Exhibit 10.37
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is dated as of March 1, 2002,
between Nobel Learning Communities, Inc., a Delaware corporation ("Employer")
and Xxxxx Xxxxx, an individual residing at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000 ("Executive").
Background
Executive wishes to be employed as Vice Chairman/President/Chief Operating
Officer of Employer, and to be responsible for the functions and duties assigned
to this position, and Employer wishes to assure itself of the services of
Executive, and, upon the conditions hereinafter provided, Executive and Employer
are prepared to enter into this employment agreement.
Terms
Now, Therefore, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, intending to be legally bound hereby, the
parties hereto agree as follows:
1. Employment; Scope of Duties.
1.1 Subject to and upon the terms and conditions set forth herein, Employer
hereby employs Executive in the capacity of Vice Chairman/President/Chief
Operating Officer, and Executive hereby accepts such employment and agrees to
render his services exclusively to Employer, its subsidiaries and affiliates
(collectively, the "Company"), in such capacity or similar capacity, and
faithfully, diligently and to the best of his ability. Executive will perform
those duties and responsibilities as may from time to time reasonably be
specified by Employer. Such duties and responsibilities will initially include,
without limitation, those duties set forth in Exhibit A attached hereto.
Executive will be responsible for the efficient performance of such duties and
responsibilities and will at all times operate within the goals, guidelines,
budgets, policies and procedures now or hereafter established by Employer.
Executive will report to the Chairman and Chief Executive Officer of Employer.
1.2 Executive will devote his full business and professional time, energy
and skill exclusively to the service of the Company and to the promotion of its
interests in accordance with the duties and responsibilities assigned to him by
Employer hereunder and will not render services of a business, professional or
commercial nature to any other person or entity, whether for compensation or
otherwise; provided, however, that the foregoing shall not be construed as
preventing Executive from (a) making investments in other businesses or
enterprises which do not provide services which are in competition with those
provided by the Company, provided such investments do not require the provision
of other than incidental services by Executive to the operation or affairs of
such businesses or enterprises; or (b) serving on the board of community and
nonprofit organizations which do not provide services which are in competition
with those provided by the Company; provided further that, in the case of both
clauses (a) and (b), the provision thereof will not interfere with the
performance of Executive's duties hereunder. Upon request of Employer, if
Executive is duly elected or appointed, Executive shall serve, without
additional compensation, as an officer or a director of Employer and/or its
subsidiaries or affiliates; provided, however, that Executive shall
have no obligation to accept election or appointment as an officer or a director
prior to Employer providing "director and officer" insurance coverage to
Executive.
2. Term. The term of Executive's employment will commence on February 1, 2002
and end on February 1, 2005, unless and until terminated earlier pursuant to the
provisions of this Agreement (said period during which Executive is employed
full time pursuant to this Agreement is hereinafter referred to as the
"Employment Period").
3. Compensation. As compensation and consideration for Executive's services
and responsibilities under this Agreement, Employer will pay Executive, and
Executive will accept, the compensation and benefits set forth in this Section
3.
3.1 Base Salary. Employer shall pay to Executive a gross salary at the
annual rate of Two Hundred Thousand Dollars ($200,000) ("Base Salary"), payable
at such intervals as Employer pays the salaries of its executives generally
(currently every two weeks), but not less frequently than monthly.
3.2 Bonuses. Executive shall be eligible for an annual bonus according to a
bonus plan to be established annually by Employer, in its sole discretion, such
plan to incorporate projects determined by Employer's Chief Executive Officer in
conjunction with Executive as part of Employer's annual business planning
process; provided that each bonus plan shall allow Executive to earn up to 100%
of Executive's Base Salary based on achievement of the Company's performance
versus its business plan; and provided further that Executive shall not
participate in a bonus plan for the period from the first day of the Employment
Period through June 30, 2002 unless discretionary bonuses are provided at the
discretion of the Company. Bonuses shall be calculated on a fiscal year basis,
and, except as set forth in the preceding proviso, shall be prorated for partial
years. The bonus with respect to any fiscal year shall be payable within 30 days
of the date that Employer receives from its auditors such auditor's report on
its financial statements for such fiscal year, and shall not be payable to
Executive, nor be deemed to have accrued, unless Executive is employed by
Employer on the date of scheduled payment or as otherwise expressly provided
within this Agreement.
3.3 Stock Options. Employer will grant to Executive as of the date of his
offer letter the option (the "Option") to purchase 65,000 shares of Employer's
Common Stock. The grant with respect to 40,000 of such shares shall be pursuant
to and subject to the terms of Employer's standard form of Non-Qualified Stock
Option Agreement ("Stock Option Agreement") for grants under the Company's 1995
Stock Incentive Plan, a copy of which agreement is attached hereto as Exhibit B.
The grant with respect to the remaining 25,000 of such shares shall be pursuant
to and subject to the terms of a stock option agreement in substantially the
same form as the Stock Option Agreement, except that such shares will not be
issued under the 1995 Stock Incentive Plan and the agreement shall include
customary investment representations and provisions giving Executive the right,
after exercise of the Option, to require Employer to file a registration
statement covering the shares issued (or, in the alternative, if Form S-8 is
available, Employer will file a registration statement on such form prior to the
date the shares become exercisable). The Option shall be subject to a three-year
vesting schedule, with the Option becoming exercisable with respect to one-third
of the shares
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subject to the Option on each of the first, second and third anniversary dates,
respectively, of the first day of the Employment Period if the conditions set
forth in the Stock Option Agreement have been satisfied. The exercise price
under the Option will equal the mean between the highest and lowest quoted
selling price of Employer's common stock on the NASDAQ National Market on the
first day of the Employment Period. In the future, Executive will be eligible
for grants of additional stock options based on performance at the sole
discretion of Employer's Board of Directors (or the Compensation Committee of
the Board of Directors).
3.4 Car Allowance. Executive will be provided a $7,200 per year car
allowance to cover all car expenses, including gasoline (provided that, in the
case of trips to a destination which is 100 miles or more from Employer's
corporate headquarters, Executive will be reimbursed for the cost of gasoline
relating to the trip). Such car allowance shall be paid proportionately in each
pay period.
3.5 Vacation. Executive will be entitled to four (4) weeks vacation per
year. All vacation periods requested must be approved by Employer's Chief
Executive Officer. Vacation is on a "use or lose" basis, which means that
carryover from year to year will not be permitted. Vacation balances will be
forfeited if not used by the applicable anniversary date of the first day of the
Employment Period.
3.6 Sick Leave. Executive will receive sick days in accordance with
Employer's policies.
3.7 Senior Executive Severance Plan. For so long as the "Nobel Learning
Communities, Inc. Senior Executive Severance Pay Plan," a copy of which is
attached hereto as Exhibit C (collectively with any successor plan thereto, the
"Executive Severance Pay Plan") shall be in effect, Executive shall be covered
thereby, upon execution and delivery to Employer of an acknowledgment, in
standard form, of his agreement to submit any disputes thereunder to
arbitration.
3.8 Other Benefits. Executive shall be entitled to participate in all group
health, group life insurance, short term disability, long term disability,
hospital, medical plans and retirement plans according to Employer's policies in
existence from time to time generally for executive management personnel (or as
may be decided by Employer if said items are discretionary with Employer). Such
plans currently include:
(a) 75% payment by Employer of family medical insurance (currently
provided by CIGNA Healthcare plan (as the employee elects) (with dental coverage
available for an extra premium payable by Executive);
(b) the Nobel Learning Communities 401(k) Savings Plan (in which
Executive will become eligible to participate upon the first open enrollment
period occurring after one year of service); provided that participation may be
limited by Federal laws relating to the participation level of lower wage
earners;
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(c) tuition reimbursement (the current features of which include the
requirement that courses be job-related and pre-approved, that reimbursement is
limited to a specified maximum amount and that a minimum grade be achieved as a
condition to reimbursement);
(d) term life insurance equal to one (1) times Executive's Base Salary;
(e) short-term disability insurance that extends coverage for a period
of 26 weeks at a rate of 65% of Executive's Base Salary with a maximum weekly
benefit of $325;
(f) long-term disability insurance, as provided generally to other
senior executives of Employer; and
(g) 100% educational scholarship at any Nobel school for any of the
Executive's children.
3.9 Relocation Allowance. The Executive will receive from Employer a
relocation allowance of $35,000 (the "Relocation Allowance"). On the 18th day of
each month of the Employment Period, if Executive is employed by Employer on
such date, Employer will forgive 1/36 of the Relocation Allowance. If
Executive's employment hereunder is terminated due to a Change in Control and
Termination Event (as such terms are defined in Sections 1.2 and 2.2(b) of the
Executive Severance Pay Plan) (other than by reason of Section 2.2(b)(3) of the
definition of Termination Event) or by Employer other than pursuant to Sections
7.1(a), (b) or (c) hereof, such relocation allowance will be fully forgiven on
the date of termination.
3.10 Adjustments to Compensation. Executive's compensation will be reviewed
annually each year on such date as is determined by Employer's Compensation
Committee, such review to be conducted by the Compensation Committee
consultation with the Chief Executive Officer. However, any adjustment shall be
in the sole discretion of Employer and nothing contained herein shall in any
manner obligate Employer to make any increase or provide any additional
compensation to Executive.
4. Reimbursement of Expenses. Executive shall be allowed reasonable business
expenses in connection with the performance of his duties hereunder upon
submission by Executive of vouchers or itemized statements thereof prepared in
compliance with such rules relating thereto as Employer may from time to time
adopt (which rules may include the requirement that the Executive receive
advance approval of such expenses) and as may be required in order to permit
such payments as proper deductions to Employer under the Internal Revenue Code
of 1986, as amended and the rules and regulations adopted pursuant thereto now
or hereafter in effect.
5. Facilities. Executive shall be entitled to an office appropriate to his
position and such secretarial services as are reasonably necessary to the
performance of his duties.
6. Photographs. Employer shall have the right to photograph Executive during the
course of Executive's employment or at such other times when not at work, by
camera, film, television, tape radio or other media, or record Executive in
formal or informal conversation, interview, training
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sessions, etc., any of which may be in the format of a pre-planned program or in
a spontaneous interview. The foregoing may be used by the Company or its
advertising agency for commercial purpose, on labels, training films or other
media at Employer's sole discretion. Executive's image, its replica, in whole or
portions thereof, may be used, and Executive's name may be attributed thereto.
Executive may be photographed individually or in a group. Executive's
compensation fully stated herein, includes full and complete payment for all of
the above and Executive hereby waives any further compensation, royalties, etc.
7. Termination.
7.1 Early Termination of Employment Period. Notwithstanding Section 2, the
Employment Period shall sooner terminate upon the close of business on the
earliest to occur of the dates specified below:
(a) the date of death of Executive;
(b) the date upon which Employer shall have given Executive written
notice of the termination of his employment hereunder for "disability" (as
defined in Section 7.2);
(c) the date upon which Employer shall have given to Executive written
notice of the termination of his employment for "cause" (as defined in Section
7.3); and
(d) the date upon which Employer shall have given to Executive written
notice of the termination of his employment without cause.
7.2 Definition of "Disability". For purposes of this Agreement, the term
"disability" shall mean that Executive cannot substantially perform his
"essential duties" (which shall include any travel requirements) with or without
reasonable accommodation and either (i) such situation persists for a period of
180 days in any 365 day period, or (ii) in the opinion of a Pennsylvania
licensed physician Executive is so disabled or incapacitated and he is unlikely
to be able substantially to perform his "essential duties" with or without
reasonable accommodation within 180 days. Determination of disability and the
date thereof shall be reasonably made by Employer, relying on certificates of
physicians, and Employer's decision shall be conclusive and binding, in the
absence of fraud. If Employer so requests, Executive will submit to an
examination by a Pennsylvania licensed physician with expertise or knowledge of
the type of disabling condition from which Executive allegedly suffers for the
purpose of verifying whether the provisions of this Section 7.2 are applicable.
If Executive refuses to cooperate in submitting to an examination as requested
by Employer, Executive shall immediately be deemed "disabled" for the purposes
of this Agreement. (Executive acknowledges that this Section 7.2 sets forth only
the condition for which Executive may be terminated for disability, and that
Employer is not required to pay (although it may pay) Executive for periods not
worked in excess of vacation and sick days utilized, except as may be required
by applicable law or to the extent that Executive receives benefits under
Employer's short term disability or long term disability policies.)
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7.3 Definition of "Cause". For purposes of this Agreement, the term
"cause" shall include, but not be limited to, any one of the following
conditions or any one of the following events:
(a) Executive's habitual intoxication or drug addiction;
(b) violation of Employer's policies with respect to harassment
(sexual or otherwise);
(c) refusal or failure by Executive to perform such reasonable duties
as may reasonably be delegated or assigned to him, consistent with his position,
by Employer;
(d) failure to devote his entire full week business to the duties of
the position as provided herein, except permitted vacation periods and/or
sickness leave;
(e) continuing inattention or neglect by Executive of his duties
hereunder, which inattention is not the result of illness or accident;
(f) willful or wanton misconduct or negligence by Executive in
connection with the performance of his duties;
(g) the material breach by Executive of any provisions of this
Agreement (including, without limitation, Section 9);
(h) the commission by Executive of a felony, participation in any
fraud or commission of any misdemeanor involving moral turpitude;
(i) Executive's dishonesty detrimental to the best interest of the
Company; and
(j) involvement in any matter which, in Employer's opinion, is
reasonably likely to cause prejudice or embarrassment to the Company's business.
provided, that, in the case of clauses (c), (d), (e), (f) or (g) of this Section
7.3, there shall not be "cause" unless Employer has first given Executive
written notice specifying in reasonable detail the circumstances on which
Employer believes there is "cause" for termination and Executive has failed to
remedy the same to Employer's reasonable satisfaction with fifteen (15) days
after the date of such notice, or unless the condition or event is not subject
to cure, or a substantially similar condition or event has been the subject of a
prior notice by Employer within the twelve (12) months preceding such notice.
7.4 Effect of Early Termination on Compensation.
(a) Except as provided in Sections 7.4(b) and (c), if the Employment
Period is terminated as provided in Section 7.1 (including by reason of
Executive's death or disability), Executive shall be entitled to receive only
the compensation set forth in Section 3 accrued but unpaid
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as of the date of termination and all benefits shall terminate as of such date
(except to the extent otherwise provided by law or under the terms of Employer's
benefit plans and policies then in effect).
(b) If, during the Employment Period, Employer terminates Executive's
employment pursuant to Section 7.1(d), Employer shall continue to pay Executive
the compensation provided for pursuant to Section 3.1 until the last day of the
Employment Period and provide the benefits referenced in Section 3.8 until the
last day of the Employment Period (or such earlier date as a comparable benefit
is being provided by a new employer), plus
(i) on each date that Executive would have been paid a bonus in
respect of bonus years occurring during the Employment
Period, Employer shall pay Executive the amount of the
bonus, if any, that Executive would have received had he
been employed by Employer for the full Employment Period,
and remained employed until such date following the end of
the Employment Period on which he would have had to have
been employed to receive a bonus for the last bonus year
covered by the Employment Period; offset by
(ii) the amount, if any, which is payable to Executive under the
Executive Severance Pay Plan.
If Executive violates any of the provisions of Section 10, the payments and
benefits by Employer pursuant to this Section 7.4(b) shall immediately cease,
and, in addition to any other rights which Employer may have to recover money
damages from Executive or obtain injunctive relief in respect of such violation,
Employer shall be entitled to recover from Executive all payments made pursuant
to this Section 7.4(b).
(c) Under no circumstances shall Executive be entitled to any
compensation (including, without limitation, any severance pay or termination
indemnity), except (i) as specifically set forth in this Section 7.4, or (ii) to
the extent otherwise provided by law or as may be expressly provided under the
terms of Employer's benefit plans and policies then in effect. Employer shall
pay any funds provided for in this Section 7.4 to Executive, his estate or legal
representative, as the case may be.
8. Expiration of Employment Period. On expiration or termination of the
Employment Period, neither party shall be under any obligation to renew
Executive's employment with Employer and, unless otherwise agreed by both
parties in writing, any continued employment of Executive by Employer shall be
on an "at will" basis. Notwithstanding any of the foregoing to the contrary,
Executive's covenants under Section 10 shall continue so long as he is employed
by the Company and for any additional periods specified therein.
9. Executive Representations. Executive represents and warrants to the Company
that he is not a party to or bound by any agreement, arrangement or
understanding, written or otherwise, which
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prohibits or in any manner restricts his ability to enter into and fulfill his
obligations under this Agreement and/or to be employed by and serve Employer in
an executive capacity. Executive will indemnify and hold harmless the Company
from any claims, liabilities, damages, costs or expenses (including legal fees
and costs) resulting from third-party claims of any such conflict or breach.
10. Certain Covenants of Executive.
10.1 Intellectual Property. All rights in and to any and all inventions,
ideas, techniques, methods, developments, works, improvements and other forms of
intellectual property ("Intellectual Property"), whether or not patentable,
which Executive (either alone or in conjunction with others) conceives, makes,
obtains or reduces to product or commences so to do during his employment with
Employer are and shall be the property of Employer. The foregoing shall not
apply to Intellectual Property unrelated to any subject matter of actual or
potential concern or interest to the Company which are not conceived, made,
obtained or reduced to product in the course of Executive's employment or with
the use of the time, material or facilities of the Company. Executive will make
full and prompt disclosure to Employer of all Intellectual Property and, at
Employer's request and expense but without additional compensation to Executive
during his employment hereunder and with reasonable compensation thereafter,
will at any time or times execute and deliver such foreign and domestic patent,
trademark or copyright applications, assignments and other papers and take such
other action (including, without limitation, testifying in any legal
proceedings) as Employer considers necessary to vest, perfect, defend or
maintain Employer's rights in and to such Intellectual Property. The provisions
of this Section 10.1 shall survive the termination or expiration, for any
reason, of this Agreement.
10.2 Nondisclosure of Confidential Information.
(a) Executive shall not, during the period that Executive is employed
by, or provides consulting services to, the Company, or at any time thereafter,
unless authorized to do so in writing by Employer, directly or indirectly
disclose or permit to be known to, or used for the benefit of, any person,
corporation or other entity (outside of the employ of the Company), or himself,
any confidential information acquired by him during the course of or as an
incident to his employment or association with the Company, regardless of
whether pursuant to this Agreement. For the purposes of this Section 10.2, the
term "confidential information" shall include, but not be limited to, all trade
secrets, confidential or proprietary knowledge or information with respect to
the conduct or details of the Company's businesses including, but not limited
to, lists of customers or suppliers of the Company's businesses, pricing
strategies, business files and records, trade secrets, curriculum, processes,
costs, designs, marketing methods or any other financial, educational,
curricular or other information about the Company's businesses or curriculum not
in the public domain. The term "confidential information" shall not include any
information which (i) is generally available to the public as of the date
hereof, (ii) becomes generally available to the public after the date hereof,
provided that such public disclosure did not result, directly or indirectly,
from any act, omission or fault of Executive, or (iii) becomes available to
Executive after the date of expiration or termination of his employment or any
consultancy with the Company on a non-confidential basis from a source
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other than the Company, or any of its agents, provided that such source is not
bound to the Company or its representatives by agreement, fiduciary duty or
otherwise not to disclose such information.
(b) All confidential information described in Section 10.1 shall be
the exclusive property of Employer, and Executive shall use his best efforts to
prevent any publication or disclosure thereof. Upon termination of Executive's
employment with Employer, Executive shall return to Employer all documents,
records, reports, writings and other similar documents (whether in written,
electronic or other form) containing confidential information, including copies,
extracts or notations thereof, then in his possession or control.
(c) All correspondence, memoranda, notes, records, reports, plans and
other papers and items delivered to Executive by Employer shall be the property
of Employer, and Executive will deliver all copies thereof to Employer on
expiration or termination of this Agreement or on earlier request.
10.3 Nonsolicitation. During the period that Executive is employed by
Employer or provides consulting services to the Company and for an additional
period of two (2) years thereafter, Executive will not employ, or enter into any
consultancy arrangement with, any person who was on the Company's payroll on the
date of Executive's termination of employment or consultancy or one (1) year
prior to that date, take any action to solicit the employment of any such
person, or direct or encourage any person to take any such action.
10.4 Restrictive Covenant. During the period that Executive is employed by
Employer or provides consulting services to the Company and for an additional
period of two (2) years thereafter, Executive shall not, directly or indirectly,
operate, manage, own, control, be employed by, provide consulting services to,
or in any way be connected with or be concerned with or be interested in (i) any
pre-school, private school, child care center or program or day camp of any
type, (ii) any for profit or nonprofit business which provides educational
services of the nature provided by the Company, in each case, where services are
provided within 25 miles of any place where the Company now or hereafter offers
or plans to offer services; provided however, that nothing contained in this
Section 10.4 shall prohibit Executive from owning in the aggregate less than 2%
of the publicly traded stock of any company.
10.5 Survival. The provisions of this Section 10 shall survive the
expiration or termination, for any reason, of the Employment Period and of this
Agreement, and shall continue, in the case of Sections 10.1 and 10.2, without
termination, and, in the case of Sections 10.3 and 10.4, for the period
contemplated therein (including any extended period as provided in Section
10.6).
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10.6 Remedies. Executive acknowledges that if he breaches his promises set
forth in this Section 10, the Company 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, notwithstanding
Section 11, in addition to all other remedies under this Agreement, the Company
shall be entitled as a matter of right to injunctive relief, including specific
performance, with respect to any such breach or violation, in any court of
competent jurisdiction; provided, however, that nothing herein shall be deemed
to constitute consent by Executive to an ex parte proceeding. The remedies
granted to the Company in this Agreement are cumulative and are in addition to
remedies otherwise available to the Company at law or in equity. If the Company
is obliged to resort to the courts for the enforcement of a covenant of
Executive contained in Sections 10.3 or 10.4, such covenant shall be extended
for a period of time equal to the period of such breach, which extended period
will commence on the later to occur of (i) the date on which the original
(unextended) term of such covenant is scheduled to terminate, or (ii) the date
of the final court order (without further right of appeal) enforcing such
covenant. To the extent that any statutes providing for discovery in any action
to enforce any of the covenants or obligations of this Section 10.4 delay the
time in which any party may initially propound, request or serve any discovery,
the parties waive such provisions of such statues. Executive will not seek, and
hereby waives any requirement for, the securing of posting of a bond or proving
actual damages in connection with the Company's seeking or obtaining any
injunctive or equitable relief in connection with Executive's covenants or other
obligations under this Section 10. If, despite the foregoing waivers, a court
would nonetheless require the posting of a bond, the parties agree that a bond
in the amount of $5,000 would be a fair and reasonable amount, particularly in
light of the difficulty in quantifying what the actual loss caused by an
injunction would be. Executive consents to in personam jurisdiction and venue in
each of the United States District Court for the Eastern District of
Pennsylvania and the Court of Common Pleas of Delaware County, Pennsylvania, and
waives the right to contest in personam jurisdiction and venue in such courts.
11. Arbitration of Certain Disputes. Any and all controversies or claims
arising out of or relating to this Agreement, or the breach thereof, or any
other claim by Executive against the Company arising from the employment of
Executive or the termination of Executive's employment, including without
limitation, claims alleging violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. (S)(S)2000e, et seq., the Age Discrimination in Employment Act,
29 U.S.C. (S)621, et seq., the Americans with Disabilities Act, 42 U.S.C.
(S)12101 et seq., the Family and Medical Leave Act, 29 U.S.C. (S)2601, et seq.,
any statutes of any state, and any contract or any principle of state or federal
common law, shall be settled by arbitration administered by the American
Arbitration Association under its Employment Dispute Resolution Rules. Judgment
on the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The procedure established by this Section 11 shall be the
exclusive method for resolution of such disputes. Copies of the American
Arbitration Association Employment Discrimination Resolution Rules are available
through Employer's Human Resources Department and may be obtained upon request.
Any request or demand for arbitration of any dispute covered by this Section 11
shall be filed with the American Arbitration Association no later than 300 days
after the event which gave rise to the claim. Notwithstanding the foregoing, the
Company may seek injunctive relief in any court of law in connection with an
alleged violation of any provision of Section 10, as provided in Section 10.6.
12. Miscellaneous
12.1 Binding Effect. This Agreement shall be binding upon Executive, his
personal representative or representatives and testate or intestate distributees
and upon Employer and its successors and assigns; provided that this Agreement
shall be assignable by Employer to an affiliate or any person, firm or entity
which may become a successor in interest to Employer in the business presently
operated by it or which may acquire all or substantially all of Employer's
assets or a majority of Employer's voting capital stock. The term "affiliate"
used in this Agreement shall mean any entity that directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with Employer, or is a successor of Employer. This Agreement is a
personal services contract and may not be assigned by Executive.
12.2 Survival of Certain Provisions. It is expressly understood by the
parties to this Agreement that certain provisions, rights, and obligations
pursuant to this Agreement are expressly meant to survive the expiration or
termination of the Employment Period and this Agreement and shall be given full
effect pursuant to their terms.
12.3 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be delivered by hand or be sent by
certified mail or overnight courier addressed to Executive at his address set
forth in the first paragraph of this Agreement or to Employer at Nobel Learning
Communities, Inc., 0000 Xxxx Xxxxxxx Xxxx, Xxxx Xxxxxxx, XX 00000-0000, Attn.
Vice Chairman/President and Chief Operation Officer, with a copy to Nobel
Learning Communities, at the same address, Attn: General Counsel, or to such
other address as either of such parties may designate in a written notice served
upon the other party in the manner provided herein. Any such notice shall become
effective upon being mailed or, in the case of delivery by hand or overnight
courier, upon receipt.
12.4 Governing Law. This Agreement is made and delivered in the
Commonwealth of Pennsylvania and shall be construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania, without giving effect to
principles of conflicts of law.
12.5 Prevailing Party. Should any party default in performance of any of
the terms and conditions of this Agreement which results in a claim for damages,
specific performance or other remedy, the prevailing party in such action suit
shall be entitled to its reasonable attorneys' fees and costs and court or
arbitration costs from the nonprevailing party. For the purposes of this Section
12.5, in any action with respect to the enforcement of a covenant set forth in
Section 10, the Company shall be deemed to have prevailed if any such covenant
is enforced in part, even if the applicable court exercises its discretion to
limit or reduce the duration or scope thereof or enforces only certain of such
covenants.
12.6 Entire Agreement; Modifications. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and there are no
agreements, representations or warranties not herein set forth. This Agreement
supersedes any prior written or oral agreement or understanding relating to the
subject matter hereof. No modification of this Agreement shall be valid unless
in writing and signed by the parties hereto. A waiver of the breach of any term
or
condition of this Agreement shall not be deemed to constitute a waiver of any
subsequent breach of the same or any other term or condition.
12.7 Severability; Savings Clause. If any term or provision of this
Agreement or the 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 as to duration, scope, activity or subject, 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.
12.8 Attorney Review. Executive acknowledges that this Agreement will have
important legal consequences and imposes significant requirement on Executive,
including, without limitation, the obligation to refrain from certain activities
after the expiration or termination of his employment or consultancy with
Employer. Accordingly, Executive acknowledges that Employer has recommended that
he retain legal counsel to review this Agreement and that he has been provided
with adequate time to obtain such review.
IN WITNESS WHEREOF, the undersigned have executed this Agreement the date
and year first written above.
Nobel Learning Communities, Inc.
By: /s/X. X. Xxxxx
----------------------
X. X. Xxxxx
Chairman and Chief Executive Officer
Executive:
/s/ Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx
