exv10w5wa






Exhibit 10.5A




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”).



Recitals:




     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.



Agreement:




     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 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;”





          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:




	 	 	“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.”





          3. 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 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.”





          4. Section 11(f)(v) of the Employment Agreement is hereby deleted in its entirety and amended
and restated to read as follows:




	 	 	“(v) in the event that it is determined that any payment, benefit, or distribution described
in this Section 11(f) or in Section 12 made by the Company, by any of its affiliates, by any
person who acquires ownership or effective control or ownership of a substantial portion of
the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended, and the regulations thereunder (the “Code”)) or by any affiliate of such
person, whether paid or payable or distributed or distributable pursuant to the terms of
this Section 11(f), Section 12 or otherwise (the “Total Payments”), would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to
such excise tax (such excise tax, together with any such interest or penalties, are
collectively referred to as the “Excise Tax”), then the Executive shall be entitled to
receive an additional payment (an “Excise Tax Restoration Payment”) within 30 days of the
determination that the Total Payments




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	 	 	would be subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax in an amount that shall fund the payment by the
Executive of any Excise Tax on the Total Payments as well as all income taxes imposed on the
Excise Tax Restoration Payment, any Excise Tax imposed on the Excise Tax Restoration Payment
and any interest or penalties imposed with respect to taxes on the Excise Tax Restoration
Payment or any Excise Tax.”





          5. Section 23 of the Employment Agreement is hereby amended by adding three new paragraphs to
the end of the provision to read as follows:



	 	 	      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.






          6. The provisions of this Amendment may be amended and waived only with the prior written
consent of the parties hereto. This Amendment may be executed and delivered in one or more
counterparts, each of which shall be deemed an original and together shall constitute one and the
same instrument.



          7. Except as set forth in this Amendment, the Employment Agreement shall remain unchanged and
shall continue in full force and effect.



          IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first written above.



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	 	AMERICAN PUBLIC UNIVERSITY SYSTEM INC.

 	 
	 	By:  	/s/ WALLACE E. BOSTON, JR.
 	 
	 	 	Name:  	Wallace E. Boston, Jr. 	 
	 	 	Title:  	President and CEO 	 
	 



	 	 	 	 	 
	 	AMERICAN PUBLIC EDUCATION INC.

 	 
	 	By:  	/s/ PHILLIP A. CLOUGH
 	 
	 	 	Name:  	Phillip A. Clough 	 
	 	 	Title:  	Chairman 	 
	 



	 	 	 	 	 
	 	EXECUTIVE

 	 
	 	By:  	/s/ HARRY T. WILKINS
 	 
	 	 	Harry T. Wilkins 	 
	 	 	 	 
	 




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