EXHIBIT 4.10
AMENDMENT NO. 2
WARRANT
TO PURCHASE
COMMON SHARES
OF
CAPELLA EDUCATION COMPANY
This agreement is Amendment No. 2 (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 21st
day of February, 2002.
RECITALS
WHEREAS, the Warrant was amended by Amendment No. 1 to the Warrant to
purchase Common Shares of Capella Education Company (the "Amendment No. 1")
effective April 20, 2000.
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 Warrant shall be amended as
follows:
1. Section 7, entitled "Registration Rights," shall be amended by
replacing the sixth, seventh and eighth 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 F 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 F 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 and
further amended by Amendment No. 2 to the Registration Rights Agreement as
of the date of Amendment No. 2 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 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 dated as of the date of Amendment No. 2 to
this Warrant. "Class F Registrable Securities" means the 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 dated as of the date of Amendment No. 2 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 No.
1 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.
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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 Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Chairman and CEO
HOLDER: XXXX XXXXX XXXX XXXXXX,
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
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