exv10w4






EXHIBIT 10.4




FORM B




NON-STATUTORY STOCK OPTION AGREEMENT




     This Option Agreement is made and entered into by and between APOLLO GROUP, INC., an Arizona
corporation (hereinafter referred to as the
“Company”), and                      (hereinafter referred
to as “Employee”), as of                                         , 20      (which date is hereinafter referred to as
the “Date of Grant”). If Employee is presently or subsequently becomes employed by a subsidiary of
the Company, the term “Company” shall be deemed to refer collectively to Apollo Group, Inc. and the
subsidiary or subsidiaries which employ the Employee.



RECITALS




     A. The Company has implemented the Apollo Group, Inc. 2000 Incentive Plan, as amended and
restated (the “Plan”), as an equity incentive program to encourage key employees and officers of
the Company to remain in its employ and to enhance the ability of the Company to attract new
employees whose services are considered valuable by providing them with an opportunity to acquire a
proprietary interest in the success of the Company.



     B. The Compensation Committee of the Company’s Board of Directors (the “Committee”) has the
authority to grant options pursuant to the Plan to officers and other key employees of the Company
in order to provide such individuals with an incentive to continue in the Company’s service.



     C. The Committee did authorize the grant of the Option evidenced by this Agreement to Employee
on the Date of Grant in order to carry out the intent and purpose of the Plan in providing a
substantial equity incentive to encourage the Employee to continue in the Company’s service and to
contribute to its financial success.



     NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:



          1. Grant of Option. Employee is hereby granted the right and option (the “Option”) to
purchase an aggregate of            shares of the Company’s Class A common stock (the “Option Shares”)
under the Plan upon the terms and conditions set forth in this Agreement. The Option is a
non-statutory option under the federal income tax laws and is not intended to be an incentive stock
option subject to Section 422 of the Internal Revenue Code.




          2. Exercise Price. The price per share at which Employee shall be entitled to
purchase the Option Shares pursuant to this Option shall be $           (the “Exercise Price”). Such
Exercise Price is equal to the Fair Market Value per share of the Company’s Class A common stock on
the Date of Grant.




          3.
Option Term. The Option hereby granted shall have a
maximum term of            (___)
years measured from the Date of Grant and shall accordingly expire at the close of business on
                                        ,
20___ (the “Expiration Date”), unless sooner terminated in accordance with
Paragraph 5(b), 8 or 9 of this Agreement.




          4. Vesting Schedule. The Option shall vest and become exercisable for the Option
Shares in a series of            (___) successive equal annual installments upon Optionee’s
completion of each successive year of employment with the Company over the            (___)-year period
measured from                     , 20___. The foregoing annual installment vesting schedule shall
constitute the Normal Vesting Schedule for the Option. However, the Option may vest and become
exercisable on an accelerated basis in accordance with the special vesting acceleration provisions
of Paragraph 5. As the Option vests and becomes exercisable for one or more installments of the
Option Shares, those installments shall accumulate, and the Option shall remain exercisable for
the accumulated installments until the Expiration Date or sooner termination of the option
term under Paragraph 5(b), 8 or 9 of this Agreement.




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          5. Special Acceleration of Option.




               (a) The Option, to the extent outstanding at the time of a Change in Control transaction but
not otherwise fully exercisable at that time, shall automatically vest on an accelerated basis so
that the Option shall, immediately prior to the effective date of such Change in Control, vest and
become exercisable for all of the Option Shares at the time subject to the Option and may be
exercised for any or all of those Option Shares as fully vested shares of Class A common stock.



               (b) Immediately following the Change in Control, the Option shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or parent thereof) or
otherwise continued in effect pursuant to the terms of the Change in Control transaction.



               (c) If the Option is assumed in connection with a Change in Control or otherwise continued in
effect, then the Option shall be appropriately adjusted, immediately after such Change in Control,
to apply to the number and class of securities into which the shares of Class A common stock
subject to the Option would have been converted in consummation of such Change in Control had those
shares actually been outstanding at the time. Appropriate adjustments shall also be made to the
Exercise Price, provided the aggregate Exercise Price shall remain the same. To the extent the
actual holders of the Company’s outstanding Class A common stock receive cash consideration for
their Class A common stock in consummation of the Change in Control, the successor corporation may,
in connection with the assumption or continuation of this Option, substitute one or more shares of
its own common stock with a fair market value equivalent to the cash consideration paid per share
of Class A common stock in such Change in Control, provided such common stock is readily tradable
on an established U.S. securities exchange or market.



               (d) The term “Change in Control” shall have the meaning assigned to such term in Section 3.1
(e) of the Plan.



               (e) This Agreement shall not in any way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.



          6. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by timely delivery to the Company (or its designated agent)
of a written or electronic notice of exercise that shall become effective on the date received by
the Company. The notice shall state Employee’s election to exercise the Option, the number of
Option Shares for which the election to exercise has been made, the method of payment elected
pursuant to Paragraph 7 hereof, and the exact name or names in which the stock certificates for
purchased Option Shares are to be registered. Such notice shall be signed by the Employee and
shall be accompanied by payment of the Exercise Price for the purchased Optioned Shares, except to
the extent payment is to be made pursuant to the same day exercise and sale procedure set forth in
clause (ii) of Paragraph 7. In the event the Option shall be exercised by a person or persons
other than Employee pursuant to paragraph 9(a) hereof, such notice shall be signed by such other
person or persons and shall be accompanied by proof acceptable to the Company of the legal right of
such person or persons to exercise the Option. All shares delivered by the Company upon exercise
of the Option as provided herein shall be fully paid and non-assessable upon delivery.




          7. Method of Payment. Payment of the Exercise Price for the Option Shares purchased
upon the exercise of this Option shall be made by Employee (i) in cash, (ii) through a
broker-assisted same day exercise and sale procedure pursuant to which the broker shall immediately
sell, on behalf of the Employee or such other person exercising the Option, all or a portion of the
Option Shares acquired upon exercise of the Option and remit to the Company, on the settlement date
for such sale, a sufficient amount of the sale proceeds to cover the Exercise Price payable for all
the Option Shares purchased through such exercise and the applicable withholding taxes, (iii)
through such other method permitted by the Committee or (iv) through any combination of the above.




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          8. Termination of Employment.




               (a) Should Employee’s employment terminate for any reason other than for Cause or death or
Disability, then Employee may, at any time within the three (3)- month period measured from the
effective date of such termination of employment, exercise the Option for any or all of the Option
Shares for which this Option is exercisable, either in accordance with the Normal Vesting Schedule
or the special vesting acceleration provisions of Paragraph 5, on the date of such termination of
employment; provided, however, that in no event shall the Option, or any part thereof, be
exercisable after the Expiration Date. Upon the earlier of (i) the Expiration Date or (ii) the
expiration of such limited post-employment exercise period, this Option shall terminate and cease
to be exercisable for any Option Shares.



               (b) If Employee’s employment is terminated for Cause or should the Employee engage in any act
or omission that constitutes a “Cause” event, then the Option shall immediately lapse and cease to
be exercisable for any of the Option Shares. For purposes of this Agreement, the term “Cause” shall
have the meaning assigned to such term in Section 3.1(d) of the Plan.



               (c) If Employee is employed on the Date of Grant in a capacity other than a faculty member,
then the Employee shall be deemed for purposes of this Paragraph 8 to have terminated employment
upon the earlier of (i) the date he or she ceases for any reason to be employed by the Company or
any Subsidiary or (ii) the first date on which Employee is employed by the Company or any
Subsidiary solely in the capacity of a faculty member.



     9. Employee’s Death or Disability.



               (a) In the event of the Employee’s death while this Option is outstanding and exercisable for
one or more Option Shares, this Option shall remain exercisable for those Option Shares until the
earlier of (i) the expiration of the twelve (12)-month period measured from the date of Employee’s
death or (ii) the Expiration Date. During such limited exercise period, this Option may be
exercised by the representative or representatives of the Employee’s estate or by the person or
persons entitled to do so under Employee’s last will and testament or, if Employee fails to make a
testamentary disposition of this Option or shall die intestate, by the person or persons entitled
to receive this Option under the applicable laws of descent and distribution. However, during such
period this Option may not be exercised in the aggregate for more than the number of the Option
Shares (if any) for which this Option is exercisable, either in accordance with the Normal Vesting
Schedule or the special vesting acceleration provisions of Paragraph 5, on the date of Employee’s
termination of employment. Upon the earlier of (i) the Expiration Date or (ii) the expiration of
such limited exercise period, this Option shall terminate and cease to be exercisable for any
Option Shares. The Company shall have the right to require evidence satisfactory to it of the
rights of any person or persons seeking to exercise the Option under this Paragraph 9(a).



               (b) In the event Employee’s employment terminates by reason of his or her Disability, then
Employee may, at any time within the twelve (12)-month period measured from the date of such
termination of employment, exercise the Option for any or all of the Option Shares for which this
Option is exercisable, either in accordance with the Normal Vesting Schedule or the special vesting
acceleration provisions of Paragraph 5, on the date of such termination of employment; provided,
however, that in no event shall the Option, or any part thereof, be exercisable after the
Expiration Date. Upon the earlier of (i) the Expiration Date or (ii) the expiration of such
limited exercise period, this Option shall terminate and cease to be exercisable for any Option
Shares. For purposes of this Agreement, the term “Disability” shall have the meaning assigned to
such term in Section 3.1(i) of the Plan.



          10. Cessation of Employment/Transfer of Employee.




               (a) Except to the extent (if any) specifically authorized by the Committee pursuant to an
express written agreement with the Employee, this Option shall not vest or become exercisable for
any additional Option Shares, whether pursuant to the Normal Vesting Schedule or the special
vesting acceleration provisions of Paragraph 5, following the Employee’s termination of employment.



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               (b) Except as otherwise provided in Paragraph 8(c) hereof, in the event Employee ceases to be
an employee of the Company and becomes an employee of one of the Company’s subsidiaries as the
result of a transfer, promotion or otherwise, the terms and provisions of this Option shall remain
unchanged.



          11. Nontransferability. The Option evidenced by this Agreement shall be neither
transferable nor assignable by Employee other than by will or the laws of inheritance following the
Employee’s death and may be exercised, during Employee’s lifetime, only by the Employee. The Option
evidenced by this Agreement shall also be subject to the restrictions on transfer as set forth in
section 13. 5 of the Plan.




          12. Stockholder Rights. The holder of this Option shall not have any stockholder
rights with respect to the Option Shares until such person shall have exercised the Option, paid
the Exercise Price and become a holder of record of the purchased shares.




          13. Adjustments in Number of Option Shares and Exercise Price. In the event a stock
dividend is declared upon the outstanding Class A common stock after the Date of Grant, the number
of Option Shares then subject to this Option shall be increased proportionately and the Exercise
Price per share shall be equitably adjusted by the Committee to reflect such stock dividend without
any change in the aggregate Exercise Price therefor. Should any change be made to the Class A
common stock by reason of any stock split, recapitalization, combination of shares, exchange of
shares, spin-off transaction, extraordinary dividend or distribution or other change affecting the
outstanding Class A common stock as a class without the Company’s receipt of consideration, or
should the value of the outstanding shares of Class A common stock be substantially reduced as a
result of a spin-off transaction or an extraordinary dividend or distribution, or should there
occur any merger, consolidation or other reorganization, then equitable adjustments shall be made
by the Committee to (i) the total number and/or class of securities subject to this Option and (ii)
the Exercise Price payable per share, but without any change in the aggregate Exercise Price
therefor. The adjustments shall be made in such manner as the Committee deems appropriate, and
those adjustments shall be final, binding and conclusive upon Employee and any other person or
persons having an interest in this Option. However, in the event of a Change of Control, the
adjustments (if any) shall be made in accordance with the applicable provisions of Section 13.8 of
the Plan governing Change of Control transactions and Paragraph 5 of this Agreement.
Notwithstanding the above, the conversion of any convertible securities of the Company shall not be
deemed to have been effected without the Company’s receipt of consideration.




          14. Delivery of Shares. No shares shall be delivered upon exercise of the Option
until (i) the Exercise Price for those shares shall have been paid in full in the manner herein
provided and (ii) all applicable taxes required to be withheld shall have been paid or withheld in
full.




          15. Compliance with Laws and Regulations.




               (a) The exercise of this Option and the issuance of the Option Shares upon such exercise shall
be subject to compliance by the Company and Employee with all applicable requirements of law
relating thereto and with all applicable regulations of any stock exchange on which the Class A
common stock may be listed for trading at the time of such exercise and issuance.



               (b) The inability of the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance and sale of any Class A common stock
pursuant to this Option shall relieve the Company of any liability with respect to the non-issuance
or sale of the Class A common stock as to which such approval shall not have been obtained. The
Company, however, shall use its best efforts to obtain all such approvals.



               (c) The Company shall not be required to deliver any shares of the Company’s Class A common
stock pursuant to the exercise of all or any part of the Option if, in the opinion of counsel for
the Company, such issuance would violate the Securities Act of 1933 or any other applicable federal
or state securities laws or regulations.



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               (d) The applicable post-employment exercise period in effect pursuant to the provisions of
Paragraphs 8 and 9 shall automatically be extended by an additional period of time equal in
duration to any interval within such post-employment exercise period during which the exercise of
this option or the immediate sale of the Option Shares acquired under this option cannot be
effected in compliance with applicable federal and state securities laws, but in no event shall
such an extension result in the continuation of this option beyond the Expiration Date.



          16. Federal and State Taxes. Upon exercise of this Option, or any part thereof,
Employee may incur certain liabilities for federal, state or local taxes, and the Company may be
required by law to withhold such taxes for payment to the applicable taxing authorities. Employee
may satisfy the payment of any federal, state, or local tax withholding amounts due as a result of
the exercise of this Option by (i) delivering to the Company cash, a check or other form of payment
permitted by the Committee in the aggregate amount required to satisfy such tax withholding amount
or (ii) using a portion of the sale proceeds of the purchased Option Shares to satisfy such tax
withholding amount, to the extent Employee exercises the Option pursuant to the sale and remittance
procedure set forth in Paragraph 7 hereof.




          17. Definitions; Copy of Plan. To the extent not specifically provided herein, all
capitalized terms used in this Agreement shall have the same meanings ascribed to them in the Plan
is granted. By the execution of this Agreement, Employee acknowledges receipt of a copy of the
Plan and the official prospectus for the Plan.




          18. Administration. This Agreement shall at all times be subject to the terms and
conditions of the Plan, and such Plan shall in all respects be administered by the Committee in
accordance with the terms and provisions of the Plan. The Committee shall have the sole and
complete discretion with respect to all matters reserved to it by the Plan, and decisions of the
Committee with respect thereto and to this Agreement shall be final and binding upon Employee (or
any other person with an interest in this Option) and the Company. In the event of any conflict
between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall
control.




          19. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company at its principal corporate
offices or shall be effected through properly-addressed electronic mail delivery. Any notice
required to be given or delivered to Employee shall be in writing and addressed to Employee at the
most recent address then on file for Employee in the Company’s Human Resources Department. All
notices shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, postage
prepaid and properly addressed to the party to be notified.




          20. Successors and Assigns. Except to the extent otherwise provided in this
Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns and Employee and the legal representatives, heirs and
legatees of Employee’s estate.




          21. Continuation of Employment. This Agreement shall not be construed to confer upon
Employee any right to continue in the employ of the Company (or any subsidiary) and shall not limit
the right of the Company (or any employer subsidiary), in its sole discretion, to terminate the
employment of Employee at any time.




          22. Obligation to Exercise. Employee shall have no obligation to exercise this Option
in whole or in part.




          23. Governing Law. This Agreement shall be interpreted and administered under the
laws of the State of Arizona without resort to that State’s conflict-of-laws rules.




          24. Amendments. This Agreement may be amended only by a written agreement executed by
the Company and Employee. The Company and Employee acknowledge that changes in federal tax laws
enacted subsequent to the Date of Grant, and applicable to stock options, may provide for tax
benefits to the Company or Employee. In any such event, the Company and Employee agree that this
Agreement may be amended as necessary to secure for the Company and Employee any benefits that may
result from such legislation. Any such amendment
shall be made only upon the mutual consent of the parties, which consent (of either party) may
be withheld for any reason.




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          IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officers
thereunto duly authorized and Employee has executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 
	APOLLO GROUP, INC.

	 	 	 	EMPLOYEE	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	Title:

	 	 	 	Dated;	 	 
	 
	 	 	 	 
	 	 
	 
	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 






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