exv10w2





Exhibit 10.2




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          THIS AMENDED AND RESTATED AGREEMENT is entered into, effective this 18th day of May
2010 (the “Effective Date”), by and between Apollo Group, Inc. (the “Company”), and Joseph L.
D’Amico (the “Executive”).




          WHEREAS, the Company currently has in effect an employment agreement with the Executive dated
June 5, 2007 and subsequently modified by three separate amendments that has an initial term
scheduled to expire on June 15, 2010, subject to automatic one—year renewals unless either the
Company or the Executive provides notice of non-renewal on a timely basis.




          WHEREAS, the Company has determined that it is in the best interests of the Company and its
shareholders to continue to employ the Executive upon the terms described herein for an additional
term ending August 31, 2012; and the Executive is willing to continue his employment with the
Company on such terms through August 31, 2012; and




          WHEREAS, the Company and the Executive desire to consolidate the Executive’s existing
employment agreement with the Company and the three separate amendments to that agreement into a
new amended and restated agreement that effects the extension of the contract term and includes
additional modifications that will be in effect during the extended term.




          NOW, THEREFORE, in consideration of the foregoing and the respective agreements of the parties
contained herein, the parties hereby agree as follows:




     1. Term. The term of employment under this Amended and Restated Agreement will
commence on the Effective Date and continue through August 31, 2012 (the “Extended Term”);
provided, however, that thereafter the term of employment under this Amended and Restated Agreement
will be automatically renewed for one additional year through August 31, 2012 (the “Additional
Extension”), unless either the Company or the Executive will have given written notice to the other
at least sixty (60) calendar days prior thereto that the term of employment under this Amended and
Restated Agreement will not be renewed for the Additional Extension (a “Notice of Non-Renewal”).



     2. Employment.



     (a) Position. The Executive will continue to be employed as, and hold the title of, President
and Chief Operating Officer of the Company, and will have the duties, powers, and responsibilities
as are customary for such positions. The Executive will be given the authority needed to perform
the duties and undertake the responsibilities assigned to his positions. The Executive will have
the authority to hire appropriate personnel as may be needed to carry out his duties. The Executive
will report to Mr. Gregory W. Cappelli, the Company’s Co-Chief Executive Officer, or to his
successor or any other individual with equivalent or greater authority.



     (b) Obligations. The Executive shall devote his full business time and attention to the
business and affairs of the Company. During the term of this Amended and Restated Agreement, the
Executive shall not engage in any other employment, service or consulting activity without the
prior written approval of the Company’s Board of Directors. The foregoing, however, shall not
preclude the Executive from (i) serving on any corporate, civic or charitable boards or committees
on which the Executive is serving on the Effective Date, or on which he commences service following
the Effective Date with the prior written approval of the Board of Directors or (ii) managing
personal investments, so long as such clause (i) and (ii) activities do not interfere with the
performance of the Executive’s responsibilities hereunder.













 





     3. Base Salary and Bonus.



     (a) Base Salary. The Company agrees to pay or cause to be paid to the Executive an annual
base salary at the rate of $525,000, less applicable withholding. This base salary will be subject
to annual review and may be increased from time to time by the Compensation Committee of the Board
of Directors (the “Compensation Committee”) upon consideration of such factors as the Executive’s
responsibilities, compensation of similar executives within the Company and in other companies,
performance of the Executive, and other pertinent factors. The Executive’s annual rate of base
salary, as it may be increased from time to time, will be hereinafter referred to as the “Base
Salary”. Such Base Salary will be payable in accordance with the Company’s customary practices
applicable to its executives.



     (b) Bonus. For each fiscal year completed during the Extended Term, the Executive will be
eligible to receive an annual cash bonus (“Annual Bonus”) based upon individual and Company
performance goals that are established in good faith by the Compensation Committee and that are
reasonable in comparison to the individual and Company performance goals the Compensation Committee
sets for the Company’s other executive officers, provided that the Executive’s target Annual Bonus
will be no less than 100% of his Base Salary (the “Target Bonus”). The Annual Bonus earned for
each fiscal year shall be paid in accordance with the Company’s customary practices, but in no
event later than the fifteenth day of the third calendar month following the end of that fiscal
year.



     4. Equity Compensation Awards.



     (a) Initial Equity Awards. In connection with the Executive’s commencement of employment with
the Company in June 2007, Executive received (i) a stock option grant for 500,000 shares of Class A
common stock (the “Initial Option Grant”) and (ii) restricted stock units covering 60,000 shares of
the Company’s Class A common stock (the “Initial RSU Award‘). Those initial grants were each made
under the Company’s 2000 Stock Incentive Plan, as amended and restated from time to time (the
“Incentive Plan”). Nothing in this Amended and Restated Agreement shall affect or in any way
modify the terms and conditions in effect for those initial equity awards on the Effective Date.



     (b) Additional Equity Awards. During the period of the Executive’s employment prior to the
Effective Date of this Amended and Restated Agreement, Executive has received additional stock
option grants and restricted stock unit awards under the Incentive Plan. Nothing in this Amended
and Restated Agreement shall affect or in any way modify the terms and conditions in effect for
those additional equity awards on the Effective Date.



     (c) New Equity Awards. The Executive will be awarded additional equity grants under the
Incentive Plan for each of the Company’s 2011 and 2012 fiscal years as part of the regular annual
grant process for the Company’s executive officers (the “New Equity Awards”). The New Equity
Awards for each such fiscal year may be made before or after the start of the applicable 2010 or
2011 fiscal year, but will in all events be made at the same time as the other regular annual
grants for that fiscal year. The total grant date fair value of the New Equity Awards for each such
fiscal year will be at least $4 million and will be in a combination of stock options, restricted
stock units and performance units/shares relating to shares of the Company’s Class A common stock,
as determined by the Compensation Committee in its sole discretion. The New Equity Awards for each
of the Company’s 2011 and 2012 fiscal years will have the same effective date and pricing date in
effect for the other executive officer equity awards made for each such fiscal year.



     (d) Vesting of New Equity Awards. The following terms and provisions will govern the various
components of the New Equity Awards that are to be made to the Executive for the Company’s 2011 and
2012 fiscal years pursuant to Section 4(c) above:



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          (i) The stock option component of each New Equity Award will vest in four (4) successive
equal annual installments over the Executive’s period of continued employment with the Company and
will have a maximum term of six (6) years. Should the Executive’s employment terminate for any
reason other than (i) an involuntary termination for Cause (as such term is defined in Section 7(b)
below), (ii) death or Disability (as such term is defined in Section 4(e) below) or (iii) a
voluntary termination prior to August 31, 2012 other than for Good Reason (as such term is defined
in Section 7(c) below), then each stock option will continue to vest in accordance with the
foregoing vesting schedule, as if the Executive continued in employee status with the Company, and
will remain exercisable, for any shares for which such option is at the time exercisable, until the
earlier of (i) the expiration of the six (6)-year maximum term or (ii) the end of the twelve
(12)-month period measured from the date on which the last annual installment of that stock option
vests.




          (ii) The restricted stock unit component of each New Equity Award will have a
performance-vesting condition tied to the fiscal year for such grant is awarded that will be the
same as the performance-vesting condition applicable to the restricted stock unit awards made to
the Company’s other executive officers for that fiscal year. Upon the satisfaction of the
applicable performance condition for the award, 25% of that award will vest on the last day of the
fiscal year for which such award is made, with the shares of the Company’s Class A common stock
underlying that vested portion to be issued following the Compensation Committee’s certification of
the attained performance condition but not later than the close of the calendar year in which
fiscal year ends, and the balance of the restricted stock units will vest, and the underlying
shares issued, in three (3) successive equal annual installments, provided the Executive continues
in the Company’s employ through each such vesting date. However, should the Executive’s employment
terminate prior to the completion of the vesting schedule for any reason other than (i) an
involuntary termination for Cause, (ii) death or Disability or (iii) a voluntary termination prior
to August 31, 2012 other than for Good Reason, then the award will continue to vest (and the
underlying shares issued) incrementally in accordance with the foregoing vesting schedule, as if
the Executive continued in employee status with the Company.




          (iii) The performance unit/share component of each New Equity Award will have
performance-vesting conditions measured over a performance period of one or more years that will be
the same as for the other performance unit/share awards made to the Company’s executive officers
for the fiscal year for which that New Equity Award is made. Following the completion of the
applicable performance period, the total number of shares of the Company’s Class A common stock (if
any) issuable under the award will be determined on the basis of the levels at which the applicable
performance goals have in fact been attained. The number of shares so calculated will be issued to
the Executive, following the Compensation Committee’s certification of the level of performance
goal attainment but not later than the close of the calendar year in which the performance period
ends, provided (A) he continues in the Company’s employ through the completion of the performance
period or (B) there is an earlier termination of the Executive’s employment for any reason other
than (i) an involuntary termination for Cause, (ii) death or Disability or (iii) a voluntary
termination prior to August 31, 2012 other than for Good Reason. In addition, should the Company’s
performance unit/share program in effect at the time such award is made to the Executive include
any pro-rata vesting provisions, contingent upon performance goal attainment, for individuals who
voluntarily leave the Company’s employ prior to the completion of the performance period, then such
provisions shall also be included in any performance unit/share award made to the Executive at that
time.




          (iv) The continued vesting and exercisability of the stock options, the continued vesting of
the restricted stock units and the vesting of the performance shares that is to occur, in
accordance with the foregoing provisions of this Section 4(d), following the Executive’s
termination of employment with the Company shall in each instance be subject to his compliance with
the confidentiality obligations under Section 9 of this Amended and Restated Agreement and the
restrictive






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covenants set forth in Section 10 of this Amended and Restated Agreement. Upon a material breach
of such obligations or covenants by the Executive, all further vesting of his equity awards
pursuant to the provisions of this Section 4(d) shall cease, and the unexercised stock options
granted to the Executive as part of the New Equity Awards pursuant to Section 4(c) of this Amended
and Restated Agreement shall immediately terminate.




     (e) Partial Vesting Acceleration. Each component of the New Equity Awards made to the
Executive pursuant to Section 4(c) of this Amended and Restated Agreement will also be subject to
the partial vesting acceleration provisions of this Section 4(e) should his employment terminate by
reason of death or Disability (as such term is defined below).



          (i) Should the Executive’s employment with the Company terminate by reason of his death or
Disability, the stock option component of each New Equity Award will immediately vest as to a
portion of the unvested shares of the Company’s Class A common stock subject to that option, and
the option will remain exercisable for the vested shares for a twelve (12)-month period following
his death or Disability, but not beyond the maximum six (6)-year term of the option. The number of
shares that would vest on such an accelerated basis would be equal to the number of additional
shares (if any) in which the Executive would have vested had he completed an additional eighteen
(18) months of service following his death or Disability.




          (ii) No shares will be issued under any of the performance-based restricted stock unit or
performance unit/share components of the New Equity Awards until the completion of the applicable
performance period. At that time there will be determined the total number of shares (if any)
issuable under the award based on the levels at which the applicable performance goals have in fact
been attained and assuming the Executive had continued in the Company’s employ through the
completion of the applicable vesting schedule. Should any earlier termination of such employment
occur by reason of the Executive’s death or Disability, a portion of the total number of shares as
calculated in accordance with the foregoing will vest on an accelerated basis, upon the later of
(A) such termination of employment or (B) the completion of the applicable performance period. The
accelerated portion will be equal to the number of additional shares (if any) in which the
Executive would have vested had he completed an additional eighteen (18) months of service
following the date of his death or Disability, and such accelerated portion shall be issued no
later than the later of (x) the fifteenth day of the third calendar month following the date of the
Executive’s death or Disability or (y) the end of the calendar year in which such death or
Disability occurs; provided, however, that in the event the Executive’s Disability does not satisfy
the definition of Permanent Disability below and the applicable award agreement is otherwise
subject to Code Section 409A, the accelerated portion shall be issued on each applicable date on
which the accelerated shares would have otherwise vested and become issuable, in accordance with
the terms of the applicable award agreement, had Executive continued in employee status over that
eighteen (18)-month period for which service credit is given hereunder.




          (iii) Should the Company have a more liberal vesting acceleration policy for death or
Permanent Disability that is in effect at the time any equity award under Section 4(c) is made to
the Executive, then that award will incorporate the terms and conditions of that more liberal
policy.




          (iv) For purposes of this Section 4(e), Disability shall mean the Executive’s inability, by
reason of any physical or mental injury or impairment, to perform, with or without reasonable
accommodation, the principal duties and responsibilities of his position with the Company for a
period of six (6) consecutive months or more; and Permanent Disability shall mean the Executive’s
inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in his death or to last for a
continuous period of twelve (12) months or more.







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     (f) Additional Provisions. Each of the new additional grants to be made to the Executive in
accordance with the provisions of Sections 4(c) through (e) above will be issued pursuant and
subject to the terms of the Incentive Plan and the award agreements evidencing those grants, except
that in the event of any conflict between the terms of the Incentive Plan or the award agreements
and this Amended and Restated Agreement, the terms of this Amended and Restatement Agreement will
control.



     (g) Shares to Be Registered; Stock Certificates. All shares issued to the Executive pursuant
to his exercise of the stock options granted to him under the Incentive Plan and the vesting of the
restricted stock unit and performance unit/share awards made to him under the Incentive Plan will
be registered under an appropriate and effective registration statement under the Securities Act of
1933, as amended (the “1933 Act”).



     5. Employee Benefits. Provided he otherwise satisfies any applicable eligibility
requirements for participation, the Executive will be entitled to participate in the welfare,
retirement, perquisite, and fringe benefit plans, practices, and programs maintained by the Company
and made available to senior executives generally and as may be in effect from time to time. The
Executive’s participation in any such plans, practices and programs for which he satisfies the
applicable eligibility requirements will be on the same basis and terms as are applicable to senior
executives of the Company generally.



     6. Other Benefits.



     (a) Expenses. Subject to applicable Company policies, including (without
limitation) the timely submission of appropriate documentation and expense reports, the Executive
will be entitled to receive prompt reimbursement of all expenses reasonably incurred by him in
connection with the performance of his duties hereunder or for promoting, pursuing or otherwise
furthering the business or interests of the Company, including (without limitation) round trip
first class airfare to accommodate Executive’s travel to and from Phoenix, Arizona. Accordingly,
the Executive shall submit appropriate evidence of each such expense within sixty (60) days after
the later or (i) his incurrence of that expense or (ii) his receipt of the invoice or billing
statement for such expense, and the Company shall provide the Executive with the requisite
reimbursement within ten (10) business days thereafter; provided, however, that (i) no expense
shall be reimbursed later than the close of the calendar year following the calendar year in which
that expense is incurred, (ii) the amounts eligible for reimbursement in any one calendar year
shall not affect the amounts reimbursable in any other calendar year and (iii) the right to such
reimbursement may not be liquidated or exchanged for any other benefit. In addition, and not in
limitation of the foregoing, the Company shall provide the Executive with a monthly stipend of
$2,500 during the term of this Amended and Restated Agreement for the duplicative living expenses
incurred by the Executive at his minor post of duty location, including housing costs, mortgage
costs, real estate taxes, utility costs and other expenses related to his residence at such
location and food and other similar expenses incurred at such location. Such stipend shall be the
only reimbursement to which Executive shall be entitled for such duplicative living expenses
incurred by Executive at his minor post of duty location. The stipend for each such month shall be
paid made in one or more installments during the period beginning with the first day of that month
and ending no later than five (5) business days after the end of that month. Other reasonable
travel, housing and food expenses incurred by Executive while traveling temporarily away from his
tax home on business (other than the expenses subject to his monthly stipend) will also be eligible
for reimbursement in accordance with the Company’s standard business expense reimbursement policy
and the foregoing documentation and reimbursement timing provisions.



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     (b) Office and Facilities. The Executive’s principal place of employment shall be at the
Company’s corporate offices in Phoenix, AZ, and at such location Executive shall be provided with
appropriate offices and such secretarial and other support facilities as are commensurate with the
Executive’s status with the Company and adequate for the performance of his duties hereunder.



     (c) Vacation. During the Term, the Executive will be eligible for paid vacation in accordance
with the Company’s policies, as may be in effect from time to time, for its senior executives
generally; provided, however, that the Executive will be eligible for no less than four weeks of
paid vacation per year.



     7. Termination. Except for a Notice of Non-Renewal, as described in Section 1, the
Executive’s employment hereunder may only be terminated in accordance with the following terms and
conditions:



     (a) Termination by the Company without Cause. The Company will be entitled to terminate the
Executive’s employment at any time by delivering a Notice of Termination to the Executive pursuant
to Section 7(e); provided, however, that any termination of the Executive’s employment for Cause
shall be governed by the provisions of Section 7(b).



     (b) Termination by the Company for Cause.



          (i) The Company may terminate the Executive’s employment hereunder for “Cause” (as defined
below) by delivering to him a Notice of Termination. For purposes of the foregoing, any of the
following shall constitute grounds for terminating the Executive’s employment for Cause: (A) the
Executive’s pleading “guilty” or “no contest” to, or his conviction of, a felony or any crime
involving moral turpitude, (B) his commission of any act of fraud or any act of personal dishonesty
involving the property or assets of the Company intended to result in substantial financial
enrichment to the Executive, (C) a material breach by the Executive of one or more of his
obligations under Section 9 of this Amended and Restated Agreement or his Proprietary Information
and Inventions Agreement with the Company, (D) a material breach by the Executive of any of his
other obligations under this Amended and Restated Agreement or any other agreement with the
Company, (E) the Executive’s commission of a material violation of Company policy which would
result in an employment termination if committed by any other employee of the Company or his gross
misconduct, (F) the Executive’s material dereliction of the major duties, functions and
responsibilities of his executive position (other than a failure resulting from the Executive’s
incapacity due to physical or mental illness), (G) a material breach by the Executive of any of the
Executive’s fiduciary obligations as an officer of the Company or (H) the Executive’s willful and
knowing participation in the preparation or release of false or materially misleading financial
statements relating to the Company’s operations and financial condition or his willful and knowing
submission of any false or erroneous certification required of him under the Sarbanes-Oxley Act of
2002 or any securities exchange on which shares of the Company’s Class A common stock are at the
time listed for trading. However, prior to any termination of the Executive’s employment for Cause
based on any of the reasons specified in clauses (C) through (F) and the delivery of a Notice of
Termination in connection therewith, the Company shall give written notice to the Executive of the
actions or omissions deemed to constitute the grounds for such a termination for Cause, and the
Executive shall have a period of not less than sixty (60) calendar days after the receipt of such
notice in which to cure the specified default in his performance and thereby avoid a Notice of
Termination under this subsection (b)(i).




          (ii) In the event the Executive is provided with a Notice of Termination under subsection
(b)(i), the Notice of Termination shall specify a Termination Date that is no earlier than the
third business day following the date of the Notice of Termination, and the Executive will have
three (3) business days following the date of such Notice of Termination to submit a written
request to the Board






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for a meeting to review the circumstances of his termination. If the Executive timely submits
such a written request to the Board, the Board or a committee of the Board shall set a meeting
whereby the Executive, together with his counsel, shall be permitted to present any mitigating
circumstances or other information as to why he should not be terminated for Cause, and the
Executive’s Termination Date shall be delayed until such meeting has occurred. Such meeting will
be held, at the Executive’s option, either on a mutually agreeable date prior to the Termination
Date specified in the Notice of Termination or on a mutually agreeable date within fifteen (15)
calendar days after his timely written notice to the Company requesting such a meeting. Within
five (5) business days after the date of such meeting, the Board or committee of the Board, as
applicable, shall deliver written notice to the Executive of its final determination and, if the
termination decision is upheld, the final actual Termination Date, which shall not be later than
ten (10) business days after the date of such meeting. During the period following the date of the
Notice of Termination until the Termination Date or other resolution of the matter, the Company
shall have the option to place the Executive on an unpaid leave of absence. The rights under this
subsection will not be deemed to prejudice the Executive’s other rights and remedies in any way or
give rise to any waiver, estoppel, or other defense or bar. Without limiting the foregoing
sentence and for purposes of clarification, the failure by the Executive to request a meeting under
this subsection, to participate in a meeting that has been requested, or to present any evidence or
argument will not prevent the Executive from making any claim against the Company, from seeking any
legal or equitable remedy, or from putting forward any evidence or argument at any judicial or
arbitral hearing.




     (c) Termination by the Executive. The Executive may terminate his employment hereunder for
“Good Reason” by delivering to the Company (1) a Preliminary Notice of Good Reason (as defined
below) no later than one hundred and twenty (120) calendar days following the act or omission which
the Executive sets forth in such notice as grounds for a Good Reason termination, and (2) not
earlier than fourteen (14) calendar days after the delivery of such Preliminary Notice or (if
later) the third business day following the Company’s failure to take appropriate remedial action
within the applicable sixty (60)-day cure period provided below to the Company following the
receipt of such the Preliminary Notice, a Notice of Termination. The Notice of Termination must
specify a Termination Date that is within thirty (30) days following the expiration of the
applicable sixty (60)-day cure period below in which the Company’s fails to take appropriate
remedial action. For purposes of this Amended and Restated Agreement, “Good Reason” means:



          (i) a material reduction in the scope of the Executive’s duties, responsibilities or
authority;




          (ii) the repeated assignment to the Executive of duties materially inconsistent with the
Executive’s positions, duties, authority or responsibilities, or a materially adverse change in
Executive’s reporting requirements as set forth in Section 2(a) hereof or an adverse change to his
title set forth in Section 2(a) hereof: provided however, that none of the following shall
constitute Good Reason: (A) the occasional assignment of duties that are inconsistent with Section
2(a) hereof, (B) a change in the Executive’s reporting requirements so that he is required to
report to a person with equivalent authority of the Company’s Chief Executive Officer or Co-Chief
Executive Officer but without such title or (C) any change in the Executive’s title which does not
affect his status as one of the five (5) highest ranking officers of the Company;




          (iii) a relocation of the Executive’s principal place of employment by more than fifty (50)
miles from the Company’s current corporate headquarters in Phoenix, AZ (other than relocation of
Executive’s principal place of employment in Chicago, Illinois); provided, however, that travel to
other locations as reasonably required to carry out the Executive’s duties and responsibilities
hereunder shall not be a basis for a termination for Good Reason; or







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          (iv) a material breach by the Company of any of its obligations under this Amended and
Restated Agreement.




     In no event will any acts or omissions of the Company which are not the result of bad faith
and which are cured within sixty (60) days after receipt of written notice from the Executive
identifying in reasonable detail the acts or omissions constituting “Good Reason” (a “Preliminary
Notice of Good Reason”) be deemed to constitute grounds for a Good Reason resignation. A
Preliminary Notice of Good Reason will not, by itself, constitute a Notice of Termination.



     A ten percent (10%) or less aggregate reduction in the Executive’s base salary and Target
Bonus shall not constitute Good Reason if substantially all of the other executive officers of the
Company are subject to the same aggregate reduction to their base salary and target bonuses.



     (d) Termination due to the Executive’s Death or Disability. This Agreement will terminate
upon the death of the Executive. The Company may terminate the Executive’s employment hereunder if
he is unable to perform, with or without reasonable accommodation, the principal duties and
responsibilities of his position with the Company for a period of six (6) consecutive months or
more by reason of any physical or mental injury or impairment; provided, however, that in the event
the Executive is at the time covered under any long-term disability benefit program in effect for
the Company’s executive officers or employees, such termination of the Executive’s employment shall
not occur until the earlier of (i) the date he first becomes eligible to receive benefits under
such program or (ii) the date he is deemed to have a Separation from Service (as defined below) by
reason of such disability. The termination of the Executive’s employment under such circumstances
shall, solely for purposes of Section 7 and 8 of this Amended and Restated Agreement, constitute a
termination for “Disability.”



     (e) Notice of Termination. Any purported termination for Cause by the Company or for Good
Reason by the Executive will be communicated by a written Notice of Termination to the other at
least three (3) business days prior to the Termination Date (as defined below). For purposes of
this Amended and Restated Agreement, a “Notice of Termination” will mean a notice which indicates
the specific termination provision in this Amended and Restated Agreement relied upon and will,
with respect to a termination for Cause or Good Reason, set forth in reasonable detail the facts
and circumstances claimed to provide a basis for such termination of the Executive’s employment
under the provision so indicated. Any termination by the Company under this Section 7 other than
for Cause or by the Executive without Good Reason will be communicated by a written Notice of
Termination to the other party fourteen (14) calendar days prior to the Termination Date set forth
in such notice. However, the Company may elect to pay the Executive in lieu of fourteen (14)
calendar days’ written notice. For purposes of this Amended and Restated Agreement, no such
purported termination of employment pursuant to this Section 7 will be effective without such
Notice of Termination.



     (f) Termination Date. “Termination Date” will mean in the case of the Executive’s death, the
date of death; in the case of non-renewal of the Agreement pursuant to Section 1, the date the
Extended Term of this Amended and Restated Agreement expires; and in all other cases, the date
specified in the Notice of Termination, subject to the applicable time limitations for such
Termination Date as specified above.



     8. Compensation Upon Termination.



     (a) Except as provided further in this Section 8(a), if the Executive’s employment is
terminated: (i) by the Company for Cause; (ii) by reason of the Executive’s death or Disability;
(iii) pursuant to a Notice of Non-Renewal delivered by the Executive; or (iv) by the Executive by
delivery of a written notice of resignation without Good Reason, the Company’s sole obligations
hereunder will be to



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pay the Executive or his estate on the Termination Date the following amounts earned hereunder
but not paid as of the Termination Date: (i) Base Salary, (ii) reimbursement for any and all monies
advanced or expenses incurred pursuant to Section 6(a) through the Termination Date, provided the
Executive has submitted appropriate and timely documentation for such expenses, and (iii) the
amount of the Executive’s accrued but unpaid vacation time (together, these amounts will be
referred to as the “Accrued Obligations”). In addition to the Accrued Obligations, should the
Executive’s employment terminate by reason of his death or Disability prior to the completion of
the fiscal-year performance period to which his then current Target Bonus potential under Section
3(b) of this Amended and Restated Agreement is tied, then he or his estate will be entitled to a
pro-rated portion of the Annual Bonus (if any) that the Executive would have earned for that period
had he remained in the Company’s employ until the completion of that period. The amount of the
pro-rated portion of the Annual Bonus to which the Executive or his estate shall be entitled shall
be determined by multiplying (x) the actual Annual Bonus the Executive would have earned for the
applicable performance period, based on actual Company performance for such period and his
individual performance, had he remained in the Company’s employ through the end of that period by
(y) a fraction, the numerator of which is the number of months (rounded to the next whole month)
during which the Executive remained in the Company’s employ during the fiscal-year performance
period in which such termination of employment occurs and the denominator of which is twelve (12).
Such pro-rated Annual Bonus shall be paid to the Executive or his estate by the fifteenth day of
the third calendar month following the close of the fiscal-year period, subject to any required
holdback under Section 13(b). Furthermore, if the Executive’s employment terminates as a result of
his death or Disability, then any unvested stock options, restricted stock, restricted stock units
or other equity awards granted to the Executive (other than the New Equity Awards to be made to the
Executive pursuant to Section 4(c) of this Amended and Restated Agreement) that would have
otherwise been vested on the date of such termination of employment had the vesting schedule for
each of those grants been in the form of successive equal monthly installments over the applicable
vesting period will immediately vest. The shares of the Company’s Class A common stock underlying
any restricted stock units or other equity-based awards to which the Executive becomes entitled in
accordance with the foregoing shall be issued at the time or times set forth in the applicable
agreements evidencing those awards, subject to any required holdback under Section 13(b). The
Executive’s entitlement to any other benefits will be determined in accordance with the Company’s
employee benefit plans then in effect.




     (b) If the Executive’s employment is terminated: (i) by the Company for any reason other than
for Cause; (ii) by the Executive for Good Reason; or (iii) pursuant to a Notice of Non-Renewal
delivered by the Company, the Executive will, in addition to the Accrued Obligations, be entitled
to the following compensation and benefits from the Company, provided and only if (x) the Executive
executes and delivers to the Company a general release substantially in the form of attached
Exhibit A (the “Required Release”) within twenty-one (21) days (or forty-five (45) days if such
longer period is required under applicable law) after such termination of employment, (y) the
Required Release becomes effective and enforceable in accordance with applicable law and (z) the
Executive complies with the restrictive covenants set forth in Section 10:



          (i) an amount equal to sum of (A) two times the Executive’s Base Salary at the time of the
Notice of Termination and (B) two times the average of his actual Annual Bonuses for the three
fiscal years immediately preceding the fiscal year in which such termination of employment occurs,
with such payment to be made in successive equal increments, in accordance with the Company’s
normal payroll practices, over the one-year period measured from the date of the Executive’s
Separation from Service due to such termination of employment, beginning with the first pay day
within the sixty (60) day period following the date of such Separation from Service on which the
Required Release is effective following the expiration of the maximum applicable review and
revocation periods to which the Executive is entitled under this Amended and Restated Agreement and
applicable law with respect to the delivery of the Required Release, but subject to any required
holdback under Section 13(b);



9









 





          (ii) accelerated vesting of the Initial Option Grant to the extent of the greater of (A) fifty
percent of the then unvested portion of each such grant or (B) the portion of each such grant which
would have vested had the Executive completed an additional twelve (12) months of employment with
the Company prior to the Termination Date, and one hundred percent vesting of the Initial RSU
Award, with any shares which so vest under the Initial RSU Award to be issued at the time or times
set forth in the Initial RSU Award Agreement, subject to any required holdback under Section 13(b);




          (iii) continued vesting, in accordance with Section 4(d) of this Amended and Restated
Agreement, of each New Equity Award made to the Executive pursuant to Section 4(c) of this Amended
and Restated Agreement that is outstanding at the time of such termination of employment, with any
shares which so vest under the restricted stock unit or performance unit/share components of those
New Equity Awards to be issued after each applicable vesting date in accordance with the terms of
the applicable award agreements, subject to any required holdback under Section 13(b);




          (iv) provided the Executive and/or his spouse and dependents are eligible and timely elect to
continue their health care coverage under the Company’s group health plan pursuant to their rights
under COBRA, the Company will reimburse the Executive for the costs he incurs to obtain such
continued coverage for himself and his spouse and eligible dependents (collectively, the “Coverage
Costs”) until the earliest of (A) the end of the eighteen (18)-month period measured from the
Termination Date, (B) the date that the Executive and/or his eligible dependents are no longer
eligible for COBRA coverage and (C) the date that the Executive becomes eligible for such coverage
under the health plan of any new employer (the Executive agrees to provide the Company with written
notice of such eligibility within ten calendar days). In order to obtain reimbursement for such
Coverage Costs, Executive must submit appropriate evidence to the Company of each periodic payment
within sixty (60) days after the required payment date for those Coverage Costs, and the Company
shall, within thirty (30) days after such submission, reimburse the Executive for that payment.
During the period such medical care coverage remains in effect hereunder, the following provisions
shall govern the arrangement: (a) the amount of Coverage Costs eligible for reimbursement in any
one calendar year of such coverage shall not affect the amount of Coverage Costs eligible for
reimbursement in any other calendar year for which such reimbursement is to be provided hereunder;
(ii) no Coverage Costs shall be reimbursed after the close of the calendar year following the
calendar year in which those Coverage Costs were incurred; and (iii) the Executive’s right to the
reimbursement of such Coverage Costs cannot be liquidated or exchanged for any other benefit. To
the extent the reimbursed Coverage Costs constitute taxable income to the Executive, the Company
shall report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes,
and any remaining tax liability shall be the Executive’s sole responsibility; and




          (v) the Executive’s entitlement to any other benefits will be determined in accordance with
the Company’s employee benefit plans then in effect.




     (c) The Executive shall have the right to resign, for any reason or no reason, at any time
within the thirty (30) day period beginning six (6) months after the closing of a Change in Control
(as defined in Section 11(a)) and to receive, in connection with such resignation, the same
severance benefits to which he would be entitled under Section 8(b) above had such resignation been
for Good Reason; provided, however, that the Executive’s entitlement to severance benefits under
this Section 8(c) shall be conditioned upon the satisfaction of each of the following requirements:
(i) the Executive executes and delivers to the Company the Required Release within twenty-one
(21) days (or forty-five (45) days if such longer period is required under applicable law) after
such resignation, (ii) the Required Release becomes effective and enforceable in accordance with
applicable law and (iii) the Executive complies with the restrictive covenants set forth in Section
10 of this Agreement; and provided, further, that Section 11 of this Amended and Restated Agreement
shall govern the treatment of his outstanding equity awards.



10









 





     (d) All payments and benefits under this Section 8 shall be subject to the applicable holdback
provisions of Section 13(b).



     (e) The Executive shall not be entitled to any cash severance payments under Section 8(b)(i)
of this Amended and Restated Agreement or to the reimbursement of any Coverage Costs under Section
8(b)(iv) hereof should the Company offer to extend his Amended and Restated Agreement for the
one-year Additional Extension following the August 31, 2012 expiration date of the Extended Term of
this Amended and Restated Agreement upon substantially the same terms and provisions governing such
additional period of employment and with total direct compensation for that one-year Additional
Extension (Base Salary, annual cash Target Bonus and the grant-date fair value of the equity
components, in such mix as the Compensation Committee deems appropriate) of not less than $5
million and the Executive does not accept such one-year Additional Extension. Such equity
compensation shall have substantially the same vesting and exercisability provisions as set forth
in Sections 4(d) and (e) of this Amended and Restated Agreement, but the Executive shall not be
entitled to any cash severance payments under Section 8(b)(i) of this Amended and Restated
Agreement upon the termination of this Amended and Restated Agreement following the expiration of
the one-year Additional Extension through August 31, 2013.



     (f) The Executive will not be required to mitigate the amount of any payment provided for in
this Section 8 by seeking other employment or otherwise, and no such payment or benefit will be
eliminated, offset or reduced by the amount of any compensation provided to the Executive in any
subsequent employment.



     (g) The exercise period with respect to the Initial Option Grant shall not be accelerated upon
the Executive’s termination of employment for any reason.



     9. Confidentiality.



     (a) The Executive hereby acknowledges that the Company may, from time to time during the Term,
disclose to the Executive confidential information pertaining to the Company’s business, strategic
plans, technology or financial affairs. All information, data and know-how, whether or not in
writing, of a private or confidential nature concerning the Company’s trade secrets, processes,
systems, marketing strategies and future marketing plans, student enrollment lists, prospective
course offerings, finances and financial reports, employee and faculty member information and other
organizational information (collectively, “Proprietary Information”) is and shall remain the sole
and exclusive property of the Company and shall not be used or disclosed by the Executive except to
the extent necessary to perform his duties and responsibilities under this Agreement. All tangible
manifestations of such Proprietary Information (whether written, printed or otherwise reproduced)
shall be returned by the Executive upon the termination of his employment hereunder, and the
Executive shall not retain any copies or excerpts of the returned items. The foregoing restrictions
on the use, disclosure and disposition of the Company’s Proprietary Information shall also apply to
the Executive’s use, disclosure and disposition of any confidential information relating to the
business or affairs of the Company’s faculty, students and employees.



     (b) The Executive did, in connection with his commencement of employment with the Company,
execute a Proprietary Information and Inventions Agreement, in the form attached as Exhibit B to
this Agreement. The Executive shall, throughout the term of this Amended and Restated Agreement
and thereafter, continue to remain subject to the terms and conditions of such Proprietary
Information and Inventions Agreement.



11









 





     (c) The Executive shall not, in connection with his duties and responsibilities hereunder,
improperly use or disclose any trade secrets or proprietary and confidential information of any
former employer or other person or entity.



     10. Restrictive Covenants. At all times during the Executive’s employment with the
Company, and for a period of one (1) year after the termination of his employment with the Company
(the “Restriction Period”), regardless of the reason or cause for such termination, the Executive
shall comply with the following restrictions:



     (a) The Executive shall not directly or indirectly encourage or solicit any employee, faculty
member, consultant or independent contractor to leave the employment or service of the Company (or
any affiliated company) for any reason or interfere in any other manner with any employment or
service relationships at the time existing between the Company (or any affiliated company) and its
employees, faculty members, consultants and independent contractors.



     (b) The Executive shall not directly or indirectly solicit any vendor, supplier, licensor,
licensee or other business affiliate of the Company (or any affiliated company) with respect to
products or services competitive with those offered by the Company or directly or indirectly induce
any such person to terminate its existing business relationship with the Company (or affiliated
company) or interfere in any other manner with any existing business relationship between the
Company (or any affiliated company) and any such vendor, supplier, licensor, licensee or other
business affiliate.



     (c) The Executive shall not, on his own or as an employee, agent, promoter, consultant,
advisor, independent contractor, general partner, officer, director, investor, lender or guarantor
or in any other capacity, directly or indirectly:



          (i) conduct, engage in, be connected with, have any interest in, or assist any person or
entity engaged in, any business, whether in the United States, any possession of the United States
or any foreign country or territory, that competes with any of the businesses or programs conducted
by the Company in the education industry during the period of his employment with the Company
(hereafter collectively referred to as the “Businesses”); or




          (ii) permit his name to be used in connection with a business which is competitive or
substantially similar to the Businesses.




     Notwithstanding the foregoing: (i) the Executive may own, directly or indirectly, solely as an
investment, up to one percent (1%) of any class of publicly traded securities of any business that
is competitive or substantially similar to the Business and (ii) the Executive’s employment with
any consulting firm, investment banking firm, private equity fund, hedge fund or similar investment
fund following the termination of his employment with the Company shall not be deemed a breach of
his restrictive covenant under this Section 10(c).



     11. Change in Control.



          (a) For purposes of this Amended and Restated Agreement, the term “Change in Control” shall
have the same meaning assigned to such term under the Incentive Plan, and upon the occurrence of
such Change in Control, any unvested stock options, restricted stock, restricted stock units, or
other equity awards granted to the Executive and outstanding at that time, including any New Equity
Awards made to the Executive pursuant to Section 4(c) of this Amended and Restated Agreement, shall
vest on an accelerated basis to the same extent as all other outstanding awards under the Incentive
Plan held by individuals who are executive officers of the Company at that time. However, the
shares of the Company’s Class A common stock subject to the restricted stock unit or performance
unit/share components of the New Equity Awards that vest upon the occurrence of such Change in
Control and that






12









 







are subject to Code Section 409A shall not be issued at that time unless the Change in Control also
constitutes a Qualifying Change in Control as defined in Section 11(b) below. In the absence of
such Qualifying Change in Control, such shares shall be issued on each applicable date on which
they would have otherwise vested and become issuable, in accordance with the terms of the
applicable award agreements, had there been no Change in Control and the Executive continued in the
Company’s employ through each such date.




          (b) The
term “Qualifying Change in Control” shall mean a change in control of ownership of the
Company effected by one or more of the following transactions:




               (i) a merger or consolidation in which the Company is not the surviving entity and in which
one person or a group of related persons (other than the Company or a person that directly or
indirectly controls, is controlled by, or is under common control with, the Company) acquires
ownership of securities possessing more than fifty percent (50%) of the total combined voting power
of the Company’s outstanding securities or constituting more than fifty percent (50%) of the total
fair market value of the Company’s outstanding securities;



               (ii) the sale, transfer or other disposition of all or substantially all of the assets of the
Company in complete liquidation or dissolution of the Corporation;



               (iii) any reverse merger in which the Company is the surviving entity but in which one person
or a group of related persons (other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Company) acquires ownership of
securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities or constituting more than fifty percent (50%) of the total fair
market value of the Company’s outstanding securities;



               (iv) the acquisition, directly or indirectly, by any person or related group of persons (other
than the Company or a person that directly or indirectly controls, is controlled by, or is under
common control with, the Company) of beneficial ownership of securities possessing more than fifty
percent (50%) of the total combined voting power of the Company’s outstanding securities or
constituting more than fifty percent (50%) of the total fair market value of the Company’s
outstanding securities pursuant to a tender or exchange offer made directly to the Company’s
stockholders; or



               (v) a change in the composition of the Board over a period of twelve (12) consecutive months
or less such that a majority of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected or nominated for
election as Board members during such period by at least a majority of the Board members described
in clause (A) who were still in office at the time the Board approved such election or nomination.



     The foregoing definition of Qualifying Change in Control shall in all instances be applied and
interpreted in such manner that the applicable Qualifying Change in Control transaction that serves
as an issuance event for the shares of the Company’s Class A common stock subject to the restricted
stock unit or performance unit/share components of the New Equity Awards that vest upon the
occurrence of a Change in Control will also qualify as: (i) a change in the ownership of the
Company, as determined in accordance with Section 1.409A-3(i)(5)(v) of the Treasury Regulations,
(ii) a change in the effective control of the Company, as determined in accordance with Section
1.409A-3(i)(5)(vi) of the Treasury Regulations, or (iii) a change in the ownership of a substantial
portion of the assets of the Company, as determined in accordance with Section 1.409A-3(i)(5)(vii)
of the Treasury Regulations.




13











 





     12. Benefit Limitation.



     (a) In the event it is determined that the Total Payments (as defined below) to be made to the
Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by
the Executive without the imposition of an excise tax under Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced to the extent, and
only to the extent, necessary to assure that their aggregate present value, as determined in
accordance the applicable provisions of Code Section 280G and the regulations thereunder, does not
exceed the greater of the following dollar amounts (the “Benefit Limit”):




(A) The Safe Harbor Amount, or




(B) the greatest after-tax amount payable to the Executive after taking into
account any excise tax imposed under Code Section 4999 on the Total
Payments.



     For purposes of this Section 12(a), the term “Total Payments” shall mean any payment or
distribution of any type to or for the benefit of the Executive made by the Company, any of its
affiliates, any Person who acquires ownership or effective control of the Company or ownership of a
substantial portion of the Company’s assets (within the meaning of Code Section 280G) or any
affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the
terms of this Amended and Restated Agreement or otherwise, that would be subject to the excise tax
imposed by Code Section 4999 or any interest or penalties with respect to such excise tax



     All determinations under this Section 12 shall be made by an independent registered public
accounting firm selected by the Company from among the largest four such accounting firms in the
United States (the “Accounting Firm”); provided, however, such Accounting Firm shall not have an
ongoing audit or consulting relationship with the Company at the time of its selection. In
determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable
determination of the value to be assigned to the restrictive covenants in effect for the Executive
pursuant to Section 10 of this Amended and Restated Agreement, and the amount of his potential
parachute payment under Code Section 280G shall reduced by the value of those restrictive covenants
to the extent consistent with Code Section 280G and the regulations thereunder.



     To the extent a reduction to the Total Payments is required to be made in accordance with this
Section 12, the Total Payments attributable to any cash severance payments otherwise due the
Executive under Section 8 of this Amended and Restated Agreement shall be reduced first (with such
reduction to be applied pro-rata to each such severance payment and without any change in the
applicable payment dates), then the accelerated vesting of his Initial RSU Award shall be reduced,
then the accelerated vesting of any other restricted stock unit awards made to him by the Company,
including (without limitation) the restricted stock unit and performance unit/share components of
any New Equity Awards, shall be reduced in the same chronological order in which granted, and
finally the accelerated vesting of the Executive’s stock options shall be reduced (based on the
amount of the parachute payment calculated for each such option in accordance with the Treasury
Regulations under Code Section 280G), with such reduction to occur in the same chronological order
in which those options were granted.



     13. Section 409A. Certain payments contemplated by this Amended and Restated
Agreement may be “deferred compensation” for purposes of Section 409A of the Code. Accordingly,
the following provisions shall be in effect for purposes of avoiding or mitigating any adverse tax
consequences to the Executive under Code Section 409A.



14









 





     (a) It is the intent of the parties that the provisions of this Amended and Restated Agreement
comply with all applicable requirements of Code Section 409A. Accordingly, to the extent there is
any ambiguity as to whether any provision of this Amended and Restated Agreement would otherwise
contravene one or more requirements or limitations of Code Section 409A, such provisions shall be
construed, interpreted and applied in a manner that does not result in a violation of the
applicable requirements or limitations of Code Section 409A and the Treasury Regulations
thereunder.



     (b) Notwithstanding any provision to the contrary in this Amended and Restated Agreement, no
payments or benefits to which the Executive becomes entitled under this Amended and Restated
Agreement in connection with his termination of employment with the Company (other than the
reimbursement of Coverage Costs during the applicable period of COBRA coverage) shall be made or
paid to the Executive prior to the earlier of (i) the first day of the seventh (7th) month
following the date of his Separation from Service due to such termination of employment or (ii) the
date of his death, if the Executive is deemed, pursuant to the procedures established by the
Compensation Committee of the Company’s Board of Directors in accordance with the applicable
standards of Code Section 409A and the Treasury Regulations thereunder and applied on a consistent
basis for all for all non-qualified deferred compensation plans of the Employer Group subject to
Code Section 409A, to be a “specified employee” at the time of such Separation from Service and
such delayed commencement is otherwise required in order to avoid a prohibited distribution under
Code Section 409A(a)(2). Upon the expiration of the applicable deferral period, all payments
deferred pursuant to this Section 13(b) shall be paid to the Executive in a lump sum, and any
remaining payments due under this Amended and Restated Agreement shall be paid in accordance with
the normal payment dates specified for them herein. The specified employees subject to such a
delayed commencement date shall be identified on December 31 of each calendar year. If the
Executive is so identified on any such December 31, he shall have specified employee status for the
twelve (12)-month period beginning on April 1 of the following calendar year. For purposes of this
Amended and Restated Agreement, including (without limitation) this Section 13(b), the following
definitions shall be in effect:



          (i) “Separation from Service” shall mean the date on which the level of the Executive’s bona
fide services as an Employee (or non-employee consultant) permanently decreases to a level that is
not more than twenty percent (20%) of the average level of services the Executive rendered as an
Employee or non-employee consultant during the immediately preceding thirty-six (36) months. Any
such determination, however, shall be made in accordance with the applicable standards of the
Treasury Regulations issued under Code Section 409A. In addition to the foregoing, a Separation
from Service will not be deemed to have occurred while the Executive is on a sick leave or other
bona fide leave of absence if the period of such leave does not exceed six (6) months or any longer
period for which the Executive’s right to reemployment with the Company is provided either by
statute or contract; provided, however, that in the event of a leave of absence due to any
medically determinable physical or mental impairment that can be expected to result in death or to
last for a continuous period of not less than six (6) months and that causes the Executive to be
unable to perform his duties as an Employee, no Separation from Service shall be deemed to occur
during the first twenty-nine (29) months of such leave. If the period of the leave exceeds six (6)
months (or twenty-nine (29) months in the event of disability as indicated above) and the
Executive’s right to reemployment is not provided either by statute or contract, then the Executive
will be deemed to have Separated from Service on the first day immediately following the expiration
of the applicable six (6)-month or twenty-nine (29)-month period.




          (ii) The Executive shall be deemed to remain an “Employee” for so long he remains in the
employ of at least one member of the Employer Group, subject to the control and direction of the
employer entity as to both the work to be performed and the manner and method of performance.







15









 








          (iii) “Employer Group” shall mean the Company and each member of the group of commonly
controlled corporations or other businesses that include the Company, as determined in accordance
with Sections 414(b) and (c) of the Code and the Treasury Regulations thereunder, except that in
applying Sections 1563(1), (2) and (3) of the Code for purposes of determining the controlled group
of corporations under Section 414(b), the phrase “at least 50 percent” shall be used instead of “at
least 80 percent” each place the latter phrase appears in such sections and in applying Section
1.414(c)-2 of the Treasury Regulations for purposes of determining trades or businesses that are
under common control for purposes of Section 414(c), the phrase “at least 50 percent” shall be used
instead of “at least 80 percent” each place the latter phrase appears in Section 1.414(c)-2 of the
Treasury Regulations.




     (c) Should the Executive comply with the provisions of subsections 13(a) and 13(b) above but
nevertheless incur the 20% penalty tax imposed under Section 409A (the “Section 409A Penalty Tax”)
with respect to one or more payments or benefits provided to him under this Amended and Restated
Agreement, then the Executive will be entitled to receive an additional payment (the “409A Gross-Up
Payment”) in an amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any tax imposed upon the 409A
Gross-Up Payment, the Executive retains an amount of the 409A Gross-Up Payment equal to the Section
409A Penalty Tax imposed upon the Executive’s deferred compensation. The amount of the 409A
Gross-Up Payment shall be calculated, by an Accounting Firm mutually agreeable to the Company and
the Executive, within ten (10) business days after it is first determined that the Executive is
subject to the Section 409A Penalty Tax, and the 409A Gross-Up Payment so calculated shall be paid
to or on behalf of the Executive within five (5) business days after the completion of such
determination or (if later) at the time the related Section 409A Penalty Tax is remitted to the
appropriate tax authorities. In the event that the Executive’s actual Section 409A Penalty Tax
liability is determined by a Final Determination (as such term is defined below) to be greater than
the Section 409A Penalty Tax liability taken into account for purposes of the 409A Gross-Up Payment
initially made to the Executive pursuant to the provisions of this Section 13(c), then within
thirty (30) days following that Final Determination, the Executive shall notify the Company of such
determination, and the Accounting Firm shall, within thirty (30) days thereafter, make a new
calculation of the 409A Gross-Up Payment based upon that Final Determination and provide the
Company and the Executive with the supporting calculations for any supplemental 409A Gross-Up
Payment attributable to that excess Section 409A Penalty Tax liability. The Company shall make the
supplemental 409A Gross-Up Payment to the Executive within five (5) business days following the
completion of the applicable calculations or (if later) at the time such excess Section 409A
Penalty Tax liability is remitted to the appropriate tax authorities. In the event that the
Executive’s actual Section 409A Penalty Tax liability is determined by a Final Determination to be
less than the Section 409A Penalty Tax liability taken into account for purposes of the 409A
Gross-Up Payment initially made to the Executive pursuant to the provisions of this Section 13(c),
then the Executive shall refund to the Company, within five (5) business days after receipt, any
federal or state tax refund attributable to the overpayment of his Section 409A Penalty Tax. In no
event shall any 409A Gross-Up Payment to which the Executive becomes entitled hereunder be made
later than the later of (i) the end of the calendar year in which the related Section 409A Penalty
Tax is remitted to the appropriate tax authorities or (ii) the end of the sixty (60)-day period
measured from the date such tax is so remitted.



     (d) For purposes of Section 13(c), the term “Final Determination” shall mean an audit
adjustment by the Internal Revenue Service that is either (i) agreed to by both the Executive and
the Company (such agreement by the Company to be not unreasonably withheld) or (ii) sustained by a
court of competent jurisdiction in a decision with which the Executive and the Company concur or
with respect to which the period within which an appeal may be filed has lapsed without a notice of
appeal being filed.



16









 





     14. Legal Fees. Within fourteen (14) calendar days after the Effective Date of this
Amended and Restated Agreement, the Company will reimburse the Executive for his legal fees
incurred in connection with the Agreement’s preparation and negotiation, up to a maximum dollar
amount of $15,000.00.



     15. Indemnification. The Executive shall be covered by any policy of liability
insurance which the Company maintains during the Extended Term for its officers and directors (“D&O
Insurance”), to the maximum extent of such coverage provided any other executive officer of the
Company. The Company agrees to provide the Executive with information about all D&O Insurance
maintained during the Extended Term, including proof that such insurance is in place and the terms
of coverage, upon the Executive’s reasonable request. In addition to any rights the Executive may
have under such D&O Insurance, applicable law, or the articles of incorporation and bylaws of the
Company and except as may be prohibited by applicable law, the Company agrees to indemnify, defend,
and hold the Executive harmless from and against any and all claims and/or liability arising from,
as a result of, or in connection with the Executive’s employment by the Company or any outside
appointments and offices held at the Company’s request, except to the extent such claims or
liability are attributable to the Executive’s gross negligence or willful misconduct.



     16. Injunctive Relief. The Executive expressly agrees that the covenants set forth in
Sections 9 and 10 of this Agreement are reasonable and necessary to protect the Company and its
legitimate business interests, and to prevent the unauthorized dissemination of Proprietary
Information to competitors of the Company. The Executive also agrees that the Company will be
irreparably harmed and that damages alone cannot adequately compensate the Company if there is a
violation of Section 9 or 10 of this Amended and Restated Agreement by the Executive, and that
injunctive relief against the Executive is essential for the protection of the Company. Therefore,
in the event of any such breach, it is agreed that, in addition to any other remedies available,
the Company shall be entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, plus attorneys’ fees actually incurred for the securing of such relief.



     17. Survival of Certain Provisions. The provisions of Sections 8, 9, 10, 11, 12, 13,
15, 16, 18, 19, 20, 21, 22, 24, 25 and 26 will survive any termination of this Amended and Restated
Agreement.



     18. Withholdings. Any compensation and/or benefits provided to the Executive by the
Company shall be subject to the Company’s collection of all applicable payroll deductions and
applicable withholding and payroll taxes.



     19. Successors and Assigns. This Amended and Restated Agreement will be binding upon
and will inure to the benefit of the Company, its successors and assigns, and the Company will
require any successor or assign to expressly assume and agree to perform this Amended and Restated
Agreement in the same manner and to the same extent that the Company would be required to perform
it if no such succession or assignment had taken place. The term “the Company” as used herein will
include any such successors and assigns to the Company’s business and/or assets. The term
“successors and assigns” as used herein will mean a corporation or other entity acquiring or
otherwise succeeding to, directly or indirectly, all or substantially all the assets and business
of the Company (including this Amended and Restated Agreement) whether by operation of law or
otherwise. This Amended and Restated Agreement will inure to the benefit of and be enforceable by
the Executive’s legal personal representative.



     20. Arbitration. Except as otherwise provided in Section 16, any controversy or claim
between the Company or any of its affiliates and the Executive arising out of or relating to this
Amended and Restated Agreement or its termination or any other dispute between the parties, whether
arising in tort, contract, or pursuant to a statute, regulation, or ordinance now in existence or
which may in the



17









 




future be enacted or recognized will be settled and determined by a single arbitrator whose
award will be accepted as final and binding upon the parties. The arbitration shall be conducted
in Chicago, Illinois and in accordance with the American Arbitration Association (“AAA”) Employment
Arbitration Rules in effect at the time such arbitration is properly initiated. To the extent that
any of the AAA rules or anything in the Amended and Restated Agreement conflicts with any
arbitration procedures required by applicable law, the arbitration procedures required by
applicable law shall govern. The costs of the arbitration, including administrative fees and fees
charged by the arbitrator, will be borne by the Company. Each party will bear its or his own
travel expenses and attorneys’ fees; provided, however, that the arbitrator (i) shall award
attorneys’ fees to the Executive with respect to any claim for breach of this Agreement on which he
is the prevailing party and may award attorneys’ fees to the Executive as otherwise allowed by law
and (ii) shall award attorneys’ fees to the Company with respect to any claim brought under Section
16 on which it is the prevailing party and may award attorneys’ fees to the Company with respect to
any other claim on which it is the prevailing party and it is determined by the arbitrator that
such claim by the Executive was frivolous in that it presented no colorable arguments for recovery;
but the maximum amount of attorneys’ fees that may be awarded to the Company other than with
respect to any claim brought under Section 16 shall not exceed one hundred thousand dollars
($100,000). The arbitration shall be instead of any civil litigation; and the Executive hereby
waives any right to a jury trial. The arbitrator’s decision shall be final and binding to the
fullest extent permitted by law and enforceable by any court having jurisdiction thereof. In any
situation in which emergency injunctive relief may be necessary, either party may seek such relief
from a court until such time as the arbitrator is able to address the matter covered by this
Section 20. Both parties agree that the state and federal courts located in Chicago, Illinois, will
be the sole venue for any such action involving emergency injunctive relief, and the parties submit
to personal jurisdiction in these courts for this purpose. Judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.




     21. Notice. For the purposes of this Amended and Restated Agreement, notices and all
other communications provided for in this Amended and Restated Agreement (including the Notice of
Termination) will be in writing and will be deemed to have been given when personally delivered or
on the third business day following mailing if sent by registered or certified mail, return receipt
requested, postage prepaid, or upon receipt if overnight delivery service is used, addressed as
follows:



          To the Executive:





Joseph L. D’Amico

14054 W. Austrian Court

Homer Glen, IL 60491




With a copy to:




Horwood Marcus & Berk Chartered

180 N. LaSalle Street, Suite 3700

Chicago, Illinois 60601

Attn: Keith H. Berk




To the Company:




Apollo Group, Inc

4025 South Riverpoint Parkway

Phoenix, AZ 85040

Attention: General Counsel



18









 






With a copy to:




John Hartigan

Morgan Lewis & Bockius LLP

300 South Grand Avenue

Los Angeles, CA 90071



     22. Miscellaneous. No provision of this Amended and Restated Agreement may be
modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition or provision of this
Amended and Restated Agreement to be performed by such other party will be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No
agreement or representation, oral or otherwise, express or implied, with respect to the subject
matter hereof has been made by either party which is not expressly set forth in this Amended and
Restated Agreement.



     23. Counterparts. This Amended and Restated Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which will constitute but one and
the same instrument. An electronic facsimile of a signature, when delivered by the signing party to
the non-signing party, will have the same force and effect as an original.



     24. Governing Law. This Amended and Restated Agreement will be governed by and
construed and enforced in accordance with the laws of the State of Arizona without giving effect to
the conflict of law principles thereof.



     25. Severability. If any provision of this Amended and Restated Agreement as applied
to any party or to any circumstance should be adjudged by a court of competent jurisdiction (or
determined by the arbitrator) to be void or unenforceable for any reason, the invalidity of that
provision shall in no way affect (to the maximum extent permissible by law) the application of such
provision under circumstances different from those adjudicated by the court or determined by the
arbitrator, the application of any other provision of this Amended and Restated Agreement, or the
enforceability or invalidity of this Amended and Restated Agreement as a whole. Should any
provision of this Amended and Restated Agreement become or be deemed invalid, illegal or
unenforceable in any jurisdiction by reason of the scope, extent or duration of its coverage, then
such provision shall be deemed amended to the extent necessary to conform to applicable law so as
to be valid and enforceable or, if such provision cannot be so amended without materially altering
the intention of the parties, then such provision will be stricken, and the remainder of this
Amended and Restated Agreement shall continue in full force and effect.



     26. Entire Agreement. This Amended and Restated Agreement, together with the
Proprietary Information and Inventions Agreement referred to in Section 9 and the documentation for
the equity grants and awards referred to in Section 4, shall constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and shall supersede all prior
agreements, if any, understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.



19









 





          IN WITNESS WHEREOF, the Company has caused this Amended and Restated Agreement to be executed
by its duly authorized officer and the Executive has executed this Amended and Restated Agreement
as of the day and year first above written.




	 	 	 	 	 	 	 	 	 

	JOSEPH L. D’AMICO	 	 	 	THE APOLLO GROUP, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Joseph L. D’Amico
 


	 	 
	 	By:
	 	/s/ Charles B. Edelstein
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	
	Its: Co-Chief Executive Officer
 

	 	 






20









 






EXHIBIT A




FORM OF GENERAL RELEASE



 









 





GENERAL RELEASE




          This AGREEMENT is made as of                     , 201___, by and between Joseph L. D’Amico
(“Executive”), and Apollo Group, Inc. (the “Company”).




          In consideration for the severance benefits offered by the Company to Executive pursuant to
Section 8 of his Amended and Restated Employment Agreement with the Company dated                     , 2010
(the “Employment Agreement”), Executive agree as follows:




     1. Termination of Employment. Executive acknowledges that his employment with the
Company is terminated effective                      (the “Termination Date”), and he agrees that he will
not apply for or seek re-employment with the Company, its parent companies, subsidiaries and
affiliates after that date. Executive agrees that he has received and reviewed his final paycheck
and he has received all wages and accrued but unpaid vacation pay earned by him through the
Termination Date.



     2. Waiver and Release.



          (a) Except as set forth in Section 2(b), which identifies claims expressly excluded from this
release, Executive hereby releases the Company, all affiliated companies, and their respective
officers, directors, agents, employees, stockholders, successors and assigns from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorney fees, damages,
indemnities and obligations of every kind and nature, in law, equity or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising from or relating to
Executive’s employment with the Company and the termination of that employment, including (without
limitation): claims of wrongful discharge, emotional distress, defamation, fraud, breach of
contract, breach of the covenant of good faith and fair dealing, discrimination claims based on
sex, age, race, national origin, disability or any other basis under Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended (“ADEA”),
the Americans with Disability Act, the Employee Retirement Income Security Act, as amended, the
Equal Pay Act of 1963, as amended, and any similar law of any state or governmental entity, any
contract claims, tort claims and wage or benefit claims, including (without limitation) claims for
salary, bonuses, commissions, equity awards (including stock grants, stock options and restricted
stock units), vesting acceleration, vacation pay, fringe benefits, severance pay or any other form
of compensation.




          (b) The only claims that Executive is not waiving and releasing under this Agreement are
claims he may have for (1) unemployment, state disability, worker’s compensation, and/or paid
family leave insurance benefits pursuant to the terms of applicable state law; (2) continuation of
existing participation in Company-sponsored group health benefit plans under the federal law known
as “COBRA” and/or under an applicable state law counterpart(s); (3) any benefits entitlements that
are vested and unpaid as of his termination date pursuant to the terms of a Company-sponsored
benefit plan; (4) any benefits to which he is entitled pursuant to Section 8 of the Employment
Agreement or his rights to indemnification pursuant to Section 15 of the Employment Agreement, (5)
violation of any federal state or local statutory and/or public policy right or entitlement that,
by applicable law, is not waivable; and (6) any wrongful act or omission occurring after the date
he executes this Agreement. In addition, nothing in this Agreement prevents or prohibits Executive
from filing a claim with the Equal Employment Opportunity Commission (EEOC) or any other government
agency that is responsible for enforcing a law on behalf of the government and deems such claims
not waivable. However, because Executive is hereby waiving and releasing all claims “for monetary
damages and any other form of personal relief” (per Section 2(a) above), he may only seek and
receive non-personal forms of relief from the EEOC and similar government agencies.







 









 








          (c) Executive represents that he has not filed any complaints, charges, claims, grievances, or
lawsuits against the Company and/or any related persons with any local, state or federal agency or
court, or with any other forum.




          (d) Executive acknowledges that he may discover facts different from or in addition to those
he now knows or believes to be true with respect to the claims, demands, causes of action,
obligations, damages, and liabilities of any nature whatsoever that are the subject of this
Agreement, and he expressly agrees to assume the risk of the possible discovery of additional or
different facts, and agrees that this Agreement shall be and remain in effect in all respects
regardless of such additional or different facts. Executive expressly acknowledges that this
Agreement is intended to include, and does include in its effect, without limitation, all claims
which Executive does not know or suspect to exist in his favor against the Company and/or any
related persons at the moment of execution thereof, and that this Agreement expressly contemplates
extinguishing all such claims.




          (e) Executive understands and agrees that the Company has no obligation to provide him with
any severance benefits under the Employment Agreement unless he executes this Agreement. Executive
also understands that he has received or will receive, regardless of the execution of this
Agreement, all wages owed to him, together with any accrued but unpaid vacation pay, less
applicable withholdings and deductions, earned through the Termination Date.




          (f) This Agreement is binding on Executive, his heirs, legal representatives and assigns.




     3. Entire Agreement. This Agreement and the Employment Agreement constitute the
entire understanding and agreement between Executive and the Company in connection with the matters
described, and replaces and cancels all previous agreements and commitments, whether spoken or
written, with respect to such matters. Nothing in this Agreement supersedes or replaces any of
Executive’s obligations under his Employment Agreement that survive termination, including, but not
limited to (i) his (and the Company’s) agreement to arbitrate disputes, (ii) his restrictive
covenants under Section 10 of the Employment Agreement and (iii) his obligations under Section 9 of
the Employment Agreement, his existing Proprietary Information Inventions Agreement with the
Company and any other obligations not to use or disclose Company confidential and/or proprietary
information.



     4. Modification in Writing. No oral agreement, statement, promise, commitment or
representation shall alter or terminate the provisions of this Agreement. This Agreement cannot be
changed or modified except by written agreement signed by Executive and authorized representatives
of the Company.



     5. Governing Law; Jurisdiction. This Agreement shall be governed by and enforced in
accordance with the laws of the State of Arizona.



     6. Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.



2









 





     7. No Admission of Liability. This Agreement does not constitute an admission of any
unlawful discriminatory acts or liability of any kind by the Company or anyone acting under their
supervision or on their behalf. This Agreement may not be used or introduced as evidence in any
legal proceeding, except to enforce or challenge its terms.



     8. Acknowledgements. Executive is advised to consult with an attorney of his choice
prior to executing this Agreement. By signing below, Executive acknowledges and certifies that he:



          (a) has read and understands all of the terms of this Agreement and is not relying on any
representations or statements, written or oral, not set forth in this Agreement;




          (b) has been provided a consideration period of twenty-one calendar days within which to
decide whether he will execute this Agreement and that no one hurried him into executing this
Agreement;




          (c) is signing this Agreement knowingly and voluntarily; and




          (d) has the right to revoke this Agreement within seven (7) days after signing it, by
providing written notice of revocation via certified mail to the Company to the address specified
in the Employment Agreement. Executive’s written notice of revocation must be postmarked on or
before the end of the eighth (8th) calendar day after he has timely signed this Agreement. This
deadline will be extended to the next business day should it fall on a Saturday, Sunday or holiday
recognized by the U.S. Postal Service.




     Because of the revocation period, the Company’s obligations under this Agreement shall not
become effective or enforceable until the eighth (8th) calendar day after the date Executive
signs this Agreement provided he has delivered it to the Company without modification and not
revoked it (the “Effective Date”).



I HAVE READ, UNDERSTAND AND VOLUNTARILY ACCEPT AND AGREE TO THE ABOVE TERMS




	 	 	 

	JOSEPH L. D’AMICO
	 	 
	 
	 	 
	 

	 	Date:                    , 20     
	 


	 	 
	Signature
	 	 






3









 






EXHIBIT B




FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT