EXHIBIT 10.1
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, DATED AS OF MAY 14, 2007 (THIS "AGREEMENT"), BY AND BETWEEN
PEARSON EDUCATION, INC., A DELAWARE CORPORATION ("PARENT"), ON THE ONE HAND, AND
THE STOCKHOLDERS OF THE COMPANY (AS DEFINED BELOW) SET FORTH ON THE SIGNATURE
PAGE HERETO (COLLECTIVELY, THE "STOCKHOLDERS"), ON THE OTHER HAND.
W I T N E S S E T H:
WHEREAS, PARENT, EPSILON ACQUISITION CORP., A DELAWARE CORPORATION AND A
WHOLLY-OWNED SUBSIDIARY OF PARENT ("MERGER SUB"), AND ECOLLEGE.COM, A DELAWARE
CORPORATION (THE "COMPANY"), HAVE ENTERED INTO AN AGREEMENT AND PLAN OF MERGER,
DATED AS OF THE DATE HEREOF (AS IT MAY BE AMENDED, THE "MERGER AGREEMENT"; TERMS
DEFINED IN THE MERGER AGREEMENT AND NOT OTHERWISE DEFINED HEREIN BEING USED
HEREIN AS THEREIN DEFINED), PURSUANT TO WHICH, AMONG OTHER THINGS, MERGER SUB
WILL MERGE WITH AND INTO THE COMPANY (THE "MERGER") AND EACH ISSUED AND
OUTSTANDING SHARE OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF THE COMPANY
(THE "COMMON STOCK") (OTHER THAN SHARES CANCELLED PURSUANT TO SECTION 2.1(B) OF
THE MERGER AGREEMENT AND DISSENTING SHARES) WILL BE CONVERTED INTO THE RIGHT TO
RECEIVE THE MERGER CONSIDERATION.
WHEREAS, AS OF THE DATE OF THIS AGREEMENT, THE STOCKHOLDERS OWNED OF RECORD AND
BENEFICIALLY AN AGGREGATE OF 4,618,154 SHARES OF COMMON STOCK AND EACH
STOCKHOLDER OWNED THE NUMBER OF SUCH SHARES SET FORTH BESIDE SUCH STOCKHOLDER'S
NAME ON THE SIGNATURE PAGE HERETO (SUCH COMMON STOCK (THE "EXISTING SHARES"),
TOGETHER WITH ANY OTHER COMMON STOCK ACQUIRED BY ANY STOCKHOLDER AFTER THE DATE
HEREOF, WHETHER ACQUIRED DIRECTLY OR INDIRECTLY, BY PURCHASE, STOCK DIVIDEND,
DISTRIBUTION, SPLIT-UP, RECAPITALIZATION, COMBINATION, EXCHANGE OF SHARES OR THE
LIKE, OR UPON THE RECEIPT, VESTING OR EXERCISE, AS APPLICABLE, OF EQUITY
INCENTIVES OR OTHERWISE, IN EACH CASE FROM THE DATE OF THIS AGREEMENT THROUGH
THE TERM OF THIS AGREEMENT, ARE COLLECTIVELY REFERRED TO HEREIN AS THE
STOCKHOLDERS' "SUBJECT SHARES").
WHEREAS, AS A CONDITION AND INDUCEMENT TO PARENT'S AND MERGER SUB'S WILLINGNESS
TO ENTER INTO THE MERGER AGREEMENT, PARENT HAS REQUESTED THAT THE STOCKHOLDERS
AGREE, AND EACH OF THE STOCKHOLDERS HAS AGREED, TO ENTER INTO THIS AGREEMENT.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN, AND
INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES HERETO HEREBY AGREE AS
FOLLOWS:
ARTICLE I
VOTING AGREEMENT; GRANT OF PROXY
SECTION 1.01.
AGREEMENT TO VOTE.
EACH STOCKHOLDER HEREBY AGREES TO TAKE
(OR CAUSE TO BE TAKEN) THE FOLLOWING ACTIONS (WHETHER IN PERSON, BY PROXY OR BY
WRITTEN CONSENT):
(I)
TO APPEAR AT ANY MEETING OF THE STOCKHOLDERS OF THE COMPANY, HOWEVER
CALLED, AND AT ANY ADJOURNMENT OR POSTPONEMENT THEREOF AT WHICH THE MERGER
AGREEMENT AND THE MERGER ARE SUBMITTED FOR THE CONSIDERATION AND VOTE OF THE
STOCKHOLDERS OF THE COMPANY OR OTHERWISE CAUSE THE SUBJECT SHARES OWNED
BENEFICIALLY OR OF RECORD BY THE STOCKHOLDERS TO BE COUNTED AS PRESENT THEREAT
FOR PURPOSES OF CALCULATING A QUORUM; AND
(II)
TO VOTE (OR CAUSE TO BE VOTED), IN PERSON OR BY PROXY, OR IF
APPLICABLE BY