SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 31, 1995
BERLITZ INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 1-10390 35-3550016
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Research Park, 293 Wall Street
Princeton, New Jersey 08540
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (609) 924-8500
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 5. OTHER EVENTS
1. AMENDMENT TO THE ESCROW AGREEMENT
The Company entered into an Amendment dated as of May 31, 1995 by
and among Maxwell Communication Corporation plc (In Administration)
("MCC"), the Company and IBJ Schroder Bank & Trust Company, as escrow
agent ("Escrow Agent") (the "Amendment") to the Escrow Agreement dated as
of January 28, 1993 by and among MCC, the Company and the Escrow Agent
(the "Escrow Agreement"). The Amendment establishes September 15, 1996
as the termination date of the Escrow Agreement, at which time MCC can
withdraw the funds deposited pursuant thereto, and also allows MCC to
deposit into the escrow fund the 627,000 shares of common stock of the
Company owned by MCC (the "Berlitz Shares") in exchange for the
withdrawal from the escrow fund of an amount of cash equal to $9 per
share deposited. The Amendment further allows MCC to substitute
additional assets for cash pursuant to a joint notice executed by MCC and
the Company and delivered to the Escrow Agent, provided that the value of
the assets in the escrow fund shall never be less than an aggregate of
$39,500,000. A copy of the Amendment is attached hereto as Exhibit 99.1.
On July 10, 1995, MCC, pursuant to a joint notice executed by MCC
and the Company and delivered to the Escrow Agent, deposited all 627,000
Berlitz Shares into the escrow fund in exchange for the withdrawal of
$5,643,000 in cash from the fund.
2. STOCK PURCHASE AGREEMENT
The Company entered into a Stock Purchase Agreement dated as of
May 31, 1995 between the Company and MCC (the "Stock Purchase Agreement")
whereby the Company agreed to purchase from MCC, and MCC agreed to sell
to the Company, at a purchase price of $9 per share the Berlitz Shares on
the earlier of September 16, 1996 or ten days after the Company notifies
MCC of its intention to purchase all or a portion of the 627,000 shares
(the "Purchase Date"). The Company's obligation to purchase the Berlitz
Shares is subject to the satisfaction of certain conditions set forth in
the Stock Purchase Agreement. A copy of the Stock Purchase Agreement is
attached hereto as Exhibit 99.2.
Item 6. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
99.1 Amendment dated as of May 31, 1995 by and among Maxwell
Communication Corporation plc (In Administration) ("MCC"), Berlitz
International, Inc. ("Berlitz") and IBJ Schroder Bank & Trust Company as
escrow agent ("Escrow
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Agent") to the Escrow Agreement dated as of January 28, 1993 by and among MCC,
Berlitz and the Escrow Agent.
99.2 Stock Purchase Agreement dated as of May 31, 1995 between
Maxwell Communication Corporation plc (In Administration) and Berlitz
International, Inc.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, hereunto duly authorized.
BERLITZ INTERNATIONAL, INC.
By: /s/ Robert C. Hendon, Jr.
--------------------------
Robert C. Hendon, Jr.
Secretary and
General Counsel
Dated:
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Page 5
EXHIBIT INDEX
Sequential Page
---------------
99.1 Amendment dated as of May 31, 1995 by and among
Maxwell Communication Corporation plc (In
Administration ("MCC"), Berlitz International, Inc.
("Berlitz") and IBJ Schroder Bank & Trust Company as
escrow agent ("Escrow Agent") to the Escrow Agreement
dated as of January 28, 1993 by and among MCC, Berlitz
and the Escrow Agent.
99.2 Stock Purchase Agreement dated as of May 31, 1995
between Maxwell Communication Corporation plc (In
Administration) and Berlitz International, Inc.
AMENDMENT TO ESCROW AGREEMENT
AMENDMENT (the "Amendment") dated as of May 31, 1995 by and
among Maxwell Communication Corporation plc (In Administration), a
corporation organized under the laws of the United Kingdom ("MCC"),
Berlitz International, Inc., a New York corporation ("Berlitz"), each of
the other Beneficiaries which have become party to the Escrow Agreement
(as defined below) and IBJ Schroder Bank & Trust Company, as escrow agent
(in such capacity, the "Escrow Agent") to the Escrow Agreement dated as
of January 28, 1993 by and among MCC, Berlitz, the Beneficiaries and the
Escrow Agent (the "Escrow Agreement").
The parties hereto are parties to the Escrow Agreement.
The parties hereto wish to amend the Escrow Agreement to
evidence certain mutual agreements of the parties.
Accordingly the parties agree as follows:
1. Section 1 is hereby amended by adding, in the alphabetical
order in which they would appear, the following definitions:
"COMMON STOCK" shall mean the common stock, par value $.10 per
share, of Berlitz.
"ESCROWED ASSETS" shall mean any monies, investments, Berlitz
Shares, letters of credit or other assets deposited with the Escrow
Agent to be held in the Escrow Fund pursuant to the terms and
conditions of this Agreement.
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Page 2
"BERLITZ SHARES" shall mean (i) the 627,000 shares of Common
Stock owned of record and beneficially by MCC on May 31, 1995, plus
(ii) any additional shares of Common Stock designated from time to
time in a joint notice executed by MCC and Berlitz and delivered to
the Escrow Agent to be held as Escrowed Assets, minus (iii) any of
such shares described in (i) and (ii) above that are withdrawn from
time to time from the Escrow Fund pursuant to Section 3 hereof. If,
subsequent to May 31, 1995, Berlitz shall have effected or fixed a
record date to effect one or more stock splits, stock changes,
reclassifications, recapitalizations or other combinations or
rearrangements of shares of its capital stock so as to alter the
character and/or amount of the Berlitz Shares, then any shares
issued in connection with any of the foregoing actions with respect
to the Berlitz Shares and delivered to the Escrow Agent shall be
deemed to be Berlitz Shares.
2. Section 3 is hereby deleted in its entirety and replaced
with the following:
"Section 3. ESCROW FUND.
3.01 MCC shall, no later than the Merger Date, pay $39,500,000
to the Escrow Agent to be held by the Escrow Agent hereunder. Such
payment together with any other Escrowed Assets from time to time
held by the Escrow Agent hereunder shall constitute the "ESCROW
FUND." Cash held in the Escrow Fund from time to time shall be
invested and reinvested by the Escrow Agent in such Permitted
Investments as the Joint Administrators on behalf of MCC shall from
time to time specify to the Escrow Agent in writing and MCC and each
Beneficiary hereby authorizes and directs the Escrow Agent to
collect and receive any earnings and proceeds of any such
investments and to credit the net amount of all monies received in
respect thereof to MCC in accordance with Section 3.07; all such
investments shall be held in the name of the Escrow Agent. The
Escrow Agent hereby agrees to provide MCC (and to any Beneficiary to
the extent requested by such Beneficiary) within five business days
following the end of each calendar month a statement detailing the
investments of the Escrow Fund during the immediately preceding
month.
3.02 Subject to the provisions hereof, MCC may, from time to
time, withdraw cash from the Escrow Fund; PROVIDED that, prior to or
contemporaneous with any such withdrawal of cash, MCC shall deposit
into the Escrow Fund an aggregate number of Berlitz Shares
(designated in a joint notice in the form of Exhibit E
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executed by MCC and Berlitz and delivered to the Escrow Agent) equal
in value (determined in accordance with Section 3.05) to the amount of
such withdrawal. Any such Berlitz Shares so deposited shall be
accompanied by duly executed stock powers in the name of the Escrow
Agent. MCC may, from time to time, withdraw some or all of the
Berlitz Shares from the Escrow Fund but only if, prior to or
contemporaneous with such withdrawal, MCC deposits into the Escrow
Fund an amount of cash (designated in a joint notice in the form of
Exhibit E executed by MCC and Berlitz and delivered to the Escrow
Agent) equal to the value (determined in accordance with
Section 3.05) of the Berlitz Shares being withdrawn.
3.03 MCC may substitute additional Escrowed Assets (including,
without limitation, letters of credit) in substitution for cash or
Berlitz Shares but only after receipt by the Escrow Agent of a joint
notice executed by Berlitz and MCC, which notice shall designate the
Escrowed Assets to be withdrawn and those to be deposited and the
valuation of any such Escrowed Assets other than cash.
3.04 Notwithstanding anything to the contrary, at no time
shall the value of all Escrowed Assets that comprise the Escrow Fund
be less than an aggregate of $39,500,000.
3.05 For the purposes of this Agreement, the 627,000 Berlitz
Shares owned of record and beneficially by MCC on May 31, 1995 shall
be valued at $9.00 per share, until and unless such valuation is
changed by a joint notice to the Escrow Agent executed by MCC and
Berlitz. Any other Berlitz Shares deposited into the Escrow Fund
shall be valued as set forth in the notice provided to the Escrow
Agent pursuant to this Agreement.
3.06 Any notice to withdraw or substitute Escrowed Assets in
accordance with Sections 3.02 and 3.03 must be delivered to the
Escrow Agent at least five (5) business days prior to such
transaction.
3.07 Subject to Section 3.04, any and all accumulated interest
and cash dividends, if applicable, paid into the Escrow Fund, over
and above the fees of the Escrow Agent, shall be paid quarterly to
MCC commencing on May 31, 1995 and on each quarter thereafter.
3.08 All expenses incurred in connection with the withdrawal
and substitution of Escrowed Assets pursuant to this Section 3
(including, without limitation,
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expenses (except for the fees and expenses of the Escrow Agent which
will continue to be governed by Section 2 of the Escrow Agreement)
incurred in obtaining any and all necessary consents) shall be borne
entirely by MCC."
3. Section 5(i) is hereby deleted in its entirety and
replaced with the following:
"(a) Upon receipt by the Escrow Agent of a notice executed
by MCC and each of the Beneficiaries hereto as of the date of such
notice, which states that this Agreement (other than Section 7.01
and 7.03 hereof) shall be terminated, or
(b) on September 15, 1996,
this Agreement shall terminate and be of no further force and effect
and the entire balance of the Escrowed Assets held in the Escrow
Fund, less any outstanding fees and expenses of the Escrow Agent,
shall be paid by the Escrow Agent to MCC. Notwithstanding the
foregoing, the agreements set forth in Section 7.01 and 7.03 hereby
shall survive such termination of this Agreement and shall continue
to be in full force and effect. The Escrow Agent shall not be
required to verify the information set forth in any such notice or
attachment thereto."
4. Except as modified and amended hereby, the Escrow
Agreement shall in all respects remain in full force and effect.
5. This Amendment shall be construed in accordance with and
governed by the laws of the State of New York.
6. This Amendment may be signed in any number of
counterparts, each of which shall be an original with the
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same effect as if the signatures thereto and hereto were upon the same
instrument.
This Amendment is here entered into as of the date first
written above.
MAXWELL COMMUNICATION CORPORATION plc
(In Administration)
By: /s/ Alan R.D. Jamieson
-----------------------------------
Name: Alan R.D. Jamieson
Title: Joint Administrator
BERLITZ INTERNATIONAL, INC.
By /s/ Robert Minsky
------------------------------------
Name: Robert Minsky
Title: Executive Vice President
IBJ SCHRODER BANK & TRUST COMPANY,
as Escrow Agent
By /s/ Nancy R. Besse
------------------------------------
Name: Nancy R. Besse
Title: Vice President
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EXHIBIT E
to Escrow Agreement
[FORM OF NOTICE OF DEPOSIT
AND WITHDRAWAL OF ESCROWED ASSETS]
, 19
To: IBJ Schroder Bank & Trust Company,
as Escrow Agent under the
below-referenced Escrow Agreement
One State Street
New York, New York 10004
Attention: Corporate Trust & Agency Administration
Ladies and Gentlemen:
Reference is made to the Escrow Agreement dated as of
January 28, 1993 between Maxwell Communication Corporation plc (In
Administration), Berlitz International, Inc., each of the other
Beneficiaries (as defined in the Escrow Agreement) party thereto and IBJ
Schroder Bank & Trust Company, as Escrow Agent, as amended (the "Escrow
Agreement"). Terms defined in the Escrow Agreement are used herein as
defined therein.
By their signatures below, the undersigned, pursuant to Section
3.02 of the Escrow Agreement, hereby request the Escrow Agent to make
(i) a deposit to the Escrow Fund of [the share certificate
representing [number] Berlitz Shares]/[an amount equal to $
] [state the date and manner of such deposit]; and
(ii) simultaneously with the action requested in clause (i)
above, a payment from the Escrow Fund to MCC of [the amount of money
or shares, as the case may be, equal to the amount of shares or
money, as the case may be, deposited in the Escrow Fund pursuant to
clause (i) above, calculated in accordance with Section 3 of the
Escrow Agreement].
Very truly yours,
BERLITZ INTERNATIONAL, INC.
By
Name:
Title:
NOTICE OF DEPOSIT AND WITHDRAWAL OF ESCROWED ASSETS
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MAXWELL COMMUNICATION CORPORATION, PLC (IN
ADMINISTRATION)
By
Name:
Title:
NOTICE OF DEPOSIT AND WITHDRAWAL OF ESCROWED ASSETS
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of May 31,
1995, between Maxwell Communication Corporation plc (In Administration),
a corporation organized under the laws of the United Kingdom (the
"Seller"), and Berlitz International, Inc., a New York Corporation (the
"Purchaser").
WHEREAS, the Seller is the owner of the Berlitz Shares (as
hereinafter defined);
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, the Berlitz Shares,
subject to and upon the terms and conditions described below;
WHEREAS, the Purchaser will cause to be executed and filed on or
prior to the date hereof a Stipulation and Order withdrawing that claim
number 214 of the Purchaser which was filed with the Bankruptcy Court for
the Southern District of New York on or about January 12, 1994 in the
case IN RE MACMILLAN, INC., ET AL. Case No. 93-B45625(TLB).
NOW, THEREFORE, in consideration of the mutual promises made
herein and of the mutual benefits to be derived herefrom, the parties
hereto agree as follows:
1. SALE AND PURCHASE OF THE SECURITIES.
(a) Subject to the terms and conditions hereof, the
Purchaser hereby agrees to purchase from the Seller, and the Seller
hereby agrees to sell to the Purchaser the Berlitz Shares (as defined in
Section 4) on the Closing Date (as defined herein) and on the terms and
conditions provided for in this Section 1, for consideration of $9.00 per
share (the "Purchase Price") in cash.
(b) Except in the event and to the extent (i) the
Purchaser exercises its First Refusal Right pursuant to Section 2 or (ii)
the Seller exercises its Buy-Out Right or its Tender Offer Buy-Out Right
pursuant to Section 3, the closing with respect to the sale and purchase
of the Berlitz Shares (the "Closing") shall take place at the New York
office of Paul, Weiss, Rifkind, Wharton & Garrison at 11:00 A.M. local
time on the date that is the earliest of (the "Closing Date"):
(i) September 16, 1996;
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(ii) ten (10) days after the Purchaser notifies the
Seller that it intends to purchase all or a portion of the
Berlitz Shares pursuant to this Section 1 (the "Purchaser's
Notice"); or
(iii) such other date as the Seller and Purchaser
agree to in writing.
(c) At the Closing, the Seller shall deliver to the
Purchaser (or its representative) certificates representing the Berlitz
Shares to be purchased by the Purchaser, duly endorsed in blank (with
such signature guarantees as the Purchaser or its counsel may request),
accompanied by all requisite stock transfer tax stamps, if any. The
Purchaser shall pay to the Seller the Purchase Price per share in U.S.
dollars by wire transfer of immediately available funds to such accounts
as are designated by the Seller. All parties to the transaction shall
execute such documents as are otherwise appropriate; PROVIDED, that the
Seller shall not make any representations or warranties with respect to
such transaction other than those relating to the ownership of the
Berlitz Shares and its authority to complete the transaction.
2. RIGHT OF FIRST REFUSAL.
(a) If at any time before the earlier of the Closing Date
or the receipt of the Purchaser's Notice (the "Exercise Period"), the
Seller receives a bona fide offer (the "Third Party Offer") from a third
party (the "Third Party Purchaser") to buy any of the Berlitz Shares (the
"Offered Shares") for a price per share (the "Third Party Offer Price")
that is less than the Purchase Price, and the Seller wishes to accept
such offer, then the Seller shall give the Purchaser written notice (the
"Seller's Notice"), in which the Seller shall (i) state the amount of the
Offered Shares, the terms and conditions of the Third Party Offer and the
name of the prospective Third Party Purchaser (together with a copy of
all writings between such prospective Third Party Purchaser and the
Seller necessary to establish the terms of the Third Party Offer) and
(ii) offer (the "Seller's Offer") to sell all (but not less than all) of
the Offered Shares to the Purchaser at the First Refusal Right Price per
share (as hereinafter defined) and otherwise upon the same terms and
conditions as those set forth in the Third Party Offer. The Purchaser
shall have the right (the "First Refusal Right") to purchase all (but not
less than all) of the Offered Shares for the First Refusal Right Price
per share and otherwise on the same terms and conditions as those set
forth in the Third Party Offer, which right shall be exercisable by
written notice to
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the Seller given within thirty (30) days of the receipt of the Seller's
Notice.
(b) If the Purchaser fails to exercise its First Refusal
Right with respect to all (but not less than all) of the Offered Shares
within such 30-day notice period by notifying Seller of such exercise in
writing, the Seller may thereafter sell all of the Offered Shares to the
Third Party Purchaser on the terms and conditions set forth in the Third
Party Offer; PROVIDED, HOWEVER, that such sale is consummated within
ninety (90) days after the date of the Seller's Notice; and PROVIDED
FURTHER that prior to or contemporaneous with such sale, the Third Party
Purchaser shall comply with the provisions of subsection (d) below. If
such sale is not consummated within such ninety (90) day period, the
restrictions provided for in this Section 2 shall again become effective,
and no transfer of the Berlitz Shares may be made thereafter without
again complying with all of the terms and conditions of this Agreement.
(c) The closing of any purchase of the Offered Shares
pursuant to the exercise by the Purchaser of the First Refusal Right
shall be held at the New York office of Paul, Weiss, Rifkind, Wharton &
Garrison at 11:00 A.M. local time ten (10) days following the election by
the Purchaser to purchase the Offered Shares. At such closing, the
Seller and the Purchaser shall comply with the procedures and
requirements set forth in Section 1(c). If the Purchaser shall fail to
consummate such closing on such 10th day, except if the failure to
consummate the closing results from the failure of the Seller to satisfy
its conditions of closing, the Seller shall be free to sell the Offered
Shares free and clear of any of the restrictions of this Section 2.
(d) Any of the Offered Shares transferred to a Third
Party Purchaser pursuant to this Section 2 shall be, and the Third Party
Purchaser shall agree to take and hold the Offered Shares, subject to
this Agreement and to all of the obligations, restrictions, terms and
conditions of this Agreement, including, without limitation, Sections 2
and 3. The Seller agrees that the Berlitz Shares shall, and the Seller
shall cause the Berlitz Shares to, bear the following legend:
THE TRANSFER, SALE OR OTHER DISPOSITION OF THE SHARES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO AND RESTRICTED BY THE TERMS AND
CONDITIONS OF THE STOCK PURCHASE AGREEMENT DATED AS OF MAY 31, 1995
BY AND BETWEEN MAXWELL COMMUNICATIONS CORPORATION PLC (IN
ADMINISTRATION) AND BERLITZ INTERNATIONAL, INC.
No transfer to a Third Party Purchaser pursuant to this Section 2 shall
be effective unless and until the Third
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Party Purchaser shall (i) agree that the Berlitz Shares shall continue to
bear a legend substantially in the form set forth above, (ii) agree to not
pledge or otherwise encumber any Berlitz Shares without first notifying,
and obtaining the acknowledgement of, each party to such transaction that
the Berlitz Shares are subject to the terms and conditions of this
Agreement and (iii) execute and deliver to the Purchaser an appropriate
instrument in the form of Exhibit A hereto.
(e) The "First Refusal Right Price" per share shall be
the lower of (i) the sum of the Third Party Offer Price described in
Section 2(a) above plus $.50 or (ii) the Purchase Price.
3. BUY-OUT RIGHT AND TENDER OFFER BUY-OUT RIGHT.
(a) If at any time during the Exercise Period, the Seller
receives a Third Party Offer, which it desires to accept, to buy any of
the Berlitz Shares (the "Offered Buy-Out Shares") for a Third Party Offer
Price per share that is greater than or equal to the Purchase Price, then
the Seller shall have the right (the "Buy-Out Right") to sell the Offered
Buy-Out Shares at the Third Party Offer Price to the Third Party
Purchaser; PROVIDED, HOWEVER, that (i) the Seller shall give to the
Purchaser a notice (the "Seller's Buy-Out Notice") stating the amount of
the Offered Buy-Out Shares, the terms and conditions of the Third Party
Offer and the name of the Third Party Purchaser (together with a copy of
all writings between such Third Party Purchaser and the Seller necessary
to establish the terms of the Third Party Offer), (ii) the consideration
paid for such Offered Buy-Out Shares shall be in the form of cash and
(iii) the Seller shall, promptly following the receipt of funds from the
sale of the Offered Buy-Out Shares, pay the Purchaser the Buy-Out Price
(as defined below) for each share sold to the Third Party Purchaser. The
Purchaser's right to deliver a Purchaser's Notice and to purchase the
Berlitz Shares pursuant to Section 1 shall not be applicable to any
Berlitz Shares that the Seller has notified the Purchaser it intends to
sell pursuant to this Section 3(a); PROVIDED, HOWEVER, that if the sale
of the Offered Buy-Out Shares to such Third Party Purchaser is not
consummated within sixty (60) days after the delivery of the Seller's
Buy-Out Notice, all of the Purchaser's rights under Section 1 with
respect to such Berlitz Shares shall be reinstated, and no transfer of
the Berlitz Shares may be made thereafter without again complying with
all of the terms and conditions of this Agreement.
(b) Notwithstanding the provisions of Section 3(a) or the
giving of any Purchaser's Notice, if a
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third party, the Purchaser or any affiliate of the Purchaser makes a tender
offer to buy all or substantially all of the publicly-held shares of the
Purchaser for a price per share (the "Tender Offer Price") equal to or
greater than the Purchase Price, then the Seller shall have the right (the
"Tender Offer Buy-Out Right") to sell any Berlitz Shares then owned by it
at the Tender Offer Price to the party making the tender offer; PROVIDED,
HOWEVER, that the Seller shall (i) give to the Purchaser notice of its
intention to sell any Berlitz Shares pursuant to the tender offer and (ii)
promptly following the receipt of funds from the sale of its Berlitz Shares
pursuant to the tender offer, pay the Purchaser the Tender Offer Buy-Out
Price (as defined below) for each share sold in the tender offer. The
Purchaser's right to deliver a Purchaser's Notice and to purchase the
Berlitz Shares pursuant to Section 1 shall not be applicable to any
Berlitz Shares that the Seller has notified the Purchaser it intends to
sell pursuant to this Section 3(b); PROVIDED, HOWEVER, that if such
Berlitz Shares are not sold in the tender offer, all of the Purchaser's
rights under Section 1 with respect to such Berlitz Shares shall be
reinstated, and no transfer of the Berlitz Shares may be made thereafter
without again complying with all of the terms and conditions of this
Agreement.
(c) If the consideration paid pursuant to a tender offer
carried out in accordance with terms of Section 3(b) above is comprised
in whole or in part of securities, instruments or other property other
than cash, then such securities, instruments or other property will be
valued (i) by the Purchaser and the Seller based on the opinion of the
financial advisor to the Person (as hereinafter defined) making the
tender offer, if such financial advisor has rendered a written opinion
valuing such property, or, in the alternative, (ii) by a nationally
recognized investment banking firm retained by the Purchaser and
reasonably satisfactory to the Seller, or (iii) by mutual agreement of
the Seller and the Purchaser.
(d) (i) BUY-OUT PRICE. The "Buy-Out Price" per share
shall be an amount equal to the difference between the Third Party Offer
Price described in Section 3(a) above and the Purchase Price; PROVIDED,
HOWEVER, that in no event shall the Buy-Out Price per share be less than
$2.00 nor more than $3.00.
(ii) TENDER OFFER BUY-OUT PRICE. The "Tender Offer
Buy-Out Price" per share shall be an amount equal to the difference
between the Tender Offer Price and $10.00; PROVIDED, HOWEVER, that in no
event shall the Tender Offer Buy-Out Price exceed $4.00.
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4. BERLITZ SHARES; ADJUSTMENTS.
(a) The term "Berlitz Shares" shall mean (i) an aggregate
of 627,000 shares of common stock, par value $.10 per share, of the
Purchaser owned by the Seller on the date hereof, plus (ii) any
additional shares of such common stock of the Purchaser which the Seller
and the Purchaser agree in writing shall be deemed to be "Berlitz Shares"
minus (iii) any of such shares described in (i) and (ii) above that are
sold from time to time in accordance with the terms of this Agreement.
(b) If, subsequent to the date hereof, the Purchaser
shall have effected or fixed a record date (i) to effect one or more
stock splits, stock changes, reclassifications, recapitalizations or
other combinations or rearrangements of shares of its capital stock which
change the character and/or amount of the Berlitz Shares or (ii) to
distribute to all holders of outstanding shares of common stock of the
Purchaser any cash, securities or other assets (excluding any cash
distribution made as a dividend payable out of earnings or out of any
earned surplus legally available for dividends under the laws of the
State of New York) (collectively, the "Action"), then the parties hereto
agree and covenant that there shall be an equitable adjustment in the
character, number and/or price of the Berlitz Shares subject to and
deliverable upon exercise of the terms of this Agreement as shall be
required to afford to the parties rights, benefits and obligations
equivalent to those enjoyed and undertaken by them under this Agreement
immediately prior to the Action.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Purchaser as follows:
(a) The Seller is validly existing as a corporation under
the laws of the United Kingdom, and has the full and legal right and
power to enter into, execute and deliver this Agreement and to perform
fully its obligations hereunder. This Agreement has been duly executed
and delivered by the Seller and is the legal, valid and binding
obligation of the Seller, enforceable in accordance with its terms.
(b) No consent, license, approval, order or authorization
of, or registration, declaration or filing with any individual,
corporation, joint venture, partnership, trust, unincorporated
association, government or any department or agency thereof (each a
"Person"), is required to be obtained by the Seller in connection with
the sale of
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the Berlitz Shares to the Purchaser pursuant to and in accordance with the
terms of this Agreement.
(c) The sale of the Berlitz Shares to the Purchaser
hereunder will not conflict with, result in a violation or breach of any
provision of, or constitute a default (or an event which with notice or
lapse of time or both, would constitute a default) under any agreement or
instrument binding upon the Seller or applicable to the Berlitz Shares.
(d) The Seller is the beneficial owner of the Berlitz
Shares free and clear of any lien, charge, security interest,
encumbrance, title retention agreement, adverse claim, option or right of
others (each a "Lien"), other than those, if any, created by this
Agreement. Upon the purchase and payment for the Berlitz Shares by the
Purchaser as provided in this Agreement, the Purchaser will acquire good
and valid title to the Berlitz Shares, free and clear of any Lien, other
than Liens created or suffered to exist by the Purchaser.
(e) Neither the Seller nor any intermediary acting on its
behalf has engaged in any form of general solicitation or advertising
with respect to the sale of the Berlitz Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to the Seller as follows:
(a) The Purchaser is duly organized, validly existing and
in good standing as a Corporation under the laws of the State of New
York, and has the full legal right and power to enter into, execute and
deliver this Agreement and to perform fully its obligations hereunder.
This Agreement has been duly executed and delivered by the Purchaser and
is the legal, valid and binding obligation of the Purchaser, enforceable
in accordance with its terms.
(b) Neither the Purchaser nor, to the knowledge of the
Purchaser, any other Person (including any affiliate of the Purchaser)
has any plan or current intention to make a tender, exchange or other
similar offer to the public holders of the common stock of the Purchaser
for the purpose of acquiring such common stock.
7. CONDITIONS TO OBLIGATION OF THE SELLER TO CLOSE. The
following shall be conditions to the obligation of the Seller to sell the
Berlitz Shares hereunder:
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(a) The representations and warranties of the Purchaser
contained in Section 6 of this Agreement shall be true and correct as of
the Closing Date, and the Seller shall receive a certificate so stating
from a duly authorized officer of the Purchaser.
8. CONDITIONS TO THE OBLIGATION OF THE PURCHASER TO CLOSE.
The following shall be conditions to the obligation of the Purchaser to
purchase the Berlitz Shares pursuant to Section 1 hereof:
(a) The Purchaser shall have obtained all necessary
consents and approvals of any Person required under any contract,
agreement, understanding, indenture, note, bond, loan, instrument, lease,
mortgage, franchise, license, commitment or other arrangement
(collectively referred to as a "Contract or Other Agreement") to perform
its obligations and consummate the transactions contemplated in Section 1
of this Agreement and any other agreement, instrument and document
contemplated hereby.
(b) The Purchaser shall, in the reasonable opinion of its
Board of Directors, determine that it has (i) the funds available to
accomplish the purchase of the Berlitz Shares or (ii) the ability to
obtain adequate financing to accomplish such purchase on terms and
conditions acceptable to the Purchaser, in each case consistent with the
Purchaser's other business or legal requirements or obligations
(including, without limitation, the maintenance of adequate financial
ratios and the competing needs for resources and financing).
(c) The performance by the Purchaser of the obligations
under Section 1 of this Agreement or any agreement, instrument or
document contemplated thereby and the consummation of the transactions
contemplated thereby will not (i) conflict with or result in any breach
of any of the terms and conditions of, or constitute a default under
(a) any Contract or Other Agreement to which the Purchaser is a party or
by which it or any of its assets or properties may be bound or (b) any
judgment, decree, award, injunction, governmental order or other
restriction or obligation to which the Purchaser is a party or by which
it or any of its assets or properties may be bound; (ii) give to any
Person any right of termination, cancellation or acceleration of or with
respect to any Contract or Other Agreement to which the Purchaser is a
party or by which it or any of its assets or properties may be bound;
(iii) result in the creation or imposition of any Lien upon any of the
assets or properties of the Purchaser; (iv) violate any statute, law or
regulation of any jurisdiction applicable to the Purchaser or the assets
or properties of the Purchaser; or (v) result in a
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breach of the terms or conditions of, constitute a default under or other
cause an impairment of, any license, permit, order, approval, registration,
authorization or qualification under any local, state, federal or foreign
law.
(d) The representations and warranties of the Seller
contained in Section 5 of this Agreement shall be true and correct as of
the Closing Date, and the Purchaser shall receive a certificate so
stating from a duly authorized officer of the Seller.
9. GENERAL RESTRICTIONS; ALL TRANSFERS IN COMPLIANCE WITH
LAW. All sales, assignments, transfers, pledges, grants of a security
interest in, and other dispositions (a "Transfer") of the Berlitz Shares
are subject to and governed by the terms and conditions of this
Agreement. No Transfers of the Berlitz Shares by the Seller shall be
permitted except those permitted under the terms of this Agreement and,
if applicable, under the terms of the Escrow Agreement dated January 28,
1993 by and among the Seller, the Purchaser, each of the other
Beneficiaries which has become a party thereto and IBJ Schroder Bank &
Trust Company, as escrow agent, as amended from time to time. Any
Transfer of the Berlitz Shares not permitted by the terms of this
Agreement shall be null and void, and the Purchaser is authorized to
refuse to transfer ownership on its books of any of the Berlitz Shares
Transferred in violation of this Agreement. Notwithstanding anything to
the contrary in this Agreement, any transfer of the Berlitz Shares
permitted or required by this Agreement shall be in compliance with
federal and state securities laws, including, without limitation, the
Securities Act of 1933, as amended, and the Purchaser may require an
opinion, reasonably satisfactory to the Purchaser, of counsel to the
transferor as to such compliance.
10. INDEMNIFICATION.
(a) The Seller agrees to indemnify, defend and hold
harmless the Purchaser from and against all losses, liabilities, damages,
deficiencies, costs and expenses, including reasonable attorneys' fees,
disbursements and other charges, based upon, arising out of, or otherwise
in respect of any inaccuracy in or any breach of any representation,
warranty, covenant or agreement of the Seller contained in this
Agreement.
(b) The Purchaser agrees to indemnify, defend and hold
harmless the Seller (and its officers, employees, affiliates and assigns)
from and against all losses, liabilities, damages, deficiencies, costs and
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expenses, including reasonable attorneys' fees, disbursements and
other charges, based upon, arising out of, or otherwise in respect of any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of the Purchaser contained in this Agreement.
11. EXPENSES. Each party to this Agreement will pay its own
expenses and costs incidental to the purchase and sale of the Berlitz
Shares and their other respective obligations under this Agreement.
12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if telecopied or delivered
personally or mailed by registered or certified mail (return receipt
requested) to the following address (or at such other address as shall be
specified by like notice; provided, that notice of a change of address
shall be effective only upon receipt thereof):
(a) IF TO THE SELLER:
Maxwell Communication Corporation plc
(In Administration)
c/o Price Waterhouse
No. 1 London Bridge
London SE1 9QL
England
Attention: Alan R.D. Jamieson
Telecopier Number: 011-44-71-939-4173
(b) with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: John T. O'Connor, Esq.
Telecopier Number: (212) 530-5219
(c) IF TO THE PURCHASER:
c/o Berlitz International, Inc.
293 Wall Street
Princeton, NJ 08540-1555
Attention: Robert C. Hendon, Jr., Esq.
Telecopier Number: (609) 683-0983
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with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Matthew Nimetz, Esq.
Telecopier Number: (212) 373-2101
All notices given by telecopier or delivered personally
shall be deemed to have been received by the recipient thereof if
received on a business day during the normal business hours of such
recipient; otherwise, such notices shall be deemed received on the next
following business day. All notices mailed shall be deemed to be
received on the fifth business day following deposit of such notice into
the mail.
13. TERMINATION. This Agreement, and all of the rights and
obligations contained herein, except for obligations to consummate
transactions properly initiated prior to September 17, 1996, shall
terminate on September 17, 1996, unless the parties hereto agree
otherwise in writing.
14. MISCELLANEOUS.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK (OTHER THAN THE LAWS GOVERNING CONFLICT OF LAW MATTERS).
This Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof. This
Agreement does not modify any existing agreements. This Agreement may be
changed, waived, discharged or terminated only by an instrument in
writing signed by each of the parties hereto. This Agreement may be
executed in counterparts, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one of the same
instrument.
15. JOINT ADMINISTRATORS AND PRICE WATERHOUSE. The parties
hereto acknowledge and agree that:
(a) None of the Joint Administrators of the Seller (the
"Joint Administrators") shall incur any personal liability of any kind
under, and the United Kingdom accounting firm Price Waterhouse, a United
Kingdom partnership ("PRICE WATERHOUSE") shall not incur any liability of
any kind under, or by virtue of, this Agreement, or in relation to any
related matter or claim, whether in contract or tort or by reference to
any other remedy or right, in any jurisdiction or forum.
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(b) Without prejudice to Section 15(a) hereof, none of
the Joint Administrators or Price Waterhouse shall be liable under this
Agreement or any document executed with a view to, or for the purpose of,
giving effect to this Agreement.
(c) The parties hereto have placed no reliance in
entering into and performing this Agreement on any representations,
warranties, statements or undertakings (oral or in writing) made by or on
behalf of any of the Joint Administrators, in their personal capacity or
Price Waterhouse, and any such representations, warranties, statements or
undertakings which might otherwise be implied by law are hereby expressly
excluded and waived by all parties hereto; PROVIDED, HOWEVER, that
nothing in this Section 15 shall limit the liability of the Seller under
this Agreement or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
THE SELLER: THE PURCHASER:
MAXWELL COMMUNICATION CORPORATION PLC BERLITZ INTERNATIONAL, INC.
(In Administration)
By /s/ Alan R.D. Jamieson
------------------------- By: /s/ Robert Minsky
Alan R.D. Jamieson ---------------------------
Joint Administrator Robert Minsky
Executive Vice President
