Exhibit 10.34
CONSULTANT AGREEMENT
--------------------
This Consultant Agreement (as amended or supplemented from time to
time, this "Agreement") is entered into as of this 29th day of August, 2003, by
and between John Frock, an individual with an office or residence in
Pennsylvania ("Consultant"), and Nobel Learning Communities, Inc., a Delaware
corporation with an address at 1615 West Chester Pike, West Chester, PA 19382
("NLCI").
Whereas, NLCI and Consultant are parties to a certain Employment and
Termination Agreement dated as of August, 2001 (the "Termination Agreement");
and
Whereas, pursuant to Section 6.1 of the Termination Agreement, the
parties have agreed to enter into this Agreement, pursuant to which Consultant
shall provide certain consulting services to NLCI and its subsidiaries and
affiliates (collectively with NLCI, the "Company"), under the terms and
conditions hereinafter set forth.
Now, Therefore, with the foregoing recitals incorporated hereinafter
by reference and in consideration of the mutual covenants and representations
contained herein, and Intending to be Legally Bound, Consultant and NLCI hereby
agree as follows:
1. Term. The term of this Agreement shall commence on August 29, 2003, and
shall continue through the close of business on August 28, 2008 (the "Term").
2. Duties and Responsibilities of Consultant. Upon request of the Company,
Consultant shall provide to the Company up to ten (10) hours of consulting
services each calendar month during the Term, such services to include any
matter reasonably requested by the Company from time to time (the "Services").
The Services shall, unless requested otherwise by the Company, be performed at
Consultant's place of business. The Services shall consist of the actual time
expended by Consultant, calculated in 1/10 hour increments, and include only
time reasonably and necessarily incurred to render the services requested by
NLCI, inclusive of any travel time requested by the Company. The Services shall
be provided on a "use or lose" basis, which means that if the Company does not
request the full amount of Services in any given month, the Company will not be
permitted to carryover such unused time to another month. Notwithstanding the
foregoing, if the Consultant and NLCI agree in writing in advance, the amount of
Services to be provided in any given month may be performed in another month.
Consultant will provide the Services in accordance with all applicable laws and
regulations, and the standards and practices generally accepted in the industry
and exercised by other persons engaged in performing similar services.
3. Representations of Consultant. Consultant represents and warrants to the
Company that he is authorized to enter into this Agreement and that the terms
hereof are not inconsistent with or a violation of any contractual or other
legal obligation, written or otherwise, to which Consultant is subject.
Consultant further acknowledges and agrees that the terms and conditions of (a)
Section 4.1 of the Termination Agreement, and (b) that certain Noncompete
Agreement entered into by and between Consultant and NLCI dated as of March 11,
1997 (the
"Noncompete Agreement"), remain in full force and effect and are deemed to be
incorporated by reference, and Consultant hereby reaffirms and ratifies his
continuing obligations thereunder.
4. Nondisclosure of Confidential Information
4.1. During the Term and at all times thereafter, Consultant shall not
(unless authorized to do so by NLCI's Board of Directors, or any committee
thereof, or by a duly authorized officer of NLCI), directly or indirectly,
disclose or permit to be known to, or used for the benefit of, any person or
entity, any "Confidential Information"; provided, however, that Consultant may
disclose Confidential Information solely for the limited purpose of enabling him
to perform the Services.
4.2. As used in this Agreement, the term "Confidential Information" shall
include, but not be limited to, all trade secrets, confidential or proprietary
knowledge or information with respect to the conduct or details of the Company's
businesses including, but not limited to, lists of customers or suppliers of the
Company's businesses, pricing strategies, budgets, business files and records,
trade secrets, curricula, processes, costs, designs, marketing methods,
strategies or any other financial, educational, curricular or other information
about the Company's businesses or curricula not in the public domain.
Confidential Information shall not include any information which (i) is
generally available to the public as of the date hereof, (ii) becomes generally
available to the public after the date hereof, provided that such public
disclosure did not result, directly or indirectly, from any act, omission or
fault of Consultant, or any of Consultant's family members, employees, agents or
representatives, or (iii) becomes available to Consultant, after the expiration
of this Agreement, on a non-confidential basis from a source other than the
Company, or any of its agents, provided that such source is not bound to the
Company or its representatives by agreement, fiduciary duty or otherwise not to
disclose such information.
4.3. All Confidential Information shall be the exclusive property of NLCI,
and Consultant shall use his best efforts to prevent any publication or
disclosure thereof. All correspondence, memoranda, notes, records, reports,
plans and other papers and items delivered to Consultant by the Company, or
prepared by Consultant in connection with the performance of the Services, shall
also be the exclusive property of the Company. Upon expiration of this Agreement
(or at any earlier time upon request of a duly authorized officer of NLCI),
Consultant shall immediately return to NLCI all of the Company's property
(whether in written, electronic or other form) then in Consultant's possession
or control, and will not retain any copies, extracts or notations of the same.
5. Independent Contractor
5.1. Consultant acknowledges that Consultant is an independent contractor
and that nothing herein shall be construed to create a partnership, joint
venture, employment or similar relationship between Consultant and the Company,
or to constitute Consultant as an employee of the Company. Accordingly,
Consultant acknowledges that he shall not be entitled to participate in any of
the Company's employee benefit plans or receive any other compensation or
benefits beyond that expressly stated in this Agreement, the Termination
Agreement or the Noncompete Agreement,
2
and that any taxes that may be due and payable as a result of any compensation
or benefits provided pursuant to Section 6 shall be entirely Consultant's
responsibility.
5.2. Consultant understands that, since Consultant is an independent
contractor, any personal injury or property damage suffered by Consultant or any
of Consultant's employees or agents in the course of carrying out any duties
under this Agreement shall be the sole responsibility of Consultant.
5.3. Consultant further agrees that Consultant does not have the power or
authority to bind the Company or to assume or create any obligation or
responsibility, express or implied, on the Company's part or in the Company's
name (except as a duly authorized officer of NLCI may hereinafter expressly
agree in writing or as may be directed by NLCI's Board of Directors from time to
time), and Consultant shall not represent to any person or entity that
Consultant has such power or authority.
6. Compensation. As compensation and consideration of Consultant's performance
of the Services, NLCI shall provide to Consultant, and Consultant will accept,
the benefits and compensation set forth in this Section 6, and no more:
6.1. NLCI shall pay to Consultant, during each year of the Term, the gross
amount of One Hundred Thousand Dollars ($100,000), payable monthly on a pro
rated basis within 30 days of the last day of each calendar month. If requested
by NLCI, Consultant shall provide NLCI with an invoice detailing the Services
provided in any given month.
6.2. NLCI shall provide, at NLCI's cost, family health insurance coverage
to Consultant (or, in the event of his death, his legal spouse and Jeffrey
Frock) under a Company-sponsored group health insurance plan, for the remainder
of Consultant's life (or, in the event Consultant predeceases his legal spouse,
for the duration of his legal spouse's life). Such coverage shall be provided on
the same basis that family health insurance coverage was provided to Consultant
and his dependents (his legal spouse and Jeffrey Frock) by NLCI as of
Consultant's last day of employment with NLCI. Notwithstanding the foregoing, in
the event that NLCI determines that it is unable under its then-current group
health to provide such family health insurance coverage to Consultant (or, in
the event of his death, his legal spouse), NLCI shall so notify Consultant (or,
in the event of his death, his legal spouse), and, upon timely submission to
NLCI by Consultant (or, in the event of his death, his legal spouse) of
appropriate invoices therefor, reimburse Consultant (or, in the event of his
death, his legal spouse) for the actual cost incurred by Consultant to obtain
similar health insurance coverage; provided, however, that in no event shall
NLCI be required to pay in excess of Twenty-Four Thousand Dollars ($24,000) per
year therefor. As to any individuals (other than Consultant's legal spouse, or
Jeffrey Frock, for so long as Consultant, or his legal spouse in the event he
predeceases her, continues to claim him as a legal dependent on Consultant's or
spouse's federal income tax return) who were Consultant's legal dependents as of
Consultant's last day of employment with NLCI, the foregoing obligations shall
cease as of the date that any such individual is no longer Consultant's legal
dependent, and Consultant (or in the event of his death, his legal spouse) shall
promptly notify NLCI of any such change in legal dependency. Consultant hereby
agrees that within thirty (30) days of the
3
execution of this Agreement, he shall make arrangements for NLCI to be notified
within thirty (30) days of the later to occur of his death or the death of his
legal spouse.
6.3. NLCI shall provide Consultant with two full, annual scholarships per
year to the Company school of Consultant's choosing, to be used as directed by
Consultant in writing, for the life of Consultant.
6.4. NLCI will reimburse Consultant for all reasonable out-of-pocket
business expenses incurred in connection with the Services, in accordance with
the provisions of Schedule A attached hereto and made a part hereof, upon timely
submission by Consultant of appropriate supporting documentation therefor,
setting forth in detail the nature and amount of each such expense for which
reimbursement is requested; provided, however, that any expense exceeding
$250.00 must be pre-approved by a duly authorized officer of NLCI in writing.
NLCI shall not be required to reimburse Consultant for any such expenses unless
an invoice therefor is delivered to NLCI within 45 days of the date such expense
was incurred.
7. Indemnification. Consultant shall indemnify, defend and hold harmless NLCI
and any of its parent companies, subsidiaries or affiliates, and their
respective employees, agents, consultants, affiliates, officers, directors and
stockholders, from and against any and all claims, suits, actions, legal
proceedings, losses, damages, fines, demands, liabilities, costs and expenses,
and all costs of investigation and defense including reasonable attorneys' fees,
disbursements and court costs and all costs of enforcing the rights of
indemnification provided under this Section 7 which arise out of, relate to,
result from or occur by reason of (a) Consultant's breach of this Agreement; (b)
any fraud in connection with this Agreement or the provision of the Services; or
(c) any gross negligence or gross malfeasance in connection with the performance
of the Services. The provisions of this Section 7 shall survive any termination
or expiration of this Agreement.
8. Work for Hire. All rights in and to any and all inventions, ideas,
techniques, methods, developments, works, improvements and other forms of
intellectual property ("Intellectual Property"), whether or not patentable,
which Consultant (either alone or in conjunction with others) conceives, makes,
obtains or reduces to product or practice or commences so to do in connection
with the provision of the Services, are and shall be the sole and absolute
property of NLCI, as "work made for hire". The foregoing shall not apply to
Intellectual Property unrelated to any subject matter of actual or potential
concern or interest to the Company which is not conceived, made, obtained or
reduced to product or practice in the course of Consultant's provision of the
Services or with the use of the time, material or facilities of the Company.
Consultant will make full and prompt disclosure to NLCI of all Intellectual
Property and, at NLCI's request and expense but without additional compensation
to Consultant, will at any time or times execute and deliver such foreign and
domestic patent, trademark or copyright applications, assignments and other
papers and take such other action (including, without limitation, testifying in
any legal proceedings) as NLCI considers necessary to vest, perfect, defend or
maintain NLCI's rights in and to such Intellectual Property.
4
9. Arbitration. NLCI and Consultant will attempt amicably to resolve
disagreements and disputes hereunder or in connection with Services to be
provided by Consultant by negotiation. If the matter is not amicably resolved
through negotiation, within thirty (30) days after written notice from either
party, any controversy, dispute or disagreement arising out of or relating to
this Agreement, or the breach thereof, will be subject to exclusive, final and
binding arbitration, which will be conducted in Philadelphia, Pennsylvania, in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association. Either party may bring a court action to
compel arbitration under this Agreement or to enforce an arbitration award.
10. Notices. Any notice or other communication given under this Agreement shall
be in writing and shall be valid and sufficient if delivered personally or
transmitted by overnight courier service or first class certified mail postage
prepaid, return receipt requested, addressed (in the case of NLCI), to the
address set forth in the first paragraph of this Agreement, to the attention of
its Chief Executive Officer, with a copy, at the same address, to the attention
of its General Counsel, and (in the case of Consultant), to such address as
indicated in the records of NLCI as of the date of this Agreement, or to such
other address as either of such parties may subsequently designate by like
notice.
11. Entire Agreement. This Agreement, the Termination Agreement and the
Noncompete Agreement collectively contain all the understandings and
representations between the parties pertaining to the subject matter hereof and
supersede all other undertakings and agreements, whether oral or in writing,
previously entered into by them.
12. Governing Law. This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State of
Delaware applicable to contracts to be performed entirely within such state.
Service of process on the parties hereto at the addresses provided in accordance
with the provisions of Section 10 shall be deemed adequate service of such
process.
13. Amendment, Modification and Waiver. No provision of this Agreement may be
amended or modified unless such amendment or modification is agreed to in
writing and signed by Consultant and by a duly authorized officer of NLCI.
Except as otherwise specifically provided in this Agreement, no waiver by either
party of any breach by the other party of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or any prior or
subsequent time, nor shall the failure or delay by either party in exercising
any right, power or privilege hereunder operate as a waiver thereof to preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege.
14. Construction of Agreement. The descriptive headings of the Sections of this
Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions of this Agreement.
5
15. Severability. Should any provision of this Agreement be held by a court or
arbitration panel of competent jurisdiction to be enforceable only if modified,
such holding shall not affect the validity of the remainder of this Agreement,
the balance of which shall continue to be binding upon the parties with any such
modification to become a part hereof and treated as though originally set forth
in this Agreement. The parties further agree that any such court or arbitration
panel is expressly authorized to modify any such unenforceable provision of this
Agreement in lieu of severing such unenforceable provision from this Agreement
in its entirety, whether by rewriting the offending provision, deleting any or
all of the offending provision, adding additional language to this Agreement, or
by making such other modifications as it deems warranted to carry out the intent
and agreement of the parties as embodied herein to the maximum extent permitted
by law. The parties expressly agree that this Agreement as so modified by the
court or arbitration panel shall be binding upon and enforceable against each of
them. In any event, should one or more of the provisions of this Agreement be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof, and
if such provision or provisions are not modified as provided above, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provisions had never been set forth herein.
16. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the expressly intended preservation of such rights and remedies.
17. Assignment. This Agreement is a personal services contract, and
accordingly, Consultant may not assign this Agreement or any rights hereunder,
or delegate his duties hereunder. NLCI may not assign this Agreement, except to
any of its parent companies, subsidiaries or affiliates, or to any successor to
all or substantially all of its business or assets.
18. Signatories. This Agreement may be executed in counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when joined, shall together constitute one and the same agreement. Any
photocopy or facsimile of this Agreement, or of any counterpart, shall be deemed
the equivalent of an original.
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
Nobel Learning Communities, Inc.
By:
-------------------------------- --------------------------------
Name: George Bernstein John Frock
Title: Chief Executive Officer
6
SCHEDULE A
GUIDELINES FOR REIMBURSEMENT OF EXPENSES
NLCI will pay the reasonable out-of-pocket cost of the following expense
items:
. Identified long-distance telephone calls, overnight or expedited delivery,
couriers, photocopying (not more than 10 CENTS/page, with outsourcing
required to be considered for all projects over 100 pages or 10 sets of
copies), and other expenses approved in advance by NLCI or as listed below.
. Use of expedited or emergency services, such as express delivery services,
couriers, overtime, and so on, will be reimbursed only when absolutely
necessary because of unexpected developments or extremely short deadlines.
. Billing for photocopies must include the number of copies for which charges
are incurred as well as a description of the documents copied. Charges for
long-distance telephone calls must be specific as to date of call, caller,
receiver, and number of minutes.
. Travel expenses within the West Chester/Philadelphia metropolitan area will
not be reimbursed. Travel outside of the West Chester/Philadelphia
metropolitan area may only be reimbursed if the travel was approved in
advance by NLCI.
. Reimbursement of expenses for approved travel will be in accordance with
NLCI's travel policies (which include medium priced accommodations, and
advance booking reservations whenever possible to take advantage of the
lowest available fares).
. Travel expenses must be itemized separately to indicate airfare, lodging,
meals, taxis and other expenses, and must include an explanation of the
purpose of the travel. Actual meal allowances while traveling must not
exceed $40 per day. Gratuities will be reimbursed up to only the accepted
"normal" rate of 15%. Rental car expenses, where necessary, should not be
in excess of those for a mid-size car, and shall include customary and
reasonable insurance purchased as part of the rental agreement.
The following expenses will in no event be reimbursable, unless
specifically agreed to in advance in a writing signed by NLCI:
. Charges for overhead items, such as fixed costs associated with computers,
fax machines and other equipment, office supplies, routine postage, local
telephone charges, utilities, charges for incoming or outgoing facsimile
transmissions, refreshments during meetings, personal expenses, cell phone
charges, expenses that benefitted other clients, and any other expense that
is either unreasonable or unnecessary.
. Fees and expenses for overtime support staff, proofreading, transportation
and meals (unless in accordance with the guidelines for traveling), time
spent reviewing or analyzing conflict issues, internal status reviews, or
other administrative activities.
. Secretarial and clerical work including receipt and distribution of mail;
new file set up; maintenance of calendars; scheduling; making travel
arrangements; copying, faxing, collating or velobinding; opening, closing,
organizing, computerizing or maintaining files; organizing or indexing
documents; and assembling materials.
2