Apollo Group Inc - Securities Registration: Employee Benefit Plan (S-8)
November 05 2007 - 5:05PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on November 5, 2007
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)
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Arizona
(State or other jurisdiction
of incorporation or organization)
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86-0419443
(IRS Employer Identification No.)
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4615 E. Elwood Street
Phoenix, Arizona 85040
(Address of principal executive offices) (Zip Code)
Aptimus, Inc.
2001 Stock Plan
1997 Stock Option Plan, as Amended
(As Assumed by Apollo Group, Inc.)
(Full title of the Plan(s))
Joseph L. DAmico
Executive Vice President and Chief Financial Officer
Apollo Group, Inc.
4615 E. Elwood Street
Phoenix, Arizona 85040
(Name and address of agent for service)
(602) 966-5394
(Telephone Number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Amount to be
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Offering Price per
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Proposed Maximum
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Amount of
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Title of Securities to be Registered
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Registered(1)
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Share(2)
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Aggregate Offering Price(2)
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Registration Fee
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Aptimus, Inc. 2001 Stock Plan (as
assumed by Registrant)
Class A Common Stock, no par value
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50,201 shares
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$49.83
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$2,501,515.83
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$76.80
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1997 Stock Option Plan, as Amended (as
assumed by Registrant)
Class A Common Stock, no par value
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57,110 shares
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$91.77
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$5,240,984.70
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$160.90
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Aggregate amount to be registered:
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107,311 shares
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Aggregate registration fee:
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$237.70
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(1)
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This Registration Statement shall also cover any additional shares of Class A Common Stock
which become issuable under the Aptimus, Inc. 2001 Stock Plan and 1997 Stock Option Plan, as
Amended, 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.
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(2)
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Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of
1933, as amended, on the basis of the weighted average exercise price of the outstanding
options and stock appreciation rights assumed by the Registrant.
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TABLE OF CONTENTS
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):
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(a)
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The Registrants Annual Report on Form 10-K for the fiscal year ended August
31, 2007 filed with the Commission on October 29, 2007;
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(b)
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All other 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
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(c)
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The Registrants prospectus filed with the Commission on September 28, 2000
pursuant to Rule 424(b) under the Securities Act of 1933, as amended, in connection
with Registration Statement No. 333-33370, in which there is described the terms,
rights and provisions applicable to the Registrants Class A common stock, including
any amendments or reports the Registrant files for purposes of updating that
description.
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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 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 advance of expense 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 against any liability related to his or her service to the
Registrant, to the maximum extent permitted by Arizona law,
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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 such
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
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Exhibit Number
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Exhibit
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4.1
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Instruments Defining the Rights of Stockholders. Reference is made to
Registrants prospectus filed with the Commission on September 28, 2000 in
connection with Registration Statement No. 333-33370, together with any
amendments or reports thereto, which are incorporated herein by reference
pursuant to Item 3(e) of this Registration Statement.
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5
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Opinion and consent of Morgan, Lewis & Bockius LLP
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23.1
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Consent of Deloitte &
Touche, LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5.
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Power of Attorney. Reference is made to page II-4 of this Registration Statement.
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99.1
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Aptimus, Inc. 2001 Stock Plan.
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99.2
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Form of Stock Option Assumption Agreement for 2001 Stock Plan.
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99.3
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Form of Stock Appreciation Right Assumption Agreement for 2001 Stock Plan.
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99.4
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Aptimus, Inc. 1997 Stock Option Plan, as Amended.
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99.5
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Form of Stock Option Assumption Agreement for 1997 Stock Option Plan, as Amended.
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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 Aptimus, Inc. 2001 Stock Plan and 1997 Stock Option Plan,
as amended.
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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 5th
day of November 2007.
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APOLLO GROUP, INC.
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By:
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/s/ Joseph L. DAmico
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Joseph L. DAmico
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Executive Vice President and Chief Financial Officer
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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 E. Mueller, President, and Joseph L. DAmico, Executive Vice
President and Chief Financial Officer, 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.
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Signature
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Title
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Date
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/s/ Brian E. Mueller
Brian E. Mueller
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President and Director (Principal Executive
Officer)
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November 5, 2007
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II-4
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Signature
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Title
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Date
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/s/ Joseph L. DAmico
Joseph L. DAmico
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Executive Vice President and Chief Financial
Officer (Principal Financial Officer)
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November 5, 2007
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/s/ Brian L. Swartz
Brian L. Swartz
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Senior Vice President of Finance and Chief
Accounting Officer (Principal Accounting
Officer)
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November 5, 2007
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/s/ Peter V. Sperling
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Senior Vice President, Secretary and Director
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November 2, 2007
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Peter V. Sperling
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/s/ Gregory Cappelli
Gregory Cappelli
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Executive Vice President Global Strategy and
Director
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November 5, 2007
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/s/ K. Sue Redman
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Director
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November 5, 2007
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K. Sue Redman
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/s/ James R. Reis
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Director
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November 5, 2007
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James R. Reis
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/s/ Roy A. Herberger, Jr.
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Director
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November 3, 2007
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Roy A. Herberger, Jr., Ph.D
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/s/ Ann Kirschner
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Director
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November 5, 2007
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Ann Kirschner
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II-5
EXHIBIT INDEX
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Exhibit Number
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Exhibit
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4.1
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Instruments Defining the Rights of Stockholders. Reference is made to
Registrants prospectus filed with the Commission on January 19, 1996 in
connection with its Registration Statement No. 033-65211, together with any
amendments or reports thereto, which are incorporated herein by reference
pursuant to Item 3(e) of this Registration Statement.
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Opinion and consent of Morgan, Lewis & Bockius LLP
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23.1
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Consent of Deloitte &
Touche, LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5.
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Power of Attorney. Reference is made to page II-4 of this Registration Statement.
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99.1
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Aptimus, Inc. 2001 Stock Plan.
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99.2
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Form of Stock Option Assumption Agreement for 2001 Stock Plan.
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99.3
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Form of Stock Appreciation Right Assumption Agreement for 2001 Stock Plan.
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99.4
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Aptimus, Inc. 1997 Stock Option Plan, as Amended.
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99.5
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Form of Stock Option Assumption Agreement for 1997 Stock Option Plan, as Amended.
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