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Exhibit 10.05
FOURTH AMENDMENT TO
AMENDED AND RESTATED
EDUCATION MANAGEMENT CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
Pursuant to Section 12.01 of the Education Management Employee
Stock Ownership Plan, as amended and restated effective January 1, 1989 (the
"Plan"), the Plan is hereby amended as follows, effective as of November 21,
1996:
1. Section 10.01(b) of the Plan is hereby amended and restated
in its entirety as follows:
(b) Other Separation from Service. Effective as of
January 1, 1997, a Participant whose employment ends
for reasons or under circumstances other than as
described in subsection (a) shall receive, or begin
to receive, his or her Capital Accumulation within or
beginning within one year after the applicable date
set forth below:
(1) with respect to a Participant whose
employment with the Company terminates on or
before December 31, 1993, as soon as
practicable after December 31, 1996, but in
no event later than December 31, 1997;
(2) with respect to a Participant whose
employment with the Company terminates on or
before December 31, 1995, and after December
31, 1993, as soon as practicable after
December 31, 1997, but in no event later
than December 31, 1998;
(3) with respect to a Participant whose
employment with the Company terminates on or
before December 31, 1997, and after December
31, 1995, as soon as practicable after
December 31, 1998, but in no event later
than December 31, 1999; and
(4) with respect to a Participant whose
employment with the Company terminates on or
before December 31, 1998, and after December
31, 1997, as soon as practicable after
December 31, 1999, but in no event later
than December 31, 2000; and
(5) with respect to a Participant whose
employment with the Company terminates after
December 31, 1998, as soon as practicable
and in no event later than one year after
the end of the Plan Year in which his or her
employment terminates.
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2. Section 10.01(d) of the Plan is hereby amended by inserting
the following at the end thereof:
Notwithstanding the foregoing, if a Participant's Capital
Accumulation is (i) $3,500 or less, and (ii) otherwise
distributable pursuant to the provisions of this Section 10.01
during the 1996 calendar year, such Participant may elect to
receive distribution of his or her Capital Accumulation as
soon as practicable after December 31, 1996, but in no event
later than December 31, 1997; provided, however, that, if, at
the time of such deferred distribution, such Participant's
Capital Accumulation is more than $3,500, such Participant
shall have the right to defer the date of distribution of his
or her benefit in accordance with the first sentence of this
Section 10.01(d).
3. Section 10.04 of the Plan is hereby amended and restated in
its entirety as follows:
10.04 Distribution in Cash or Company Stock.
(a) Distributions Prior to January 1, 1997.
Effective for distributions prior to January
1, 1997, a Participant's benefits shall
generally be paid in cash. In connection
with such distribution, the Committee shall
cause the Participant's Company Stock
Account to be converted into cash based upon
the then fair market value of such Company
Stock, with the resulting cash and the
balance of the Other Investments Account
paid to the Participant or his or her
Beneficiary. However, a Participant or his
or her Beneficiary, as the case may be,
shall have the right to demand that the
Participant's benefits attributable to his
or her Company Stock Account and his or her
Other Investments Account be paid in the
form of shares of Employer Securities,
provided such a request is made in writing
within sixty (60) days after the Committee
furnishes notice of the Participant's right
to elect the stock distribution. In that
event, the Committee shall cause the
Participant's Other Investments Account and
any shares of Company Stock other than
Employer Securities in the Participant's
Company Stock Account to be converted into
or exchanged for shares of Employer
Securities and distributed to the
Participant or his or her Beneficiary along
with any shares of Employer Securities held
in the Participant's Company Stock Account,
provided that the value of any fractional
share shall be paid in cash. Notwithstanding
any other provision of this Section
10.04(a), effective as of January 1, 1996,
with respect to the portion of a
Participant's Company Stock Account and
Other Investments Account that is held in
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the form of shares of the Company's Common
Stock, all required minimum distributions
from the Plan pursuant to Section 401(a)(9)
of the Code shall be paid in the form of
shares of Company Stock.
(b) Distributions on or After January 1, 1997.
Effective for distributions on or after
January 1, 1997, a Participant's benefits
shall be distributed as set forth in Section
10.04(a); provided, however, that the
portion of such Participant's Company Stock
Account and Other Investments Account that
is held in the form of shares of the
Company's Common Stock shall, if the
Company's Common Stock is then traded on a
national securities exchange, be paid in the
form of shares of Company Stock.
EXECUTION OF FOURTH AMENDMENT TO THE PLAN
To record the adoption of this Fourth Amendment to the Plan,
the Company has caused its appropriate officers to affix the Company's corporate
name and seal hereto this _____ day of _________ 1997.
EDUCATION MANAGEMENT CORPORATION
By:__________________________________
Title:_______________________________
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