Bain Capital Fund X, L.P.
Exhibit
(b)(4)
Execution Version
Xxxx Capital Fund X, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx, XX 00000
January 14, 2008
Swingset Holdings Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
This letter agreement sets forth the commitment of Xxxx Capital Fund X, L.P. (“Bain”
or the “Fund”), subject to the terms and conditions contained herein, to purchase certain
equity interests of Swingset Holdings Corp., a newly formed Delaware corporation (the
“Parent”). It is contemplated that, pursuant to an Agreement and Plan of Merger (the
“Merger Agreement”) to be entered into among Parent, Bright Horizons Family Solutions, Inc.
(the “Company”) and Swingset Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (the “Merger Sub”), pursuant to which Merger Sub will be merged with
and into the Company (the “Merger”). Each capitalized term used and not defined herein
shall have the meaning ascribed thereto in the Merger Agreement.
1. Commitment. The Fund hereby commits, subject to the terms and conditions set forth
herein, that, on or prior to the funding obligations of the Parent pursuant to Section 2.02 of the
Merger Agreement, the Fund shall purchase, or shall cause the purchase of, equity interests of the
Parent for consideration of the aggregate sum of US$640 million to fund a portion of the aggregate
Merger Consideration to be paid pursuant to the Merger Agreement and to pay all related fees and
expenses pursuant to and in accordance with the Merger Agreement (the “Commitment”). The
Fund may effect the purchase of the equity interests of the Parent directly or indirectly through
one or more affiliated entities; provided that it does not affect the Fund’s Commitment obligations
hereunder. The amount of the Commitment shall be disregarded for purposes of determining whether or
not a Company Material Adverse Effect exists, including without limitation for purposes of
determining whether any reduction in the Company’s EBITDA constitutes or does not constitute a
Company Material Adverse Effect.
2. Conditions. The Commitment shall be subject to the execution and delivery of the
Merger Agreement by the Company and the satisfaction or waiver of each of the conditions to the
Parent’s and Merger Sub’s obligations to consummate the transactions contemplated by the Merger
Agreement set forth in Sections 7.01 and 7.02 of the Merger Agreement and the contemporaneous
funding of the debt financing on the terms and conditions described in the Commitment Letter.
3. Limited Guarantee. Concurrently with the execution and delivery of this letter
agreement, the Fund is executing and delivering to the Company a limited guarantee related to the
Parent’s and Merger Sub’s obligations under the Merger Agreement (the “Limited Guarantee”).
The Company’s remedies against the Fund under the Limited Guarantee shall be, and are intended to
be, the sole and exclusive direct or indirect remedies available to the Company and its affiliates
against the Fund or any former, current or future equity holder, controlling person, director,
officer, employee, agent, affiliate, member, manager, general or limited partner, or assignee of
the Fund or any former, current or future equity holder, controlling person, director, officer,
employee, agent, affiliate, member, manager, general or limited partner, or assignee of any of the
foregoing (other than the Parent or Merger Sub), in respect of any liabilities or obligations
arising under, or in connection with, the Merger Agreement or the transactions contemplated
thereby, including in the event the Parent or Merger Sub breaches its obligations under the Merger
Agreement, whether or not such breach is caused by the Fund’s breach of its obligations under this
letter agreement.
4. Parties in Interest; Third Party Beneficiaries. This letter agreement shall inure
to the benefit of and be binding upon the Parent and the Fund. Nothing in this letter agreement,
express or implied, is intended to confer upon any person other than the Parent and the Fund any
rights or remedies under, or by reason of, this letter agreement or to confer upon any person any
rights or remedies against any person other than the Parent and the Fund under or by reason of this
letter agreement.
5. Enforceability. This letter agreement may only be enforced by the Parent and the
Fund. The Parent’s creditors shall have no right to enforce this letter agreement or to cause the
Parent to enforce this letter agreement. This letter agreement may not be specifically enforced.
6. No Modification; Entire Agreement. This agreement may not be amended or otherwise
modified without the prior written consent of the Parent and the Fund. This letter agreement
constitutes the sole agreement, and supersedes all prior agreements, understandings and statements,
written or oral, between the Fund or any of its affiliates, on the one hand, and the Parent or any
of its affiliates, on the other, with respect to the transactions contemplated hereby.
7. Governing Law; Jurisdiction; Venue. This letter agreement, the rights of the
parties and all actions arising in whole or part under or in connection herewith will be governed
by and construed in accordance with the laws of the State of New York.
Each party to this letter agreement, by its execution hereof, (i) hereby irrevocably submits
to the exclusive jurisdiction of the state courts of the State of New York or the United States
District Court located in the Southern District of the State of New York for the purpose of any
action between the parties arising in whole or in part under or in connection with this letter
agreement, (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to
assert, by way of motion, as a defense or otherwise, in any such action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that any such action brought in one of the above-named
-2-
courts should be dismissed on grounds of forum non conveniens, should be transferred or removed to
any court other than one of the above-named courts, or should be stayed by reason of the pendency
of some other proceeding in any other court other than one of the above-named courts, or that this
letter agreement or the subject matter hereof may not be enforced in or by such court and (iii)
hereby agrees not to commence any such action other than before one of the above-named courts.
Notwithstanding the previous sentence, a party may commence any action in a court other than the
above-named courts solely for the purpose of enforcing an order or judgment issued by one of the
above-named courts.
Each party agrees that for any action between the parties arising in whole or in part under or
in connection with this letter agreement, such party will bring actions only in the Borough of
Manhattan. Each party further waives any claim and will not assert that venue should properly lie
in any other location within the selected jurisdiction.
Each party hereto agrees that notice or the service of process in any action, suit or
proceeding arising out of or relating to this letter agreement shall be properly served or
delivered if delivered in the manner contemplated by Section 7 of the Limited Guarantee.
8. Confidentiality. This letter agreement shall be treated as confidential and is
being provided to the Parent solely in connection with the Merger. This letter agreement may not be
used, circulated, quoted or otherwise referred to in any document, except with the written consent
of the Fund and the Parent. The foregoing notwithstanding, this letter shall be provided to the
Company and the Company and the undersigned may disclose the existence of this letter to (i) its
affiliates and representatives and (ii) to the extent required by law, the applicable rules of any
national securities exchange or in connection with any securities regulatory agency filings
relating to the Merger.
9. Termination. The obligation of the Fund to fund the Commitment will terminate
automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger
Agreement in accordance with its terms, (b) the Company or any of its affiliates accepting payment
from the Fund under the Limited Guarantee or (c) the Company or any of its affiliates asserting a
claim against the Fund or any Non-Recourse Party (as defined below) in connection with the Merger
Agreement other than a claim against the Fund under the Limited Guarantee.
10. No Assignment. The commitment evidenced by this letter shall not be assignable by
the Parent without the Fund’s prior written consent, and the granting of such consent in a given
instance shall be solely in the discretion of the Fund and, if granted, shall not constitute a
waiver of this requirement as to any subsequent assignment. Except as expressly permitted in
Section 1 hereof, no transfer of any rights or obligations hereunder by the Fund shall be permitted
without the consent of the Parent. Any purported assignment of this commitment in contravention of
this Section 10 shall be void.
11. No Recourse. Notwithstanding anything that may be expressed or implied in this
letter agreement or any document or instrument delivered in connection herewith, and
-3-
notwithstanding the fact that the Fund may be a partnership, by its acceptance of the benefits
of this letter agreement, the Parent acknowledges and agrees that no Person other than the Fund and
the Parent has any obligations hereunder and that no recourse shall be had hereunder or under any
document or instrument delivered in connection herewith, or for any claim based on, in respect of,
or by reason of, such obligations on their creation, against, and no personal liability shall
attach to, the former, current and future equity holders, controlling persons, directors, officers,
employees, agents, affiliates, members, managers, general or limited partners, or assignees of the
Fund or the Parent or any former, current or future equity holder, controlling person, director,
officer, employee, agent, affiliate, member, manager, general or limited partner, or assignee of
any of the foregoing (collectively, but not including the Fund, Merger Sub or the Parent, each a
“Non-Recourse Party”) through the Parent or otherwise, whether by or through attempted
piercing of the corporate veil, by or through a claim by or on behalf of the Parent against any
Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding,
by virtue of any statute, regulation or applicable law, or otherwise. Recourse against the Fund
pursuant to this letter agreement shall be the sole and exclusive remedy of the Parent and all of
its affiliates against the Fund and the Non-Recourse Parties in respect of any liabilities or
obligations arising under, or in connection with, the Merger Agreement or the transactions
contemplated thereby.
12. Warranties. The Fund hereby represents and warrants to the Parent that (a) it has
all limited partnership power and authority to execute, deliver and perform this commitment letter;
(b) the execution, delivery and performance of this commitment letter by the Fund has been duly and
validly authorized and approved by all necessary limited partnership action by it; (c) this
commitment letter has been duly and validly executed and delivered by it and constitutes a valid
and legally binding obligation of it; enforceable against it in accordance with the terms of this
commitment letter, (d) its commitment is less than the maximum amount that it is permitted to
invest in any one portfolio investment pursuant to the terms of its constituent documents; and (e)
it has uncalled capital commitments in excess of the commitment.
[Remainder of page intentionally left blank.]
-4-
| Sincerely, | ||||
| XXXX CAPITAL FUND X, L.P. | ||||
| By: XXXX CAPITAL PARTNERS X, L.P., its | ||||
| General Partner | ||||
| By: XXXX CAPITAL INVESTORS, LLC, its | ||||
| General Partner | ||||
| By: /s/ Xxxxxx Xxxxxx | ||||
| Title: A Duly Authorized Representative |
Agreed to and accepted:
SWINGSET HOLDINGS CORP.
By:
/s/ Xxxxxx Xxxxxx |
||
Title: Authorized Person |
[Equity Commitment Letter Signature Page]
