1
EXECUTION VERSION
ASSIGNMENT AND AMENDMENT AGREEMENT
BY AND AMONG
NATIONAL ENDOWMENT FOR FINANCIAL EDUCATION,
THE COLLEGE FOR FINANCIAL PLANNING, INC.,
APOLLO ONLINE, INC., AND APOLLO GROUP, INC.
This ASSIGNMENT AND AMENDMENT AGREEMENT (this "Agreement") is made and
entered into as of September 23, 1997, by and among National Endowment for
Financial Education(R), a Colorado non-profit corporation ("Seller"), The
College for Financial Planning, Inc., an Arizona corporation ("College"), Apollo
Online, Inc., an Arizona corporation ("Online"), and Apollo Group, Inc., an
Arizona corporation ("Apollo"). Seller, College, Online, and Apollo are referred
to herein each individually as a "Party" and collectively as the "Parties."
RECITALS
A. Seller, Online, and Apollo are parties to an Asset Purchase
Agreement, dated as of August 21, 1997 (the "Purchase Agreement"), pursuant to
which (1) Seller has agreed to sell, and Online has agreed to purchase, certain
assets of Seller and (2) Online has agreed to assume certain liabilities of
Seller.
B. As contemplated by Section 8.6 of the Purchase Agreement, Online
desires to assign all of its rights and obligations under the Purchase Agreement
to College, and College desires to assume all of such rights and obligations.
C. The Parties desire to amend the Purchase Agreement (1) to modify the
mechanism and timing by which the Apollo Common Stock is valued and the cash
portion of the Purchase Price is calculated, (2) to make corresponding changes
as necessary to accommodate the change described in clause (1), and (3) to
modify certain other provisions of the Purchase Agreement.
D. Capitalized terms used and not defined herein have the meanings
given to such terms in the Purchase Agreement.
AGREEMENT
In consideration of the mutual promises herein made and for other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
Section 1. Assignment. Pursuant and subject to Section 8.6 of the
Purchase Agreement, Online hereby assigns, transfers, conveys, and delivers to
College all of Online's rights, obligations and interests under the Purchase
Agreement.
2
EXECUTION VERSION
Section 2. Assumption. Pursuant and subject to Section 8.6 of the
Purchase Agreement, College hereby assumes and agrees to perform and fully
discharge all of Online's rights, obligations and interests under the Purchase
Agreement.
Section 3. Amendments.
(a) Share Determination Price. The final two sentences of
Section 1.3(b)(i) of the Purchase Agreement are hereby amended and
restated as follows:
"The aggregate number of shares (rounded up to the nearest
whole number) of Apollo Common Stock to be issued to Seller
will be equal to $17,500,000 divided by the Share
Determination Price, as defined in the following sentence, for
the fourth business day immediately prior to the Closing Date.
As used herein, the term "Share Determination Price" means,
for any applicable date, the average of the closing bid price
of shares of Apollo Common Stock made by ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.,
Alex. ▇▇▇▇▇ & Sons Incorporated, and ▇▇▇▇▇▇▇▇▇▇ Securities as
reported on the NASDAQ National Market, or if unavailable, as
reported by Bloomberg Financial Markets on that date."
(b) Payment of Cash Portion of Purchase Price. Section
1.3(b)(ii) of the Purchase Agreement is hereby amended and restated as
follows:
"On the Closing Date on account of the Purchase Price, Buyer
shall pay to Seller an amount equal to (A) $35,000,000 less
(B) the product obtained by multiplying the number of shares
of Apollo Common Stock calculated in clause (i) above times
the Share Determination Price for the Closing Date, payable by
wire transfer of immediately available funds (or next-day
funds if such wire transfer cannot be completed on the Closing
Date solely as a result of the time constraints of normal
banking procedures for wire transfers) to such account as
Seller designates on or before the Closing Date."
(c) Closing Date. Section 2.1 of the Purchase Agreement is
amended by (i) deleting the words "(with a pre-closing held the
business day prior to the Closing Date)" where they appear in such
Section; (ii) deleting the words "8:00 a.m. local time" where they
appear in such Section and replacing them with the words "2:00 p.m.
local time"; and (iii) deleting the words "September 24, 1997" where
they appear in such Section and replacing them with the words
"September 23, 1997".
(d) Third Party Consents. Section 2.3 of the Purchase
Agreement is hereby amended by deleting the words "Required Consent"
where they appear in such Section and replacing them with the words
"Seller Required Consent".
2
3
EXECUTION VERSION
(e) Deferred Tuition Fees. Section 3.1(x) of the Purchase
Agreement is hereby amended and restated as follows:
"All obligations and liabilities of Seller relating to
deferred tuition fees and deferred income are attached as
Schedule 1.4(a)(i), which Schedule will be provided by Seller
to Buyer within one business day after the Closing Date."
(f) Form 8-K. Section 4.3 of the Purchase Agreement is hereby
amended and restated as follows:
"Form 8-K. As soon as practicable after execution of this
Agreement, (i) Seller and Apollo shall cooperate with each
other in order to enable Apollo to file with the Commission no
later than the business day immediately following the Closing
Date its Form 8-K with respect to its acquisition of the
Business pursuant to applicable rules and regulations under
the Exchange Act, and (ii) Seller will provide not later than
five business days prior to the Closing Date (together with
the forms of auditors' report and consent that will be
required to be signed in connection therewith) such historical
financial statements of the Business as required to be
included therein pursuant to such rules and regulations.
Subject to Seller's fulfillment of its obligations under
clause (ii) of the preceding sentence, Apollo will file, no
later than the business day immediately following the Closing
Date, the Form 8-K containing all financial and other
Information required thereby in compliance with the
requirements of the Exchange Act with respect to the
acquisition of the Business together with a contemporaneous
press release in compliance with Section 4.2(c)."
(g) Updated Schedules. Section 4.4 of the Purchase Agreement
is hereby amended and restated as follows:
"Seller shall deliver to Apollo on or before the Closing Date
updated schedules disclosing any additional required
information or any inaccuracy, whether or not any such
information or inaccuracy is material, as of such date with
respect to Seller's representations contained in Section 3.1
of this Agreement."
(h) Form 8-K. Section 5.2(j) of the Purchase Agreement is
hereby amended and restated as follows:
"Seller shall have been advised by Apollo that pursuant to
Section 4.3 of this Agreement the Form 8-K containing all
financial and other information required thereby in compliance
with the requirements of the Exchange Act with respect to the
acquisition of the Business is substantially ready for filing
no later than the business day immediately following the
Closing Date."
3
4
EXECUTION VERSION
(i) Continuing Employees. Section 7.1(a) of the Purchase
Agreement is hereby amended and restated as follows:
"Buyer will hire those individuals who accept Buyer's offer of
employment (the "Continuing Employees"), it being understood
that for purposes of this Agreement all individuals that are
employees of Seller on the Closing Date will be deemed to be
Continuing Employees unless such employees either (i) are
included on Schedule 7.1(a) or (ii) have received and rejected
Buyer's offer of employment."
Section 4. Effect. Except as specifically amended by this Agreement,
the Purchase Agreement will remain in full force and effect. All references to
the "Agreement" in the Purchase Agreement will hereafter be deemed to refer to
the Purchase Agreement as amended hereby.
Section 5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6. Governing Law. This Agreement will be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of Colorado, without giving effect to the conflict of laws
rules thereof.
* * * * *
4
5
EXECUTION VERSION
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
NATIONAL ENDOWMENT FOR FINANCIAL
EDUCATION
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
THE COLLEGE FOR FINANCIAL PLANNING,
INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
APOLLO ONLINE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
APOLLO GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
