PROHIBITS, RESTRAINS OR ENJOINS THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED HEREBY; THERE SHALL BE NO PENDING SUIT, ACTION OR PROCEEDING BY ANY
GOVERNMENTAL ENTITY SEEKING TO RESTRAIN OR PROHIBIT THE MAKING OR CONSUMMATION
OF THE TRANSACTION CONTEMPLATED HEREBY OR SEEKING TO OBTAIN MATERIAL DAMAGES
WITH RESPECT THERETO; AND THERE SHALL BE NO FAILURE OF THE CONDITIONS SET FORTH
IN SECTION 7.1(B) OR SECTION 7.2(E) OF THE MERGER AGREEMENT (UNLESS EACH SUCH
FAILURE HAS BEEN WAIVED BY ALL NECESSARY PARTIES).
(H)
BUYER SHALL HAVE RECEIVED COMMITMENTS TO PROVIDE DEBT FINANCING IN
AN AMOUNT NOT LESS THAN $26 MILLION ON COMMERCIALLY REASONABLE TERMS AND
CONDITIONS;
(I)
THE TRANSACTIONS CONTEMPLATED BY THAT CERTAIN AGREEMENT AND PLAN
OF MERGER (THE "MERGER AGREEMENT"), DATED AS OF MAY 14, 2007, BY AND AMONG
PEARSON EDUCATION, INC., EPSILON ACQUISITION CORP. AND ECOLLEGE.COM SHALL HAVE
BEEN CONSUMMATED OR SHALL BE CONSUMMATED SIMULTANEOUSLY WITH THE CLOSING; AND
5
(J)
THERE SHALL NOT HAVE OCCURRED A MATERIAL ADVERSE EFFECT.
If the Closing occurs, all closing conditions set forth in this Section 2.01
which have not been fully satisfied as of the Closing shall be deemed to have
been fully waived by Buyer.
2.02
Conditions to Seller's Obligations.
The obligations of Seller to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions as of the Closing Date:
(A)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE V (OTHER
THAN THOSE REPRESENTATIONS AND WARRANTIES THAT ADDRESS MATTERS AS OF PARTICULAR
DATES WHICH SHALL REMAIN TRUE AND CORRECT AS OF SUCH DATES) SHALL BE TRUE AND
CORRECT AT AND AS OF THE CLOSING DATE AS THOUGH THEN MADE AND AS THOUGH THE
CLOSING DATE WERE SUBSTITUTED FOR THE DATE OF THIS AGREEMENT THROUGHOUT SUCH
REPRESENTATIONS AND WARRANTIES (WITHOUT GIVING EFFECT TO MATERIALITY, MATERIAL
ADVERSE EFFECT, OR SIMILAR PHRASES IN THE REPRESENTATIONS AND WARRANTIES) EXCEPT
WHERE THE FAILURE TO BE SO TRUE AND CORRECT WOULD NOT HAVE A MATERIAL ADVERSE
EFFECT ON THE ABILITY OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY;
(B)
BUYER SHALL HAVE PERFORMED AND COMPLIED WITH IN ALL MATERIAL
RESPECTS ALL THE COVENANTS AND AGREEMENTS REQUIRED TO BE PERFORMED AND COMPLIED
WITH BY IT UNDER THIS AGREEMENT AT OR PRIOR TO THE CLOSING;
(C)
RESERVED;
(D)
NO JUDGMENT, DECREE OR ORDER SHALL HAVE BEEN ENTERED WHICH WOULD
PREVENT THE PERFORMANCE OF THIS AGREEMENT OR THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY, DECLARE UNLAWFUL THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT OR CAUSE SUCH TRANSACTIONS TO BE RESCINDED;
(E)
BUYER SHALL HAVE DELIVERED TO SELLER CERTIFIED COPIES OF THE
RESOLUTIONS DULY ADOPTED BY BUYER'S BOARD OF DIRECTORS (OR ITS EQUIVALENT
GOVERNING BODY) AUTHORIZING ITS EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE OTHER AGREEMENTS CONTEMPLATED HEREBY TO WHICH IT IS A PARTY;
(F)
RESERVED;
(G)
BUYER SHALL HAVE DELIVERED TO SELLER A CERTIFICATE IN THE FORM SET
FORTH AS EXHIBIT C, DATED THE CLOSING DATE, STATING THAT THE PRECONDITIONS
SPECIFIED IN SUBSECTIONS (A), (B) AND (D) HAVE BEEN SATISFIED;
(H)
BUYER