Exhibit 99.6
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 2, 1998 (this "Agreement"),
between Benesse Corporation, a shareholder ("Principal Shareholder") of Berlitz
International, Inc., a New York corporation (the "Company"), and Apollo
Management IV, L.P., a Delaware limited partnership on behalf of Apollo
Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P. ("Investor").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Investor and the Company are entering into (i) a Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), pursuant to which
Investor has agreed to purchase $100,000,000 aggregate principal amount of
convertible exchangeable subordinated debentures due 2010, Series A (the
"Debentures") of the Company and (ii) an Investors Agreement, dated as of the
date hereof (the "Investors Agreement"), which contains, among other things,
provisions relating to the appointment of directors to the Board of Directors of
the Company by Investor;
WHEREAS, pursuant to a Purchase Agreement, dated as of the date hereof
(the "Benesse Purchase Agreement"), between the Company and Benesse Holdings
International, Inc., a Delaware corporation ("BHI"), BHI, an Affiliate (as
defined in the Purchase Agreement) of Principal Shareholder, has agreed to
purchase $55,000,000 aggregate principal amount of convertible exchangeable
subordinated debentures due 2010, Series B (the "Benesse Debentures") of the
Company simultaneous with the purchase by Investor of the Debentures;
WHEREAS, Principal Shareholder is the direct or indirect record holder
and beneficial holder of 6,985,338 shares, which is approximately 73.3% of the
outstanding common stock of the Company, par value $.10 per share ("Common
Stock");
WHEREAS, approval of the shareholders of the Company is necessary to
approve the issuance of the Debentures pursuant to the Purchase Agreement and
the issuance of the Benesse Debentures; and
WHEREAS, in order to induce Investor to enter into the Purchase
Agreement and the Investors Agreement, Principal Shareholder is willing to agree
to vote its Shares (as defined below) so as to (i) approve the issuance of the
Debentures and the Benesse Debentures (the "Issuance") and (ii) elect the
directors appointed by Investor pursuant to the Investors Agreement to the Board
of Directors of the Company.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein and for other good and valuable
considera tion, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Representations of Principal Shareholder. Principal Shareholder
represents that it (a) directly or through BHI is the record holder and
beneficial holder of 6,985,338 shares of Common Stock and (b) has full power and
authority to make, enter into and carry out the terms of this Agreement.
Principal Shareholder represents that this Agreement has been duly and validly
executed and delivered by Principal Shareholder and constitutes a valid and
binding obligation of Principal Shareholder, enforceable against Principal
Shareholder in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The term "Shares" includes the shares Principal Shareholder and BHI
hold on the date of this Agreement, shares that Principal Shareholder and BHI
acquire after the execution of this Agreement and shares that Principal
Shareholder or BHI transfers to its Affiliates (other than the Company or any
Subsidiary as defined in the Purchase Agreement) after the date of this
Agreement, in each case only so long as Principal Shareholder or any of its
Affiliates (including BHI but excluding the Company and its Subsidiaries) shall
continue to own such shares. Principal Shareholder agrees that neither it nor
BHI will transfer any shares of Common Stock unless the transferee has agreed in
writing with or expressly for the benefit of Investor to vote the transferred
shares as provided in Section 2 hereof and to be bound by the provisions of
Section 3 and this sentence.
2. Agreement to Vote Shares.
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(a) Principal Shareholder hereby agrees to vote, and to cause its
Affiliates to vote, the Shares, at every meeting of the shareholders of the
Company at which such matters are considered and at every adjournment thereof,
including the meeting contemplated by the Purchase Agreement, or any consent in
lieu thereof, (i) in favor of adoption and approval of the Issuance pursuant to
the Purchase Agreement and the Benesse Purchase Agreement and (ii) against any
action or agreement that would compete with, impede, or interfere with the
adoption and approval of the Purchase Agreement, the Benesse Purchase Agreement
and the Issuance or inhibit the timely consummation of the Issuance.
(b) Principal Shareholder hereby agrees to vote, and to cause its
Affiliates to vote, the Shares at every meeting of the shareholders of the
Company at which such matters are considered and at every adjournment thereof,
or any consent in lieu thereof, in favor of the directors appointed by Investor
pursuant to the Investors Agreement to the Board of Directors of the Company.
Principal Shareholder also hereby agrees not to vote, and to cause its
Affiliates not to vote, the Shares for any director competing against the
directors appointed by Investor pursuant to the Investors Agreement for
appointment to the Board of Directors of the Company.
3. No Proxy Solicitations. Principal Shareholder agrees that it will
not, nor will it permit any entity under its control to, (a) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the 0000 Xxx) in opposition to or in competition with the
consummation of the Issuance or otherwise encourage or assist any party in
taking or planning any action which would compete with or otherwise serve to
interfere with or inhibit the timely consummation of the Issuance in accordance
with the terms of the Purchase Agreement and the Benesse Purchase Agreement, (b)
directly or indirectly encourage, initiate or cooperate in a shareholders' vote
or action by consent of the Company's shareholders in opposition to or in
competition with the consummation of the Issuance or (c) become a member of a
"group" (as such term is used in Section 13(d) of the 0000 Xxx) with respect to
any voting securities of the Company for the purpose of opposing or competing
with the consummation of the Issuance.
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4. Tag-Along Right. (a) If at any time Principal Shareholder proposes
to sell, transfer or otherwise dispose ("Transfer") of (i) 80% or more of the
shares of Common Stock held by it and BHI in the Company on the date of this
agreement (a "Common Stock Tag-Along Transfer") or (ii) 50% or more of the
Benesse Debentures (a "Debenture Tag-Along Transfer" and, together with a Common
Stock Tag-Along Transfer, a "Tag-Along Transfer"), Principal Shareholder shall
afford Investor the opportunity to participate therein in accordance with this
Section 4.
(b) With respect to each Tag-Along Transfer, Investor shall have the
right to Transfer, at the same price and upon identical terms as such proposed
Tag-Along Transfer, any or all of its shares of Common Stock issuable or issued
upon conversion of the Debentures (in the case of a Common Stock Tag-Along
Transfer) or Debentures (in the case of a Debenture Tag-Along Transfer), not to
exceed the Investor's Portion.
(c) At the time a Tag-Along Transfer is proposed, the Principal
Shareholder shall give written notice to the Investor (the "Transfer Notice"),
which notice shall identify the proposed purchaser and state the number of
shares of Common Stock or principal amount of Benesse Debentures proposed to be
Transferred, the proposed offering price (including the form and terms of any
non-cash consideration to be received in connection therewith), the proposed
date of any such Transfer (the "Transfer Date") and any other material terms and
conditions of the proposed Transfer. The Transfer Notice shall also contain a
complete and correct copy of any offer to, or agreement with, the Principal
Shareholder by the proposed purchaser in connection therewith. The Principal
Shareholder shall use its best efforts to deliver the Transfer Notice at least
30 days prior to the Transfer Date and in no event shall the Principal
Shareholder provide such Transfer Notice later than 21 days prior to the
Transfer Date.
(d) If the Investor wishes to participate in the Tag-Along Transfer, it
shall provide written notice (the "Tag-Along Notice") to the Principal
Shareholder no less than seven days prior to the Transfer Date. The Tag-Along
Notice shall set forth the number of shares of Common Stock or principal amount
of Debentures that Investor elects to include in the Transfer, which shall not
exceed the Investor's Portion.
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If a Tag-Along Notice is not received by the Principal Shareholder
prior to the seven day period specified above, the Principal Shareholder shall
have the right to sell or otherwise Transfer the number of shares of Common
Stock or principal amount of Debentures specified in the Transfer Notice without
any participation by the Investor, but only on terms and conditions with respect
to the consideration paid by the proposed purchaser no more favorable (and other
material terms and conditions which a reasonable investor would consider
significant to the decision to include Common Stock or Debentures in the
Transfer no more favorable in any material respect) to the Principal Shareholder
than as stated in the Transfer Notice to the Investor, and only if such Transfer
occurs on a date within 90 days of the Transfer Date.
(e) The Investor shall not be required to make any representations and
warranties to any person in connection with any Tag-Along Transfer except as to
(i) good title and the absence of liens with respect to the Investor's
securities to be sold, (ii) the partnership or other existence of the Investor
and (iii) the authority for and the validity, binding effect and enforceability
of any agreements entered into by the Investor in connection with such Transfer.
(f) The provisions of this Section 4 shall not apply to any Transfer by
the Principal Shareholder or any of its Affiliates to another Affiliate of the
Principal Shareholder (provided that such transferee Affiliate has agreed to be
bound by this Agreement). The Principal Shareholder represents to the Investor
that it has not entered into any agreement providing for any rights inconsistent
with the rights provided to the Investors in this Section 4 and that it has not
otherwise directly or indirectly granted any such rights. The Principal
Shareholder shall not enter into any agreement providing for, or otherwise
directly or indirectly grant, any tag- along or other contractual rights to
participate, directly or indirectly, in any Tag-Along Transfer without the prior
written consent of the Investor.
(g) "Investor's Portion" shall mean (i) in the case of a Common Stock
Tag-Along Transfer, that number of Shares of Common Stock determined by
multiplying (A) the number of shares of Common Stock issued or issuable upon
conversion of the Debentures and held by the Investor
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immediately prior to the Transfer (the "Investor's Shares") by (B) a fraction,
the numerator of which is the number of shares of Common Stock to be Transferred
by Principal Shareholder and its Affiliates (including shares issuable upon
conversion of any Benesse Debentures to be transferred) and the denominator of
which is the total number of shares of Common Stock held by Principal
Shareholder and its Affiliates immediately prior to the Transfer (including
shares issuable upon conversion of the Benesse Debentures), and (ii) in the case
of a Debenture Tag-Along Transfer, that principal amount of Debentures
determined by multiplying (A) the principal amount of Debentures held by the
Investor immediately prior to the Transfer by (B) a fraction, the numerator of
which is the principal amount of Benesse Debentures to be transferred by
Principal Shareholder and its Affiliates and the denominator of which is the
total principal amount of Benesse Debentures held by Principal Shareholder and
its Affiliates immediately prior to the Transfer. If the Shares of Common Stock
or Debentures so calculated exceeds the amount that the purchaser is willing to
acquire, the number of shares of Common Stock or principal amount of Debentures
to be Transferred by Investor and Principal Shareholder shall be reduced on a
pro rata basis to the number or amount that the purchaser is willing to acquire.
If a Common Stock Tag-Along Transfer and a Debenture Tag-Along Transfer are to
occur together, Investor may choose to have the Debentures held by it counted in
determining the Investor's Portion of either Common Stock or Debentures but not
both. In such case, the Benesse Debentures shall be counted in the same manner
chosen by Investor.
5. Termination. The obligations of Principal Shareholder pursuant to
Sections 2(a) and 3 shall terminate upon the earliest to occur of (i) the
consummation of the Issuance or (ii) termination of the Purchase Agreement. The
obligations of Principal Shareholder pursuant to Section 2(b) shall terminate at
such time as Investor is no longer entitled to nominate persons for election to
the Board pursuant to the Investors Agreement. The obligations of Principal
Shareholder pursuant to Section 4 shall terminate when Investor and its
Affiliates no longer own any Debentures or Common Stock issued upon conversion
of the Debentures or the Debentures have been exchanged for Fixed Rate
Debentures (as defined in the Purchase Ageeement).
6. Investor's Representations and Agreements.
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(a) Investor represents that it has full power and authority to make,
enter into and carry out the terms of this Agreement and that this Agreement has
been duly and validly executed and delivered by Investor and constitutes a valid
and binding obligation of Investor, enforceable against Investor in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratoriums and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
(b) Investor represents that it has delivered to Principal Shareholder
a true and complete copy of the Investors Agreement and the Purchase Agreement,
and agrees that no amendment or modification of either such agreement shall
increase any obligation of Principal Shareholder hereunder unless Principal
Shareholder has consented thereto in writing.
(c) Investor agrees that, notwithstanding any provision of this
Agreement to the contrary and notwithstanding that the Company is an Affiliate
of the Principal Shareholder, the Principal Shareholder shall not be responsible
for any action or inaction by the Company or any Subsidiary (as defined in the
Purchase Agreement) of the Company which is contrary to any provision of this
Agreement.
7. Miscellaneous.
(a) No Inconsistent Agreements. Principal Shareholder has not and will
not hereafter enter into any agreement with respect to the Shares that is
inconsistent with the rights granted to Investor in this Agreement or otherwise
conflicts with the provisions hereof.
(b) Specific Performance. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis
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that the other party has an adequate remedy at law. Each party hereto severally
agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's seeking or
obtaining such equitable relief.
(c) Amendments and Waivers. This Agreement may not be amended except by
an instrument in writing signed by Principal Shareholder and Investor.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing (and shall be deemed to have been
duly given upon receipt) by delivery in person, facsimile transmission or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
7(d)):
(i) if to Principal Shareholder, to:
Benesse Corporation
Tokyo Legal Administration Office
0-00 Xxxxxx, Xxxx-Xxx
Xxxxx 000, Xxxxx
Attention: Xx. Xxxxxx Xxxx
Facsimile: 00-00-000-0000
with a copy to:
Coudert Brothers
Daini Xxxxxxxxx Xxxxxxxx, 00X
0-00-00 Xxxxxxxxx Xxxxxx-xx
Xxxxx, Xxxxx 105
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 0000-0000
(ii) if to Investor, to:
Apollo Management IV, L.P.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
and shall not be assignable by Principal Shareholder without the written consent
of the Investor, or by the Investor (other than to an Affiliate) without the
written consent of the Principal Shareholder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. All actions
and proceedings arising out of or relating to this agreement shall be brought by
the parties and heard and determined only in a Federal or State court located in
the Borough of Manhattan in the City and State of New York and the parties
hereto consent to jurisdiction before and waive any objections to the venue of
such Federal and New York courts. The parties hereto agree to accept service of
process in connection with any such action or proceeding in any manner permitted
for a notice hereunder.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired thereby,
it being intended that all of the rights and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
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(j) Entire Agreement. This Agreement is intended by the parties to be a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings with respect to such subject matter, other than those
set forth or referred to herein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
(k) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(l) Further Assurances. Each party shall cooperate and take such action
as may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors IV, L.P.,
its general partner
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Partner
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.,
its general partner
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Partner
BENESSE CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: President
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