exv10w9







EXHIBIT 10.9




AMENDMENT

TO

EMPLOYMENT AGREEMENT




     The EMPLOYMENT AGREEMENT entered into by and between Apollo Group, Inc. (the “Company”) and P.
Robert Moya (the “Executive”), effective August 31 2007 (the “Agreement”), is hereby amended as
follows, effective as of January 1, 2009 except as otherwise specified below. The purpose of this
Amendment is to bring the Agreement into documentary compliance with the applicable requirements of
the Treasury Regulations issued under Section 409A of the Internal Revenue Code of 1986, as
amended.



     1. The last sentence of Section 3(b) is hereby amended to read as follows:



          The Annual Bonus 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.




     2. Section 4(c) of the Agreement is hereby amended in its entirety, effective September 1,
2007, to read as follows:




     (c) Vesting. The Initial Option Grant will vest and become exercisable either
(i) in a series of four successive equal annual installments upon the Executive’s
completion of each year of employment with the Company over the four-year period
measured from the Commencement Date (regardless of the actual grant date) or (ii) as
otherwise provided in Sections 8 and 11 of this Agreement. The shares of the
Company’s Class A common stock underlying the Initial RSU Award will vest, and those
vested shares shall become issuable, in accordance with the terms of the September
1, 2007 Restricted Stock Unit Award Agreement between the Executive and the Company
evidencing that award, as such agreement may be amended or restated from time to
time (the “Initial RSU Award Agreement”), and such agreement shall incorporate the
special vesting accelerations provisions of Sections 8 and 11 of this Agreement.



     3. Section 6(a) of the Agreement is hereby amended in its entirety to read as follows:




     (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. 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




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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. 



     4. Section 7(d) of the Agreement is hereby amended in its entirety to read as follows:



          (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, for purposes of this Agreement, constitute a termination for “Disability.”




     5. Section 8 of the Agreement is hereby amended in its entirety to read as follows:




     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 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, in the event the Executive’s employment terminates by reason of
the Executive’s death or Disability, the Executive or his estate will be
paid at that time his Target Bonus, pro-rated for his actual period of
service during the fiscal year in which such termination of employment
occurs. Should the Executive’s employment terminate pursuant to a Notice of
Non-Renewal delivered by the Executive, then the Executive will become
entitled to receive a pro-rated Annual Bonus for the fiscal year in which
such termination occurs, provided that any performance goals upon which such Annual Bonus is




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conditioned are in fact attained. In the event of such attainment, the
pro-rated Annual Bonus to which the Executive shall become entitled shall be
determined by multiplying (aa) the actual Annual Bonus he would have
received based on the attained performance goals had he continued in the
Company’s employ until the payment date of that bonus by (bb) a fraction,
the numerator of which is the number of months (rounded to the next whole
month) during which the Executive is employed by the Company in the fiscal
year 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 by the fifteenth day of the third calendar month following the
close of such fiscal year, subject to any required holdback under Section
14(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 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 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 14(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
(i) 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, (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:




          (i) an amount equal to sum of (A) one times the Executive’s Base Salary
at the time of the Notice of Termination and (B) one times the average of
his actual Annual Bonuses for the three fiscal years (or fewer number of
fiscal years of employment with the Company) immediately preceding the
fiscal year in which such termination of employment occurs (with any
pro-rated bonus for any such year to be annualized), with such amount to be
paid in successive equal increments, in accordance with the Company’s normal payroll practices, over the
one-



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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 under this Section 8(b) is
effective following the expiration of any applicable revocation period, but
in no event later than the last day of such sixty (60)-day period on which
the Required Release is so effective;




          (ii) accelerated vesting of the Initial RSU Award and the Initial
Option Grant to the extent of 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; provided,
however, that such accelerated vesting of the Initial RSU Award shall occur
only if such termination of employment occurs prior to the completion of the
performance period specified in the Initial RSU Award Agreement or on or
after the completion of that performance period in which the designated
performance goal is attained, 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) 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 twelve (12)-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



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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




          (iv) 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)
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.




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




     (e) 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.



     5. The final paragraph of Section 12(a) is hereby amended to read as follows:




     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 accounting firms in the United States (the “Accounting Firm”). However, 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 the Agreement, and the amount of
his potential parachute payment under Code Section 280G shall be reduced by the
value of those restrictive covenants to the extent consistent with Code Section 280G
and the regulations thereunder. To the



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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 shall be reduced first (with such
reduction to be applied pro-rata to each such severance payment and without any
change in 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 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.



     6. There is hereby added to the end of Section 13(a) of the Agreement the following sentence:




     To the extent there is any ambiguity as to whether any provision of this
Agreement would otherwise contravene one or more requirements or limitations of Code
Section 409A, such provisions shall be 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.



     7. Section 13(b) of the Agreement is hereby amended in its entirety to read as follows:




     (b) Notwithstanding any provision to the contrary in this Agreement, no
payments or benefits to which the Executive becomes entitled under this 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 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



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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 Agreement, including (without
limitation) this Section 14(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 during the
immediately preceding thirty-six (36) months (or any shorter period of such Employee
service). 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.




          (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) 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.



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     8. Except as modified by this Amendment, all the terms and provisions of the Agreement shall
continue in full force and effect.



     IN WITNESS WHEREOF, Apollo Group, Inc. has caused this Amendment to be executed on its behalf
by its duly-authorized officer on the date indicated below, and the Executive has executed this
Amendment on the date indicated below.



	 	 	 	 	 	 	 	 	 
	P. ROBERT MOYA	 	 	 	APOLLO GROUP, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ P. Robert Moya
 


Dated: Dec. 12, 2008

	 	 	 	By:



Title:
	 	/s/ Charles B. Edelstein
 



Chief Executive Officer 

	 	 
	 

	 	 	 	

Dated:
	 	

Dec. 12, 2008	 	 







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