Exhibit 10.1
NOBEL LEARNING COMMUNITIES,
INC.
OMNIBUS INCENTIVE EQUITY COMPENSATION
PLAN
(AMENDED AND RESTATED AS OF JANUARY 1,
2008)
1. Purpose . The Nobel
Learning Communities, Inc. Omnibus Incentive Equity Compensation
Plan is intended as an additional incentive to Non-Employee
Directors and eligible Employees of Nobel Learning Communities,
Inc., and its Affiliates to enter into or remain in the service or
employ of the Company or any Affiliate and to devote themselves to
the Company’s success. Under the Plan, the Company will,
among other things, provide such persons with opportunities to
acquire or increase their proprietary interests in the
Company.
This Plan was effective as of the
Original Effective Date. Effective as of January 1, 2008, this
Plan was amended and restated to reflect the provisions of
Section 409A of the Code and the final regulations
thereunder.
2. Definitions .
Capitalized terms not otherwise defined in the Plan shall have the
following meanings:
“Act” means the
Securities Exchange Act of 1934, as now in effect or as hereafter
amended from time to time.
“Affiliate” means a
corporation which is a parent corporation or a subsidiary
corporation with respect to the Company within the meaning of
section 424(e) or (f) of the Code.
“Award” means a grant of
one or more Award Items in accordance with the provisions of the
Plan.
“Award Document” means
the written document, in such form as approved from time to time by
the Grantor, which shall be given to a Recipient and shall set
forth the terms and conditions of the Award Item(s) granted to the
Recipient under the Plan.
“Award Item” means,
individually and collectively, as the context requires, the items
awarded to any Recipient in accordance with the provisions of the
Plan in the form of Options, Stock Awards, SARs, PSUs, or any
combination of the foregoing.
“Board” means the Board
of Directors of the Company.
“Cause” means, with
respect to any Recipient, unless otherwise defined in the
Recipient’s employment agreement, service agreement or signed
offer letter:
(a) the Recipient’s habitual
intoxication or drug addiction;
(b) the Recipient’s violation
of the Company’s written policies, procedures or codes
including, without limitation, those with respect to harassment
(sexual or otherwise) and ethics;
(c) the Recipient’s refusal or
failure by the Recipient to perform such duties as may reasonably
be delegated or assigned to him, consistent with his position, by
the CEO (or, in the case of the CEO, by the Board);
(d) the Recipient’s willful
refusal or willful failure to comply with any requirement of the
Securities and Exchange Commission or any securities exchange or
self-regulatory organization then applicable to the
Company;
(e) the Recipient’s willful or
wanton misconduct in connection with the performance of his or her
duties including, without limitation, breach of fiduciary
duties;
(f) the Recipient’s breach
(whether due to inattention, neglect, or knowing conduct) of any of
the material provisions of his or her employment or service
agreement, if any;
(g) the Recipient’s conviction
of, guilty, no contest or nolo contendere plea to, or admission or
confession to any felony or any act of fraud, misappropriation,
embezzlement or any misdemeanor involving moral
turpitude;
(h) the Recipient’s dishonesty
detrimental to the best interest of the Company;
(i) the Recipient’s
involvement in any matter which, in the opinion of the CEO (or, in
the case of the CEO, the Board), is reasonably likely to cause
material prejudice or embarrassment to the Company’s
business; or
(j) solely in the case of a
Non-Employee Director, any other action by the Recipient which the
Board determines constitutes “cause;”
provided , that, in the case of clauses (c),
(e) or (f) of this definition , there shall not be
Cause unless the Company has first given the Recipient written
notice specifying in reasonable detail the circumstances that the
Company believes give rise to Cause for termination and the
Recipient has failed to remedy the same to the reasonable
satisfaction of the CEO (or, in the case of the CEO, the Board)
within 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 the Company within the twelve (12) months
preceding such notice.
“CEO” means the Chief
Executive Officer of the Company, who is also a member of the
Board. If the CEO is not a member of the Board, the term
“CEO” means the Committee, unless the context otherwise
requires.
“Change of Control”
means (a) any “person” becomes the
“beneficial owner” (as such terms are defined in the
Act) of shares of the Company having 50% or more of the total
number of votes that may be cast for the election of directors of
the Company; or (b) there occurs any cash tender or exchange
offer for shares of the Company, merger or other business
combination, or sale of assets, or any combination of the
foregoing
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transactions, and as a result of or
in connection with any such event persons who were directors of the
Company before the event shall cease to constitute a majority of
the Board or of the board of directors of any successor to the
Company.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time, or any
successor statute or statutes thereto.
“Committee” means the
Compensation Committee of the Board.
“Common Stock” means the
common stock, par value $0.001, of the Company, authorized for
issuance by the Company.
“Company” means Nobel
Learning Communities, Inc., a Delaware corporation, including any
successor thereto by merger, consolidation, acquisition of
substantially all the assets thereof, or otherwise.
“Covered Individual”
means each Employee and each Non-Employee Director.
“Date of Grant” means,
with respect to an Award Item, the date as of which such Award Item
is granted.
“Disability” shall have
the meaning ascribed thereto in the Recipient’s employment
agreement, service agreement or signed offer letter, and in the
absence of such definition, means that the Recipient cannot
substantially perform his or her “essential duties”
(which shall include any travel requirements) with or without
reasonable accommodation and either (a) such situation
persists for a period of 180 days in any 365 day period, or
(b) in the opinion of a licensed physician, the Recipient is
so disabled or incapacitated that he or she is unlikely to be able
substantially to perform his or her “essential duties”
with or without reasonable accommodation within 180
days.
“Employee” means an
individual classified by the Company or one of its Affiliates as a
common law employee of the Company or an Affiliate, including
officers or Directors who are also employees.
“Fair Market Value” of a
Share means, as of a particular date:
(a) if Shares are not listed on a
stock exchange or quoted on the Nasdaq National Market on such
date, the value for such date as shall be determined in good faith
by the Committee by the reasonable application of a reasonable
valuation method, taking into account factors consistent with
Treas. Reg. § 1.409A-1(b)(5)(iv)(B) as the Committee
deems appropriate; and
(b) if Shares are listed on a stock
exchange or trades of Shares are quoted on the Nasdaq National
Market as of such date, the average of the highest and lowest
quoted selling price as determined and reported by the principal
exchange on which Shares are listed or, if not so listed, the
market on which Shares are quoted, on the last regular trading day
prior to such date.
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“Family Member” means,
with respect to a Recipient, one or more of the Recipient’s
spouse, children or grandchildren, or a trust established solely
for the benefit of or a partnership whose partners are, one or more
of the Recipient’s spouse, children and/or
grandchildren.
“Grantor” means, with
respect to an Award, the Committee or the CEO, as the case may be,
that grants the Award.
“ISO” means an Option
granted under the Plan, designated by the Grantor in the Award
Document as an “incentive stock option” that is
intended to qualify as an “incentive stock option”
within the meaning of section 422 of the Code, provided,
however , to the extent an Option designated by the Grantor in
the Award Document as an “incentive stock option” fails
to satisfy the requirements for an “incentive stock
option” under section 422 of the Code for any reason, such
Option shall be treated as a Nonqualified Option.
“Non-Employee Director”
means, as of a particular date, a member of the Board who is not an
Employee as of such date.
“Nonqualified Option”
means an Option granted under the Plan that is not designated by
the Grantor in the Award Document as an ISO, or an Option granted
under the Plan that is designated by the Grantor in the Award
Document as an ISO to the extent such Option fails to satisfy the
requirements for an “incentive stock option” under
Section 422 of the Code for any reason.
“Nonreporting Person”
means a Recipient who is not a Reporting Person.
“Option” means a right
to purchase Shares.
“Option Price” means the
price at which one Option Share may be purchased under the terms of
an Option.
“Option Shares” means
the Shares that may be purchased by a Recipient upon exercise of an
Option.
“Original Effective
Date” means the date on which the stockholders of the Company
originally approved the Plan. The Plan was amended and restated
effective as of January 1, 2008 to reflect the provisions of
Code section 409A and the final regulations thereunder.
“Plan” means the Nobel
Learning Communities, Inc. Omnibus Incentive Equity Compensation
Plan, as set forth herein, as amended from time to time.
“PSU” means a phantom
stock unit granted under the Plan which gives the Recipient the
right to receive the Value of such PSU, to be paid in
cash.
“Recipient” means a
Covered Individual to whom an Award Item is granted under the
Plan.
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“Reporting Person” means
a Recipient who is subject to Section 16 of the Act with
respect to the Company.
“Retirement” means, with
respect to a Recipient who is an Employee, the Recipient’s
attainment of age 55 or more with at least ten (10) years of
continuous service with the Company and its Affiliates.
“Rule 16b-3” means Rule
16b-3 of the General Rules and Regulations under the
Act.
“SAR” means a stock
appreciation right granted under the Plan which gives the Recipient
the right, without payment to the Company, to receive the Value of
such SAR, to be paid in cash.
“Share” or
“Shares” means a share or shares of Common
Stock.
“Stock Award” means the
award of Shares granted to a Recipient under the Plan.
“Stock Award Shares”
means Shares that are issued pursuant to a Stock Award.
“Termination of
Employment” means termination of an Employee’s
employment with the Company and all Affiliates as determined in
accordance with the Company’s (or Affiliate’s) standard
personnel practices or, if the Recipient is a party to an
employment or severance agreement with the Company or an Affiliate,
the date of termination of employment as determined under such
agreement; provided however, that such termination constitutes a
“separation from service” within the meaning of Treas.
Reg. Section 1.409A-1(h).
“Ten-Percent
Stockholder” means a person who, on the Date of Grant, owns
either directly or within the meaning of the attribution rules
contained in section 424(d) of the Code, stock possessing more than
10% of the total combined voting power of all classes of stock of
the Company.
“Top-Tier Group” means
the group of the Company’s senior executives and any other
officer or executive designated by the Committee in its sole
discretion, initially consisting of the CEO, Chief Financial
Officer, Chief Operating Officer, Vice - President - Education,
Vice - President and General Counsel, and Vice - President - Human
Resources.
“Transferee” means a
person to whom an Award has been transferred under the terms of the
Plan.
“Value”
means:
(a) with respect to a PSU, the
product of (i) the Fair Market Value of a Share on the date of
exercise of such PSU, and (ii) the number of Shares
represented by the PSU; and
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(b) with respect to an SAR, the
product of (i) the excess of (I) the Fair Market Value of
a Share on the date of exercise of such SAR over (II) the Fair
Market Value of a Share on the Date of Grant; and (ii) the
number of Shares represented by the SAR.
3. Rights to Be
Granted . The following rights may be granted under the
Plan:
(a) ISOs, which give the Recipient
the right for a specified time period to purchase a specified
number of Shares for a price determined by the Grantor and set
forth in the Award Document, which price shall not be less than the
Fair Market Value of such Shares on the Date of Grant.
(b) Nonqualified Options, which give
the Recipient the right for a specified time period to purchase a
specified number of Shares for a price determined by the Grantor
and set forth in the Award Document, which price shall not be less
than the Fair Market Value of such Shares on the Date of
Grant.
(c) PSUs, which give the Recipient
the right, without payment to the Company, to receive the Value of
the PSUs in cash.
(d) SARs, which give the Recipient
the right, without payment to the Company, to receive the Value of
the SARs in cash.
(e) Stock Awards, which give the
Recipient the right, without payment to the Company, to receive
Stock Award Shares immediately or at some future date.
4. Shares Subject to
Plan . Subject to adjustment as provided in
Section 11 , the aggregate number of Shares authorized
for issuance as or subject to Awards under the Plan is 1,395,000.
The Shares issued under the Plan may be either Shares reacquired by
the Company, including Shares purchased in the open market, or
authorized but unissued Shares. Any Shares subject to an Award
which for any reason expires or terminates unexercised, in whole or
in part, or is not earned in full may again be made subject to an
Award under the Plan. If an Option, PSU, SAR or Stock Award
terminates, expires or is forfeited without having been exercised
in full or is reacquired by the Company pursuant to rights reserved
in the Award Document, such Award Item shall not be considered to
have been granted or issued for purposes of this
Section 4 .
The aggregate number of Shares
subject to Options granted under this Plan during any calendar year
to any one Covered Individual shall not exceed 150,000. The
aggregate number of SARs granted under this Plan during any
calendar year to any one Covered Individual shall not exceed
150,000. Notwithstanding anything to the contrary in this Plan, the
foregoing limitations in this paragraph shall be subject to
adjustment under Section 11 , but only to the extent
that such adjustment will not affect the status of any Award
intended to qualify as “performance-based compensation”
under section 162(m) of the Code. The aggregate number of Shares
issued pursuant to ISOs shall not exceed 1,395,000, which
limitation shall be subject to adjustment under
Section 11 only to the extent such adjustment is
consistent with adjustments permitted of a plan authorizing
incentive stock Options under section 422 of the Code and only to
the extent that such adjustment will not affect the status of any
ISO intended to qualify as “performance-based
compensation” under section 162(m) of the Code.
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5. Administration .
The Plan shall generally be administered by the Committee. The
Committee has ultimate authority to grant all Awards under the Plan
to any Covered Individual. The Committee shall retain
responsibility to (a) grant Awards to any Covered Individual
in the Top-Tier Group, and to any other Covered Individual who is
an Employee and a Reporting Person and (b) establish the
maximum aggregate amount of particular Award Items to be granted to
Covered Individuals who are Employees as a group. The CEO, as the
delegate of the Committee, may recommend to the Committee the grant
of Awards to members of the Top-Tier Group and Employees who are
Reporting Persons for consideration by the Committee and may grant
awards to Covered Individuals who are Employees and who are not
Reporting Persons. In making awards, the CEO is acting as a
delegate of the Committee and is at all times accountable to the
Committee and authorized to act only in accordance with the
provisions of the Plan and the guidelines and direction provided by
the Committee from time to time.
Subject to the foregoing, the
Grantor shall from time to time at its discretion grant Award Items
pursuant to the terms of the Plan and shall have plenary authority
to determine the Employees to whom and the times at which Award
Items shall be granted, the number of Award Items to be covered by
each Award Document and the price and other terms and conditions
(which need not be identical for all Recipients) thereof, including
a specification with respect to whether an Option is intended to be
an ISO, all subject to the express provisions of the Plan. The
interpretation and construction by the Committee of any provision
of the Plan or of any Award Item granted under it shall be final,
binding and conclusive.
No member of the Board or the
Committee nor the CEO shall be personally liable for any action or
determination made in good faith with respect to the Plan or any
Award Item granted under it. No member of the Board or the
Committee nor the CEO shall be liable for any act or omission of
any other person or for any act or omission on his or her own part,
including but not limited to the exercise of any power and
discretion given to him or her under the Plan, except those
resulting from (a) any breach of such person’s duty of
loyalty to the Company or its stockholders, (b) acts or
omissions not in good faith or involving intentional misconduct or
a knowing violation of law, (c) acts or omissions that would
result in liability under Delaware corporate law, and (d) any
transaction from which the person derived an improper personal
benefit.
Each member of the Board and the
Committee and the CEO shall be entitled to indemnification by the
Company as provided in the Bylaws of the Company with respect to
the administration of the Plan and the granting of Award Items
under it.
6. Eligibility .
Covered Individuals who are Non-Employee Directors shall receive
Options under Section 8 . Covered Individuals who are
Employees shall be eligible to receive Stock Awards, PSUs, SARs
and/or Options under Section 9 . The Grantor, in its
sole discretion, shall determine whether an individual is an
Employee.
7. Award Documents .
Each Award Item shall be evidenced by an Award Document. Subject to
Sections 8 or 9 , as the case may be, the terms of each such
Award
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Document shall be determined by the Grantor, in
its sole discretion. The terms, conditions and restrictions with
respect to any Award, Recipient or Award Document need not be
identical with the terms, conditions and restrictions with respect
to any other Award, Recipient or Award Document.
8. Grants to Non-Employee
Directors .
(a) Each Non-Employee Director who
is a member of the Board as of the Original Effective Date shall be
granted a Nonqualified Option for 10,000 Shares as of the Original
Effective Date.
(b) Each Non-Employee Director who
is not a Non-Employee Director as of the Original Effective Date
shall be granted a Nonqualified Option for 10,000 Shares, on the
date on which he or she first becomes a member of the
Board.
(c) Each Non-Employee Director
(including those whose service as a Non-Employee Director commences
as of a date subsequent to the Original Effective Date) shall be
granted a Nonqualified Option for 5,000 Shares on the date of each
of the Company’s annual meetings of stockholders;
provided, that a Non-Employee Director who ceases to be a
member of the Board as of such date shall not receive such Option,
and provided further , that, in the case of any Non-Employee
Director who was not a Non-Employee Director as of the first day of
the fiscal year in which such meeting occurs, such amount shall be
multiplied by a fraction, the numerator of which is the number of
months remaining in the fiscal year in which he or she becomes a
member of the Board, and the denominator of which is 12.
(d) Any
