-----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, I8kues3M7ZIjEQHz/J60Q/euCxoF0SIqSc2gK4Joj5P18/yb4ixNomG0QXw7Of7N AQC4axoWZEHvGaIxbnR1pg== 0001036050-01-500686.txt : 20010523 0001036050-01-500686.hdr.sgml : 20010523 ACCESSION NUMBER: 0001036050-01-500686 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20010522 EFFECTIVENESS DATE: 20010522 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOBEL LEARNING COMMUNITIES INC CENTRAL INDEX KEY: 0000721237 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 222465204 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61374 FILM NUMBER: 1645379 BUSINESS ADDRESS: STREET 1: ROSE TREE CORPORATE CENTER II STREET 2: 1400 N PROVIDENCE RD STE 3055 CITY: MEDIA STATE: PA ZIP: 19063 BUSINESS PHONE: 6094829100 FORMER COMPANY: FORMER CONFORMED NAME: NOBEL EDUCATION DYNAMICS INC DATE OF NAME CHANGE: 19931222 FORMER COMPANY: FORMER CONFORMED NAME: ROCKING HORSE CHILD CARE CENTERS OF AMERICA INC /DE/ DATE OF NAME CHANGE: 19931222 FORMER COMPANY: FORMER CONFORMED NAME: PETRIE CORP DATE OF NAME CHANGE: 19851031 S-8 1 ds8.txt NOBEL STOCK OPTION PLAN, FORM S-8 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________ Nobel Learning Communities, Inc. (Exact name of registrant as specified in its charter) Delaware 22-2465204 (State or other jurisdiction of (IRS Employee Identification Number) incorporation or organization) Rose Tree Corporate Center II 1400 North Providence Road, Suite 3055 Media, PA 19063 (Address of principal executive offices) (Zip Code) 2000 Stock Option Plan for Consultants A. J. Clegg 1997 Stock Option Agreement John R. Frock 1997 Stock Option Agreement Daryl A. Dixon 1999 Stock Option Agreement (Full title of the plan) ___________________ A. J. Clegg Nobel Learning Communities, Inc. Rose Tree Corporate Center II 1400 North Providence Road, Suite 3055 Media, PA 19063 (Name and address of agent for service) (610) 891-8200 (Telephone number, including area code, of agent for service) ___________________ copies of all communications to: Barry S. Swirsky, Esq. Nobel Learning Communities, Inc. Rose Tree Corporate Center II 1400 North Providence Road, Suite 3055 Media, PA 19063 (610) 891-8200 ___________________ CALCULATION OF REGISTRATION FEE
=================================================================================================================== Title of each class of securities Amount to be Proposed maximum Proposed Amount of to be registered registered (1) (2) offering price per maximum registration fee share aggregate offering price* - ------------------------------------------------------------------------------------------------------------------- Common stock par value $.001 200,000 shares $ 9.13 (3) $1,826,000.00 $456.50 - ------------------------------------------------------------------------------------------------------------------- Common stock par value $.001 15,000 shares $ 10.375 (4) $ 155,625.00 $ 38.91 - ------------------------------------------------------------------------------------------------------------------- Common stock par value $.001 15,000 shares $ 10.375 (4) $ 155,625.00 $ 38.91 - ------------------------------------------------------------------------------------------------------------------- Common stock par value $.001 110,000 shares $4.84375 (4) $ 532,812.50 $133.20 =================================================================================================================== Total 340,000 shares $2,670,062.50 $667.52 ===================================================================================================================
(1) Includes 200,000 shares issuable pursuant to the 2000 Stock Option Plan for Consultants, 15,000 shares issuable pursuant to the A. J. Clegg 1997 Stock Option Agreement, 15,000 shares issuable pursuant to the John R. Frock 1997 Stock Option Agreement, and 110,000 shares issuable pursuant to the Daryl A. Dixon 1999 Stock Option Agreement. (2) Pursuant to Rule 416(a), this Registration Statement also registers such indeterminate number of additional shares as may become issuable under the Plan in connection with stock splits, stock dividends or similar transactions. (3) Estimated pursuant to paragraphs (c) and (h) of Rule 457, solely for purposes of calculating amount of registration fee, based upon the average of the high and low prices reported on May 18, 2001, as reported on the Nasdaq National Market. (4) Estimated pursuant to paragraph (h)(1) of Rule 457, based on the exercise price per share of stock options awarded. ================================================================================ PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS (Not required to be filed as part of the Registration Statement) PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- The Registrant hereby incorporates by reference herein the following documents: a. The Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 2000. b. The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2000 and December 31, 2000. c. The Form 8-A of the Registrant filed on August 30, 1988 (registering the Registrant's Common Stock and containing a description thereof), and amended by Form of the Registrant filed on May 30, 2000. All other reports and other documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the 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 the filing of such reports and 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified shall not be deemed to constitute a part of the Registration Statement, except as so modified and any statement so superseded shall not be deemed to constitute a part of this Registration Statement. Item 4. Description of Securities. ------------------------- Not Applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- The validity of the issuance of the shares of Common Stock offered hereby has been passed upon for the Registrant by Barry S. Swirsky, General Counsel of the Company. Mr. Swirsky holds options to purchase 60,000 shares of the Registrant's Common Stock. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 145 of the Delaware General Corporation Law, Del. Code Ann. tit. 8, sec. 145 (1991), permits indemnification of officers and directors in certain circumstances. Article 4, Section 4.01 of the Registrant's Bylaws provides that any person who was or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Registrant, or is or was serving while a director or officer of the Registrant at the request of the Registrant as a director, officer, employee, agent, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the Registrant against expenses (including attorney's fees), judgements, fines, excise taxes and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the full extent permissible under Delaware law. Article 4, Section 4.04 states that the indemnification and advancement of expenses provided by Article 4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any insurance or other agreement, vote of stockholders or disinterested directors or otherwise, both as to actions in their official capacity and as to actions in another capacity while holding an office, and shall continue as II-1 to a person who has ceased to be director or officer and shall inure to the benefit of the heirs, executors and administrators of such person. Item 7. Exemption from Registration Claimed. ----------------------------------- Not Applicable. Item 8. Exhibits. -------- 3.1 Registrant's Certificate of Incorporation, as amended and restated. (Filed as Exhibit 3 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998, and incorporated herein by reference.) 3.2 Registrant's Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock. (Filed as Exhibit 7(c) to the Registrant's Current Report on Form 8-K filed on June 14, 1993 and incorporated herein by reference.) 3.3 Registrant's Certificate of Designation, Preferences and Rights of Series C Convertible Preferred Stock. (Filed as Exhibit 4(ae) to the Registrant's Quarterly Report on Form 10-Q with respect to the quarter ended June 30, 1994 and incorporated herein by reference.) 3.4 Registrant's Certificate of Designation, Preferences and Rights of Series D Convertible Preferred Stock. (Filed as Exhibit 4E to the Registrant's Current Report on Form 8-K filed on September 11, 1995, date of earliest event reported August 25, 1995, and incorporated herein by reference.) 3.5 Registrant's Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock. (Filed as Exhibit B to Exhibit 1.1 to Registrant's Registration Statement on Form 8-A, dated May 30, 2000 and incorporated herein by reference.) 3.6 Registrant's Amended and Restated By-laws. (Filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, and incorporated herein by reference.) 5 Opinion of Barry S. Swirsky, Esq., General Counsel of the Registrant. 10.1 Stock Option Agreement dated January 2, 1997 between A. J. Clegg and the Registrant. 10.2 Stock Option Agreement dated January 2, 1997 between John R. Frock and the Registrant. 10.3 Stock Option Agreement dated as of January 25, 1999 between Daryl A. Dixon and the Registrant. 10.4 2000 Stock Option Plan for Consultants. 23.1 Consent of PricewaterhouseCoopers L.L.P., independent accountants. 23.2 Consent of Barry S. Swirsky, Esq. (included as part of Exhibit 5). Item 9. Undertakings. ------------ The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (a) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); (b) 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; and (c) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (1)(a) and (1)(b) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished II-2 to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for purposes of determining 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 the securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from the registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's Annual Report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(a) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed 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. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant 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 Registrant 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 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 that 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 Media, Pennsylvania on May 22, 2001. NOBEL LEARNING COMMUNITIES, INC. By: /s/ A. J. Clegg ---------------------------------- A. J. Clegg Chairman of the Board of Directors and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints A.J. Clegg and John R. Frock and each of them, such person's true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for such person and in such person's name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, 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 and on the dates indicated. Signature Title Date --------- ----- ---- /s/ A. J. Clegg Chairman of the Board May 22, 2001 - ----------------------- of Directors and Chief A. J. Clegg Executive Officer /s/ William E. Bailey Executive Vice President; May 22, 2001 - ----------------------- Principal Financial Officer William E. Bailey and Principal Accounting Officer /s/ Edward H. Chambers Director May 22, 2001 - ----------------------- Edward H. Chambers /s/ John R. Frock Vice Chairman, Director May 22, 2001 - ----------------------- John R. Frock /s/ Peter H. Havens Director May 22, 2001 - ----------------------- Peter H. Havens II-4 Director May 22, 2001 - ----------------------- Pamela S. Lewis /s/ Eugene G. Monaco Director May 22, 2001 - ----------------------- Eugene G. Monaco Director May 22, 2001 - ----------------------- William L. Walton /s/ Robert E. Zobel Director May 22, 2001 - ----------------------- Robert E. Zobel II-5 EXHIBITS Exhibit Number Description - -------- ----------- 3.1 Registrant's Certificate of Incorporation, as amended and restated. (Filed as Exhibit 3 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998, and incorporated herein by reference.) 3.2 Registrant's Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock. (Filed as Exhibit 7(c) to the Registrant's Current Report on Form 8-K filed on June 14, 1993 and incorporated herein by reference.) 3.3 Registrant's Certificate of Designation, Preferences and Rights of Series C Convertible Preferred Stock. (Filed as Exhibit 4(ae) to the Registrant's Quarterly Report on Form 10-Q with respect to the quarter ended June 30, 1994 and incorporated herein by reference.) 3.4 Registrant's Certificate of Designation, Preferences and Rights of Series D Convertible Preferred Stock. (Filed as Exhibit 4E to the Registrant's Current Report on Form 8-K filed on September 11, 1995, date of earliest event reported August 25, 1995, and incorporated herein by reference.) 3.5 Registrant's Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock. (Filed as Exhibit B to Exhibit 1.1 to Registrant's Registration Statement on Form 8-A, dated May 30, 2000 and incorporated herein by reference.) 3.6 Registrant's Amended and Restated By-laws. (Filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, and incorporated herein by reference.) 5 Opinion of Barry S. Swirsky, Esq., General Counsel of the Registrant. 10.1 Stock Option Agreement dated January 2, 1997 between A. J. Clegg and the Registrant. 10.2 Stock Option Agreement dated January 2, 1997 between John R. Frock and the Registrant. 10.3 Stock Option Agreement dated as of January 25, 1999 between Daryl A. Dixon and the Registrant. 10.4 2000 Stock Option Plan for Consultant. 23.1 Consent of PricewaterhouseCoopers L.L.P., independent accountants. 23.2 Consent of Barry S. Swirsky, Esq. (included as part of Exhibit 5). II-6 EX-5 2 dex5.txt OPINION OF BARRY S. SWIRSKY, ESQ. EXHIBIT 5 Nobel Learning Communities, Inc. Rose Tree Corporate Center II 1400 N. Providence Road, Suite 3055 Media, PA 19063 Gentlemen: I have acted as counsel to Nobel Learning Communities, Inc. (the "Company") in connection with the preparation and filing with the Securities and Exchange Commission of the Company's Registration Statement on Form S-8 under the Securities Act of 1933 (the "Registration Statement") relating to an aggregate of 340,000 shares of Common Stock of the Company, par value $.001 per share (the "Shares"), issuable pursuant to the exercise of options granted under the Company's 2000 Stock Option Plan for Consultants (the "Plan") and the stock option agreements of the Company with each of A. J. Clegg, John R. Frock and Daryl A. Dixon, as referenced in the Registration Statement (collectively, the "Stock Option Agreements"). In this capacity, I have reviewed originals or copies, certified or otherwise identified to my satisfaction, of the Company's Certificate of Incorporation, its By-laws, resolutions of its Board of Directors, the Plan, the Stock Option Agreements and such other documents and corporate records as I have deemed appropriate for the purpose of giving this opinion. Based upon the foregoing and consideration of such questions of law as I have deemed relevant, I am of the opinion that the Shares issued by the Company upon the exercise of stock options properly granted under the Plan and the exercise of stock options granted under the Stock Option Agreement, and payment therefor in accordance with the terms of the Plan or the Stock Option Agreements, as the case may be, will be validly issued, fully paid and nonassessable by the Company. The opinions expressed herein are limited to the General Corporation Law of the State of Delaware. I consent to the use of this opinion as an exhibit to the Registration Statement. This does not constitute a consent under Section 7 of the Securities Act of 1933 since I have not certified any part of the Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 or the rules and regulations of the Securities and Exchange Commission. Very truly yours, Barry S. Swirsky General Counsel EX-10.1 3 dex101.txt A.J. CLEGG STOCK OPTION AGREEMENT Exhibit 10.1 NOBEL EDUCATION DYNAMICS, INC. Non-qualified Stock Option Agreement ------------------------------------ Non-qualified Stock Option Agreement dated as of January 2, 1997 ("Agreement") between Nobel Education Dynamics, Inc., a Delaware corporation (the "Company"), and A. J. Clegg ("Employee"). 1. Definitions ----------- 1.1 "Code" means the Internal Revenue Code of 1986, as amended from time to time. 1.2 "Committee" means the Compensation Committee of the Board of Directors of the Company or, in the event there is no such Compensation Committee, the Board of Directors of the Company. 1.3 "Common Stock" means the Company's Common Stock, par value $0.001 per share. 1.4 "Date of Exercise" means the date on which the notice required by Section 4.1 hereof is received by the Company. 1.5 "Date of Grant" means January 2, 1997. 1.6 "Option" means the option granted hereunder. The Option hereby granted is a non-qualified stock option (i.e., not an "incentive stock option" within the meaning of section 422 of the Code). 1.7 "Optioned Stock" means the shares of Common Stock that are subject to the Option. 1.8 "Subsidiary" means any corporation which is a subsidiary of the Company under the definition of "subsidiary corporation" contained in section 424(f) of the Code, or any successor. 1.9 "Termination Date" means the earliest to occur of the following: (a) the tenth (10th) anniversary of the Date of Grant; (b) If Employee's employment by the Company (and Subsidiaries) is terminated by either party for any reason other than death or disability, the date three months after the date of such termination of employment; (c) If Employee shall become disabled (within the meaning of section 22(e)(3) of the Code) during Employee's employment and Employee's employment is terminated as a consequence of such disability, the date one year after the date of such termination of employment; or (d) If Employee shall die during Employee's employment, the date one year after the date of death; provided that if Employee's employment is terminated for any reason other than death and Employee shall die following such termination of employment but prior to the expiration of the period determined under clause (b) or (c) above (whichever is applicable), then the Termination Date shall mean the earlier of (i) the tenth (10th) anniversary of the Date of Grant and (ii) the date one year after the date of death. 2. Grant of Option. --------------- Subject to the terms and conditions of this Agreement, the Company hereby grants to Employee the option to purchase 15,000 shares of Common Stock. The exercise price of the Option in respect of each share of Optioned Stock shall be $10.375, subject to adjustment pursuant Section 9 hereof. Notwithstanding the foregoing, only full shares shall be issued hereunder, and any fractional share which might otherwise be issuable upon the exercise of the Option shall be forfeited. 3. Time of Exercise. ---------------- The Option shall be exercisable from time to time following the Date of Grant through the Termination Date with respect to all or any portion of the Option which shall have been vested as of the Date of Exercise. The Option shall vest with respect to one-third of the shares of Optioned Stock subject thereto as of the Date of Grant on each of the first, second and third anniversary dates of the Date of Grant. The Option shall terminate absolutely at 5:00 p.m. New York Time on the Termination Date. 4. Manner of Exercise; Payment. --------------------------- 4.1 Exercise of the Option shall be effected by giving written notice of exercise to the Company, in care of the Secretary of the Company. Any such notice shall state the number of shares of Optioned Stock for which the Option is being exercised and shall be accompanied by payment in full of the exercise price for such shares of Optioned Stock. Such notice shall be irrevocable once given. 4.2 Employee shall have the right to exercise the Option with respect to all or part of the Optioned Stock. Exercise of the Option with respect to part of the Optioned Stock does not waive or limit Employee's rights with respect to the balance of the Optioned Stock. 2 4.3 The exercise price for the Optioned Stock upon exercise shall be payable in cash or its equivalent; provided, however, that if the Committee, in its discretion, so determines at or prior to the time of exercise, Employee may pay all or a portion of the exercise price in shares of Common Stock previously acquired by Employee; provided further that if such shares were acquired through exercise of an option or under a stock appreciation right or through the grant by the Company of restricted stock or unrestricted stock, Employee shall have held such shares for a period of more than 12 months on the Date of Exercise; provided further that any right to pay the exercise price by delivery of shares shall be subject to applicable laws. In the event all or a portion of the aggregate exercise price is paid with shares of Common Stock, the shares of Common Stock surrendered in payment of such Option shall be valued in such manner as the Committee reasonably determines. 5. Nontransferability. ------------------ The Option shall not be assignable or transferable by Employee, otherwise than by will or by the laws of descent and distribution, and the Option shall be exercisable only by the Grantee; provided that in the event of Employee's legal disability, the Option may be so exercised by Employee's guardian or legal representative and in the event of Employee's death, the Option may be so exercised by Employee's estate, personal representative or beneficiary who acquired the right to exercise such Option by bequest or inheritance or by reason of the death of Employee. If Employee is married at the time of exercise of the Option and if Employee so requests at the time of exercise, the certificate or certificates issued shall be registered in the name of Employee and Employee's spouse, jointly, with right of survivorship. 6. Securities Laws --------------- 6.1 The Company may from time to time impose any conditions on the exercise of the Option as it deems necessary or advisable to ensure that the Option granted hereunder, and the exercise thereof, satisfy the applicable requirements of federal and state securities laws. Such conditions to satisfy applicable federal and state securities laws may include, without limitation, the partial or complete suspension of the right to exercise the Option, the printing of legends on certificates issued pursuant to Section 7 and requiring Employee to deliver to the Company a representation letter as to Employee's investment intent. 6.2 Employee hereby represents and warrants to the Company that: (a) upon exercise of the Option, Employee will acquire the Optioned Stock for his own account, not as a nominee or agent, for investment and without a view to resale or other distribution within the meaning of the Securities Act of 1933 (the "1933 Act") and the rules and regulations thereunder, and Employee will not distribute any of the Optioned Stock in violation of the 1933 Act or any state securities laws; 3 (b) Employee understands that: (i) the shares of Optioned Stock will not be registered under the 1933 Act and must be held indefinitely by Employee unless such shares are subsequently registered under the 1933 Act or an exemption from registration is available, and the Company is not obligated to effect any such registration; (ii) any routine sales of the Optioned Stock made under Rule 144 promulgated under the 1933 Act may be made only in accordance with the terms and conditions of that Rule (which currently includes minimum holding period requirements and, in certain cases, limits as to the number of shares which may be sold in specified periods) and that in such cases where Rule 144 is not applicable, registration or compliance with some other registration exemption will be required; and (iii) the certificates representing the Optioned Stock issuable to Employee will contain a restrictive legend noting the restrictions on transfer described herein and under federal and applicable state securities laws, and appropriate "stop-transfer" instructions will be given to the Company's stock transfer agent; (c) Employee currently has a net worth (or joint net worth with his spouse) equal to at least $1,000,000 and, accordingly, is an "accredited investors" as such term is defined in Rule 501 of Regulation D promulgated under the 1933 Act; and (d) Employee's knowledge and experience in financial and business matters are such that Employee is capable of evaluating the merits and risks of an acquisition of the Optioned Stock pursuant to the Option. 7. Issuance of Certificates for Shares ----------------------------------- Subject to the provisions of this Agreement, the certificates for the shares of Common Stock issuable upon exercise of the Option shall be delivered to Employee (or to such person entitled thereto in accordance with Section 5) as promptly after the Date of Exercise as is feasible, provided that the Company shall not be obligated to make such deliveries, until (a) Employee has made payment in full for such shares of Optioned Stock pursuant to Section 4 and (b) Employee and the Company (or such Subsidiary as is the employer of Employee) have arranged for the payment by Employee to the Company (or such Subsidiary), or the withholding from Employee's other compensation, of an amount in cash equal to the amount of any tax required to be withheld by the Company (or such Subsidiary) by any applicable federal or state laws or regulations on account of such exercise. The Company may also condition delivery of shares of Common Stock upon the prior receipt from Employee of any undertakings or representations that it may determine are required to ensure that the certificates are being issued in compliance with federal and state securities laws. 4 8. Rights Prior to Issuance of Certificates ---------------------------------------- Neither Employee nor the person to whom the rights of Employee shall have passed by will or the laws of descent and distribution shall have any of the rights of a stockholder with respect to any shares of Optioned Stock until the date of the issuance to such person of certificates for such shares of Optioned Stock pursuant thereto. 9. Stock Dividends; Subdivision or Combination of Shares ----------------------------------------------------- The number of shares of Common Stock subject to the Option (as well as the Option exercise price per share), shall, subject to the provisions of section 424(a) of the Code, be adjusted to reflect any stock dividend, stock split, share combination, or similar change in the capitalization of the Company. In the event of a corporate transaction (as that term is described in section 424(a) of the Code and the Treasury Regulations issued thereunder as, for example, a merger, consolidation, acquisition of property or stock, separation, reorganization, or liquidation), the Option shall be assumed by the surviving or successor corporation; provided, however, that, in the event of a proposed corporate transaction, the Committee may terminate all or a portion of the Option effective upon closing of such corporate transaction if it determines that such termination is in the best interests of the Company. If the Committee decides so to terminate outstanding Options, the Committee shall give Executive not less than seven days' notice prior to any such termination by reason of such a corporate transaction, and, at the closing of such corporate transaction, the Option shall be terminated (unless previously exercised) and the Company shall pay to Executive (except to the extent that the Option is terminated prior to the date of such closing otherwise than by reason of such Committee action) an amount equal to the consideration paid, or to be paid, per share of Common Stock to holders of Common Stock in connection with such corporate transaction (as determined in good faith by the Committee) less the exercise price of the Option. The Committee also may, in its discretion reasonably exercised, change the terms of the Option to reflect any such corporate transaction. 10. Change of Control ----------------- Upon a Change in Control, the Committee (as it is constituted on the day preceding the date of the Change in Control) may, in its discretion, accelerate the vesting and exercisability of the Options. "Change in Control" shall mean the point in time when any person (as such term is used in Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder and including any Affiliate or Associate of such person (as such terms are defined in Rule 12b-2 under the Exchange Act), and any person acting in concert with such person) directly or indirectly acquires or otherwise becomes entitled to vote more than 50 percent of the voting power entitled to be cast at elections for directors of the Company. 5 11. Option Not to Affect Employment ------------------------------- The Option granted hereunder shall not confer upon Employee any right to continue in the employment of the Company or any Subsidiary of the Company. 12. Withholding. ----------- Each Employee authorizes the Company to make any required withholding from such Employee's compensation for the payment of any and all income taxes and other sums that may be due any governmental authority (other than taxes imposed directly upon the Company) as a result of the receipt by Employee of compensation income pursuant to the foregoing payments, and agrees, if requested by the Company and if the Company has complied with its obligations hereunder, and in lieu of all or a portion of such withholding, to pay the Company in a lump sum such amounts as the Company may be required to remit to any governmental authority on behalf of Employee in respect of any such taxes and other sums. 13. Miscellaneous ------------- 13.1 All notices and other communications hereunder shall be in writing and shall be transmitted by messenger, courier service or certified first-class mail (in each case postage or cost of delivery prepaid) and shall be effective when delivered. The address for notices and other communications of (i) the Company is Rose Tree Corporate Center II, 1400 North Providence Road, Suite 3055, Media, PA 19063, Attn: Corporate Secretary, and (ii) Employee is the address set forth below under Employee's signature. Either party may change its address for notice given notice to the other pursuant to this Section 13.1. 13.2 This Agreement may be executed in two or more counterparts all of which taken together will constitute one and the same instrument. 13.3 This Agreement shall be governed by the applicable Code provisions to the maximum extent possible; otherwise, the operation of, and the rights of Employee under this Agreement shall be governed by applicable federal law and otherwise by the laws of the State of Delaware. 6 IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written. Nobel Education Dynamics, Inc. By:_________________________________ Yvonne DeAngelo Vice President EMPLOYEE: ____________________________________ A. J. Clegg Employee's Address: Nobel Education Dynamics, Inc. Rose Tree Corporate Center II 1400 North Providence Road Suite 3055 Media, PA 19063 7 EX-10.2 4 dex102.txt JOHN R. FROCK OPTION AGREEMENT Exhibit 10.2 NOBEL EDUCATION DYNAMICS, INC. Non-qualified Stock Option Agreement ------------------------------------ Non-qualified Stock Option Agreement dated as of January 2, 1997 ("Agreement") between Nobel Education Dynamics, Inc., a Delaware corporation (the "Company"), and John R. Frock ("Employee"). 1. Definitions ----------- 1.1 "Code" means the Internal Revenue Code of 1986, as amended from time to time. 1.2 "Committee" means the Compensation Committee of the Board of Directors of the Company or, in the event there is no such Compensation Committee, the Board of Directors of the Company. 1.3 "Common Stock" means the Company's Common Stock, par value $0.001 per share. 1.4 "Date of Exercise" means the date on which the notice required by Section 4.1 hereof is received by the Company. 1.5 "Date of Grant" means January 2, 1997. 1.6 "Option" means the option granted hereunder. The Option hereby granted is a non-qualified stock option (i.e., not an "incentive stock option" within the meaning of section 422 of the Code). 1.7 "Optioned Stock" means the shares of Common Stock that are subject to the Option. 1.8 "Subsidiary" means any corporation which is a subsidiary of the Company under the definition of "subsidiary corporation" contained in section 424(f) of the Code, or any successor. 1.9 "Termination Date" means the earliest to occur of the following: (a) the tenth (10th) anniversary of the Date of Grant; (b) If Employee's employment by the Company (and Subsidiaries) is terminated by either party for any reason other than death or disability, the date three months after the date of such termination of employment; (c) If Employee shall become disabled (within the meaning of section 22(e)(3) of the Code) during Employee's employment and Employee's employment is terminated as a consequence of such disability, the date one year after the date of such termination of employment; or (d) If Employee shall die during Employee's employment, the date one year after the date of death; provided that if Employee's employment is terminated for any reason other than death and Employee shall die following such termination of employment but prior to the expiration of the period determined under clause (b) or (c) above (whichever is applicable), then the Termination Date shall mean the earlier of (i) the tenth (10th) anniversary of the Date of Grant and (ii) the date one year after the date of death. 2. Grant of Option. --------------- Subject to the terms and conditions of this Agreement, the Company hereby grants to Employee the option to purchase 15,000 shares of Common Stock. The exercise price of the Option in respect of each share of Optioned Stock shall be $10.375, subject to adjustment pursuant Section 9 hereof. Notwithstanding the foregoing, only full shares shall be issued hereunder, and any fractional share which might otherwise be issuable upon the exercise of the Option shall be forfeited. 3. Time of Exercise. ---------------- The Option shall be exercisable from time to time following the Date of Grant through the Termination Date with respect to all or any portion of the Option which shall have been vested as of the Date of Exercise. The Option shall vest with respect to one-third of the shares of Optioned Stock subject thereto as of the Date of Grant on each of the first, second and third anniversary dates of the Date of Grant. The Option shall terminate absolutely at 5:00 p.m. New York Time on the Termination Date. 4. Manner of Exercise; Payment. --------------------------- 4.1 Exercise of the Option shall be effected by giving written notice of exercise to the Company, in care of the Secretary of the Company. Any such notice shall state the number of shares of Optioned Stock for which the Option is being exercised and shall be accompanied by payment in full of the exercise price for such shares of Optioned Stock. Such notice shall be irrevocable once given. 4.2 Employee shall have the right to exercise the Option with respect to all or part of the Optioned Stock. Exercise of the Option with respect to part of the Optioned Stock does not waive or limit Employee's rights with respect to the balance of the Optioned Stock. 2 4.3 The exercise price for the Optioned Stock upon exercise shall be payable in cash or its equivalent; provided, however, that if the Committee, in its discretion, so determines at or prior to the time of exercise, Employee may pay all or a portion of the exercise price in shares of Common Stock previously acquired by Employee; provided further that if such shares were acquired through exercise of an option or under a stock appreciation right or through the grant by the Company of restricted stock or unrestricted stock, Employee shall have held such shares for a period of more than 12 months on the Date of Exercise; provided further that any right to pay the exercise price by delivery of shares shall be subject to applicable laws. In the event all or a portion of the aggregate exercise price is paid with shares of Common Stock, the shares of Common Stock surrendered in payment of such Option shall be valued in such manner as the Committee reasonably determines. 5. Nontransferability. ------------------ The Option shall not be assignable or transferable by Employee, otherwise than by will or by the laws of descent and distribution, and the Option shall be exercisable only by the Grantee; provided that in the event of Employee's legal disability, the Option may be so exercised by Employee's guardian or legal representative and in the event of Employee's death, the Option may be so exercised by Employee's estate, personal representative or beneficiary who acquired the right to exercise such Option by bequest or inheritance or by reason of the death of Employee. If Employee is married at the time of exercise of the Option and if Employee so requests at the time of exercise, the certificate or certificates issued shall be registered in the name of Employee and Employee's spouse, jointly, with right of survivorship. 6. Securities Laws --------------- 6.1 The Company may from time to time impose any conditions on the exercise of the Option as it deems necessary or advisable to ensure that the Option granted hereunder, and the exercise thereof, satisfy the applicable requirements of federal and state securities laws. Such conditions to satisfy applicable federal and state securities laws may include, without limitation, the partial or complete suspension of the right to exercise the Option, the printing of legends on certificates issued pursuant to Section 7 and requiring Employee to deliver to the Company a representation letter as to Employee's investment intent. 6.2 Employee hereby represents and warrants to the Company that: (a) upon exercise of the Option, Employee will acquire the Optioned Stock for his own account, not as a nominee or agent, for investment and without a view to resale or other distribution within the meaning of the Securities Act of 1933 (the "1933 Act") and the rules and regulations thereunder, and Employee will not distribute any of the Optioned Stock in violation of the 1933 Act or any state securities laws; 3 (b) Employee understands that: (i) the shares of Optioned Stock will not be registered under the 1933 Act and must be held indefinitely by Employee unless such shares are subsequently registered under the 1933 Act or an exemption from registration is available, and the Company is not obligated to effect any such registration; (ii) any routine sales of the Optioned Stock made under Rule 144 promulgated under the 1933 Act may be made only in accordance with the terms and conditions of that Rule (which currently includes minimum holding period requirements and, in certain cases, limits as to the number of shares which may be sold in specified periods) and that in such cases where Rule 144 is not applicable, registration or compliance with some other registration exemption will be required; and (iii) the certificates representing the Optioned Stock issuable to Employee will contain a restrictive legend noting the restrictions on transfer described herein and under federal and applicable state securities laws, and appropriate "stop-transfer" instructions will be given to the Company's stock transfer agent; (c) Employee currently has a net worth (or joint net worth with his spouse) equal to at least $1,000,000 and, accordingly, is an "accredited investors" as such term is defined in Rule 501 of Regulation D promulgated under the 1933 Act; and (d) Employee's knowledge and experience in financial and business matters are such that Employee is capable of evaluating the merits and risks of an acquisition of the Optioned Stock pursuant to the Option. 7. Issuance of Certificates for Shares ----------------------------------- Subject to the provisions of this Agreement, the certificates for the shares of Common Stock issuable upon exercise of the Option shall be delivered to Employee (or to such person entitled thereto in accordance with Section 5) as promptly after the Date of Exercise as is feasible, provided that the Company shall not be obligated to make such deliveries, until (a) Employee has made payment in full for such shares of Optioned Stock pursuant to Section 4 and (b) Employee and the Company (or such Subsidiary as is the employer of Employee) have arranged for the payment by Employee to the Company (or such Subsidiary), or the withholding from Employee's other compensation, of an amount in cash equal to the amount of any tax required to be withheld by the Company (or such Subsidiary) by any applicable federal or state laws or regulations on account of such exercise. The Company may also condition delivery of shares of Common Stock upon the prior receipt from Employee of any undertakings or representations that it may determine are required to ensure that the certificates are being issued in compliance with federal and state securities laws. 4 8. Rights Prior to Issuance of Certificates ---------------------------------------- Neither Employee nor the person to whom the rights of Employee shall have passed by will or the laws of descent and distribution shall have any of the rights of a stockholder with respect to any shares of Optioned Stock until the date of the issuance to such person of certificates for such shares of Optioned Stock pursuant thereto. 9. Stock Dividends; Subdivision or Combination of Shares ----------------------------------------------------- The number of shares of Common Stock subject to the Option (as well as the Option exercise price per share), shall, subject to the provisions of section 424(a) of the Code, be adjusted to reflect any stock dividend, stock split, share combination, or similar change in the capitalization of the Company. In the event of a corporate transaction (as that term is described in section 424(a) of the Code and the Treasury Regulations issued thereunder as, for example, a merger, consolidation, acquisition of property or stock, separation, reorganization, or liquidation), the Option shall be assumed by the surviving or successor corporation; provided, however, that, in the event of a proposed corporate transaction, the Committee may terminate all or a portion of the Option effective upon closing of such corporate transaction if it determines that such termination is in the best interests of the Company. If the Committee decides so to terminate outstanding Options, the Committee shall give Executive not less than seven days' notice prior to any such termination by reason of such a corporate transaction, and, at the closing of such corporate transaction, the Option shall be terminated (unless previously exercised) and the Company shall pay to Executive (except to the extent that the Option is terminated prior to the date of such closing otherwise than by reason of such Committee action) an amount equal to the consideration paid, or to be paid, per share of Common Stock to holders of Common Stock in connection with such corporate transaction (as determined in good faith by the Committee) less the exercise price of the Option. The Committee also may, in its discretion reasonably exercised, change the terms of the Option to reflect any such corporate transaction. 10. Change of Control ----------------- Upon a Change in Control, the Committee (as it is constituted on the day preceding the date of the Change in Control) may, in its discretion, accelerate the vesting and exercisability of the Options. "Change in Control" shall mean the point in time when any person (as such term is used in Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder and including any Affiliate or Associate of such person (as such terms are defined in Rule 12b-2 under the Exchange Act), and any person acting in concert with such person) directly or indirectly acquires or otherwise becomes entitled to vote more than 50 percent of the voting power entitled to be cast at elections for directors of the Company. 5 11. Option Not to Affect Employment ------------------------------- The Option granted hereunder shall not confer upon Employee any right to continue in the employment of the Company or any Subsidiary of the Company. 12. Withholding. ----------- Each Employee authorizes the Company to make any required withholding from such Employee's compensation for the payment of any and all income taxes and other sums that may be due any governmental authority (other than taxes imposed directly upon the Company) as a result of the receipt by Employee of compensation income pursuant to the foregoing payments, and agrees, if requested by the Company and if the Company has complied with its obligations hereunder, and in lieu of all or a portion of such withholding, to pay the Company in a lump sum such amounts as the Company may be required to remit to any governmental authority on behalf of Employee in respect of any such taxes and other sums. 13. Miscellaneous ------------- 13.1 All notices and other communications hereunder shall be in writing and shall be transmitted by messenger, courier service or certified first-class mail (in each case postage or cost of delivery prepaid) and shall be effective when delivered. The address for notices and other communications of (i) the Company is Rose Tree Corporate Center II, 1400 North Providence Road, Suite 3055, Media, PA 19063, Attn: Corporate Secretary, and (ii) Employee is the address set forth below under Employee's signature. Either party may change its address for notice given notice to the other pursuant to this Section 13.1. 13.2. This Agreement may be executed in two or more counterparts all of which taken together will constitute one and the same instrument. 13.3. This Agreement shall be governed by the applicable Code provisions to the maximum extent possible; otherwise, the operation of, and the rights of Employee under this Agreement shall be governed by applicable federal law and otherwise by the laws of the State of Delaware. 6 IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written. Nobel Education Dynamics, Inc. By:___________________________________________________ A. J. Clegg Chairman, President and Chief Executive Officer EMPLOYEE: ______________________________________________________ John R. Frock Employee's Address: Nobel Education Dynamics, Inc. Rose Tree Corporate Center II 1400 North Providence Road Suite 3055 Media, PA 19063 7 EX-10.3 5 dex103.txt DARYL A. DIXON STOCK OPTION AGREEMENT Exhibit 10.3 NOBEL LEARNING COMMUNITIES, INC. Non-qualified Stock Option Agreement ------------------------------------ Non-qualified Stock Option Agreement dated as of February 19, 1999 ("Agreement") between Nobel Learning Communities, Inc., a Delaware corporation (the "Company"), and Daryl A. Dixon ("Employee"). 1. Definitions ----------- 1.1 "Change in Control" shall have the meaning set forth in Section 12 of the Company's 1995 Stock Incentive Plan, as the same may be amended from time to time (except that no such amendment shall have the effect of making this definition more restrictive than prior to such amendment). 1.2 "Code" means the Internal Revenue Code of 1986, as amended from time to time. 1.3 "Committee" means the Compensation Committee of the Board of Directors of the Company or, in the event that there is no such Compensation Committee, the Board of Directors of the Company. 1.4 "Common Stock" means the Company's Common Stock, par value $0.001 per share. 1.5 "Date of Exercise" means the date on which the notice required by Section 4.1 is received by the Company. 1.6 "Date of Grant" means February 19, 1999. 1.7 "Option" means the option granted hereunder. The Option hereby granted is a non-qualified stock option (i.e., not an "incentive stock option" within the meaning of section 422 of the Code). 1.8 "Optioned Stock" means the shares of Common Stock that are subject to the Option. 1.9 "Subsidiary" means any corporation which is a subsidiary of the Company under the definition of "subsidiary corporation" contained in section 424(f) of the Code, or any successor. 1.10 "Termination Date" means the earliest to occur of the following: (a) the tenth (10th) anniversary of the Date of Grant; (b) if Employee's employment by the Company (and Subsidiaries) is terminated by either party for any reason other than death or disability, the date three months after the date of such termination of employment; (c) if Employee shall become disabled (within the meaning of section 22(e)(3) of the Code) during Employee's employment and Employee's employment is terminated as a consequence of such disability, the date one year after the date of such termination of employment; or (d) if Employee shall die during Employee's employment, the date one year after the date of death; provided that if Employee's employment is terminated for any reason other than death and Employee shall die following such termination of employment but prior to the expiration of the period determined under clause (b) or (c) above (whichever is applicable), then the Termination Date shall mean the earlier of (i) the tenth (10th) anniversary of the Date of Grant and (ii) the date one year after the date of death. 2. Grant of Option. --------------- Subject to the terms and conditions of this Agreement, the Company hereby grants to Employee the option to purchase 110,000 shares of Common Stock. The exercise price of the Option in respect of each share of Optioned Stock shall be $4.84375, subject to adjustment pursuant Section 9 hereof. Notwithstanding the foregoing, only full shares shall be issued hereunder, and any fractional share which might otherwise be issuable upon the exercise of the Option shall be forfeited. 3. Time of Exercise. ---------------- The Option shall be exercisable from time to time following the Date of Grant through the Termination Date with respect to all or any portion of the Option which shall have been vested as of the Date of Exercise. The Option shall vest with respect to one-third of the shares of Optioned Stock subject thereto as of the Date of Grant on each of the first, second and third anniversary dates of the Date of Grant; provided however that upon a Change in Control, the Option shall immediately vest with respect to all of the shares of Optioned Stock. The Option shall terminate absolutely at 5:00 p.m. New York Time on the Termination Date. 4. Manner of Exercise; Payment. --------------------------- 4.1 Exercise of the Option shall be effected by giving written notice of exercise to the Company, in care of the Secretary of the Company. Any such notice shall state the number of shares of Optioned Stock for which the Option is being exercised and shall be accompanied by 2 payment in full of the exercise price for such shares of Optioned Stock. Such notice shall be irrevocable once given. 4.2 Employee shall have the right to exercise the Option with respect to all or part of the Optioned Stock. Exercise of the Option with respect to part of the Optioned Stock does not waive or limit Employee's rights with respect to the balance of the Optioned Stock. 4.3 The exercise price for the Optioned Stock upon exercise shall be payable in cash or its equivalent; provided, however, that if the Committee, in its discretion, so determines at or prior to the time of exercise, Employee may pay all or a portion of the exercise price in shares of Common Stock previously acquired by Employee; provided further that if such shares were acquired through exercise of an option or under a stock appreciation right or through the grant by the Company of restricted stock or unrestricted stock, Employee shall have held such shares for a period of more than 12 months on the Date of Exercise; provided further that any right to pay the exercise price by delivery of shares shall be subject to applicable laws. In the event all or a portion of the aggregate exercise price is paid with shares of Common Stock, the shares of Common Stock surrendered in payment of such Option shall be valued in such manner as the Committee reasonably determines. 5. Nontransferability. ------------------ The Option shall not be assignable or transferable by Employee, otherwise than by will or by the laws of descent and distribution, and the Option shall be exercisable only by the Grantee; provided that in the event of Employee's legal disability, the Option may be so exercised by Employee's guardian or legal representative and in the event of Employee's death, the Option may be so exercised by Employee's estate, personal representative or beneficiary who acquired the right to exercise such Option by bequest or inheritance or by reason of the death of Employee. If Employee is married at the time of exercise of the Option and if Employee so requests at the time of exercise, the certificate or certificates issued shall be registered in the name of Employee and Employee's spouse, jointly, with right of survivorship. 6. Securities Laws --------------- 6.1 The Company may from time to time impose any conditions on the exercise of the Option as it deems necessary or advisable to ensure that the Option granted hereunder, and the exercise thereof, satisfy the applicable requirements of federal and state securities laws. Such conditions to satisfy applicable federal and state securities laws may include, without limitation, the partial or complete suspension of the right to exercise the Option, the printing of legends on certificates issued pursuant to Section 7 and requiring Employee to deliver to the Company a representation letter as to Employee's investment intent and such other matters (including those set forth in Section 6.2) as the Company deems advisable. 3 6.2 Employee hereby represents and warrants to the Company that: (a) upon exercise of the Option, Employee will acquire the Optioned Stock for his own account, not as a nominee or agent, for investment and without a view to resale or other distribution within the meaning of the Securities Act of 1933 (the "1933 Act") and the rules and regulations thereunder, and Employee will not distribute any of the Optioned Stock in violation of the 1933 Act or any state securities laws; (b) Employee understands that: (i) the shares of Optioned Stock may not be registered under the 1933 Act and, if they are not, they must be held indefinitely by Employee unless such shares are subsequently registered under the 1933 Act or an exemption from registration is available; (ii) any routine sales of the Optioned Stock made under Rule 144 promulgated under the 1933 Act may be made only in accordance with the terms and conditions of that Rule (which currently includes minimum holding period requirements and, in certain cases, limits as to the number of shares which may be sold in specified periods) and that in such cases where Rule 144 is not applicable, registration or compliance with some other registration exemption will be required; and (iii) the certificates representing the Optioned Stock issuable to Employee will contain a restrictive legend noting the restrictions on transfer described herein and under federal and applicable state securities laws, and appropriate "stop-transfer" instructions will be given to the Company's stock transfer agent; (c) Employee is an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated under the 1933 Act, because he either (i) currently has a net worth (or joint net worth with his spouse) equal to at least $1,000,000 or (ii) had an individual income in excess of $200,000 in each of the two most recent years or joint income with his spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; (d) Employee's knowledge and experience in financial and business matters are such that Employee is capable of evaluating the merits and risks of an acquisition of the Optioned Stock pursuant to the Option. 7. Issuance of Certificates for Shares ----------------------------------- Subject to the provisions of this Agreement, the certificates for the shares of Common Stock issuable upon exercise of the Option shall be delivered to Employee (or to such person entitled thereto in accordance with Section 5) as promptly after the Date of Exercise as is feasible, provided that the exercise shall not be complete, and the Company shall not be obligated to make 4 such deliveries, until (a) Employee has made payment in full for such shares of Optioned Stock pursuant to Section 4 and (b) Employee and the Company (or such Subsidiary as is the employer of Employee) have arranged for the payment by Employee to the Company (or such Subsidiary), or the withholding from Employee's other compensation, of an amount in cash equal to the amount of any tax required to be withheld by the Company (or such Subsidiary) by any applicable federal or state laws or regulations on account of such exercise. The Company may also condition delivery of shares of Common Stock upon the prior receipt from Employee of any undertakings or representations that it may determine are required to ensure that the certificates are being issued in compliance with federal and state securities laws. 8. Rights Prior to Issuance of Certificates ---------------------------------------- Neither Employee nor the person to whom the rights of Employee shall have passed by will or the laws of descent and distribution shall have any of the rights of a stockholder with respect to any shares of Optioned Stock until the date of the issuance to such person of certificates for such shares of Optioned Stock pursuant thereto. 9. Stock Dividends; Subdivision or Combination of Shares ----------------------------------------------------- The number of shares of Common Stock subject to the Option (as well as the Option exercise price per share), shall, subject to the provisions of section 424(a) of the Code, be adjusted to reflect any stock dividend, stock split, share combination, or similar change in the capitalization of the Company. In the event of a corporate transaction (as that term is described in section 424(a) of the Code and the Treasury Regulations issued thereunder as, for example, a merger, consolidation, acquisition of property or stock, separation, reorganization, or liquidation), the Option shall be assumed by the surviving or successor corporation; provided, however, that, in the event of a proposed corporate transaction, the Committee may terminate all or a portion of the Option effective upon closing of such corporate transaction if it determines that such termination is in the best interests of the Company. If the Committee decides so to terminate outstanding Options, the Committee shall give Executive not less than seven days' notice prior to any such termination by reason of such a corporate transaction, and, at the closing of such corporate transaction, the Option shall be terminated (unless previously exercised) and the Company shall pay to Executive (except to the extent that the Option is terminated prior to the date of such closing otherwise than by reason of such Committee action) an amount equal to the consideration paid, or to be paid, per share of Common Stock to holders of Common Stock in connection with such corporate transaction (as determined in good faith by the Committee) less the exercise price of the Option. The Committee also may, in its discretion reasonably exercised, change the terms of the Option to reflect any such corporate transaction. 10. Option Not to Affect Employment ------------------------------- The Option granted hereunder shall not confer upon Employee any right to continue in the employment of the Company or any Subsidiary of the Company. 5 11. Withholding. ----------- Each Employee authorizes the Company to make any required withholding from such Employee's compensation for the payment of any and all income taxes and other sums that may be due any governmental authority (other than taxes imposed directly upon the Company) as a result of the receipt by Employee of compensation income pursuant to the foregoing payments, and agrees, if requested by the Company and if the Company has complied with its obligations hereunder, and in lieu of all or a portion of such withholding, to pay the Company in a lump sum such amounts as the Company may be required to remit to any governmental authority on behalf of Employee in respect of any such taxes and other sums. 12. Miscellaneous ------------- 12.1 All notices and other communications hereunder shall be in writing and shall be transmitted by messenger, courier service or certified first-class mail (in each case postage or cost of delivery prepaid) and shall be effective when delivered. The address for notices and other communications of (i) the Company is Rose Tree Corporate Center II, 1400 North Providence Road, Suite 3055, Media, PA 19063, Attn: Corporate Secretary, and (ii) Employee is the address set forth below under Employee's signature. Either party may change its address for notice given notice to the other pursuant to this Section 13.1. 12.2 This Agreement may be executed in two or more counterparts all of which taken together will constitute one and the same instrument. 12.3 This Agreement shall be governed by the applicable Code provisions to the maximum extent possible; otherwise, the operation of, and the rights of Employee under this Agreement shall be governed by applicable federal law and otherwise by the laws of the State of Delaware. 6 IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written. Nobel Learning Communities, Inc. By:_____________________________________ A. J. Clegg, Chairman EMPLOYEE: ________________________________________ Daryl A. Dixon Employee's Address: 6 Trotter Way Collegeville, PA 19426 7 EX-10.4 6 dex104.txt 2000 STOCK OPTION PLAN FOR CONSULTANTS Exhibit 10.4 NOBEL LEARNING COMMUNITIES, INC. 2000 STOCK OPTION PLAN FOR CONSULTANTS Effective date: February 3, 2000 TABLE OF CONTENTS
Page ---- SECTION 1 Purpose...................................................... 1 SECTION 2 Administration............................................... 1 SECTION 3 Eligibility.................................................. 2 SECTION 4 Stock........................................................ 2 SECTION 5 Granting of Options to Key Consultants....................... 3 SECTION 6 Options...................................................... 3 SECTION 7 Capital Adjustments.......................................... 6 SECTION 8 Change in Control............................................ 7 SECTION 9 Amendment or Discontinuance of the Plan...................... 8 SECTION 10 Termination of Plan......................................... 8 SECTION 11 Miscellaneous............................................... 8
NOBEL LEARNING COMMUNITIES, INC. 2000 STOCK OPTION PLAN FOR CONSULTANTS -------------------------------------- SECTION 1 Purpose ------- This NOBEL LEARNING COMMUNITIES, INC. 2000 STOCK OPTION PLAN FOR CONSULTANTS ("Plan") is intended to provide a means whereby Nobel Learning Communities, Inc. ("Company") and any Subsidiary of the Company (as hereinafter defined) may, through the grant of non-qualified stock options ("Options") attract and retain Key Consultants (defined below) and motivate such individuals to exercise their best efforts on behalf of the Company and of any Subsidiary. Options granted hereunder are not intended to qualify as "incentive stock options" within the meaning of section 422 of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). The term "Subsidiary" means an entity (whether or not in existence at the time the Plan is adopted) which, at the time an Option is granted or such other time as is relevant for the purposes hereof, is a subsidiary of the Company under the definition of "subsidiary" contained in Rule 405 under the Securities Act of 1933, as amended (the "Act"). SECTION 2 Administration -------------- The Plan shall be administered by the Company's Board of Directors (the "Board") or a committee consisting of two or more members of the Board (such committee, or the Board, if it is administering the Plan, is hereinafter referred to as the "Committee"). Each member of the Committee, while serving as such, shall be deemed to be acting in his capacity as a director of the Company. The Committee shall have full and final authority in its absolute discretion, subject to the terms of the Plan, to select the Key Consultants to be granted Options under the Plan, to grant Options on behalf of the Company, and to set the date of grant and the other terms of such Options. The Committee may correct any defect, supply any omission and reconcile any inconsistency in the Plan and in any Option granted hereunder in the manner and to the extent it shall deem desirable. In the event of any conflict between the Plan and any Option granted hereunder, the Plan shall be controlling. The Committee also shall have the authority to establish such rules and regulations, not inconsistent with the provisions of the Plan, for the proper administration of the Plan, and to amend, modify or rescind any such rules and regulations, and to make such determinations and interpretations under, or in connection with, the Plan, as it deems necessary or advisable. All such rules, regulations, determinations and interpretations shall be binding and conclusive on all persons having any interest in the Plan or in any Options granted hereunder. No member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted hereunder. SECTION 3 Eligibility ----------- (a) In General. Key Consultants shall be eligible to receive Options ----------- under the Plan. Key Consultants who have been granted an Option under the Plan shall be referred to as "Grantees." More than one Option may be made to a Grantee under the Plan. (b) Key Consultants. Key Consultants are consultants or advisors (1) who --------------- are natural persons; (2) who provide bona fide services to the Company or any Subsidiary; and (3) whose services are not in connection with the offer or sale of securities in a capital-raising transaction and who do not directly or indirectly promote or maintain a market in the Company's securities. SECTION 4 Stock ----- The number of common shares of the Company, par value $.001 per share ("Common Shares"), that may be subject to Options under the Plan shall be 200,000 shares, subject to adjustment as hereinafter provided. Common Shares issuable under the Plan may be authorized but unissued shares or reacquired shares, as the Company may determine from time to time. Any Common Shares subject to an Option which expires or otherwise terminates for any reason whatever (including, without limitation, the Key Consultant's surrender thereof) without having been exercised shall continue to be available for the granting of Options under the Plan. SECTION 5 Granting of Options to Key Consultants -------------------------------------- From time to time until the expiration or earlier suspension or discontinuance of the Plan, the Committee may, on behalf of the Company, grant to Key Consultants under the Plan such Options as it determines are warranted, subject to the limitations of the Plan; provided that no grant shall be made to any Key Consultant if such grant would require the approval of the stockholders of the Company pursuant to (i) the Act or the rules and regulations thereunder or (ii) any applicable rules and regulation of any stock exchange or automatic trading system on which the Common Shares are traded. The granting of an Option under the Plan shall not be 2 deemed either to entitle the Key Consultant to, or to disqualify the Key Consultant from, any further Options under the Plan. In making any determination as to whether a Key Consultant shall be granted an Option, the type of Option to be granted, and the number of Common Shares to be covered by the Option, the Committee shall take into account the duties of the Key Consultant, his present and potential contributions to the success of the Company or a Subsidiary, and such other factors as the Committee shall deem relevant in accomplishing the purposes of the Plan. Moreover, the Committee may provide in the Option Agreement (as defined in Section 6(a)(9)) that the Option may be exercised only if certain conditions, as determined by the Committee, are fulfilled. SECTION 6 Options ------- (a) Terms and Conditions of Options. The Options granted pursuant to the ------------------------------- Plan shall include expressly or by reference the following terms and conditions, as well as such other provisions not inconsistent with the provisions of this Plan as the Committee shall deem desirable: (1) Number of Common Shares. The Option Agreement shall state the ------------------------- number of Common Shares to which the Option pertains. (2) Price. With respect to Options granted to Key Consultants, the ----- Option exercise price shall be determined and fixed by the Committee in its discretion at the time of grant. (3) Term. Subject to earlier termination as provided in Subsections ---- (5), (6) and (7) below, the term of each Option granted to a Key Consultant shall be not more than 10 years from the date of grant. (4) Exercise. -------- (A) Options Granted to Key Consultants. Options granted to Key ---------------------------------- Consultants shall be exercisable in such installments and on such dates, as the Committee may specify, provided that, without limiting the authority of the Committee with respect to outstanding Options, the Committee may accelerate the exercise date of any outstanding Options granted to Key Consultants in its discretion, if it deems such acceleration to be desirable. (B) General. Any Common Shares, the right to the purchase of ------- which has accrued, under an Option may be purchased at any time up to the expiration or termination of the Option. Exercisable Options may be exercised, in whole or in part, from time to time by giving written notice of exercise to the Company at its principal office, specifying the number of Common Shares to be purchased and accompanied by payment in full of the aggregate Option exercise price for such 3 shares. Only full shares shall be issued under the Plan, and any fractional share which might otherwise be issuable upon the exercise of an Option granted hereunder shall be forfeited. (C) Manner of Payment. The Option price of an Option granted to ----------------- a Key Consultant shall be payable: (i) In cash or its equivalent; (ii) If the Committee, in its discretion, so determines at or prior to the time of exercise, in Common Shares previously acquired by the Grantee; (iii) by such other method as the Committee may approve, including payment through a broker in accordance with procedures permitted by Regulation T of the Federal Reserve Board; or (iv) In the discretion of the Committee, in any combination of (i), (ii) and (iii) above. In the event such Option exercise price is paid, in whole or in part, with Common Shares, the portion of the Option exercise price so paid shall equal the Fair Market Value on the date of exercise of the Common Shares surrendered in payment of such Option exercise price. Common Shares used to exercise an Option shall have been held by the Grantee for the period of time necessary to avoid adverse accounting consequences to the Company. (5) Exercise Upon Termination of Key Consultant. Except as otherwise ------------------------------------------- set forth by the Committee in an Option Agreement, if a Key Consultant's retention by the Company (and Subsidiaries) is terminated by either party prior to the expiration date fixed for his or her Option for any reason other than death or disability, such Option may be exercised, to the extent of the number of Common Shares with respect to which the Key Consultant could have exercised it on the date of such termination, or to any greater extent permitted by the Committee, by the Key Consultant at any time prior to the earlier of: (A) The expiration date specified in such Option; or (B) Three months after the date of such termination of retention. (6) Exercise upon Disability of Key Consultant. Except as otherwise ------------------------------------------ set forth by the Committee in an Option Agreement, if a Key Consultant shall become disabled (within the meaning of section 22(e)(3) of the Code) during his or her retention and, prior to the expiration date fixed for his or her Option, his or her retention is terminated as a 4 consequence of such disability, such Option may be exercised, to the extent of the number of Common Shares with respect to which the Key Consultant could have exercised it on the date of such termination, or to any greater extent permitted by the Committee, by the Key Consultant at any time prior to the earlier of: (A) The expiration date specified in such Option; or (B) One year after the date of such termination of retention. In the event of the Key Consultant's legal disability, such Option may be so exercised by the Key Consultant's legal representative. (7) Exercise upon Death of Key Consultant. Except as otherwise set ------------------------------------- forth by the Committee in an Option Agreement, if a Key Consultant shall die during his or her retention and prior to the expiration date fixed for his or her Option, or if a Key Consultant whose retention is terminated for any reason shall die following his or her termination of retention but prior to the earliest of: (A) The expiration date fixed for his or her Option; or (B) The expiration of the period determined under Subsections (5) and (6) above, such Option may be exercised, to the extent of the number of Common Shares with respect to which the Key Consultant could have exercised it on the date of his or her death, or to any greater extent permitted by the Committee, by the Key Consultant's estate, personal representative or beneficiary who acquired the right to exercise such Option by bequest or inheritance or by reason of the death of the Key Consultant, at any time prior to the earlier of: (i) The expiration date specified in such Option; or (ii) One year after the date of death. (8) Rights as a Stockholder. A Grantee shall have no rights as a ----------------------- stockholder with respect to any Common Shares covered by his or her Option until the issuance of a stock certificate to him or her for such shares. (9) Option Agreements. Options granted under the Plan shall be ----------------- evidenced by written documents ("Option Agreements") in such form as the Committee shall, from time to time, approve. Option Agreements shall contain such provisions, not inconsistent with the provisions of the Plan as the Committee shall deem advisable. Each Grantee who receives an Option shall enter into, and be bound by, the terms of an Option Agreement. 5 SECTION 7 Capital Adjustments ------------------- If there is any change in the number or kind of shares of Common Stock outstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation in which the Company is the surviving corporation, (iii) by reason of a reclassification or change in par value, or (iv) by reason of any other extraordinary or unusual event affecting the outstanding Common Stock as a class without the Company's receipt of consideration, or if the value of outstanding shares of Common Stock is substantially reduced as a result of a spinoff or the Company's payment of an extraordinary dividend or distribution, the maximum number of shares of Common stock available for grants of Options under the Plan and/or the exercise price per share of such Options may be appropriately adjusted by the Board to reflect any increase or decrease in the number of, or change in the kind or value of, issued shares of Common Stock to preclude, to the extent practicable, the enlargement or dilution of rights and benefits under such Options; provided, however, that any fractional shares resulting from such adjustment shall be eliminated. Any adjustments determined by the board shall be final, binding and conclusive. SECTION 8 Change in Control ----------------- (a) Definition. As used herein, a "Change in Control" shall be deemed to ---------- have occurred if any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50 percent of the voting power of the then outstanding securities of the Company entitled to be cast at elections for directors of the Company (without consideration of the rights of any class of stock to elect directors by a separate class vote); provided that a Change in Control shall not be deemed to occur as a result of a change of ownership resulting from the death of a stockholder, and a Change in Control shall not be deemed to occur as a result of a transaction in which the Company becomes a subsidiary of another corporation and in which the stockholders of the Company, immediately prior to the transaction, will beneficially own, immediately after the transaction, shares entitling such stockholders to more than 50 percent of all votes to which all stockholders of the parent corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to elect directors by a separate class vote). (b) Notice and Acceleration. Upon a Change in Control, unless the Board ----------------------- determines otherwise on or before the date of the Change in Control or as may otherwise be set forth in the applicable Option Agreement, (i) the Company shall provide each Grantee holding outstanding Options written notice of such Change in Control and (ii) all outstanding Options shall automatically accelerate and become fully exercisable. 6 (c) Assumption of Grants. Upon a Change in Control where the Company is -------------------- not a surviving corporation (or survives only as a subsidiary of another corporation), unless the Board determines otherwise or as may otherwise be set forth in the applicable Option Agreement, all outstanding Options that are not exercised shall be assumed by, or replaced with comparable options by, the surviving corporation. (d) Other Alternatives. Notwithstanding the foregoing, in connection with ------------------ a Change in Control, the Board may take one or both of the following actions: the Board may (i) require that Grantees surrender their outstanding Options in exchange for a payment by the Company, in cash or Common Stock as determined by the Board, in an amount equal to the amount by which the then fair market value (as determined in good faith by the Board) of the shares of Common Stock subject to the Grantee's unexercised Options exceeds the exercise price of the Options, or (ii) terminate any or all unexercised Options. Such surrender or termination shall take place as of the date of the Change in Control or such other date as the Board may specify. If the Board determines to terminate any or all unexercised Options, it shall provide Grantees holding Options to be terminated with at least seven days' prior notice of such termination, and such Grantees shall have the right to exercise fully their Options following such notice until termination (regardless of whether or not the Options would otherwise be exercisable (unless the Board determines otherwise or as may otherwise be set forth in the applicable Option Agreement)). SECTION 9 Amendment or Discontinuance of the Plan --------------------------------------- The Board from time to time may suspend or discontinue the Plan or amend it in any respect whatsoever. Notwithstanding the foregoing, Section 8 may not be amended following a Change in Control. SECTION 10 Termination of Plan; Amendment of Outstanding Options ----------------------------------------------------- Unless earlier terminated by the Board or as otherwise provided in the Plan, the Plan and all authority granted hereunder shall terminate absolutely at 12:00 midnight on February 3, 2010, which date is within 10 years after the date the Plan was adopted by the Board, and no Options hereunder shall be granted thereafter. Nothing contained in this Section 14, however, shall terminate or affect the continued existence of rights created under Options issued hereunder and outstanding on February 3, 2010, which by their terms extend beyond such date. Whether or not the Plan has terminated, an outstanding Option may be terminated or modified as provided by the Plan or may be amended or terminated by agreement of the Company and the Grantee consistent with the Plan. 7 SECTION 11 Miscellaneous ------------- (a) Governing Law. The validity, construction, interpretation and effect ------------- of the Plan, the Option Agreements, and the Options granted thereunder, shall be governed by the laws of the state of Delaware, without regard to principles of conflict of laws. (b) Rights. Neither the adoption of the Plan nor any action of the Board ------ or the Committee shall be deemed to give any individual any right to be granted an Option, or any other right hereunder, unless and until the Committee shall have granted such individual an Option, and then his or her rights shall be only such as are provided by the Plan and the Option Agreement. Any Option under the Plan shall not entitle the holder thereof to any rights as a stockholder of the Company prior to the exercise of such Option and the issuance of the Common Shares pursuant thereto. Further, notwithstanding any provisions of the Plan or any Option Agreement with a Key Consultant, the Company shall have the right, in its discretion, to terminate the retention of a Key Consultant at any time at any time for any reason whatsoever. (c) No Obligation to Exercise Option. The granting of an Option shall --------------------------------- impose no obligation upon a Grantee to exercise such Option. (d) Non-Transferability. No Option shall be assignable or transferable by ------------------- a Grantee otherwise than by will or by the laws of descent and distribution, and during the lifetime of the Grantee, any Options shall be exercisable only by the Grantee or by his or her guardian or legal representative. If a Grantee is married at the time of exercise of an Option and if the Grantee so requests at the time of exercise, the certificate or certificates issued shall be registered in the name of the Grantee and the Grantee's spouse, jointly, with right of survivorship. (e) Withholding and Use of Common Shares to Satisfy Tax Obligations. The --------------------------------------------------------------- obligation of the Company to deliver Common Shares or pay cash to a Key Consultant pursuant to any Option under the Plan shall be subject to applicable federal, state and local tax withholding requirements. (f) Listing and Registration of Common Shares. Each Option shall be ----------------------------------------- subject to the requirement that, if at any time the Committee shall determine, in its discretion, that the listing, registration or qualification of the Common Shares covered thereby upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such Option or the purchase or vesting of Common Shares thereunder, or that action by the Company or by the Grantee should be taken in order to obtain an exemption from any such requirement, no such Option may be exercised, in whole or in part, unless and until such listing, registration, qualification, consent, approval, or action shall have been effected, obtained, or taken under conditions acceptable to the Committee. Without limiting the generality of the foregoing, each 8 Grantee or his or her legal representative or beneficiary may also be required to give satisfactory assurance that Common Shares purchased upon exercise of an Option are being purchased for investment and not with a view to distribution, and certificates representing such Common Shares may be legended accordingly. 9 EX-23.1 7 dex231.txt CONSENT OF INDEPENDANT ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 15, 2000 relating to the financial statements, which appear in Nobel Learning Communities, Inc.'s Annual Report on Form 10-K for the year ended June 30, 2000. PRICEWATERHOUSECOOPERS LLP Philadelphia, PA May 22, 2001 -----END PRIVACY-ENHANCED MESSAGE-----