Vendor Contracts Agreement - The Advisory Board Co. and The Corporate Executive Board Co.
VENDOR CONTRACTS AGREEMENT
THIS VENDOR CONTRACTS AGREEMENT, dated as of July 21, 1998, (this
"Agreement"), is made by and between THE ADVISORY BOARD COMPANY, a Maryland
corporation ("ABC") and THE CORPORATE EXECUTIVE BOARD COMPANY (formerly known as
the Corporate Advisory Board Company), a Delaware corporation ("CEB").
WHEREAS, ABC and CEB are parties to a Vendor Contracts Agreement, dated
October 31, 1997 (the "Original Agreement");
WHEREAS, ABC and CEB desire to amend and restate the Original Agreement,
among other things, to extend the term of the Original Agreement through October
31, 1998;
WHEREAS, the parties hereto desire to amend, modify and restate the
Original Agreement in accordance with the foregoing; and
WHEREAS, the parties hereto amend and restate the following recitals:
RECITALS
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A. ABC and CEB have entered into a Distribution Agreement dated as of
October 31, 1997 (the "Distribution Agreement"), providing for the contribution
by ABC of the Transferred Business to CEB.
B. Following the Contribution, subject to the conditions set forth in the
Distribution Agreement, all issued and outstanding shares of capital stock of
CEB were distributed to the Sole Stockholder.
C. In the interest of an orderly transition with respect to the transfer
of the Transferred Business to CEB and certain third-party vendor contracts
relating thereto (the "Vendor Contracts"), the parties desire to provide for (i)
the provision during the Transition Period of services pursuant to the Vendor
Contracts (the "Vendor Services") to CEB or ABC as appropriate and (ii) the
appropriate allocation of related costs and expenses relating to such Vendor
Services.
The parties agree as follows:
1. Definitions. Unless the context otherwise requires, capitalized
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terms not otherwise defined herein shall have the respective meanings given to
them in the Distribution Agreement.
2. Vendor Services.
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(a) The Vendor Contracts are set forth in Attachment 1 hereto. Subject
to the terms of this Agreement, upon the written request setting forth
additional or amended Vendor Services to be provided to CEB made by an Executive
Vice President of CEB or a person designated to act on his behalf in an
instrument executed by such CEB Executive Vice President
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and delivered to ABC, ABC shall provide, or cause provision, to CEB of each of
the Vendor Services with respect to the Transferred Business in the manner and
to the same general extent as such Vendor Services have been provided to ABC in
connection with the Transferred Business before the Contribution.
(b) Costs and expenses relating to Vendor Contracts shall be allocated as
shall be determined by the parties as follows or as otherwise shall be mutually
agreed in writing by the parties:
(i) Segregate Vendor Contract Invoices: If invoices relating to
Vendor Services can be divided to reflect properly the Vendor Services
provided to ABC and CEB, respectively, such invoices shall be
segregated and paid directly by the appropriate party to whom the
related Vendor Services were provided.
(ii) Reimburse ABC: In the event that invoices relating to Vendor
Services cannot be segregated and paid as described in subparagraph
(i) above, CEB shall pay its allocated share directly or reimburse ABC
for Vendor Services provided to CEB pursuant to this Agreement as set
forth in Attachment 1.
3. Term. Except with respect to Section 6, the term of this Agreement
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shall be two (2) years commencing on October 31, 1997 (the "Term"). CEB shall
have the right to terminate a Vendor Service or Vendor Services upon sixty (60)
days prior written notice to ABC. Termination of one or more Vendor Services by
CEB shall not affect the obligation of ABC to furnish all other Services for the
remainder of the Term.
4. Nondisclosure. In the event that, during the Term and in connection
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with a party's performance of its obligations hereunder, either party shall
receive information concerning the other party hereto which the receiving party
knows, or has reason to believe, is confidential or proprietary to the party to
whom such information relates, the party receiving such information shall take
all reasonable steps to (a) protect and hold such information in confidence and
prevent its disclosure to third parties unless such third parties are under a
duty of confidentiality to the party to which such information relates; and (b)
restrict its use to those purposes consented to in writing by the party to whom
such information relates; provided, however, that the party receiving such
information shall not be required to protect or hold in confidence any
information or data which (i) is or becomes available to the public without the
fault of the receiving party, (ii) is independently developed by the receiving
party, (iii) is disclosed to the receiving party by a third party known to the
receiving party not to be under any duty of confidentiality to the party to whom
such information relates with respect to such information or (iv) except as may
otherwise be required by law. This Section 4 shall not limit the obligation of
the parties under the Distribution Agreement to provide access to records after
the date hereof.
5. Limitation on Liability. ABC's liability to CEB in connection with
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this Agreement and the Vendor Services to be provided by ABC shall be limited to
actual damages arising from ABC's gross negligence or willful misconduct in the
performance of its duties and responsibilities hereunder; provided, however,
that, in no event shall ABC be liable for any incidental or consequential
damages.
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6. Indemnity.
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(a) ABC agrees to defend, indemnify and hold CEB and its officers,
directors, employees and agents harmless from and against all liabilities,
losses, claims, damages and expenses of any nature, including reasonable
attorneys' fees, that are reasonably incurred by CEB arising out of the
performance of the Services hereunder, except where such liability, loss, claim,
damage or expense shall have been caused by CEB's gross negligence or willful
misconduct in the performance of its duties and responsibilities hereunder.
(b) CEB agrees to defend, indemnify and hold ABC and its officers,
directors, employees and agents harmless from and against all liabilities,
losses, claims, damages and expenses of any nature, including reasonable
attorneys' fees, that are reasonably incurred by ABC arising out of the
performance of the Services hereunder, except where such liability, loss, claim,
damage or expense shall have been caused by ABC's gross negligence or willful
misconduct in the performance of its duties and responsibilities hereunder.
7. Mutual Cooperation. ABC and CEB will provide each other with
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information and assistance reasonably necessary to investigate, defend or
prosecute any claims, suits, charges, including but not limited to equal
employment opportunity, workers compensation, insurance and similar claims
brought by or against ABC or CEB relating to either of their businesses. This
provision shall survive termination of this Agreement.
8. Third Party Rights. Nothing in this Agreement, express or implied,
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is intended to confer upon any person (including, without limitation,
employees), other than the parties hereto and their respective successors and
assigns, any rights or remedies of any nature whatsoever under or by reason of
this Agreement.
9. Relationship of Parties. Nothing in this Agreement shall be deemed or
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construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship of independent contractor nor be deemed to vest any
rights, interest or claims in any third parties.
10. Successor and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the respective successors and assigns of the parties hereto,
provided that this Agreement may not be assigned by either of the parties hereto
without the prior written consent of the other.
11. Notices. All notices and other communications required or permitted
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to be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, postage prepaid or by certified
or registered mail, and addressed to the applicable party at the respective
addresses set forth in the Distribution Agreement (or at such other address for
a party as shall be specified by a like notice).
12. Governing Law. The validity, enforceability and performance of this
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Agreement shall be governed by and construed in accordance with the laws of the
State of Maryland (excluding its choice of law rules).
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13. Entire Agreement. The parties intend that the terms of this Agreement,
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including the attached schedules, shall be the final expression of their
agreement with respect to the subject matter hereof and may not be contradicted
by evidence of any prior or contemporaneous agreement. The parties further
intend that this Agreement shall constitute the complete and exclusive statement
of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative or other legal proceedings involving this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
15. Headings. The headings used in this Agreement are inserted for
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convenience of reference only and shall not affect the meaning or interpretation
of any provision of this Agreement.
16. Amendments and Waivers. This Agreement may not be amended except
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upon the written consent of all of the parties. By an instrument in writing, any
party may waive compliance by any other party with any term or provision of this
Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further exercise thereof
or the exercise of any other right remedy, or power provided herein or by law or
in equity. The waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or condition itself.
17. Expenses. Whether or not the transactions contemplated in this
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Agreement are consummated, unless specifically provided otherwise in this
Agreement (including all Schedules hereto), each party shall bear and pay all
expenses incurred by it or on its behalf in connection with the preparation of
this Agreement and consummation of the transactions described herein.
18. Severability. If any provision of this Agreement, or the application
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thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be void, invalid or unenforceable, the remainder of
this Agreement and such provisions as applied to other persons, places or
circumstances shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
THE ADVISORY BOARD COMPANY,
a Maryland corporation
By:
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Its:
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THE CORPORATE EXECUTIVE BOARD
COMPANY, a Delaware corporation
By:
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Its:
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ATTACHMENT 1
VENDOR CONTRACTS
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ADVISORY BOARD COMPANY
EXTERNAL VENDOR SUMMARY
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<TABLE>
<CAPTION>
Nature of Will Split
Vendor Services Billing? If not, Billing Methodology
------------------------- ---------------------- ---------- ------------------------------------------------------
<S> <C> <C> <C>
UPS Package Delivery Yes
Corporate Express Office Supplies Yes
XBS Office Management No XBS contract costs will be charged on copy volume
PMDS Bulk Shipping/Order Yes/No Book inventory currently commingled. Storage
Fulfillment/Storage costs will be split based on volume stored.
Resourcenet Office Supplies No Paper for copiers will be charged based on
anticipated user.
Worldcom Long Distance No Data for long distance usage will be gathered by ABC
Bell Atlantic Local Telephone No Local phone charges will be split on a per user basis
Mead Data Info. Resources No Research charges will be split on a per user basis
JKE Printing Yes
Arthur Andersen Audit/Tax/Consulting Yes
Legal Firms Legal Yes
Dell Computer Purchases No Capital Expenditures split based on user
Comp USA Computer Equipment No Capital Expenditures split based on user
Microsoft Software No Capital Expenditures split based on user
Ritz Carlton/Four Seasons Meeting Space Yes
Ikon Meeting Binders, Misc. Yes
Corporate Visions Meeting Binders Yes
New York Life Health Insurance Yes
Unum Disability Yes
ADP Payroll Services Yes
</TABLE>