EXHIBIT 4.9
AMENDMENT NO. 1
WARRANT
TO PURCHASE
COMMON SHARES
OF
CAPELLA EDUCATION COMPANY
This agreement is Amendment No. 1 (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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated, a Maryland corporation (the "Holder"),
on June 16, 1998 (the "Warrant"). This Amendment is entered into as of the 20th
day of April, 2000.
RECITALS
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 Warrant shall be amended as
follows:
1. Section 7, entitled "Registration Rights," shall be amended by
replacing the fifth 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 warrant 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 warrant securities, if any, which the
managing underwriter believes may be sold without causing such material
adverse effect. 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
and Class E 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 and
Class E 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 capital stock that are defined as "Registrable
Securities" in that certain Registration Rights Agreement between the
Company and National Computer Systems, Inc., dated as of June 16, 1998 as
amended as of the date of Amendment No. 1 to this Warrant. "Class E
Registrable Securities" means "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 dated as of the date
of Amendment No. 1 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 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.
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO
HOLDER: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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