<PAGE>
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
EDUCATION MANAGEMENT CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-119571
(State or other (I.R.S. Employer Identification No.)
jurisdicitons of
incorporation or
organization)
300 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15222
(Address of principal (Zip Code)
executive offices)
EDUCATION MANAGEMENT CORPORATION
MANAGEMENT INCENTIVE 1990 STOCK OPTION AGREEMENTS
EDUCATION MANAGEMENT CORPORATION MANAGEMENT INCENTIVE 1993 STOCK
OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT BETWEEN WILLIAM M. WEBSTER,
IV
AND EDUCATION MANAGEMENT CORPORATION
(Full title of the plans)
FREDERICK W. STEINBERG
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
EDUCATION MANAGEMENT CORPORATION
300 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15222
(Name and address of agent for service)
(412) 562-0900
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT
SECURITIES TO BE MAXIMUM MAXIMUM OF
TO BE REGISTERED OFFERING AGGREGATE REGISTRA-
REGISTERED PRICE PER OFFERING TION FEE
SHARE (1) PRICE
Common $3,358,249.22 $1,017.65
Stock, par 105,181 $2.54
value $0.01 116,131 $3.18
per share 110,931 $3.50
150,000 $5.70
42,852 $7.20
23,000 $15.00
75,000 $11.00
(1) Based upon the exercise price of the options in respect of
which the shares may be issued, in accordance with Rule 457(h).
_________________________________________________________________
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Education Management
Corporation ("the Registrant") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference into this Registration Statement: (i)
the prospectus covering 4,530,000 shares of the Registrant's
Common Stock, par value $.01 per share (the "Common Stock"), as
filed with the Commission on August 19, 1996, as part of the
Registration Statement on Form S-1 (File No. 333-10385), as
amended by Amendment No. 1, filed on October 1, 1996, as further
amended by Amendment No. 2, filed on October 8, 1996, as further
amended by Amendment No. 3, filed on October 28, 1996 (the "Form
S-1"), (ii) the description of the Registrant's Common Stock
contained in the Form S-1, including all amendments and reports
updating such description, and (iii) the Registrant's Form 10-Q
filed with the Commission for the quarterly period ended
September 30, 1996 (File No. 000-21363).
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Registration Statement, but
prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement. Each document incorporated by reference into this
Registration Statement shall be deemed to be a part of this
Registration Statement from the date of filing of such document
with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by
any document which constitutes part of the prospectus relating to
the Education Management Corporation Management Incentive 1990
Stock Option Agreements, the Education Management Corporation
Management Incentive 1993 Stock Option Plan, and the Nonqualified
Stock Option Agreement Between William M. Webster, IV, and the
Registrant (collectively, the "Plans"), meeting the requirements
of Section 10(a) of the Securities Act.
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ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this
Registration Statement is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has entered into indemnification agreements
with most of its directors and officers in which the Registrant
agrees to indemnify such directors and officers to the fullest
extent permitted by law and to advance the expenses of any suit
or other action to such directors and offers upon their demand;
subject to repayment if such directors or officers are found by a
court of competent jurisdiction not to have been entitled to
indemnification by the Registrant.
The Registrant is a Pennsylvania corporation. Sections 1741
and 1742 of the Pennsylvania Business Corporation Law of 1988
(the "BCL") provide that a business corporation shall have the
power to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or
completed action or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that such
person is or was a representative (as defined below) of that
corporation, or is or was serving at the request of that
corporation as a representative of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such action or proceeding, if such
person acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of that
corporation and with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. In the
case of an action by or in the right of a business corporation,
such indemnification is limited to expenses (including attorneys'
fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action, except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be
liable to that corporation unless and only to the extent that a
court determines upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
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the expenses that the court deems proper. A representative means
a person occupying the position or discharging the functions of a
director, officer, employee or agent of any enterprise,
regardless of the name or title by which that person may be
designated.
BCL Section 1744 provides that, unless ordered by a court,
any indemnification referred to above shall be made by a business
corporation only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances
because the indemnitee has met the applicable standard of
conduct. Such determination shall be made:
(1) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to the action
or proceeding; or
(2) if such a quorum is not obtainable, or if obtainable
and a majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to
the extent that a representative of a business corporation is
successful on the merits or otherwise in defense of any action or
proceeding referred to above, or in defense of any claim, issue
or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including
attorneys' fees) incurred in defending any action or proceeding
may be paid by a business corporation in advance of the final
disposition of that action or proceeding upon receipt of an
undertaking by or on behalf of a representative to repay the
amount advanced if it is ultimately determined that the
indemnitee is not entitled to be indemnified by that corporation.
BCL Section 1746 provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, the
foregoing provisions is not exclusive of any other rights to
which a person seeking indemnification or advancement of expenses
may be entitle under any By-Law, agreement, vote of shareholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding that office, and that indemnification may be granted
under any By-Law, agreement, vote of shareholders or directors or
otherwise for any action taken and may be made whether or not
that corporation would have the power to indemnify the person
under any other provision of law and whether or not the
indemnified liability arises or arose from any threatened,
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pending or completed action by or in the right of that
corporation; provided, however, that no indemnification may be
made in any case where the act or failure to act giving rise to
the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation
to purchase and maintain insurance on behalf of any person who is
or was a representative of that corporation, or is or was serving
at the request of that corporation as a representative of another
corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person
and incurred by him in any such capacity, or arising out of his
status as such, whether or not that corporation would have the
power to indemnify that person against such liability under the
provisions described above.
In addition, the Restated By-laws of the Registrant require,
as described below, that the Registrant indemnify directors and
officers to the maximum extent permitted by law and also provide
for the mandatory advancement of expenses to directors in most
circumstances.
Section 7.1 of Article VII of the Restated By-laws provides
that the Registrant shall indemnify, to the fullest extent now or
hereafter permitted by law, each director or officer (including
each former director or officer) of the Registrant who was or is
made a party to or a witness in or is threatened to be made a
party to or a witness in any threatened, pending or competed
action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether external or internal
to the Registrant, by reason of the fact that he is or was an
authorized representative of the Registrant, against all expenses
(including attorneys' fees, disbursements and other charges),
judgments, fines (including excise taxes and penalties) and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suite or proceeding.
Section 7.2 of Article VII of the Restated By-laws further
provides that the Registrant shall pay expenses (including
attorneys' fees, disbursements and other charges) actually and
reasonably incurred by a director or officer of the Registrant
referred to in Section 7.1 of such Article in defending or
appearing as a witness in any civil or criminal action, suit or
proceeding. The expenses incurred by such director or officer
shall be paid by the Registrant in advance of the final
disposition of such action, suit or proceeding only upon receipt
of an undertaking by or on behalf of such director or officer to
repay all amounts advanced if it shall ultimately be determined
that he is not entitled to be indemnified by the Registrant, and
an irrevocable assignment to the Registrant of all payments to
which such director or officer may be or become entitled, under
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any policy of insurance or otherwise, in reimbursement of any
such expenses paid by the Registrant.
The Restated By-Laws provide that the rights of
indemnification and advancement of expenses provided for therein
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may otherwise
be entitled.
Section 7.9 of Article VII of the Restated By-Laws provides
that the Registrant may purchase and maintain insurance on behalf
of each director and officer against any liability asserted
against or incurred by such officer or director in any capacity,
or arising out of such director's or officer's status as such,
whether or not the Registrant would have the power to indemnify
such person against such liability under the provisions of such
Article VII.
The Registrant maintains directors' and officers' liability
insurance covering its directors and officers with respect to
liabilities, including liabilities under the Securities Act of
1933, as amended, which they may incur in connection with their
serving as such. Such insurance provides coverage for the
directors and officers against certain liabilities even though
such liabilities may not be covered by the indemnification
provisions of the Restated By-Laws.
As permitted by BCL Section 1713, the Restated By-Laws
provide that no director shall be personally liable for monetary
damages for any action taken, or failure to take any action,
except to the extent that such elimination or limitation of
liability is expressly prohibited by the Act of November 28, 1986
(P.L. No. 145) as in effect at the time of the alleged action or
failure to take actin by the director. The BCL states that this
exculpation from liability does not apply where the director has
breached or failed to perform the duties of his office and the
breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness, and does not apply to the
responsibility or liability of a director for payment of taxes
pursuant to Federal, state or local law. It may also not apply
to liabilities imposed upon directors by the Federal securities
laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
___________ ___________
4.1 Amended and Restated Articles of
Incorporation of Education Management
Corporation (incorporated by reference to
Exhibit 3.01(b) to the Registrant's
Registration Statement on Form S-1, filed
with the Commission on August 19, 1996 (File
No. 333-10385)).
4.2 Restated Bylaws of Education Management
Corporation, (incorporated by reference to
Exhibit 3.2(b) of the Registrant's
Registration Statement on Form S-1, filed
with the Commission on August 19, 1996 (File
No. 333-10385)).
5.1 Opinion of Kirkpatrick & Lockhart LLP as to
the legality of the shares being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkpatrick & Lockhart LLP
(included in the opinion filed as Exhibit
5.1).
24.1 Power of Attorney (set forth on the signature
page of this Registration Statement).
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
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the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated
by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereto.
* * *
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
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has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Pittsburgh, Commonwealth of Pennsylvania, on this 21st day of
January, 1997.
EDUCATION MANAGEMENT CORPORATION
By: /s/ William M. Webster, IV
__________________________
William M. Webster, IV
Executive Vice President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Frederick W.
Steinberg his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this registration
statement, and to file the same with all exhibits thereto, and
other documentation in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the date(s) indicated:
SIGNATURE CAPACITY DATE
_________ ________ ____
/s/ Robert B. Knutson Chairman of the January 21,
________________________ Board and Chief 1997
Robert B. Knutson Executive Officer
/s/ Robert T. McDowell Senior Vice January 21,
________________________ President and Chief 1997
Robert T. McDowell Financial and
Accounting Officer
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SIGNATURE CAPACITY DATE
_________ ________ ____
/s/ Miryam L. Knutson Vice Chairman of the January 21,
________________________ Board and a Director 1997
Miryam L. Knutson
/s/ James J. Burke, Jr. Director January 21,
________________________ 1997
James J. Burke, Jr.
/s/ Albert Greenstone Director January 21,
________________________ 1997
Albert Greenstone
/s/ Harvey Sanford Director January 21,
________________________ 1997
Harvey Sanford
/s/ Robert H. Atwell Director January 21,
________________________ 1997
Robert H. Atwell
/s/ William M. Campbell, Director January 21,
III 1997
________________________
William M. Campbell, III
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EXHIBIT INDEX
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION NUMBER
_______ ___________ __________
4.1 Amended and Restated
Articles of Incorporation of
Education Management
Corporation (incorporated by
reference to Exhibit 3.01(b)
to the Registrant's
Registration Statement on
Form S-1, filed with the
Commission on August 19,
1996 (File No. 333-10385)).
4.2 Restated Bylaws of Education --
Management Corporation,
(incorporated by reference
to Exhibit 3.2(b) of the
Registrant's Registration
Statement on Form S-1, filed
with the Commission on
August 19, 1996 (File No.
333-10385)).
5.1 Opinion of Kirkpatrick & 10
Lockhart LLP as to the
legality of the shares being
registered.
23.1 Consent of Arthur Andersen 11
LLP.
23.2 Consent of Kirkpatrick & --
Lockhart LLP (included in
opinion filed as Exhibit
5.1).
24.1 Power of Attorney (set forth --
on the signature page of
this Registration
Statement).
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Exhibit 5.1
January 21, 1997
Securities and Exchange Commission
450 Fifth Street
Judiciary Plaza
Washington, D.C. 20549
RE: REGISTRATION STATEMENT ON FORM S-8
__________________________________
Ladies and Gentlemen:
We are counsel to Education Management Corporation, a
Pennsylvania corporation (the "Registrant"), and in such capacity
we have acted as counsel to the Registrant in connection with the
Registrant's Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission relating to the registration under the
Securities Act of 1933, as amended, of an aggregate of 1,169,284
shares (the "Shares") of the Registrant's Common Stock, par value
$.01 per share, in connection with the Education Management
Corporation Management Incentive 1990 Stock Option Agreements,
the Education Management Corporation Management Incentive 1993
Stock Option Plan, and the Nonqualified Stock Option Agreement,
dated as of May 2, 1996, by and between William M. Webster, IV,
and the Registrant (collectively, the "Plans").
We are familiar with the Registration Statement and the
Plans, and we have examined the Registrant's Amended and Restated
Articles of Incorporation and the Registrant's Restated By-Laws.
We have also examined such other public and corporate documents,
certificates, instruments and corporate records, and such
questions of law, as we have deemed necessary or appropriate for
the purpose of this opinion.
Based on the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Plans, will be duly
authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement.
Yours truly,
/s/ Kirkpatrick & Lockhart LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of our report dated August 16, 1996,
which was previously included into the Form S-1 filed by
Education Management Corporation with the Securities and Exchange
Commission (File No. 333-10385), into this Registration Statement
and to all references to our Firm included in this Registration
Statement.
January 21, 1997 /s/ Arthur Andersen LLP
