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APOLLO GROUP, INC.
STOCK OPTION ASSUMPTION AGREEMENT
APTIMUS, INC.
2001 STOCK PLAN
Optionee: «Employee»,
STOCK OPTION ASSUMPTION AGREEMENT made as of the 29th day of October 2007 by Apollo Group,
Inc., an Arizona corporation (“Apollo”).
WHEREAS, the undersigned individual (“Optionee”) holds one or more outstanding options to
purchase shares of the common stock of Aptimus, Inc., a Washington corporation (“Aptimus”), which
were granted to Optionee under the Aptimus, Inc. 2001 Stock Plan (the “Plan”) and which are each
evidenced by a Stock Option Agreement (the “Option Agreement”).
WHEREAS, Aptimus has been acquired by Apollo through the merger of Aptimus into a wholly-owned
Apollo subsidiary (the “Merger”) pursuant to the Agreement and Plan of Merger, by and among Apollo
Group, Inc., Asteroid Acquisition Corporation and Aptimus (the “Merger Agreement”).
WHEREAS, the provisions of the Merger Agreement require Apollo to assume the obligations of
Aptimus under all stock options outstanding under the Plan at the consummation of the Merger and to
issue to the holder of each such outstanding stock option an agreement evidencing the assumption of
such stock option by Apollo.
WHEREAS, pursuant to the provisions of the Merger Agreement, the applicable exchange ratio
(the “Option Exchange Ratio”) in effect for the assumption of the outstanding options under the
Plan, as determined in accordance with the formula provisions of the Merger Agreement, is 0.0858564
shares of Apollo Class A common stock (“Apollo Stock”) for each share of Aptimus common stock
(“Aptimus Stock”) subject to such an outstanding option.
WHEREAS, Apollo’s assumption of Optionee’s outstanding stock options under the Plan became
effective immediately upon the consummation of the Merger (the “Effective Time”), and the purpose
of this Agreement is to reflect certain adjustments to Optionee’s outstanding stock options which
have become necessary by reason of such assumption.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of Aptimus Stock subject to the options held by Optionee immediately
prior to the Effective Time (the “Aptimus Options”) and the exercise price payable per share are
set forth below. Apollo hereby assumes, as of the Effective Time, all the duties and obligations
of Aptimus under each of the Aptimus Options. In connection with such assumption, the number of
shares of Apollo Stock purchasable under each Aptimus Option hereby assumed and the exercise price
payable thereunder are hereby adjusted to reflect
the
Option Exchange Ratio. Accordingly, the number of shares of Apollo Stock subject to each
Aptimus Option hereby assumed shall be as specified for that option below, and the adjusted
exercise price payable per share of Apollo Stock under the assumed Aptimus Option shall also be as
indicated for that option below.
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| APTIMUS STOCK OPTIONS
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APOLLO ASSUMED OPTIONS |
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# of Shares of Apollo |
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# of Shares of Aptimus,
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Group, Inc. Class A
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Adjusted Exercise Price per |
Inc. Common Stock
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Exercise Price per Share
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Common Stock
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Share |
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$
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$ |
2. The intent of the foregoing adjustments to each assumed Aptimus Option is to assure that
the spread between the aggregate fair market value of the shares of Apollo Stock purchasable under
each such option and the aggregate exercise price as adjusted pursuant to this Agreement will,
immediately after the consummation of the Merger, be not less than the spread which existed,
immediately prior to the Merger, between the then aggregate fair market value of the Aptimus Stock
subject to the Aptimus Option and the aggregate exercise price in effect at such time under the
Option Agreement. Such adjustments are also intended to preserve, immediately after the Merger, on
a per share basis, the same ratio of exercise price per option share to fair market value per share
which existed under the Aptimus Option immediately prior to the Merger.
3. The following provisions shall govern each Aptimus Option hereby assumed by Apollo:
(a) Unless the context otherwise requires, all references in each Option
Agreement and, if applicable, in the Plan (as incorporated into such Option
Agreement): (i) to the “Company” shall mean Apollo, (ii) to “Share” shall mean a
share of Apollo Stock, (iii) to the “Board” shall mean the Board of Directors of
Apollo, (iv) to the “Committee” shall mean the Compensation Committee of the Apollo
Board of Directors and (v) to the “Administrator” shall mean the Compensation
Committee of the Apollo Board of Directors.
(b) The grant date and the expiration date of each assumed Aptimus Option and
all other provisions which govern either the exercise or the termination of the
assumed Aptimus Option shall remain the same as set forth in the Option Agreement
applicable to that option, and the provisions of the Option Agreement shall
accordingly govern and control Optionee’s rights under this Agreement to purchase
Apollo Stock.
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(c) Pursuant to the terms of the Option Agreement, none of the options assumed
by Apollo vested or became exercisable on an accelerated basis upon the consummation
of the Merger. Accordingly, each assumed Aptimus Option shall continue to vest for
any presently unvested shares of Apollo Stock subject to that option in accordance
with the same installment vesting schedule in effect under the applicable Option
Agreement immediately prior to the Effective Time; provided, however, that the
number of shares subject to each such installment shall be adjusted to reflect the
Option Exchange Ratio.
(d) For purposes of applying any and all provisions of the Option Agreement
and/or the Plan relating to Optionee’s continuous status as an employee or a
consultant of Aptimus, Optionee shall be deemed to remain in such continuous status
as an employee or a consultant for so long as Optionee renders services as an
employee or a consultant to Apollo or any present or future Apollo subsidiary.
Accordingly, the provisions of the Option Agreement governing the termination of the
assumed Aptimus Options upon Optionee’s cessation of service as an employee or a
consultant of Aptimus shall hereafter be applied on the basis of Optionee’s
cessation of employee or consultant status with Apollo and its subsidiaries, and
each assumed Aptimus Option shall accordingly terminate, within the designated time
period in effect under the Option Agreement for that option, following such
cessation of service as an employee or a consultant of Apollo and its subsidiaries.
(e) The adjusted exercise price payable for the Apollo Stock subject to each
assumed Aptimus Option shall be payable in any of the forms authorized under the
Option Agreement applicable to that option.
(f) In order to exercise each assumed Aptimus Option, Optionee must deliver to
Apollo a written or electronic notice of exercise in which the number of shares of
Apollo Stock to be purchased thereunder must be indicated. The exercise notice must
be accompanied by payment of the adjusted exercise price payable for the purchased
shares of Apollo Stock or must provide for the payment of such adjusted exercise
price to Apollo pursuant to a same-day exercise and sale and remittance procedure.
Any written notice of exercise must be delivered to Apollo at the following address
and shall be effective upon receipt:
Apollo Group, Inc.
4615 E. Elwood St.
Phoenix, AZ 85040
Attention: Stock Administration
4. Except to the extent specifically modified by this Option Assumption Agreement, all of the
terms and conditions of each Option Agreement as in effect immediately prior to the Merger shall
continue in full force and effect and shall not in any way be amended, revised or otherwise
affected by this Stock Option Assumption Agreement.
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IN WITNESS WHEREOF, Apollo Group, Inc. has caused this Stock Option Assumption Agreement to be
executed on its behalf by its duly-authorized officer as of the 29th day of October, 2007.
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APOLLO GROUP, INC. |
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By: |
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Title: |
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ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Option Assumption Agreement and
understands that all rights and liabilities with respect to each of his or her Aptimus Options
hereby assumed by Apollo are as set forth in the Option Agreement, the Plan (as applicable) and
such Stock Option Assumption Agreement.
DATED: , 2007
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