EXHIBIT 4.4
AMENDMENT NO. 2
dated July 1, 1997
to
SERIES C CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
dated October 12, 1990
among
BRIGHT HORIZONS CHILDREN'S CENTERS, INC.,
a Delaware corporation (the "Company"),
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ WOODEN (the "Founders"),
▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Officers"),
and
the investing entities whose names appear at the end hereof
(the "Investors")
INTRODUCTION
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This Amendment No. 2 is to the Series C Convertible Preferred Stock
Purchase Agreement dated October 12, 1990, as amended in Amendment No. 1 dated
November 27, 1990 (the "Series C Purchase Agreement"), by and among Bright
Horizons Children's Centers, Inc., a Delaware corporation (the "Company"), ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Wooden (the "Founders"), ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Officers") and the investing entities whose names
appear at the end thereof (the "Investors").
WHEREAS, the parties hereto wish to amend the Series C Purchase Agreement
pursuant to Section 11.02 thereof in connection with the Master Transaction
dated the date hereof by and among the Company, Bright Horizons Holdings, Inc.,
a Delaware corporation, Bright Horizons Merger Subsidiary, Inc., a Delaware
corporation and a wholly owned
subsidiary of Holdings, Pacific Preschools, Inc. dba The Learning Garden, a
Washington corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, the owners of
all of the outstanding capital stock of Pacific Preschools, Inc.
NOW, THEREFORE, the parties hereto agree as follows:
1. Transfer Restrictions and Registrations. Section 8.04 of Article VIII
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of the Series C Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
Section 8.04. Piggy-Back Registration Rights. If the Company at any time
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proposes to register, under the 1933 Act, or qualify any of its Common Stock or
securities convertible into Common Stock, other than registrations solely for
the purpose of any plan for the acquisition of such shares by employees of the
Company or registrations relating to a merger, acquisition or other transactions
of the type described in Rule 145 or any comparable rule on Form S-4 or any
similar form (collectively "Excluded Registrations"), it will each such time
give written notice to the Officers and Founders and to all registered holders
of Stock of its intention to do so. Any holder of Stock desiring to have any of
its Stock and any Officer or Founder desiring to have any of its Common Stock
included in such registration or qualification shall, within thirty (30) days
after its receipt of such notice from the Company, notify the Company of the
number of shares of Stock or Common Stock, as the case may be, which it desires
to have so included and the manner in which it proposes to dispose of such
securities. The Company will, at its sole expense, use its best efforts to
cause all such Stock or Common Stock, as the case may be, the holders of which
shall have requested the registration or qualification thereof, to be registered
or qualified to the extent requisite to permit the sale or other disposition
thereof in the manner described by such holder; provided, however, that if in
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connection with any offering by the Company of Common Stock or securities
convertible into Common Stock pursuant to a registration under the 1933 Act
(which is not an Excluded Registration), the managing underwriter shall limit or
eliminate the number of previously-issued shares of the Company's securities
which may be included in any such registration statement because, in its
judgment, such action is necessary to effect an orderly public distribution, and
either (i) such limitation is imposed first with respect only to the Common
Stock of the Officers and Founders and, in the event that the elimination of the
Common Stock of the Officers and Founders from such registration statement is
insufficient, in the judgment of the managing underwriter, to effect an orderly
public distribution, thereafter on all other holders of securities which have an
incidental or "piggy-back" right to be included in the registration statement
pro rata in accordance with their respective holdings of such securities, and no
outstanding securities are included other than pursuant to such a right, or (ii)
such limitation is imposed pursuant to any plan adopted by written consent of
the holders of not less than sixty six and two thirds percent (66 2/3%) of the
aggregate outstanding shares of Stock (as defined herein), then the Company
shall be obligated to include in such registration statement only such limited
portion of the Stock which it has been requested hereunder to include.
In the event that the Company in any registration under this Section 8.04
offers the Investors, Officers and Founders the opportunity to sell such of the
shares of Stock or Common Stock, in the case of the Officers and Founders, which
such Investors, Officers and Founders propose to register to underwriters on a
"firm commitment" basis (as opposed to a
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"best efforts" basis), the Investors, Officers and Founders shall, as a
condition to their participating in such registration, accept such offer to sell
such securities to such underwriters if the manager of the underwriters so
requires and shall enter into an agreement with such underwriter containing
conventional representations, warranties and indemnity provisions. In addition,
as a further condition to their participating in such registration, if requested
by the Company and the managing underwriter, each Investor, Officer and Founder
shall agree not to effect any public sale or distribution of any Stock or Common
Stock, nor engage in any transaction that would result in a public sale or
distribution of such Stock or Common Stock, for one hundred eighty (180) days
following the effective date of such registration statement. The Investors,
Officers and Founders shall comply with such other reasonable requirements as
may be imposed by the manager of the underwriters to effect an orderly
distribution of shares.
Should any Investor, Officer or Founder decide not to have any shares of
such Stock or Common Stock, as the case may be, of the Company then held by it
included in such registration under this Section 8.04 or if some or all of such
shares are excluded from registration as provided herein, such Investor, Officer
or Founder agrees, upon the request of the manager of the underwriters, not to
sell any of such Stock or Common Stock, in the case of the Officers or Founders,
within a period of one hundred eighty (180) days following the effective date of
the related registration statement.
The Company's obligations pursuant to this Section 8.04 to include shares
of Stock in registrations under the 1933 Act shall terminate after five such
registrations in each of which the Investors have been permitted to include at
least fifty percent (50%) of the shares of Stock which the Investors have
requested be included; provided, however, and notwithstanding the foregoing, the
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obligations of the Company pursuant to this Section 8.04 towards any Investor,
Series A Investor, Series B Investor or Officer or Founder shall terminate with
respect to Stock or Common Stock owned by such holders, as the case may be, (i)
if, in the opinion of counsel satisfactory to the Company, the sale of such
Stock or Common Stock (when aggregated with all other Stock or Common Stock held
by any other person whose sale thereof would be required to be aggregated under
Rule 144(e) with sales by such holder of Stock or such Officer or Founder) may
then be made in a transaction exempt from the registration requirements of the
1933 Act without any limitation on the amount of such Stock or Common Stock to
be sold, (ii) when such Stock or Common Stock becomes freely tradeable pursuant
to Rule 144(k) under the 1933 Act, (iii) upon the sale of such Stock or Common
Stock to the public pursuant to Rule 144 under the 1933 Act or (iv) after the
expiration of five (5) years following the initial public offering by the
Company of its Common Stock pursuant to a registration statement under the 1933
Act (which is not an Excluded Registration).
2. First Refusal Rights. Section 9.01 of Article IX of the Series C
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Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
Section 9.01. First Refusal Rights. If at any time prior to the first
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registration of the Common Stock under the 1933 Act, the Company proposes to
issue (except in a transaction described in Section 9.03), any Common Stock or
any security convertible into or having rights to purchase Common Stock, the
Company shall first offer in writing to sell to each Investor (such term to
include, for purposes of this Article IX, the Series A Investors and the
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Series B Investors), who in the aggregate owns at least 100,000 shares of Common
Stock or Stock convertible into or exchangeable or exercisable for such number
of shares of Common Stock (subject to adjustment for stock splits or
combinations), a fraction thereof of which the numerator shall be the number of
shares of Stock then held by such Investor and the denominator shall be the
total number of shares of Common Stock then outstanding, assuming in each case
full conversion of all outstanding Preferred Stock and the exercise of all
outstanding Warrants. Such offer shall describe such securities and specify the
quantity, the price and the payment terms. If within thirty (30) days after
receipt of such offer the Investor receiving such written offer accepts the same
in writing as to the portion referred to above or any lesser amount, then the
Company shall sell such portion of such securities, or such lesser amount as
such Investor may specify, to such Investor upon the terms specified. Unless
waived by the holders of not less than seventy-five percent (75%) of the total
number of shares of Stock then outstanding, each Investor shall have a right of
overallotment such that any shares of Common Stock or securities convertible
into Common Stock not purchased by any holder of preemptive rights shall be
reoffered to others having such rights and desiring to purchase additional
shares of Common Stock or securities convertible into Common Stock.
3. Excluded Transactions. Section 9.03(a) of Article IX of the Series C
---------------------
Purchase Agreement is hereby amended and restated as follows:
(a) any issuance to an employee, director, or consultant of Common Stock or
rights to purchase Common Stock up to an aggregate of 2,000,000 shares of Common
Stock for his own investment and as part of a bona fide compensation plan or
arrangement, or in connection with the inducement of employees to become or
remain employed by the Company pursuant to the approval of the Board of
Directors of the Company or a compensation committee appointed by such Board;
4. Excluded Transactions. Section 9.03 of Article IX of the Series C
---------------------
Purchase Agreement is hereby amended by adding to the end thereof:
(e) any issuance of Common Stock in connection with the acquisition of an
entity in a line of business substantially similar or related to that of the
Company if the Board of Directors of the Company determines that the price to be
paid for each such share of its Common Stock to be issued is not materially more
favorable than would be the case if such Common Stock were to be issued to an
independent financial investor.
5. The parties hereby acknowledge and agree that Pacific Preshools, Inc.
(the "New Investor") shall become a party to the Series C Purchase Agreement
solely for the purpose of being considered an Investor (as that term is defined
therein) under Article VIII thereunder to the same extent as if the New Investor
had been an original signatory to the Series C Purchase Agreement for purposes
of said Article VIII. The shares of Common Stock delivered to Pacific
Preshools, Inc. pursuant to the Master Transaction Agreement shall be considered
Stock for purposes of Article VIII of the Series C Purchase Agreement
6. The parties hereby acknowledge and consent to the Company's transfer of
this Agreement to and the assumption of all the obligations hereunder by Bright
Horizons
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Holdings, Inc. The name "Bright Horizons Holdings, Inc." shall be substituted
for "Bright Horizons Children's Centers, Inc." throughout the Series C Purchase
Agreement, and Bright Horizons Holdings, Inc. shall have all rights and assume
all obligations and liabilities under said Series C Purchase Agreement as if
Bright Horizons Holdings, Inc. were an original signatory thereto.
7. Governing Law. This Amendment shall be governed by, and construed and
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enforced in accordance with, the laws of The Commonwealth of Massachusetts.
8. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. Counterparts. This Amendment may be executed in two or more
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counterparts, all of which taken together shall constitute one and the same
instrument, and any one of the parties hereto may execute this Amendment by
signing any counterpart.
IN WITNESS WHEREOF, the parties have caused this Amendment, which shall be
effective upon execution by (i) the Company, (ii) the holders of not less than
seventy-five percent (75%) of the aggregate outstanding shares of Stock (as
defined in the Series C Purchase Agreement) (iii) Bright Horizons Holdings, Inc.
and (iii) Pacific Preshools, Inc., for the sole reason of becoming a signatory
to such Series C Purchase Agreement for purposes of Article VIII thereof.
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COMPANY:
BRIGHT HORIZONS CHILDREN'S
CENTERS, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
(Title)
FOUNDERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ Wooden
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▇▇▇▇▇▇▇ Wooden
OFFICERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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INVESTORS:
▇▇▇▇ CAPITAL FUND LIMITED PARTNERSHIP
By ▇▇▇▇ Capital Partners, General
Partner
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
General Partner
▇▇▇▇ CAPITAL FUND LIMITED
PARTNERSHIP - II
By ▇▇▇▇ Capital Partners, General
Partner
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
General Partner
BESSEMER VENTURE PARTNERS II L.P.
By Deer II & Co., General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Partner
BOSTON CAPITAL VENTURES
LIMITED PARTNERSHIP
By: Boston Capital Partners,
General Partner
By /s/ A. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
___________________________________
A. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.,
General Partner
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BOSTON CAPITAL VENTURES II
LIMITED PARTNERSHIP
By: Boston Capital Partners II,
General Partner
By /s/ A. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
___________________________________
A. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., General Partner
BRIGHT HORIZONS ASSOCIATES
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇, General Partner
BRIMSTONE ISLAND COMPANY L.P.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
(Title)
▇▇▇▇▇▇▇▇ CHILDREN'S TRUST
DATED JUNE 1, 1987
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
(Title)
FAMILY VENTURES III
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, General Partner
FAMILY VENTURES IV
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, General Partner
NORWEST EQUITY PARTNERS IV,
A Minnesota Limited Partnership
By Itasca Partners, General Partner
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇▇▇▇ REVOCABLE TRUST OF
JULY 1, 1983
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Co-Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ VENTURE PARTNERS III
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ III
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▇▇▇▇ ▇▇▇▇▇▇▇▇ III
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ Neill ▇. ▇▇▇▇▇▇▇▇▇▇
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Neill ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ F. O. Gabrieli
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▇▇▇▇▇▇▇▇▇▇▇ F. O. Gabrieli
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
/s/ W. ▇▇▇▇ ▇▇▇▇▇▇
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W. ▇▇▇▇ ▇▇▇▇▇▇
/s/ R. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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R. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BRIGHT HORIZONS HOLDINGS, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
PACIFIC PRESHOOLS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
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