EXHIBIT 4.6
AMENDMENT NO. 3
REGISTRATION RIGHTS AGREEMENT
This agreement is Amendment No. 3 (the "Amendment") to the Registration
Rights Agreement, dated as of June 16, 1998, as amended by Amendment No. 1 to
the Registration Rights Agreement ("Amendment No. 1") on April 20, 2000 and as
amended by Amendment No. 2 to the Registration Rights Agreement ("Amendment No.
2") on February 21, 2002 (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 22nd day of January, 2003.
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 further amended by Amendment No. 2 on February 21, 2002;
WHEREAS, the Company proposes to sell and issue up to 683,452.20 shares of
its Class G Convertible Preferred Stock (the "Class G Preferred Stock") pursuant
to that certain Stock Purchase Agreement dated as of January 15, 2003 (the
"Purchase Agreement");
WHEREAS, the Company intends to enter into an Exchange Agreement (the
"Exchange Agreement") pursuant to which the holders of Class F Convertible
Preferred Stock (the "Class F Investors") will agree severally to exchange each
of the outstanding shares of Class F Convertible Preferred Stock held by such
investor for shares of Class G Preferred Stock (the "Exchange");
WHEREAS, the purchase of the Class G Convertible Preferred Stock under the
Purchase Agreement and the Exchange are each conditioned upon the Holder and the
Company entering into this Amendment; and
WHEREAS, the Holder desires that shares of Class G 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 by deleting
the definition of "Class F Registrable Shares."
2. Section 1.1, entitled "Definitions," shall be amended by adding
the definition of "Class G Registrable Shares" with the following
definition:
"Class G Registrable Shares" shall mean the shares of the Company's
Class G Convertible Preferred Stock (and shares of Common Stock acquired
upon exercise thereof) that are Registrable Shares as defined in that
certain Second Amended and Restated Investor Rights Agreement between the
Company, Xxxxxx Xxxxxxx and the investors listed on Schedule 1 thereto,
dated January 22, 2003.
3. 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, further amended by Amendment No. 2 on February 21, 2002
and further amended by Amendment No. 3 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 by
Amendment No. 1 on February 21, 2002 and further amended on January 22,
2003.
4. 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 Second Amended and Restated Investor Rights Agreement between the
Company, Xxxxxx Xxxxxxx and the investors listed on Schedule 1 thereto,
dated January 22, 2003."
5. 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 G
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."
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
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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 G 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, the
securities to be included in such underwriting shall be allocated
among the holders of Registrable Securities, Class E Registrable
Shares, Class G Registrable Shares 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 G 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 Xx. 0, Xxxxxxxxx Xx. 0 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.
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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 X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
HOLDER: NCS XXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
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