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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
BERLITZ INTERNATIONAL, INC.
(Name of Issuer)
Common Stock $.10 Par Value
(Title of Class of Securities)
08490010-9
(CUSIP Number)
Mr. Kazuo Yamakawa Copy to:
Benesse Corporation Coudert Brothers
3-7-17 Minamigata, Okayama-shi 1114 Avenue of the Americas
700 Japan New York, NY 10036-7703
(81)(86) 221-5251 Jeffrey E. Cohen
(Name, Address and Telephone Number of Person (212) 626-4400
Authorized to Receive Notices and Communications)
September 17, 1999
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box / /.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
(Continued on following pages)
- ----------
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
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).
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CUSIP No. 08490010-9
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1. NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benesse Corporation
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /1
(b) / /2
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*: N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /3
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Japan
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NUMBER OF SHARES 7. SOLE VOTING POWER:
BENEFICIALLY 8,649,483
OWNED BY EACH
REPORTING PERSON
WITH
---------------------------------------------------------
8. SHARED VOTING POWER:
--
---------------------------------------------------------
9. SOLE DISPOSITIVE POWER:
8,649,483
---------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
--
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,649,483
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /4
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
77.3%
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14. TYPE OF REPORTING PERSON: CO
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* SEE INSTRUCTIONS BEFORE FILLING OUT!
2
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CUSIP No. 08490010-9
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1. NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benesse Holdings International, Inc.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /5
(b) / /6
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*: N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /7
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF SHARES 7. SOLE VOTING POWER:
BENEFICIALLY 8,636,283
OWNED BY EACH
REPORTING PERSON
WITH
---------------------------------------------------------
8. SHARED VOTING POWER:
--
---------------------------------------------------------
9. SOLE DISPOSITIVE POWER:
8,636,283
---------------------------------------------------------
10. SHARED DISPOSITIVE POWER:
--
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,636,283
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /8
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
77.2%
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14. TYPE OF REPORTING PERSON: CO
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* SEE INSTRUCTIONS BEFORE FILLING OUT!
3
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This Amendment No. 2 to the statement on Schedule 13D, as amended by
Amendment No. 1, (the "Schedule 13D") is being filed by Benesse Corporation
("Benesse") and by its wholly owned subsidiary, Benesse Holdings International,
Inc. ("BHI") pursuant to Rule 13d-2(a) under the Securities Exchange Act of
1934. Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such terms in the Schedule 13D.
The Schedule 13D is hereby amended and supplemented as follows:
Item 5 Interest in the Securities of the Issuer.
Item 5(a) of the Schedule 13D is hereby supplemented by adding the following two
paragraphs immediately before the last paragraph thereof:
On September 17, 1999, pursuant to a Stock Purchase Agreement dated
September 7, 1999, between Mr. Soichiro Fukutake and MCC Proceeds, Inc., as
Trustee of the Maxwell Macmillan Realization Liquidating Trust (the "Stock
Purchase Agreement"), Mr. Fukutake acquired 227,800 shares of Common Stock for a
purchase price of $18.25 per share, subject to an additional contingent payment
of $2.00 per share if either (i) the closing price of the Company's Common Stock
listed on the New York Stock Exchange (the "NYSE") is equal to or greater than
$25.00 per share on any day during the three year period following September 17,
1999 (the "Additional Consideration Period"), or (ii) the closing price of the
Company's Common Stock listed on the NYSE plus the amount of any cash dividends
issued to the shareholders of the Company, but excluding aggregate cash
dividends equal to or less than $0.25 issued to the shareholders of the Company
during any twelve month period ending on an anniversary of September 7, 1999, is
equal to or greater than $25.00 per share on any day during the Additional
Consideration Period. Such shares (together with exercisable options held by Mr.
Fukutake to purchase 100,250 shares of Common Stock, as described in the
following paragraph) constitute approximately 3.4% of the shares of the
Company's Common Stock issued and outstanding on August 13, 1999. Mr. Fukutake,
the Chairman of the Company, is the President, Representative Director and (as
described in Item 2 above) a shareholder of Benesse and is the Chairman of BHI.
On January 1, 1999, the following options, granted by the Company under the
1996 Stock Option Plan of the Company, became exercisable to purchase, at an
exercise price of $24.9375 per share, shares of Common Stock: (i) options to
purchase 100,250 shares of Common Stock granted to Mr. Fukutake, and (ii)
options to purchase 45,750 shares of Common granted to Mr. Hiromasa Yokoi, the
Chief Executive Officer of the Company and a Director of Benesse and a Director
and Vice President of BHI.
Item 6. Contracts, Arrangements, Undertakings or Relationships with respect to
Securities of the Issuer.
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The introductory paragraph of Item 6 of the Schedule 13D is hereby amended to
refer to the following four (rather than three) agreements, and the following
paragraph 4 is added thereto:
4. On September 17, 1999, Mr. Fukutake purchased 227,800 shares of Common Stock
of the Company pursuant to the Stock Purchase Agreement dated September 7, 1999.
The Stock Purchase Agreement is filed as Exhibit 1 to this Amendment to the
Schedule 13D and is incorporated herein by reference.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1: Stock Purchase Agreement, dated as of September 7, 1999, between
MCC Proceeds, Inc. and Soichiro Fukutake for Common Stock of Berlitz
International, Inc.
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: September 28, 1999
BENESSE CORPORATION
By: /s/ Soichiro Fukutake
------------------------
Name: Soichiro Fukutake
Title: President
BENESSE HOLDINGS INTERNATIONAL, INC.
By: /s/ Soichiro Fukutake
------------------------
Name: Soichiro Fukutake
Title: Chairman
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<PAGE>
EXHIBIT INDEX
Exhibit
1. Stock Purchase Agreement, dated as of September 7, 1999, between MCC
Proceeds, Inc. and Soichiro Fukutake for Common Stock of Berlitz
International, Inc.
<PAGE>
STOCK PURCHASE AGREEMENT
between
MCC PROCEEDS, INC.
and
SOICHIRO FUKUTAKE
for Common Stock of
BERLITZ INTERNATIONAL, INC.
-------------------------------
Dated as of September 7, 1999
-------------------------------
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<PAGE>
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of September 7,
1999, by and between MCC Proceeds, Inc., as Trustee of The Maxwell Macmillan
Realization Liquidating Trust (the "Seller"), and Mr. Soichiro Fukutake, a
Japanese citizen (the "Purchaser").
WHEREAS, the Seller is the beneficial owner of the Berlitz Shares (as
defined herein);
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;
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) Sale and Purchase. 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 on the Closing Date (as
defined herein) and on the terms and conditions provided for herein.
(b) Purchase Price. The aggregate purchase price (the "Purchase Price")
for the Berlitz Shares shall be $4,157,350, or $18.25 per share, subject to the
provisions of Section 1(e) hereof.
(c) Closing Date. The closing with respect to the purchase and sale of
the Berlitz Shares (the "Closing") shall take place at the New York office of
Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York,
New York, 10019 at 11:00 A.M. local time on the date (the "Closing Date") that
is the earliest of:
(i) the first business day after all conditions set forth in this
Agreement are met or waived by the party entitled to waive such
condition; or
(ii) such other date as the Seller and Purchaser agree to in
writing.
The Closing shall be effective as of the close of business on that date.
(d) Delivery of and Payment for the Shares. 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 reasonably
request), in proper form for transfer, and accompanied by all requisite stock
transfer tax stamps, if any. The Purchaser shall pay to the Seller the Purchase
Price in U.S. dollars by wire transfer of immediately available funds to such
account as
<PAGE>
designated by the Seller. All parties to the transaction shall execute such
documents as are otherwise appropriate.
(e) Additional Consideration. The Purchaser shall pay to the Seller an
additional $455,600, or $2.00 per share (the "Additional Consideration"), if
either (x) the closing price of the Company's (as defined herein) common stock
listed on the New York Stock Exchange ("NYSE") is equal to or greater than
$25.00 per share on any day during the three (3) year period following the
Closing (the "Additional Consideration Period"), or (y) the closing price of the
Company's common stock listed on the NYSE plus the amount of any cash dividends
issued to the shareholders of the Company, but excluding aggregate cash
dividends equal to or less than $0.25 issued to the shareholders of the Company
during any twelve (12) month period ending on an anniversary of the date hereof,
is equal to or greater than $25.00 per share on any day during the Additional
Consideration Period (each of (x) and (y), a "Conditional Event"). If a
Conditional Event shall occur, the Purchaser shall pay the Additional
Consideration to the Seller by wire transfer to an account designated in writing
by the Seller within fifteen (15) days of the date of such occurrence. If
payment is not made within fifteen (15) days of such date, interest shall accrue
on the unpaid amount, at the then current prime rate of NationsBank, beginning
on the 16th day following the occurrence of the Conditional Event until such
amount is paid. The Purchaser shall have no further obligation to the Seller
under this Agreement if either of the following occur:
(i) A Conditional Event occurs during the Additional Consideration
Period and the Purchaser pays the Additional Consideration to the
Seller; or
(ii) The Additional Consideration Period expires without the
occurrence of a Conditional Event.
2. Berlitz Shares. The term "Berlitz Shares" shall mean an aggregate of
227,800 shares of the common stock, par value $.10 per share, of Berlitz
International, Inc., a New York corporation (the "Company"), owned by the Seller
on the date hereof.
3. 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
Delaware, 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 the Berlitz Shares to the Purchaser
pursuant to and in accordance with the terms of this Agreement other than those
which have been heretofore obtained.
2
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(c) The sale of the Berlitz Shares to the Purchaser hereunder will not
(i) conflict with, or result in a violation or breach of any provision of, or
constitute a default (or an event which with notice of lapse of time or both,
would constitute a default) under (a) any contract or other agreement or
instrument binding upon the Seller or applicable to the Berlitz Shares or (b)
any judgment, decree, award, injunction, governmental order or other restriction
or obligation to which the Seller is a party or by which it or any of its assets
or properties may be bound; (ii) violate any statute, law or regulation of any
jurisdiction applicable to the Seller or the assets or properties of the Seller;
or (iii) result in a breach of the terms or conditions of, constitute a default
under or otherwise cause an impairment of any license, permit, order, approval,
registration, authorization or qualification of the Seller under any local,
state, federal or foreign law.
(d) 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.
(e) 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. Assuming the Purchaser has no prior
knowledge or notice of any adverse claims to the Berlitz Shares, 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.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Seller as follows:
(a) 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) The Berlitz Shares are being acquired by the Purchaser for his own
sole benefit and account for investment and not with a view to, or for resale in
connection with, a public offering or distribution thereof.
5. Survival of the Representations and Warranties of the Purchaser and of
the Seller After Closing.
(a) Notwithstanding any right of the Purchaser or Seller to investigate
and notwithstanding any knowledge of facts determined or determinable by the
Purchaser or Seller pursuant to such investigation or right of investigation,
the Purchaser and the Seller each have the right to rely fully upon the
representations and warranties of the other contained in this Agreement.
(b) Notwithstanding any waiver by the Purchaser or the Seller of any
condition precedent to its obligation to close, all representations and
warranties shall survive the execution and delivery of this Agreement and the
Closing hereunder.
3
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6. Conditions Precedent to Obligation of the Seller to Close. The following
shall be conditions to the obligation of the Seller to sell the Berlitz Shares
pursuant to Section 1 hereof:
(a) The representations and warranties of the Purchaser contained in
Section 4 of this Agreement shall be true and correct as of the Closing Date.
7. Conditions Precedent 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 representations and warranties of the Seller contained in
Section 3 of this Agreement shall be true and correct as of the Closing Date.
8. General Restrictions: All Transfers in Compliance With Law. All sales,
assignments, transfers, pledges, grants of a security interest in, and other
dispositions (each, a "Transfer") of the Berlitz Shares are subject to and
governed by the terms and conditions 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.
9. 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 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.
10. 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.
11. 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:
MCC Proceeds, Inc.
Silverside Carr Executive Center
501 Silverside Road
Suite 10
Wilmington, Delaware 19809
(b) with copies to:
Denis O'Connor
MCC Proceeds, Inc.
c/o PricewaterhouseCoopers
1177 Avenue of the Americas
New York, New York 10036
Telecopier: (212) 596-8940
MCC Proceeds, Inc.
c/o PricewaterhouseCoopers
Plumtree Court
London EC4A 4HT
England
Attention: Alan R.D. Jamieson
Telecopier Number: 011-44-207-822-4652
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: John T. O'Connor, Esq.
Telecopier: (212) 530-5219
(c) If to the Purchaser:
Soichiro Fukutake
c/o Benesse Corporation
3-7-17 Minamigata
Okayama-shi 700, Japan
Telecopier: 011-81-86-227-6111
(d) with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Matthew Nimetz, Esq.
Telecopier: (212) 373-2101
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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.
12. Termination. This Agreement, and all of the rights and obligations
contained herein, except for obligations to consummate transactions properly
initiated prior to December 17, 1999, shall terminate as of December 31, 1999
if the Closing Date has not occurred prior thereto, unless the parties hereto
agree otherwise in writing.
13. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
(OTHER THAN THE LAWS GOVERNING CONFLICT OF LAW MATTERS).
14. Entire Agreement; Waivers and Amendments. 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, superseded, discharged or
terminated only by an instrument in writing signed by each of the parties
hereto.
15. Severability of Provisions. If any provision or any portion of this
Agreement, or the application of any such provision or any portion thereof to
any Person or circumstance, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of this
Agreement, and the application of such provision or portion of such provision as
is held invalid or unenforceable to Persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby.
16. Directors and Officers of the Seller. The parties hereto acknowledge and
agree that:
(a) None of the directors and officers of the Seller (the "Seller
Directors and Officers") shall incur any personal 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, for actions taken in their capacity as directors and
officers.
(b) Without prejudice to Section 16(a) hereof, none of the Seller
Directors and Officers 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) Notwithstanding the above, nothing in this Section 16 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 PURCHASER:
/s/ Soichiro Fukutake
-----------------------------------------
Soichiro Fukutake
THE SELLER:
MCC Proceeds, Inc.
As Trustee of
The Maxwell Macmillan Realization
Liquidating Trust
By: /s/ Denis O'Connor
------------------------------------
Name: Denis O'Connor
Title: Vice President
7
