EXHIBIT 4.5
AMENDMENT NO. 2
REGISTRATION RIGHTS AGREEMENT
This agreement is Amendment No. 2 (the "Amendment") to the Registration
Rights Agreement, dated as of June 16, 1998, as amended by Amendment No. 1 to
the Registration Rights Agreement (the "Amendment No. 1") on April 20, 2000
(together, the "Registration Rights Agreement"), by and among CAPELLA EDUCATION
COMPANY (formerly known as Learning Ventures International, Inc.), a Minnesota
corporation (the "Company") and NCS XXXXXXX, Inc. (as successor to National
Computer Systems, Inc.) (the "Holder"), and is entered into as of the 21st day
of February, 2002.
RECITALS
WHEREAS, the Holder and the Company are parties to a Registration Rights
Agreement dated as of June 16, 1998, that was amended by Amendment No. 1 on
April 20, 2000; and
WHEREAS, the Company proposes to sell and issue up to 1,425,457 shares of
its Class F Convertible Preferred Stock pursuant to that certain Stock Purchase
Agreement dated as of January 31, 2002 (the "Purchase Agreement"); and
WHEREAS, the purchase of the Class F Convertible Preferred Stock under the
Purchase Agreement is conditioned upon the Holder and the Company entering into
this Amendment; and
WHEREAS, the Holder desires that shares of Class F Convertible Preferred
Stock be sold by the Company pursuant to the Purchase Agreement;
NOW, THEREFORE, the parties agree the Registration Rights Agreement
shall be amended as follows:
1. Section 1.1, entitled "Definitions," shall be amended to include
the following definition:
"Class F Registrable Shares" shall mean the shares of the Company's
Class F Convertible Preferred Stock (and shares of Common Stock acquired
upon exercise thereof) that are Registrable Shares as defined in that
certain Amended and Restated Investor Rights Agreement between the
Company, Xxxxxx Xxxxxxx, the purchasers of the Company's Class F
Convertible Preferred Stock and the purchasers of the Company's Class E
Convertible Preferred Stock of even date herewith."
2. Section 1.1, entitled "Definitions," shall be amended by
replacing the definition of "Xxxx Xxxxx Warrant Shares" with the following
definition:
"Xxxx Xxxxx Warrant Shares" shall mean the shares of the Company's
capital stock that are "warrant securities" as defined in that certain
Warrant to purchase common
shares of the Company issued to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated on
June 16, 1998, as amended by Amendment No. 1 on April 20, 2000 and further
amended by Amendment No. 2 on the date hereof, and as defined in that
certain Warrant to purchase common shares of the Company issued to Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated on May 11, 2000, as amended on the date
hereof.
3. Section 1.1, entitled "Definitions," shall be amended by
replacing the definition of "Class E Registrable Shares" with the
following definition:
"Class E Registrable Shares" shall mean the shares of the Company's
Class E Convertible Preferred Stock (and shares of Common Stock acquired
upon exercise thereof) that are Registrable Shares as defined in that
certain Amended and Restated Investor Rights Agreement between the
Company, Xxxxxx Xxxxxxx, the purchasers of the Company's Class F
Convertible Preferred Stock and the purchasers of the Company's Class E
Convertible Preferred Stock of even date herewith."
4. The second sentence of the second paragraph of Section 1.2 shall
be revised to read as follows:
"Without the written consent of Holder, neither the Company nor any other
holder of securities of the Company, other than holders of Class F
Registrable Shares, Class E Registrable Shares and Xxxx Xxxxx Warrant
Shares, may include securities in such registration if in the good faith
judgment of the managing underwriter of such public offering the inclusion
of such securities would interfere with the successful marketing of the
Registrable Securities or require the exclusion of any portion of the
Registrable Securities to be registered."
5. Section 1.2 shall be amended by replacing the last clause of the
third paragraph of Section 1.2, which begins "(ii) the Company may not delay
....", with the following text:
"(ii) the Company may not delay or suspend any registration more than one
time in any 12-month period."
6. Section 1.3 shall be amended by replacing the fifth and sixth
sentences of the section, which begins "If the number of Registrable Securities
....", with the following text:
"If the number of Registrable Securities to be included in the
underwriting in accordance with the foregoing is less than the total
number of shares which the holders of Registrable Securities have
requested to be included, then, (A) in the case of a registration
statement whose filing was initiated by the Company, the securities to be
included in such underwriting shall be allocated (x) first to the Company
and (y) second among the holders of Registrable Securities, Class E
Registrable Shares, Class F Registrable Shares and Xxxx Xxxxx Warrant
Shares who have requested registration, on a pro rata basis based on the
number of such securities included in their respective requests for
registration and (B) in the case of a registration statement whose filing
was initiated by a selling stockholder,
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Registrable Securities and Xxxx Xxxxx Warrant Shares who have requested
registration, on a pro rata basis based on the number of shares included
in their respective requests for registration. The Company (in the case of
a registration statement whose filing was initiated by a selling
stockholder) and any other Company stockholders, other than holders of
Class E Registrable Shares, Class F Registrable Shares and Xxxx Xxxxx
Warrant Shares (in the case of a registration statement whose filing was
initiated by the Company or by a selling stockholder), shall have no right
to participate in that event without the consent of the holders of at
least a majority of the Registrable Securities participating in such
offering."
7. No Other Changes. Except as otherwise expressly provided by this
Agreement, all of the terms, conditions and provisions of the Registration
Rights Agreement remain unaltered and in full force and effect. This Amendment
along with Amendment No. 1 and the Registration Rights Agreement shall be read
and construed as one agreement.
8. Effective Time. This Agreement shall become effective at the time
of Closing (as defined in the Purchase Agreement).
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
be deemed but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto each has caused this
Amendment to be duly executed in its name and on its behalf, all as of the day
and year first above written.
COMPANY: CAPELLA EDUCATION COMPANY
By: /s/ Xxxxxxx Xxxxx
-----------------------
Name: Xxxxxxx Xxxxx
Title: Chairman and CEO
HOLDER: NCS XXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: CEO
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