exv10w27



 





Exhibit
10.27




Execution




JOINT VENTURE AGREEMENT




          THIS JOINT VENTURE AGREEMENT (this “Agreement”) is made and entered into as of October
22, 2007, by and between Apollo Group, Inc., an Arizona corporation (“Apollo”), Carlyle
Venture Partners III, L.P., a Delaware limited partnership (“Carlyle”, and together with
Apollo and each Affiliate of Apollo and Carlyle that hereafter becomes an owner of shares of the
Company’s capital stock, the “Participants”) and Apollo Global, Inc., a Delaware
corporation (the “Company”).





          WHEREAS, Apollo and Carlyle have formed the Company under
Delaware law (the “Company”) to acquire, own and operate international education services
businesses outside of the United States of America (the “Business”);




          WHEREAS, the Participants will acquire, pursuant to the terms and conditions of this
Agreement, certain shares of the Company’s Common Stock, par value $.001 per share (the “Common
Stock”); and




          WHEREAS, the Participants intend that the transactions contemplated hereby shall qualify as
part of an exchange of property for equity interests under §351 of the Internal Revenue Code;




          NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein,
the parties hereto agree as follows:




ARTICLE I

DEFINITIONS



1.1 Certain Definitions. As used in this Agreement, the following terms shall have the
indicated meanings, unless the context otherwise requires:





“Acquisition” means the acquisition by the Company or any Subsidiary of (i) all or
substantially all of the capital stock or other equity interests of another Person, whether
by merger, consolidation, direct or indirect purchase or otherwise, and (ii) all or
substantially all of the assets of another Person.




“Additional Agreements” means, collectively, the Shareholders’ Agreement, the
Support Services Agreement and the Registration Rights Agreement.




“Affiliate” of a Person means any other Person, entity or investment or
co-investment fund directly or indirectly controlling, controlled by or under common control
with the Person and, in the case of a Person which is an entity, any shareholder , member,
partner



 









 







or other equity holder of such Person, which, in each case, beneficially owns at least 10%
of the outstanding voting interests of the Person. Each fund managed by Carlyle or an
Affiliate of Carlyle shall be an Affiliate of Carlyle for purposes of this Agreement, and no
portfolio company of Carlyle or its Affiliates shall be considered an Affiliate of Carlyle
or such Affiliate for purposes of this Agreement.




“Apollo Board” means the Board of Directors of Apollo.




“Board” means the Board of Directors of the Company.




“Business Day” means any day other than a Saturday, Sunday or bank holiday in New
York.




“Business Plan” shall have the meaning ascribed to it in Section 6.1(f) hereto.




“Carlyle Investment Committee” means the Carlyle Venture Partners Investment
Committee.




“Fair Market Value” means the then current fair market value of shares of Company
Stock as determined in good faith by the Board with reference to each of (i) the fair market
value of Persons which are market comparables of the Company and (ii) a market-based
multiple of EBITDA for the Company’s trailing twelve (12) months and anticipated EBITDA for
the Company’s following twelve (12) months, in each case with appropriate adjustments for
nonrecurring or extraordinary expenses and payments to Affiliates of the Company and without
any discount for lack of marketability, restrictions on transfer or minority status of the
            shares of Company Stock. Notwithstanding the immediately preceding sentence, in the event
that the Carlyle Investment Committee has decided not to make additional contributions to
the capital of the Company which is the subject of a Call Notice pursuant to Section 3.2(a),
then from and after such decision, Fair Market Value shall be determined in accordance with
the parameters set forth in this definition by the Valuation Firm, which shall reflect its
determination in a written report (a “Valuation Report”) delivered to each of the
Company, Carlyle and Apollo, provided however that the Board, not the
Valuation Firm, shall determine the fair market value of shares of Company Stock in
accordance with the parameters set forth in this definition which are the subject of Call
Notices to Carlyle for dollar amounts of less than $2,000,000 so long as the aggregate
dollar amounts subject to Call Notices to Carlyle in any twelve (12) month period does not
exceed $7,500,000 (and in the event of such excess, the Valuation Firm, not the Board, shall
determine the fair market value of shares of Company Stock from and after the date of such
excess).




“International Students” means actual or prospective students (including leads for
prospective students) who (i) reside outside of the United States of America and its



2









 







territories; (ii) are not active duty members of the uniformed services of the United States
of America and (iii) are not citizens of the United States of America.




“Person” means an individual, a partnership, a corporation, an association, a
joint stock company, a trust, a joint venture, a limited liability company, an
unincorporated organization and a governmental entity or any department, agency or political
subdivision thereof.




“Prime Rate” means the then-current prime rate as announced by Citibank N.A.




“Purchased Shares” means, with respect to a Participant, any shares of Common Stock
purchased by such Participant hereunder; and, generally, all such shares purchased
hereunder.




“Shareholders’ Agreement Joinder Agreement” shall mean a joinder agreement in
substantially the form attached as Exhibit A to the Shareholders’ Agreement.




“Specified Fraction” is a fraction (i) the numerator of which is the dollar amount,
if any, proposed in a Call Notice to be used to provide additional funds to the Company, or
to a Subsidiary of the Company which completed the Acquisition, for working capital, capital
expenditures or other obligations or commitments of the target of the Acquisition and (ii)
the denominator of which is the total dollar amount reflected in such Call Notice.




“Valuation Firm” means a nationally recognized Person that provides financial
advisory or valuation services, has experience in the postsecondary education sector and is
acceptable to each of Apollo and Carlyle.


Defined terms which are used in this Agreement but not expressly defined herein shall have the
meanings ascribed to such terms in the Shareholders’ Agreement.



1.2 Construction. Any reference in this Agreement to an Article, Section, subsection,
paragraph, clause, Schedule or Exhibit shall be deemed to be a reference to an Article, Section,
subsection, paragraph, clause, Schedule or Exhibit to, this Agreement, unless otherwise indicated.
The Schedules and Exhibits to this Agreement are incorporated herein by reference and shall be
deemed a part of this Agreement.



1.3 Certain Conventions. Unless the context of this Agreement otherwise requires, (a)
words of any gender include each other gender, (b) words such as “herein”, “hereof”, and
“hereunder” refer to this Agreement as a whole and not merely to the particular provision in which
such words appear, (c) words using the singular shall include the plural, and vice versa and (d)
the words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.”




3









 








ARTICLE II

FORMATION OF THE COMPANY




     Contemporaneously with the execution and delivery of this Agreement, Apollo and Carlyle have
formed the Company by (i) filing with the Secretary of State of the State of Delaware a Certificate
of Incorporation in the form attached hereto as Exhibit A (the “Certificate of
Incorporation”)and (ii) causing the Company to adopt Bylaws in the form attached hereto as
Exhibit B (the “Bylaws”).



ARTICLE III

CAPITALIZATION OF THE COMPANY



3.1 Initial Shares. Subject to the terms and conditions of this Agreement, Apollo shall
purchase from the Company eight thousand (8,000) shares of Common Stock and Carlyle shall purchase
from the Company two thousand (2,000) shares of Common Stock, in each case at a purchase price per
share of $1,000 (such shares, with respect to the purchasing Participant, its “Initial
Shares”). Each of Apollo and Carlyle shall purchase its Initial Shares on the Initial Closing
Date.



3.2 Obligatory Additional Shares. Subject to the terms and conditions of this Agreement,
(i) so long as Apollo is a stockholder in the Company, Apollo shall purchase up to the number of
additional shares of Common Stock which have an aggregate purchase price of $793,000,000 and (ii)
so long as Carlyle is a stockholder in the Company, Carlyle and its Affiliates (provided, that the
number of such Affiliates of Carlyle shall not exceed twenty (20)) shall purchase up to additional
shares of Common Stock which have an aggregate purchase price of $197,000,000, in each case at a
purchase price per share of Fair Market Value on the date of purchase, except as otherwise provided
in Section 3.2(d) (such shares, with respect to the purchasing Participant, its “Obligatory
Additional Shares”). Notwithstanding the immediately preceding sentence, Apollo shall not be
obligated on any date to purchase Obligatory Additional Shares with an aggregate purchase price
that exceeds four times the aggregate purchase price of Obligatory Additional Shares purchased by
Carlyle and its Affiliates through and including such date. Any purchase by Carlyle or its
Affiliates of Obligatory Additional Shares hereunder shall only be required to be made upon the
prior approval of the Carlyle Investment Committee, which approval may be given or withheld in its
sole discretion. Any purchase by Apollo of Obligatory Additional Shares hereunder shall only be
required to be made upon the prior approval of the Apollo Board, which approval may be given or
withheld in its sole discretion. Except as specifically provided in the Shareholders’ Agreement,
no rights of Apollo or Carlyle under this Agreement or any Additional Agreement shall be affected
by any decision of the Apollo Board or the Carlyle Investment Committee not to purchase Obligatory
Additional Shares. Each Participant shall purchase its Obligatory Additional Shares in accordance
with the following procedure:




4









 








     (a) As and when the growth of the Business requires the Company to make Acquisitions within
the Investment Scope and other investments and expenditures which are consistent with both the
Investment Scope and the Business Plan (as from time to time in effect), the Board shall deliver to
each Participant a written notice in accordance with Section 10.1 specifying the dollar amount
(which shall be evenly divisible by $1,000) of the Company’s capital requirements in connection
with such purchases or investments and the specific use or uses of such dollar amount by the
Company (each such notice, a “Call Notice”), provided however, that no Call
Notice relating to a proposed Acquisition that has an enterprise value in excess of $50,000,000 and
that requires the Company to incur incremental debt or equity financing shall be delivered by the
Company without the prior written consent of Carlyle. Each Call Notice shall include either a
written determination of Fair Market Value per share of Common Stock by the Board or a Valuation
Report, as described in the definition of Fair Market Value. Apollo and Carlyle shall cause the
Company to issue, and the Company shall issue, a number of shares of Common Stock equal to the
dollar amount specified in the Call Notice divided by the then current Fair Market Value per share
of Common Stock.



     (b) If the Apollo Board and the Carlyle Investment Committee have each approved the purchase
of Obligatory Additional Shares pursuant to corresponding Call Notices, Apollo and Carlyle and its
Affiliates shall each purchase shares of Common Stock issued pursuant to Section 3.2(a) on the
basis of 80.1% of the aggregate number of shares of Common Stock and 19.9% of the aggregate number
of shares of Common Stock, respectively. If the Apollo Board approves the purchase of Obligatory
Additional Shares pursuant to a Call Notice, but the Carlyle Investment Committee does not approve
the purchase of Obligatory Additional Shares pursuant to the corresponding Call Notice, then Apollo
may, in its sole discretion (i) have the corresponding Call Notice to Apollo rescinded and of no
further force or effect, (ii) purchase its Obligatory Additional Shares, or (iii) purchase all of
the Obligatory Additional Shares. If the Apollo Board does not approve the purchase of Obligatory
Additional Shares pursuant to a Call Notice, Carlyle may, in its sole discretion, (i) have the
corresponding Call Notice to Carlyle rescinded and of no further force or effect, (ii) purchase its
Obligatory Additional Shares, or (iii) purchase all of the Obligatory Additional Shares. The
Company agrees to rescind each Call Notice described in clause (i) of each of the two preceding
sentences promptly upon the request of Apollo or Carlyle as specified in such sentences but in any
event before the date for a Subsequent Closing scheduled in the Call Notice. The closing of such
purchases (each such closing pursuant to a Call Notice, a “Subsequent Closing”), which
shall occur simultaneously, shall occur on or before the tenth (10th) Business Day
following the date of the relevant Call Notice, or on such other date as Carlyle and Apollo may
agree upon in writing. The date on which any Subsequent Closing is held is referred to in this
Agreement as a “Subsequent Closing Date”.



     (c) For avoidance of doubt, the Participants shall not cause the Company to issue pursuant to
Section 3.2(a), and the Participants shall not be required to purchase pursuant to Section 3.2(b),
any Obligatory Additional Shares in excess of the number of shares set forth in the first paragraph
of this Section 3.2.



     (d) Notwithstanding any other provision of this Agreement, including without limitation
Section 3.2(a), in the event that the Carlyle Investment Committee has not approved the purchase of



5









 







Obligatory Additional Shares which relates to an Acquisition and the Board subsequently issues
one or more Call Notices to the Participants which total either (x) $25,000,000 for a single
subsequent Closing or (y) $75,000,000 for all Subsequent Closings in any twelve (12) month period
in each case with the specific use or uses of the dollar amounts that are the subject of such Call
Notices being to provide additional funds to the Company, or a Subsidiary of the Company which
completed such Acquisition, for working capital, capital expenditures or other obligations or
commitments of the target of the Acquisition and the Carlyle Investment Committee does not approve,
in its sole discretion, the purchase of Obligatory Additional Shares which are the subject of such
subsequent Call Notices, then the Specified Fraction of the Obligatory Additional Shares, if any,
purchased by Apollo and its Affiliates shall be purchased at a price described in the following
sentence, with the remainder of the Obligatory Additional Shares that are the subject of such Call
Notice purchased by Apollo and its Affiliates at Fair Market Value. For each subsequent Call
Notice described in the preceding sentence, the price at which Apollo and its Affiliates shall
purchase the Specified Fraction of the Obligatory Additional Shares shall be one and one-half times
the current Fair Market Value per share of Common Stock.



          (e) The obligation of Apollo to purchase its Obligatory Additional Shares shall be the direct
obligation of Apollo and shall be enforceable by the Company and Carlyle. The obligation of
Carlyle to purchase its Obligatory Additional Shares shall be the direct obligation of Carlyle and
shall be enforceable by the Company and Apollo against Carlyle. The failure of a Participant which
is required to purchase its Obligatory Additional Shares pursuant to Sections 3.2(b), 6.1 and 6.2
shall constitute a material breach of this Agreement by such Participant. If a Participant fails
to so purchase its Obligatory Additional Shares, all amounts distributable by the Company to such
Participant in any capacity (whether by dividend, distribution, payment under an Additional
Agreement or otherwise) shall be suspended, and the Participant’s (or Carlyle’s, in the case of a
Participant that is an Affiliate of Carlyle) right to receive distributions from the Company shall
not be restored until such Participant shall have paid in full to the Company the consideration due
in connection with such Obligatory Additional Shares, plus interest thereon at the Prime
Rate annually, calculated from the date such consideration should have been paid to the date it is
paid by such Participant.




     (f) The Participants acknowledge that the purchase of any Obligatory Additional Shares
hereunder may be made through the contribution of assets owned by either Apollo or Carlyle
(“Contributed Assets”). Each of Carlyle and Apollo may request that, in addition to the
assets of Apollo and its Subsidiaries that are primarily or fully dedicated to enrolling or serving
International Students and the university owned by Apollo with half of its campuses presently
located outside of the United States of America referred to in Section 10.1, the other consider the
advisability of the contribution to the Company of Contributed Assets owned by either of Carlyle or
Apollo and, upon the prior written consent of Apollo or Carlyle, as the case may be, Apollo, the
Company and Carlyle shall proceed with a due diligence investigation of the Contributed Assets and
the valuation thereof. Apollo and Carlyle shall use their good faith efforts to mutually determine
the fair market value of any Contributed Assets and, subject to the terms of the Mutual
Nondisclosure Agreement between Apollo and Carlyle Management L.L.C. dated August 2, 2007 (the
“Confidentiality Agreement”), the Participant contributing assets shall, and shall cause
its Subsidiaries to, afford to the other Participant’s officers, directors, employees, accountants,
counsel, consultants, advisors and agents reasonable access to and the right to inspect, during
normal



6









 







business hours and with reasonable advance notice, all of the real property, properties,
assets, records, contracts and other documents related to the Contributed Assets, and shall permit
them to consult, during normal business hours and with reasonable advance notice, with the
officers, employees, accountants, counsel and agents of the Participant and its subsidiaries for
the purpose of making such investigation of the Contributed Assets as such Participant shall desire
to make. Each Participant contributing assets shall make available to the other Participant all
such documents and copies of documents and records and information with respect to the Contributed
Assets as the other Participant may reasonably request. If Apollo and Carlyle agree, the
Contributed Assets shall be contributed to the Company at the agreed valuation therefor subject to
the prior negotiation and agreement to the terms of definitive documentation which is appropriate
for the transfer of such Contributed Assets and which definitive documentation shall contain
customary representations and warranties, covenants, indemnification provisions (including
customary caps and thresholds) and closing conditions (including compliance with all applicable
regulatory requirements). Within five (5) days of the closing of the transfer of Contributed
Assets, the Company shall deliver a Call Notice pursuant to Section 10.1 to the Participant which
did not transfer Contributed Assets to the Company in such closing, setting forth the agreed upon
fair market value of the Contributed Assets times such Participant’s percentage of the aggregate
number of shares of Common Stock specified in the first sentence of Section 3.2(b), together with
the determination of the Fair Market Value of shares of Common Stock described in the definition of
Fair Market Value. Subject to the satisfaction of Section 6.2, the Participant which did not
transfer the Contributed Assets to the Company shall within fifteen (15) days of its receipt of the
Call Notice, shall make a capital contribution to the Company in an amount equal to the agreed upon
fair market value of the Contributed Assets times such Participant’s percentage of the aggregate
number of shares of Common Stock specified in the first sentence of Section 3.2(b) and receive the
number of shares of Common Stock which is equal to the capital contribution made by such
Participant pursuant to this Section 3.2(f) divided by the Fair Market Value of shares of Common
Stock.




3.3 Termination and Survival of Rights and Obligations. A Participant’s obligation to pay
consideration due to the Company for shares of capital stock purchased under this Article III shall
survive (a) the termination, dissolution, liquidation and winding up of the Company, and for
purposes of this Article III, the Company shall be treated as continuing in existence, and (b) the
purchase of such Participant’s shares of capital stock by the other Participant or a third person,
whether pursuant to the Shareholders Agreement or otherwise. The Company may pursue and enforce
all rights and remedies that it may have against each Participant under this Article III,
including, without limitation, instituting a lawsuit to collect such payments with interest.




3.4 Optional Capital Calls. From and after the date that either (i) Apollo and its
Affiliates have purchased at least $801,000,000 in aggregate purchase price of shares of Common
Stock pursuant to Sections 3.1 and 3.2 or (ii) Carlyle and its Affiliates have purchased at least
$199,000,000 in aggregate purchase price of shares of Common Stock pursuant to Sections 3.1 and
3.2, the Board may deliver additional written notices to the Participant who has purchased all of
its Obligatory Additional Shares for the purposes, and consistent with the requirements, set forth
in Section 3.2(a) of this Agreement and paragraph in 2 of the Shareholders’ Agreement (the



7









 






“Optional Call Notices”). Each such Participant shall have the right, which it may
exercise, in its sole discretion and in whole or in part, but not the obligation, to purchase at
one or more Subsequent Closings additional shares of Common Stock (the “Optional Additional
Shares”) at the prices and in the manner specified in Sections 3.2(b) and 3.2(d) and subject to the
satisfaction of the conditions specified in Section 6.2.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE PARTICIPANTS





     Each Participant represents and warrants to the other Participant as of the date hereof, and
will represent and warrant to each other Participant and the Company as of the Initial Closing Date
and each Subsequent Closing Date, as follows:




4.1 Accredited Investor. Such Participant (a) is an “accredited investor” (as that term is
defined in Section 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended
(the “Act”)) because it is either (x) a corporation not formed for the specific purpose of
acquiring the securities offered, and has total assets in excess of $5,000,000 or (y) an entity in
which all of the equity owners are accredited investors, (b) has such knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks of the investment
contemplated hereby and (c) has reviewed the merits of such investment with tax and legal counsel
and other advisors to the extent deemed advisable. Such Participant will acquire its Purchased
Shares for its own account for investment and not with a view to the sale or distribution thereof,
and such Participant has no present intention of distribution or selling to others any of such
interest.




4.2 Access. Such Participant has had access to all the information it considers necessary
or appropriate to make an informed investment decision with respect to the investment in the
Purchased Shares under this Agreement. Such Participant further has had the opportunity to obtain
all additional information necessary to verify the information to which such Participant has had
access.




4.3 Nature of Investment. Such Participant understands that the Purchased Shares are
characterized as “restricted securities” under the Act inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under the Act and related
regulations such securities may be resold under the Act only in certain limited circumstances.
Such Participant is familiar with and understands such resale limitations imposed by the Act and
related regulations and by the Shareholders’ Agreement. Such Participant understands that the
Company has no present intention to register any of the Purchased Shares.




4.4 Authorization; Validity; No Conflicts. Such Participant is duly authorized
(including by all requisite corporate or stockholder (or equivalent, for entities other than
corporations) action on the part of such Participant and its officers and directors and its direct
and indirect stockholders (or equivalent equity owners, for entities other than corporations)), and



8









 







has full power and authority, to execute and perform its obligations under this Agreement and
each Additional Agreement to which it is a party, and each such agreement, when executed and
delivered by such Participant, constitutes such Participant’s legal, valid and binding obligation
enforceable against it in accordance with its terms except (i) as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought. The execution,
delivery and performance by such Participant of this Agreement and each Additional Agreement to
which it is a party, and the consummation by such Participant of the transactions contemplated
hereby and thereby will not (a) conflict with or constitute a default under any agreement,
indenture or instrument to which such Participant is a party, (b) conflict with or violate such
Participant’s organizational documents or (c) result in a violation of any order, judgment or
decree of any court or governmental or regulatory authority having jurisdiction over such
Participant or any of its assets.




4.5 Limitation on Representations. Such Participant understands and agrees that the other
Participant is only making the representations and warranties set forth in this Article IV, and no
other representations or warranties, express or implied, are made by such other Participant.



ARTICLE V




REPRESENTATIONS AND WARRANTIES OF THE COMPANY





     The Company represents and warrants to each Participant as of the date hereof, and will
represent and warrant to each Participant as of the Initial Closing Date and each Subsequent
Closing Date as follows:




5.1 Corporate Organization; Authorization.




     (a) The Company is duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has all corporate requisite power and authority to carry on its business as
now conducted and to own or lease its properties and assets. The Company is duly qualified or
licensed to do business as a foreign company in good standing in each state of the United States
and in each foreign jurisdiction in which the conduct of its business or the ownership or leasing
of its properties require such qualification.




     (b) The Company has full corporate power and authority to enter into this Agreement and the
Additional Agreements and to carry out the transactions contemplated hereby and thereby. The Board
of Directors and stockholders of the Company have taken all action required to authorize the
execution and delivery of this Agreement and the Additional Agreements, the performance of the
Company’s obligations hereunder and thereunder and the consummation of



9









 







the transactions contemplated hereby and thereby. No other corporate proceedings on the part
of the Company are necessary to authorize the execution, delivery and performance by it of this
Agreement and the Additional Agreements.




     (c) This Agreement and the Additional Agreements to which it is a party have been duly
executed and delivered by the Company and constitute legal, valid and binding obligations of the
Company, enforceable against it in accordance with the terms of such agreements, except (i) as the
same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors’ rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought.




5.2 No Violation.




     The execution, delivery and performance by the Company of this Agreement and the Additional
Agreements and the consummation of the transactions contemplated hereby and thereby does not (a)
violate, conflict with or result in the breach of any provisions of the Certificate of
Incorporation or Bylaws of the Company, (b)  in any material respect, violate, conflict with,
result in any breach of, constitute a default under, require any consent under, or give to others
any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or
result in the creation of any lien on any shares of Common Stock or any of the assets or property
of the Company pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which the Company is a
party or by which any shares of Common Stock or any of such assets or properties is bound or
affected, (c) require the consent of any party to any material agreement or commitment to which the
Company is a party, or by which the Company is bound, or (d) in any material respect, conflict with
or violate any law or governmental order to which the Company is subject.




5.3 Consents and Approvals of Governmental Authorities.




     The execution, delivery and performance of this Agreement and each Additional Agreement by the
Company does not require any consent, approval, authorization or other order of, action by or
declaration, filing or registration with or notification to, any governmental authority to be made
or obtained by the Company in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby.




5.4 Capitalization.




     The authorized and issued shares of capital stock of the Company are set forth on Schedule
5.4. All issued and outstanding shares of capital stock of the Company are validly



10









 







issued, fully paid and nonassessable and the Initial Shares to be issued on the Initial
Closing Date and all shares of Capital Stock to be issued on each Subsequent Closing Date will,
assuming payment in full of the amount specified in the Call Notice or the Optional Call Notice, be
validly issued, fully paid and nonassessable. Except as set forth in Schedule 5.4, there
are no other authorized, issued or outstanding shares of capital stock of the Company, nor any
options, warrants or other securities convertible into or exchangeable or exercisable for shares of
capital stock of the Company, outstanding. Except as set forth on Schedule 5.4, there are
no outstanding options, warrants, rights, contracts, commitments, understandings or arrangements by
which the Company is bound to issue, repurchase or otherwise acquire or retire any additional
shares of capital stock or other securities of the Company. There are no voting trusts,
stockholder agreements, proxies or other agreements or understandings in effect with respect to the
voting or transfer of any shares of capital stock of the Company other than the Shareholders’
Agreement.




5.5 Subsidiaries.




     Except as set forth on Schedule 5.5, the Company has no Subsidiaries and does not own
any capital stock or other equity securities of any other corporation and has no other type of
capital or equity interest in any Person (other than the Company). The Company is not subject to
any obligation or requirement to make any investment (in the form of a loan or capital
contribution) in any Person (other than the Company), except as set forth in Schedule 5.5.



ARTICLE VI

CLOSINGS; CONDITIONS TO CLOSINGS





6.1 Initial Closing. The closing of the sale and purchase of the Initial Shares (the
“Initial Closing”) under this Agreement shall take place at the offices of Morgan, Lewis &
Bockius LLP, One Market Street, San Francisco, CA 94105 (or such other place as Apollo and Carlyle
may agree upon in writing) as promptly as reasonably practicable after the date hereof (or on such
other date as the Participants may agree upon in writing). The date on which the Initial Closing
occurs is referred to in this Agreement as the “Initial Closing Date”. Notwithstanding the
foregoing provisions of this Section 6.1, the obligation of each Participant to purchase the
Initial Shares to be purchased by it at the Initial Closing shall be subject to the fulfillment of
the following conditions:



     (a) The representations and warranties of the other Participant set forth in Article IV shall
be true and correct on the Initial Closing Date.



     (b) The representations and warranties of the Company shall be true and correct on the Initial
Closing Date



11









 





     (c) Apollo and Carlyle shall have received written confirmation from the Secretary of State of
the State of Delaware that the Certificate of Incorporation has been filed with and accepted by
such Secretary of State.



     (d) Apollo and Carlyle shall have received all required governmental and regulatory approvals,
and all waiting periods under any applicable antitrust regulations shall have expired, in
connection with the formation of the Company and the consummation of the transactions contemplated
by this Agreement (including without limitation the expiration of any applicable waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended).



     (e) The Company shall have received payment from each of Apollo and Carlyle of the purchase
price for their respective Initial Shares by wire transfer of immediately available funds to an
account designated by or on behalf of the Company on or prior to the Initial Closing.



     (f) Each of Apollo, Carlyle and the Company shall have each executed and delivered to each
other a counterpart signature pages to each Additional Agreement to which it is a party pursuant to
Sections 7.1 and 7.2.



     (g) The Company shall have obtained a directors’ and officers’ liability insurance policy and
an error and omissions insurance policy in such amounts and on such terms mutually acceptable to
the Participants.




6.2 Subsequent Closings. Each Subsequent Closing under this Agreement shall take place at
the offices of Morgan, Lewis & Bockius LLP, One Market Street, San Francisco, CA 94105 (or such
other place as the Participants may agree upon in writing) on the relevant Subsequent Closing Date.
Notwithstanding the foregoing provisions of this Section 6.2, the obligation of each Participant
to purchase the Obligatory Additional Shares or Optional Additional Shares to be purchased by it at
a Subsequent Closing shall be subject to the fulfillment of the following conditions:



     (h) The representations and warranties of the other Participant set forth in Article IV shall
be true and correct on such Subsequent Closing Date.



     (i) The representations and warranties of the Company set forth in Article V, including
updated Schedules 5.4 and 5.5, shall be true and correct on the Subsequent Closing Date.



     (j) The other Participant shall have purchased all of the Initial Shares to be purchased by it
at the Initial Closing.



     (k) The Participants shall have received all required governmental and regulatory approvals,
and all waiting periods under any applicable antitrust regulations shall have expired, in
connection with the formation of the Company and the consummation of the transactions contemplated
by this Agreement.



12









 





     (l) The Company shall have developed a written business plan mutually acceptable to the
Participants (the “Business Plan”) and in the event that the Business Plan is dated more
than twelve months before the date of a Subsequent Closing, the Business Plan shall have been
updated on such terms mutually acceptable to the Participants.



     (m) The Company shall have received either (i) payment from the other Participant of the
purchase price for the Obligatory Additional Shares or Optional Additional Shares to be purchased
by such Participant at such Subsequent Closing by wire transfer of immediately available funds to
an account designated by or on behalf of the Company on or prior to the Subsequent Closing, or (ii)
transfer of Contributed Assets, pursuant to Section 3.2(f) by such Participant to the Company at
their fair market value, as mutually agreed by the Participants pursuant to Section 3.2(f).



     (n) The Company shall have maintained in full force and effect a directors’ and officers’
liability policy and an errors and omissions policy in such amounts and on such terms mutually
acceptable to the Participants.



     (o) This Agreement and the Additional Agreements shall be in full force and effect and neither
the Company nor any other Participant which is not an Affiliate shall be in material breach of its
obligations under this Agreement or under the Additional Agreements.



     (p) Each Participant shall have executed either the Shareholders’ Agreement or a Shareholders’
Agreement Joinder Agreement.



ARTICLE VII

CERTAIN COVENANTS





7.1 Shareholders’ Agreement; Restrictions on Transfer. At or prior to the Initial Closing,
the Company, Carlyle and Apollo shall execute a Shareholders Agreement in the form attached hereto
as Exhibit C (the “Shareholders’ Agreement”), pursuant to which the Company,
Carlyle and Apollo shall impose certain restrictions on the transfer of Shares (as defined in the
Shareholders Agreement) and set forth their agreement with respect to certain other matters as
described therein. Each of Apollo and Carlyle agrees that no sale, assignment or transfer of its
Purchased Shares shall be valid or effective, and the Company shall not be required to give any
effect to any such sale, assignment or transfer, unless (a) the sale, assignment or transfer of
such Purchased Shares is registered under the Act or (b) such sale, assignment or transfer is
otherwise exempt from registration under the Act. In addition, each of Apollo and Carlyle agrees
that any sale, assignment or transfer of its Purchased Shares shall be made in compliance with the
Shareholders’ Agreement. Each of Apollo and Carlyle acknowledges that the certificate or
certificates evidencing its Purchased Shares shall bear a legend stating or referring to the
foregoing transfer restrictions.



13









 






7.2 Registration Rights Agreement. At or prior to the Initial Closing, the Company, Carlyle
and Apollo shall execute, and shall cause the Company to execute, a Registration Rights Agreement
in the form attached hereto as Exhibit D, the “Registration Rights Agreement”).




7.3 Further Assurances. The Company, Apollo and Carlyle agree to use their best efforts to
obtain all necessary consents and approvals and expiration of all waiting periods (including all
required governmental and regulatory approvals and waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended), for the consummation of the transactions
contemplated by this Agreement. The Company, Apollo and Carlyle further agree to take or cause to
be taken all such corporate (or equivalent, for entities other than corporations) and other action,
including executing and/or delivering further instruments and documents, as may be necessary to
effect the intent and purposes of this Agreement.




7.4 Public Announcements. All press releases and other public disclosure concerning the
existence or terms of this Agreement, the Additional Agreements or the transactions contemplated
hereby and thereby from and after the date hereof will be subject to review by and approval each of
Apollo and Carlyle, which approval shall not be unreasonably withheld; provided, that to
the extent a Participant shall have received the written advice of counsel that it is required to
make an announcement pursuant to any law, regulation, order or stock exchange rule, it shall be
permitted to do so even if it has not obtained the approval of the other Participant so long as it
has used reasonable efforts to consult with and obtain consent of the other Participant to the
content of the announcement and strictly limits such announcement to the minimum disclosure
required.




7.5 Support Services Agreement. The Company and Apollo shall use their reasonable efforts
to execute and deliver a Support Services Agreement on terms and conditions mutually agreed upon by
Apollo and Carlyle, which terms will include the reimbursement of Apollo’s expenses for such
services at rates to be mutually agreed upon by Apollo and Carlyle.




7.6 International Students. Apollo and Carlyle expect that from and after the date that
the International Assets (as defined in Section 10.1) are transferred to the Company, all
educational and other related activities directed toward International Students engaged by Apollo
or its Subsidiaries shall be engaged in by the Company to the exclusion of Apollo and its
Subsidiaries. Apollo agrees that during the period which commences on the date that the
International Assets have been contributed to the Company and ends on the last day of the term of
this Agreement, neither Apollo nor any of its Subsidiaries (other than the Company) shall solicit
or recruit International Students. Apollo and its Subsidiaries shall use their reasonable best
efforts to transfer the International Assets to the Company within eighteen (18) months after the
date of this Agreement. In the event that any International Asset is not contributed to the Company
notwithstanding the use of reasonable best efforts by Apollo and its Subsidiaries, representatives
of Apollo and Carlyle shall meet immediately after the meeting of the board of directors of the
Company which follows the eighteen (18) month anniversary of this Agreement and engage in good
faith negotiations regarding the reclassification of such International Asset that has not



14









 







been contributed to the Company as a “Reclassified Asset” for purposes of this Agreement. Apollo
agrees that it shall not unreasonably withhold, delay or condition its consent to the
reclassification of an International Asset which is not contributed to the Company as a
Reclassified Asset. Apollo agrees that commencing on the date that a business(es) or asset(s)
become a Reclassified Asset, neither Apollo nor its Subsidiaries (other than the Company) shall
directly or indirectly solicit International Students by, through or for the benefit of the
Reclassified Asset or any part or division thereof until the last day of the term of this
Agreement. In the event that after the date of this Agreement either Apollo or its Subsidiaries
acquire any Person, business or assets that are either (a) within the Investment Scope and Carlyle
has not withheld its consent to such acquisition pursuant to paragraph 2(b)(2)(v) of the
Shareholders’ Agreement (if such consent is required under such paragraph) or (b) not within the
Investment Scope because the principal operations and facilities of the educational services
business of the acquired Person, business or assets are located within the United States but such
Person, business or assets also include secondary or ancillary educational services operations and
facilities outside of the United States (an “Ancillary International Business”), neither Apollo nor
any of its Subsidiaries (other than the Company) shall directly or indirectly solicit International
Students by, through or for the benefit of either an International Asset described in clause (a) of
this sentence or an Ancillary International Business for a period which commences on the date that
such International Asset or Ancillary International Business is acquired or controlled by Apollo or
its Subsidiaries and ends on the last day of the term of this Agreement. Notwithstanding the first
sentence of this Section 7.6 but subject to clause (b) of the fourth sentence of this Section 7.6,
neither Apollo nor its Subsidiaries shall be prohibited or restricted in any manner from
advertising, promoting or marketing: (I) to students and prospective students generally, including
advertising, promoting or marketing via the internet (or using internet search methods) any
programs or educational services to students and prospective students (including leads for
prospective students) so long as such advertising, promotions or marketing activities are not
developed for, intended to target or otherwise directed to, International Students; or (II) any
business or assets that:(x) are not within the Investment Scope (as defined in the Shareholders’
Agreement); (y) are not actually engaged in, used for or planned to be engaged in or used for
marketing, promoting, soliciting, responding to leads and related activities for, or on behalf of,
education or corporate training programs or services for International Students and (z) have been
acquired by Apollo or its Subsidiaries in accordance with this Agreement.



ARTICLE VIII

TERM AND TERMINATION





8.1 Term and Termination. This Agreement shall become effective as of the date hereof and
thereafter shall remain in full force and effect until terminated in accordance with this
Agreement. This Agreement shall be terminated upon the first to occur of the following events:
(a) the written agreement of Apollo and Carlyle, (b) the dissolution of the Company, or (c) one
Participant holds all the issued and outstanding shares of capital stock of the Company.



15









 






8.2 Effect of Termination. The termination of this Agreement for any cause shall not in
any way affect or be deemed to affect any obligation of either party having accrued prior to the
termination hereof or any right or obligation which, by its terms, is to survive the termination of
this Agreement.



ARTICLE IX

DISPUTE RESOLUTION





9.1 Arbitration; Consent to Jurisdiction and Service. Any dispute hereunder shall be
settled by arbitration in Wilmington, Delaware in accordance with the commercial arbitration rules
then in effect of the American Arbitration Association. The parties consent to the jurisdiction of
the state or federal courts of the State of Delaware for all purposes in connection with
arbitration, and to service of process by first class United States mail delivered in accordance
with the applicable rules of such courts. The award entered by the arbitrator(s) shall be final
and binding on all parties to arbitration. Each party shall bear its respective arbitration
expenses and shall each pay its pro rata share of the arbitrator’s charges and expenses. All
proceedings shall be conducted, and all submissions shall be made, in English.




9.2 Specific Performance. The parties hereby acknowledge and agree that the obligations
imposed on them in this Agreement are special, unique and of an extraordinary character, and that
irreparable damage may result in the event that this Agreement is not specifically enforced
(including without limitation any restrictions on transfer of Purchased Shares) and the parties
hereto agree that any damages available at law for a breach of this Agreement would not be an
adequate remedy. Therefore, the provisions hereof and the obligations of the parties hereunder
shall be enforceable by a decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies and all other remedies provided for
in this Agreement shall, however, be cumulative and not exclusive and shall be in addition to any
other remedies which any party may have under this Agreement or otherwise.




9.3 NO EXTRAORDINARY DAMAGES. NOTWITHSTANDING ANY TERM OR PROVISION OF THIS AGREEMENT,
NEITHER PARTY NOR THEIR RESPECTIVE OFFICERS, EMPLOYEES OR AGENTS, SHALL BE LIABLE TO THE OTHER
PARTY OR ITS RESPECTIVE OFFICERS, EMPLOYEES OR AGENTS, FOR CLAIMS FOR PUNITIVE, SPECIAL, EXEMPLARY,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE
TRADE PRACTICES ACT OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE.




9.4 Governing Law. This Agreement shall be construed according to and governed by the laws
of the State of Delaware, without reference to conflicts of laws principles.



16









 





ARTICLE X

GENERAL PROVISIONS




10.1 Expected Contributed Assets. Apollo and Carlyle expect that the business, operations,
assets and goodwill of each of the assets of Apollo and its Subsidiaries that are primarily or
fully dedicated to enrolling or serving International Students (collectively, the “International
Assets”) will be contributed to the Company by Apollo in exchange for Obligatory Additional Shares
pursuant to and in accordance with Section 3.2(f) after consolidating financial statements have
been completed for each of the International Assets. Apollo and Carlyle anticipate that such
consolidating financial statements will be completed, and the procedures described in Section
3.2(f) fully complied with in respect of the International Assets , on or before the first
anniversary of the date of the Initial Closing.




10.2 Notices. All notices, requests, demands and other communications hereunder shall be
in writing and delivered to the relevant party at its address set forth below (or such other
address as notified by one party to the other) by any of the following methods: (a) personal
delivery, (b) United States mail, postage prepaid, (c) pre-paid, nationally recognized overnight
courier or (d) fax with a copy following by any method described in the foregoing clauses (a) to
(c). Notices will be deemed to have been given hereunder when delivered personally, five days
after deposit in the U.S. mail and one day after deposit with a nationally recognized overnight
courier service.


If to the Company: Apollo Global, Inc.



c/o Apollo Group, Inc.

4615 East Elwood Street

Phoenix, AZ 85040

Attn: Chief Financial Officer

Facsimile: (602) 383-5159



If to Apollo or its Affiliates:



Apollo Group, Inc.

4615 East Elwood Street

Phoenix, AZ 85040

Attention: Chief Financial Officer

Facsimile: (602) 383-5159



With a required copy to:


Morgan, Lewis & Bockius LLP

One Market, Spear Street Tower

San Francisco, CA 94105

Attention: William A. Myers, Esq.

Facsimile: (415) 442-10001





17









 






If to Carlyle or its Affiliates:



1001 Pennsylvania Avenue, N.W.

Suite 220 South

Washington, DC 20004-2505

Attention: Brooke B. Coburn and Charles C. Moore

Facsimile: (202) 347-1818



With a required copy to:



Dickstein Shapiro LLP

1825 Eye Street, NW

Washington, DC 20006-5403

Attention: Neil Lefkowitz

Facsimile: (202) 420-2201





Any party shall have the right to change its address for notice hereunder from time to time to such
other address as may hereafter be furnished in writing by such party to the other party




10.3 Relationship. Neither party, nor any of its employees, customers or agents, shall, by
virtue of this Agreement, be deemed to be the representative, employee or agent of the other party
for any purpose whatsoever, nor shall they or any of them have, by virtue of this Agreement, any
authority or right to assume or create an obligation of any kind or nature, expressed or implied,
on behalf of the other party, nor to accept service of any legal process of any kind addressed to,
or intended for, the other party.




10.4 Amendments. This Agreement may be amended or modified only upon the express written
agreement of Carlyle and Apollo.




10.5 No Waiver of Default. No consent or waiver, express or implied, by any party with
respect to any breach or default hereunder by any other shall be deemed or construed to be a
consent or waiver with respect to any other breach or default by such other party of the same
provision or any other provision of this Agreement. Failure on the part of either party to
complain of any act or failure to act of any other party or to declare such party in default shall
not be deemed or constitute a waiver by such party of any rights hereunder with respect to such act
or failure to act.




10.6 No Third Party Rights. None of the provisions contained in this Agreement shall be
for the benefit of or enforceable by any person who is not a party to this Agreement;
provided, that, Carlyle Affiliates which own shares of the capital stock of the Company
shall be entitled to all rights and benefits of Carlyle under this Agreement. The parties hereto
expressly retain any and all rights to amend this Agreement as provided herein, notwithstanding any
interest in this Agreement held by the Company or any third person.



18









 






10.7 No Assignment; Binding Agreement. No party hereto may assign this Agreement or any of
its rights or obligations hereunder, except with the prior written consent of the others;
provided, that in the event that either (i) a Participant transfers its shares of capital
stock of the Company to a third person in accordance with the Shareholders’ Agreement or (ii) a
Carlyle Affiliate purchases from the Company shares of the capital stock of the Company, consent to
the assignment of this Agreement to such third person shall be deemed to have been given, so long
as such third person agrees in writing to assume all of the obligations of the transferring
Participant hereunder. Subject to the foregoing, the provisions of this Agreement shall be binding
upon, and, except as otherwise provided herein, shall inure to the benefit of the parties and their
respective successors and permitted assigns.




10.8 Severability. In the event any provision of this Agreement is held to be illegal,
invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder
of this Agreement shall not be affected thereby and shall remain in full force and effect and shall
be enforced to the greatest extent permitted by law.




10.9 Fees and Expenses. In the event the Initial Closing does not occur, all fees and out
of pocket expenses incurred in connection with this Agreement and the transactions contemplated by
this Agreement, including any transfer or sales taxes and related costs associated with the
transfer of operations or assets by any Participant to the Company (“Expenses”) shall be
paid by the party incurring such Expenses. In the event the Initial Closing occurs, the reasonable
Expenses of each Participant shall be paid by the Company.




10.10 No Election of Remedies. No provision of, or any rights granted or remedies available
under, this Agreement or, when executed and delivered, any Additional Agreement shall limit the
availability of any other right or remedy for the breach or violation of any of the provisions
contained in this Agreement or, when executed and delivered, any Additional Agreement.




10.11 Headings. The headings of the articles and sections of this Agreement are for
convenience only and shall not be considered in construing or interpreting any of the terms or
provisions hereof.




10.12 Entire Agreement. This Agreement, the Confidentiality Agreement and, when executed
and delivered, the Additional Agreements, and any document required to be executed by any of such
agreements, contain the entire agreement between the parties, and supersede all prior writings or
agreements, with respect to the subject matter hereof.




10.13 Counterparts. This Agreement may be executed in several counterparts, all of which
together shall constitute one agreement binding on all parties, notwithstanding that all the
parties have not signed the same counterpart.



19









 





[Remainder of page intentionally left blank]




20









 






          IN WITNESS WHEREOF, the parties hereto have caused this Joint Venture Agreement to be duly
executed as of the date first written above.




THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION

THAT MAY BE ENFORCED BY THE PARTIES.




	 	 	 	 	 	 	 
	 	 	APOLLO GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joseph L. D’Amico
 

Joseph L. D’Amico
	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	CARLYLE INVESTMENTS III, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCG VENTURES III, L.P.	 	 
	 

	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Brooke B. Coburn
 

Brooke B. Coburn
	 	 
	 

	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	APOLLO GLOBAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Jeff Langenbach
 

Jeff Langenbach
	 	 
	 

	 	Title:	 	President	 	 





[Signature Page to Joint Venture Agreement]




 









 






EXHIBIT A




CERTIFICATE OF INCORPORATION





 












 





Delaware


PAGE 1




 






The First State




     I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “APOLLO GLOBAL, INC”,
FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF OCTOBER, A.D. 2007, AT 6:42 O’CLOCK P.M.



     A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS.




	 	 	 	 	 
	 
	 	 	 	/s/ Harriet Smith Windsor
	 
	 	 	 	 
	4427828     8100 



071132428          
	 	
	 	Harriet Smith Windsor, Secretary of State


AUTHENTICATION: 6088119


                            DATE: 10-19-07      

	
	 	 	 	
	 
	 	 	 	






 









 





CERTIFICATE OF INCORPORATION

OF

APOLLO GLOBAL, INC.




ARTICLE I




     The name of this corporation is: APOLLO GLOBAL, INC.



ARTICLE II




     The address of the registered office of the corporation in the State of Delaware is 3500 South
Dupont Highway, City of Dover, County of Kent, Delaware 19901. The name of its registered agent at
such address is Incorporating Services Ltd.



ARTICLE III




     The nature of the business or purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation Law of the State of
Delaware.



ARTICLE IV




     The name of the corporation’s incorporator is Peter S. Park, c/o Morgan Lewis & Bockius LLP,
One Market, Spear Street Tower, San Francisco, California 94105.



ARTICLE V




     The corporation is authorized to issue one class of stock to he designated “Common Stock,”
with a par value of $0.001 per share. The total number of shares that the corporation is
authorized to issue is One Million (1,000,000) shares.



ARTICLE VI




     A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derived any improper personal benefit. If the
General Corporation Law of the State of Delaware is hereafter amended to authorize corporate
action further eliminating or limiting the personal liability of directors then the liability of a
director of the



 









 




corporation shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended.




     Any repeal or modification of the foregoing provisions of this Article VI by the stockholders
of the corporation shall not adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification.



ARTICLE VII




     The corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred on stockholders herein are granted subject to this reservation.



ARTICLE VIII




     Election of directors need not be by written ballot unless the bylaws of the corporation
shall so provide.



ARTICLE IX




     The number of directors which shall constitute the whole Board of Directors of the corporation
shall be fixed from time to time by, or in the manner provided in, the bylaws of the corporation or
in an amendment thereof duly adopted by the Board of Directors of the corporation or by the
stockholders of the corporation.



ARTICLE X




     Meetings of stockholders of the corporation may be held within or without the State of
Delaware, as the bylaws of the corporation may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors of the corporation or
in the bylaws of the corporation.



ARTICLE XI




     Except as otherwise provided in this Certificate of Incorporation, in furtherance and not in
limitation of the powers conferred by statute, the Board of Directors of the corporation is
expressly authorized to make, repeal, alter, amend and rescind any or all of the bylaws of the
corporation.



 









 






          (ii) to purchase the entire interest of the Selling Shareholder and its Affiliates in the
Company at a purchase price equal to the price set forth in the Offer and on the other terms and
conditions specified in the Offer.



During such sixty (60) day period, subject to the terms of the Mutual Nondisclosure Agreement
between Carlyle Investment Management, L.L.C. and Apollo dated August 2, 2007 (the
“Confidentiality Agreement”), each of the Offeree Shareholder and the Selling Shareholder may
perform a confirmatory due diligence evaluation of the Company and its Subsidiaries, and the
Company shall, and shall cause its Subsidiaries to, afford to the Offeree Shareholder’s and the
Selling Shareholder’s respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents reasonable access to and the right to inspect, during normal
business hours and with reasonable advance notice, all of the real property, properties, assets,
records, contracts and other documents related to the Company and its Subsidiaries, and shall
permit them to consult, during normal business hours and with reasonable advance notice, with the
officers, employees, accountants, counsel and agents of the Company and its Subsidiaries for the
purpose of making such investigation of the Company and its Subsidiaries as the Offeree
Shareholder and the Selling Shareholder shall desire to make. The parties agree that Carlyle shall
act in all respects under this paragraph 9(b) on behalf of all of its Affiliates including without
limitation providing Notices of Election.




          (c) If the Offeree Shareholder elects clause (i) of paragraph 9(b), the Investor
Shareholders shall, within ninety (90) days after receipt of the Notice of Election, execute
such documents and instruments reasonably required by the Selling Shareholder to sell and transfer
the Offeree Shareholder’s interest in the Company to the Selling Shareholder at the purchase
price and on the other terms and conditions specified in the Offer, which purchase price shall
be payable in immediately available funds, and the closing of such sale shall take place at the
principal office of the Company as soon as practicable, but in any event within one hundred
twenty (120) days after receipt of the Offer. At such closing, the Offeree Shareholder shall
sell and transfer its entire interest in the Company, and shall cause its Affiliates to sell and
transfer their entitle interest in the Company, to the Selling Shareholder free and clear of pledges,
liens, security interests and other encumbrances other than pledges arising out of Company financing.




          (d) If the Offeree Shareholder elects clause (ii) of paragraph 9(b), the Selling
Shareholder will sell its entire interest in the Company, and will cause its Affiliates to
sell their entire interest in the Company, to the Offeree Shareholder at the purchase price and on the
other terms and conditions specified in the Offer, and the Selling Shareholders shall, within ninety
(90) days after receipt of the Notice of Election, execute such documents and instruments
reasonably required by the Offeree Shareholder to sell and transfer the Selling Shareholder’s interest in
the Company to the Offeree Shareholder at the purchase price and on the other terms and conditions
specified in the Offer, which purchase price shall be payable in immediately available funds,
and the closing of such sale shall take place at the office of the Company as soon as practicable,
but in any event within one hundred twenty (120) days after receipt of the Offer. At such
closing, the Selling Shareholder shall sell and transfer its entire interest in the Company to the
Offeree Shareholder free and clear of pledges, liens, security interests and other encumbrances other
than pledges arising out of Company financing.




16









 





          10. Representations and Warranties.




          (a) The Company represents and warrants to the Shareholders as follows:




               (i) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware with corporate power and authority to own, lease
and operate its properties, to conduct its business as currently conducted and as proposed to be
conducted and to enter into and perform its obligations under this Agreement.



               (ii) The Company has taken all actions necessary to authorize it (x) to execute, deliver and
perform all of its obligations under this Agreement and (y) to consummate the transactions
contemplated hereby.



               (iii) This Agreement is a legally valid and binding obligation of the Company, enforceable
against it in accordance with its terms, except for (a) the effect thereon of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights
of creditors generally and (b) limitations imposed by equitable principles upon the specific
enforceability of any of the remedies, covenants or other provisions thereof and upon the
availability of injunctive relief or other equitable remedies.



               (iv) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by the Company with any of the provisions hereof
will (x) violate or conflict with any provisions of the Certificate of Incorporation or Bylaws of
the Company, or any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to the Company, or (y) violate, or conflict with, or result in a breach in
any provision of, or constitute a default (or any event that, with or without due notice or lapse
of time, or both, would constitute such a default) under, or result in the termination of,
accelerate the performance required by, or result in the creation of any lien, security interest,
charge or other encumbrance upon any of the properties or assets of the Company under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation of which the Company is a party or by which it
or any of its assets are bound.



               (v) No permit, application, notice, transfer, consent, approval, order, qualification, waiver
from, or authorization of, or declaration, filing or registration with, any governmental or
regulatory authority or third party is necessary in connection with the execution and delivery by
the Company of this Agreement or the consummation by the Company of the transactions contemplated
hereby.



          (b) Each Shareholder represents and warrants to each other Shareholder and to
the Company as follows:




17









 





               (i) It is a corporation, limited partnership, limited liability company or other entity duly
organized and validly existing under the laws of its respective state of organization;



               (ii) It has taken all actions necessary to authorize it (x) to execute, deliver and perform
all of its obligations under this Agreement and (y) to consummate the transactions contemplated
hereby.



               (iii) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by the Shareholder with any of the provisions
hereof will (i) violate or conflict with the organic organizational documents of the Shareholder,
or any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to the Shareholder, or (ii) violate, or conflict with, or result in a breach in any
provision of, or constitute a default (or any event that, with or without due notice or lapse of
time, or both, would constitute such a default) under, or result in the termination of, accelerate
the performance required by, or result in the creation of any lien, security interest, charge or
other encumbrance upon any of the properties or assets of the Shareholder under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation of which the Shareholder is a party or by which it or
any of its assets are bound.



               (iv) No permit, application, notice, transfer, consent, approval, order, qualification,
waiver from, or authorization of, or declaration, filing or registration with, any governmental or
regulatory authority or third party is necessary on the part of the Shareholder in connection with
the execution and delivery by the Shareholder of this Agreement or the consummation by the
Shareholder of the transactions contemplated hereby.



          11. Legend. Each certificate evidencing Shareholder Shares and each certificate
issued in exchange for or upon the Transfer of any Shareholder Shares (if such shares remain
Shareholder Shares as defined herein after such Transfer) will be stamped or otherwise imprinted
with a legend in substantially the following form:





	 	 	 	“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS PURSUANT TO A SHAREHOLDERS AGREEMENT
DATED AS OF OCTOBER 22, 2007, BY AND AMONG THE ISSUER OF SUCH
SECURITIES (THE “COMPANY”) AND CERTAIN OF THE COMPANY’S
SHAREHOLDERS. A COPY OF SUCH SHAREHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST.”




The Company will imprint such legend on certificates evidencing Shareholder Shares. The legend
set forth above will be removed from the certificates evidencing any shares which cease





18









 







to be Shareholder Shares in accordance with the definition of such terms as set forth in paragraph
13 hereof.




               12. Transfer. Prior to Transferring any Shareholder Shares (other than in a
Public Sale or in an Approved Sale) to any Person, the transferring Shareholder will cause the
prospective transferee to execute and deliver to the Company and the other Shareholders a
Joinder Agreement. The provisions of this paragraph 12 shall terminate upon the occurrence of
(i) the consummation of an Approved Sale and (ii) a Public Offering.




               13. Definitions.




     “Affiliate” of a Shareholder means any other Person, entity or investment or co-investment
fund directly or indirectly controlling, controlled by or under common control with the Shareholder
and, in the case of a Shareholder which is an entity, any shareholder, member, partner or other
equity holder of such Shareholder, which, in each case, beneficially owns at least 10% of the
outstanding voting interests of the Shareholder. Each fund managed by a Carlyle or an Affiliate of
Carlyle shall be an Affiliate of Carlyle for purposes of this Agreement, and no portfolio company
of Carlyle or its Affiliates shall be considered an Affiliate of Carlyle or such Affiliate for
purposes of this Agreement.



               “Certificate of Incorporation” means the Company’s certificate of incorporation in
effect at the time as of which any determination is being made.



               “Common Stock” means the Company’s Common Stock, par value $.001 per share.



               “Company Indebtedness” means all indebtedness of the Company (including without
limitation, any loans, advances, letters of credit, bank overdrafts, capital lease obligations and
all other indebtedness of any kind including interest, principal and fees).



               “Company Stock” means the Common Stock and any other class or series of shares of capital
stock hereafter created by the Company.



               “Fair Market Value” has the meaning ascribed to that term in the Joint Venture
Agreement.



               “Fully Diluted Basis” means, without duplication, all shares of the applicable class
of Company Stock issued or issuable directly or indirectly upon the exercise or exchange of all
outstanding options, warrants or similar rights, excluding outstanding options or warrants that
are Out of the Money or not then exercisable, and all shares of such class of Company Stock
issuable upon the conversion of any securities convertible into such class of Company Stock.



               “Independent Third Party” means any Person who (together with its Affiliates),
immediately prior to the contemplated transaction, (i) does not own, directly or indirectly, in
excess of 5% of any class of the Company Stock on a Fully-Diluted Basis (a “5% Owner”), (ii) is
not controlling, controlled by or under common control with any such 5% Owner, (iii) is not the



19









 




spouse or descendant (by birth or adoption), parent or dependent of any such 5% Owner, (iv) is not
a trust for the benefit of such 5% Owner and/or any Person referenced in clause (ii) or (iii), and
(v) is not a group consisting of any of the foregoing.




               “Joinder Agreement” means a joinder agreement in substantially the form of Exhibit
A hereto pursuant to which transferees of shares of Company Stock which are permitted under
this Agreement become parties to this Agreement.



               “Out of the Money” means, in the case of an option or warrant, that the fair market
value per share of the shares of Company Stock which the holder thereof is entitled to purchase or
subscribe for is less than the exercise price per share of such option or warrant.



               “Person” means an individual, a partnership, a corporation, an association, a joint stock
company, a trust, a joint venture, a limited liability company, an unincorporated organization and
a governmental entity or any department, agency or political subdivision thereof.



               “Public Offering” means an initial public offering by the Company of its capital stock to the
public effected pursuant to an effective registration statement under the Securities Act, or any
comparable statement under any similar United States federal statute then in effect.



               “Public Sale” means any sale of Shareholder Shares to the public pursuant to an offering
registered under the Securities Act, to the public through a broker, dealer or market maker
pursuant to the provisions of Rule 144 adopted under the Securities Act or pursuant to the
provisions of Rule 144(k) adopted under the Securities Act.



               “Securities Act” means the Securities Act of 1933, as amended from time to time.



               “Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof.



               “Shareholder Shares” means any Company Stock owned directly or indirectly by the
Shareholders. As to any particular shares constituting Shareholder Shares, such shares will cease
to be Shareholder Shares (A) upon the occurrence of a Public Offering, (B) upon the termination of
this Agreement, or (C) when they have been (i) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, or (ii) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by similar provision then
in force) under the Securities Act.



               “Subsidiary” means with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a partnership, limited liability company, association or other
business entity, a majority of the partnership, membership or other similar ownership interest




20









 




thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person or Persons shall be allocated a majority of
such partnership, limited liability company, association or other business entity gains or losses
or shall be or control the managing director or general partner of such partnership, limited
liability company, association or business entity.




          “Valuation Firm” has the meaning ascribed to that term in the Joint Venture Agreement.




          14. Transfers in Violation of Agreement. Any Transfer or attempted Transfer
of any Shareholder Shares in violation of any provision of this Agreement will be void, and
the Company will not record such Transfer on its books or treat any purported transferee of such
Shareholder Shares as the owner of such shares for any purpose.




          15. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement (including the schedules
hereto) will be effective against the Company or the Shareholders unless such modification,
amendment or waiver is approved in writing by each of the Company, Carlyle and the holders of
at least a majority of the then outstanding Shareholder Shares; provided that if such
amendment or waiver would adversely affect a holder or group of holders of Shareholder Shares in a
manner different than any other holders of Shareholder Shares, then such amendment or waiver will
require the consent of such holder or a majority of the Shareholder Shares held by such group
of holders adversely affected. The Company will give prompt written notice to the Shareholders of
any amendments, modifications, or waivers of the provisions of this Agreement. The failure of
any party to enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.




          16. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained herein.




          17. Entire Agreement. Except as otherwise expressly set forth herein, this
Agreement, the Joint Venture Agreement, the Confidentiality Agreement and that certain
Registration Rights Agreement dated as of the date hereof between the Company and certain of
its shareholders embody the complete agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.




21









 





          18. Successors and Assigns. Except as otherwise provided herein, this
Agreement will bind and inure to the benefit of and be enforceable by the Company and its
successors and assigns and the Shareholders and any subsequent holders of Shareholder Shares
and the respective successors and assigns of each of them, so long as they hold Shareholder
Shares.




          19. Counterparts. This Agreement may be executed in separate counterparts
each of which will be an original and all of which taken together will constitute one and the
same agreement.




          20. Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this Agreement and
that the Company and each Shareholder will have the right to injunctive relief, in addition to
all of its rights and remedies at law or in equity, to enforce the provisions of this Agreement.
Nothing contained in this Agreement will be construed to confer upon any Person who is not a
signatory hereto or any successor or permitted assign of a signatory hereto any rights or
benefits, as a third party beneficiary or otherwise, except that each member of the Board and each Board
Observer will be a third party beneficiary of respect to the indemnification described in
paragraph l(c).




          21. Notices. Any notice provided for in this Agreement will be in writing and
will be either (i) personally delivered, (ii) delivered by certified mail, return receipt
requested, (iii) sent by nationally recognized overnight courier service (charges prepaid) or (iv) faxed
with a copy following by any method described in the foregoing clauses (i) to (iii), to the address
set forth below or at any address listed in the Company’s records, or at such address or to the
attention of such other person as the recipient party has specified by prior written notice to
the sending party. Notices will be deemed to have been given hereunder when delivered personally,
five days after deposit in the U.S. mail and one day after deposit with a nationally
recognized overnight courier service.



If to the Company:



Apollo Global, Inc. 

c/o Apollo
Group. Inc. 
4615 East Elwood
Street 
Phoenix, AZ 85040 

Attn: Chief Financial Officer

Facsimile: (602) 383-5159



If to Apollo or its Affiliates:



The Apollo Group, Inc. 
4615 East
Elwood Street
 Phoenix, AZ 85040

Attn: Chief Financial Officer




22









 







Facsimile: (602) 383-5159



With a required copy to:



Morgan, Lewis & Bockius LLP 

One Market Street 
San Francisco, CA
94105 

Attn: William A. Myers, Esq.

Facsimile: (415) 442-1001



If to Carlyle or its Affiliates:



Carlyle Venture Partners III, L.P.

1001 Pennsylvania Avenue, N.W.

Suite 220 South

Washington, DC 20004-2505

Attention: Brooke B. Coburn and Charles C. Moore

Facsimile: (202) 347-1818



With a required copy to:



Dickstein Shapiro LLP 
1825 Eye
Street, NW 
Washington, DC
20006-5403 

Attn: Neil Lefkowitz

Facsimile: (202) 420-2201



If to any of the Other Shareholders: 



At the address listed on Schedule I.




               22. Governing Law. This Agreement shall be construed according to and
governed by the laws of the State of Delaware, without reference to conflicts of laws
principles.



               23. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.



[Remainder of this page intentionally left blank]




23









 





          IN WITNESS WHEREOF, the parties hereto have executed this Shareholders Agreement on the day
and year first above written.




	 	 	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	APOLLO GLOBAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	INVESTOR SHAREHOLDERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	APOLLO GROUP, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CARLYLE VENTURE PARTNERS III, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	TCG VENTURES III, L.P.	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





SCHEDULE I




Other Shareholders




None as of October 22, 2007




 









 





Exhibit A




JOINDER AGREEMENT




Apollo Global, Inc. 

c/o Apollo Group, Inc. 

4615 East Elwood Street

Phoenix, AZ 85040



Ladies and Gentlemen,



Reference is hereby made to that certain Shareholders’ Agreement (the “Shareholders’
Agreement”), dated as of October 22, 2007, by and among Apollo Global, Inc., a Delaware
corporation (the “Company”), Apollo Group, Inc., an Arizona corporation, and Carlyle Venture
Partners III, L.P., a Delaware limited partnership. Capitalized terms used herein but not
otherwise defined shall have the meanings ascribed to them in the Shareholders’ Agreement.



By execution and delivery of this Joinder Agreement, the undersigned hereby agrees as follows:



2. Shareholders’ Agreement. The undersigned acknowledges that it is acquiring shares of
the Company’s Common Stock (the “Purchased Shares”), subject to the terms and conditions of
the Shareholders’ Agreement, and agrees that it shall become, and by execution and delivery of
this Agreement does become, and assumes each and every obligation of, a “Shareholder” under
and as defined in the Shareholders’ Agreement as of the date set forth below (the
“Effective
Date”). Notwithstanding the immediately preceding sentence, the undersigned does not hereby
assume, and will not otherwise become subject to, any liability resulting from any breach, default
or failure to comply with any provision of the Shareholders’ Agreement by or on behalf of any
Person other than the undersigned.



3. Representations and Warranties. The undersigned represents and warrants to the
Company and the existing Shareholders as of the Effective Date and, to the extent that the
undersigned purchases additional shares of Common Stock from the Company on any
Subsequent Closing Date (as defined in the Joint Venture Agreement dated as of October 22,
2007, by and among the Company, Apollo Group, Inc. and Carlyle Venture Partners III, L.P.),
the undersigned will represent and warrant to the Company and the existing Shareholders on
such Subsequent Closing Date as follows:



     3.1 Accredited Investor. The undersigned (a) is an “accredited investor” (as that
term is defined in Section 501(a) of Regulation D promulgated under the Securities Act of 1933,
as amended (the “Act”)) because it is either (x) a corporation not formed for the specific purpose
of acquiring the securities offered, and has total assets in excess of $5,000,000 or (y) an entity
in which all of the equity owners are accredited investors, (b) has such knowledge and experience
in financial and business matters to be capable of evaluating the merits and risks of the
investment contemplated hereby and (c) has reviewed the merits of such investment with tax and
legal counsel and other advisors to the extent deemed advisable. The undersigned will acquire the
Purchased Shares for its own account for investment and not with a view to the sale or




 









 




distribution thereof, and the undersigned has no present intention of distribution or selling to
others any of such interest.




          3.2 Access. The undersigned has had access to all the information it considers
necessary or appropriate to make an informed investment decision with respect to the
investment in the Purchased Shares. The undersigned further has had the opportunity to obtain all
additional information necessary to verify the information to which the undersigned has had access.




          3.3 Nature of Investment. The undersigned understands that the Purchased Shares are
characterized as “restricted securities” under the Act inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and that under the Act and
related regulations such securities may be resold under the Act only in certain limited circumstances.
The undersigned is familiar with and understands such resale limitations imposed by the Act
and related regulations and by the Shareholders’ Agreement. The undersigned understands that the
Company has no present intention to register any of the Purchased Shares.




          3.4 Authorization; Validity; No Conflicts. The undersigned is duly authorized
(including by all requisite corporate or stockholder (or equivalent, for entities other than
corporations) action on the part of the undersigned and its officers and directors and its
direct and indirect stockholders (or equivalent equity owners, for entities other than corporations)),
and has full power and authority, to execute and perform its obligations under this Joinder Agreement
and the Shareholders’ Agreement, and constitutes the undersigned’s legal, valid and binding
obligation enforceable against it in accordance with their respective terms except (i) as the
same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors’ rights generally and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor may be
brought. The execution, delivery and performance by the undersigned of this Joinder Agreement, the
performance by the undersigned of the Shareholders’ Agreement, and the consummation by the
undersigned of the transactions contemplated hereby and thereby will not (a) conflict with or
constitute a default under any agreement, indenture or instrument to which the undersigned is
a party, (b) conflict with or violate the undersigned’s organizational documents or (c) result
in a violation of any order, judgment or decree of any court or governmental or regulatory
authority having jurisdiction over the undersigned or any of its assets.




4. Sale of Purchased Shares. In reliance upon the representations and warranties made by
the undersigned in this Joinder Agreement and the undersigned’s agreement herein to be bound by
the Shareholders’ Agreement as a “Shareholder” (as such term is used in the Shareholders’
Agreement), the Company shall sell to the undersigned, and the undersigned shall purchase from the
Company, the following Purchased Shares:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number of shares:	 	 
	 
	 

	 	 	 	 	 	Price per share:	 	 
	 
	 	 	Total Purchase Price:	 	 






[Remainder of page intentionally left blank]




 









 




IN WITNESS WHEREOF, the undersigned have executed this Joinder Agreement as of the date first set
forth below.




	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Investor:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Signature:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Printed Name:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Title (if applicable):
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Phone No.:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Facsimile No.:
	 	 	 	 
	 

	 	 	 	 




AGREED AND ACCEPTED:



APOLLO GLOBAL, INC., 

a Delaware corporation




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






[Signature Page to Joinder Agreement]




 









 





EXHIBIT D 




REGISTRATION RIGHTS AGREEMENT





 









 








Execution




REGISTRATION RIGHTS AGREEMENT




          THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of October
22, 2007, by and among Apollo Global, Inc., a Delaware corporation (the “Company”), Apollo Group,
Inc., an Arizona corporation (“Apollo”) and Carlyle Ventures Partners III, L.P., a Delaware
limited partnership (“Carlyle” and, together with Apollo and each Affiliate of Carlyle and Apollo
that hereafter becomes a shareholder of the Company, the “Shareholders”). Unless otherwise
indicated herein, capitalized terms used herein are defined in paragraph 9 hereof.




RECITALS




          The Company, Apollo and Carlyle are parties to (i) a Joint Venture Agreement dated as of the
date hereof (the “Joint Venture Agreement”), and (ii) a Shareholders’ Agreement dated as of the
date hereof (the “Shareholders’ Agreement”).




          As a condition to the consummation of the transactions contemplated by the Joint Venture
Agreement, the parties hereto are entering into this Agreement to provide the registration rights
set forth herein and to provide for certain rights and obligations in respect thereto as
hereinafter provided.




AGREEMENT




          NOW, THEREFORE, the parties to this Agreement agree as follows:




          1. Demand Registrations.




          (a) Requests for Registration. At any time after the date that is 180 days after an
Initial Public Offering, (i) the holders of a majority of the Apollo Registrable Securities or
(ii) the holders of a majority of the Carlyle Registrable Securities, each may request
registration under the Securities Act of all or part of their Registrable Securities on Form S-l
or any similar long-form registration statement (“Long-Form Registrations”) or, if available, such
holders may request registration under the Securities Act of all or part of their Registrable
Securities on Form S-3 (including pursuant to Rule 415 under the Securities Act) or any similar
short-form registration statement (“Short-Form Registrations”). Each request for a Demand
Registration shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such requested registration
to all other holders of Registrable Securities and, subject to paragraph l(d) below, will include
in such registration all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 10 days after the receipt of the Company’s notice.
Subject to paragraph 5(b), a Demand Registration shall not count as a request for registration
pursuant to this paragraph 1 if at least 50% of the Registrable Securities that the holders
initiating such Demand Registration have requested to be registered in such Demand Registration
are not registered for reasons other than their voluntary decision not to do so. All registrations
requested pursuant to this paragraph l(a) are referred to herein as “Demand Registrations.”




 









 





          (b) Long-Form Registrations. The holders of a majority of the Apollo
Registrable Securities will be entitled to request four Long-Form Registrations in which the
Company will pay all Registration Expenses. The holders of a majority of the Carlyle
Registrable Securities will be entitled to request two Long-Form Registrations in which the
Company will pay all Registration Expenses. Subject to paragraph 5(b), a registration will
not count as one of the permitted Long-Form Registrations until it has become effective unless a
Shareholder requesting a Long-Form Registration that did not become effective elects to have
its Registration Expenses paid by the Company in connection with such  Long-Form Registration. Subject to paragraph 5(b), a Company will pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not it becomes effective. All
Long-Form Registrations shall be underwritten registrations.




          (c) Short-Form Registrations. In addition to the Long-Form Registrations
provided pursuant to paragraph 1(b), the (i) holders of a majority of the Apollo Registrable
Securities, and (ii) holders of a majority of the Carlyle Registrable Securities, will each be
entitled, subject to the limitations set forth herein, to request an unlimited number of
Short-Form Registrations in which the Company will pay all Registration Expenses; provided that
the aggregate offering value of the Registrable Securities requested to be registered by Apollo or
Carlyle in any Short-Form Registration must equal at least $[1,000,000] in the aggregate.
Subject to paragraph 5(b), the Company will pay all Registration Expenses in connection with
any registration initiated as a Short-Form Registration whether or not it becomes effective.
Demand Registrations will be Short-Form Registrations whenever the Company is permitted to
use any applicable short form. After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company will use its best efforts to make
Short-Form Registrations available for the sale of Registrable Securities, including but not
limited to compliance with paragraph 8 hereof.




          (d) Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities which are not Registrable Securities without the prior
written consent of the holders of a majority of the Registrable Securities included in such Demand
Registration. If a Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing (with a copy to each party hereto requesting
registration of Registrable Securities) that in their opinion the number of Registrable
Securities
and, if permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which can be sold therein
without adversely affecting the marketability of the offering, the Company will include in such
registration prior to the inclusion of any securities which are not Registrable Securities the
number of Registrable Securities requested to be included which in the opinion of such underwriters can be sold without adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of the number of shares of Registrable
Securities owned by such Shareholder.




          (e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within three months after the effective date of a
previous Demand Registration. The Company may postpone for up to three months the filing or
the effectiveness of a registration statement for a Demand Registration if the Company’s board
of directors determines in its reasonable good faith judgment that such Demand Registration would





2









 







reasonably be expected to have a material adverse effect on any proposal or plan by the Company or
any of its subsidiaries to engage in any acquisition of assets (other than in the ordinary course
of business) or any merger, consolidation, tender offer or similar transaction; provided that in
such event, the holders of a majority of Registrable Securities initially requesting such Demand
Registration will be entitled to withdraw such request and, if such request is withdrawn, such
Demand Registration will not count as one of the permitted Demand Registrations hereunder and the
Company will pay all Registration Expenses in connection with such registration; provided,
that the Company may delay a Demand Registration hereunder only once in any twelve-month period.




          (f) Selection of Underwriters. The holders of a majority of the Apollo
Registrable Securities included in any Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the (x) approval of
the Board of Directors of the Company, which approval will not be unreasonably withheld or
delayed and (y) Carlyle’s right to name a co-manager for the offering if Carlyle Registrable
Securities are to be included in the offering. In the event that none of the Apollo
Registrable Securities are included in such Demand Registration, Carlyle will have the right to make such
selection, subject to the approval of the Board of Directors of the Company, which approval
will not be unreasonably withheld or delayed.




          (g) Other Registration Rights. The Company will not grant to any Persons the
right to request the Company to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such securities (whether as a demand
registration or a piggyback registration), without the prior written consent of the holders of
a majority of the Apollo Registrable Securities and of a majority of the Carlyle Registrable
Securities.




          2. Piggyback Registrations.




          (a) Right to Piggyback. Upon completion by the Company of an Initial
Public Offering (and any Initial Public Offering that is not a Qualified IPO shall be
undertaken only with the prior written consent of Carlyle), whenever the Company proposes to register any
of its securities (including any proposed registration of the Company’s securities by any
third party) under the Securities Act (other than pursuant to a registration on Form S-4 or S-8 or
any successor or similar forms) and the registration form to be used may be used for the
registration of Registrable Securities (a “Piggyback Registration”), whether or not for sale for its own
account, the Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and will include in such registration all
Registrable Securities of the same class or series of securities that the Company proposes to register
with respect to which the Company has received written requests for inclusion therein within 30
days after the receipt of the Company’s notice.




          (b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback Registrations whether or
not such registration is consummated.






3









 








          (c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing (with a copy to each party hereto requesting registration of
Registrable Securities) that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of Registrable Securities owned by each such holder and
(iii) third, any other securities requested to be included in such registration pro rata among
the holders thereof on the basis of the number of such securities owned by each such holder.




          (d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the number of
securities requested to be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the Company will
include in such registration (i) first, the securities requested to be included therein by the holders
requesting such registration and the Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of the number of
Registrable Securities owned by each such holder and (ii) second, any other securities
requested to be included in such registration.




          (e) Other Registrations. If the Company has previously filed a registration
statement with respect to Registrable Securities pursuant to paragraph 1 or pursuant to this
paragraph 2, and if such previous registration has not been withdrawn or abandoned, the
Company will not file or cause to be effected any other registration of any of its equity
securities or securities convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf or
at the request of any holder or holders of such securities, until a period of at least three
months has elapsed from the effective date of such previous registration.




          3. Holdback Agreements.




          (a) To the extent not inconsistent with applicable law, each holder of Registrable Securities
agrees not to effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities, options or rights convertible into or
exchangeable or exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company’s Initial Public Offering of Common Stock
under the Securities Act or during the seven days prior to and the 90-day period beginning on the
effective date of any other underwritten registration filed under the Securities Act (in each
case, except as part of such underwritten registration and except for such shorter period as the
underwriters managing the registered public offering and the holders of a majority of the
Registrable Securities otherwise agree in writing with respect to all holders of Registrable
Securities).




4









 





          (b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree, and (ii) to cause
each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such period (except as part of
such underwritten registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree in writing.




          4. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant thereto the Company
will as expeditiously as possible:




          (a) prepare and (within 60 days after the end of the period within which
requests for registration may be given to the Company) file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities and thereafter
use its best efforts to cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments or supplements thereto, the
Company will furnish to the holders of a majority of the Registrable Securities covered by
such registration statement and their counsel and if Carlyle Registrable Securities are covered by
such registration statement to Carlyle and its counsel copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel);




          (b) notify each holder of Registrable Securities of the effectiveness of each
registration statement filed hereunder and prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such registration
statement effective for a period of either (i) not less than the number of days until all such
securities have been disposed of (subject to extension pursuant to paragraph 7(b)) or, if such registration
statement relates to an underwritten offering, such longer period as in the opinion of counsel
for the underwriters a prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer or (ii) such shorter period as will
terminate when all of the securities covered by such registration statement have been disposed of in
accordance with the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement (but in any event not before the expiration of any longer period
required under the Securities Act), and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration statement until such
time as all of such securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration statement;




5









 





          (c) furnish to each seller of Registrable Securities such number of copies of
such registration statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such other documents
as such seller may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;




          (d) use its best efforts to register or qualify such Registrable Securities under
such other securities or blue sky laws of such jurisdictions as any seller reasonably requests
and do any and all other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);




          (e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus
included in such registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such seller, the Company will prepare
and furnish to such seller a reasonable number of copies of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the circumstances
under which they were made;




          (f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed or quoted;




          (g) provide a transfer agent and registrar for all such Registrable Securities
not later than the effective date of such registration statement;




          (h) enter into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the holders of a majority of the Registrable Securities
being sold and, if Carlyle Registrable Securities are being sold, Carlyle, or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a combination of shares);




          (i) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;




6









 





          (j) otherwise use its best efforts to comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company’s first full calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;




          (k) notify each seller of such Registrable Securities in the event of the issuance of any
stop order suspending the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of any securities
included in such registration statement for sale in any jurisdiction, and use its best efforts
promptly to obtain the withdrawal of such order;




          (1) obtain one or more comfort letters, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold reasonably request
and Carlyle, if Carlyle Registrable Securities are also being sold;




          (m) permit any holder of Registrable Securities which holder, in its reasonable judgment,
might be deemed to be an underwriter or a controlling Person of the Company, to participate in the
preparation of such registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included; and




          (n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such
registration statement (and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of such nature.



The Company may require each seller of Registrable Securities as to which any registration is
being effected to furnish the Company such information regarding such seller and the distribution
of such securities as the Company may from time to time reasonably request in writing.




          5. Registration Expenses.




          (a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by the Company (all
such expenses being herein called “Registration





7









 







Expenses”), will be borne as provided in this Agreement, except that the Company will, in any
event, pay its internal expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar securities issued by the
Company are then listed.




          (b) Notwithstanding anything in this Agreement to the contrary, the Company
shall not be required to pay for any Registration Expenses in connection with a registration
proceeding begun pursuant to paragraph l(a) if the registration request is subsequently
withdrawn at the request of the initiating holders, unless such initiating holders agree to
forfeit their right to one Demand Registration pursuant to paragraph l(b) (in which case such right
shall be forfeited by the holders initiating such request and all holders exercising their Piggyback
Registration rights with respect to such request); provided, however, that if at or
prior to the time of such withdrawal, such holders have learned of a material adverse change in the condition,
business, or prospects of the Company not known to such holders at the time of their request
for such registration (it being understood that a change in the Company’s stock price shall not
constitute in and of itself a material adverse change) and withdrawn their request for
registration with reasonable promptness after learning of such material adverse change, then such holders
shall not be required to pay any of such expenses and shall retain their rights pursuant to
paragraph 1.




          (c) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse (i) the holders of Registrable Securities covered by
such registration for the reasonable fees and disbursements of (A) one counsel chosen by the
holders of a majority of the Registrable Securities included in such registration and (B) any
such other counsel retained for the purpose of rendering opinions and reviewing documents on behalf
of one or more holders of Registrable Securities on behalf of whom such first counsel does not
act and (ii) Carlyle for the reasonable fees and disbursements of counsel to Carlyle in the
event that Carlyle Registrable Securities are covered by such registration.




          (d) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder will pay those
Registration Expenses allocable to the registration of such holder’s securities so included,
and any Registration Expenses not so allocable will be borne by all sellers of securities included
in such registration in proportion to the aggregate selling price of the securities to be so
registered for each seller.




          6. Indemnification.




          (a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by
law, each holder of Registrable Securities, its officers and directors and each Person that
controls such holder (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, to which such holder or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or alleged untrue





8









 







statement of material fact contained (A) in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or (B) in any application or other
document or communication (in this paragraph 6 collectively called an “application”) executed by or
on behalf of the Company or based upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify any securities covered by such registration statement
under the “blue sky” or securities laws thereof, or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein under the
circumstances which such statements have been made not misleading, and the Company will reimburse
such holder and each such director, officer and controlling Person for any legal or any other
expenses incurred by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company will not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance
upon, and in conformity with, written information prepared and furnished to the Company by such
holder expressly for use therein or by such holder’s failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the Company has timely
furnished such holder with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company will indemnify such underwriters, their officers and directors
and each Person that controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders of Registrable
Securities.




          (b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information as the
Company reasonably requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless the Company, its
directors and officers and each other Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or several, to which the
Company or any such director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon
(i) any untrue or alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or
in any application or (ii) any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in such registration statement, any such prospectus
or preliminary prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished to the Company by
such holder expressly for use therein, and such holder will reimburse the Company and each such
director, officer and controlling Person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability, action or proceeding;
provided that the obligation to indemnify will be individual, not joint and several, to each
holder and will be limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.




9









 





          (c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give such prompt notice shall not impair
any Person’s right to indemnification hereunder to the extent such failure has not materially
prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable
judgment a conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim.




          (d) The indemnification provided for under this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of the indemnified party
or any officer, director or controlling Person of such indemnified party and will survive the
transfer of securities. If the indemnification provided for in paragraph 6(a) from the Company is
unavailable to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the Company, in lieu of indemnifying the
indemnified party, shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Company and the indemnified party, as well as any other
relevant equitable considerations. The relative faults of the indemnifying party and
indemnified party shall be determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, was made by, or relates to information supplied by, the
Company or such indemnified party, and the Company’s and indemnified party’s relative intent,
knowledge, access to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages, liabilities or expenses
referred to above shall be deemed to include any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or proceeding. The
parties hereto agree that it would not be just and equitable if contribution pursuant to this
paragraph 6(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the preceding
sentences. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this paragraph 6(d).




          7. Participation in Underwritten Registrations.




          (a) No Person may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements
(including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option
requested by the managing underwriter(s), provided that





10









 







no holder of Registrable Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any registration) and (ii)
completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements; provided that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or warranties to the
Company or the underwriters (other than representations and warranties regarding such holder and
such holder’s intended method of distribution) or to undertake any indemnification or “holdback”
obligations to the Company or the underwriters with respect thereto, except as otherwise provided
in paragraphs 3 and 6 hereof.




          (b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any written notice from the Company of the happening of any event of the kind described in
paragraph 4(e) and 4(k) above, such Person will forthwith discontinue the disposition of its
Registrable Securities pursuant to the registration statement until such Person’s receipt of the
copies of a supplemented or amended prospectus as contemplated by such paragraph 4(e). If the
Company gives any such written notice, the applicable time period mentioned in paragraph 4(b)
during which a registration statement is to remain effective will be extended by the number of days
during the period from and including the date of the giving of such written notice pursuant to this
paragraph to and including the date when each seller of a Registrable Security covered by such
registration statement has received the copies of the supplemented or amended prospectus
contemplated by paragraph 4(e).




          8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant
to the requirements of either the Securities Act or the Securities Exchange Act, the Company will
file in a timely manner all reports and other documents required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities
and Exchange Commission thereunder, and will take such further action as any holder or holders of
Registrable Securities may reasonably request, all to the extent required to enable such
holders to sell Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the Securities and Exchange Commission.
Without limiting the foregoing, the Company covenants that, at its own expense, it will
promptly take such action as any Shareholder may reasonably request, all to the extent required from
time to time to enable such Shareholder to transfer its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (i) Rules 144,
144A or Regulation S under the Securities Act or (ii) any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission. Upon the request of a Shareholder, the Company,
at its own expense, will promptly deliver to such Shareholder (i) a written statement as to
whether it has complied with such requirements (and such Shareholder shall be entitled to rely
upon the accuracy of such written statement), (ii) a copy of the most recent annual or
quarterly report of the Company and (iii) such other reports and documents as such Shareholder may
reasonably request in order to avail itself of any rule or regulation of the Securities and
Exchange Commission allowing it to transfer its shares without registration.




          9. Definitions.




11









 





          “Affiliate” of a Shareholder means any other Person, entity or investment or co-investment
fund directly or indirectly controlling, controlled by or under common control with the Shareholder
and, in the case of a Shareholder which is an entity, any shareholder, member, partner or other
equity holder of such Shareholder, which, in each case, beneficially owns at least 10% of the
outstanding voting interests of the Shareholder. Each fund managed by Carlyle or an Affiliate of
Carlyle shall be an Affiliate of Carlyle for purposes of this Agreement and no portfolio company of
Carlyle or its Affiliates shall be considered an Affiliate of Carlyle or such Affiliate for
purposes of this Agreement.




          “Common Stock” means the common stock of the Company, par value $.001 per share.




          “Apollo Registrable Securities” means (i) any shares of Common Stock issued to Apollo
pursuant to the Joint Venture Agreement; (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange and (iii) any other shares of
Common Stock now held or hereafter acquired by Apollo; provided, that in the event that
pursuant to such recapitalization or exchange, equity securities are issued which do not
participate in the residual equity of the Company (“Non-Participating Securities”), such
Non-Participating Securities will not be Registrable Securities. As to any particular shares
constituting Apollo Registrable Securities, such shares will cease to be Apollo Registrable
Securities when they have (x) been effectively registered under the Securities Act and disposed of
in accordance with the registration statement covering them, or (y) been sold to the public
through a broker, dealer or market maker pursuant to Rule 144 (or by similar provision then in
force) under the Securities Act or (z) have become eligible for sale under Rule 144(k).




          “Carlyle Registrable Securities” means (i) any shares of Common Stock issued to
Carlyle or Carlyle Affiliates pursuant to the Joint Venture Agreement; (ii) any equity securities
issued or issuable directly or indirectly with respect to the securities referred to in clause (i)
by way of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a recapitalization or
exchange and (iii) any other shares of Common Stock now held or hereafter acquired by Carlyle or
any of Carlyle’s Affiliates; provided, that in the event that pursuant to such
recapitalization or exchange, equity securities are issued which do not participate in the
residual equity of the Company (“Non-Participating Securities”), such Non-Participating Securities
will not be Registrable Securities. As to any particular shares constituting Carlyle Registrable
Securities, such shares will cease to be Carlyle Registrable Securities when they have (x) been
effectively registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) been sold to the public through a broker, dealer or
market maker pursuant to Rule 144 (or by similar provision then in force) under the Securities Act
or (z) have become eligible for sale under Rule 144(k).




          “Initial Public Offering” means an initial public offering by the Company of its
Common Stock to the public effected pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or any comparable statement under any similar United States
federal statute then in effect.




12









 





          “Person” means an individual, a limited liability company, an association, a joint stock
company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and
a government or any department, agency or political subdivision thereof.




          “Qualified IPO” means the closing of the sale of shares of Common Stock in a firm commitment
underwritten public offering pursuant to an effective registration statement under the Securities
Act, in which the gross aggregate cash proceeds to the Company (before deduction of underwriting
discount, commissions and expenses of sale) are at least $50,000,000.




          “Registrable Securities” means the Apollo Registrable Securities and the Carlyle
Registrable Securities, including such shares of Common Stock hereafter acquired by transferees of
the Apollo Registrable Securities and the Carlyle Registrable, provided that such transfers are
effected in accordance with the terms and conditions the Shareholders’ Agreement of even date
herewith with respect to transfers of Common Stock.




          “Securities Act” means the Securities Act of 1933, as amended, or any similar federal law
then in force.




          “Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof.




          “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, or
any similar federal law then in force.




          10. Miscellaneous.




          (a) No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.




          (b) Adjustments Affecting Registrable Securities. The Company will not take
any action, or permit any change to occur, with respect to its securities which would
materially and adversely affect the ability of the holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement or which would
adversely affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of shares).




          (c) Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this Agreement and
that any party hereto will have the right to injunctive relief, in addition to all of its
other rights and remedies at law or in equity, to enforce the provisions of this Agreement.




          (d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior written consent of
each of the Company, Carlyle and the holders of a majority of the Registrable Securities;
provided, that if such amendment or waiver would treat a holder or group of holders of
Registrable Securities in a manner different from any other holders of Registrable Securities
(other than as already provided herein), then such amendment or waiver will require the
consent





13









 







of such holder or the holders of a majority of the Registrable Securities of such group adversely
treated. The Company will give prompt written notice to the parties hereto of any amendments,
modifications, or waivers of the provisions of this Agreement.




          (e) Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective successors and
assigns. In addition, and whether or not any express assignment has been made, the provisions
of this Agreement that are for the benefit of the holders of Registrable Securities (or any
portion thereof) as such will be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof), subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities (or of such portion
thereof) required in order to be entitled to certain rights, or take certain actions, contained herein.




          (f) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained herein.




          (g) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than one party,
but all such counterparts taken together will constitute one and the same Agreement.




          (h) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.




          (i) Governing Law. This Agreement shall be construed according to and governed by the
laws of the State of Delaware, without reference to conflicts of laws principles.




          (j) Notices. Any notice provided for in this Agreement will be in writing and will be
either (i) personally delivered, (ii) delivered by certified mail, return receipt requested, (iii)
sent by a nationally recognized overnight courier service (charges prepaid), or (iv) faxed with a
copy following by any method described in the foregoing clauses (i) to (iii), to each Shareholder
that is a party hereto at the address indicated in the Shareholders Agreement and to the Company
at the address indicated below, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, five days after deposit in the U.S. mail
and one day after deposit with a nationally recognized overnight courier service.



If to the Company:



Apollo Global, Inc. 

c/o Apollo Group, Inc. 
4615 East
Elwood Street 
Phoenix, AZ
85040




14









 







Attention: Chief Financial Officer

Facsimile: (602) 383-5159




[Remainder of page intentionally left blank]




15









 





          IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement on the day
and year first above written.




	 	 	 	 	 	 	 	 	 
	 	 	APOLLO GLOBAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	APOLLO GROUP, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CARLYLE VENTURE PARTNERS III, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: TCG VENTURES III, L.P.	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





Schedule 5.4 Capitalization




 









 




Schedule 5.5




Subsidiaries





 











 





ARTICLE XII




     To the fullest extent permitted by applicable law, the corporation is also authorized to
provide indemnification of (and advancement of expenses to) such agents (and any other persons to
which Delaware law permits the corporation to provide indemnification) through bylaw provisions,
agreements with such agents or other persons, vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of
the General Corporation Law of the State of Delaware, subject only to limits created by applicable
Delaware law (statutory or non-statutory), with respect to actions for breach of duty to the
corporation, its stockholders, and others.



     Any repeal or modification of any of the foregoing provisions of this Article XII shall not
adversely affect any right or protection of a director, officer, agent or other person existing at
the time of, or increase the liability of any director of the corporation with respect to any acts
or omissions of such director, officer or agent occurring prior to such repeal or modification.



	 	 	 	 	 
	 	 	 
	Dated: October 18, 2007 	/s/ Peter S. Park
 	 
	 	Peter S. Park, Sole Incorporator 	 
	 	 	 
	 








 









 











EXHIBIT B 




BYLAWS





 









 








BYLAWS

OF

APOLLO GLOBAL, INC.




ARTICLE I.

OFFICES




     Section 1. Registered Office. The registered office shall be at the office of City of
Dover, County of Kent, State of Delaware.



     Section 2. Other Offices. The corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from time to time
determine or the business of the corporation may require.



ARTICLE II.

MEETINGS OF STOCKHOLDERS




     Section 1. Annual Meeting. An annual meeting of the stockholders for the election of
directors shall be held at such place either within or without the State of Delaware as shall be
designated on an annual basis by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof. Any other proper business may be transacted at the annual
meeting.



     Section 2. Notice of Annual Meeting. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the meeting.



     Section 3. Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare and make, or cause a third party to prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.



     Section 4. Special Meetings. Special meetings of the stockholders of the corporation,
for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, shall be called by the President or Secretary at the request in writing of a
majority of the members of the Board of Directors or at the request in writing of stockholders
owning at



 









 




least ten (10%) of the total voting power of all outstanding shares of stock of the corporation
then entitled to vote, and may not be called absent such a request. Such request shall state the
purpose or purposes of the proposed meeting.




     Section 5. Notice of Special Meetings. As soon as reasonably practicable after receipt
of a request as provided in Section 4 of this Article II, written notice of a special meeting,
stating the place, date (which shall be not less than ten nor more than sixty days from the date of
the notice) and hour of the special meeting and the purpose or purposes for which the special
meeting is called, shall be given to each stockholder entitled to vote at such special meeting.



     Section 6. Scope of Business at Special Meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.



     Section 7. Quorum. The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the chairman of the meeting or the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting as provided
in Section 5 of this Article II.



     Section 8. Qualifications to Vote. The stockholders of record on the books of the
corporation at the close of business on the record date as determined by the Board of Directors
and only such stockholders shall be entitled to vote at any meeting of stockholders or any
adjournment thereof.



     Section 9. Record Date. The Board of Directors may fix a record date for the
determination of the stockholders entitled to notice of or to vote at any stockholders’ meeting
and at any adjournment thereof, or to express consent to corporate action in writing without a
meeting, or to receive payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action. The record date shall not be more than sixty nor less
than ten days before the date of such meeting, and not more than sixty days prior to any other
action. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given, or if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.



2









 





     Section 10. Action at Meetings. When a quorum is present at any meeting, the vote of
the holders of a majority of the shares of stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting, unless the question is
one upon which by express provision of applicable law or of the Certificate of Incorporation, a
different vote is required, in which case such express provision shall govern and control the
decision of such question.



     Section 11. Voting and Proxies. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period. Each proxy shall be revocable unless expressly provided therein to
be irrevocable and unless it is coupled with an interest sufficient in law to support an
irrevocable power.



     Section 12. Action by Stockholders Without a Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware (by hand or by certified or registered mail, return
receipt requested), to its principal place of business, or to an officer or agent of the
corporation having custody of the book in which proceedings of meetings of stockholders are
recorded, provided, however, that action by written consent to elect directors, if less than
unanimous, shall be in lieu of holding an annual meeting only if all the directorships to which
directors could be elected at an annual meeting held at the effective time of such action are
vacant and are filled by such action. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting, would have been entitled
to notice of the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the action were delivered to the
corporation by delivery to its registered office in the State of Delaware (by hand or by certified
or registered mail, return receipt requested), to its principal place of business, or to an
officer or agent of the corporation having custody of the book in which proceedings or meetings of
stockholders are recorded.



ARTICLE III.

DIRECTORS




     Section 1. Powers. The business of the corporation shall be managed by or under the
direction of its Board of Directors, which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by applicable law or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.



3









 





     Section 2. Number; Election; Tenure and Qualification. The number of directors which
shall constitute the whole board shall be fixed from time to time by resolution of the Board of
Directors or by the stockholders at an annual meeting of the stockholders, with the exception of
the first Board of Directors, which shall be elected by the incorporator. Directors need not be
stockholders. Except as provided in the corporation’s Certificate of Incorporation or in Section 3
of this Article III, the directors shall be elected at the annual meeting of the stockholders by a
plurality vote of the shares represented in person or by proxy and each director elected shall
hold office until his successor is elected and qualified unless he shall resign, become
disqualified, disabled, or otherwise removed, subject to the following:



     (a) Four (4) directors shall be designated by Apollo Group, Inc. (the “Apollo
Directors”);



     (b) Two (2) directors shall be designated by Carlyle Venture Partners III, L.P. (the
“Carlyle Directors”), provided that on any date that Carlyle Venture Partners III, L.P. and
its Affiliates (as defined in the Shareholders’ Agreement, dated as of October 22, 2007, as the
same may be amended from time to time (the “Shareholders’ Agreement”)) do not own, in the
aggregate, either (i) ten percent (10%) or more of the issued and outstanding Shareholder
Shares (as defined in the Shareholders’ Agreement) or (ii) shares of the Company Stock (as defined in
the Shareholders’ Agreement) with a Fair Market Value (as defined in the Shareholders’
Agreement) of one hundred million dollars ($100,000,000) or more, one (1) director shall be
designated by Carlyle Venture Partners III, L.P.; and



     (c) One (1) director shall be designated as the then elected and qualified President
and Chief Executive Officer of the corporation.



     Section 3. Vacancies and Newly Created Directorships. In the event that any representative
designated pursuant to Section 2 of this Article III ceases to serve as a member of the Board of
Directors during his term of office for any reason, the resulting vacancy on the Board of Directors
will be filled by a representative selected by the party entitled to designate such representative
pursuant to Section 2 of this Article III. Newly-created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, provided that the directors designated
by Apollo Group, Inc. shall constitute at least a majority of the Board at all times. The directors
so chosen shall serve until the next annual election and until their successors are duly elected
and shall qualify, unless sooner displaced.



     Section 4. Location of Meetings. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of Delaware.



     Section 5. Meeting of Newly Elected Board of Directors. The first meeting of each
newly elected Board of Directors shall be held immediately following the annual meeting of
stockholders and no notice of such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by all of the directors.



4









 





     Section 6. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be determined by the
Board of Directors; provided that any director who is absent when such a determination is made
shall be given notice of such location.



     Section 7. Special Meetings. Special meetings of the Board of Directors may be called by the
President on two days’ notice to each director by mail, nationally recognized overnight courier
service or facsimile; special meetings shall be called by the President or Secretary in a like
manner and on like notice on the written request of two directors unless the Board of Directors
consists of only one director, in which case special meetings shall be called by the President or
Secretary in a like manner and on like notice on the written request of the sole director. Notice
may be waived in accordance with Section 229 of the General Corporation Law of the State of
Delaware.



     Section 8. Quorum and Action at Meetings. At all meetings of the Board of Directors, a
majority of the directors then in office shall constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors, except as may be otherwise specifically provided by statute
or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be present.



     Section 9. Action Without a Meeting. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a meeting, if all members
of the Board of Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of Directors or
committee.



     Section 10. Telephonic Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or any committee,
by means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear and communicate with each other, and such participation in a
meeting shall constitute presence in person at the meeting.



     Section 11. Committees. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to consist of at
least one (1) Apollo Director and one (1) Carlyle Director. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.



5









 





     Section 12. Committee Authority. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to (a) approving, adopting or recommending
to the stockholders, any action or matter expressly required by the General Corporation Law of the
State of Delaware to be submitted to stockholders for approval, or (b) adopting, amending or
repealing any Bylaw of the corporation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of Directors.



     Section 13. Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required to do so by the Board of
Directors.



     Section 14. Directors Compensation. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors shall be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for attending committee
meetings.



     Section 15. Resignation. Any director or officer of the corporation may resign at any
time. Each such resignation shall be made in writing and shall take effect at the time specified
therein, or, if no time is specified, at the time of its receipt by either the Board of Directors,
the President or the Secretary. The acceptance of a resignation shall not be necessary to make it
effective unless expressly so provided in the resignation.



     Section 16. Removal. Unless otherwise restricted by the Certificate of Incorporation,
these Bylaws or applicable law, (a) the removal from the Board of Directors (without cause) of any
of the Apollo Directors shall be at Apollo Group, Inc.’s written request, and only upon such
request and under no other circumstances, and (b) the removal from the Board of Directors (without
cause) of any of the Carlyle Directors shall be at Carlyle Venture Partners III, L.P.’s written
request, and only upon such request and under no other circumstances, provided that one of the
Carlyle Directors shall be removed promptly after any date that Carlyle Venture Partners III, L.P.
and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) or more of the
issued and outstanding Shareholder Shares or (ii) shares of the Company Stock with a Fair Market
Value of one hundred million dollars ($100,000,000) or more. Any newly created directors may be
removed, without cause, by the affirmative vote of a majority of the remaining directors. Any
director may be removed from the Board of Directors for cause by the affirmative vote of a
majority of the remaining directors.



6









 





ARTICLE IV.

NOTICES




     Section 1. Notice to Directors and Stockholders. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail or nationally recognized overnight courier, addressed to such
director or stockholder, at his address as it appears on the records of the corporation, with
postage thereon prepaid, and such notice shall be deemed to be given five days after the same shall
be deposited in the United States mail or one day after delivery to a nationally recognized
overnight courier. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent
of the corporation that the notice has been given shall in the absence of fraud, be prima facie
evidence of the facts stated therein. Notice to directors may also be given by telephone or
facsimile (with confirmation of receipt).



     Section 2. Waiver. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. The written waiver need not specify the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Attendance at the meeting
is not a waiver of any right to object to the consideration of matters required by the General
Corporation Law of the State of Delaware to be included in the notice of the meeting but not so
included, if such objection is expressly made at the meeting.



ARTICLE V.

OFFICERS




     Section 1. Enumeration. The officers of the corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, a Treasurer or Chief Financial Officer
and such other officers with such other titles as the Board of Directors shall determine. The
Board of Directors may elect from among its members a Chairman or Chairmen of the Board and a Vice
Chairman of the Board. The Board of Directors may also choose one or more Vice-Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same
person, unless the Certificate of Incorporation or these Bylaws otherwise provide.



     Section 2. Election. The Board of Directors at its first meeting after each annual
meeting of stockholders shall elect a President, a Secretary, a Treasurer and such other officers
with such other titles as the Board of Directors shall determine.



     Section 3. Appointment of Other Agents. The Board of Directors may appoint such other
officers and agents as it shall deem necessary, who shall hold their offices for such terms



7









 




and shall exercise such powers and perform such duties as shall be determined from time to time by
the Board of Directors.




     Section 4. Compensation. The salaries of all officers of the corporation shall be
fixed by the Board of Directors or a committee thereof. The salaries of agents of the corporation
shall, unless fixed by the Board of Directors, be fixed by the President or any Vice-President of
the corporation.



     Section 5. Tenure. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may
be removed at any time by the affirmative vote of a majority of the directors of the Board of
Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of
Directors.



     Section 6. Chairman of the Board and Vice-Chairman of the Board. The Chairman of the
Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at
which the Chairman shall be present. The Chairman shall have and may exercise such powers as are,
from time to time, assigned to the Chairman by the Board of Directors and as may be provided by
law. In the absence of the Chairman of the Board, the Vice Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors and of the stockholders at which the Vice
Chairman shall be present. The Vice Chairman shall have and may exercise such powers as are, from
time to time, assigned to such person by the Board of Directors and as may be provided by law.



     Section 7. President. The President shall be the Chief Executive Officer of the
corporation unless such title is assigned to another officer of the corporation; in the absence of
a Chairman and Vice Chairman of the Board, the President shall preside as the chairman of meetings
of the stockholders and the Board of Directors; and the President shall have general and active
management of the business of the corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President or any Vice President shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.



     Section 8. Vice-President. In the absence of the President or in the event of the
President’s inability or refusal to act, the Vice-President, if any (or in the event there be more
than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their election) shall perform the duties
of the President, and when so acting shall have all the powers of and be subject to all the
restrictions upon the President. The Vice-President shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.



     Section 9. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of the meetings of
the corporation and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary shall give, or



8









 




cause to be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision the Secretary shall be subject. The Secretary shall have custody
of the corporate seal of the corporation and the Secretary, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the Secretary’s signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the corporation and
to attest the affixing by such officer’s signature.




     Section 10. Assistant Secretary. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be
no such determination, then in the order of their election) shall, in the absence of the Secretary
or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.



     Section 11. Chief Financial Officer. The Chief Financial Officer may also be
designated by the alternate title of “Treasurer.” The Chief Financial Officer shall have the
custody of all moneys and securities of the Corporation and shall keep regular books of account.
Such officer shall disburse funds of the Corporation in payment of the just demands against the
Corporation, or as may be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the Board from time to time as may be required of such officer, an account of all
transactions as Chief Financial Officer and of the financial condition of the Corporation. Such
officer shall perform all duties incident to such office or that are properly required by the
President or by the Board. If required by the Board of Directors, the Chief Financial Officer
shall give the corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of such officer’s office and for the restoration to the corporation, in
case of such officer’s death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in such officer’s possession or
control belonging to the corporation.



     Section 12. Assistant Treasurer. The Assistant Treasurer or the Assistant Treasurers,
in the order of their seniority, shall, in the absence or disability of the Chief Financial
Officer, or in the event of such officer’s refusal to act, perform the duties and exercise the
powers of the Chief Financial Officer, and shall have such powers and discharge such duties as may
be assigned from time to time by the President or by the Board of Directors.



ARTICLE VI.

CAPITAL STOCK




     Section 1. Certificates. The shares of the corporation shall be represented by a
certificate. Certificates shall be signed by, or in the name of the corporation by, (a) the
Chairman of the Board, the Vice-Chairman of the Board, the President or a Vice-President, and (b)
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying
the number of shares owned by such stockholder in the corporation. Certificates may be issued for



9









 




partly paid shares and in such case upon the face or back of the certificates issued to represent
any such partly paid shares, the total amount of the consideration to be paid therefor and the
amount paid thereon shall be specified.




     Section 2. Signature. Any of or all of the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue.



     Section 3. Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or such owner’s legal representative, to
indemnify the corporation against any claim that may be made against the corporation with respect
to the certificate alleged to have been lost, stolen or destroyed.



     Section 4. Transfer of Stock. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the corporation to issue
a new certificate to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.



     Section 5. Record Date. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholder or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior
to any other action. A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.



     Section 6. Registered Stockholders. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by the laws of
Delaware.



10









 





ARTICLE VII.

GENERAL PROVISIONS




     Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to
the applicable provisions, if any, of the Certificate of Incorporation, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property or in shares of capital stock, subject to the provisions of the Certificate of
Incorporation. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board of Directors from time to time,
in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the corporation, or for such
other purposes as the Board of Directors shall think conducive to the interest of the corporation,
and the Board of Directors may modify or abolish any such reserve in the manner in which it was
created.



     Section 2. Checks. All checks or demands for money and notes of the corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors
may from time to time designate.



     Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.



     Section 4. Seal. The Board of Directors may adopt a corporate seal having inscribed
thereon the name of the corporation, the year of its organization and the words “Corporate Seal,
Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.



     Section 5. Loans. The Board of Directors of the corporation may, without stockholder
approval, authorize loans to, or guaranty obligations of, or otherwise assist, including, without
limitation, the adoption of employee benefit plans under which loans and guarantees may be made,
any officer or other employee of the corporation or of its subsidiary, including any officer or
employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the
Board of Directors, such loan, guaranty or assistance may reasonably be expected to benefit the
corporation; provided, however, that (a) no material loan may be made to Carlyle Venture Partners
III, L.P. or any Affiliate, member, partner, director, officer or employee of Carlyle Venture
Partners III, L.P. or any “associate” (as defined in Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) of any such Person (as defined in the
Shareholders’ Agreement) or Carlyle Venture Partners III, L.P. without the prior consent of Apollo
Group, Inc. (which consent may be given or withheld in Apollo Group, Inc.’s sole discretion),
except for transactions contemplated by the Shareholders’ Agreement or the Joint Venture
Agreement, dated as of October 22, 2007, as the same may be amended from time to time, (b) no
material loan may be made to Apollo Group, Inc. or any Affiliate, member, partner, director,
officer or employee of Apollo Group, Inc. or any “associate” (as defined in Rule 12b-2 promulgated
under the Exchange Act) of any such Person or Apollo Group, Inc. without the prior consent of
Carlyle Venture Partners III, L.P. (which consent may be given or withheld in Carlyle Venture
Partners III, L.P.’s sole discretion), except for (i) transactions contemplated by the
Shareholders’ Agreement or the Joint Venture



11









 




Agreement, dated as of October 22, 2007, as the same may be amended from time to time, or (ii)
pursuant to the Support Services Agreement, by and between Apollo Group, Inc. and the corporation,
or (c) on any date that Carlyle Venture Partners III, L.P. and its Affiliates own, in the aggregate,
either (i) ten percent (10%) or more of the issued and outstanding Shareholder Shares or (ii)
shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000)
or more, the corporation shall not, without the prior written consent of Carlyle Venture Partners
III, L.P. (which consent may be given or withheld in Carlyle Venture Partners III, L.P.’s sole
discretion), make any loan (other than intercompany loans) to any Person which (1) is outside of
the ordinary course of business of the corporation and (2) equals or exceeds $1,000,000. The loan,
guaranty or other assistance may be with or without interest, and may be unsecured, or secured in
such manner as the Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation.




ARTICLE VIII.

INDEMNIFICATION




     Section 1. Scope. The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as that Section may be amended and
supplemented from time to time, indemnify any present or former director, officer, employee or
agent of the corporation, against expenses (including attorneys’ fees), judgments, fines, amounts
paid in settlement and/or other matters referred to in or covered by that Section, by reason of
the fact that such person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.



     Section 2. Advancing Expenses. Expenses (including attorneys’ fees) incurred by a
present or former director or officer of the corporation in defending a civil, criminal,
administrative or investigative action, suit or proceeding by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation (or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or
on behalf of such director or officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the corporation as authorized by relevant
provisions of the General Corporation Law of the State of Delaware; provided, however, the
corporation shall not be required to advance such expenses to a director (i) who commences any
action, suit or proceeding as a plaintiff unless such advance is specifically approved by a
majority of the Board of Directors, or (ii) who is a party to an action, suit or proceeding
brought by the corporation and approved by a majority of the Board of Directors which alleges
willful misappropriation of corporate assets by such director, disclosure of confidential
information in violation of such director’s fiduciary or contractual obligations to the
corporation, or any other willful and deliberate breach in bad faith of such director’s duty to
the corporation or its stockholders.



     Section 3. Liability Offset. The corporation’s obligation to provide indemnification
under this Article VIII shall be offset to the extent the indemnified party is indemnified by any



12









 




other source including, but not limited to, any applicable insurance coverage under a policy
maintained by the corporation, the indemnified party or any other person.




     Section 4. Continuing Obligation. The provisions of this Article VIII shall be deemed
to be a contract between the corporation and each director of the corporation who serves in such
capacity at any time while this bylaw is in effect, and any repeal or modification thereof shall
not affect any rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in
whole or in part upon any such state of facts.



     Section 5. Nonexclusive. The indemnification and advancement of expenses provided for
in this Article VIII shall (i) not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacities and as to action in another
capacity while holding such office, (ii) continue as to a person who has ceased to be a director
and (iii) inure to the benefit of the heirs, executors and administrators of such a person.



     Section 6. Other Persons. In addition to the indemnification rights of directors,
officers, employees, or agents of the corporation, the Board of Directors in its discretion shall
have the power on behalf of the corporation to indemnify any other person made a party to any
action, suit or proceeding who the corporation may indemnify under Section 145 of the General
Corporation Law of the State of Delaware.



     Section 7. Definitions. The phrases and terms set forth in this Article VIII shall be
given the same meaning as the identical terms and phrases are given in Section 145 of the General
Corporation Law of the State of Delaware, as that Section may be amended and supplemented from
time to time.



ARTICLE IX.

AMENDMENTS




     Except as otherwise provided in the Certificate of Incorporation, these Bylaws may be
altered, amended or repealed, or new Bylaws may be adopted, by the holders of a majority of the
outstanding voting shares or by the Board of Directors, when such power is conferred upon the
Board of Directors by the Certificate of Incorporation, at any regular meeting of the stockholders
or of the Board of Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such special meeting. If the power to adopt, amend or repeal Bylaws is conferred
upon the Board of Directors by the Certificate of Incorporation, it shall not divest or limit the
power of the stockholders to adopt, amend or repeal Bylaws.



[Remainder of page intentionally left blank]




13









 








CERTIFICATE OF SECRETARY

OF

APOLLO GLOBAL, INC.




     The undersigned certifies:




          1. That the undersigned is the duly elected and acting Secretary of
Apollo Global, Inc., a Delaware corporation (the “Corporation”); and




          2. That the foregoing Bylaws constitute the Bylaws of the
Corporation as duly adopted by the Action by Unanimous Written Consent in Lieu of the
Organizational Meeting by the Board of Directors of the Corporation, dated the 22nd day
of October, 2007.



          IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of the Corporation
as of this 22nd day of October, 2007.



	 	 	 	 	 
	 	 	 
	 	 
 	 
	 	P. Robert Moya, Secretary 	 
	 	 	 
	 




 









 





EXHIBIT C




SHAREHOLDERS AGREEMENT




 









 





Execution




SHAREHOLDERS’ AGREEMENT




          THIS SHAREHOLDERS’ AGREEMENT (this “Agreement”) is made and entered into as of October 22,
2007, by and among Apollo Global, Inc., a Delaware corporation (the “Company”), Apollo Group,
Inc., an Arizona corporation (“Apollo”), Carlyle Venture Partners III, L.P., a Delaware limited
partnership (“Carlyle” and, together with Apollo and each Affiliate of Carlyle and Apollo that
hereafter becomes a Shareholder, collectively the “Investor Shareholders”), and the Persons
listed on Schedule I attached hereto or who otherwise agree to be bound by the
provisions hereof as an Other Shareholder by executing a joinder agreement (the “Other
Shareholders”). Apollo, Carlyle and the Other Shareholders are collectively referred to herein
as the “Shareholders.” Unless otherwise indicated herein, capitalized terms used herein are
defined in paragraph 13 hereof.



RECITALS




          Apollo and Carlyle are parties to a Joint Venture Agreement dated as of the date hereof
(the “Joint Venture Agreement”), and the closing of the initial purchase and sale of the
Company’s common stock pursuant to the Joint Venture Agreement is conditioned, among other
things, on the execution and delivery of this Agreement.



          The parties hereto are entering into this Agreement to establish the composition of the
Company’s board of directors (the “Board”), to restrict the sale, assignment, transfer,
encumbrance or other disposition of the Shareholder Shares (as defined below) and to provide for
certain rights and obligations in respect thereto as hereinafter provided.



AGREEMENT




          NOW, THEREFORE, the parties to this Agreement agree as follows:



          1. Voting Agreement and Proxy.



          (a) From and after the date hereof and until the provisions of this paragraph 1 cease to be
effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting
shares and any other voting securities of the Company over which such Shareholder has voting
control and shall take all other necessary or desirable actions within such holder’s control
(whether in such holder’s capacity as a shareholder, director, member of a board committee or
officer of the Company or otherwise, and including, without limitation, attendance at meetings
in person or by proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings), and the Company shall take all necessary or desirable actions within its
control (including, without limitation, calling special board and shareholder meetings), so
that:



               (i) the authorized number of directors on the Board shall be seven (7);



               (ii) four directors shall be designated by Apollo, which representatives shall, as of
the date of this Agreement, be Gregory Cappelli, Brian Mueller, Roy Herberger and Peter Sperling
(the “Apollo Directors”);



 









 





               (iii) two directors shall be designated by Carlyle, which representatives shall, as of the
date of this Agreement, be Brooke B. Coburn and Charles C. Moore (the “Carlyle Directors”),
provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate,
either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y)
shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000)
(or more), one director shall be designated by Carlyle;



               (iv) the President of the Company shall be a director;



               (v) the removal from the Board without cause of any of the Apollo Directors under paragraph
l(a)(ii) above shall be at Apollo’s written request, and only upon such written request and under
no other circumstances; and



               (vi) the removal from the Board without cause of any of the Carlyle Directors under paragraph
l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and
under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after
any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent
(10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company
Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more).



          (b) In the event that any representative designated hereunder by any party
ceases to serve as a member of the Board during his term of office for any reason, the
resulting vacancy on the Board will be filled by a representative selected by the party entitled to
designate such representative pursuant to paragraph l(a). The parties agree that any director may be
removed from the Board for cause by resolution adopted by a majority of the remaining
directors.



          (c) Each of Apollo and Carlyle, for so long as it remains a Shareholder
hereunder, shall have the right to designate and remove two representatives (each such
representative, a “Board Observer”) who shall (1) have the right to receive due notice of and
to attend and participate in discussions at (but not vote on any matters on which the directors
are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2)
have the right to receive copies of all documents and other information, including minutes,
consents,business plans, presentation materials, budgets and financial information furnished generally
to members of the Board and committees thereof, and (3) be entitled to be indemnified by the
Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis
mutandis as if he or she were a member of the Board (and the Company hereby agrees to so
indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and
its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of
the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair
Market Value of one hundred million dollars (or more), Carlyle shall have the right to
designate and remove one Board Observer.



2









 





          (d) The Company will pay or promptly reimburse the actual
reasonable out-of-pocket expenses incurred by each member of the Board and each Board
Observer in connection with attending meetings of the Board or any committee of the Board.



          (e) In order to secure the obligations of each Other Shareholder who
now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in
accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints
Apollo as his or its true and lawful proxy and attorney-in-fact, with full power of
substitution, to
vote all of his or its Shareholder Shares for the election and/or removal of directors and all
such
other matters as expressly provided for in paragraph 1. Apollo may exercise the irrevocable
proxy granted to it hereunder by any Other Shareholder at any time if any such Other
Shareholder fails to comply with the provisions of this Agreement. The proxies and powers
granted by each such Other Shareholder pursuant to this paragraph l(e) are coupled with an
interest and are given to secure the performance of such Other Shareholder’s obligations under
this Agreement. Such proxies and powers shall be irrevocable until termination of this
paragraph
1 and shall survive the death, incompetency, disability, bankruptcy or dissolution of each
such
Shareholder and the subsequent holders of his or its Shareholder Shares. No Shareholder shall
grant any proxy or become party to any voting trust or other agreement which is inconsistent
with, conflicts with or violates any provision of this Agreement.



          (f) The provisions of this paragraph 1 shall terminate automatically and be of
no further force and effect upon the earlier to occur of (i) the consummation of an Approved
Sale
and (ii) a Public Offering.



          2. Matters Requiring Specific Approval.



          (a) Matters Requiring Approval of the Board. The business and affairs of the Company
shall be managed by the Board as described in Section 141 of the Delaware General Corporation Law.
Without limiting the generality of the preceding sentence, the Company shall not take any of the
following actions without the prior approval of at least a majority of the Board of Directors and
as provided in the Company’s Bylaws:




               (i) acquire or sell any interest in any Person or business; provided,
however, that any acquisition or sale of a Person or business involving, individually or in
the aggregate, consideration in excess of $50,000,000 shall be subject to paragraph 2(b)(2)(v)
below;




               (ii) incur any Company Indebtedness, or issue or sell any debt securities or other
rights to acquire any debt securities of the Company or any of its Subsidiaries, except for
transactions between the Company and any of its Subsidiaries; provided, however, that any
security interests in connection with such debt arrangements shall be limited solely to the
Company’s assets unless otherwise approved by the Investor Shareholders;



3









 






               (iii) declare, set aside or pay any dividends on, or make any other distributions
(whether in cash, stock or property) in respect of, any of its capital stock;




               (iv) hire or terminate the employment of the Company’s President, Chief Financial
Officer or Chief Operating Officer, subject to paragraph 2(b)(2)(iv) below;




               (v) establish or materially modify the compensation or benefits
payable or to become payable by the Company to the Company’s President, Chief Financial Officer
or Chief Operating Officer, other than benefits generally provided to senior management or
employees on the same terms; or




               (vi) approve the annual operating plan and budget.



          (b) Matters Requiring Approval of Carlyle.



               (1) The Company shall not, without the prior written consent of
Carlyle (which consent may be given or withheld in Carlyle’s sole discretion):




          (i) (a) dissolve or wind-up the Company, (b) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (c) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or the
filing of any petition seeking relief under Title 11 of the United States Code, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (d) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a substantial part of the property or
assets of the Company or any Subsidiary, (e) file an answer admitting the material allegations of
a petition filed against it in any proceeding described in clause (b) above, (f) make a general
assignment for the benefit of creditors, or (g) take any action for the purpose of effecting any
of the foregoing.




          (ii) amend, revise, modify, supplement or discontinue the Investment Scope; or




          (iii) amend, modify or restate the Certificate of Incorporation or Bylaws of the
Company in any respect that is adverse to Carlyle or the ownership of Shareholder Shares by
Carlyle.



               (2) On any date that Carlyle and its Affiliates own, in the aggregate,
either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or
(ii) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more),
the Company shall not, without the prior written consent of Carlyle (which consent may be
given or withheld in Carlyle’s sole discretion):



               (i) issue any new class or series of stock, or any other equity securities, or any other
securities convertible into equity securities of the Company, other than any shares or



4









 




equity securities issued pursuant to (x) the Joint Venture Agreement or (y) an employee stock
option plan or similar arrangement approved by the Board to the extent that the limit described in
paragraph 6 is not exceeded for all employee plans and arrangements;




               (ii) approve any employee stock option or similar arrangement or reserve or issue shares of
the Company Stock thereunder to the extent that the limit described in paragraph 6 is exceeded in
the aggregate by all employee plans and arrangements;



               (iii) redeem or repurchase any equity securities of the Company (except for acquisitions
of Common Stock by the Company pursuant to (x) agreements which permit the Company to repurchase
such shares upon termination of services to the Company, and (y) the Joint Venture Agreement);



               (iv) hire or terminate the employment of the Company’s President and Chief Executive
Officer, provided that determination of the compensation of the President and Chief
Executive Officer shall be at the discretion of the Board and Carlyle will not have the right to
approve such compensation;



               Additionally, in the event the Company does not have a President or Chief Executive Officer at
anytime, the duties of the President or Chief Executive Officer will be performed by the Board or
its designee in accordance with Section 2(a).



               (v) acquire or sell any interest in any business or entity with,
individually or in the aggregate, an enterprise value in excess of $50,000,000 and that requires
the Company to incur incremental debt or equity financing;



               (vi) initiate or settle any litigation, action or proceeding to which the Company is, or
may be, a party in which the amount in controversy would reasonably be expected to exceed ten
percent (10%) of the current Fair Market Value;



               (vii) make any loan (other than intercompany loans) to any Person
which either (a) is outside of the ordinary course of business of the Company and (b) equals or
exceeds $1,000,000, subject in each case to the provisions of paragraph 2(c);



               (viii) approve the Company’s principal outside counsel and, if different, principal
transaction counsel, and any change in such counsel and, to the extent that the Company’s
independent auditors are not Apollo’s independent auditors, approve the Company’s independent
auditors and any change to such independent auditors; or



               (ix) make or commit to make any capital expenditure outside of the
ordinary course of business and in excess of $10,000,000 that requires incremental debt or equity
financing.



     (c) Matters Requiring Approval of Unaffiliated Investor Shareholders.



5









 





               (i) The Company shall not, without the prior written consent or affirmative vote of
Apollo, enter into or be a party to any material transaction with Carlyle or any Affiliate,
member, partner, director, officer or employee of Carlyle or any “associate” (as defined in Rule
12b-2 promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”)) of any
such Person or Carlyle, except for transactions expressly provided for in this Agreement or the
Joint Venture Agreement.



               (ii) The Company shall not, without the prior written consent or affirmative vote of Carlyle,
enter into or be a party to any material transaction with Apollo or any
Affiliate, member, partner, director, officer or employee of Apollo or any “associate” (as
defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person or Apollo, except for
(w) transactions contemplated by this Agreement or the Joint Venture Agreement, (x) the employment
of persons currently employed by Apollo, (y) reimbursement of amounts paid by Apollo to
professionals after the date of this Agreement and before the execution of the Support Services
Agreement for such professionals’ reasonable fees and expenses for the due diligence of potential
investments within the Investment Scope, or (z) pursuant to a Support Services Agreement between
Apollo and the Company whereby Apollo will provide services to the Company upon terms and
conditions satisfactory to Apollo and Carlyle.



          (d) EITF No. 96 - 16. Apollo and Carlyle acknowledge that the approval rights
granted to Carlyle as set forth in paragraph 2(b) above are intended to be “protective rights”
rather than “participating rights”, as described in Emerging Issues Task Force Issue No. 96 - 16
(“EITF No. 96 - 16”). Apollo and Carlyle further acknowledge that, unless otherwise agreed by
Apollo and Carlyle, none of the approval rights granted to Carlyle hereunder will be in any
way amended, terminated or revoked to the extent that at anytime hereafter any of the approval
rights granted to Carlyle hereunder are re-characterized as being “participating rights” and not
“protective rights” under EITF No. 96-16 or any successor to it, or under any other accounting
policy, standard or procedure which may become applicable to the same subject matter as
comprehended by EITF No. 96-16.



          (e) The Company’s accounting methods and policies shall be consistent with
the accounting methods and policies of Apollo except as required by GAAP;



          3. Restrictions on Transfer of Shareholder Shares.



          (a) Transfer of Shareholder Shares. No holder of Shareholder Shares may
sell, transfer, assign, pledge, encumber or otherwise directly or indirectly dispose of (a
“Transfer”) any Shareholder Shares or any interest in any Shareholder Shares, including to the
Company or any of its Subsidiaries, other than Permitted Transfers, prior to the fifth
anniversary of the date hereof and, following such date, may Transfer Shareholder Shares or an interest in
Shareholder Shares only pursuant to and in accordance with paragraphs 3(b), 3(c), 3(d), 5 or 9
below.



          (b) Right of First Offer. Prior to making any Transfer, other than as permitted
under paragraph 3(d) below, a holder of Shareholder Shares wishing to transfer such
Shareholder



6









 




Shares (the “Selling Shareholder”) shall deliver written notice in accordance with paragraph 21
(the “Transfer Notice”) to each Investor Shareholder and the Company. The Transfer Notice shall
disclose in reasonable detail the number of Shareholder Shares to be transferred, the cash purchase
price (the “Offer Price”) at which the Selling Shareholder proposes to sell such number of
Shareholder Shares, and the terms and conditions of the proposed Transfer. The Transfer Notice
shall constitute a binding offer to sell the subject Shareholder Shares to the Investor
Shareholders (other than the Selling Shareholder) and, if and to the extent that any such
Shareholder Shares are not purchased by such Selling Shareholders, to the Company, in each case on
the terms and conditions set forth in the Transfer Notice and in accordance with this paragraph
3(b). The Investor Shareholders may elect to purchase, pro-rata based on the number of Shareholder
Shares held by each, all or any portion of the Shareholder Shares to be transferred upon the same
economic terms and conditions as those set forth in the Transfer Notice by delivering a written
notice of such election to the Selling Shareholder and the Company within 10 business days after
the Transfer Notice has been delivered pursuant to this paragraph 3(b), provided that all elections
by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. If the Investor
Shareholders have not elected to purchase all of the Shareholder Shares to be transferred, the
Company may elect to
purchase all, but not less than all, of the remaining Shareholder Shares to be transferred upon the
same economic terms and conditions as those set forth in the Transfer Notice by delivering written
notice in accordance with paragraph 21 of such election to the Selling Shareholder within 15
business days after the Transfer Notice has been delivered pursuant to this paragraph 3(b) (such
date, the “Authorization Date”). If the Investor Shareholders and the Company do not elect to
purchase all of the Shareholder Shares specified in the Transfer Notice, the Selling Shareholder
may Transfer the remaining Shareholder Shares specified in the Transfer Notice at a cash price no
less than the Offer Price and on terms no more favorable to the Proposed Purchaser than those
specified in the Transfer  Notice during the 60 day period immediately following the Authorization
Date. If the Investor Shareholders or the Company have elected to purchase Shareholder Shares
pursuant to this paragraph 3(b), the Transfer of such shares shall be consummated as soon as
practicable after the delivery of the election notice(s) to the Selling Shareholder, but in any
event within 30 days after the Authorization Date.




          (c) Participation Rights.



               (i) At least 30 days prior to any Transfer of shares of Company Stock by any of Apollo or
any of its Affiliates (the “Transferring Apollo Shareholder”) for value (other than
pursuant to a Permitted Transfer or an Approved Sale as to which Carlyle has an independent
right to approve under paragraph 5(a) as a consequence of Carlyle and its Affiliates owning, in
the aggregate, either (i) seven and one-half percent (7.5%) (or more) of issued and outstanding
Shareholders Shares or (ii) shares of the Company Stock with a Fair Market Value of seventy-five
million dollars ($75,000,000) (or more)), the Transferring Apollo Shareholder will deliver
written notice in accordance with paragraph 21 (the “Sale Notice”) to the Company, the other
Investor Shareholders (including Carlyle and its Affiliates) and the Other Shareholders,
specifying in reasonable detail the identity of the Proposed Purchaser and the terms and
conditions of the Transfer. Notwithstanding any of the restrictions contained in this paragraph
3, any or all of the other Investor Shareholders (including Carlyle and its Affiliates) and
Other Shareholders may



7









 




elect to participate in the contemplated Transfer by delivering written notice in accordance with
paragraph 21 (a “Tag-Along Notice”) to the Transferring Apollo Shareholder within 15 business days
after the date that such Sale Notice is deemed given pursuant to paragraph 21, provided that all
Tag-Along Notices of Carlyle’s Affiliates shall be delivered by Carlyle on behalf of its
Affiliates. If no Tag-Along Notice is received by the Transferring Apollo Shareholder within such
15 business day period, the other Investor Shareholders and the Other Shareholders shall not have
the right to participate in the Transfer, and the Transferring Apollo Shareholder shall have the
right, during the succeeding three-month period, to transfer to the Proposed Purchaser up to the
number of shares of Common Stock stated in the Sale Notice, on terms and conditions no more
favorable to the Transferring Apollo Shareholder than those stated in the Sale Notice. If any of
the other Investor Shareholders or Other Shareholders have elected to participate in such Transfer
(such Shareholders, “Participating Shareholders”), each of the Transferring Apollo Shareholder and
each Participating Shareholder will be entitled to sell in the contemplated Transfer, at the same
price and on the same terms, up to a number of shares of Common Stock which is determined by
multiplying (i) the number of shares of Common Stock owned by such Participating Shareholder on the
date that the Tag-Along Notice is furnished by (ii) a fraction, the numerator of which is the
number of shares of Common Stock which the Proposed Purchaser desires to purchase and the
denominator of which is the sum of (x) the number of shares of Common Stock which are owned by the
Transferring Apollo Shareholder and (y) the aggregate number of shares of Common Stock owned by all
of the Participating Shareholders on the date that the Tag-Along Notice is furnished.




               (ii) The Transferring Apollo Shareholder will use reasonable efforts to obtain the agreement
of the Proposed Purchaser to the participation of the Participating Shareholders in any
contemplated Transfer, and the Transferring Apollo Shareholder will not transfer any of its Common
Stock to the Proposed Purchaser unless (A) simultaneously with such Transfer, the Proposed
Purchaser purchases from the Participating Shareholders the number of shares of Common Stock which
such Participating Shareholders are entitled to sell to the Proposed Purchaser under paragraph
3(c)(i) or (B) simultaneously with such Transfer, the Transferring Apollo Shareholder purchases
(at the same price and on the same terms and conditions on which such shares were sold to the
Proposed Purchaser) the number of shares of Common Stock from the Participating Shareholders which
the Participating Shareholders are entitled to sell to the Proposed Purchaser under paragraph
3(c)(i).



               (iii) The Transferring Apollo Shareholder and the Participating Shareholders will bear their
pro-rata share (based upon the number of shares of Common Stock sold by such Person in relation to
the number of shares of Common Stock sold by all Persons in such Transfer) of the out-of-pocket
costs of any Transfer pursuant to this paragraph 3(c) which are borne by the Transferring Apollo
Shareholder to the extent such costs are incurred for the benefit of all Persons participating in
the Transfer and are not otherwise paid by the Company or the acquiring party. Costs incurred by
the Participating Shareholders participating in the Transfer on their own behalf will not be
considered costs of the Transfer hereunder.



               (iv) No Participating Shareholder participating in a sale of shares of the Common Stock
pursuant to this paragraph 3(a) shall be required to provide any indemnification



8









 




other than on a several basis with such Participating Shareholder’s indemnification obligation to
the Proposed Purchaser (or Transferring Apollo Shareholder in the event that it purchases shares
of the Common Stock pursuant to paragraph 3(c)(ii)) limited to the pro rata share of the aggregate
purchase price received by all Shareholders that such Participating Shareholder receives at the
closing of the Transfer. Notwithstanding the foregoing, if a Participating Shareholder electing to
participate does not agree to execute and deliver or does not execute and deliver any
documentation required by this paragraph 3(c)(iv) within ten (10) days after receipt thereof in
connection with the Transfer, such Participating Shareholder shall be deemed to have withdrawn its
request to participate and shall not be entitled to participate in the proposed Transfer.




          (d) Permitted Transfers. The restrictions contained in paragraph 3 will not
apply to (i) a Public Sale, (ii) an Approved Sale, (iii) a Transfer of Shareholder Shares by
any Shareholder to a trust solely for the benefit of such Shareholder and such Shareholder’s
spouse and/or descendants (or a re-Transfer of such Shareholder Shares by such trust back to such
Shareholder upon the revocation of any such trust) or pursuant to the laws of descent and
distribution, (iv) a Transfer by any Shareholder to an Affiliate of such Shareholder (and
subsequent Transfers by such Affiliates to other Affiliates of such Shareholder), so long as
such Transfer does not cause the Company to be subject to the reporting requirements of the
Exchange Act pursuant to Section 12(g) thereof; provided that the restrictions
contained in this
Agreement will continue to apply to the Shareholder Shares after any Transfer pursuant to
clauses (iii) or (iv) above and the transferees of such Shareholder Shares pursuant to such
clauses
shall agree in writing to be bound by the provisions of this Agreement. Upon the Transfer of
Shareholder Shares pursuant to clauses (iii) or (iv) of this subparagraph 3(d), the transferor
will deliver a written notice to the Company and the Investor Shareholders, which notice will
disclose in reasonable detail the identity of such transferee.



          (e) Termination of Restrictions. The rights and restrictions set forth in this
paragraph 3 will continue with respect to each Shareholder Share until the first to occur of
(i): date on which such Shareholder Share has been transferred in a Public Sale; (ii) the
consummation of an Approved Sale; (iii) a closing described in paragraph 9(c) or (iv) the
eighth
anniversary of the date of this Agreement.



          4. Preemptive Rights.



          (a) If the Company or any of its Subsidiaries proposes to issue and sell any of its equity
securities or any securities containing options or rights to acquire any equity securities or any
securities convertible into equity securities for value, the Company will offer in a written
notice furnished in accordance with paragraph 21 to sell to each Investor Shareholder a portion of
the number or amount of such securities proposed to be sold in any such transaction or series of
related transactions equal to the product of the percentage each such Investor Shareholder holds
of all Common Stock then held by all of the Shareholders by the number of securities proposed to
be issued and sold by the Company in any such transaction or series of related transactions, all
for the same price and upon the same economic terms and otherwise on the same terms and conditions
as the securities that are being offered in such transaction or series of transactions. If any
Investor Shareholder having preemptive rights under this paragraph 4 fails to



9









 




accept such offer in whole or in part within the period provided below in paragraph 4(c), the
Company shall offer in a written notice furnished in accordance with paragraph 21 the securities
that were not so accepted to all Investor Shareholders who elected to accept such offer in whole or
in part, in the same proportion as the respective Common Stock held by such electing Investor
Shareholder bears to the aggregate Common Stock held by all Investor Shareholders who elected to
accept such initial offer in whole or in part. Each electing Investor Shareholder shall have an
additional period of ten days from and after the date of the Company’s re-offer within which to
accept such re-offer in whole or in part. If an Investor Shareholder elects to accept such offer in
whole or in part, such Investor Shareholder shall so accept by written notice to the Company given
within such 10-day period, provided that all acceptances by Carlyle’s Affiliates shall be made by
Carlyle on behalf of its Affiliates. No further offer to the Investor Shareholders under this
paragraph 4 is then required with respect to the same offering of securities, except as otherwise
required in paragraph 4(c).




          (b) Notwithstanding the foregoing, the provisions of this paragraph 4 shall not
be applicable to the issuance of equity securities (i) pursuant to the Joint Venture
Agreement, (ii) upon the exercise of warrants or options or upon the conversion of shares of one class of
capital
stock into shares of another class in accordance with the provisions of the Company’s
Certificate
of Incorporation, or (iii) as a stock dividend or any stock split or other subdivision or
combination of the outstanding equity securities; provided, however, the provisions of
this paragraph 4 shall terminate upon completion of a Public Offering.



          (c) The Company will cause to be given to the Investor Shareholders a written
notice delivered in accordance with paragraph 21 setting forth in reasonable detail the terms
and conditions upon which they may purchase such shares or other securities, including, without
limitation, the number of shares or other securities offered by the Company, the price at
which
such shares or other securities are being offered and the date on which the sale is to be
completed
(the “Preemptive Notice”). After receiving a Preemptive Notice, if any of the Investor
Shareholders wishes to exercise the preemptive rights granted by this paragraph 4 it must give
notice to the Company in writing, within 15 business days after the date that such Preemptive
Notice is deemed given pursuant to paragraph 21 (subject to extension in the event of a
re-offer
described in paragraph 3(a) above), stating the quantity of the shares or other securities
offered
pursuant to this paragraph 4 it agrees to purchase on the terms and conditions set forth in
the
Preemptive Notice (the “Preemptive Reply”), provided that all Preemptive Replies by Carlyle’s
Affiliates shall be made by Carlyle on behalf of its Affiliates. The closing for the sale of
the
shares or other securities subject to the Preemptive Notice shall occur no earlier than 5
business
days after the Preemptive Reply. If the Investor Shareholders fail to make a Preemptive Reply
in
accordance with this paragraph 4 within the 15-business day period specified in this paragraph
4(c) (subject to extension in the event of a re-offer described in paragraph 3(a) above),
shares or
other securities offered to it in accordance with this paragraph 4 may thereafter, for a
period not
exceeding 120 days following the expiration of such 15-business day period, be issued, sold or
subjected to rights or options to any purchaser at a price not less than the price at which
they
were offered to such Investor Shareholders and on other terms and conditions no more favorable
to the purchasers thereof than those offered to the Investor Shareholders. Any such shares
or
other securities not so issued, sold or subjected to rights or options to any purchaser during
such



10









 




120-day period will thereafter again be subject to the preemptive rights provided for in this
paragraph 4.




          5. Sale of the Company.



          (a) If Shareholders holding a majority of the outstanding Common Stock and Carlyle approve
(and, in the case of any sale or other fundamental change which requires the approval of the
board of directors of a Delaware corporation pursuant to the Delaware General Corporation Law,
the Board shall have approved such sale or other fundamental change) a sale of all or
substantially all of the Company’s assets determined on a consolidated basis or a sale of a
majority of the Company’s outstanding capital stock (whether by merger, recapitalization,
consolidation, reorganization, combination or otherwise) to any Independent Third Party or group
of Independent Third Parties (collectively an “Approved Sale”), the Company shall deliver written
notice to the Shareholders setting forth in reasonable detail the terms and conditions of the
Approved Sale (including, to the extent then determined, the consideration to be paid with
respect to each class of the Company’s capital stock), provided however that on any date that
Carlyle and its Affiliates do not own, in the aggregate, either (i) seven and one-half percent
(7.5%) (or more) of the issued and outstanding Shareholder Shares or (ii) shares of the Company
Stock with a Fair Market Value of seventy-five million dollars ($75,000,000) (or more), Carlyle
shall not have an independent right to approve an Approved Sale. Each holder of Shareholder
Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale
is structured as (i) a merger or consolidation, each holder of Shareholder Shares will waive any
dissenter’s rights, appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock (including by recapitalization, consolidation,
reorganization, combination or otherwise), each holder of Shareholder Shares will agree to sell
all of its Shareholder Shares and rights to acquire Shareholder Shares on the terms and
conditions approved by the Board and such Shareholders. Each holder of Shareholder Shares shall
be obligated to join, severally and not jointly, on a pro rata basis (based on the number of
shares of the applicable class or series of Company Stock to be sold, and, in the case of an
asset sale, based upon the number of shares of Company Stock (and the relative liquidation
preferences of each class of Company Stock) owned beneficially on a Fully Diluted Basis) in any
indemnification or other obligations that the sellers of Shareholder Shares are required to
provide in connection with the Approved Sale (other than any such obligations that relate solely
to a particular Shareholder, such as indemnification with respect to representations and
warranties given by a Shareholder regarding such Shareholder’s title to and ownership of
Shareholder Shares being sold, in respect of which only such Shareholder shall be liable);
provided, that no holder shall be obligated in connection with such indemnification or
other obligations with respect to any amount in excess of the consideration received by such
holder in connection with such transfer. Each holder of Shareholder Shares will take all required
actions in connection with the consummation of the Approved Sale as reasonably requested.
Notwithstanding the provisions of this paragraph 5, neither Carlyle nor its Affiliates shall have
any obligation under this paragraph 5 to the extent that Carlyle has an independent right to
approve an Approved Sale under this paragraph 5 and Carlyle has not approved such Approved Sale.
Notwithstanding the provisions of this paragraph 5, neither Carlyle nor its Affiliates shall be
required to provide any indemnification other than on a several basis with the indemnification
obligation of Carlyle and its Affiliates limited to the pro



11









 




rata share of the aggregate purchase price received by all Shareholders at the closing of the
Approved Sale.




          (b) The obligations of the holders of Company Stock with respect to an
Approved Sale are subject to the satisfaction of the following conditions in addition to the
conditions described in paragraph 5(a): (i) upon the consummation of the Approved Sale, each
holder of Company Stock will receive the same form of consideration and the same portion of
the aggregate consideration that such holders of Company Stock would have received if such
aggregate consideration had been distributed by the Company in complete liquidation pursuant
to the rights and preferences set forth in the Company’s Certificate of Incorporation as in
effect immediately prior to such Approved Sale; (ii) if any holders of a class of Company Stock are
given an option as to the form and amount of consideration to be received, each holder of such
class of Company Stock will be given the same option; and (iii) each holder of then currently
exercisable rights to acquire shares of a class of Company Stock will be given an opportunity
to (A) exercise such rights prior to the consummation of the Approved Sale and participate in
such sale as holders of such class of Company Stock or (B) make a direct transfer of such rights.



          (c) If the Company or the holders of the Company’s securities enter into any
negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated
by the Securities and Exchange Commission may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), the
holders of Shareholder Shares that do not qualify as “accredited investors” (as such term is defined in
Rule 501 (or any similar rule then in effect) promulgated by the Securities And Exchange
Commission) will, at the request of the Company, appoint a “purchaser representative” (as such
term is defined in Rule 501 promulgated by the Securities and Exchange Commission)
reasonably acceptable to the Company. If any holder of Shareholder Shares appoints a purchaser
representative designated by the Company, the Company will pay the fees of such purchaser
representative, but if any holder of Shareholder Shares declines to appoint the purchaser
representative designated by the Company, such holder will appoint another purchaser
representative, and such holder will be responsible for the fees of the purchaser
representative so
appointed.



          (d) Each holder of Shareholder Shares will bear its pro-rata share (based upon
the number of shares sold by such holder of Company Stock in relation to the number of shares
sold by all holders in such Approved Sale of Company Stock) of the out-of-pocket costs of any
sale of Shareholder Shares pursuant to an Approved Sale which are borne by either Investor
Shareholder to the extent such costs are incurred for the benefit of all holders of
Shareholder
Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by
holders of Shareholder Shares on their own behalf will not be considered costs of the
transaction
hereunder.



          (e) In connection with an Approved Sale, each holder of Shareholder Shares
(other than Carlyle and its Affiliates) hereby appoints Apollo as its true and lawful proxy
and attorney-in-fact, with full power of substitution, to transfer such Shareholder Shares
pursuant to the terms of such Approved Sale and to execute any purchase agreement or other documentation



12









 




required to consummate such Approved Sale to the extent consistent with paragraph 5(a). Each
Shareholder agrees to execute and deliver any other documentation reasonably required to consummate
the Approved Sale to the extent consistent with paragraph 5(a). The powers granted in this clause
(e) shall be deemed to be coupled with an interest, shall be irrevocable and shall survive death,
incompetency or dissolution of any such holder of Shareholder Shares.




          (f) The provisions of this paragraph 5 will terminate upon the earlier to occur of (i) the
consummation of an Approved Sale and (ii) completion of a Public Offering.



          6. Employee Phantom Stock Plan.



          The parties agree that phantom stock or similar bonuses will be offered to the management,
consultants and key employees of the Company pursuant to a bonus plan or similar arrangement on
terms and conditions satisfactory to the Board which will contemplate aggregate payments
representing a value of between ten and fifteen percent (15%) of the Company’s Common Stock on a
Fully Diluted Basis (after giving effect to the transactions contemplated by the Joint Venture
Agreement).



          7. Public Offering; Apollo Call.



          (a) At any time after the fourth anniversary of the date of this Agreement (or
as earlier agreed by Carlyle and Apollo), each of Carlyle and Apollo may notify the other of
its intent to explore a public listing of the Common Stock. Following receipt of any such notice,
the Company will solicit proposals from one or more nationally recognized investment banks as to
the feasibility, expected valuation, structure and terms of the proposed listing of the Common
Stock. If, after receiving such proposals, either of Apollo or Carlyle determines in good
faith that a public listing of the Company is inadvisable for legitimate business reasons, Apollo or
Carlyle may elect to defer the listing process by a period of one (1) year. After the
deferral period, if applicable, Carlyle and Apollo shall thereafter again solicit proposals from one or
more nationally recognized investment banks as to the feasibility, expected valuation, structure
and terms of the proposed public listing of the Common Stock. If either of Apollo or Carlyle
determines that the proposed public listing of the Common Stock is then feasible, the parties
shall, within sixty (60) days thereafter, pursue in good faith the preparation of an S-l (or
F-l) registration statement (“Registration Statement”) with the Securities and Exchange Commission.
If neither Apollo nor Carlyle determines that the proposed public listing is feasible within
the time period specified in the preceding sentence, the deferral described in this paragraph 7(a)
shall be repeated. Notwithstanding the provisions of this paragraph 7(a), on any date that Carlyle
and
its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the
Shareholder Shares or (ii) shares of the Company Stock with a Fair Market Value of one hundred
million dollars ($100,000,000), Carlyle shall not have any rights under this paragraph 7(a).



          (b) At
any time prior to the effective date of the Registration Statement,
Apollo shall have an option to purchase the Company Stock held by Carlyle and its Affiliates
at a price per share equal to the midpoint of the filing range as set forth in the Company’s
Registration Statement. If Apollo elects to purchase Carlyle’s and its Affiliates’ Shares
pursuant



13









 




to this paragraph 7(b), the transfer of such shares shall be consummated as soon as practicable
after the delivery of the notice(s) to Carlyle, but in any event within 30 days thereafter.
Carlyle agrees to execute and deliver any other documentation reasonably required to consummate
the transfer pursuant to this paragraph 7; provided that neither Carlyle nor its Affiliates shall
be required to provide any representations and warranties (other than those relating to their
respective existence, capacity, authorization, execution and delivery and unencumbered title to
securities).




          8. Scope of Investments.



          (a) The Company will make investments exclusively in educational services
businesses with the following characteristics (the “Investment Scope”):



               (i) principal operations and facilities outside of the United States (to include Latin
America, Asia and Europe);



               (ii) provide post-secondary education (both degree and certificate programs), secondary and
high school-level education, corporate or vocational training, or services related such
educational and training programs, including distance learning services;



               (iii) attractive organic growth characteristics with target growth rates higher than
experienced in the United States where possible;



               (iv) ability to generate strong positive cash flows and sustain a reasonable amount of
financial leverage, including debt; and



               (v) businesses in which the Company can initially acquire a controlling interest or that have
a path to acquiring a controlling interest.



          (b) Neither Carlyle nor Apollo may make any investment exceeding $
20,000,000 in any Person whose primary line of business is within the Investment Scope except
in accordance with this paragraph 8. Prior to making any such investment, the Investor
Shareholder (the “Proposed Investor”), shall deliver written notice in accordance with
paragraph
21 (the “Investor Notice”) to the Company and the other Investor Shareholders disclosing in
reasonable detail the terms of the prospective investment. The Proposed Investor shall not
consummate any such investment until 60 days after the Investor Notice is deemed given to the
Company and the other Investor Shareholders pursuant to paragraph 21 (the “Investor Notice
Period”). Subject to the provisions of paragraph 2(b)(2)(v), the Company may elect to make
such investment upon the same economic terms and conditions as those set forth in the
Investor
Notice by delivering written notice of such election to the Proposed Investor and the other
Investor Shareholder within the Investor Notice Period. If the Company does not for any
reason
elect to make the investment described in the Investor Notice, then for a period of thirty
(30)
days after the expiration of the Investor Notice Period, Carlyle may, in its sole discretion,
elect
by written notice delivered to the Proposed Investor pursuant to paragraph 21 either to (x)
make
(together with its Affiliates) the investment at a price and on the terms thus described in
the



14









 




Investor Notice or (y) co-invest (together with its Affiliates) in the investment described in the
Investor Notice with the Proposed Investor on the basis of 80.1% of the aggregate investment being
made by Apollo and its Affiliates and 19.9% of the aggregate investment being made by Carlyle and
its Affiliates, in each case at a price and on terms described in the Investor Notice. The parties
to each transaction described in clauses (x) and (y) of the preceding sentence shall use
commercially reasonable efforts to complete such transaction within ninety (90) days after the
expiration of the Investor Notice Period. If the Company elects to make the investment described in
the Investor Notice but Carlyle does not approve the investment pursuant to paragraph 2(b)(2)(v),
the Proposed Investor may make the investment at a price and on terms no more favorable to the
Proposed Investor than those specified in the Investor Notice during the ninety (90) day period
following the Investor Notice Period.




          (c) Carlyle will use its reasonable best efforts to cause its Affiliates to refer
equity investment opportunities within the Investment Scope that are sourced by its Affiliates
to
the Company, and will use its reasonable best efforts to cause its Affiliates to allow the
Company
to co-invest alongside the applicable Carlyle Affiliate in any such transaction.
Notwithstanding
the preceding sentence, Carlyle shall not have any obligation to use its reasonable best
efforts
under this paragraph 8 to the extent that the use of such efforts is inconsistent with a
fiduciary or
other obligation of Carlyle or any of its Affiliates.



          (d) The provisions of this paragraph 8 will terminate upon the earlier to occur
of (i) the consummation of an Approved Sale, and (ii) completion of a Public Offering,
provided
that the provisions of paragraph 8(c) will terminate upon the earlier to occur of (i) the
consummation of an Approved Sale, (ii) the completion of a Public Offering or (iii) the first
date
that Carlyle no longer owns any shares of the Company Stock.



          9. Buy/Sell Agreement.



          (a) Each Shareholder shall have the right, after the fifth anniversary of the
date of this Agreement to provide a written notice in accordance with paragraph 21 (an
“Offer”)
to the other Investor Shareholder (the “Offeree Shareholder”), to offer to sell all, but not
less than
all, of the interest of the Selling Shareholder and its Affiliates in the Company to the
Offeree
Shareholder at a per share purchase price and upon the other terms and conditions specified in
the Offer. Notwithstanding the immediately preceding sentence, no Shareholder may provide an
Offer at any time during the period which commences on the date that a Transfer Notice has
been provided pursuant to paragraph 3(b) and ends sixty-one (61) days after the Authorization
Date described in paragraph 3(b).



          (b) The Offeree Shareholder must elect by written notice (the “Notice of
Election”) to the Selling Shareholder within thirty (30) days after receipt of the Offer,
either:



          (i) to sell the Offeree Shareholder’s entire interest in the Company to the Selling
Shareholder at the per share purchase price and on the other terms and conditions specified in the
Offer, or




15