APOLLO GROUP, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
APOLLO GROUP, INC.
This Option Agreement is made and entered into by and between APOLLO GROUP, INC., an Arizona
corporation (the “Corporation”), and ___, a non-employee member of the
Corporation of Board of Directors (the “Director”), as of
___, 200___ (the “Date of Grant”).
RECITALS
A. The Corporation adopted the Apollo Group, Inc. 2000 Incentive Plan (the “Plan”) as an
equity incentive program to encourage key employees and officers of the Corporation and the
non-employee members of its Board of Directors (the “Board”) to remain in the employ or service of
the Corporation by providing them with an opportunity to acquire a proprietary interest in the
success of the Corporation.
B. The Compensation Committee of the Board (the “Committee”) has the authority to grant
options pursuant to the Plan to certain officers and key employees of the Corporation and the
non-employee members of the Board in order to provide such individuals with an incentive to
continue in the Corporation’s service.
C. The Committee did authorize the grant of the Option evidenced by this Agreement to
Director 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 Director to continue in the Corporation’s service.
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 Corporation and Director agree as follows:
1. Grant of Option. The Corporation hereby grants to Director, on the Date of Grant,
the right and option (the “Option”) to purchase up to
___ shares of the Corporation’s
Class A common stock (the “Option Shares”) under the Plan upon the terms and conditions set forth
in this Agreement.
2. Exercise Price. The price per share at which Director 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 shall have a term of ten (10) years measured from the Date
of Grant and shall accordingly expire at the close of business on
___, 20___ (the
“Expiration Date”), unless sooner terminated in accordance with Paragraph 5 or 6.
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4. Vesting of Option. The Option shall vest and become exercisable for the Option
Shares upon the Director’s continuation in Board service until
___, 200 ___. However, the
Option may vest and become exercisable on an accelerated basis in accordance with the special
vesting acceleration provisions of Paragraph 5. Once the Option vests and becomes exercisable for
the Option Shares, the Option shall remain exercisable for such shares until the Expiration Date or
sooner termination of the option term under Paragraph 5 or 6.
5. Special Acceleration of Option.
(a) The Option, to the extent outstanding at the time of a Change in Control transaction but
not otherwise exercisable for the Option Shares 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 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.
6. Cessation of Service. Should Director cease Board service while this Option
remains outstanding, then the option term specified in paragraph 3 shall terminate (and this Option
shall cease to be outstanding) prior to the Expiration Date in accordance with the following
provisions:
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(a) Should Director cease Board service for any reason other than death or Disability while
this Option is outstanding, then the period during which this Option may be exercised shall be
reduced to a three (3)-month period measured from the date of such cessation of Board service, but
in no event shall this option be exercisable at any time after the Expiration Date. During such
limited period of exercisability, Director may not exercise this Option in the aggregate for more
than the number of Option Shares (if any) in which Director is vested on the date of his or her
cessation of Board service. Upon the earlier of (i) the expiration of such three (3)-month period
or (ii) the specified Expiration Date, the Option shall terminate and cease to be exercisable with
respect to any vested Option Shares for which the Option has not been exercised.
(b) In the event of the death of Director within a period during which the Option, or any part
thereof, could have been exercised by Director, including the three (3)-month period measured from
the date of his or her cessation of Board service, 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 Director’s death or (ii) the Expiration Date.
During the Post-Death Period, this Option may be exercised by the Director’s legal representative
or representatives or by the person or persons entitled to do so under Director’s last will and
testament or if Director 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 Option may only be exercised during the Post-Death Period
for any Option Shares for which this Option is exercisable, either in accordance with vesting
provisions of paragraph 4 or the special vesting acceleration provisions of paragraph 5, at the
time of Director’s death. The Corporation 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 subparagraph
6(b).
(c) Should Director cease Board service by any reason of his or her Disability while this
Option is outstanding, then Director may at any time within the twelve (12)-month period measured
from the date of such cessation of Board service exercise the Option for any or all of the Option
Shares for which this Option is exercisable, either in accordance with the vesting provisions of
paragraph 4 or the special vesting acceleration provisions of paragraph 5, on the date of such
cessation of Board service; 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.
(d) Upon Optionee’s cessation of Board service for any reason, this Option shall immediately
terminate and cease to be outstanding with respect to any and all Option Shares in which Director
is not otherwise at that time vested in accordance with the vesting provisions of paragraph 4 or
the special vesting acceleration provisions of paragraph 5.
7. Nontransferability. The Option evidenced by this Agreement shall be exercisable
only during the term of the Option provided in paragraph 3 hereof and, except as provided in
paragraph 6 above, only by Director during his or her lifetime and while serving as a
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Board member. The Option evidenced by this Agreement shall be subject to the restrictions on
transfer as set forth in section 13. 5 of the Plan.
8. 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 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 Director 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.
9. 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 obtained by the Corporation.
10. 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.
11. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by timely delivery to the Corporation of written notice
which shall become effective on the date received by the Corporation (the “Effective Date”). The
notice shall state Director’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
12 hereof, the exact name or names in which the purchased Option Shares are to be registered and
the Social Security Number of Director. Such notice shall be signed by Director 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 Director pursuant to subparagraph 6(b) hereof, such
notice shall be signed by such other person or persons and shall be
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accompanied by proof acceptable to the Corporation 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.
12. Method of Payment. Payment of the Exercise Price for the Option Shares purchased
upon the exercise of this Option shall be made by Director (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 Director 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 Corporation, 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, (iii) through such other method
permitted by the Committee or (iv) through any combination of the above.
13. 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 Corporation and Director 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 Corporation to obtain approval from any regulatory body having
authority deemed by the Corporation to be necessary to the lawful issuance and sale of any Class A
common stock pursuant to this Option shall relieve the Corporation 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 Corporation, however, shall use its best efforts to obtain all such approvals.
(c) The Corporation shall not be required to deliver any shares of the Corporation’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 Corporation, such issuance would violate the Securities Act of 1933 or any other
applicable federal or state securities laws or regulations.
14. 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, Director acknowledges receipt of a copy of the
Plan and the official prospectus for the Plan.
15. 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 Director (or
any other person with an interest in this Option) and the Corporation. In the event of any
conflict between the terms and conditions of this Agreement and the Plan, the provisions of the
Plan shall control.
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16. Notices. Any notice required to be given or delivered to the Corporation under
the terms of this Agreement shall be in writing and addressed to the Corporation at its principal
corporate offices. Any notice required to be given or delivered to Director shall be in writing
and addressed to Director at his or her most recent address then on file with the Corporation. 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.
17. 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
Corporation and its successors and assigns and Director and the legal representatives, heirs and
legatees of Director’s estate.
18. Governing Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Arizona without resort to that State’s
conflict-of-laws rules.
19. Obligation to Exercise. Director shall have no obligation to exercise this Option
in whole or in part.
20. Amendments. This Agreement may be amended only by a written agreement executed by
the Corporation and Director. The Corporation and Director 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 Corporation and Director In any such event, the Corporation and Director agree
that this Agreement may be amended as necessary to secure for the Corporation and Director 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 Corporation has caused this Agreement to be duly executed by its
officers thereunto duly authorized and Director has executed this Agreement as of the date first
written above.
| APOLLO GROUP, INC. | DIRECTOR | |||
By: |
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| «Name» | ||||
Title: |
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