-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hyo7QEnN+z7GKT+ZRcCcfqzj0+xx+FsvtcIYbeRxcauaWfHeo3cPYzqY3m2kHGOG xPBNqfqEwp91Dkj2dCYs4Q== 0000950131-98-004512.txt : 19980803 0000950131-98-004512.hdr.sgml : 19980803 ACCESSION NUMBER: 0000950131-98-004512 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980731 EFFECTIVENESS DATE: 19980731 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAREER EDUCATION CORP CENTRAL INDEX KEY: 0001046568 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 393932190 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-60339 FILM NUMBER: 98675376 BUSINESS ADDRESS: STREET 1: 2800 WEST HIGGINS ROAD, SUITE 790 CITY: HOFFMAN ESTATES STATE: IL ZIP: 60195 BUSINESS PHONE: 8477813600 MAIL ADDRESS: STREET 1: 2800 WEST HIGGINS ROAD STREET 2: SUITE 790 CITY: HOFFMAN ESTATES STATE: IL ZIP: 60195 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on July 31, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CAREER EDUCATION CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 39-3932190 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 2800 West Higgins Road, Suite 790, Hoffman Estates, IL 60195 (Address of Principal Executive Offices) (Zip Code) Career Education Corporation 1998 Employee Stock Purchase Plan (Full Title of the Plan) John M. Larson President and Chief Executive Officer Career Education Corporation 2800 West Higgins Road, Suite 790, Hoffman Estates, IL 60195 (Name and Address of agent for service) (847) 781-3600 (Telephone Number, including area code, of agent for service) With a copy to: Lawrence D. Levin, Esq. Katten Muchin & Zavis 525 West Monroe Street, Suite 1600 Chicago, Illinois 60661 (312) 902-5200
CALCULATION OF REGISTRATION FEE ========================================================================================================================== Proposed maximum Title of securities Amount to be offering price Proposed maximum Amount of to be registered registered(1) per share(2) aggregate offering price(2) registration fee - -------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per 500,000 shares See Footnote 2 below $12,595,000 $4,270 share ==========================================================================================================================
(1) Includes an indeterminate number of shares of Career Education Corporation Common Stock ("Common Stock") that may be issuable by reason of stock splits, stock dividends or similar transactions in accordance with Rule 416 under the Securities Act of 1933. (2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) on the basis of the high and low sales prices of the Common Stock as reported on the Nasdaq National Market on July 30, 1998, which was $25.19 per share. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information called for in Part I of Form S-8 is currently included in the prospectus for the Career Education Corporation 1998 Employee Stock Purchase Plan as amended (the "Plan"), and is not being filed with or included in this Form S-8 in accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission"). I-1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents heretofore filed with the Commission by Career Education Corporation (the "Company") are incorporated in this Registration Statement by reference: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. 2. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998. 3. The description of the Company's Common Stock, par value $.01 per share (the "Common Stock"), contained in the Company's Registration Statement on Form 8-A filed pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any subsequent amendment or any report filed for the purpose of updating such description. In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Article XII of the Registrant's Amended and Restated Certificate of Incorporation provides that the Registrant shall indemnify its directors to the full extent permitted by the General Corporation Law of the State of Delaware and may indemnify its officers and employees to such extent, except that the Registrant shall not be obligated to indemnify any such person (i) with respect to proceedings, claims or actions initiated or brought voluntarily by any such person and not by way of defense, or (ii) for any amounts paid in settlement of an action indemnified against by the Registrant without the prior written consent of the Registrant. The Registrant has entered into indemnity agreements with each of its directors. These agreements require the Registrant, among other things, to indemnify such directors against certain liabilities that may arise by reason of their status or service as directors, to advance expenses to them as they are incurred, provided that they undertake to repay the amount advanced if it is ultimately determined by a court that they are not entitled to indemnification, and to obtain directors' liability insurance if available on reasonable terms. II-1 In addition, Article XII of the Registrant's Amended and Restated Certificate of Incorporation provides that a director of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for willful or negligent conduct in paying dividends or repurchasing stock out of other than lawfully available funds or (iv) for any transaction from which the director derives an improper personal benefit. Reference is made to Section 145 of the General Corporation Law of the State of Delaware which provides for indemnification of directors and officers in certain circumstances. The Registrant has purchased a directors' and officers' liability insurance policy. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Amended and Restated Certificate of Incorporation of the Company, incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (the "1997 10-K"). 4.2 Amended and Restated By-laws of the Company, incorporated by reference to Exhibit 3.2 to the 1997 10-K. 4.3 The Career Education Corporation 1998 Employee Stock Purchase Plan, incorporated by reference to Exhibit 10.5 to the Company's Registration Statement on Form S-1 (File No. 333-37601) (the "IPO Registration Statement"). 4.4 Specimen stock certificate representing Common Stock, incorporated by reference to Exhibit 4.1 to the IPO Registration Statement. 5 Opinion of Katten Muchin & Zavis as to the legality of the shares of Common Stock being offered under the Plan. 23.1 Consent of Arthur Andersen LLP, independent auditors. 23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed as Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement). II-2 Item 9. Undertakings. 1. The Company hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually, or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The Company hereby undertakes that, for the purpose of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hoffman Estates, State of Illinois, on July 27, 1998. Career Education Corporation By: /s/ JOHN M. LARSON ------------------------------------------ John M. Larson President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints John M. Larson and William A. Klettke and, each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, to sign on his behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission under the Securities Act of 1933, granting unto each such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming each act that said attorney-in-fact and agent may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 27, 1998.
SIGNATURE TITLE - ------------------------ ------------------------------------------------------------ /s/ JOHN M. LARSON President, Chief Executive Officer (Principal Executive - ------------------------ Officer) and a Director John M. Larson /s/ WILLIAM A. KLETTKE Senior Vice President and Chief Financial Officer (Principal - ------------------------ Financial and Accounting Officer) William A. Klettke /s/ ROBERT E. DOWDELL Director - ------------------------ Robert E. Dowdell /s/ THOMAS B. LALLY Director - ------------------------ Thomas B. Lally /s/ WALLACE O. LAUB Director - ------------------------ Wallace O. Laub /s/ KEITH K. OGATA Director - ------------------------ Keith K. Ogata /s/ PATRICK K. PESCH Director - ------------------------ Patrick K. Pesch
II-4 EXHIBIT INDEX
Exhibit Number Description - ------- ----------------------------------------------------------------------- 5 Opinion of Katten Muchin & Zavis as to the legality of the shares of Common Stock being offered under the Plan. 23.1 Consent of Arthur Andersen LLP, independent auditors. 23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed as Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement).
EX-5 2 OPINION OF KATTEN MUCHIN & ZAVIS KATTEN MUCHIN & ZAVIS 525 West Monroe Street, Suite 1600 Chicago, Illinois 60661-3693 (312) 902-5200 July 30, 1998 Career Education Corporation 2800 West Higgins Road Hoffman Estates, IL 60195 Ladies and Gentlemen: - --------------------- We have acted as counsel for Career Education Corporation, a Delaware corporation (the "Company"), in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") for the registration for sale under the Securities Act of 1933, as amended (the "Act"), of 500,000 shares of the Company's common stock, $.01 par value per share (the "Common Stock"), which may be issued pursuant to the Career Education Corporation 1998 Stock Purchase (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 605(b)(5) of Regulation S-K under the Act. In connection with this opinion, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of the following: 1. The Registration Statement; 2. The Amended and Restated Certificate of Incorporation of the Company; 3. The Amended and Restated By-Laws of the Company; 4. Records of proceedings and actions of the Board of Directors of the Company relating to the adoption and amendment of the Plan; 5. Written consent of the stockholders of the Company relating to the adoption and amendment of the Plan; 6. The Plan; 7. Certificates of public officials, officers, representatives and agents of the Company, and we have assumed that all of the representations contained therein are accurate and complete; and Career Education Corporation July 30, 1998 Page 2 8. Such other instruments, documents, statements and records of the Company and others as we have deemed relevant and necessary to examine and rely upon for the purpose of this opinion. In connection with this opinion, we have assumed the legal capacity of all natural persons, accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures, the authenticity of the documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or reproduced copies. Based upon and subject to the foregoing, we are of the opinion that the 500,000 shares of Common Stock issuable under the Plan, when issued and delivered by the Company in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable securities of the Company. Our opinion expressed above is limited to the General Corporation Law of the State of Delaware, and we do not express any opinion herein concerning any other laws. In addition, we express no opinion herein concerning any statutes, ordinances, administrative decisions, rules or regulations of any county, town, municipality or special political subdivision (whether created or enabled through legislative action at the federal, state or regional level). This opinion is given as of the date hereof and we assume no obligation to advise you of changes that may hereafter be brought to our attention. In connection therewith, we hereby consent to the use of this opinion for filing as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Katten Muchin & Zavis ------------------------- KATTEN MUCHIN & ZAVIS EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP EX-23.1 [LETTERHEAD OF ARTHUR ANDERSEN LLP] REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 13, 1998 included in Career Education Corporation's Form 10-K for the year ended December 31, 1997 and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP Chicago, Illinois, July 28, 1998 -----END PRIVACY-ENHANCED MESSAGE-----