EXHIBIT 4.11
AMENDMENT NO. 3
WARRANT
TO PURCHASE
COMMON SHARES
OF
CAPELLA EDUCATION COMPANY
This agreement is Amendment No. 3 (the "Amendment") to the Warrant to
purchase Common Shares of CAPELLA EDUCATION COMPANY (formerly known as Learning
Ventures International, Inc.), a Minnesota corporation (the "Company"), issued
to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, a Maryland corporation (the "Holder"),
on June 16, 1998 (the "Warrant"). This Amendment is entered into as of the 22nd
day of January, 2003.
RECITALS
WHEREAS, the Warrant was amended by Amendment No. 1 to the Warrant to
purchase Common Shares of Capella Education Company ("Amendment No. 1")
effective April 20, 2000 and further amended by Amendment No. 2 to the Warrant
to purchase Common Shares of Capella Education Company ("Amendment No. 2")
effective 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 Warrant shall be amended as
follows:
1. Section 7, entitled "Registration Rights," shall be amended by
replacing the sixth, seventh, eighth and ninth sentences of the section, which
begin "If the number of warrant securities ...", with the following text:
"If the number of warrant securities to be included in the underwriting in
accordance with the foregoing is less than the total number of shares
which the holders of warrant 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 warrant securities, Class D Registrable Securities,
Class E Registrable Securities and Class G Registrable Securities who have
requested registration, on a pro rata basis based on the number of shares
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 warrant securities, Class D Registrable
Securities, Class E Registrable Securities and Class G Registrable
Securities who have requested registration on a pro rata basis based on
the number of shares included in their respective requests for
registration. "Class D Registrable Securities" means shares of the
Company's Class D Convertible Preferred Stock (and shares of Common Stock
acquired upon exercise thereof) that are "Registrable Securities" as
defined in that certain Registration Rights Agreement between the Company
and National Computer Systems, Inc., dated as of June 16, 1998 as amended
by Amendment No. 1 to the Registration Rights Agreement as of the date of
Amendment No. 1 to this Warrant, further amended by Amendment No. 2 to the
Registration Rights Agreement as of the date of Amendment No. 2 to this
Warrant and further amended by Amendment No. 3 to the Registration Rights
Agreement as of the date of Amendment No. 3 to this Warrant. "Class E
Registrable Securities" means the 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 on Schedule 1 thereto, dated as of the date of Amendment No.
3 to this Warrant. "Class G Registrable Securities" means the 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 on Schedule 1 thereto, dated as of the
date of Amendment No. 3 to this Warrant."
2. No Other Changes. Except as otherwise expressly provided by this
Agreement, all of the terms, conditions and provisions of the Warrant remain
unaltered and in full force and effect. This Amendment along with Amendment Xx.
0, Xxxxxxxxx Xx. 0 and the Warrant shall be read and construed as one agreement.
3. Effective Time. This Agreement shall become effective at the time
of Closing (as defined in the Purchase Agreement).
4. 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.
[The remainder of this page has been left blank intentionally.
Signature page follows.]
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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: XXXX XXXXX XXXX XXXXXX,
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx Parb
-----------------------------------
Name: Xxxxxxx X. Xxxxx Parb
Title: Senior Executive Vice President
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