3.1(a), 3.2(a), 3.3(a) and 3.4(a),
respectively), unless sooner terminated in accordance with the terms of this Agreement.




          “Third Party” means any Entity other than ABCO or CEB.




2. CERTAIN REPRESENTATIONS, WARRANTIES, AND COVENANTS




     2.1 General. Each Party hereby represents, warrants, and covenants to the other Party
as follows:



          (a) such Party is duly organized, validly existing, and in good standing under the laws of the
State of Delaware and possesses the requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement and convey the rights herein granted to the other
Party without the written consent of any Third Party;




          (b) this Agreement, when executed and delivered by such Party, will be the legal, valid, and
binding obligation of such Party, enforceable against such Party in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium, and other laws affecting
creditors’ rights generally from time to time in effect and to general equitable principles; the
execution, delivery, and performance of this Agreement by such Party does not and will not conflict
with, or constitute a breach or default under, such Party’s certificate of incorporation or bylaws
or any material agreement, contract, commitment, or instrument to which such Party is a party; and
such Party has not previously granted and will not grant any rights to any Third Party that are,
nor contract with any Third Party in any manner that is, inconsistent with the terms herein; and




          (c) such Party will comply with all applicable laws when performing its obligations under this
Agreement.




     2.2 Certain Additional Representations and Warranties of Each Party. (a) ABCO hereby
represents and warrants to CEB that it has (i) received no claims, demands, or letters concerning
or affecting the Employer Health Materials (as defined in Section 3.2(b)), licenses,
services, or information to be delivered and the services to be performed by ABCO under this
Agreement challenging the validity or scope of rights therein, or requesting that ABCO limit, cease
and desist use, or take a license from a Third Party to continue the use or provision thereof, in
whole or in part, and (ii) sufficient rights, whether granted by Third Parties or otherwise, to
perform its obligations under this Agreement, including, but not limited to, ABCO’s obligations to
enter into and perform the Collaborations.



          (b) CEB hereby represents and warrants to ABCO that it has (i) received no claims, demands, or
letters concerning or affecting the General Counsel Materials (as defined in Section
3.1(b)), licenses, services, or information to be delivered and the services to be performed by
CEB under this Agreement challenging the validity or scope of rights therein, or requesting that
CEB limit, cease and desist use, or take a license from a Third Party to continue the use or
provision thereof, in whole or in part, and




54









 







(ii) sufficient rights, whether granted by Third Parties or otherwise, to perform its obligations
under this Agreement, including, but not limited to, CEB’s obligations to enter into and perform
the Collaborations.




3. TYPES OF CERTAIN TERMS OF COLLABORATIONS




     3.1 General Counsel Collaboration. The Parties agree to collaborate during the GC
Term for provision to the global health care industry of certain cross-industry BDP content
developed by or on behalf of CEB and offered by CEB through the General Counsel Roundtable in
accordance with the terms and conditions of this Agreement (the “General Counsel
Collaboration”). CEB has informed ABCO that CEB will be providing the General Counsel
Materials and any other BDP content to ABCO for the purposes of the General Counsel Collaboration,
in each case subject to the terms and conditions of this Agreement, as an extension of the
so-called “CEB Network,” and CEB hereby represents and warrants to ABCO that CEB’s provision of
General Counsel Materials and any other BDP content for these purposes does not in any way impose
on ABCO any right, obligation, limitation or otherwise that is not expressly provided in this
Agreement or affect any of ABCO’s rights or obligations provided in this Agreement with respect to
the General Counsel Materials.



          (a) Term of General Counsel Collaboration. Unless sooner terminated or extended in
accordance with the terms and conditions of this Agreement, the term of the General Counsel
Collaboration will commence on the Effective Date and will continue through February 5, 2010 (the
“GC Initial Term”). ABCO will have the right, exercisable upon written notice to CEB given
at least thirty (30) days prior to the expiration of the GC Initial Term, or any subsequent GC
Extended Term, to extend the term of the General Counsel Collaboration through February 5, 2012 and
thereafter for subsequent two-year renewal terms (such extension period(s), the “GC Extended
Term,” and together with the GC Initial Term, the “GC Term”).




          (b) Grant by CEB to ABCO of Certain Rights. Subject to the terms and conditions of
this Agreement, CEB hereby grants to ABCO a nonexclusive, worldwide license to reproduce, prepare
derivative works based on (subject to Section 3.1(h)), and distribute in accordance with
the remainder of this Section 3.1(b), all materials developed by or on behalf of CEB in
connection with the General Counsel Roundtable as part of ABCO’s own BDP membership program to
serve general counsels and/or legal departments of Health Care Provider Companies (the “ABCO
General Counsel Offering”). Such materials developed by or on behalf of CEB include, but are
not limited to, the following: research studies, briefings, watches; meeting/on-site presentations
and scripts; tools, templates, and benchmarks; and all General Counsel Roundtable program materials
posted on CEB’s General Counsel Roundtable website (the latter of which shall be provided through
direct access by the relevant Project Manager to the General Counsel Roundtable website) (all such
materials collectively, the “General Counsel Materials”). ABCO in its sole discretion will
be entitled to distribute the General Counsel Materials as part of the ABCO General Counsel
Offering, subject to payment of license fees in accordance with Section 3.1(d), on a
“private label basis” (i.e., under ABCO’s own trademarks, service marks and brands), and
subject to the attribution obligation set forth in Section 3.1(e). Membership of the ABCO
General Counsel Offering that includes access to the General Counsel Materials licensed by ABCO
from CEB pursuant to this Agreement will be an “ABCO General Counsel Membership.”
Notwithstanding anything to the contrary in this Agreement, ABCO will not be permitted to grant to
any Entity with an ABCO General Counsel Membership rights to the General Counsel Materials offered
by ABCO in connection with the ABCO General Counsel Offering that are greater or more permissive
than the rights ABCO grants in the ordinary course of its business to members of its other BDP
programs with respect to materials prepared by ABCO, including rights with respect to the
confidentiality, reproduction, and use of such materials.




          (c) Dialogue and Training. CEB will provide to ABCO up to 40 hours of time per
calendar quarter during the GC Term at mutually agreeable times for dialogue with ABCO staff about
research topics and to train ABCO sales and service teams on matters concerning the General Counsel
Roundtable, the General Counsel Materials licensed by ABCO from CEB in connection with the General
Counsel Collaboration, and the ABCO General Counsel Offering. CEB will also make available to ABCO
on a limited basis during the GC Term appropriate researchers of its General Counsel Roundtable to
field specific questions concerning the research supporting the General Counsel Materials that are
posed to ABCO by Entities with ABCO General Counsel Memberships.




          (d) License Fees. (i) During the GC Term, ABCO will pay to CEB, as a license fee for
the General Counsel Materials, [***] for each twelve (12) month ABCO General Counsel Membership
(the “GC License Fee”), with such license fee being (A) prorated for each ABCO General
Counsel Membership that is shorter than twelve (12) full calendar months and (B) subject to
adjustment in accordance with Section 3.1(d)(ii).





          (ii) If the [***] from the [***]. [***]. Notwithstanding the foregoing, [***]. For
example, if [***] in a year [***].



          (e) Attribution on Certain General Counsel Materials. ABCO will include the following
language in the lower left corner of each one-page publication or of each two-page spread of each
multi-page publication distributed by ABCO pursuant to Section 3.1(b): “Provided by The
Advisory Board Company by special arrangement with the General Counsel Roundtable.” If a
particular General Counsel Material (e.g., a meeting speech) will be distributed by ABCO
only orally (i.e., without such General Counsel Material also being distributed by ABCO in
writing in either printed or electronic form (in which such case the attribution

55









 








described in the immediately preceding sentence will be included in such writing) to the same
audience), ABCO will either (i) state orally during the distribution of that General Counsel
Material (e.g., during the oral presentation of the meeting speech) or (ii) include a
notation on the agenda or any other announcement or notification of such distribution
(e.g., an agenda for a conference during which such speech will be delivered), if there is
one, that all or a portion of the content being presented, as the case may be, “is being provided
by The Advisory Board Company by special arrangement with the General Counsel Roundtable.” If a
particular General Counsel Material will be distributed in a manner or through a medium that is not
contemplated by either of the two immediately preceding sentences, ABCO will attribute the General
Counsel Material in a manner that is as consistent with foregoing as is reasonably practicable in
the circumstances (i.e., communicate that the General Counsel Material is being “provided
by The Advisory Board Company by special arrangement with the General Counsel Roundtable” in a
manner that is similarly conspicuous as those described in the first two sentences of this
Section 3.1(e), in each case to the extent reasonably practicable in the circumstances).
No further acknowledgments will be required.




     (f) ABCO General Counsel Offering Pilot Program. During the GC Initial Term, ABCO
will pilot an ABCO General Counsel Offering for new product development research purposes by
marketing the ABCO General Counsel Offering to an alpha cohort of some of the larger health systems
in the United States (generally health systems with operating expenses of $1 billion or greater) as
identified by ABCO in its sole discretion. Throughout the pilot period, which may be shorter than
the GC Initial Term, ABCO will evaluate the success of the pilot, along with information from its
other new product development efforts, and determine in its sole discretion whether to launch the
ABCO General Counsel Offering into a broader market.



     (g) Relationship with Members of the ABCO General Counsel Offering. During and after
the expiration of the GC Term, ABCO will “own” the relationship (i.e., have the
responsibility for selling to, servicing and renewing prospective and actual members) and have sole
direct contract privity with members of the ABCO General Counsel Offering as such relationship
relates to the ABCO General Counsel Offering.



     (h) Derivative Works. ABCO’s right to prepare derivative works under Section
3.1(b) shall be subject to the following: (i) ABCO may add summary graphics to any General
Counsel Material; (ii) ABCO may modify a particular case study included in a particular General
Counsel Material only upon obtaining the prior written consent of CEB, which consent shall be
granted or denied in CEB’s sole discretion; (iii) ABCO shall maintain and shall not otherwise
change CEB’s editorial conclusions contained in a particular General Counsel Material in any
derivative of that General Counsel Material; (iv) ABCO may remove one or more case studies from any
General Counsel Material that includes more than one case study; (v) ABCO may include one or more
additional case studies in any General Counsel Material; and (iv) ABCO shall follow any written
instructions provided in advance by CEB concerning the use of a specific General Counsel Material,
provided that both CEB is required to adhere to the same instructions in its use of the General
Counsel Material and CEB’s failure to adhere to the written instructions in any material respect
could reasonably cause CEB to violate or breach an obligation of CEB to a Third Party. ABCO in
good faith shall consider issues that a member of a CEB Covered Service has or will reasonably
likely have a particular sensitivity to the preparation, or a particular manner of distribution or
use, of one or more types of derivative works of a General Counsel Material to which such member
contributed.



     (i) Possible Post-GC Term Obligation. The Parties hereby agree that, in the event the
Non-Compete Period expires or is terminated prior to the expiration or termination of the GC Term
(other than on account of a termination of this Agreement by ABCO pursuant to Section
5.1(a)), during the one-year period following the expiration or termination of the GC Term, the
ABCO General Counsel Offering (as defined herein) shall also satisfy the standards set forth in the
definition of Industry Covered Service.



     3.2 Employer Health Collaboration. The Parties agree to collaborate during the EH
Term for provision of certain BDP content developed by or on behalf of ABCO and offered by ABCO
through its health care BDP service offerings (“Health Care Programs”) to Entities that are
not Health-Related Companies (the “Employer Health Collaboration”) in accordance with the
terms and conditions of this Agreement.



          (a) Term of Employer Health Collaboration. Unless sooner terminated or extended in
accordance with the terms and conditions of this Agreement, the term of the Employer Health
Collaboration will commence on the Effective Date and will continue through February 5, 2010 (the
“EH Initial Term”). CEB will have the right, exercisable upon written notice to ABCO given
at least thirty (30) days prior to the expiration of the EH Initial Term or any subsequent EH
Extended Term, to extend the term of the Employer Health Collaboration through February 5, 2012 and
thereafter for subsequent two-year renewal terms (such extension period(s), the “EH Extended
Term,” and together with the EH Initial Term, the “EH Term”).




          (b) Grant by ABCO to CEB of Certain Rights. Subject to the terms and conditions of
this Agreement, ABCO hereby grants to CEB a nonexclusive, worldwide license to reproduce, prepare
derivative works based on (subject to Section 3.2(h)), and distribute certain written BDP
research studies and certain written meeting speeches developed by or on behalf of ABCO in
connection with its Health Care Programs in accordance with the remainder of this Section
3.2(b) and that are selected by CEB pursuant to the immediately succeeding sentence for CEB as
part of CEB’s own BDP membership program to serve human resources

56









 








departments of Entities that are not Health-Related Companies (the “CEB Employer Health
Offering”). CEB will be permitted to select by written notice to ABCO the BDP research studies
and meeting speeches to be licensed pursuant to the Employer Health Collaboration from all research
studies and meeting speeches that have been developed by or on behalf of ABCO in connection with
its Health Care Programs (those materials selected by CEB pursuant to this sentence collectively,
the “Employer Health Materials”). CEB in its sole discretion will be entitled to
distribute the Employer Health Materials as part of the CEB Employer Health Offering, subject to
payment of license fees in accordance with Section 3.2(d), on a “private label basis”
(i.e., under CEB’s own trademarks, service marks and brands), and subject to the
attribution obligation set forth in Section 3.2(e). Membership of the CEB Employer Health
Offering that includes Employer Health Materials licensed by CEB from ABCO pursuant to this
Agreement, will be a “CEB Employer Health Membership.” Notwithstanding anything to the
contrary in this Agreement, CEB will not be permitted to grant to any Entity with a CEB Employer
Health Membership rights to the Employer Health Materials offered by CEB in connection therewith
that are greater or more permissive than the rights CEB grants in the ordinary course of its
business to members of its other BDP programs with respect to materials prepared by CEB, including
with respect to the confidentiality, reproduction and use of such materials.




          (c) Dialogue and Training. ABCO will provide to CEB up to 40 hours of time per
calendar quarter during the EH Term at mutually agreeable times for dialogue with CEB staff about
research topics and to train CEB sales and service teams on matters concerning its Health Care
Programs, the Employer Health Materials, and the CEB Employer Health Offering. ABCO will also make
available to CEB on a limited basis during the EH Term appropriate researchers of its Employer
Health Materials to field specific questions concerning the research supporting the Employer
Materials that are posed to CEB by Entities with a CEB Employer Health Membership.




     (d) License Fees. The license fee payable by CEB to ABCO for Employer Health
Materials will be negotiated in good faith and agreed upon in writing by the Parties on an
individual basis (i.e., on an Employer Health Material-by-Employer Health Material basis).



          (e) Attribution of Employer Health Materials. CEB will include the following language
in the lower left corner of each one-page publication or of each two-page spread of each multi-page
publication distributed by CEB pursuant to Section 3.2(b): “Provided by The Corporate
Executive Board Company by special arrangement with The Advisory Board Company.” If a particular
Employer Health Material (e.g., a meeting speech) will be distributed by CEB only orally
(i.e., without such Employer Health Material also being distributed by CEB in writing in
either printed or electronic form (in which such case the attribution described in the immediately
preceding sentence will be included in such writing) to the same audience), CEB will either (i)
state orally during the distribution of that Employer Health Material (e.g., during the
oral presentation of the meeting speech) or (ii) include a notation on the agenda or any other
announcement or notification of such distribution (e.g., an agenda for a conference during
which such speech will be delivered), if there is one, that all or a portion of the content being
presented, as the case may be, “is being provided by The Corporate Executive Board Company by
special arrangement with The Advisory Board Company.” If a particular Employer Health Material
will be distributed in a manner or through a medium that is not contemplated by either of the two
immediately preceding sentences, CEB will attribute the Employer Health Material in a manner that
is as consistent with foregoing as is reasonably practicable in the circumstances (i.e.,
communicate that the Employer Health Material is being “provided by The Corporate Executive Board
Company by special arrangement with The Advisory Board Company” in a manner that is similarly
conspicuous as those described in the first two sentences of this Section 3.2(e), in each
case to the extent reasonably practicable in the circumstances). No further acknowledgments will
be required.




          (f) Initial Employer Health Material. CEB hereby agrees to license from ABCO and
distribute to Entities with CEB Employer Health Memberships and/or members of CEB’s existing BDP
research programs at least one Employer Health Material on the [***] in 2007, and the Parties
hereby agree that the license fee payable by CEB to ABCO for such Employer Health Material will be
negotiated in good faith and agreed upon in writing by the Parties.




     (g) Relationship with Members of the CEB Employer Health Offering. During and after
the expiration of the EH Term, CEB will “own” the relationship (i.e., have the
responsibility for selling to, servicing and renewing prospective and actual members) and have sole
direct contract privity with members of the CEB Employer Health Offering as such relationship
relates to the CEB Employer Health Offering.



     (h) Derivative Works. CEB’s right to prepare derivative works under Section
3.2(b) shall be subject to the following: (i) CEB may add summary graphics to any Employer
Health Material; (ii) CEB may modify a particular case study included in a particular Employer
Health Material only upon obtaining the prior written consent of ABCO, which consent shall be
granted or denied in ABCO’s sole discretion; (iii) CEB shall maintain and shall not otherwise
change ABCO’s editorial conclusions contained in a particular Employer Health Material in any
derivative of that Employer Health Material; (iv) CEB may remove one or more case studies from any
Employer Health Material that includes more than one case study; (v) CEB may include one or more
additional case studies in any Employer Health Material; and (iv) CEB will follow any written
instructions provided in advance by ABCO concerning the use of a specific Employer Health Material,
provided that both ABCO is required to adhere to the same instructions in its use of the Employer
Health Material and ABCO’s failure to adhere to the written instructions in any material respect
could reasonably cause



57









 







ABCO to violate or breach an obligation of ABCO to a Third Party. CEB in good faith will consider
issues that a member of an ABCO Covered Service has or will reasonably likely have a particular
sensitivity to the preparation, or a particular manner of distribution or use, of one or more types
of derivative works of an Employer Health Material to which such member contributed.



     3.3 New Product Collaboration. In addition to the other Collaborations, the Parties
agree to collaborate during the NP Term to develop new BDP research programs focused on particular
industries (“New Product Collaboration”). The Parties acknowledge and agree that the New
Product Collaboration is intended to further (a) ABCO’s goal of launching BDP research programs in
the New ABCO Industries and (b) CEB’s goal of launching BDP research programs in one or more of the
New CEB Industries.



          (a) Term of the New Product Collaboration. Unless sooner terminated in accordance
with the terms and conditions of this Agreement, the term of the New Product Collaboration will
commence on the Effective Date and continue through February 5, 2010 (the “Initial NP
Term”). The Initial NP Term may be extended through February 5, 2012 upon the mutual written
agreement of the Parties entered into prior to the expiration of the Initial NP Term (such
extension period, the “NP Extended Term,” and together with the NP Initial Term, the
“NP Term”).




          (b) Provision of Information by CEB to ABCO. CEB will make available to ABCO the
following to help reduce the amount of time it would otherwise take ABCO to enter, and the cost of
ABCO’s entry into, the New ABCO Industries:





          (i) industry knowledge of Entities in a New ABCO Industry based on existing and
then-existing CEB relationships and research; and




          (ii) insight into and feedback on BDP research programs, products and services that may
be more compelling for (i.e., more marketable or of greater particular interest to)
Entities in a New ABCO Industry than for Health-Related Companies.



          (c) Provision of Information by ABCO to CEB. ABCO will make available to CEB the
following to help reduce the amount of time it would otherwise take CEB to enter, and the cost of
CEB’s entry into, the New CEB Industries:





          (i) insight into and feedback on marketing strategy for deep penetration of a particular
industry or “vertical,” such as a New CEB Industry, based on ABCO’s experience in the health
care “vertical” with Health-Related Companies;




          (ii) information on product strategy for a “vertical” based on ABCO’s experience in the
health care “vertical” with Health-Related Companies; and




          (iii) insight into and feedback on BDP programs, products and services that may be more
compelling for (i.e., more marketable or of greater particular interest to) members
in a deep “vertical,” such as a New CEB Industry, as opposed to a more functional program,
product or service that could apply across several “verticals” or New CEB Industries.



     3.4 Enhancement Collaboration. The Parties agree to collaborate during the EC Term to
enhance each Party’s ability to service its respective members of its BDP research programs,
thereby increasing such members’ access to information and reducing each Party’s costs to serve its
members, with the goal of providing better, more accessible and more economical programs, products
and services to each Party’s members (the “Enhancement Collaboration”).



          (a) Term of Enhancement Collaboration. Unless sooner terminated in accordance with
the terms and conditions of this Agreement, the term of the Enhancement Collaboration will commence
on the Effective Date and continue through February 5, 2010 (the “Initial EC Term”). The
Initial EC Term may be extended through February 5, 2012 upon the mutual written agreement of the
Parties entered into prior to the expiration of the Initial EC Term (such extension period, the
“EC Extended Term,” and together with the EC Initial Term, the “EC Term”).




          (b) Enhancement Collaboration Obligations. In connection with the Enhancement
Collaboration, each Party will during the EC Term:





          (i) share with the other Party, through their respective Project Manager(s) and/or other
designated persons at regular meetings, (x) such Party’s knowledge acquired through its
experiences serving members of its Covered Services, and (y) information concerning such
Party’s internal processes and practices concerning research production and servicing members
of its Covered Services. The specific subject areas on which a Party will be obligated to
share knowledge and information pursuant to this Section 3.4(b)(i) include the
following:




          (A) account management (including, but not limited to, incentive plans and
employee training materials);



58









 






          (B) new product development and innovation of new and enhanced Covered Services
(including, but not limited to, the process of launching and generating ideas for new
or enhanced Covered Services);




          (C) development and design of BDP research membership websites;




          (D) syndicated research agenda setting (including, but not limited to, employee
training materials);




          (E) sales process and management (including, but not limited to, employee
incentive plans, process and practices relating to the allocation of territories and
sales training materials);




          (F) knowledge management technology (including, but not limited to, CRM systems
and BDP research content terrain maps);




          (G) human resource management and recruiting (including, but not limited to,
recruiting plans and salary benchmarks); and




          (H) information technology (including, but not limited to, architecture
roadmaps);




          (ii) brainstorm and investigate with the other Party, through their respective Project
Manager(s) and/or other designated persons at regular meetings, the possibility of
collaborating on projects to serve members of their respective Covered Services better and/or
to increase efficiencies of internal operations (e.g., knowledge management
technology); and




          (iii) provide, to a mutually agreeable individual employed by the other Party, access to
websites it provides to members as part of the Covered Services for no fewer than five (5)
separate BDP research programs across no fewer than three (3) separate practice areas (for
the sole purpose of idea generation as to ways to use websites as a medium to deliver
information and materials and to serve members of Covered Services). It is understood by the
Parties that this website access will be in addition to any website access provided as part
of the Parties’ obligations in sections 3.1, 3.2 and 3.3.


For the avoidance of doubt, the Parties hereby acknowledge and agree that a Party is permitted to
use knowledge and information acquired from the other Party (including from the other Party’s
Project Manager(s) and/or other designated persons) in connection with Sections 3.4(b)(i)
through (iii) for the sole purpose of generating ideas on how a Party can, and implementing
any of those ideas to, enhance its ability to serve members of its BDP research programs
(i.e., achieve the stated purpose of the Enhancement Collaboration), except that the
foregoing does not permit a Party to use any BDP research content (i.e., the types of
materials described in the second sentences of Section 3.1(b) and 3.2(b)) of the
other Party disclosed to or accessed by a Party in connection with Sections 3.4(b)(i)
through (iii).




4. CERTAIN OTHER OBLIGATIONS OF THE PARTIES




     4.1 Project Managers. (a) Within 30 days after the execution and delivery of this
Agreement by the Parties, each Party will identify to the other Party one or more full-time
employees of such Party (each such employee, a “Project Manager”) who will, during the
Term, dedicate a significant portion of his/her time and attention to furthering the purposes of
the Collaborations then in effect (i.e., whose Term has not yet expired or been
terminated), including by meeting and conferring regularly with the other Party’s applicable
Project Manager(s), and each Party will designate promptly replacement Project Manager(s) in the
event previously designated Project Manager(s) no longer serves in such capacity. Each Party may
make recommendations to the other Party as to who should be designated as the other Party’s Project
Manager(s), and the designating Party will consider any such recommendations, although a Party may
designate its Project Manager(s) in its sole discretion. Each Party acknowledges that it is in the
interests of both Parties that the Project Managers perform in a manner that is reasonably
satisfactory to both Parties and that the Project Managers’ relationship to each other, as well as
the particular skills and position of each Project Manager, should be of the type that furthers the
purposes of the Collaborations.




          (b) During the Term, the Parties will cause their Project Manager(s) to (i) schedule in
advance and attend meetings with the other Party’s Project Manager(s) held no less frequently
than bi-monthly during each calendar year during the Term at mutually agreeable locations and
times and (ii) discuss with the other Party’s Project Manager(s) and agree upon in advance a
substantive agenda for each such meeting that includes, among other things, discussion
regarding the implementation and development of the Collaborations then still in effect.
Other relevant individuals will be included in these meetings depending upon the topic of
discussion.



59









 






          (c) In addition to the foregoing:




          (i) each Party’s Project Manager for the General Counsel Collaboration will serve as the
principal contact person for the other Party with respect to the management and
administration of the General Counsel Collaboration. During the GC Term, the Parties will
also, through the Project Managers and/or other designated persons, discuss other areas where
ABCO might license BDP research content unrelated to the General Counsel Roundtable from CEB
with terms and conditions of any such license being set forth in writing in a separate
agreement between the Parties or an addendum to this Agreement;




          (ii) each Party’s Project Manager for the Employer Health Collaboration will serve as
the principal contact person for the other Party with respect to the management and
administration of the Employer Health Collaboration. During the EH Term, the Parties will
also, through the Project Managers and/or other designated persons, discuss other areas where
CEB might license BDP research content unrelated to Employer Health Materials from ABCO with
terms and conditions of any such license being set forth in writing in a separate agreement
between the Parties or an addendum to this Agreement;




          (iii) each Party’s Project Manager(s) for the New Product Collaboration and the
Enhancement Collaboration will serve as the principal contact person for the other Party with
respect to the management and administration of the New Product Collaboration and the
Enhancement Collaboration, respectively; and




          (iv) each Party’s Project Manager(s) may serve as the Project Manager(s) for one or more
of the Collaborations.



     4.2 Policies and Procedures; Implementation. The Parties in good faith will use
Commercially Reasonable Efforts to develop, within the 30 days after the execution and delivery of
this Agreement, mutually agreeable written policies and procedures to implement the transactions
contemplated by this Agreement, including, but not limited to, with respect to (a) timing of
payment of fees payable by one Party to the other, (b) the medium on which General Counsel
Materials and/or Employer Health Materials will be provided to the other Party for modification,
reproduction and distribution to members of the ABCO General Counsel Offering and/or the CEB
Employer Health Offering, as applicable, (c) the designation and selection by CEB of Employer
Health Materials to be included as part of the CEB Employer Health Offering, and (d) the exchange
of only such Confidential Information that is reasonably necessary to further the purposes of the
Collaborations.



     4.3 Certain Intellectual Property Rights. (a) General. Notwithstanding
anything to the contrary in this Agreement, (i) ABCO retains all right, title, and interest in and
to the Employer Health Materials, including any modifications it makes thereto, and any
intellectual property associated therewith, (ii) CEB retains all right, title, and interest in and
to the General Counsel Materials, including any modifications it makes thereto, and any
intellectual property associated therewith, (iii) ABCO retains all right, title and interest in and
to any modifications it may make to the General Counsel Materials and any intellectual property
associated therewith, (iv) CEB retains all right, title and interest in and to any modifications it
may make to the Employer Health Materials and any intellectual property associated therewith; (v)
ABCO retains all right, title and interest in and to any of ABCO’s BDP research content that may be
disclosed to or accessed by CEB in connection with Sections 3.4(b)(i) through
(iii), including any modifications ABCO makes thereto, and any intellectual property
associated therewith; and (vi) CEB retains all right, title and interest in and to any of CEB’s BDP
research content that may be disclosed to or accessed by ABCO in connection with Sections
3.4(b)(i) through (iii), including any modifications CEB makes thereto, and any
intellectual property associated therewith.



          (b) Jointly-Developed Property. The Parties acknowledge that, through the
Collaborations, it is possible that the Parties may jointly develop programs, products, services,
and other commercially valuable materials and/or intellectual property (“Jointly Developed
Property”). The Parties will use Commercially Reasonable Efforts to negotiate, in good faith,
terms and procedures regarding the use of Jointly Developed Property. These terms and procedures
will include, but not be limited to, (i) which Party would have the right to commercialize
particular Jointly Developed Property, (ii) the terms upon which a Party would be permitted to
commercialize particular Jointly Developed Property, (iii) how the Parties would share, if at all,
the costs of and revenues derived from Jointly Developed Property, and (iv) other matters
concerning the ownership of the Jointly Developed Property. The Parties further acknowledge and
agree that, unless and until the terms and procedures are agreed upon in accordance herewith for
any program, product or service, ownership of and rights in any such program, product or service
will be determined as a matter of applicable law, and if the work is protected by copyright, joint
owners will each have unrestricted rights to reproduce, modify, distribute, perform and display the
work and will be obligated to share proportionately with the other Party any profits that may
result from exercise of these rights.




     4.4 Agreement Not to Compete. (a) In order to allow for the Collaborations
contemplated by this Agreement, the Parties agree not to compete with the other Party for the
provision of Covered Services for the Non-Compete Period, as follows:




          (i) ABCO is permitted to sell or otherwise provide, directly or indirectly through an
Affiliate (as
defined in Section 4.4(c)), only Industry Covered Services to Entities in a New ABCO
Industry;



60









 






          (ii) ABCO is permitted to sell or otherwise provide, directly or indirectly through an
Affiliate, only Industry Covered Services to Other Health Care Companies;




          (iii) Notwithstanding the foregoing, ABCO is permitted to sell or otherwise provide,
directly or indirectly through an Affiliate, Covered Services to Health Care Provider
Companies;




          (iv) ABCO is not permitted to sell or otherwise provide, directly or indirectly through
an Affiliate, Covered Services to Entities principally engaged in a New CEB Industry other
than local, state or federal government entities that govern (A) Health Care Provider
Companies, (B) Other Health Care Companies or (C) Entities in a New ABCO Industry;




          (v) CEB is permitted to sell or otherwise provide, directly or indirectly through an
Affiliate, only Cross-Industry Covered Services to Entities in a New ABCO Industry;




          (vi) CEB is permitted to sell or otherwise provide, directly or indirectly through an
Affiliate, only Cross-Industry Covered Services to Other Health Care Companies;




          (vii) CEB is not permitted to sell or otherwise provide, directly or indirectly through
an Affiliate, Covered Services to Health Care Provider Companies; and




          (viii) Notwithstanding the foregoing, (A) CEB is permitted to sell or otherwise provide,
directly or indirectly through an Affiliate, Covered Services to Entities in a New CEB
Industry and (B) CEB is permitted to continue to renew unexpired Covered Services, as the
case may be, of each Entity listed on Schedule 4.4 solely for those Covered Services
attributed to such Entity on Schedule 4.4. CEB has informed ABCO that each Entity
listed on Schedule 4.4 has continued to renew its Covered Service attributed to such
Entity on Schedule 4.4 since February 23, 1999 (i.e., each Covered Service
attributed to such Entity was renewed prior to its expiration). By no later than February 15
of each calendar year during the Non-Compete Period, the chief executive officer of CEB shall
certify to ABCO in writing whether an Entity listed on Schedule 4.4 renewed its
Covered Service attributed to such Entity on Schedule 4.4 prior to the expiration of
such Covered Service, and, in the event such Covered Service was not renewed prior to its
expiration, Schedule 4.4 will automatically and without any further action by either
Party be deemed amended to reflect such non-renewal effective upon the expiration of such
Covered Service.



     (b) For the avoidance of doubt and given that the Collaborations contemplated by this
Agreement are aimed at enhancing and launching Covered Services, the programs, products and
services to be covered by this Section 4.4 will apply only to Covered Services and not to
any other services such as installation support, data, software, business intelligence, training,
and development (e.g., services offered by H*Works, Advisory Board Compass Programs,
Advisory Board Academies Programs and OptiLink).



          (c) For purposes of this Section 4.4, (i) an “Affiliate” of another Entity is
an Entity that directly or indirectly, through one or more intermediaries, “controls,” or is
“controlled by,” or is “under common control with,” such Entity and (ii) “control” (including the
terms “controlling,” “controlled by” and “under common control with”) means the possession, direct
or indirect, of the power to direct or cause the direction of the management and policies of an
Entity, whether through the ownership of voting securities, by contract or otherwise.




     4.5 Non-solicitation. The Parties hereby agree that, for the period commencing on the
Effective Date and continuing through the first anniversary of the last day of the Term, neither
Party will, without the prior written consent of the other Party, recruit or employ any person who
is at the time of such recruitment an employee or independent contractor of the other Party or who
was employed by or an independent contractor of the other Party or its subsidiaries at any time
during the 24-month period preceding the date of such recruitment or employment, unless the other
Party’s chief executive officer consents to such recruitment or employment, which consent will not
be unreasonably withheld or delayed.



     4.6 Confidentiality and Publicity. (a) Maintaining Confidentiality of
Confidential Information. The Parties hereby acknowledge and agree that each Party may have
received or may receive during the Term, whether as provided for in this Agreement or otherwise (in
such event, each of ABCO and CEB, as the case may be, together with their respective
Representatives, is a “Recipient”), Confidential Information belonging to the other Party
(the “Disclosing Party”). The Parties hereby acknowledge and agree that each Party retains
all right, title and interest in and to its Confidential Information, and any intellectual property
associated therewith. The Recipient may not use the Disclosing Party’s Confidential Information
for any purpose other than as expressly permitted by this Agreement or to perform Recipient’s
obligations under this Agreement. Each Party will hold all such Confidential Information in the
strictest confidence as a fiduciary and may not voluntarily sell, transfer, publish, disclose,
display, or otherwise



61









 







make available such Confidential Information to any Third Party without the prior written consent
of the Disclosing Party other than to the Recipient’s (i) directors, officers, employees (including
the Project Manager(s)), and advisors (e.g., legal, accounting and other professional
advisors) who reasonably need to have access to such Confidential Information or (ii) contractors
or other agents who reasonably need to have access to Confidential Information for the purposes of
this Agreement and who also execute in advance a writing to abide by confidentiality provisions
substantially similar to the confidentiality provisions of this Agreement and that provides that
the Disclosing Party is a Third Party beneficiary of such contractor or other agent’s agreement to
abide by such confidentiality agreement (the Entities referred to in clause (i) or (ii) in this
sentence, a Party’s “Representatives”). Without limiting the foregoing, each Party will
protect, and will cause their respective Representatives (and former Representatives) to protect,
the confidentiality of each other Party’s Confidential Information, implement measures to prevent
its unauthorized dissemination, and exercise the same degree of care and urgency to protect the
confidentiality of all such information as exercised to protect its most confidential business
information, but in no event less than a reasonable degree of care.



          (b) Disclosure of Confidential Information. Notwithstanding anything to the contrary
in Section 4.6(a), each Party may disclose Confidential Information to the extent that such
disclosure is:





          (i) made in response to a valid order of a court or other tribunal of competent
jurisdiction, provided, however, that (a) the Recipient will first have given
notice to the Disclosing Party and given the Disclosing Party a reasonable opportunity to
quash such order and/or to obtain a protective order requiring that the Confidential
Information that is the subject of such order or administrative or judicial process be held
in confidence by such court or agency or, if disclosed, be used only for the purposes for
which the order was issued, (b) the Recipient and the applicable Representatives agree not to
oppose any action by the Disclosing Party to obtain an order to quash or a protective order
or other appropriate remedy and cooperate fully with the Disclosing Party in connection
therewith, and (c) in the event that no such order to quash or protective order or other
remedy is obtained, the Recipient and its Representatives will furnish only that portion of
the Confidential Information that Recipient is advised by outside counsel is legally required
and exercise their Commercially Reasonable Efforts to obtain reliable assurance that
confidential treatment will be accorded such Confidential Information;




          (ii) otherwise required by applicable law (subject to providing prior written
notification to the Disclosing Party and allowing sufficient time for the Disclosing Party to
seek confidential treatment where available);




          (iii) otherwise required by applicable securities laws, provided that such Party will
provide the other Party with a written copy of all proposed filings, registrations, or
notifications within such time frame as to allow for a reasonably sufficient time for review
and comment by the other Party prior to the submission of such proposed filing, registration,
or notification. The other Party will cooperate with such filing, registration, or
notification and will execute all documents reasonably required in connection therewith. To
the extent permitted by applicable law, the Parties will request confidential treatment of
sensitive provisions of this Agreement. The Parties will promptly inform each other as to
the activities or inquiries of any governmental entity relating to this Agreement and will
cooperate to respond to any request for further information therefrom; and




          (iv) made pursuant to and in accordance with Sections 3.1(b) or 3.2(b).



          (c) Remedies for Improper Disclosures. Each Party acknowledges that a Disclosing
Party will not have an adequate remedy in the event that the Recipient or any of its
Representatives (or former Representatives) breaches or threatens to breach the provisions of this
Section 4.6, and that the Disclosing Party will likely suffer irreparable damage and injury
in such event. Each Party agrees that a Disclosing Party, in addition to any other available
rights and remedies under law and in equity, will be entitled to an injunction restricting
Recipient or any of its Representatives from committing or continuing any violation of the
provisions of this Section without any need to secure or post any bond in connection therewith.




          (d) Treatment of Confidential Information upon Termination or Expiration. Upon the
termination or expiration of this Agreement for any reason in accordance with the terms and
conditions of this Agreement, upon written request, Recipient and its Representatives agree, at
their own expense, to return promptly, within ten (10) business days from receipt of such notice,
all Confidential Information to the Disclosing Party, and, except as contemplated by Sections
3.1(b) or 3.2(b), no copies, extracts or other reproductions (whether written, oral,
electronic, visual, or otherwise) of the Confidential Information will be retained by Recipient or
its Representatives, it being acknowledged and agreed by the Parties that portions of Confidential
Information that are in electronic or similar form or that consist solely of analyses,
compilations, forecasts, studies, summaries, notes, data, or other documents or materials prepared
by Recipient or its Representatives may be erased or destroyed by Recipient in lieu of being
returned to the Disclosing Party, in which event one of its authorized officers will provide
certification that such materials have in fact been so erased or destroyed within ten (10) business
days of the receipt of the written request to erase or destroy such materials.




          (e) Publicity; Certain Communications. Except as otherwise contemplated by this
Agreement or as otherwise reasonably necessary to accomplish the purposes of this Agreement or
comply with applicable laws, including securities laws (in which case such disclosure would be
subject to Section 4.6(b)(iii)), neither Party will issue any news release, public
announcement,




62









 







advertisement, or other form of publicity concerning the existence of this Agreement or the
relationship between the Parties without obtaining prior written approval from the other Party. In
addition and except as contemplated by Sections 3.1(e), 3.2(e) or
4.6(b)(i)-(iii), each Party will in good faith use its best efforts to prevent its
employees and agents from referencing (orally, in writing or electronically) the Collaborations or
the licensing of materials from the other Party when selling, marketing or promoting BDP research
programs, unless otherwise agreed upon by the Parties in writing.




     4.7 Indemnification. Each Party will indemnify, defend, and hold harmless the other
Party and its Representatives from any and all claims, liabilities, and expenses arising out of its
or its Representatives’ bad faith or intentional misconduct in performing its obligations under
this Agreement or the breach of such Party’s representations and warranties made in this Agreement,
except to the extent finally judicially determined to have resulted from the bad faith, intentional
misconduct or breach by the Party seeking indemnification hereunder or its Representatives. In
addition, CEB will indemnify, defend, and hold harmless ABCO, its Representatives and the Entities
with ABCO General Counsel Memberships from any and all claims, liabilities, and expenses arising
from any infringement, misappropriation, or other violation of any patent, copyright, trademark,
servicemark, trade secret right, or other intellectual property right of a Third Party that result
from ABCO’s exercise of any of the rights granted in Section 3.1(b), and ABCO will
indemnify, defend, and hold harmless CEB, its Representatives and the Entities with CEB Employer
Health Memberships from any and all claims, liabilities, and expenses arising from any
infringement, misappropriation, or other violation of any patent, copyright, trademark,
servicemark, trade secret right, or other intellectual property right of a Third Party that result
from CEB’s exercise of any of the rights granted in Section 3.2(b). The provisions of this
Section 4.7 will apply to the fullest extent of the law and will survive the Term.



5. MISCELLANEOUS




     5.1 Certain Termination Rights. (a) General. A Party may terminate this
Agreement if the other Party materially breaches any of the covenants, representations, warranties,
or other terms of this Agreement or materially defaults in the performance of any of its
obligations hereunder and such breach or default is not cured within ninety (90) days after written
notice thereof given by the non-breaching Party. Such notice of breach or default must clearly
specify the nature of such breach or default.



          (b) Effect of Termination. All rights, licenses, obligations, covenants and agreements
herein will terminate upon expiration or termination of this Agreement in accordance with the terms
hereof, provided, however, that (i) any rights granted by ABCO in accordance with Section
3.1(b) to Entities with an ABCO General Counsel Membership to use the General Counsel Materials
and any rights granted by CEB in accordance with Section 3.2(b) to Entities with a CEB
Employer Health Membership to use Employer Health Materials will survive any expiration or
termination of this Agreement, and (ii) the following provisions will survive any expiration or
termination of this Agreement for the periods of time stated therein or indefinitely if no shorter
period is so specified: Sections 2.1(c), 3.1(g), 3.2(g), 4.3 through 4.7, and 5.1(b)
through 5.9. Any termination or expiration of this Agreement will not relieve the Parties of any
liability that accrued hereunder prior to such termination or expiration. In addition, any
termination or expiration of this Agreement will not preclude any Party from pursuing all rights
and remedies it may have hereunder or under applicable laws (including, but not limited to,
monetary damages, specific performance, and injunctive relief). The remedies provided herein are
not exclusive of other remedies available to a Party under applicable laws.




     5.2 Assignment; Successors and Assigns. This Agreement will not be assignable by
either Party without the prior written consent of the other Party, it being acknowledged and agreed
by the Parties that the sale of all or substantially all of a Party’s assets (provided such sale
includes this Agreement) to, or a merger, consolidation, share exchange or other similar business
combination of a Party with, a Third Party will not constitute an assignment for purposes of this
Section 5.2 and no such written consent of the other Party will be required.
Notwithstanding the preceding sentence, this Agreement will, in all events, be binding on each
Party’s successors and permitted assigns.



     5.3 Notices. All notices, claims, demands, and other communications hereunder will be
in writing and will be deemed given upon (a) confirmed delivery by a standard overnight carrier or
when delivered by hand or (b) the expiration of three (3) business days after the day when mailed
by registered or certified mail (postage prepaid, return receipt requested), addressed to the
respective Parties at the following addresses (or such other address for a Party as will be
specified by like notice):



	 	 	 
	On behalf of CEB:

	 	Chief Executive Officer
	 

	 	The Corporate Executive Board Company
	 

	 	2000 Pennsylvania Avenue, N.W.
	 

	 	Suite 6000
	 

	 	Washington, D.C. 20006
	 

	 	Facsimile: (202) 777-5100






63









 






	 	 	 
	On behalf of ABCO:

	 	Chief Executive Officer
	 

	 	The Advisory Board Company
	 

	 	2445 M Street, N.W.
	 

	 	Washington, D.C. 20037
	 

	 	Facsimile: (202) 266-5700






     5.4 Severability. Each paragraph and provision of this Agreement is severable from
the entire Agreement, and if any provision is declared invalid, the remaining provisions will
nevertheless remain in effect, and the invalid provision will be deemed to be amended, but only to
the extent necessary to make the provision valid and enforceable consistent with the Parties’
respective intentions as of the Effective Date.



     5.5 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof, and no amendment or modification of any of the
terms and conditions of this Agreement will be valid unless in writing and executed by both
Parties. Any prior oral or written agreements or understandings with respect to the subject matter
hereof are not considered a part of this Agreement and are superseded hereby effective as of the
Effective Date, including the Non-Competition Agreement, effective as of January 1, 1999, among the
Parties and David G. Bradley, as amended.



     5.6 Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware (excluding its choice of law rules).



     5.7 Dispute Resolution. The Parties will endeavor to settle all disputes by amicable
negotiations. Any claim, dispute, disagreement or controversy that arises among the Parties
(“Disputed Matter”) relating to this Agreement that is not amicably settled will be
referred to and settled by arbitration administered by the American Arbitration Association in
accordance with the Expedited Procedures of the Commercial Arbitration Rules of the American
Arbitration Association (the “AAA Rules”) by a single arbitrator who is mutually agreeable
to the Parties. If the Parties are unable to agree upon an arbitrator, one arbitrator will be
selected in accordance with the AAA Rules. All proceedings in any such arbitration will be
conducted in Washington, D.C. Each Party to such arbitration proceeding will bear its respective
costs, fees and expenses in connection with such arbitration. Upon a final determination by the
arbitrator with respect to the Disputed Matter, the arbitrator will notify the Parties (such notice
being the “Arbitration Order”). Any judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Jurisdiction of such arbitrator will be
exclusive as to disputes among the Parties relating to this Agreement and each of the Parties agree
that this agreement to arbitrate will be specifically enforceable under the laws of the respective
domiciliary jurisdictions of the Parties. Neither of the Parties will have the right to appeal the
Arbitration Order or otherwise to submit a dispute relating to this Agreement to a court of law.



     5.8 Counterparts. This Agreement may be executed in counterparts, each of which will
constitute an original and all of which will be one and the same document.



     5.9 Waiver. No delay or failure on the part of either Party in exercising any right,
power, or privilege under this Agreement or under any other document furnished in connection with
or pursuant to this Agreement will impair any such right, power, or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise of any such
right, power, or privilege will preclude the further exercise of such right, power, or privilege.
No waiver will be valid against either Party unless made in writing and signed by such Party
against whom enforcement of such waiver is sought and then only to the extent expressly specified
therein.



[Signature page follows.]




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     IN WITNESS WHEREOF, the Parties, acting through their duly authorized officers, have executed
and delivered this Agreement as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	THE ADVISORY BOARD COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frank J. Williams
 

Frank J. Williams
	 	 
	 

	 	 	 	Chairman and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	THE CORPORATE EXECUTIVE BOARD COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas L. Monahan III	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Thomas L. Monahan III	 	 
	 

	 	 	 	Chief Executive Officer	 	 






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