Exhibit 10.4
NOBEL LEARNING COMMUNITIES, INC.
2000 STOCK OPTION PLAN FOR CONSULTANTS
Effective date: February 3, 2000
TABLE OF CONTENTS
Page
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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
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SECTION 1
Purpose
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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
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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
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(a) In General. Key Consultants shall be eligible to receive Options
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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
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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
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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
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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
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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
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(a) Terms and Conditions of Options. The Options granted pursuant to the
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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
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number of Common Shares to which the Option pertains.
(2) Price. With respect to Options granted to Key Consultants, the
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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
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(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.
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(A) Options Granted to Key Consultants. Options granted to Key
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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SECTION 7
Capital Adjustments
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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
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(a) Definition. As used herein, a "Change in Control" shall be deemed to
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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
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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.
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(c) Assumption of Grants. Upon a Change in Control where the Company is
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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
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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
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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
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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.
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SECTION 11
Miscellaneous
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(a) Governing Law. The validity, construction, interpretation and effect
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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
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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
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impose no obligation upon a Grantee to exercise such Option.
(d) Non-Transferability. No Option shall be assignable or transferable by
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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
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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
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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
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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.
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