exv10w7






EXHIBIT 10.7




AMENDMENT NO. 2

TO

EMPLOYMENT AGREEMENT




     The EMPLOYMENT AGREEMENT entered into by and between Apollo Group, Inc. (the “Company”) and
Joseph L. D’Amico (the “Executive”), effective June 5, 2007 and subsequently amended effective as
of June 15, 2007 ( the “Agreement”), is hereby further amended as follows, effective as of January
1, 2009, except as otherwise specified below. The purpose of this Amendment No. 2 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 to read as follows,
effective July 3, 2007:




     (c) Vesting. The Initial Option Grant will vest and become exercisable either
(i) in a series of three successive equal annual installments upon the Executive’s
completion of each year of employment with the Company over the three-year period
measured from the Commencement Date (regardless of the actual grant date) or (ii) as
otherwise provided in Section 8(a), and that grant will be subject to the vesting
acceleration provisions set forth 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
July 3, 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, including (without limitation) round trip first class
airfare to accommodate Executive’s commute to and from Chicago/Phoenix, at such
times as the Executive shall reasonably determine.



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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 allowance of $2,500 during the term of this Agreement
for the Executive’s Arizona housing, food and other similar expenses. Each such
monthly payment to the Executive shall be made no later than five (5) business days
after the end of the applicable month.



     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



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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
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 (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 (or fewer number of fiscal years of employment
with the Company) immediately preceding the



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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-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 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 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 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 14(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 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



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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 14(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.




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



     6. Section 12(b) of the Agreement is hereby deleted in its entirety and replaced with the
following new Sections 12(b), 12(c), 12(d) and 12(e):




     (b) All determinations as to whether any of the Total Payments are “parachute
payments” (within the meaning of Section 280G of the Code), whether a Gross-Up
Payment is required, the amount of such Gross-Up Payment, and any amounts relevant
to the last sentence of the paragraph above, will 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



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“Accounting Firm”). The Accounting Firm selected by the Company will not have
an ongoing audit or consulting relationship with the Company at the time it is
selected.  The Accounting Firm will provide all applicable determinations with
respect to any of the Total Payments that become due and payable at the time of the
Change in Control Event (the “Change in Control Determination”), together
with detailed supporting calculations regarding the amount of the Excise Tax, any
required Gross-Up Payment and any other relevant matter, both to the Company and the
Executive within ten (10) business days after the effective date of the Change in
Control Event or such earlier time as is requested by the Company or the Executive
(if the Executive reasonably believes that any of the Total Payments may be subject
to the Excise Tax). In addition, the Accounting Firm will provide all applicable
determinations with respect to any of the Total Payments that become due and payable
at the time of the Executive’s Separation from Service (the “Separation from Service
Determination”), together with detailed supporting calculations regarding the amount
of the Excise Tax, any required Gross-Up Payment and any other relevant matter, both
to the Company and the Executive within ten (10) business days after the date of the
Executive’s Separation from Service. The Change in Control and Separation from
Service Determinations made by the Accounting Firm will be binding upon the Company
and the Executive. The Gross-Up Payment (if any) determined on the basis of the
Change in Control Determination shall be paid to or on behalf of Executive within
five (5) business days after the completion of such Determination or (if later) at
the time the related Excise Tax is remitted to the appropriate tax authorities. The
Gross-Up Payment (if any) determined on the basis of the Separation from Service
Determination shall be paid to or on behalf of Executive within five (5) business
days after the completion of such Determination or (if later) at the time the
related Excise Tax is remitted to the appropriate tax authorities.




     (c) In the event that the Executive’s actual Excise Tax liability is determined
by a Final Determination to be greater than the Excise Tax liability taken into
account for purposes of any Gross-Up Payment or Payments initially made to the
Executive pursuant to the provisions of Section 12(b), 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 Excise Tax calculation based upon that Final Determination and provide
the Company and the Executive with the supporting calculations for any supplemental
Gross-Up Payment attributable to that excess Excise Tax liability. The Company shall
make the supplemental 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 tax liability is remitted to the appropriate tax authorities. In
the event that the Executive’s actual Excise Tax liability is determined by a Final
Determination to be less than the Excise Tax liability taken into account for
purposes of any Gross-Up Payment or Payments initially made to the Executive
pursuant to the provisions of



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Section 12(b), then the Executive shall refund to the Company, within five (5)
business following receipt, any federal or state tax refund attributable to the
Excise Tax overpayment. For purposes of this Section 12(c), a “Final Determination”
means 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.




     (d) Should the Accounting Firm determine that any Gross-Up Payment made to the
Executive was in fact more than the amount actually required to be paid to him in
accordance with the provisions of Section 12(b) or 12(c), then the Executive will,
at the direction and expense of the Company, take such steps as are reasonably
necessary (including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Company, and otherwise
reasonably cooperate with the Company to correct such overpayment. In addition,
should the Company decide to contest any assessment by the Internal Revenue Service
of an Excise Tax on one or more items comprising the Total Payments, the Executive
will comply with all reasonable actions requested by the Company in connection with
such proceedings, but shall not be required to incur any out-of-pocket costs in so
doing.




     (e) Notwithstanding anything to the contrary in the foregoing, any Gross-Up
Payments due the Executive under this Section 12 shall be subject to the hold-back
provisions of Section 14(b), to the extent those payments relate to any amounts and
benefits provided to the Executive that constitute parachute payments attributable
to his Separation from Service. In addition, no Gross-Up Payment shall be made
later than the later of (i) the end of the calendar year in which the related taxes
are remitted to the appropriate tax authorities or (ii) the end of the sixty
(60)-day period measured from the date those taxes are so remitted, or such other
specified time or schedule that may be permitted under Section 409A of the Code. To
the extent the Executive may become entitled to any reimbursement of expenses
incurred by him at the direction of the Company in connection with any tax audit or
litigation addressing the existence or amount of the Excise Tax, such reimbursement
shall be paid to the Executive no later than the later of (i) the close of the
calendar year in which the Excise Tax that is the subject of such audit or
litigation is paid by or on behalf of the Executive or (ii) the end of the sixty
(60)-day period measured from such payment date. If no Excise Tax liability is found
to be due as a result of such audit or litigation, the reimbursement shall be paid
to the Executive no later than the later of (i) the close of the calendar year in
which the audit is completed or there is a final and non-appealable settlement or
other resolution of the litigation or (ii) the end of the sixty (60)-day period
measured from the date the audit is completed or the date the litigation is so
settled or resolved.



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     7. The final paragraph of Section 13(a) is hereby amended to read as follows:




     All determinations under this Section 13 shall be made by 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 extent a reduction to the
Total Payments is required to be made in accordance with this Section 13, 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 the 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.



     8. There is hereby added to the end of Section 14(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.



     9. Section 14(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



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“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 14(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 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 or non-employee
consultant during the immediately preceding thirty-six (36) months (or any shorter
period of such 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



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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.



     10. Section 14(c) of the Agreement is hereby amended in its entirety to read as follows:




     (c) Should the Executive comply with the provisions of subsections 14(a) and
14(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 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 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 14(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



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Payment initially made to the Executive pursuant to the provisions of this
Section 14(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.



     11. Except as modified by this Amendment No. 2, all the terms and provisions of the Agreement
(as previously amended) shall continue in full force and effect.


IN WITNESS WHEREOF, Apollo Group, Inc. has caused this Amendment No. 2 to be executed on its behalf
by its duly-authorized officer on the date indicated below, and the Executive has executed this
Amendment No. 2 on the date indicated below.




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



Dated: DEC 12, 2008

	 	 	 	By:



Title:
	/s/ Charles B. Edelstein
 



Chief Executive Officer 

	 	 
	 

	 	 	 	

Dated:
	 	

Dec 12, 2008	 	 







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