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Exhibit 4.10
AMENDMENT NO. 2
TO
EXCHANGE AND REPURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO EXCHANGE AND REPURCHASE AGREEMENT ("Amendment") is
made and entered into as of January 1, 1996, by and between EDUCATION
MANAGEMENT CORPORATION, a Pennsylvania corporation ("EMC"), and
__________________ ("Management Stockholder").
WITNESSETH:
WHEREAS, EMC Holdings, Inc. (as predecessor-by-merger to EMC) and the
Management Stockholder entered into that certain Exchange and Repurchase
Agreement dated as of October 26, 1989, as amended as of January 19, 1995 (the
"Agreement"); and
WHEREAS, EMC and the Management Stockholder desire to amend the Agreement in
order to provide that certain repurchases thereunder that are at a purchase
price equal to the lesser of Fair Market Value and the Compounded Adjusted
Purchase Price (as those terms are defined in the Agreement) will instead be at
Fair Market Value;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Amendment of Section 10(b). Section 10(b) of the Agreement is hereby
amended and restated in its entirety as follows:
"(b) Termination Upon Resignation of Employment; EMC's Call.
Upon termination, prior to a Public Distribution, of your employment
with EMC or any subsidiary thereof as a result of your resignation,
then, in such event, EMC shall have the right, upon delivery of
notice to you, for a period of 90 calendar days after the Date of
Termination, to repurchase any and all Shares owned by you. If EMC
notifies you in accordance with Section 11 hereof of its
determination to exercise such right, you shall have the obligation
to sell the relevant number of Shares on the terms and conditions set
forth in Section 12 hereof to EMC at a price equal to the product of
(i) the Fair Market Value of each such Share on the Date of
Termination and (ii) the number of Shares so purchased."
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2. Amendment of Section 10(d)(i). Section 10(d)(i) of the Agreement is
hereby amended and restated in its entirety as follows:
"(i) EMC's Call. Upon termination, prior to a Public
Distribution, of your employment with EMC or any subsidiary thereof
for any reason other than as a result of (A) your death, (B)
Incapacity, (C) retirement having attained Normal Retirement Age, (D)
your resignation or (E) a termination for Cause, then, in such event,
EMC shall have the right, upon delivery of notice to you, for a
period of 90 calendar days after the Date of Termination, to
repurchase any or all Shares owned by you. If EMC so notifies you in
accordance with Section 11 hereof of its determination to exercise
such right, you shall have the obligation to sell the relevant number
of Shares on the terms and conditions set forth in Section 12 hereof
to EMC at a price equal to the product of (i) the Fair Market Value
of each Share as of the Date of Termination and (ii) the number of
such Shares so purchased."
3. No Other Amendments. Except as expressly amended by this Amendment, the
Agreement and each and every representation, warranty, covenant, term and
condition therein, are hereby specifically ratified and confirmed.
4. Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
5. Governing Law. This Amendment shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as
of the date first above written.
EDUCATION MANAGEMENT CORPORATION
By:
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CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
WITNESS: MANAGEMENT STOCKHOLDER:
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Signature
