AMENDMENT
TO
FRANK B. MCCLUSKEY
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 Frank B. McCluskey (the
“Executive”).
WHEREAS,
the Executive, the Company and the Parent previously entered into
the Employment Agreement, effective as of April 18, 2005 (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:
“(ii) any
material failure by the Company 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;”
2. Section 10(c)(iv)
of the Employment Agreement is hereby deleted in its entirety and
amended and restated to read as follows:
“(iv) any
material failure by the Company or Parent to comply with and
satisfy Section 16(c) of this Agreement.”
3. Section 10(c)
of the Employment Agreement is hereby amended by adding a new
paragraph to the end of said Section 10(c) to read as
follows:
“In order
to constitute Good Reason, Executive must provide notice to the
Company and Parent of the existence of the condition within ninety
(90) days of the initial existence. 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 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.”
4. Section 10(e)
of the Employment Agreement is hereby deleted in its entirety and
amended and restated to read as follows:
“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 Executiv
|
