UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 2, 2015
Career Education Corporation
(Exact Name of Registrant as Specified in Charter)
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| Delaware |
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0-23245 |
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36-3932190 |
| (State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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| 231 North Martingale Road
Schaumburg, IL |
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60173 |
| (Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s telephone number, including area code: (847) 781-3600
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report.)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On March 2, 2015, the Compensation Committee (the “Committee”) of the Board of Directors of Career Education Corporation (the
“Company”) approved a form of 2015 performance unit award agreement under the Career Education Corporation 2008 Incentive Compensation Plan (the “2008 Plan”), which form is attached as Exhibit 10.1. The terms
of each performance unit award are determined by the Committee in its sole discretion and will be set forth in an individual’s award agreement on the attached form. On March 6, 2015, the Committee granted long term incentive awards under
the 2008 Plan to current “named executive officers” (as such term is defined in Item 402(a)(3) of Regulation S-K) in accordance with their previously established long-term incentive award target value (except for Ronald McCray, who is
discussed below). These awards include performance units, pursuant to the attached form, comprising 50% of the long-term incentive award target value established for the executive officers. Consistent with 2013 and 2014, each 2015 performance unit
award constitutes a right to receive an amount in cash which will be determined based on the target value established by the Committee for a grantee and the Company’s relative total shareholder return (“TSR”) over a three-year
performance period as compared to a company peer group. The payout scale, which includes a minimum performance threshold for payment and a 200% maximum payout, and the company peer group used for the relative TSR measurement are set forth in the
attached form.
On March 2, 2015, the Committee also approved the 2015 Annual Incentive Award Program (the “AIP”) pursuant to the
2008 Plan. The Company’s current executive officers (other than Mr. McCray) participate in the 2015 Annual Incentive Award Program for Key Executives pursuant to the 2008 Plan (the “Key Executive AIP”) which
(i) establishes the maximum amount payable to each identified participant based on achievement of a revenue performance measure and (ii) is designed to qualify amounts earned under the Key Executive AIP as “performance-based”
compensation for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended from time to time. Consistent with recent years, the Committee intends to exercise its negative discretion under the Key Executive AIP to establish
payments thereunder in accordance with the AIP. For 2015, the Committee simplified the AIP performance measures to include an EBITDA performance component (80% weighting) and an individual goals performance component (20% weighting). The EBITDA
performance component is based either entirely on a company-wide EBITDA performance measure or on an equal weighting of company-wide and business unit level EBITDA performance, depending on the functional role of the participant. Achievement of the
target level of performance for both the EBITDA and individual goals performance components results in a payout factor of 60% of a participant’s AIP target value to reflect the Company’s current financial situation. The AIP also includes a
revenue multiplier for participants in the Company’s University group in order to continue to ensure the quality of earnings as well as growth. Threshold EBITDA performance levels of at least 85% must be achieved for any payments under the AIP,
and payments are capped at 200% of a participant’s AIP target value (subject to possible increase for some participants due to the revenue multiplier).
On March 6, 2015, the Committee granted long-term incentive awards to Reid Simpson, the Company’s Senior Vice President and Chief Financial Officer,
in addition to the regular annual awards received in accordance with his previously established long-tern incentive award target value. These additional awards are designed to provide Mr. Simpson with the full value of the new hire equity
awards contemplated by the Company’s May 21, 2014 offer letter to Mr. Simpson. As a result of the Company’s internal practice of using an average stock price over an extended period of time to determine the size of an equity
award designed to achieve a desired target value, the awards made at the time Mr. Simpson joined the Company did not achieve the offer letter value as anticipated by Mr. Simpson in accepting his offer. These additional awards consist of
stock options to purchase 17,697 shares of the Company’s common stock and 23,308 stock-settled restricted stock units, which vest in three equal installments on each of March 14, 2016, 2017 and 2018. Other terms of the additional awards to
Mr. Simpson are consistent with the previously disclosed form award agreements.
On March 6, 2015, the Committee granted the following to Ronald
McCray in accordance with the previously disclosed compensation arrangements established for Mr. McCray in connection with his employment as the Company’s Interim President and Chief Executive Officer: (i) 250,000 stock-settled
restricted stock units under the 2008 Plan pursuant to the form award agreement attached as Exhibit 10.2, and (ii) 11,324 cash-settled restricted stock units outside of the 2008 Plan pursuant to the form award agreement attached as
Exhibit 10.3. The restricted stock unit awards vest on March 14, 2016 based on the level of achievement of company-wide 2015 EBITDA, as
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defined for purposes of the AIP, and the number of restricted stock units eligible for vesting will be based on the length of Mr. McCray’s tenure in his role as Interim President and
Chief Executive Officer, with 25% being eligible for vesting as of the grant date and an additional 25% eligible for vesting on each of April 1, 2015, July 1, 2015 and October 1, 2015. The terms and conditions of the restricted
stock units granted to Mr. McCray, including the scale for determining the number of restricted stock units eligible for vesting based on achievement of the above-referenced EBITDA performance measure, are set forth in the forms of restricted
stock unit agreements attached as Exhibit 10.2 and Exhibit 10.3.
The descriptions of the 2015 performance unit awards and the restricted
stock unit awards to Ronald McCray do not purport to be complete and are qualified in their entirety by reference to the form agreements, copies of which are attached to this Current Report on Form 8-K as Exhibits 10.1, 10.2 and 10.3 and are
incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits. |
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| Exhibit
Number |
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Description of Exhibits |
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| 10.1 |
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Form of 2015 Performance Unit Agreement under the Career Education Corporation 2008 Incentive Compensation Plan (the “2008 Plan”) |
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| 10.2 |
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Form of Restricted Stock Unit Agreement under the 2008 Plan dated March 6, 2015 between Career Education Corporation and Ronald McCray (Performance-Based) |
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| 10.3 |
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Form of Cash-Settled Restricted Stock Unit Agreement dated March 6, 2015 between Career Education Corporation and Ronald McCray (non-plan) (Performance-Based) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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| CAREER EDUCATION CORPORATION |
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| By: |
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/s/ Reid E. Simpson |
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Reid E. Simpson |
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Senior Vice President and Chief Financial Officer |
Date: March 6, 2015
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Exhibit Index
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| Exhibit
Number |
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Description of Exhibits |
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| 10.1 |
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Form of 2015 Performance Unit Agreement under the Career Education Corporation 2008 Incentive Compensation Plan (the “2008 Plan”) |
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| 10.2 |
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Form of Restricted Stock Unit Agreement under the 2008 Plan dated March 6, 2015 between Career Education Corporation and Ronald McCray (Performance-Based) |
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| 10.3 |
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Form of Cash-Settled Restricted Stock Unit Agreement dated March 6, 2015 between Career Education Corporation and Ronald McCray (non-plan) (Performance-Based) |
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Exhibit 10.1
2015 Performance Unit Agreement
For use commencing March 2015
CAREER EDUCATION CORPORATION
2008 INCENTIVE COMPENSATION PLAN
PERFORMANCE UNIT AGREEMENT
This PERFORMANCE UNIT AGREEMENT (this “Agreement”) dated
(the “Grant Date”) is by and between Career Education Corporation, a Delaware corporation (the “Company”),
and (the “Grantee”).
To evidence such award and to set forth its terms, the Company and the Grantee agree as follows:
1. Definitions. All capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the Career Education Corporation 2008
Incentive Compensation Plan, as amended (the “Plan”). When used herein, the following terms shall have the meaning set forth in this Section 1.
(a) “Award Percentage” means a percentage determined pursuant to the table set forth below based on the Company’s
Performance Percentile.
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| Performance Percentile |
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Award Percentage |
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| 75 or higher |
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200 |
% |
| 70 |
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180 |
% |
| 60 |
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140 |
% |
| 50 |
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100 |
% |
| 40 |
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80 |
% |
| 30 |
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60 |
% |
| 25 |
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50 |
% |
| Lower than 25 |
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0 |
% |
Note: To the extent the Performance Percentile is in between the percentiles listed in the table above, the
applicable Award Percentage will be interpolated. For example, if the Performance Percentile is 55, then the Award Percentage would be 120%.
Notwithstanding the foregoing table, if the Company’s Total Shareholder Return is less than zero (0), then the Award Percentage will be
determined pursuant to the table set forth above, but in such case, the Award Percentage shall not exceed 100%.
(b) “Closing Stock
Price” means the average closing stock price for the 90-day period immediately preceding the end of the Performance Period. The Closing Stock Price shall be adjusted so that such price represents the amount it would have been had all
dividends paid during the Performance Period been reinvested in stock of the Company or the Peer Group member, as applicable, on the dividend date.
(c) “Opening Stock Price” means the average closing stock price for the 90-day period immediately preceding the beginning of
the Performance Period.
(d) “Payment Date” means a date selected by the Company which shall occur any time between the
period beginning January 1, 2018 and ending on March 15, 2018.
(e) “Peer Group” means the entities listed on Exhibit A, but in each case
only to the extent the stock of such entity remains publicly traded on a national securities exchange as of the last day of the Performance Period.
(f) “Performance Percentile” means the rank, expressed as a percentile, of the Company’s Total Shareholder Return for the
Performance Period when compared against the Total Shareholder Return of each of the members of the Peer Group. For purposes of this ranking, the Total Shareholder Return for each member of the Peer Group shall first be determined and ranked and
then the Total Shareholder Return of the Company shall be compared to the ranking of the Peer Group members. The Committee retains the discretion to adjust the Performance Percentile if it believes that the Performance Percentile is adversely
impacted due to fewer companies remaining part of the Peer Group (e.g., due to the stock not being publicly traded at the end of the Performance Period as a result of bankruptcy or acquisition by another company).
(g) “Performance Period” means the period beginning on January 1, 2015 and ending on December 31, 2017.
(h) “Target Value” means [INSERT TARGET VALUE FOR GRANTEE].
(i) “Total Shareholder Return” means the result (positive or negative) of the following formula (expressed as a percentage):
(A – B)/B; where “A” equals the Closing Stock Price, and “B” equals the Opening Stock Price.
2. Grant of Performance
Unit. Subject to and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the Grantee a performance unit (the “Performance Unit”) on the Grant Date, and the Grantee hereby accepts the
grant of the Performance Unit as set forth herein. Except as otherwise provided herein, the Performance Unit granted hereby shall have no value until the Payment Date.
3. Limitations on Transferability. Except in the event of the death of the Grantee, at any time prior to the Payment Date, the Performance Unit, or any
interest therein, cannot be directly or indirectly transferred, sold, assigned, pledged, hypothecated, encumbered or otherwise disposed.
4. Payment
for Performance Unit. Following the end of the Performance Period, but not later than March 15, 2018, the Company will pay the Grantee an amount in respect of the Performance Unit (which amount may not be less than zero dollars ($0))
determined pursuant to this Section 4. The amount due to the Grantee in respect of the Performance Unit shall equal the product of (a) the Target Value, multiplied by (b) the Award Percentage. The amount payable to the Grantee
hereunder shall be subject to tax withholding as required by Section 24.
5. Termination of Service. Subject to Section 6, the provisions
of this Section 5 shall apply in the event the Grantee incurs a Termination of Service at any time prior to the end of the Performance Period.
(a) If the Grantee incurs a Termination of Service prior to the end of the Performance Period because of his or her death or Disability, the
Grantee (or his or her Beneficiary, if applicable) shall receive a payment in respect of the Performance Unit equal to the result of the following formula: A x (B/1095); where “A” equals the Target Value and “B” equals the number
of days elapsing between the beginning of the Performance Period and the
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applicable Termination of Service. The amount payable pursuant to this Section 5(a) (i) will be paid as soon as reasonably possible following the date of such Termination of Service,
but in no case later than March 15 of the year following the year in which such Termination of Service occurs, and (ii) will be subject to tax withholding as required by Section 24.
(b) If the Grantee incurs a Termination of Service prior to the end of the Performance Period for any reason other than his or her death or
Disability, then the Performance Unit shall be immediately forfeited to the Company and no amount will become due or owing to the Grantee under this Agreement.
For the avoidance of doubt, (i) if the Grantee incurs a Termination of Service for any reason other than Cause after the end of the Performance Period
but prior to the Payment Date, he or she shall remain eligible for the payment described in Section 4 hereof, and (ii) in the event the Grantee incurs a Termination of Service for Cause at any time prior to the Payment Date, no amount
shall be payable to the Grantee hereunder and the Performance Unit shall be forfeited by the Grantee as of the date of such Termination of Service.
6.
Change in Control. Upon a Change in Control, the Grantee will have such rights with respect to the Performance Unit as are provided for in the Plan.
7. Adjustment. The Committee may make or provide for such adjustments as provided for in Section 4.2 of the Plan.
8. Plan Amendment. No discontinuation, modification, or amendment of the Plan may, without the written consent of the Grantee, adversely affect the
rights of the Grantee under this Agreement, except as otherwise provided under the Plan.
9. No Stockholder Rights. The Performance Unit represents
only the right to receive cash pursuant to the terms hereof and shall not represent an equity security of the Company and shall not carry any voting or dividend rights.
10. Employment Rights. This Agreement is not a contract of employment and the terms of employment of the Grantee or other relationship of the Grantee
with the Company shall not be affected in any way by this Agreement except as specifically provided herein. The Grantee’s execution or acceptance of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a
continuation of an employment or other relationship with the Company, nor shall it interfere with the right of the Company to discharge the Grantee and to treat him or her without regard to the effect which such treatment might have upon him or her
as a Grantee.
11. Disclosure Rights. Except as required by applicable law, the Company (or any of its affiliates) shall not have any duty or
obligation to disclose any information to the holder of the Performance Unit.
12. Governing Law. The interpretation, performance and enforcement
of this Agreement shall be governed by and enforced in accordance with the laws of the State of Delaware (other than its laws respecting choice of law).
13. Compliance with Laws and Regulations. Notwithstanding anything herein to the contrary, the Company shall not be obligated to pay amounts
due hereunder unless and until the Company is advised by its counsel that such payment is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which
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Shares are traded. The Company may require, as a condition of such payment, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make such covenants,
agreements, and representations as the Company, in its sole discretion, considers necessary or desirable. In addition, to the extent that all or any portion of any payment otherwise due hereunder would not be deductible by the Company for federal
tax purposes (irrespective of whether the Company would, in fact, have the ability to take advantage of such deduction), then the Company reserves the right to reduce or eliminate such payment to an amount that would be deductible by the Company for
federal tax purposes.
14. Successors and Assigns. Except as otherwise expressly set forth in this Agreement, the provisions of this Agreement
shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
15. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or
otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
16. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal
place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid,
return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient. Notwithstanding the foregoing, any notice required or permitted hereunder from the Company to the
Grantee may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Grantee, and the Grantee hereby consents to receive such notice by electronic delivery. To the extent permitted in an
electronically delivered notice described in the previous sentence, the Grantee shall be permitted to respond to such notice or communication by way of a responsive electronic communication, including by electronic mail.
17. Construction. Notwithstanding any other provision of this Agreement, this Agreement is made, and the Performance Unit is granted, pursuant to the
Plan and are in all respects limited by and subject to the express provisions of the Plan, as amended from time to time. To the extent any provision of this Agreement is inconsistent or in conflict with any term or provision of the Plan, the Plan
shall govern. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules and regulations adopted by the Committee for purposes of administering the Plan shall be final and binding upon the Grantee and all
other persons.
18. Entire Agreement. This Agreement, together with the Plan, constitute the entire obligation of the parties hereto with respect
to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
19. Amendment.
This Agreement may be amended as provided under the Plan, but except as provided in the Plan no such amendment shall adversely affect the Grantee’s rights under the Agreement without the Grantee’s written consent, unless otherwise
permitted by the Plan.
20. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any
provision hereof shall not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to
time.
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21. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original,
but both of which shall constitute but one and the same instrument.
22. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this Agreement.
23. Severability. If any provision of this Agreement shall for
any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not effect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
24. Tax Consequences. Payments made pursuant hereto shall be subject to all required tax withholding obligations.
25. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions
thereof, and hereby accepts the Performance Unit subject to all the terms and provisions of this Agreement and of the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be
conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
26. Restrictive Covenants. [The following shall be applicable to Grantees except those in the categories with special provisions set forth below]
In consideration of receiving the Performance Unit hereunder, and as a term and condition of the Grantee’s employment with the Company, the Grantee agrees to adhere to, and be bound by, the following restrictions. The Grantee hereby
acknowledges that the Grantee’s job responsibilities give the Grantee access to confidential and proprietary information belonging to the Company and/or its subsidiaries, and that this and other confidential information to which the Grantee has
access would be of value, and provide an unfair advantage, to a competitor in competing against the Company or its subsidiaries in any of the markets in which the Company or its subsidiaries maintains schools, provides on-line education classes or
otherwise conducts business. The Grantee further acknowledges that the following restrictions will not cause the Grantee undue hardship. Consequently, the Grantee agrees that the restrictions below (the “Restrictive Covenants”) are
reasonable and necessary to protect the Company’s and/or its subsidiaries’ legitimate business interests.
During the Grantee’s employment
with the Company and/or any of its subsidiaries and continuing thereafter for the post-termination periods specified below, the Grantee will not, in any way, directly or indirectly, either for the Grantee or any other person or entity, whether paid
or unpaid:
(a) For months following Grantee’s voluntary resignation from
Grantee’s employment with the Company or Grantee’s termination from employment by the Company for Cause, accept employment with, own, manage, operate, consult or provide expert services to any person or entity that competes with the
Company or any of its subsidiaries in any capacity that involves any responsibilities or activities involving or relating to any Competing Educational Service, as defined herein. “Competing Educational Service” means any educational
service that competes with the educational services provided by the Company
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and/or any of its subsidiaries, including but not limited to coursework in the areas of visual communication and design technologies; information technology; business studies; culinary arts; and
health education, or any education service. The Grantee hereby acknowledges that the following organizations, among others, provide Competing Educational Services and, should the Grantee accept employment with, own, manage, operate, consult or
provide expert services to any of these organizations, it would inevitably require the use and/or disclosure of confidential information belonging to the Company and/or its subsidiaries and would provide such organizations with an unfair business
advantage over the Company: American Public Education, Inc., Anthem Education, Apollo Education Group, Inc., Bridgepoint Education, Inc., Capella Education Company, Career Step, LLC, Delta Career Education Corporation, DeVry Education Group
Inc., Education Management Corporation, EmbanetCompass, Grand Canyon Education Inc., ITT Educational Services Inc., Kaplan, Inc., Laureate Education, Inc., Learning Tree International Inc., Lincoln Education Services Corporation, National American
University Holdings Inc., Ross Education, LLC, Strayer Education Inc., Universal Technical Institute Inc., Zenith Education Group, Inc. and each of their respective subsidiaries, affiliates and successors. The Grantee further acknowledges that the
Company and/or its subsidiaries provide career-oriented education through physical campuses throughout the United States and web-based virtual campuses throughout the world and, therefore, it is impracticable to identify a limited, specific
geographical scope for this Restrictive Covenant. For avoidance of doubt, in the event the Grantee is involuntarily terminated from employment with the Company other than for Cause, the Grantee will not be subject to any post-termination noncompete
restriction under this Section 26(a).
(b) For months following Grantee’s
termination of employment with the Company for any reason, solicit, attempt to solicit, assist with the solicitation of, direct another to solicit, or otherwise entice any employee of the Company or any of its subsidiaries to leave his/her
employment.
(c) At all times following the Grantee’s termination of employment with the Company for any reason, reveal, divulge, or
make known to any person, firm or corporation any confidential information, or take any other action, in violation of the Confidential Information Policy in the Company’s Code of Business Conduct & Ethics
Should the Grantee breach the terms of these Restrictive Covenants, the Company reserves the right to enforce the terms herein in court and seek any and all
remedies available to it in equity and law, and the Grantee agrees to pay the Company’s attorneys’ fees and costs should it succeed on its claim(s). Further, should the Grantee breach the terms of these Restrictive Covenants, the Grantee
will forfeit any right to the payments made or remaining due hereunder, subject to the terms and conditions of the Plan, and the Grantee agrees to pay the Company’s attorneys’ fees and costs incurred in recovering such payments made
pursuant hereto.
It is the intention of the Grantee and the Company that in the event any of the covenants contained in these Restrictive Covenants are
determined to be unreasonable and/or unenforceable with respect to scope, time or geographical coverage, the Grantee and the Company agree that such covenants may be modified and narrowed by a court, so as to provide the maximum legally enforceable
protection of the Company’s and any of its subsidiaries’ interests as described in this Agreement.
These Restrictive Covenants shall supersede
the terms of the restrictive covenants regarding competition and solicitation of Company employees that are contained in all prior agreements entered into by the Grantee and the Company to evidence an award under the Plan and to set forth the terms
of such award. All of the other terms of such prior agreements shall remain as is and shall not be affected by this Agreement.
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[The following shall be applicable to California and Attorney Grantees as well as Grantees who are deemed to
be in a less competitively significant role]] In consideration of receiving the Performance Unit hereunder, and as a term and condition of the Grantee’s employment with the Company, the Grantee agrees to adhere to, and be bound by, the
following restrictions. The Grantee hereby acknowledges that the Grantee’s job responsibilities give the Grantee access to confidential and proprietary information belonging to the Company and/or its subsidiaries, and that this and other
confidential information to which the Grantee has access would be of value, and provide an unfair advantage, to a competitor in competing against the Company or its subsidiaries in any of the markets in which the Company or its subsidiaries
maintains schools, provides on-line education classes or otherwise conducts business. The Grantee further acknowledges that the following restrictions will not cause the Grantee undue hardship. Consequently, the Grantee agrees that the restrictions
below (the “Restrictive Covenants”) are reasonable and necessary to protect the Company’s and/or its subsidiaries’ legitimate business interests.
During the Grantee’s employment with the Company and/or any of its subsidiaries and continuing thereafter for the post-termination periods specified
below, the Grantee will not, in any way, directly or indirectly, either for the Grantee or any other person or entity, whether paid or unpaid:
(a) For months following Grantee’s voluntary resignation from Grantee’s
employment with the Company or Grantee’s termination from employment by the Company for Cause, accept employment with, own, manage, operate, consult or provide expert services to any person or entity that would require the use, disclosure or
dissemination of confidential information belonging to the Company and/or its subsidiaries. For the avoidance of doubt, in the event the Grantee is involuntarily terminated from employment with the Company other than for Cause, the Grantee will not
be subject to any post-termination restrictive covenant under this Section 26(a).
(b) For
months following Grantee’s termination of employment with the Company for any reason, solicit, attempt to solicit, assist with the solicitation of, direct another to solicit, or otherwise entice
any employee of the Company or any of its subsidiaries to leave his/her employment.
(c) At all times following the Grantee’s
termination of employment with the Company for any reason, reveal, divulge, or make known to any person, firm or corporation any confidential information, or take any other action, in violation of the Confidential Information Policy in the
Company’s Code of Business Conduct & Ethics
Should the Grantee breach the terms of these Restrictive Covenants, the Company reserves the
right to enforce the terms herein in court and seek any and all remedies available to it in equity and law, and the Grantee agrees to pay the Company’s attorneys’ fees and costs should it succeed on its claim(s). Further, should the
Grantee breach the terms of these Restrictive Covenants, the Grantee will forfeit any right to the payments made or remaining due hereunder, subject to the terms and conditions of the Plan, and the Grantee agrees to pay the Company’s
attorneys’ fees and costs incurred in recovering such payments made pursuant hereto.
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It is the intention of the Grantee and the Company that in the event any of the covenants contained in these
Restrictive Covenants are determined to be unreasonable and/or unenforceable with respect to scope, time or geographical coverage, the Grantee and the Company agree that such covenants may be modified and narrowed by a court, so as to provide the
maximum legally enforceable protection of the Company’s and any of its subsidiaries’ interests as described in this Agreement.
These
Restrictive Covenants shall supersede the terms of the restrictive covenants regarding competition and solicitation of Company employees that are contained in all prior agreements entered into by the Grantee and the Company to evidence an award
under the Plan and to set forth the terms of such award. All of the other terms of such prior agreements shall remain as is and shall not be affected by this Agreement.
[The following shall be applicable to non-California Campus President Grantees] In consideration of receiving the Performance Unit hereunder, and as a
term and condition of the Grantee’s employment with the Company, the Grantee agrees to adhere to, and be bound by, the following restrictions. The Grantee hereby acknowledges that the Grantee’s job responsibilities give the Grantee access
to confidential and proprietary information belonging to the Company and/or its subsidiaries, and that this and other confidential information to which the Grantee has access would be of value, and provide an unfair advantage, to a competitor in
competing against the Company or its subsidiaries in any of the markets in which the Company or its subsidiaries maintains schools, provides on-line education classes or otherwise conducts business. The Grantee further acknowledges that the
following restrictions will not cause the Grantee undue hardship. Consequently, the Grantee agrees that the restrictions below (the “Restrictive Covenants”) are reasonable and necessary to protect the Company’s and/or its
subsidiaries’ legitimate business interests.
During the Grantee’s employment with the Company and/or any of its subsidiaries and continuing
thereafter for the post-termination periods specified below, the Grantee will not, in any way, directly or indirectly, either for the Grantee or any other person or entity, whether paid or unpaid:
(a) For months following Grantee’s voluntary resignation from Grantee’s
employment with the Company or Grantee’s termination from employment by the Company for Cause, accept employment with, own, manage, operate, consult or provide expert services to any person or entity that (i) competes with the Company or
any of its subsidiaries in any capacity that involves any responsibilities or activities involving or relating to any Competing Educational Service, as defined herein, and (ii) has or operates any facilities within a 50 mile radius of any
location where the Grantee provided services to the Company or any of its subsidiaries during the one year immediately preceding the date of the Grantee’s separation from the Company. Notwithstanding the foregoing, if the Competing
Educational Services provided by a person or entity do not involve the offering of any of the programs offered (or intended to be offered within one year) by the Company or any of its services at the time of the Grantee’s separation from the
Company, then the radius in clause (ii) in the preceding sentence shall be 25 miles.
“Competing Educational Service” means any educational
service that competes with the educational services provided by the Company and/or any of its subsidiaries, including but not limited to coursework in the areas of visual communication and design technologies; information technology; business
studies; culinary arts; and health education, or any education service. The Grantee hereby acknowledges that the following organizations, among others, provide
8
Competing Educational Services and, should the Grantee accept employment with, own, manage, operate, consult or provide expert services to any of these organizations, it would inevitably require
the use and/or disclosure of confidential information belonging to the Company and/or its subsidiaries and would provide such organizations with an unfair business advantage over the Company: American Public Education, Inc., Anthem Education,
Apollo Education Group, Inc., Bridgepoint Education, Inc., Capella Education Company, Career Step, LLC, Delta Career Education Corporation, DeVry Education Group Inc., Education Management Corporation, EmbanetCompass, Grand Canyon Education Inc.,
ITT Educational Services Inc., Kaplan, Inc., Laureate Education, Inc., Learning Tree International Inc., Lincoln Education Services Corporation, National American University Holdings Inc., Ross Education, LLC, Strayer Education Inc., Universal
Technical Institute Inc., Zenith Education Group, Inc. and each of their respective subsidiaries, affiliates and successors.
For avoidance of doubt, in
the event the Grantee is involuntarily terminated from employment with the Company other than for Cause, the Grantee will not be subject to any post-termination noncompete restriction under this Section 26(a).
(b) For months following Grantee’s termination of employment with the Company for
any reason, solicit, attempt to solicit, assist with the solicitation of, direct another to solicit, or otherwise entice any employee of the Company or any of its subsidiaries to leave his/her employment.
(c) At all times following the Grantee’s termination of employment with the Company for any reason, reveal, divulge, or make known to any
person, firm or corporation any confidential information, or take any other action, in violation of the Confidential Information Policy in the Company’s Code of Business Conduct & Ethics
Should the Grantee breach the terms of these Restrictive Covenants, the Company reserves the right to enforce the terms herein in court and seek any and all
remedies available to it in equity and law, and the Grantee agrees to pay the Company’s attorneys’ fees and costs should it succeed on its claim(s). Further, should the Grantee breach the terms of these Restrictive Covenants, the Grantee
will forfeit any right to the payments made or remaining due hereunder, subject to the terms and conditions of the Plan, and the Grantee agrees to pay the Company’s attorneys’ fees and costs incurred in recovering such payments made
pursuant hereto.
It is the intention of the Grantee and the Company that in the event any of the covenants contained in these Restrictive Covenants are
determined to be unreasonable and/or unenforceable with respect to scope, time or geographical coverage, the Grantee and the Company agree that such covenants may be modified and narrowed by a court, so as to provide the maximum legally enforceable
protection of the Company’s and any of its subsidiaries’ interests as described in this Agreement.
These Restrictive Covenants shall supersede
the terms of the restrictive covenants regarding competition and solicitation of Company employees that are contained in all prior agreements entered into by the Grantee and the Company to evidence an award under the Plan and to set forth the terms
of such award. All of the other terms of such prior agreements shall remain as is and shall not be affected by this Agreement.
9
27. Cooperation. In the event of any pending or threatened investigation, proceeding, lawsuit, claim or
legal action against or involving the Company, the Grantee acknowledges and agrees to cooperate to the fullest extent possible in the investigation, preparation, prosecution, or defense of the Company’s case, including, but not limited to, the
execution of affidavits or documents, providing of information requested by the Company or the Company’s counsel, and meeting with Company representatives or the Company’s counsel. Nothing in this paragraph shall be construed as
suggesting or implying that the Grantee should testify in any way other than truthfully or provide anything other than accurate, truthful information.
28.
Clawback Policy. By accepting the grant of the Performance Unit pursuant to this Agreement, the Grantee hereby acknowledges that the Board has adopted a policy pursuant to which the Grantee may be required to repay amounts otherwise paid
pursuant to this Agreement to the extent (a) such amounts were predicated upon achieving certain financial results that were subsequently the subject of a material restatement of Company financial statements filed with the Securities and
Exchange Commission; (b) the Board determines the Grantee engaged in intentional misconduct that caused or substantially caused the need for the material restatement; and (c) a lower payment would have been made to the Grantee based upon
the restated financial results (collectively, the “Policy”). By accepting the grant of the Performance Unit pursuant to this Agreement, the Grantee hereby agrees to be bound by the Policy and to repay amounts that Grantee may be
required to be repay thereunder.
29. Condition to Accept Agreement. This Agreement will be null and void unless the Grantee indicates his or her
acceptance of the award of the Performance Unit provided for hereunder by signing, dating and returning this Agreement to the Company on or before
.
[Signature
Page Follows]
10
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first
written above.
|
| CAREER EDUCATION CORPORATION |
|
| |
| [Name] |
| [Title] |
ACCEPTANCE (OR REJECTION) OF AWARD BY GRANTEE
The undersigned, the Grantee, hereby: (select one of the options below)
|
|
|
|
|
ACCEPTS the award of the Performance Unit as set forth in this Agreement and agrees to be bound by the terms and conditions of this Agreement and the Plan. |
|
|
|
|
REJECTS the award of the Performance Unit contemplated by this Agreement and forfeits all rights relating thereto. Please note that a rejection of this award has no impact on any other award of options, restricted stock or
restricted stock units you have previously received, including any restrictive covenants you are subject to pursuant to the agreement(s) governing your previous awards. |
|
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|
|
|
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|
|
| Date: |
|
|
|
|
|
|
|
|
|
|
|
|
(Signature of Grantee) |
|
|
|
|
|
|
|
|
|
|
|
Print Name: |
|
|
Please sign and return your signed copy of this Performance Unit Agreement by
, to at
CEC corporate via pdf, fax or inter-office mail ([insert email address] or [insert fax #] (fax)). Failure to do so will result in forfeiture of the award. Please retain a copy of this signed Performance Unit Agreement for your records.
11
EXHIBIT A
PEER GROUP
| 1. |
American Public Education, Inc. |
| 3. |
Bridgepoint Education, Inc. |
| 4. |
Capella Education Company |
| 6. |
ITT Educational Services Inc. |
| 7. |
Grand Canyon Education Inc. |
| 8. |
Graham Holdings Company |
| 9. |
Learning Tree International Inc. |
| 10. |
Lincoln Education Services Corporation |
| 11. |
National American University Holdings Inc. |
| 12. |
Strayer Education Inc. |
| 13. |
Universal Technical Institute Inc. |
12
Exhibit 10.2
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
CAREER EDUCATION CORPORATION
2008 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK UNIT AGREEMENT
This RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) dated March 6, 2015 (the “Grant Date”) is by
and between Career Education Corporation, a Delaware corporation (the “Company”), and Ronald McCray (the “Grantee”).
To evidence such award and to set forth its terms, the Company and the Grantee agree as follows. All capitalized terms not otherwise defined
in this Agreement shall have the meaning set forth in the Career Education Corporation 2008 Incentive Compensation Plan, as amended (the “Plan”).
1. Grant of Restricted Stock Units. Subject to and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the
Grantee the following number of Restricted Stock Units (the “RSUs”) on the Grant Date, and the Grantee hereby accepts the grant of the RSUs as set forth herein:
|
|
|
|
|
| Total Number of Restricted Stock Units Granted and Available for Vesting under this Agreement: |
|
|
250,000 |
(the “RSUs”) |
2. Limitations on Transferability. Except in the event of the death of the Grantee, at any time prior to the Settlement
Date, the RSUs, or any interest therein, cannot be directly or indirectly transferred, sold, assigned, pledged, hypothecated, encumbered or otherwise disposed.
3. Vesting.
(a) Eligibility for
Vesting. The number of RSUs eligible to become Vested Shares pursuant to Section 3(b) will be determined based on the date the Grantee ceases to be employed by the Company in the capacity of Interim President and Chief Executive Officer
(the “Separation Date”), as follows:
|
|
|
|
|
| If the Separation Date is on or after |
|
# of RSUs eligible to become Vested
Shares (the “Eligible RSUs”) |
|
| March 6, 2015 |
|
|
62,500 |
|
| April 1, 2015 |
|
|
125,000 |
|
| July 1, 2015 |
|
|
187,500 |
|
| October 1, 2015 |
|
|
250,000 |
|
Any RSUs which have not become Eligible RSUs pursuant to this Section 3(a) on or prior to the Separation
Date shall be immediately forfeited to the Company on the Separation Date.
(b) Vesting Date. Subject to the provisions of Sections
5 and 6 of this Agreement, the Eligible RSUs shall cease to be restricted and shall become non-forfeitable (thereafter being referred to as “Vested Shares”) on March 14, 2016 (the “Vesting Date”), but only to
the extent and in the proportion determined pursuant to the Performance Criteria and Payout Scale set forth on Exhibit A.
1
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
Notwithstanding the foregoing, and subject to Sections 5 and 6 below, in the event that
(i) the Grantee incurs a Termination of Service prior to the Vesting Date, or (b) any Eligible RSUs do not become Vested Shares on the Vesting Date due to the application of the Performance Criteria and Payout Scale set forth on Exhibit
A, then in either case the RSUs shall be immediately forfeited to the Company. For the avoidance of doubt, the Company and the Grantee acknowledge that, pursuant to the Plan, a Termination of Service does not occur until the Grantee ceases
providing services to the Company in any capacity, including as a director or consultant.
4. Crediting and Settling RSUs.
(a) RSU Accounts. The Company shall establish an account on its books for each grantee who receives a grant of RSUs (the “RSU
Account”). The RSUs granted hereby shall be credited to the Grantee’s RSU Account as of the Grant Date. The RSU Account shall be maintained for record keeping purposes only and the Company shall not be obligated to segregate or set
aside assets representing securities or other amounts credited to the RSU Account. The obligation to make distributions of securities or other amounts credited to the RSU Account shall be an unfunded, unsecured obligation of the Company.
(b) Settlement of RSU Accounts. The Company shall settle the RSU Account by delivering to the holder thereof (who may be the Grantee or
his or her Beneficiary, as applicable) a number of Shares equal to the whole number of Vested Shares underlying the RSUs then credited to the Grantee’s RSU Account (or a specified portion in the event of any partial settlement). The Settlement
Date for all RSUs credited to a Grantee’s RSU Account shall be as soon as administratively practical following when the Restrictions applicable to any portion of the RSUs granted hereby have lapsed, subject to achievement of the Performance
Criteria, but in no event shall such Settlement Date be later than March 15 of the calendar year following the calendar year in which the Restrictions applicable to an the RSUs have lapsed.
5. Termination of Service. Subject to Section 6, the provisions of this Section 5 shall apply in the event the Grantee incurs a Termination
of Service at any time prior to the Vesting Date set forth in Section 3:
(a) If the Grantee incurs a Termination of Service because
of his or her death or Disability, any Eligible RSUs that had not become Vested Shares prior to the date of the Termination of Service shall become Vested Shares, and, as of the relevant Settlement Date, the Grantee shall own a number of Shares
equal to the whole number of Vested Shares underlying the Eligible RSUs free of all restrictions otherwise imposed by this Agreement except for Shares used to satisfy the tax withholding obligations set forth in Section 26 of this Agreement or
otherwise required by any taxing authority.
(b) If the Grantee incurs a Termination of Service for any reason other than his or her death
or Disability, then any RSUs that had not become Vested Shares prior to the date of the Termination of Service shall be immediately forfeited to the Company.
6. Change in Control. Upon a Change in Control, the Grantee will have such rights with respect to the RSUs as are provided for in the Plan.
7. Stock Certificates and Escrow. On each Settlement Date, the Company, at its election, shall either (a) credit any Shares issued to the Grantee
pursuant hereto through a book entry on the records kept by the Company’s stockholder record keeper, or (b) issue certificates for such Shares.
2
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
8. Liability of the Company. The inability of the Company to obtain approval from any regulatory body
having authority deemed by the Company to be necessary to the lawful issuance and transfer of any Shares pursuant to this Agreement shall relieve the Company of any liability with respect to the non-issuance
or transfer of the Shares as to which such approval shall not have been obtained. However, the Company shall use its best efforts to obtain all such approvals.
9. Adjustment in RSUs. The Committee may make or provide for such adjustments as provided for in Section 4.2 of the Plan.
10. Plan Amendment. No discontinuation, modification, or amendment of the Plan may, without the written consent of the Grantee, adversely affect the
rights of the Grantee under this Agreement, except as otherwise provided under the Plan.
11. Stockholder Rights. The RSUs shall not represent an
equity security of the Company and shall not carry any voting or dividend rights. The Grantee shall have no rights of a stockholder of the Company with respect to any Vested Shares to be issued pursuant to a RSU until certificates for the Shares
underlying the RSUs granted hereby are issued to the Grantee or such Shares are otherwise reflected in a book entry on the records kept by the Company’s stockholder record keeper. Notwithstanding the foregoing, on the relevant Settlement Date,
the Grantee shall be entitled to receive an amount in cash equal to the dividends, if any, that would have become payable on or after the Vesting Date, but prior to the Settlement Date, with respect to the Shares issued on the Settlement Date.
12. Employment Rights. This Agreement is not a contract of employment, and the terms of employment of the Grantee or other relationship of the Grantee
with the Company shall not be affected in any way by this Agreement except as specifically provided herein. Grantee’s execution or acceptance of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a
continuation of an employment or other relationship with the Company, nor shall it interfere with the right of the Company to discharge the Grantee and to treat him or her without regard to the effect which such treatment might have upon him or her
as a Grantee.
13. Disclosure Rights. Except as required by applicable law, the Company (or any of its affiliates) shall not have any duty or
obligation to disclose affirmatively to a record or beneficial holder of Common Stock, RSUs or Vested Shares, and such holder shall have no right to be advised of, any material information regarding the Company at any time prior to, upon or in
connection with receipt of the Shares.
14. Governing Law. The interpretation, performance and enforcement of this Agreement shall be governed by
and enforced in accordance with the laws of the State of Delaware (other than its laws respecting choice of law).
15. Compliance with Laws and
Regulations. Notwithstanding anything herein to the contrary, the Company shall not be obligated to either (a) cause to be issued or delivered any certificates for Shares, or (b) credit a book entry related to the Shares to be
entered on the records of the Company’s stockholder record keeper, unless and until the Company is advised by its counsel that such issuance and delivery of such certificates or entry on the records, as
3
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
applicable, is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded. The Company may require, as a
condition of such issuance and delivery of such certificates or entry on the records, as applicable, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make such covenants, agreements, and
representations as the Company, in its sole discretion, considers necessary or desirable. In addition, to the extent that all or any portion of any Shares to be issued or delivered hereunder would not constitute an expense deductible by the Company
for federal tax purposes (irrespective of whether the Company would, in fact, have the ability to take advantage of such deduction), then the Company reserves the right to reduce or eliminate such issuance or delivery to an amount that would be
deductible by the Company for federal tax purposes.
16. Successors and Assigns. Except as otherwise expressly set forth in this Agreement, the
provisions of this Agreement shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
17. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or
otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
18. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal
place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid,
return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient. Notwithstanding the foregoing, any notice required or permitted hereunder from the Company to the
Grantee may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Grantee, and the Grantee hereby consents to receive such notice by electronic delivery. To the extent permitted in an
electronically delivered notice described in the previous sentence, the Grantee shall be permitted to respond to such notice or communication by way of a responsive electronic communication, including by electronic mail.
19. Construction. Notwithstanding any other provision of this Agreement, this Agreement is made, and the RSUs and Shares are granted, pursuant to the
Plan and are in all respects limited by and subject to the express provisions of the Plan, as amended from time to time. To the extent any provision of this Agreement is inconsistent or in conflict with any term or provision of the Plan, the Plan
shall govern. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules and regulations adopted by the Committee for purposes of administering the Plan, shall be final and binding upon the Grantee and all
other persons.
20. Entire Agreement. This Agreement, together with the Plan, constitute the entire obligation of the parties hereto with respect
to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
4
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
21. Amendment. This Agreement may be amended as provided under the Plan, but except as provided in the
Plan no such amendment shall adversely affect the Grantee’s rights under the Agreement without the Grantee’s written consent, unless otherwise permitted by the Plan.
22. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision hereof shall not affect
its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to time.
23. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original, but both of which shall constitute but one and
the same instrument.
24. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
25. Severability. If any provision of this Agreement shall for any reason be held to be invalid or
unenforceable, such invalidity or unenforceability shall not effect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
26. Tax Consequences. The Grantee acknowledges and agrees that the Grantee is responsible for all taxes and tax consequences with respect to the grant
of RSUs, the lapse of restrictions otherwise imposed by this Agreement and the issuance of Shares pursuant hereto. The Grantee further acknowledges that it is the Grantee’s responsibility to obtain any advice that the Grantee deems necessary or
appropriate with respect to any and all tax matters that may exist as a result of the grant of the RSUs, the lapse of restrictions otherwise imposed by this Agreement and the issuance of Shares pursuant hereto. Notwithstanding any other provision of
this Agreement, Shares shall not be issued to the Grantee pursuant hereto unless, as provided in Section 17 of the Plan, the Grantee shall have paid to the Company, or made arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be withheld with respect to the grant of the RSUs, the lapse of restrictions otherwise imposed by this Agreement and the issuance of Shares pursuant hereto.
27. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions
thereof, and hereby accepts the RSUs subject to all the terms and provisions of this Agreement and of the Plan. The Shares issued pursuant hereto are granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference,
and the RSUs and such Shares shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be conclusive and binding upon the
parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
28.
Confidentiality. During the Grantee’s employment with the Company and/or any of its subsidiaries and at all times following the Grantee’s termination of employment with the Company for any reason, the Grantee will not, in any way,
directly or indirectly, either for the Grantee or any other person or entity, whether paid or unpaid, reveal, divulge, or make known to any person, firm or corporation any confidential information, or take any other action, in violation of the
Confidential Information Policy in the Company’s Code of Business Conduct & Ethics. Should the Grantee breach the terms of this Section 28, the Company reserves the right
5
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
to enforce the terms herein in court and seek any and all remedies available to it in equity and law, and the Grantee agrees to pay the Company’s attorneys’ fees and costs should it
succeed on its claim(s). Further, should the Grantee breach the terms of this Section 28, the Grantee will forfeit any right to the RSUs or Shares issued hereunder, subject to the terms and conditions of the Plan, and the Grantee agrees to pay
the Company’s attorneys’ fees and costs incurred in recovering such RSUs or Shares issued pursuant hereto.
29. Cooperation. In the event
of any pending or threatened investigation, proceeding, lawsuit, claim or legal action against or involving the Company, the Grantee acknowledges and agrees to cooperate to the fullest extent possible in the investigation, preparation, prosecution,
or defense of the Company’s case, including, but not limited to, the execution of affidavits or documents, providing of information requested by the Company or the Company’s counsel, and meeting with Company representatives or the
Company’s counsel. Nothing in this paragraph shall be construed as suggesting or implying that the Grantee should testify in any way other than truthfully or provide anything other than accurate, truthful information.
30. Clawback Policy. By accepting the grant of RSUs pursuant to this Agreement, the Grantee hereby acknowledges that the Board has adopted a policy
pursuant to which the Grantee may be required to repay amounts otherwise paid pursuant to this Agreement to the extent (a) such amounts were predicated upon achieving certain financial results that were subsequently the subject of a material
restatement of Company financial statements filed with the Securities and Exchange Commission; (b) the Board determines the Grantee engaged in intentional misconduct that caused or substantially caused the need for the material restatement; and
(c) a lower payment would have been made to the Grantee based upon the restated financial results (collectively, the “Policy”). By accepting the grant of RSUs pursuant to this Agreement, the Grantee hereby agrees to be bound by
the Policy and to repay amounts that Grantee may be required to be repay thereunder.
31. Condition to Accept Agreement. This Agreement will be
null and void unless the Grantee indicates his or her acceptance of the award of RSUs provided for hereunder by signing, dating and returning this Agreement to the Company on or before
.
[Signature
Page Follows]
6
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first
written above.
|
| CAREER EDUCATION CORPORATION |
|
|
| [Name] |
| [Title] |
ACCEPTANCE (OR REJECTION) OF AWARD BY GRANTEE
The undersigned, the Grantee, hereby: (select one of the options below)
|
|
|
|
|
ACCEPTS the award of RSUs as set forth in this Agreement and agrees to be bound by the terms and conditions of this Agreement and the Plan. |
|
|
|
|
REJECTS the award of RSUs contemplated by this Agreement and forfeits all rights relating thereto. Please note that a rejection of this award has no impact on any other award of options, restricted stock or restricted stock units
you have previously received, including any restrictive covenants you are subject to pursuant to the agreement(s) governing your previous awards. |
|
|
|
|
|
|
|
|
|
| Date: |
|
|
|
|
|
|
|
|
|
|
|
|
(Signature of Grantee) |
|
|
|
|
|
|
|
|
|
|
|
Print Name: |
|
|
Please sign and return a fully executed .pdf of this Restricted Stock Unit Agreement by
to via
. Failure to do so will result in forfeiture of the award. Please retain a copy of this signed Restricted Stock Unit
Agreement for your records.
7
Restricted Stock Unit Agreement
(Performance-Based)
Ronald
McCray
Exhibit A
Performance Criteria and Payout Scale
|
|
|
|
|
| Actual 2015 EBITDA as a percentage of Targeted EBITDA(1) |
|
Percent of Eligible RSUs to become
Vested Shares pursuant to Section 3(b) |
|
| 115% |
|
|
100 |
% |
| 100% |
|
|
60 |
% |
| 85% |
|
|
20 |
% |
| <85% |
|
|
0 |
% |
Straight line interpolation between points.
| (1) |
“Actual 2015 EBITDA” shall be the EBITDA at the corporate organizational level determined in accordance with, and used for purposes of determining the EBITDA Performance Factor under, the 2015 Annual
Incentive Award Program pursuant to the Plan (the “AIP”). “Targeted EBITDA” shall have the meaning set forth in the AIP with respect to the Company (and its affiliates). |
8
Exhibit 10.3
2015 Cash-Settled RSU Agreement (Non-Plan)
(Performance-Based)
Ronald
McCray
CAREER EDUCATION CORPORATION
CASH-SETTLED RESTRICTED STOCK UNIT AGREEMENT
This CASH-SETTLED RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) dated March 6, 2015 (the “Grant
Date”) is by and between Career Education Corporation, a Delaware corporation (the “Company”), and Ronald McCray (the “Grantee”).
The Company hereby grants such award to the Grantee. Notwithstanding that the award is not, and shall not be deemed to be, granted under the
Company’s 2008 Incentive Compensation Plan, as amended (the “Plan”), the award shall be subject to all of the terms of the Plan as if it had been granted thereunder, provided, however, that the terms of this Agreement shall
control with respect to such matters expressly addressed herein, and all capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in Plan.
1. Grant of Restricted Stock Units. Subject to and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the
Grantee 11,324 Restricted Stock Units (the “RSUs”) on the Grant Date, and the Grantee hereby accepts the grant of the RSUs as set forth herein.
2. Limitations on Transferability. Except in the event of the death of the Grantee, at any time prior to the Settlement Date, the RSUs, or any interest
therein, cannot be directly or indirectly transferred, sold, assigned, pledged, hypothecated, encumbered or otherwise disposed.
3. Vesting.
(a) Eligibility for Vesting. The number of RSUs eligible to become Vested RSUs pursuant to Section 3(b) will be determined based
on the date Grantee ceases to be employed by the Company in the capacity of Interim President and Chief Executive Officer (the “Separation Date”), as follows:
|
|
|
|
|
| If the Separation Date is on or after |
|
# of RSUs eligible to become Vested
RSUs (the “Eligible RSUs”) |
|
| March 6, 2015 |
|
|
2,831 |
|
| April 1, 2015 |
|
|
5,662 |
|
| July 1, 2015 |
|
|
8,493 |
|
| October 1, 2015 |
|
|
11,324 |
|
Any RSUs which have not become Eligible RSUs pursuant to this Section 3(a) on or prior to the Separation
Date shall be immediately forfeited to the Company on the Separation Date.
(b) Vesting Date. Subject to the provisions of Sections
5 and 6 of this Agreement, the Eligible RSUs shall cease to be restricted and shall become non-forfeitable (thereafter being referred to as “Vested RSUs”) on March 14, 2016 (the “Vesting Date”), but only to the
extent and in the proportion determined pursuant to the Performance Criteria and Payout Scale set forth on Exhibit A.
Notwithstanding the foregoing, and subject to Sections 5 and 6 below, in the event that
(i) the Grantee incurs a Termination of Service prior to the Vesting Date, or (b) any Eligible RSUs do not become Vested RSUs on the Vesting Date due to the application of the Performance Criteria and Payout Scale set forth on Exhibit
A, then in either case the RSUs shall be immediately forfeited to the Company. For the avoidance of doubt, the Company and the Grantee acknowledge that, pursuant to the Plan, a Termination of Service does not occur until the Grantee ceases
providing services to the Company in any capacity, including as a director or consultant.
4. Crediting and Settling RSUs.
(a) RSU Accounts. The Company shall establish an account on its books for each grantee who receives a grant of RSUs (the “RSU
Account”). The RSUs granted hereby shall be credited to the RSU Account as of the Grant Date. The RSU Account shall be maintained for record keeping purposes only and the Company shall not be obligated to segregate or set aside assets
representing amounts credited to the RSU Account. The obligation to make distributions of amounts credited to the RSU Account shall be an unfunded, unsecured obligation of the Company.
(b) Settlement of RSU Accounts. The Company shall settle the RSU Account by delivering to the holder thereof (who may be the Grantee or
his or her Beneficiary, as applicable) an amount in cash equal to the product of (i) the number of Vested RSUs in the RSU Account as of the applicable Settlement Date, multiplied by (ii) the Fair Market Value of a Share on the
Vesting Date (subject to applicable tax withholding obligations set forth in Section 24 of this Agreement or otherwise required by any taxing authority). The Settlement Date for all RSUs credited to the RSU Account shall be as soon as
administratively practical following the Vesting Date (or the relevant vesting date set forth in Section 5(a) hereof), subject to achievement of the Performance Criteria, but in no event shall such Settlement Date be later than March 15 of
the calendar year following the calendar year in which the Vesting Date (or the relevant vesting date set forth in Section 5(a) hereof) occurs. Notwithstanding the foregoing, in no case will the amount due to the Grantee in respect of an RSU
exceed an amount equal to five times (5x) the Fair Market Value of a Share on the Grant Date.
5. Termination of Service. Subject to
Section 6, the provisions of this Section 5 shall apply in the event the Grantee incurs a Termination of Service at any time prior to the Vesting Date set forth in Section 3:
(a) If the Grantee incurs a Termination of Service because of his or her death or Disability, any Eligible RSUs that had not become Vested
RSUs prior to the date of the Termination of Service shall become Vested RSUs, and, as of the applicable Settlement Date, the Grantee (or his or her Beneficiary, as applicable) shall be entitled to receive an amount determined pursuant to
Section 4 hereof.
(b) If the Grantee incurs a Termination of Service for any reason other than his or her death or Disability, then
any RSUs that had not become Vested RSUs prior to the date of the Termination of Service shall be immediately forfeited to the Company.
6. Change in
Control. Upon a Change in Control, the Grantee will have such rights with respect to the RSUs as are provided for in the Plan.
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7. Adjustment in RSUs. The Committee may make or provide for such adjustments as provided for in
Section 4.2 of the Plan.
8. Plan Amendment. No discontinuation, modification, or amendment of the Plan may, without the written consent of
the Grantee, adversely affect the rights of the Grantee under this Agreement, except as otherwise provided under the Plan with respect to awards granted under the Plan.
9. No Stockholder Rights. The RSUs represent only the right to receive cash pursuant to the terms hereof and shall not represent an equity security of
the Company and shall not carry any voting or dividend rights.
10. Employment Rights. This Agreement is not a contract of employment, and the
terms of employment of the Grantee or other relationship of the Grantee with the Company shall not be affected in any way by this Agreement except as specifically provided herein. The Grantee’s execution or acceptance of this Agreement shall
not be construed as conferring any legal rights upon the Grantee for a continuation of an employment or other relationship with the Company, nor shall it interfere with the right of the Company to discharge the Grantee and to treat him or her
without regard to the effect which such treatment might have upon him or her as a Grantee.
11. Disclosure Rights. Except as required by applicable
law, the Company (or any of its affiliates) shall not have any duty or obligation to disclose any information to a record or beneficial holder of RSUs or Vested RSUs.
12. Governing Law. The interpretation, performance and enforcement of this Agreement shall be governed by and enforced in accordance with the laws of
the State of Delaware (other than its laws respecting choice of law).
13. Compliance with Laws and Regulations. Notwithstanding anything
herein to the contrary, the Company shall not be obligated to pay amounts due hereunder unless and until the Company is advised by its counsel that such payment is in compliance with all applicable laws, regulations of governmental authority, and
the requirements of any exchange upon which Shares are traded. The Company may require, as a condition of such payment, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make such covenants, agreements,
and representations as the Company, in its sole discretion, considers necessary or desirable.
14. Successors and Assigns. Except as otherwise
expressly set forth in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
15. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize
or otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
16. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal
place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage
3
prepaid, return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient. Notwithstanding the foregoing, any
notice required or permitted hereunder from the Company to the Grantee may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Grantee, and the Grantee hereby consents to receive such notice
by electronic delivery. To the extent permitted in an electronically delivered notice described in the previous sentence, the Grantee shall be permitted to respond to such notice or communication by way of a responsive electronic communication,
including by electronic mail.
17. Construction. Notwithstanding any other provision of this Agreement, including that the RSUs are not granted
under the Plan, it is the intent of the parties that the RSUs are granted consistent with the terms of the Plan and shall be deemed in all respects limited by and subject to the express provisions of the Plan as such provisions would apply to awards
granted under the Plan. Notwithstanding the terms of the Plan, this Agreement shall control with respect to such matters expressly addressed herein. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules
and regulations adopted by the Committee for purposes of administering this Agreement consistent herewith, shall be final and binding upon the Grantee and all other persons.
18. Entire Agreement. This Agreement, together with the terms of the Plan as if the RSUs had been granted under the Plan, constitute the entire
obligation of the parties hereto with respect to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
19. Amendment. This Agreement may be amended consistent with the terms of the Plan, but except as provided in the Plan no such amendment shall
adversely affect the Grantee’s rights under the Agreement without the Grantee’s written consent, unless otherwise permitted by the Plan with respect to awards granted under the Plan.
20. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision hereof shall not affect
its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to time.
21. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original, but both of which shall constitute but one and
the same instrument.
22. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
23. Severability. If any provision of this Agreement shall for any reason be held to be invalid or
unenforceable, such invalidity or unenforceability shall not effect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
24. Tax Consequences. Payments made pursuant hereto shall be subject to all required tax withholding obligations.
25. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions
thereof, and hereby accepts the RSUs subject to all the terms and provisions of this Agreement and acknowledges and agrees that the
4
terms of the Plan shall apply to the RSUs as if the RSUs had been granted under the Plan; provided, however, this Agreement shall control with respect to such matters expressly addressed herein.
The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue
arising hereunder or thereunder.
26. Confidentiality. During the Grantee’s employment with the Company and/or any of its subsidiaries and at
all times following the Grantee’s termination of employment with the Company for any reason, the Grantee will not, in any way, directly or indirectly, either for the Grantee or any other person or entity, whether paid or unpaid, reveal,
divulge, or make known to any person, firm or corporation any confidential information, or take any other action, in violation of the Confidential Information Policy in the Company’s Code of Business Conduct & Ethics. Should the
Grantee breach the terms of this Section 26, the Company reserves the right to enforce the terms herein in court and seek any and all remedies available to it in equity and law, and the Grantee agrees to pay the Company’s attorneys’
fees and costs should it succeed on its claim(s). Further, should the Grantee breach the terms of this Section 26, the Grantee will forfeit any right to the RSUs or any amounts issued hereunder, subject to the terms and conditions of the Plan,
and the Grantee agrees to pay the Company’s attorneys’ fees and costs incurred in recovering such RSUs or amounts issued pursuant hereto.
27.
Cooperation. In the event of any pending or threatened investigation, proceeding, lawsuit, claim or legal action against or involving the Company, the Grantee acknowledges and agrees to cooperate to the fullest extent possible in the
investigation, preparation, prosecution, or defense of the Company’s case, including, but not limited to, the execution of affidavits or documents, providing of information requested by the Company or the Company’s counsel, and meeting
with Company representatives or the Company’s counsel. Nothing in this paragraph shall be construed as suggesting or implying that the Grantee should testify in any way other than truthfully or provide anything other than accurate,
truthful information.
28. Clawback Policy. By accepting the grant of RSUs pursuant to this Agreement, the Grantee hereby acknowledges that the
Board has adopted a policy pursuant to which the Grantee may be required to repay amounts otherwise paid pursuant to this Agreement to the extent (a) such amounts were predicated upon achieving certain financial results that were subsequently
the subject of a material restatement of Company financial statements filed with the Securities and Exchange Commission; (b) the Board determines the Grantee engaged in intentional misconduct that caused or substantially caused the need for the
material restatement; and (c) a lower payment would have been made to the Grantee based upon the restated financial results (collectively, the “Policy”). By accepting the grant of RSUs pursuant to this Agreement, the Grantee
hereby agrees to be bound by the Policy and to repay amounts that Grantee may be required to be repay thereunder.
29. Condition to Accept
Agreement. This Agreement will be null and void unless the Grantee indicates his or her acceptance of the award of the RSUs provided for hereunder by signing, dating and returning this Agreement to the Company on or before
.
[Signature
Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first
written above.
|
| CAREER EDUCATION CORPORATION |
|
|
| [Name] |
| [Title] |
ACCEPTANCE (OR REJECTION) OF AWARD BY GRANTEE
The undersigned, the Grantee, hereby: (select one of the options below)
|
|
|
|
|
ACCEPTS the award of RSUs as set forth in this Agreement and agrees to be bound by the terms and conditions of this Agreement and the terms of the Plan as if the RSUs had been granted under the Plan. |
|
|
|
|
REJECTS the award of RSUs contemplated by this Agreement and forfeits all rights relating thereto. Please note that a rejection of this award has no impact on any other award of options, restricted stock or restricted stock units
you have previously received, including any restrictive covenants you are subject to pursuant to the agreement(s) governing your previous awards. |
|
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|
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|
|
|
|
| Date: |
|
|
|
|
|
|
|
|
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|
|
|
(Signature of Grantee) |
|
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Print Name: |
|
|
Please sign and return a fully executed .pdf of this Restricted Stock Unit Agreement by
to via
. Failure to do so will result in forfeiture of the award. Please retain a copy of this signed Restricted Stock Unit
Agreement for your records.
6
Exhibit A
Performance Criteria and Payout Scale
|
|
|
|
|
| Actual 2015 EBITDA as a percentage of Targeted EBITDA(1) |
|
Percent of Eligible RSUs to become
Vested RSUs pursuant to Section 3(b) |
|
| 115% |
|
|
100 |
% |
| 100% |
|
|
60 |
% |
| 85% |
|
|
20 |
% |
| <85% |
|
|
0 |
% |
Straight line interpolation between points.
| (1) |
“Actual 2015 EBITDA” shall be the EBITDA at the corporate organizational level determined in accordance with, and used for purposes of determining the EBITDA Performance Factor under, the 2015 Annual
Incentive Award Program pursuant to the Plan (the “AIP”). “Targeted EBITDA” shall have the meaning set forth in the AIP with respect to the Company (and its affiliates). |
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