Exhibit 10.1
SHARE REPURCHASE
AGREEMENT
This Share Repurchase Agreement
(this “Agreement”) is entered into as of December 20,
2006, by and between CAREER EDUCATION CORPORATION, a Delaware
corporation (the “ Company ”) and John M. Larson
(the “ Seller ”).
RECITALS
WHEREAS, the closing price for the
Common Stock as reported on the NASDAQ Global Select Market on
December 20, 2006 (the “ Closing Date ”), was
$25.01 per share (the “ Closing Price
”);
WHEREAS, the Seller has delivered to
the Company an irrevocable notice of exercise of stock options (the
“ Options ”), to purchase an aggregate of
1,652,000 shares (the “ Shares ”), of the
Company’s common stock, par value $0.01 per share (the
“ Common Stock ”), effective as of December 20,
2006, in the form attached hereto as Exhibit A (the “
Notice of Exercise ”), for an aggregate exercise price
of $13,725,756.00 (the “ Aggregate Exercise Price
”), to be paid by the Seller on the Closing Date;
WHEREAS, the Seller desires to sell
to the Company, and the Company desires to purchase from the
Seller, all of the Shares for a per share purchase price equal to
the Closing Price, representing an aggregate purchase price of
$41,316,520.00 (the “ Purchase Price ”), subject
to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of
the premises and the mutual covenants of the parties hereinafter
set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
SALE OF SHARES
1.1
Sale of Shares to Company . In reliance upon the
respective representations and warranties of the parties set forth
herein, the Seller shall sell to the Company, free and clear of any
Liens (as defined in Section 2.2 ), and the Company shall
purchase from the Seller, the Shares for an aggregate amount equal
to the Settlement Price (as defined below).
1.2
Delivery . On the Closing Date, pursuant to this
Agreement, the Seller hereby surrenders any stock certificate or
stock certificates evidencing the Shares, together with any letters
of instruction, stock powers or any other documents reasonably
necessary to effect the purchase of the Shares by the
Company.
1.3
Settlement . On December 26, 2006, the Company will
deliver an amount
1
representing the Purchase Price less
the Aggregate Exercise Price, subject to all applicable federal,
state and local tax withholding requirements related to the
exercise of the Options (the “ Settlement Price
”), by wire transfer to an account specified in writing by
the Seller. The Seller acknowledges that, following delivery
of the Settlement Price, the Seller shall have no further rights
whatsoever with respect to the Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE SELLER
The Seller hereby represents and
warrants to the Company as follows:
2.1
Authority and Enforceability . The Seller has full
power, right and authority to enter into and perform his
obligations under this Agreement. This Agreement has been
duly executed and delivered by the Seller and constitutes the
legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms. No permit,
approval or consent of, or notification to any governmental entity
or any other person is necessary in connection with the execution,
delivery and performance by the Seller of this Agreement and the
consummation by the Seller of the transactions contemplated
hereby.
2.2
Title to Shares . Upon exercise of the Options, the
Seller will be the beneficial and record owner of the Shares, free
and clear of any liens, claims, charges, restrictions, options,
preemptive rights, mortgages, hypothecations, assessments, pledges,
encumbrances or security interests of any kind or nature whatsoever
(collectively, “ Liens ”). Upon exercise
of the Options, the Seller will have good and marketable title to
the Shares, free and clear of all Liens whatsoever Upon
consummation of the transactions provided for in this Agreement in
accordance with the terms hereof, the Company will acquire good and
marketable title to all of the Shares, free and clear of any Liens
whatsoever.
2.3
No Violation . None of the execution and delivery of
this Agreement, the consummation of the transactions provided for
herein or contemplated hereby, nor the fulfillment by the Seller of
the terms hereof will (with or without notice or passage of time or
both): result in the breach of any mortgage, note, contract or
other agreement or obligation of any kind or nature by which Seller
or Seller’s properties may be bound.
2.4
Acknowledgment . Except as expressly set forth herein,
the Seller acknowledges that the Company has not made, and is not
making, any representation or warranty as to the business,
properties, condition (financial or otherwise), risks, results of
operations, prospects or any other aspect of the operations of the
Company or its subsidiaries. The Seller has such knowledge
and experience in business and financial matters as to be capable
of evaluating the merits and risks of the transaction contemplated
to be made hereunder. The Seller has adequate information and
has made his own independent investigation concerning the business,
properties, condition (financial or otherwise), risks, results of
operations and prospects of the Company and its subsidiaries taken
as a whole to make an informed decision regarding the sale of
Shares.
2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company represents and warrants
to the Seller as follows:
3.1
Organization and Standing . The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
3.2
Authorization; Power . The Company has a
