EXHIBIT 10.22
NONCOMPETE AGREEMENT
THIS NONCOMPETE AGREEMENT is dated as of March 11, 1997 by and between Xxxx
X. Xxxxx, an individual residing in Upper Gwynedd, Pennsylvania ("Executive")
and Nobel Education Dynamics, Inc. (the "Company"), a Delaware corporation.
Background
Executive is currently Executive Vice President of the Company. Executive
currently does not have any obligation to refrain from competing with the
Company following the termination of his employment with the Company (other than
to the extent that any such activities may generally be prohibited by the
applicable law (e.g., by laws which would prohibit use of the Company's trade
secrets)). By this Agreement, the Company desires to provide incentive to
Executive not to engage in any competitive activities with the Company for a
period of four years following the termination of his employment with the
Company.
Now, Therefore, in consideration of the covenants set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
Terms
1. Payment.
(a) Conditions of Payment. The Company will pay to Executive the
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Noncompete Payment (defined below) if, within 30 days following the date of
termination of his employment with the Company ("Termination Date") for any
reason whatsoever (including, without limitation, termination by the Company
with or without cause, resignation or retirement of Executive, or Executive's
disability) Executive gives a notice ("Notice Letter") to the Company stating
that he agrees to all of the covenants set forth in Exhibit A of this Agreement.
Such notice shall be in substantially the form of Exhibit B. Payment of the
Noncompete Payment shall be made in cash within 15 days of the date of the
Company's receipt of such notice from Executive. Notwithstanding the foregoing,
the Company shall not be required to pay the Noncompete Payment if it pays to
Executive the Severance Payment (as such term is defined in the Contingent
Severance Agreement dated March 11, 1997 between the Company and Executive).
(b) Amount of Payment. The Noncompete Payment shall equal $85,000 if
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the Termination Date is prior to December 1, 1997, $170,000 if the Termination
Date is on or after December 1, 1997 and on or before November 30, 1998, and
$255,000 if the Termination Date is after November 30, 1998.
2. Miscellaneous.
2.1 Remedies. Executive acknowledges that if he delivers a Notice
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Letter to the Company and subsequently breaches his promises set forth in
Exhibit A hereto, Employer will suffer irreparable damages, the amount of which
will be impossible to ascertain and which cannot be
reasonably or adequately compensated in an action of law. Accordingly, Employer
shall be entitled, if it so elects, to institute and prosecute proceedings in
any court of competent jurisdiction, either at law or in equity, to obtain
damages for any breach or to enforce specific performance of the provisions or
to enjoin Executive from committing any act in breach of this Agreement. The
remedies granted to Employer in this Agreement are cumulative and are in
addition to remedies otherwise available to Employer at law or in equity.
2.2 Waiver of Breach. The waiver by the Company of a breach of any
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provision of this Agreement by Executive shall not operate or be construed as a
waiver of any other or subsequent breach by Executive of such or any other
provision.
2.3 Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be deemed to be properly given
if transmitted by messenger, overnight courier service, first class certified
mail (return receipt requested) or telecopy (which is confirmed), in each case
postage or other charges prepaid, addressed to the other party at the address
shown below. Any party may change such address by notice given in such manner.
All notices shall be effective (i) if sent by messenger or overnight courier
service, when delivered and (ii) if sent by mail, three days after posting.
If to the Company:
Nobel Education Dynamics, Inc.
Rose Tree Corporate Center II
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx: Chief Executive Officer
If to Executive:
Xx. Xxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
2.4 Severability. If any term or provision of this Agreement or the
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application thereof to any person or circumstance shall, to any extent, be held
invalid or unenforceable by a court of competent jurisdiction, the remainder of
this Agreement or the application of any such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. If any
of the provisions contained in this Agreement shall for any reason be held to be
excessively broad, it shall be construed by limiting and reducing it, so as to
be valid and enforceable to the extent compatible with the applicable law or the
determination by a court of competent jurisdiction.
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2.5 Governing Law. The implementation and interpretation of this
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Agreement shall be governed by and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
2.6 Binding Effect and Assignability. The rights and obligations of
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both parties under this Agreement shall inure to the benefit of and shall be
binding upon their heirs, successors and assigns, but shall not be assigned
without the written consent of both parties.
2.7 Entire Agreement. This instrument constitutes the entire
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agreement with respect to the subject matter hereof between the parties hereto
and replaces and supersedes as of the date hereof any and all prior oral or
written agreements and understandings between the parties hereto. This
Agreement may only be modified by an agreement in writing executed by both
Executive and the Company.
IN WITNESS WHEREOF, the undersigned have executed this agreement the date
and year written above.
Nobel Education Dynamics, Inc.
By:_________________________
X. X. Xxxxx
Chairman, President and CEO
and
By:__________________________
Name:_______________________,
for Compensation Committee
_____________________________
Xxxx X. Xxxxx
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EXHIBIT A
Covenants of Executive Effective Upon Giving of a Notice Letter
1. Restrictive Covenant. During the period commencing with the date of
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termination of his employment with the Company and continuing for a period of
four years (such four-year period, the "Restrictive Period"), Executive will
not, directly or indirectly, be employed by, or perform consulting services in
excess of an average of 15 hours per week for, any for-profit business which
owns private schools or preschools or child care centers (other than private
schools restricted to post-eighth grade education) located within five miles of
any private school or preschool or child care center operated by the Company or
any of its subsidiaries or affiliates. Executive shall not be deemed to violate
the foregoing if he performs services for an entity which owns private schools
or preschools or child care centers but is not personally involved in such
business.
2. Nonsolicitation. Executive will not during the Restrictive Period
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cause or solicit, directly or indirectly, the resignation of any person employed
by Employer on the date of Employee's separation.
EXHIBIT B
[date]
Nobel Education Dynamics, Inc.
Rose Tree Corporate Center II
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxx, XX 00000
Gentlemen:
By this letter, I hereby notify you that I agree to be bound by each of the
covenants set forth in Exhibit A of the Noncompete Agreement dated as of March
11, 1997 between you and me. Accordingly, you are obligated to pay to me
$_________ on or before the date 15 days following your receipt of this letter.
Very truly yours,
Xxxx X. Xxxxx
