sc13d
|
|
|
|
OMB APPROVAL |
|
|
OMB Number: |
|
|
Expires:
|
|
|
Estimated
average burden hours per response... |
|
|
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Capella Education Company
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
(CUSIP Number)
Carla S. Newell
c/o Technology Crossover Ventures
528 Ramona Street
Palo Alto, California 94301
(650) 614-8200
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
TCV V, L.P. See item 2 for identification of the General Partner 32-0103806 |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
DELAWARE
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
1,922,294 SHARES OF COMMON STOCK (A) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
1,922,294 SHARES OF COMMON STOCK (A) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
-0- SHARES OF COMMON STOCK |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,922,294 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.0% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
PN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
TCV Member Fund, L.P. See item 2 for identification of the General Partner 90-0146767 |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
DELAWARE
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
36,387 SHARES OF COMMON STOCK (A) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
36,387 SHARES OF COMMON STOCK (A) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
-0- SHARES OF COMMON STOCK |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
36,387 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
Less than 1% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
PN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
Technology Crossover Management V, L.L.C. See item 2 for identification of the Managing Members 32-0103803 |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
DELAWARE
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
-0- SHARES OF COMMON STOCK |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
OO |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
JON Q. REYNOLDS JR. |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
JAY C. HOAG |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
RICHARD H. KIMBALL |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
JOHN L. DREW |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
WILLIAM J. G. GRIFFITH IV |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS:
HENRY J. FEINBERG |
| |
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): |
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
|
|
(a) o |
|
(b) þ |
|
|
|
3 |
|
SEC USE ONLY: |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS): |
|
|
|
AF, OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION: |
|
|
|
UNITED STATES CITIZEN
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER: |
|
|
|
NUMBER OF |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER: |
BENEFICIALLY |
|
|
OWNED BY |
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER: |
REPORTING |
|
|
PERSON |
|
-0- SHARES OF COMMON STOCK |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER: |
|
|
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
|
|
|
1,958,681 SHARES OF COMMON STOCK (A) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
|
|
|
12.3% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
|
|
|
IN |
ITEM 1. SECURITY AND ISSUER.
This statement relates to shares of common stock, par value $0.10 per share (the Common Stock),
of Capella Education Company., a Minnesota corporation (Capella or the Company). The Companys
principal executive offices are located at 225 South 6th Street, 9th Floor,
Minneapolis, Minnesota 55402.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c), (f). This statement is being filed by (1) TCV V, L.P., a Delaware limited partnership
(TCV V), (2) TCV Member Fund, L.P., a Delaware limited partnership (Member Fund), (3)
Technology Crossover Management V, L.L.C., a Delaware limited liability company (Management V),
(4) Jon Q. Reynolds Jr. (Mr. Reynolds), (5) Richard H. Kimball (Mr. Kimball), (6) Jay C. Hoag
(Mr. Hoag), (7) John L. Drew (Mr. Drew), (8) William J. G. Griffith IV (Mr. Griffith), and
(9) Henry J. Feinberg (Mr. Feinberg) (Mr. Reynolds, Mr. Kimball, Mr. Hoag, Mr. Drew, Mr. Griffith
and Mr. Feinberg are collectively referred to as the Members). TCV V, Member Fund, Management V
and the Members are sometimes collectively referred to herein as the Reporting Persons. The
agreement among the Reporting Persons relating to the joint filing of this statement is attached as
Exhibit 1 hereto.
TCV V, Member Fund and Management V are each principally engaged in the business of investing in
securities of privately and publicly held companies. Management V is the sole general partner of
TCV V and a general partner of the Member Fund. The address of the principal business and office of
each of TCV V, Member Fund and Management V is 528 Ramona Street, Palo Alto, California 94301.
Each of the Members is a Class A member of Management V, the Members are each United States
citizens, and the present principal occupation of each is a venture capital investor. The business
address of each Member is 528 Ramona Street, Palo Alto, California 94301.
(d), (e). During the last five years, none of TCV V, Member Fund, Management V or the Members has
(1) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (2) been a party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to the terms of a Purchase Agreement dated December 8, 2004, by and among Forstmann Little
& Co. Equity Partnership VI, L.P. (Equity VI), Forstmann Little & Co. Equity
Partnership VII, L.P. (Equity VII), and Forstmann Little & Co. Subordinated Debt and
Equity Management Buyout Partnership-VIII, L.P. (MBO VIII), on the one hand, and TCV V and Member
Fund (collectively, the TCV Funds), on the other hand, TCV V and Member Fund purchased 1,318,932
and 24,913 shares of Series E Preferred Stock (E Shares), respectively, at a purchase price of
$20.8273 per share for an aggregate purchase price of $27,988,662.96 from Equity VI; 226,363 and
4,276 shares of Series G Preferred Stock (G Shares), respectively, at a purchase price of $20.00
per share for an aggregate purchase price of $4,612,780.00 from Equity VII; and 135,819 and 2,565 G
Shares, respectively, at a purchase price of $20.00 per share for an aggregate purchase price of
$2,767,680.00 from MBO VIII.
Pursuant to the terms of a Purchase Agreement dated February 11, 2005, by and among Stephen G.
Shank, on the one hand, and the TCV Funds, on the other hand, TCV V and Member Fund purchased
34,318 and 648 shares of Class B Preferred Stock (B Shares), respectively, at a purchase price of
$20.00 per share for an aggregate purchase price of $699,320.00. TCV V and Member Fund also
purchased 14,690 and 277 G Shares, respectively, at a purchase price of $20.00 per share for an
aggregate purchase price of $299,340.00. Pursuant to the terms of a Purchase Agreement dated
February 23, 2005, by and among Iris T. Abel, on the one hand, and TCV V and Member Fund, on the
other hand, TCV V and Member Fund purchased 6,289 and 119 shares of Common Stock, respectively, at
a purchase price of $20.00 per share for an aggregate purchase price of $128,160.00 and 34,550 and
653 B Shares, respectively, at a purchase price of $20.00 per share for an aggregate purchase price
of $704,060.00.
On November 9, 2006, TCV V and Member Fund purchased 98,070 and 1,930 shares of Common Stock,
respectively from the underwriters of the Companys IPO at $20.00 per share (IPO Shares).
Each E Share converted into 1.040384 shares of Common Stock upon the closing of the Companys
initial public offering (the IPO), such that TCV V and Member Fund received 1,372,195 and 25,919
shares of Common Stock, respectively, as a result of such conversion. Each G Share and B Share
converted into one (1) share of Common Stock upon the closing of the IPO.
The source of the funds for the acquisition of all of the shares described above by the TCV Funds
was capital contributions from their respective partners.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons acquired the securities referenced in Item 3 for investment purposes.
Depending on the factors discussed herein, the Reporting Persons may, from time to time, acquire
additional shares of Common Stock in the open market, in connection with issuances by the company
or sales by other stockholders in transactions registered under the Securities Act of 1933, as
amended, in privately negotiated transactions or otherwise and/or retain and/or sell or otherwise
dispose of all or a portion of their shares in the open market, through transactions registered
under the Securities Act, through privately negotiated transactions or through distributions to
their respective partners or otherwise. Any actions the Reporting Persons might undertake will be
dependent upon the Reporting Persons review of numerous factors, including, among other things,
the price levels of the Common Stock; general market and economic conditions; ongoing evaluation of
the
Companys business, financial condition, operating results and prospects; the relative
attractiveness of alternative business and investment opportunities; and other future developments.
Except as set forth above, the Reporting Persons have no present plans or intentions which would
result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4
of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a), (b). As of the close of business on November 15, 2006, TCV V, Member Fund, Management V and
the Members owned, directly and indirectly, an aggregate of 1,958,681 shares as follows:
|
|
|
|
|
|
|
|
|
Name of Investor |
|
Number of Total Shares |
|
Percentage of Outstanding Shares(*) |
TCV V |
|
|
1,922,294 |
|
|
|
12.0 |
% |
Member Fund |
|
|
36,387 |
|
|
Less than 1% |
Management V |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Reynolds |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Kimball |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Hoag |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Drew |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Griffith |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
Mr. Feinberg |
|
|
1,958,681 |
|
|
|
12.3 |
%(**) |
|
|
|
(*) |
|
all percentages in this table are based on the (i) 15,365,770 shares of Common Stock of
the Company outstanding on September 30, 2006 and as reported on the Companys 424(b)(1) filed with
the Securities and Exchange Commission on October 27, 2006 plus (ii) 600,000 shares purchased by
the underwriters in the over-allotment option. |
|
(**) |
|
Certain Reporting Persons disclaim beneficial ownership as set forth below. |
Each of the TCV Funds has the sole power to dispose or direct the disposition of the shares by the
TCV Funds and has the sole power to direct the voting of its respective shares held by the TCV
Funds. Management V, as a general partner of the TCV Funds, may also be deemed to have the sole
power to dispose or direct the disposition of the shares and held by the TCV Funds and have the
sole power to direct the vote of the shares held by the TCV Funds. Management V disclaims
beneficial ownership of such securities except to the extent of its pecuniary interest therein.
Each of the Members is a Class A member of Management V. Under the operating agreement of
Management V, the Members have the shared power to dispose or direct the disposition of the shares
held by TCV Funds and the shared power to direct the vote of the shares held by the TCV Funds. Each
of the Members disclaims beneficial ownership of the securities owned by TCV Funds except to the
extent of their pecuniary interest therein.
The Reporting Persons may be deemed to be acting as a group in relation to their respective
holdings in the Company but do not affirm the existence of any such group.
Except as set forth in this Item 5(a) (b), each of the Reporting Persons disclaims beneficial
ownership of any Common Stock owned beneficially or of record by any other Reporting Person.
(c) Except as set forth herein, none of the Reporting Persons has effected any transactions in the
Common Stock of the Company in the last 60 days.
(d). Not applicable.
(e). Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF
THE ISSUER.
REGISTRATION RIGHTS AGREEMENT
Pursuant to the Assignment, Assumption and Joinder Agreement dated December 31, 2004 (Joinder
Agreement), the TCV Funds became parties to the Second Amended and Restated Rights Agreement dated
January 22, 2003 (the Rights Agreement) by and between the Company on the one hand and certain
other parties on the other hand. Such registration rights include rights to request inclusion of
the shares held by the TCV Funds in subsequent offerings initiated by the Company as well as to
request of registration of their shares on Forms S-1 and S-3, in all cases subject to certain
limitations as set forth in the Rights Agreement. The Company is obligated to pay all expenses
(other than underwriting discounts and commissions) incurred in connection with such registrations.
The Company has agreed to indemnify the TCV Funds and related persons against certain liabilities
under securities laws in connection with the sale of securities under such registrations.
A copy of the Joinder Agreement and the Rights Agreement are attached hereto as Exhibit 2 and 3,
respectively and are incorporated by reference herein.
Except as set forth herein, none of the Reporting Persons has any contracts, arrangements,
understandings or relationships (legal or otherwise) with any person with respect to any securities
of Company, including but not limited to any contracts, arrangements, understandings or
relationships concerning the transfer or voting of such securities, finders fees, joint ventures,
loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses,
or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Joint Filing Agreement
Exhibit 2 Assignment, Assumption and Joinder Agreement dated December 31, 2004
Exhibit 3 Second Amended and Restated Rights Agreement dated January 22, 2003 (incorporated by
reference from Exhibit 4.7 to the Capella Education Companys Registration Statement on Form S-1
filed on April 18, 2005)
Exhibit 4 Statement Appointing Designated Filer and Authorized Signatories dated May 1, 2006.
SIGNATURE
After reasonable inquiry and to the best of each of the undersigneds knowledge and belief, each of
the undersigned certifies that the information set forth in this statement is true, complete and
correct.
|
|
|
|
|
Dated: November 22, 2006 |
|
|
|
|
|
|
|
TCV V, L.P. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
TCV MEMBER FUND, L.P. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
TECHNOLOGY CROSSOVER MANAGEMENT V, L.L.C. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JON Q. REYNOLDS JR. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JAY C. HOAG |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
RICHARD H. KIMBALL |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JOHN L. DREW |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
WILLIAM J. G. GRIFFITH IV |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
HENRY J. FEINBERG |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
EXHIBIT INDEX
Exhibit 1 Joint Filing Agreement
Exhibit 2 Assignment, Assumption and Joinder Agreement dated December 31, 2004
Exhibit 3 Second Amended and Restated Rights Agreement dated January 22, 2003 (incorporated by
reference from Exhibit 4.7 to the Capella Education Companys Registration Statement on Form S-1
filed on April 18, 2005)
Exhibit 4 Statement Appointing Designated Filer and Authorized Signatories dated May 1, 2006.
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended,
the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is
defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule
13D (including amendments thereto) with respect to the common stock, par value $0.10 per share, of
Capella Education Company, A Minnesota Corporation, and that this Agreement may be included as an
Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
IN WITNESS
WHEREOF, the undersigned hereby execute this Agreement as of the 22 day of November,
2006.
|
|
|
|
|
TCV V, L.P. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
TCV MEMBER FUND, L.P. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
TECHNOLOGY CROSSOVER MANAGEMENT V, L.L.C. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JON Q. REYNOLDS JR. |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JAY C. HOAG |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
RICHARD H. KIMBALL |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
JOHN L. DREW |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
WILLIAM J. G. GRIFFITH IV |
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
|
|
|
|
|
HENRY J. FEINBERG |
|
|
|
|
|
|
|
By:
|
|
/s/ Carla S. Newell |
|
|
|
|
|
|
|
Name: Carla S. Newell |
|
|
Its: Authorized Signatory |
|
|
Exhibit 2
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND JOINDER AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND JOINDER AGREEMENT is entered into as of December 31, 2004 (the
Agreement), by and among Forstmann Little & Co. Equity Partnership VI, L.P., a Delaware
limited partnership (Equity VI), Forstmann Little & Co. Equity Partnership VII, L.P., a
Delaware limited partnership (Equity VII), and Forstmann Little & Co. Subordinated Debt
and Equity Management Buyout Partnership-VIII, L.P., a Delaware limited partnership (MBO
VIII and, together with Equity VI and Equity VII, the Assignors), Maveron Equity
Partners 2000, L.P., a Delaware limited partnership (Maveron 2000), Maveron Equity
Partners 2000-B, L.P., a Delaware limited partnership (Maveron 2000B), MEP 2000
Associates LLC, a Delaware limited liability company (MEP and, together with Maveron 2000
and Maveron 2000B, the Maveron Entities),and TCV V, L.P., a Delaware limited partnership
(TCV V) and TCV V Member Fund, L.P., a Delaware limited partnership (TCV Member
and, together with TCV V, the TCV Entities, and together with the Maveron Entities, the
Assignees).
WHEREAS, Equity VI owns 2,456,140 shares of Class E Preferred Stock, par value $0.01 per share
(the Class E Preferred), of Capella Education Company, a Minnesota corporation (the
Company), which shares are entitled to the benefits of the Class E Convertible Preferred
Stock Stock Purchase Agreement, dated April 20, 2000, by and among the Company, Equity VI and the
other party thereto (the Class E Purchase Agreement), and Equity VII owns 421,536.84
shares of Class G Preferred Stock, par value $0.01 per share (the Class G Preferred and,
together with the Class E Preferred, the Preferred Stock) of the Company and MBO VIII
owns 252,923.36 shares of Class G Preferred of the Company, which shares are entitled to the
benefits of the Class F Convertible Preferred Stock Stock Purchase Agreement, dated January 31,
2002, by and among the Company, Equity VII, MBO VIII and the other parties thereto, as amended by
an Exchange Agreement, dated January 22, 2003, by and among the Company, Equity VII, MBO VIII and
the other parties thereto (the Class F Purchase Agreement and, together with the Class E
Purchase Agreement, the Company Purchase Agreements);
WHEREAS, in connection with the purchase of the Class E Preferred and the Class G Preferred
pursuant to the Company Purchase Agreements, each of Equity VI, Equity VII and MBO VIII have
entered into that certain Second Amended and Restated Investor Rights Agreement, dated January 22,
2003, (the Investor Rights Agreement), and that certain Third Amended and Restated
Co-Sale and Board Representation Agreement, dated January 22, 2003 (the Co-Sale Agreement
and collectively with the Company Purchase Agreements and the Investor Rights Agreement, the
Transaction Documents);
WHEREAS, the Assignors have agreed to sell to the Assignees and the Assignees have agreed to
purchase from the Assignors 1,614,781 shares of Class E Preferred of the Company and 443,423 shares
of Class G Preferred of the Company (the Transferred Securities), effective as of the
date hereof (the Effective Date) on the
terms set forth in the Purchase Agreement dated December 8, 2004 by and among the Assignors
and Assignees (the Purchase Agreement); and
WHEREAS, the Assignors desire to assign certain rights and delegate certain obligations to the
Assignees under the Transaction Documents relating to the Transferred Securities being purchased by
the Assignees on the Effective Date and the Assignees desire to become parties to the Transaction
Documents with respect to the Transferred Securities being purchased by the Assignees on the
Effective Date and to accept such assignment of rights and assume such obligations of the Assignors
thereunder with respect to the Transferred Securities being purchased by such Assignee on the
Effective Date, as of the Effective Date and upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. The Assignors hereby assign such rights and delegate such obligations to each Assignee
under the Investor Rights Agreement with respect to the Transferred Securities being purchased by
such Assignee on the Effective Date as are granted to a Stockholder and, with respect to TCV V, a
transferee of a Pre-Emptive Purchaser (as such terms are defined in the Investor Rights
Agreement) pursuant to the terms of the Investor Rights Agreement and to the extent that such
rights can be assigned and obligations delegated pursuant to the terms of the Investor Rights
Agreement, and each Assignee hereby accepts such assignment of rights and assumes such obligations
of the Assignors under the Investor Rights Agreement with respect to the Transferred Securities
being purchased by such Assignee on the Effective Date, and agrees to execute counterparts of the
Transaction Documents, if requested by the Company, in such form as the Company may reasonably
require; provided, however, that (i) this paragraph shall not (x) operate as an
assignment of any right of any Assignor held by such Assignor as a result of its status as
Equity-VI, Equity-VII or MBO-VIII or a Forstmann Little Entity (as each such term is
defined in the Transaction Documents) or (y) affect the rights under the Investor Rights Agreement
of any Assignor in respect of any Shares (as such term is defined in the Investor Rights Agreement)
that such Assignor continues to own after the Effective Date other than by virtue of such
Assignors decreased ownership of Shares such that such Assignor may fail to satisfy any minimum
holding requirements under the Investor Rights Agreement (including without limitation, Sections
2.6 and 3.1(ii) thereof) and (ii) the Assignees acknowledge that, pursuant to Section 2.6 of the
Investor Rights Agreement, the rights set forth in Section 2 of the Investor Rights Agreement may
not be transferred or assigned by a Pre-Emptive Purchaser (as such term is defined in the Investor
Rights Agreement) to a transferee of less than 50% of the Conversion Shares (as such term is
defined in the Investor Rights Agreement) or the Shares (as such term is defined in the Investor
Rights Agreement) or any combination thereof held by such Pre-Emptive Purchaser.
2. The Assignors hereby assign such rights and delegate such obligations to each Assignee
under the Co-Sale Agreement with respect to the Transferred Securities being
2
purchased by such Assignee on the Effective Date as are granted to a Shareholder,
Benefiting Shareholder and Co-Sale Shareholder (as each such term is defined in the Co-Sale
Agreement) pursuant to the terms of the Co-Sale Agreement and to the extent that such rights can be
assigned and obligations delegated pursuant to the terms of the Co-Sale Agreement, and each
Assignee hereby accepts such assignment of rights and assumes such obligations of the Assignors
under the Co-Sale Agreement with respect to the Transferred Securities being purchased by such
Assignee on the Effective Date, and agrees to execute counterparts of the Co-Sale Agreement, if
requested by the Company, in such form as the Company may reasonably require; provided,
however, that this paragraph shall not (i) operate as an assignment of any right of any
Assignor held by such Assignor as a result of its status as Equity-VI, Equity-VII or MBO-VIII
or a Forstmann Little Entity (as each such term is defined in the Transaction Documents) or (ii)
affect the rights under the Co-Sale Agreement of any Assignor as a Shareholder, Co-Sale
Shareholder or Benefiting Shareholder (as each such term is defined in the Co-Sale Agreement) in
respect of any shares of Capital Stock (as such term is defined in the Co-Sale Agreement) that such
Assignor continues to own after the Effective Date.
3. Equity VI hereby agrees to share its rights and delegate its corresponding obligations to
each Assignee under Section 7.5 of the Class E Purchase Agreement with respect to the Transferred
Securities being purchased by such Assignee on the Effective Date to the extent that such rights
can be so shared and obligations delegated pursuant to the terms of the Class E Purchase Agreement,
and each Assignee hereby accepts such assignment of rights and assumes such obligations of Equity
VI under Section 7.5 of the Class E Purchase Agreement with respect to the Transferred Securities
being purchased by such Assignee on the Effective Date, and agrees to execute counterparts of the
Class E Purchase Agreement, if requested by the Company, in such form as the Company may reasonably
require; provided, however, that this paragraph shall not (i) operate as an
assignment of any right of Equity VI held by it as a result of its status as Equity-VI (as such
term is defined in the Transaction Documents) or (ii) affect the rights under Section 7.5 of the
Class E Purchase Agreement of Equity VI for so long as Equity VI owns at least the number of shares
of Class E Preferred set forth in the preamble of such section.
4. Equity VII and MBO VIII hereby agree to share their rights and delegate their corresponding
obligations to each Assignee under Section 7.5 of the Class F Purchase Agreement with respect to
the Transferred Securities being purchased by such Assignee on the Effective Date to the extent
that such rights can be so shared and obligations delegated pursuant to the terms of the Class F
Purchase Agreement, and each Assignee hereby accepts such assignment of rights and assumes such
obligations of Equity VII and MBO VIII under Section 7.5 of the Class F Purchase Agreement with
respect to the Transferred Securities being purchased by such Assignee on the Effective Date, and
agrees to execute counterparts of the Class F Purchase Agreement, if requested by the Company, in
such form as the Company may reasonably require; provided, however, that (i) this
paragraph shall not operate as an assignment of any right of either Equity VII or MBO VIII held by
Equity VII or MBO VIII as a result of its status as Equity-VII or MBO-VIII or a Forstmann
Little Entity (as each such term is defined in the Transaction Documents) or (ii) affect the
rights under Section 7.5 of the Class F Purchase
3
Agreement of Equity VII or MBO VIII for so long as Equity VII or MBO VIII own at least the
number of shares of Class G Preferred set forth in the preamble of such section.
5. This Agreement shall be construed and enforced in accordance with the laws of the State of
New York, without giving effect to the principles of conflict of laws thereof.
6. This Agreement may be executed in multiple counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
[Signature Page to Follow]
4
EXECUTION COPY
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date
first written above.
|
|
|
|
|
|
|
|
|
TRANSFEREES: |
|
|
|
|
|
|
|
|
|
MAVERON EQUITY PARTNERS 2000, L.P. |
|
|
|
|
|
|
|
|
|
By: MAVERON GENERAL PARTNER 2000 LLC |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAVERON EQUITY PARTNERS 2000-B, L.P. |
|
|
|
|
|
|
|
|
|
By: MAVERON GENERAL PARTNER 2000 LLC |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MEP 2000 ASSOCIATES LLC |
|
|
|
|
|
|
|
|
|
By: MAVERON LLC |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TCV V, L.P. |
|
|
a Delaware Limited Partnership |
|
|
|
|
|
|
|
|
|
By:
|
|
Technology Crossover Management V, L.L.C., |
|
|
|
|
Its:
|
|
General Partner |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
Attorney in Fact |
|
|
|
|
|
|
|
|
|
|
|
c/o Technology Crossover Ventures |
|
|
528 Ramona Street |
|
|
Palo Alto, California 94301 |
|
|
Attention: Carla Newell |
|
|
|
|
|
|
|
|
|
TCV V MEMBER FUND, L.P. |
|
|
a Delaware Limited Partnership |
|
|
|
|
|
|
|
|
|
By:
|
|
Technology Crossover Management V, L.L.C., |
|
|
|
|
Its:
|
|
General Partner |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
Attorney in Fact |
|
|
|
|
|
|
|
|
|
|
|
c/o Technology Crossover Ventures |
|
|
528 Ramona Street |
|
|
Palo Alto, California 94301 |
|
|
Attention: Carla Newell |
6
|
|
|
|
|
|
|
|
|
TRANSFERORS: |
|
|
|
|
|
|
|
|
|
FORSTMANN LITTLE & CO. |
|
|
EQUITY PARTNERSHIP-VI, L.P. |
|
|
|
|
|
|
|
|
|
By:
|
|
FLC XXXII PARTNERSHIP, L.P., |
|
|
|
|
|
|
its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FORSTMANN LITTLE & CO. |
|
|
EQUITY PARTNERSHIP-VII, L.P. |
|
|
|
|
|
|
|
|
|
By:
|
|
FLC XXXII PARTNERSHIP, L.P., |
|
|
|
|
|
|
its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FORSTMANN LITTLE & CO. |
|
|
SUBORDINATED DEBT AND EQUITY |
|
|
MANAGEMENT BUYOUT |
|
|
PARTNERSHIP-VIII, L.P. |
|
|
|
|
|
|
|
|
|
By:
|
|
FLC XXXIII PARTNERSHIP, L.P., |
|
|
|
|
|
|
its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
7
Exhibit 4
STATEMENT APPOINTING DESIGNATED FILER AND AUTHORIZED SIGNATORIES,
MAY 1, 2006
Each of the entities listed on Schedule A attached hereto (each a Reporting Entity) and each
party listed on Schedule B attached hereto (each a Reporting Equity Holder; together with the
Reporting Entities, the Reporting Persons) hereby authorizes and designates Robert C. Bensky and
Carla S. Newell (the Designated Filer), for so long as each is employed by TCMI, Inc. or its
affiliates, to prepare and file on behalf of such Reporting Person individually, or jointly
together with other Reporting Persons, any and all reports, notices, communications and other
documents (including, but not limited to, reports on Schedule 13D, Schedule 13G, Form 3, Form 4 and
Form 5) that such Reporting Person may be required to file with the United States Securities and
Exchange Commission or with any regulatory body, including United States federal, state and
self-regulatory bodies, with respect to the Reporting Persons ownership of, or transactions in,
the securities of any entity whose securities are beneficially owned (directly or indirectly) by
such Reporting Person (collectively, the Companies).
Each Reporting Person hereby further authorizes and designates Robert C. Bensky and Carla S.
Newell (each, an Authorized Signatory) to execute and file on behalf of such Reporting Person the
Reports and to perform any and all other acts, which in the opinion of the Designated Filer or an
Authorized Signatory may be necessary or incidental to the performance of the foregoing powers
herein granted.
The authority of the Designated Filer and each Authorized Signatory under this Document with
respect to each Reporting Person shall continue until such Reporting Person is no longer required
to file any Reports with respect to the Reporting Persons ownership of, or transactions in, the
securities of the Companies, unless earlier revoked in writing. Each Reporting Person acknowledges
that the Designated Filer and the Authorized Signatory are not assuming any of the Reporting
Persons responsibilities to comply with any United States federal or state law or with any
regulations promulgated thereto.
EXHIBIT A
TCV V, L.P.
Technology Crossover Management V, L.L.C.
TCV Member Fund, L.P.
TCV VI, L.P.
Technology Crossover Management VI, L.L.C.
EXHIBIT B
Jay C. Hoag
Richard H. Kimball
John Drew
Jon Q. Reynolds
William J.G. Griffith IV
Robert W. Trudeau
Henry J. Feinberg
Gregory S. Stanger
IN WITNESS WHEREOF, the undersigned has caused this Statement Appointing Designated
Filer and Authorized Signatories to be effective as of May 1, 2006.
|
|
|
|
|
|
|
REPORTING PERSONS: |
|
|
|
|
|
|
|
|
|
|
|
|
|
May 1, 2006 |
|
TCV V, L.P., |
|
|
a Delaware Limited Partnership |
|
|
|
|
|
|
|
|
|
By:
|
|
Technology Crossover Management V, L.L.C., |
|
|
|
|
|
|
a Delaware Limited Liability Company, |
|
|
|
|
|
|
Its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jay C. Hoag |
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay C. Hoag, Member |
|
|
|
|
|
|
|
|
|
May 1, 2006 |
|
Technology Crossover Management V, L.L.C., |
|
|
a Delaware Limited Liability Company, |
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jay C. Hoag |
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay C. Hoag, Member |
|
|
|
|
|
|
|
|
|
May 1, 2006 |
|
TCV Member Fund, L.P., |
|
|
a Delaware Limited Partnership |
|
|
|
|
|
|
|
|
|
By:
|
|
Technology Crossover Management V, L.L.C., |
|
|
|
|
|
|
a Delaware Limited Liability Company, |
|
|
|
|
|
|
Its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jay C. Hoag |
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay C. Hoag, Member |
|
|
|
|
|
|
|
|
|
May 1, 2006 |
|
TCV VI, L.P., |
|
|
a Delaware Limited Partnership |
|
|
|
|
|
|
|
|
|
By:
|
|
Technology Crossover Management VI, L.L.C., |
|
|
|
|
|
|
a Delaware Limited Liability Company, |
|
|
|
|
|
|
Its General Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jay C. Hoag |
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay C. Hoag, Member |
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Jay C. Hoag
|
|
|
Jay C. Hoag |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Richard H. Kimball
|
|
|
Richard H. Kimball |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Jon Q. Reynolds
|
|
|
Jon Q. Reynolds |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ John L. Drew
|
|
|
John L. Drew |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ William J.G. Griffith
|
|
|
William J.G. Griffith |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Robert W. Trudeau
|
|
|
Robert W. Trudeau |
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Gregory S. Stanger
|
|
|
Gregory S. Stanger |
|
|
|
|
|
May 1, 2006
|
|
|
|
|
|
|
|
|
/s/ Henry J. Feinberg
|
|
|
Henry J. Feinberg |
|
|
|
|
|