As filed with the Securities and Exchange Commission on March 26, 2012
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
APOLLO GROUP, INC.
(Exact name of registrant as specified in its charter)
Arizona | 86-0419443 | |
(State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
4025 S. Riverpoint Parkway
Phoenix, Arizona 85040
(Address of principal executive offices) (Zip Code)
Apollo Group, Inc. Amended and Restated 2000 Stock Incentive Plan
(Full title of the Plan(s))
Sean B.W. Martin
Senior Vice President, General Counsel and Secretary
Apollo Group, Inc.
4025 S. Riverpoint Parkway
Phoenix, Arizona 85040
(Name and address of agent for service)
(480) 966-5394
(Telephone Number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Securities to be Registered | Amount to be Registered(1) |
Proposed Maximum Offering Price per Share(2) |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee | ||||
Amended and Restated 2000 Stock Incentive Plan, Class A Common Stock, no par value |
3,500,000 shares | $43.29 | $151,515,000 | $17,363.62 | ||||
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(1) | This Registration Statement shall also cover any additional shares of Class A Common Stock which become issuable with respect to the shares of Class A Common Stock registered hereunder for issuance under the Amended and Restated 2000 Stock Incentive Plan (the 2000 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration which results in an increase in the number of the outstanding shares of Registrants Class A Common Stock. |
(2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low selling prices per share of Class A Common Stock of Apollo Group, Inc. on March 20, 2012, as reported by NASDAQ. |
PART II
Information Required in the Registration Statement
Item 3. | Incorporation of Documents by Reference |
Apollo Group, Inc. (the Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the Commission):
(a) | The Registrants Annual Report on Form 10-K for the fiscal year ended August 31, 2011 filed with the Commission on October 20, 2011; |
(b) | All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the 1934 Act) since the end of the fiscal year covered by the Registrants Annual Report referred to in (a) above; and |
(c) | The description of the Registrants Class A Common Stock contained in the Registrants Current Report on Form 8-K filed with the Commission on March 27, 2008, together with any amendments or reports the Registrant files for purposes of updating that description. |
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K under the 1934 Act shall not be incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. | Description of Securities |
Not applicable.
Item 5. | Interests of Named Experts and Counsel |
Not applicable.
Item 6. | Indemnification of Directors and Officers |
The Registrants amended and restated articles of incorporation permit the Registrant to indemnify a director or former director for any liability to any person for any action taken, or any failure to take any action, except liability for any of the following: (a) the amount of a financial benefit received by a director to which the
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director is not entitled; (b) an intentional infliction of harm on the Registrant or its shareholders; (c) unlawful distributions; and (d) an intentional violation of criminal law. In addition, the Registrants amended and restated articles of incorporation permit the Registrant to make advances for expenses as permitted by Arizona law. The Registrants amended and restated articles of incorporation preclude the application of the mandatory indemnification and expense advance provisions of Arizona Revised Statutes § 10-852. However, the Registrants bylaws provide that each director and officer (and former director and officer) shall be indemnified from any liability related to his or her service to the Registrant, to the maximum extent permitted by Arizona law, and shall be entitled to advances for reasonable expenses as permitted by Arizona law. Arizona law generally provides that indemnification is permissible only when the director or officer acted in good faith and in a manner reasonably believed to be in the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. Arizona law prohibits a corporation from indemnifying a director either (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation, or (2) in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in the directors official capacity, in which the director was adjudged liable on the basis that personal benefit was improperly received by the director. In addition to the foregoing indemnification, the Registrant provides directors and officers liability insurance for claims up to $5,000,000.
Item 7. | Exemption from Registration Claimed |
Not applicable.
Item 8. | Exhibits |
Exhibit |
Exhibit | |
4.1 | Instruments Defining the Rights of Stockholders. Reference is made to Registrants Current Report on Form 8-K filed with the Commission on March 27, 2008, together with any amendments or reports thereto, which are incorporated herein by reference to Item 3(c) of this Registration Statement. | |
5 | Opinion and consent of Quarles & Brady LLP | |
23.1 | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. | |
23.2 | Consent of Quarles & Brady LLP is contained in Exhibit 5. | |
24 | Power of Attorney. Reference is made to page II-4 of this Registration Statement. | |
99.1 | Apollo Group, Inc. 2000 Stock Incentive Plan (as amended and restated June 25, 2009). Reference is made to Exhibit 10.3 to Registrants Quarterly Report on Form 10-Q filed with the Commission on June 29, 2009. | |
99.2 | Apollo Group, Inc. 2000 Stock Incentive Plan Amendment (effective June 24, 2010). Reference is made to Exhibit 10.3 to Registrants Current Report on Form 8-K filed with the Commission on June 30, 2010. | |
99.3 | Apollo Group, Inc. Amended and Restated 2000 Stock Incentive Plan Amendment (effective October 6, 2011). Reference is made to Exhibit 10.8 to Registrants Annual Report on Form 10-K filed with the Commission on October 20, 2011. | |
99.4 | Apollo Group, Inc. Amended and Restated 2000 Stock Incentive Plan Amendment (effective December 8, 2011). Reference is made to Exhibit 10.2 to Registrants Quarterly Report on Form 10-Q filed with the Commission on March 26, 2012. |
Item 9. | Undertakings |
A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the 1933 Act), (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the Registrants Amended and Restated 2000 Stock Incentive Plan.
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B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on this 26th day of March, 2012.
APOLLO GROUP, INC. | ||
By: | /s/ Charles B. Edelstein | |
Charles B. Edelstein | ||
Co-Chief Executive Officer | ||
By: | /s/ Gregory W. Cappelli | |
Gregory W. Cappelli | ||
Co-Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Apollo Group, Inc., an Arizona corporation, do hereby constitute and appoint Brian L. Swartz, Senior Vice President and Chief Financial Officer, and Gregory J. Iverson, Vice President, Chief Accounting Officer and Controller, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date | ||
/s/ John G. Sperling |
Founder, Executive Chairman of the Board and Director | March 26, 2012 | ||
John G. Sperling |
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Signature |
Title |
Date | ||
/s/ Peter V. Sperling Peter V. Sperling |
Vice Chairman of the Board and Director | March 26, 2012 | ||
/s/ Charles B. Edelstein Charles B. Edelstein |
Co-Chief Executive Officer and Director (Principal Executive Officer) | March 26, 2012 | ||
/s/ Gregory W. Cappelli Gregory W. Cappelli |
Co-Chief Executive Officer and Director (Principal Executive Officer) | March 26, 2012 | ||
/s/ Brian L. Swartz Brian L. Swartz |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) | March 26, 2012 | ||
/s/ Gregory J. Iverson Gregory J. Iverson |
Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) | March 26, 2012 | ||
/s/ Terri C. Bishop Terri C. Bishop |
Executive Vice President, Integrated Academic Strategies, Senior Advisor to the Chief Executive Officers and Director |
March 26, 2012 | ||
/s/ K. Sue Redman K. Sue Redman |
Director | March 26, 2012 | ||
/s/ George A. Zimmer George A. Zimmer |
Director | March 26, 2012 | ||
/s/ Roy A. Herberger, Jr. Roy A. Herberger, Jr. |
Director | March 26, 2012 | ||
/s/ Ann Kirschner Ann Kirschner |
Director | March 26, 2012 | ||
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Signature |
Title |
Date | ||
/s/ Manuel F. Rivelo Manuel F. Rivelo |
Director | March 26, 2012 | ||
/s/ Darby E. Shupp Darby E. Shupp |
Director | March 26, 2012 | ||
/s/ Robert S. Murley Robert S. Murley |
Director | March 26, 2012 | ||
/s/ Richard H. Dozer Richard H. Dozer |
Director | March 26, 2012 | ||
/s/ Allen R. Weiss Allen R. Weiss |
Director | March 26, 2012 | ||
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EXHIBIT INDEX
Exhibit |
Exhibit | |
4.1 | Instruments Defining the Rights of Stockholders. Reference is made to the Registrants Form 8-K filed with the Commission on March 27, 2008, together with any amendments or reports thereto, which are incorporated herein by reference to Item 3(c) of this Registration Statement. | |
5 | Opinion and consent of Quarles & Brady LLP. | |
23.1 | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. | |
23.2 | Consent of Quarles & Brady LLP is contained in Exhibit 5. | |
24 | Power of Attorney. Reference is made to page II-4 of this Registration Statement. | |
99.1 | Apollo Group, Inc. 2000 Stock Incentive Plan (as amended and restated June 25, 2009). Reference is made to Exhibit 10.3 to Registrants Quarterly Report on Form 10-Q filed with the Commission on June 29, 2009. | |
99.2 | Apollo Group, Inc. 2000 Stock Incentive Plan Amendment (effective June 24, 2010). Reference is made to Exhibit 10.3 to Registrants Current Report on Form 8-K filed with the Commission on June 30, 2010. | |
99.3 | Apollo Group, Inc. Amended and Restated 2000 Stock Incentive Plan Amendment (effective October 6, 2011). Reference is made to Exhibit 10.8 to Registrants Annual Report on Form 10-K filed with the Commission on October 20, 2011. | |
99.4 | Apollo Group, Inc. Amended and Restated 2000 Stock Incentive Plan Amendment (effective December 8, 2011). Reference is made to Exhibit 10.2 to Registrants Quarterly Report on Form 10-Q filed with the Commission on March 26, 2012. |
EXHIBIT 5
OPINION AND CONSENT OF QUARLES & BRADY LLP
March 26, 2012
Apollo Group, Inc.
4025 S. Riverpoint Parkway
Phoenix, Arizona 85040
Re: | Apollo Group, Inc. - Registration Statement for |
Offering of 3,500,000 Shares of Class A Common Stock
Dear Ladies and Gentlemen:
We have acted as counsel to Apollo Group, Inc., an Arizona corporation (the Company), in connection with the registration on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended, of an additional 3,500,000 shares of the Companys Class A common stock (the Shares) issuable under the Companys Amended and Restated 2000 Stock Incentive Plan (the Plan).
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Companys charter documents and the corporate proceedings taken by the Company with respect to the establishment and amendment of the Plan. Based on such review, we are of the opinion that, if, as and when the Shares are issued and sold (and the consideration therefor received) pursuant to the provisions of duly authorized award agreements under the Plan and in accordance with the Registration Statement, the Shares will have been duly authorized, and such Shares will be validly issued, fully paid and nonassessable.
We consent to your filing this letter as Exhibit 5 to the Registration Statement. In giving the opinion set forth in this letter, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission thereunder.
This opinion letter is rendered as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plan or the Shares.
Very truly yours, |
/s/ Quarles & Brady LLP |
Quarles & Brady LLP |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the consolidated financial statements of Apollo Group, Inc. and subsidiaries (the Company) and the effectiveness of the Companys internal control over financial reporting dated October 20, 2011, appearing in the Annual Report on Form 10-K of the Company for the year ended August 31, 2011.
/s/ Deloitte & Touche LLP
Phoenix, Arizona
March 26, 2012