NON-STATUTORY STOCK OPTION AGREEMENT
This Option Agreement is made and entered into by and between APOLLO GROUP, INC., an Arizona
corporation (hereinafter referred to as the “Company”), and
(hereinafter referred to as “Employee”), as of
, 200___ (which date is hereinafter
referred to as the “Date of Grant”). If Employee is presently or subsequently becomes employed by
a subsidiary of the Company, the term “Company” shall be deemed to refer collectively to Apollo
Group, Inc. and the subsidiary or subsidiaries which employ the Employee.
RECITALS
A. The Company has adopted the Apollo Group, Inc. 2000 Incentive Plan (the “Plan”) as an
equity incentive program to encourage key employees and officers of the Company to remain in its
employment and to enhance the ability of the Company to attract new employees whose services are
considered valuable by providing them with an opportunity to acquire a proprietary interest in the
success of the Company.
B. The Compensation Committee of the Company’s Board of Directors (the “Committee”) has the
authority to grant options pursuant to the Plan to certain officers and key employees of the
Company in order to provide such individuals with an incentive to continue in the Company’s
service.
C. The Committee did authorize the grant of the Option evidenced by this Agreement to Employee
on the Date of Grant in order to carry out the intent and purpose of the Plan in providing a
substantial equity incentive to encourage the Employee to continue in the Company’s service and to
contribute to its financial success.
NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
1. Grant of Option. Employee is hereby granted the right and option (the “Option”) to
purchase an aggregate of
shares of the Company’s Class A common stock (the “Option
Shares”) under the Plan upon the terms and conditions set forth in this Agreement. The Option is a
non-statutory option under the federal income tax laws and is not intended to be an incentive stock
option subject to Section 422 of the Internal Revenue Code.
2. Exercise Price. The price per share at which Employee shall be entitled to
purchase the Option Shares pursuant to this Option shall be $ (the “Exercise Price”). Such
Exercise Price is equal to the Fair Market Value per share of the Company’s Class A common stock on
the Date of Grant.
3. Option Term. The Option hereby granted shall remain in force and effect for a
period of six (6) years measured form the Date of Grant and shall accordingly expire at the close
of business on
, 20___ (the “Expiration Date”), subject to earlier termination as provided
in paragraphs 8 and 9 hereof.
4. Vesting Schedule. The Option shall vest and become exercisable for the Option
Shares in a series of four (4) successive equal annual installments upon Optionee’s completion of
each successive year of employment with the Company over the four (4) year period measured from
,
200 ____. The foregoing four (4)-year installment vesting provision shall constitute the
Vesting Schedule for the Option. However, the Option may vest and become exercisable on an
accelerated basis in accordance with the special vesting acceleration provisions of Paragraph 5. As
the Option vests and becomes exercisable for one or more installments of the Option Shares, those
installments shall accumulate, and the Option shall remain exercisable for the accumulated
installments until the Expiration Date or sooner termination of the option term under Paragraph 8
or 9.
5. Special Acceleration of Option.
(a) The Option, to the extent outstanding at the time of a Change in Control transaction but
not otherwise fully exercisable at that time, shall automatically accelerate so that the Option
shall, immediately prior to the effective date of such Change in Control, vest and become
exercisable for all of the Option Shares at the time subject to the Option and may be exercised for
any or all of those Option Shares as fully vested shares of Class A Common Stock.
(b) Immediately following the Change in Control, the Option shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or parent thereof) or
otherwise continued in effect pursuant to the terms of the Change in Control transaction.
(c) If the Option is assumed in connection with a Change in Control or otherwise continued in
effect, then the Option shall be appropriately adjusted, immediately after such Change in Control,
to apply to the number and class of securities into which the shares of Class A Common Stock
subject to the Option would have been converted in consummation of such Change in Control had those
shares actually been outstanding at the time. Appropriate adjustments shall also be made to the
Exercise Price, provided the aggregate Exercise Price shall remain the same. To the extent the
actual holders of the Company’s outstanding Class A Common Stock receive cash consideration for
their Class A common stock in consummation of the Change in Control, the successor corporation may,
in connection with the assumption or continuation of this Option, substitute one or more shares of
its own common stock with a fair market value equivalent to the cash consideration paid per share
of Class A Common Stock in such Change in Control, provided such common stock is readily tradable
on an established U.S. securities exchange or market.
(d) The term “Change in Control” shall have the meaning assigned to such term in Section 3.1
(e) of the Plan.
(e) This Agreement shall not in any way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.
2
6. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by timely delivery to the Company of written notice which
shall become effective on the date received by the Company (the “Effective Date”). The notice
shall state Employee’s election to exercise the Option, the number of Option Shares for which the
election to exercise has been made, the method of payment elected pursuant to paragraph 7 hereof,
the exact name or names in which the purchased Option Shares are to be registered and the Social
Security Number of Employee. Such notice shall be signed by the Employee and shall be accompanied
by payment of the Exercise Price for such shares. In the event the Option shall be exercised by a
person or persons other than Employee pursuant to paragraph 9(a) hereof, such notice shall be
signed by such other person or persons and shall be accompanied by proof acceptable to the Company
of the legal right of such person or persons to exercise the Option. All shares delivered by the
Company upon exercise of the Option as provided herein shall be fully paid and non-assessable upon
delivery.
7. Method of Payment. Payment of the Exercise Price for the Option Shares purchased
upon the exercise of this Option shall be made by Employee (i) in cash, (ii) through a
broker-assisted same day exercise and sale procedure pursuant to which the broker shall immediately
sell, on behalf of the Employee or such other person exercising the Option, all or a portion of the
Option Shares acquired upon exercise of the Option and remit to the Company, on the settlement date
for such sale, a sufficient amount of the sale proceeds to cover the Exercise Price payable for all
the Option Shares purchased through such exercise and the applicable withholding taxes, (iii)
through such other method permitted by the Committee or (iv) through any combination of the above.
8. Termination of Employment.
(a) Should Employee’s employment terminate other than for Cause or by reason of his or her
death or Disability, then Employee may at any time within the three (3)- month period measured from
the effective date of such termination of employment exercise the Option for any or all of the
Option Shares for which this Option is exercisable, either in accordance with the Vesting Schedule
or the special vesting acceleration provisions of paragraph 5, at the date of such termination of
employment; provided, however, that in no event shall the Option, or any part thereof, be
exercisable after the Expiration Date.
(b) If Employee’s employment is terminated for Cause, the Option shall lapse and cease to be
exercisable for any of the Option Shares immediately at the time of such termination of Employee’s
employment. For purposes of this Agreement, the term “Cause” shall have the meaning assigned to
such term in Section 3.1(d) of the Plan.
(c) If Employee is employed on the Date of Grant in a capacity other than (or in addition to)
a faculty member, then the Employee shall be deemed for purposes of this paragraph 8 to have
terminated employment upon the earlier of (i) the date he or she ceases for any reason to be
employed by the Company or any Subsidiary or (ii) the first date on which Employee remains employed
by the Company or any Subsidiary solely in the capacity of a faculty member.
3
9. Employee’s Death or Disability.
(a) In the event of the death of Employee within a period during which the Option, or any part
thereof, could have been exercised by Employee, including the three (3)-month period measured from
the date of his or her termination of employment other than for Cause, this Option shall remain
exercisable for an additional period (the Post-Death Period) ending upon the earlier of (i) the
expiration of the twelve (12)-month period measured from the date of Employee’s death or (ii) the
Expiration Date. During the Post-Death Period, this Option may be exercised by the Employee’s legal
representative or representatives or by the person or persons entitled to do so under Employee’s
last will and testament or if Employee fails to make a testamentary disposition of this Option or
shall die in testate, by the person or persons entitled to receive this Option under the applicable
laws of descent and distribution. However, this ption may only be exercised during the Post-Death
Period for one or more of the Option Shares (if any) for which this Option is exercisable, either
in accordance with the Vesting Schedule or the special vesting acceleration provisions of paragraph
5, at the time of Employee’s death. The Company shall have the right to require evidence
satisfactory to it of the rights of any person or persons seeking to exercise the Option under this
paragraph 9(a).|
(b) In the event Employee’s employment terminates by reason of his or her Disability, then
Employee may at any time within the twelve (12)-month period measured from the date of such
termination of employment exercise the Option for any or all of the Option Shares for which this
Option is exercisable, either in accordance with the Vesting Schedule or the special vesting
acceleration provisions of paragraph 5, on the date of such termination of employment; provided,
however, that in no event shall the Option, or any part thereof, be exercisable after the
Expiration Date. For purposes of this Agreement, the term “Disability” shall have the meaning
assigned to such term in Section 3.1(i) of the Plan.|
10. Transfer of Employee. Except as otherwise provided in paragraph 8(c) hereof, in
the event Employee ceases to be an employee of the Company and becomes an employee of one of the
Company’s subsidiaries as the result of a transfer, promotion or otherwise, the Option shall remain
unchanged.
11. Nontransferability. The Option evidenced by this Agreement shall be exercisable
only during the term of the Option provided in paragraph 4 hereof and, except as provided in
paragraph 8 or 9 above, only by Employee during his or her lifetime and while an Employee of the
Company. The Option evidenced by this Agreement shall be subject to the restrictions on transfer
as set forth in section 13. 5 of the Plan.
12. Stockholder Rights. The holder of this Option shall not have any stockholder
rights with respect to the Option Shares until such person shall have exercised the Option, paid
the Exercise Price and become a holder of record of the purchased shares.
13. Adjustments in Number of Option Shares and Exercise Price. In the event a stock
dividend is declared upon the outstanding Class A common stock after the Date of Grant, the number
of Option Shares then subject to this Option shall be increased proportionately and the Exercise
Price per share shall be equitably adjusted to reflect such stock dividend without any change in
the aggregate Exercise Price therefor. Should any change be made to the
4
Class A common stock by reason of any stock split, recapitalization, combination of shares,
exchange of shares, spin-off transaction, extraordinary dividend or distribution or other change
affecting the outstanding Class A common stock as a class without the Company’s receipt of
consideration, or should the value of the outstanding shares of Class A common stock be
substantially reduced as a result of a spin-off transaction or an extraordinary dividend or
distribution, or should there occur any merger, consolidation or other reorganization, then
equitable adjustments shall be made by the Committee to (i) the total number and/or class of
securities subject to this Option and (ii) the Exercise Price payable per share, but without any
change in the aggregate Exercise Price therefor. The adjustments shall be made in such manner as
the Committee deems appropriate in order to reflect such change and thereby prevent the dilution or
enlargement of benefits hereunder, and those adjustments shall be final, binding and conclusive
upon Employee and any other person or persons having an interest in this Option; provided, however,
that in the event of a Change of Control, the adjustments (if any) shall be made in accordance with
the applicable provisions of Section 13.8 of the Plan governing Change of Control transactions.
Notwithstanding the above, the conversion of any convertible securities of the Company shall not be
deemed to have been effected without the Company’s receipt of consideration.
14. Delivery of Shares. No shares shall be delivered upon exercise of the Option
until (i) the Exercise Price for those shares shall have been paid in full in the manner herein
provided; (ii) all applicable taxes required to be withheld shall have been paid or withheld in
full; and (iii) the approval of any governmental authority required in connection with the Option,
or the issuance of shares hereunder, shall have been received by the Company.
15. Compliance with Laws and Regulations.
(a) The exercise of this Option and the issuance of the Option Shares upon such exercise shall
be subject to compliance by the Company and Employee with all applicable requirements of law
relating thereto and with all applicable regulations of any stock exchange on which the Class A
common stock may be listed for trading at the time of such exercise and issuance.
(b) The inability of the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance and sale of any Class A common stock
pursuant to this Option shall relieve the Company of any liability with respect to the non-issuance
or sale of the Class A common stock as to which such approval shall not have been obtained. The
Company, however, shall use its best efforts to obtain all such approvals.
(c) The Company shall not be required to deliver any shares of the Company’s Class A common
stock pursuant to the exercise of all or any part of the Option if, in the opinion of counsel for
the Company, such issuance would violate the Securities Act of 1933 or any other applicable federal
or state securities laws or regulations.
16. Federal and State Taxes. Upon exercise of this Option, or any part thereof,
Employee may incur certain liabilities for federal, state or local taxes and the Company may be
required by law to withhold such taxes for payment to the applicable taxing authorities.
5
Employee may satisfy the payment of any federal, state, or local tax withholding amounts due
as a result of the exercise of this Option by (i) delivering to the Company that number of shares
of the Company’s Class A common stock then owned by the Employee, duly endorsed for transfer to the
Company and free and clear of any liens, claims, security interests, or encumbrances, which have an
aggregate Fair Market Value on the date this Option is exercised equal to such tax withholding
amount, (ii) delivering to the Company cash, a check or other form of payment permitted by the
Committee in the aggregate amount required to satisfy such tax withholding amount or (iii) using a
portion of the sale proceeds of the purchased Option Shares to satisfy such tax withholding amount,
to the extent Employee exercises the Option pursuant to the sale and remittance procedure set forth
in paragraph 7 hereof.
17. Definitions; Copy of Plan. To the extent not specifically provided herein, all
capitalized terms used in this Agreement shall have the same meanings ascribed to them in the Plan
is granted. By the execution of this Agreement, Employee acknowledges receipt of a copy of the
Plan and the official prospectus for the Plan.
18. Administration. This Agreement shall at all times be subject to the terms and
conditions of the Plan, and such Plan shall in all respects be administered by the Committee in
accordance with the terms of and as provided in the Plan. The Committee shall have the sole and
complete discretion with respect to all matters reserved to it by the Plan, and decisions of the
Committee with respect thereto and to this Agreement shall be final and binding upon Employee (or
any other person with an interest in this Option) and the Company. In the event of any conflict
between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall
control.
19. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company at its principal corporate
offices. Any notice required to be given or delivered to Employee shall be in writing and
addressed to Employee at the address indicated below Employee’s signature line on this Agreement.
All notices shall be deemed effective upon personal delivery or upon deposit in the U.S. mail,
postage prepaid and properly addressed to the party to be notified.
20. Successors and Assigns. Except to the extent otherwise provided in this
Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns and Employee and the legal representatives, heirs and
legatees of Employee’s estate.
21. Continuation of Employment. This Agreement shall not be construed to confer upon
Employee any right to continue in the employ of the Company and shall not limit the right of the
Company, in its sole discretion, to terminate the employment of Employee at any time.
22. Obligation to Exercise. Employee shall have no obligation to exercise this Option
in whole or in part.
23. Governing Law. This Agreement shall be interpreted and administered under the
laws of the State of Arizona.
6
24. Amendments. This Agreement may be amended only by a written agreement executed by
the Company and Employee. The Company and Employee acknowledge that changes in federal tax laws
enacted subsequent to the Date of Grant, and applicable to stock options, may provide for tax
benefits to the Company or Employee. In any such event, the Company and Employee agree that this
Agreement may be amended as necessary to secure for the Company and Employee any benefits that may
result from such legislation. Any such amendment shall be made only upon the mutual consent of the
parties, which consent (of either party) may be withheld for any reason.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officers
thereunto duly authorized and Employee has executed this Agreement as of the date first written
above.
| APOLLO GROUP, INC. | EMPLOYEE | |||||||
By: |
||||||||
Title:
|
Address: | |||||||
7
