AMENDMENT
TO
HARRY T. WILKINS
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO
THE EMPLOYMENT AGREEMENT (the “Amendment”) is made,
effective as of December 31, 2008, by and between American Public
University System, Inc., a West Virginia corporation (the
“Company”), American Public Education, Inc., a Delaware
corporation (“the Parent”) and Harry T. Wilkins (the
“Executive”).
WHEREAS,
the Executive, the Company and the Parent previously entered into
the Employment Agreement, effective as of February 5, 2007,
and previously amended and restated on October 10, 2007 (the
“Employment Agreement”); and
WHEREAS,
the Executive, the Company and the Parent desire to amend the
Employment Agreement to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as
amended.
NOW,
THEREFORE, in consideration of the agreements contained herein
and of such other good and valuable consideration, the sufficiency
of which the Executive acknowledges, the Company, the Parent and
the Executive, intending to be legally bound, agree as
follows:
1. Section 10(c)(ii)
of the Employment Agreement is hereby deleted in its entirety and
amended and restated to read as follows:
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“(ii) any material failure by
the Company or Parent to comply with any of the provisions of this
Agreement, other than an isolated, insubstantial and inadvertent
failure which is remedied by the Company or Parent promptly after
receipt of notice thereof given by the Executive;”
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2. Section 10(c)
of the Employment Agreement is hereby amended by adding three new
sentences after the final sentence of said Section 10(c) to read as
follows:
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“None of the foregoing events
shall constitute Good Reason if the Executive consents in writing
to such event. The Executive further understands and agrees that
none of the foregoing events shall constitute Good Reason unless
the Company or Parent fails to cure such asserted grounds for Good
Reason
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within thirty
(30) days of its receipt of notice from the Executive. In
order to terminate his employment, if at all, for Good Reason,
Executive must terminate employment within thirty (30) days of
the end of the cure period if the breach has not been
cured.”
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3. Section 10(e)
of the Employment Agreement is hereby deleted in its entirety and
amended and restated to read as follows:
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“10(e). Date of
Termination . For purposes of this Agreement, the “Date
of Termination” shall mean (i) if the Executive’s
employment is terminated by the Executive’s death, the date
of the Executive’s death; (ii) if the Executive’s
employment is terminated pursuant to Section 10(b)(i) hereof,
thirty (30) days after Notice of Termination, provided that
the Executive shall not have returned to the performance of the
Executive’s duties on a full-time basis during this 30-day
period; (iii) if the Executive’s employment is
terminated pursuant to S
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