a6090427ex10_01.htm


    Exhibit
10.01

    


     

    AMERICAN
PUBLIC EDUCATION, INC.

    AMERICAN
PUBLIC UNIVERSITY SYSTEM, INC.

    EXECUTIVE
EMPLOYMENT AGREEMENT

     

    THIS EMPLOYMENT AGREEMENT
(“Agreement”) is entered into as of this 24th day of August, 2009, by and
between American Public University System, Inc., a West Virginia corporation
(the “Company”),
American Public Education, Inc., a Delaware corporation (the “Parent”) and Sharon van Wyk
(the “Executive”).

     

    WHEREAS, the Company is a
wholly owned subsidiary of the Parent; and

     

    WHEREAS, the Company desires
to employ the Executive, and the Executive desires to be employed by the
Company, on the terms and conditions set forth herein.

     

    NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:

     

    
      	
              1.

            	
              Employment.
      On the terms and conditions set forth in this Agreement, the Parent agrees
      to cause the Company to, and the Company agrees to, employ the Executive,
      and the Executive agrees to be employed by the Company, for the term set
      forth in Section 2 hereof and in the position and with the duties set
      forth in Section 3 hereof.

            


    

     

    
      	
              2.

            	
              Term.
      The employment of the Executive by the Company as provided in Section 1
      hereof shall commence on August 3, 2009 and, unless sooner terminated as
      hereinafter set forth, shall end three (3) years thereafter; provided,
      however, that
      this Agreement will automatically renew for additional one (1) year
      periods (each a “Renewal
      Term”) on each anniversary thereof unless the Company and Parent
      deliver to the Executive written notice of intent not to renew at least
      thirty (30) days prior to the expiration of the Term or any Renewal
      Term. If this Agreement is renewed for one or more Renewal Terms, such
      Renewal Term shall be on the basis stated
  herein.

            


    

     

    
      	
              3.

            	
              Position
      and Duties. The Executive shall serve as the Executive Vice
      President and Chief Operations Officer of the Company, or in another
      position of equal or greater title, authority and responsibility, as
      assigned by the board of directors of the Parent (the “Board”), with duties and
      responsibilities as the Chief Executive Officer of the Company may from
      time to time determine and assign to the Executive. The Executive shall
      devote the Executive’s best efforts and full business time to the
      performance of the Executive’s duties and the advancement of the business
      and affairs of the Company.

            


    

     

    
      	
              4.

            	
              Place
      of Performance. In connection with the Executive’s employment by
      the Company, the Executive shall be based at the principal executive
      offices of the Company, which the Company retains the right to change in
      its discretion, or such other place as the Company and the Executive
      mutually agree.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
              5.

            	
              Compensation.

            


    

     

    
      	
               
      

            	
              5(a).

            	
              Base
      Salary. The
      Company shall pay to the Executive an annual base salary (the “Base Salary”) at the
      rate of $275,000 per year. The Base Salary shall be reviewed no less
      frequently than annually and may be increased at the discretion of the
      Compensation Committee (the “Compensation Committee”)
      of the Board. If
      the Executive’s Base Salary is increased, the increased amount shall be
      the Base Salary for the remainder of the employment term hereunder, except
      that the Company may reduce the Executive’s Base Salary at any time as
      part of a general salary reduction applied to all employees of the Company
      with annual salaries in excess of $150,000 (the “Senior Executive Group”)
      in which case the Executive’s reduced Base Salary shall be the Base Salary
      for the remainder of the employment term hereunder. Any such reduction in
      the Executive’s Base Salary shall be no more than the lesser of the median
      percentage salary reduction applied to the Senior Executive Group or 20%.
      The Base Salary shall be payable biweekly or in such other installments as
      shall be consistent with the Company’s payroll
  procedures.

            


    

     

    
      	
               
      

            	
              5(b).

            	
              Annual
      Bonus. The
      Executive shall be eligible to receive a bonus of up to 50% of the
      Executive’s Base Salary for each year as determined by the Compensation
      Committee in its sole discretion (the “Annual Bonus”), based
      upon the achievement of certain performance goals established by the
      Compensation Committee for each year, which shall be prorated in the first
      year for the portion of the year the Executive is employed. Under the
      Company’s 2009 Annual Incentive Compensation Plan, the Executive will also
      be eligible to receive an additional percentage of up to 20% of the
      Executive’s Base Salary for 2009 as determined by the Compensation
      Committee in its sole discretion, based upon the achievement of certain
      performance goals established by the Compensation Committee for 2009,
      which percentage shall be prorated for the portion of the year the
      Executive is employed.

            


    

     

    
      	
               
      

            	
              5(c).

            	
              Other
      Benefits.
      The Executive shall be entitled to receive such other benefits approved by
      the Compensation Committee and made available to senior executives of the
      Company. The Executive also shall be entitled to participate in such plans
      and to receive such bonuses, incentive compensation and fringe benefits as
      may be granted or established by the Company from time to time. Nothing
      contained in this Agreement shall prevent the Company from changing
      carriers or from effecting modifications in insurance coverage for the
      Executive.

            


    

     

    
      	
               
      

            	
              5(d).

            	
              Vacation;
      Holidays.
      The Executive shall be entitled to all public holidays observed by the
      Company and vacation days in accordance with the applicable vacation
      policies for senior executives of the Company, which shall be taken at a
      reasonable time or times.

            


    

     

    
      	
               
      

            	
              5(e)

            	
              Stock
      Options.
      The Executive shall be granted a stock option (the “Option”) for the
      purchase of 12,500 shares of American Public Education, Inc. common stock
      pursuant to the terms of the American Public Education, Inc. 2007 Omnibus
      Incentive Plan. The Option shall vest one-third on the first anniversary
      of the date of grant and shall vest an additional one-third on each of the
      next two anniversaries of the date of grant thereafter. The Option
      exercise price shall be the fair market value of the shares on the date of
      grant. The Option shall be granted effective as of the Executive’s first
      date of employment with an exercise price equivalent to the closing price
      of the Parent’s common stock on the NASDAQ Stock Market and subject to the
      form of award agreement approved by the Compensation Committee of the
      Board of Directors.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              5(f).

            	
              Restricted
      Stock. The
      Executive shall be granted restricted stock (the “Restricted Stock”) of
      2,500 shares of American Public Education, Inc. common stock pursuant to
      the terms of the American Public Education, Inc. 2007 Omnibus Incentive
      Plan. The Restricted Stock shall vest one-third on the first anniversary
      of the date of grant and shall vest an additional one-third on each of the
      next two anniversaries of the date of grant thereafter. The Restricted
      Stock shall be granted effective as of the Executive’s first date of
      employment and subject to the form of award agreement approved by the
      Compensation Committee of the Board of
  Directors.

            


    

     

    
      	
               
      

            	
              5(g).

            	
              Withholding
      Taxes and Other Deductions. To the extent required
      by law, the Company shall withhold from any payments due Executive under
      this Agreement any applicable federal, state or local taxes and such other
      deductions as are prescribed by law or Company
  policy.

            


    

     

    
      	
              6.

            	
              Expenses. The Company shall
      reimburse the Executive for all reasonable expenses incurred by the
      Executive (in accordance with the policies and procedures in effect for
      senior executives of the Company) in connection with the Executive’s
      services under this Agreement. The Executive shall account to the Company
      for expenses in accordance with policies and procedures established by the
      Company.

            


    

     

    
      	
              7.

            	
              Relocation
      Expenses.
      The Company will pay or reimburse the Executive for the customary and
      reasonable moving expenses incurred by the Executive in connection with
      Executive’s initial employment; provided, however, that such expenses in
      the aggregate shall not exceed $100,000 (the “Initial Reimbursement”). If
      the Internal Revenue Service or any state or local taxing authority takes
      the position that the relocation expenses paid or reimbursed subject to
      this Section 7 results in the receipt of taxable income to Executive, such
      expenses shall include an additional amount equal to the aggregate
      Federal, state and local income and employment taxes imposed on Executive
      as a direct result of the payment or reimbursement of the Initial
      Reimbursement.

            


    

     

    
      	
              8.

            	
              Confidential
      Information.

            


    

     

    
      	
               
      

            	
              8(a).

            	
              Obligation
      of Confidentiality. The Executive covenants and agrees that the
      Executive will not ever, without the prior written consent of the Board or
      a person authorized by the Board or except as may be ordered by a court of
      competent jurisdiction, publish or disclose to any unaffiliated third
      party or use for the Executive’s personal benefit or advantage any
      confidential information with respect to the Company’s or Parent’s past,
      present, or planned business, including but not limited to all information
      and materials related to any Company or Parent business, business plan,
      product, service, procedure, strategy, method, technique, technology,
      research, strategy, plan, customer or supplier information, customer or
      supplier list, financial data, technical data, computer files, and
      computer software, including any of the foregoing that is in any stage of
      research, development, or planning, and any other information which the
      Executive obtained while employed by, or otherwise serving or acting on
      behalf of, the Company or the Executive or which the Executive may possess
      or have under her control, that is not generally known (except for
      unauthorized disclosures) to the public or within the industry in which
      the Company or Parent does
business.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
               
      

            	
              8(b).

            	
              Reasonable
      Restrictions. The Executive acknowledges that the restrictions
      contained in Section 8(a) hereof are reasonable and necessary, in view of
      the nature of the Company’s or Parent business, in order to protect the
      legitimate interests of the Company or Parent, and that any violation
      thereof would result in irreparable injury to the Company or Parent.
      Therefore, the Executive agrees that in the event of a breach or
      threatened breach by the Executive of the provisions of Section 8(a)
      hereof, the Company or Parent shall be entitled to obtain from any court
      of competent jurisdiction, preliminary or permanent injunctive relief
      restraining the Executive from disclosing or using any confidential
      information. Nothing herein shall be construed as prohibiting the Company
      or Parent from pursuing any other remedies available to it for breach or
      threatened breach, including, without limitation, recovery of damages from
      the Executive.

            


    

     

    
      	
               
      

            	
              8(c).

            	
              Return
      of Materials. The Executive shall deliver promptly to the Company
      or Parent on termination of employment, or at any other time the Company
      or Parent may so request, all confidential materials, memoranda, notes,
      records, reports and other documents and materials (and all copies
      thereof), in whatever form or medium, that contain any of the foregoing,
      including but not limited to computer data, files, software, and hardware,
      relating to the Company’s, Parents or their respective affiliates’
      respective businesses that the Executive obtained while employed by, or
      otherwise serving or acting on behalf of, the Company or Parent or which
      the Executive may then possess or have under her
  control.

            


    

     

    
      	
              9.

            	
              Non-Competition.

            


    

     

    
      	
               
      

            	
              9(a).

            	
              Non-Competition. The Executive
      covenants and agrees that the Executive will not, during the Executive’s
      employment and for a period of one (1) year thereafter (to the extent
      permitted by law), in the United States or any other jurisdiction in which
      the Company or Parent is engaged or has reasonably firm plans to engage in
      business, (i) compete with the Company or the Parent on behalf of the
      Executive or any third party; (ii) participate as a director, agent,
      representative, stockholder or partner or have any direct or indirect
      financial interest in any enterprise which engages in any business in
      which the Company or the Parent is engaged; or (iii) participate as
      an employee or officer in any enterprise in which the Executive’s
      responsibility relates to any business in which the Company or the Parent
      is engaged; provided, however, that after the occurrence of both a Change
      of Control and the termination of the Executive’s employment, the
      foregoing will not prohibit the Executive from being employed by
      (1) a campus-based institution of higher education that derives no
      more than 20% of its revenues from online education, provided that, the
      Executive is not predominantly engaged in supporting the online education,
      or (2) an online learning company that does not provide higher
      education. The ownership by the Executive of less than one percent (1%) of
      the outstanding stock of any corporation listed on a national securities
      exchange shall not be deemed a violation of this
      Section 9(a).  For purposes of this Section 9(a), “Change
      of Control” means (i) the dissolution or liquidation of the Parent or
      a merger, consolidation, or reorganization of the Parent with one or more
      other entities in which the Parent is not the surviving entity,
      (ii) a sale of substantially all of the assets of the Parent to
      another person or entity, or (iii) any transaction (including without
      limitation a merger or reorganization in which the Parent is the surviving
      entity) which results in any person or entity owning 50% or more of the
      combined voting power of all classes of stock of the
    Parent.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              9(b).

            	
              Injunctive
      Relief. In
      the event the restrictions against engaging in a competitive activity
      contained in Section 9(a) hereof shall be determined by any court of
      competent jurisdiction to be unenforceable by reason of their extending
      for too great a period of time or over too great a geographical area or by
      reason of their being too extensive in any other respect, Section 9(a)
      hereof shall be interpreted to extend only over the maximum period of time
      for which it may be enforceable and over the maximum geographical area as
      to which it may be enforceable and to the maximum extent in all other
      respects as to which it may be enforceable, all as determined by the court
      in the action.

            


    

     

    
      	
               
      

            	
              9(c).

            	
              Non-Solicitation. The Executive
      covenants and agrees that the Executive will not, during the Executive’s
      employment and for a period of one (1) year thereafter solicit, induce,
      entice, or encourage or attempt to solicit, induce, entice, or encourage
      any employee of the Company or Parent or any of the Company’s or Parents
      respective affiliates to render services for any other person, firm,
      entity, or corporation or to terminate her employment with the Company,
      Parent or their respective
affiliates.

            


    

     

    
      	
              10.

            	
              Termination of
      Employment.

            


    

     

     

    
      	
               
      

            	
              10(a).

            	
              Death. The Executive’s
      employment hereunder shall terminate upon the Executive’s
      death.

            


    

     

    
      
        	
              	
                10(b).

              	
                By
      the Company. The Company or Parent
      may terminate the Executive’s employment hereunder under the following
      circumstances:

              


      

    

     

    (i) The
Company or Parent may terminate the Executive’s employment hereunder for
“Disability.” For purposes of this Agreement, “Disability” shall mean the
Executive shall have been unable to perform all of the Executive’s duties
hereunder by reason of illness, physical or mental disability or other similar
incapacity, which inability shall continue for more than three (3) consecutive
months.

     

    (ii) The
Company or Parent may terminate the Executive’s employment hereunder for
“Cause.” For purposes of this Agreement, “Cause” shall mean (A) refusal by the
Executive to follow a lawful written order of the Chief Executive Officer,
Chairman of the Board or the Board, (B) the Executive’s engagement in conduct
materially injurious to the Company or Parent or their respective reputations,
(C) dishonesty of a material nature that relates to the performance of the
Executive’s duties under this Agreement, (D) the Executive’s conviction for any
crime involving moral turpitude or any felony, or (E) the Executive’s continued
failure to perform her duties under this Agreement (except due to the
Executive’s incapacity as a result of physical or mental illness) to the
satisfaction of the Board for a period of at least thirty (30) consecutive days
after written notice is delivered to the Executive specifically identifying the
manner in which the Executive has failed to perform her duties.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (iii) The
Parent, in the sole discretion of the Board, may terminate the Executive’s
employment hereunder at any time other than for Disability or Cause, for any
reason or for no reason at all.

     

    
      	
               
      

            	
              10(c).

            	
              By
      the Executive. The Executive may
      terminate the Executive’s employment hereunder for “Good Reason.” For
      purposes of this Agreement, “Good Reason” shall
  mean:

            


    

     

    (i) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive’s position as contemplated by Section 3 of this Agreement,
excluding for this purpose an isolated, insubstantial and inadvertent action
which is remedied by the Company promptly after receipt of notice thereof given
by the Executive;

     

    (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;

     

    (iii)
there is a merger, acquisition or other similar affiliation with another entity
and the Executive does not continue as the Chief Operating Officer, or any other
office she holds at the time of the transaction, of the most senior resulting
entity succeeding to the business of the Company; or

     

    (iv) any
material failure by the Company or Parent to comply with and satisfy Section
15(c) of this Agreement.

     

    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 her 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.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
            	
              10(d).

            	
              Notice
      of Termination. Any termination of the
      Executive’s employment by the Company, the Parent or the Executive (other
      than pursuant to Section 10(a) hereof) shall be communicated by written
      “Notice of Termination” to the other party hereto in accordance with
      Section 12 hereof. For purposes of this Agreement, a “Notice of
      Termination” shall mean a notice which shall indicate the specific
      termination provision in this Agreement relied upon, if any, and shall set
      forth in reasonable detail the facts and circumstances claimed to provide
      a basis for termination of the Executive’s employment under the provision
      so indicated.

            


    

     

    
      	
            	
              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 Section 10(b)(ii) or 10(b)(iii) hereof, the date specified in the
      Notice of Termination; (iv) if the Executive terminates the Executive’s
      employment for Good Reason pursuant to Section 10(c) hereof, the date
      specified in the Notice of Termination, provided however that such date
      must occur after the cure period provided in Section 10(c); and (v) if the
      Executive’s employment is terminated for any other reason, the date on
      which Notice of Termination is given. Notwithstanding the foregoing, the
      Executive will be deemed to have a Date of Termination for purposes of
      determining the timing of any payments or benefits hereunder that are
      classified as deferred compensation only upon a “separation from service”
      within the meaning of Code Section
409A.

            


    

     

    
      	
              11.

            	
              Compensation Upon
      Termination.

            


    

     

    
      	
               
      

            	
              11(a).

            	
              If
      the Executive’s employment is terminated by the Executive’s death, the
      Company shall pay to the Executive’s estate, or as may be directed by the
      legal representatives of the estate, (i) the Executive’s full Base
      Salary through the Date of Termination and (ii) all other unpaid
      amounts, if any, to which the Executive is entitled as of the Date of
      Termination in connection with any fringe benefits or under any incentive
      compensation plan or program of the Company pursuant to Section 5(b)
      “Annual Bonus” and Section 5(c) “Other Benefits” hereof, at the time these
      payments are due and the Company shall have no further obligations to the
      Executive under this Agreement.

            


    

     

    
      	
            	
              11(b).

            	
              If
      the Company terminates the Executive’s employment for Disability as
      provided in Section 10(b)(i) hereof, the Company shall pay the Executive
      her full Base Salary through the Date of Termination and all other unpaid
      amounts, if any, to which the Executive is entitled as of the Date of
      Termination in connection with any fringe benefits or under any incentive
      compensation plan or program of the Company pursuant to Sections 5(b) and
      (c) hereof, at the time these payments are due, and the Company shall have
      no further obligations to the Executive under this Agreement; provided, that
      payments made to the Executive during the Disability Period shall be
      reduced by the sum of the amounts, if any, payable to the Executive at or
      prior to the time of any payment under disability benefit plans of the
      Company and which amounts were not previously applied to reduce any
      payment.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              11(c).

            	
              If
      the Company terminates the Executive’s employment for Cause as provided in
      Section 10(b)(ii) hereof, the Company shall pay the Executive the
      Executive’s full Base Salary through the Date of Termination and all other
      unpaid amounts, if any, to which Executive is entitled as of the Date of
      Termination in connection with any fringe benefits or under any incentive
      compensation plan or program of the Company pursuant to Section 5(c)
      hereof, and the Company shall have no further obligations to the Executive
      under this Agreement.

            


    

     

    
      	
            	
              11(d).

            	
              If
      the Executive terminates the Executive’s employment other than for Good
      Reason, the Company shall pay the Executive the Executive’s full Base
      Salary through the Date of Termination and all other unpaid amounts, if
      any, to which Executive is entitled as of the Date of Termination in
      connection with any fringe benefits or under any incentive compensation
      plan or program of the Company pursuant to Sections 5(b) and (c) hereof,
      and the Company shall have no further obligations to the Executive under
      this agreement.

            


    

     

    
      	
               
      

            	
              11(e).

            	
              If
      the Company or Parent terminates the Executive’s employment with the
      Company other than for Cause or Disability or the Executive terminates the
      Executive’s employment for Good Reason as provided in Section 10(c)
      hereof, at any time prior to the expiration of this Agreement or within
      the 12 month period following the expiration of this Agreement, upon
      execution of a general release by the Executive in favor of the Company
      and Parent in a form reasonably acceptable to and approved by the Company
      or Parent, the Company shall pay the Executive the following amounts and
      shall have no further obligations to the
  Executive:

            


    

     

    (i) the
sum of (1) the Executive’s Base Salary through the Date of Termination to the
extent not theretofore paid, (2) the product of (x) the Annual Bonus (to the
extent Company and Executive performance targets for the year in which
employment terminates are satisfied, adjusted for the short period through the
Date of Termination, for an Annual Bonus) and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the effective
date of termination of the Executive’s employment (the “Date of Termination”),
and the denominator of which is 365, and (3) any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case, to the extent not
theretofore paid, (the sum of the amounts described in clauses (1), (2), and (3)
shall be hereinafter referred to as the “Accrued Obligations”) in a lump sum in
cash within 30 days of the Date of Termination, except with regard to the Annual
Bonus which will be paid at the same time Annual Bonuses for the year of
termination are paid, but in no event later than March 15 of the year after the
year of termination;

     

    (ii) an
amount equal to the sum of (x) the Executive’s Base Salary and (y) the Annual
Bonus (to the extent Company and Executive performance were satisfying the
performance targets, adjusted for the short period, after the Date of
Termination to the end of the calendar year for an Annual Bonus and as to the
remainder of the twelve month period following the Date of Termination, only if
net income has increased from the same period in the prior year and the
performance targets established for the successor Chief Operating Officer were
being satisfied for that period), in substantially equal proportionate
installments in accordance with the Company’s normal payroll practices,
commencing with the first payroll period in the month following the month in
which the Date of Termination occurs, for a period of twelve (12) months, except
with regard to the Annual Bonus which will be paid at the same time Annual
Bonuses for the year of termination are paid, but in no event later than March
15 of the year after the year of termination;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    (iii) for
twelve (12) months after the Date of Termination, or any longer period as may be
provided by the terms of the appropriate plan, program, practice or policy, the
Company shall continue benefits to the Executive and/or the Executive’s family
at least equal to those which would have been provided to them in accordance
with the welfare benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without limitation, medical,
prescription, dental, employee life, group life insurance plans and programs,
but not including disability or accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other peer employees
of the Company and its affiliated companies, as if the Executive’s employment
had not been terminated; provided, however, that if the
Executive becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under the other plan during the applicable period of eligibility;
and

     

    (iv) to
the extent not theretofore paid or provided, for twelve (12) months after the
Date of Termination, the Company shall timely pay or provide to the Executive
any other amounts or benefits required to be paid or provided or which the
Executive is eligible to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies (these other
amounts and benefits shall be hereinafter referred to as the “Other
Benefits”).

     

    
      	
               
      

            	
              11(f).

            	
              No
      Duty to Mitigate. The Executive shall
      not be required to mitigate amounts payable pursuant to Section 11 hereof
      by seeking other employment.

            


    

     

    
      	
               
      

            	
              11(g).

            	
              No
      Additional Payments. Notwithstanding
      anything to the contrary in this Agreement, the Executive acknowledges and
      agrees that in the event of the termination of her employment, even if in
      breach of this Agreement, she will be entitled only to those payments
      specified herein for the circumstances of her termination, and not to any
      other payments by way of damages or claims of any nature, whether under
      this Agreement or under any other agreements between the Executive and the
      Company.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
              12.

            	
              Notices. All notices, demands,
      requests or other communications required or permitted to be given or made
      hereunder shall be in writing and shall be delivered, telecopied or mailed
      by first class registered or certified mail, postage prepaid, addressed as
      follows:

            


    

     

    
      	 	
              (a)

            	
              If
      to the Company:

              American
      Public University System, Inc.

              111
      West Congress Street

              Charles
      Town, WV 25414

              Telecopy:
      (304) 724-3801

              Attention:
      Chief Executive Officer

            
	 	
              (b)

            	
              If
      to the Parent:

              American
      Public Education, Inc.

              111
      West Congress Street

              Charles
      Town, WV 25414

              Telecopy:
      (304) 724-3801

              Attention:
      Chief Executive Officer

            
	 	
              (c)

            	
              If
      to the Executive, to the Executive’s address set forth on the signature
      page to this Agreement, or to the home address of the executive in the
      official records of the Company;

            


    

     

    or, in the
case of the Company or Parent, to such other address as the Company or Parent
may designate in a notice to the other. Each notice, demand, request or other
communication that shall be given or made in the manner described above shall be
deemed sufficiently given or made for all purposes three (3) days after it is
deposited in the U.S. mail, postage prepaid, or at such time as it is delivered
to the addressee (with the return receipt, the delivery receipt, the answer back
or the affidavit of messenger being deemed conclusive evidence of delivery) or
at such time as delivery is refused by the addressee upon
presentation.

     

    
      	
              13.

            	
              Severability. The invalidity or
      unenforceability of any one or more provisions of this Agreement shall not
      affect the validity or enforceability of the other provisions of this
      Agreement, which shall remain in full force and
  effect.

            


    

     

    
      	
              14.

            	
              Survival. It is the express
      intention and agreement of the parties hereto that the provisions of
      Sections 8 and 9 hereof shall survive the termination of employment of the
      Executive and the expiration of this Agreement.  It is the
      express intention and agreement of the parties hereto that the provisions
      of Section 11(e) shall survive the expiration of this Agreement for a
      period of twelve (12) months.  In addition, all obligations of
      the Company to make payments hereunder shall survive any termination of
      this Agreement on the terms and conditions set forth
    herein.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              15. Successors
      and Assigns.

            


    

     

    
      	
               
      

            	
              15(a).

            	
              This
      Agreement is personal to the Executive and without the prior written
      consent of the Company and the Parent shall not be assignable by the
      Executive otherwise than by will or the laws of descent and distribution.
      This Agreement shall inure to the benefit of and be enforceable by the
      Executive’s legal representatives.

            


    

     

    
      	
               
      

            	
              15(b).

            	
              This
      Agreement shall inure to the benefit of and be binding upon the Company
      and the Parent and their successors and
assigns.

            


    

     

     

    
      	
               
      

            	
              15(c).

            	
              The
      Company and the Parent will require any successor or any party that
      acquires control of the Company and the Parent (whether direct or
      indirect, by purchase, merger, consolidation or otherwise) or all or
      substantially all of the business and/or assets of the Company or the
      Parent to assume expressly and agree to perform this Agreement in the same
      manner and to the same extent that the Company and the Parent would be
      required to perform it if no succession had taken place. As used in this
      Agreement, “Company” and “Parent” shall mean the Company or Parent,
      respectively, as hereinbefore defined and any successor to its business
      and/or assets as aforesaid which assumes and agrees to perform this
      Agreement by operation of law, or
otherwise.

            


    

     

    
      	
              16.

            	
              Binding
      Effect.
      Subject to any provisions hereof restricting assignment, this Agreement
      shall be binding upon the parties hereto and shall inure to the benefit of
      the parties and their respective heirs, devisees, executors,
      administrators, legal representatives, successors and
    assigns.

            


    

     

    
      	
              17.

            	
              Amendment;
      Waiver.
      This Agreement shall not be amended, altered or modified except by an
      instrument in writing duly executed by the parties hereto. Neither the
      waiver by either of the parties hereto of a breach of or a default under
      any of the provisions of this Agreement, nor the failure of either of the
      parties, on one or more occasions, to enforce any of the provisions of
      this Agreement or to exercise any right or privilege hereunder, shall
      thereafter be construed as a waiver of any subsequent breach or default of
      a similar nature, or as a waiver of any provisions, rights or privileges
      hereunder.

            


    

     

    
      	
              18.

            	
              Headings. Section and subsection
      headings contained in this Agreement are inserted for convenience of
      reference only, shall not be deemed to be a part of this Agreement for any
      purpose, and shall not in any way define or affect the meaning,
      construction or scope of any of the provisions
  hereof.

            


    

     

    
      	
              19.

            	
              Governing
      Law. This
      Agreement, the rights and obligations of the parties hereto, and any
      claims or disputes relating thereto, shall be governed by and construed in
      accordance with the laws of the State of West Virginia (but not including
      the choice of law rules thereof).

            


    

     

    
      	
              20.

            	
              Entire
      Agreement.
      This Agreement constitutes the entire agreement between the parties hereto
      with respect to the subject matter hereof, and it supersedes all prior
      oral or written agreements, commitments or understandings with respect to
      the matters provided for herein.

            


    

     

    
      	
              21.

            	
              Counterparts. This Agreement may be
      executed in two or more counterparts, each of which shall be an original
      and all of which shall be deemed to constitute one and the same
      instrument.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
              22.

            	
              Limitations
      Under Code Section 409A. Anything in this
      Agreement to the contrary notwithstanding, if (A) on the date of
      termination of Executive’s employment with the Company or a Subsidiary,
      any of the Company’s stock is publicly traded on an established securities
      market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the
      Internal Revenue Code, as amended (the “Code”)), (B) if Executive is
      determined to be a “specified employee” within the meaning of Section
      409A(a)(2)(B) of the Code, (C) the payments exceed the amounts permitted
      to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii)
      and (D) such delay is required to avoid the imposition of the tax set
      forth in Section 409A(a)(1) of the Code as a result of such termination,
      the Executive would receive any payment that, absent the application of
      this Section 22, would be subject to interest and additional tax imposed
      pursuant to Section 409A(a) of the Code as a result of the application of
      Section 409A(2)(B)(i) of the Code, then no such payment shall be payable
      prior to the date that is the earliest of (1) 6 months after the
      Executive’s termination date, (2) the Executive’s death or (3) such other
      date as will cause such payment not to be subject to such interest and
      additional tax (with a catch-up payment equal to the sum of all amounts
      that have been delayed to be made as of the date of the initial
      payment).

            


    

     

    It is the
intention of the parties that payments or benefits payable under this Agreement
not be subject to the additional tax imposed pursuant to Section 409A of the
Code. To the extent such potential payments or benefits could become subject to
such Section, the parties shall cooperate to amend this Agreement with the goal
of giving the Executive the economic benefits described herein in a manner that
does not result in such tax being imposed.

     

    For
purposes of Section 409A, the Executive’s right to receive installment payments
pursuant to this Agreement including, without limitation, each severance payment
and COBRA continuation reimbursement shall be treated as a right to receive a
series of separate and distinct payments.

     

    Any amount
that the Executive is entitled to be reimbursed under this Agreement will be
reimbursed to the Executive as promptly as practical and in any event not later
than the last day of the calendar year after the calendar year in which the
expenses are incurred. Any right to reimbursement or in kind benefits will not
be subject to liquidation or exchange for another benefit. The amount of the
expenses eligible for reimbursement during any taxable year will not affect the
amount of expenses eligible for reimbursement in any other taxable
year.

     

    Whenever a
payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within thirty (30) days following
the date of termination”), the actual date of payment within the specified
period shall be within the sole discretion of the Company.

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN WITNESS
WHEREOF, the undersigned have duly executed this Agreement, or have caused this
Agreement to be duly executed on their behalf, as of the day and year first
hereinabove written.

     

    
      
        	 
      	
                AMERICAN
      PUBLIC UNIVERSITY SYSTEM, INC.

              
	 	 
	 	 
	 
      	
                By:  /s/ Wallace E. Boston,
      Jr.

              
	 
      	
                Name:  Wallace
      E. Boston, Jr.

              
	 
      	
                Title:  President

              
	 	 
	 	 
	 
      	
                AMERICAN
      PUBLIC EDUCATION, INC.

              
	 	 
	 	 
	 
      	
                By:
      /s/ Wallace E. Boston,
      Jr.

              
	 
      	
                Name:  Wallace
      E. Boston, Jr.

              
	 
      	
                Title:  CEO

              
	 	 
	 	 
	 
      	
                THE
      EXECUTIVE:

              
	 	 
	 
      	
                /s/ Sharon van Wyk

              
	 
      	      
                Address: