EXHIBIT 4.4
AMENDMENT NO. 1
REGISTRATION RIGHTS AGREEMENT
This agreement is Amendment No. 1 (the "Amendment") to the Registration
Rights Agreement, dated as of June 16, 1998, by and among CAPELLA EDUCATION
COMPANY (formerly known as Learning Ventures International, Inc.), a Minnesota
corporation (the "Company") and NATIONAL COMPUTER SYSTEMS, INC. (the "Holder"),
and is entered into as of the 20th day of April, 2000.
RECITALS
WHEREAS, the Holder and the Company are parties to a Registration Rights
Agreement dated as of June 16, 1998; and
WHEREAS, the Company proposes to sell and issue up to 2,596,491 shares of
its Class E Convertible Preferred Stock pursuant to that certain Stock Purchase
Agreement of even date herewith (the "Purchase Agreement"); and
WHEREAS, the purchase of the Class E 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 E 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 definitions:
"Class E Registrable Shares" shall mean the shares of the Company's
capital stock that are Registrable Shares as defined in that certain
Investor Rights Agreement between the Company and the purchasers of the
Company's Class E Convertible Preferred Stock of even date herewith."
"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 on the date hereof, and
as defined in the Warrant to purchase common shares of the Company to be
issued to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated upon the closing of the
sale and purchase of the Company's Class E Convertible Preferred Stock."
2. 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 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."
3. The following text shall be added as a third paragraph of Section
1.2:
"The Company shall be entitled to (x) postpone the filing of any
registration statement otherwise required to be prepared and filed by the
Company pursuant to this Section 1.2 (and may suspend the completion of
any demand registration which has been initiated so long as the
Registration Statement has not yet been declared effective) for a
reasonable period of time, but not in excess of 60 days (a "Delay Period")
or (y) suspend the use of any effective registration statement under this
Section 1.2 for a reasonable period of time, but not in excess of 60
consecutive days (a "Suspension Period") if (i) such postponement or
suspension is required by applicable law arising from events outside of
the control of the Company or (ii) the Company determines that in its
reasonable good faith judgment the registration and distribution of the
Registrable Securities covered or to be covered by such registration
statement would interfere with any pending material financing,
acquisition, corporate reorganization or business combination, involving
the Company or any of its subsidiaries or would require premature
disclosure thereof and promptly gives the Holder written notice of such
determination (setting forth in reasonable detail the facts and
circumstances resulting in such delay where such detail would not
otherwise require such premature disclosure), and an approximation of the
period of the anticipated delay or suspension; provided, however, that (i)
the aggregate number of days included in all Delay Periods or Suspension
Periods during any consecutive 12 months shall not exceed 90 days and (ii)
the Company may not delay or suspend any registration more than one time
an any 12-month period."
4. Section 1.3 shall be amended by replacing the fourth sentence of
the section, which begins "If in the good faith judgment...", with the following
text:
"If in the good faith judgment of the managing underwriter the
registration of all, or part of, the Registrable Securities which the
holders have requested to be included would materially and adversely
affect such public offering, then the Company shall be required to include
in the underwriting only that number of Registrable Securities, if any,
which the managing underwriter believes may be sold without causing such
material adverse effect. 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 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
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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 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 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."
5. The following text shall be added to the end of Section 1.5(h):
"provided that the Company may determine to delay filing of any such
amendment or supplement, and request suspension by a selling stockholder
of offers and sales pursuant to the prospectus, under the circumstances
contemplated by the third paragraph of Section 1.2 hereof;"
6. 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
and the Registration Rights Agreement shall be read and construed as one
agreement.
7. Effective Time. This Agreement shall become effective at the time
of Closing (as defined in the Purchase Agreement).
8. 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/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: CFO
HOLDER: NATIONAL COMPUTER SYSTEMS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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