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STOCK PURCHASE AGREEMENT
between
MCC PROCEEDS, INC.
and
BERLITZ INTERNATIONAL, INC.
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Dated as of November 14, 1997
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of November 14,
1997, by and between MCC Proceeds, Inc., as Trustee of the Xxxxxxx Xxxxxxxxx
Realization Liquidation Trust (the "Seller"), and Berlitz International, Inc., a
New York Corporation (the "Purchaser").
WHEREAS, the Seller is the record and beneficial 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;
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 $2,967,865.31, or $23.5125 per
share.
(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 Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, at 11:00 A.M. local time on the date (the "Closing
Date") that is the earliest of:
(i) November 14, 1997; 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
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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
designated by the Seller. All parties to the transaction shall execute such
documents as are otherwise appropriate.
2. BERLITZ SHARES.
The term "Berlitz Shares" shall mean an aggregate of 126,225
shares of common stock, par value $.10 per share, of the Purchaser 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.
(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.
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(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) 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 Pur chaser, enforceable in accordance with its terms.
(b) No consent, license, approval, order or authorization of,
other than approval by the Purchaser's Board of Directors which will have been
obtained by the time of Closing, or registration, declaration or filing with any
Person, is required to be obtained by the Purchaser in connection with the
purchase of the Berlitz Shares by the Purchaser pursuant to and in accordance
with the terms of this Agreement or the performance by the Purchaser of its
other obligations hereunder.
(c) The purchase of the Berlitz Shares by the Purchaser
hereunder and the performance by the Purchase of its other obligations 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 Purchaser or applicable to the Berlitz Shares 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) violate any statute, law or regulation
of any jurisdiction applicable to the Purchaser or the assets or properties of
the Purchaser; 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
Purchaser under any local, state, federal or foreign law.
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(d) 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.
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.
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. PURCHASER'S COVENANTS IN THE EVENT OF A TENDER OFFER OR OTHER
OFFER TO PURCHASE.
(a) If a tender offer or a similar offer to purchase some or
all of the outstanding shares of the Purchaser is commenced or is publicly
announced by Benesse Corporation, or any affiliate thereof, (a "Tender Offer"),
within ninety (90) days of the Closing Date, the Purchaser shall pay the Seller
an amount equal to the difference between the per share purchase price offered
in such Tender Offer and
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the per share Purchase Price paid under this Agreement, multiplied by the
product of (a) the number of Berlitz Shares purchased by the Purchaser hereunder
and (b) the percentage of the outstanding shares of the Purchaser purchased in
such Tender Offer, on the closing date of such Tender Offer by wire transfer of
immediately available funds.
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. 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 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):
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(a) IF TO THE SELLER:
MCC Proceeds, Inc.
x/x Xxxxx Xxxxxxxxxx
Xx. 0 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
England
Attention: Xxxx X.X. Xxxxxxxx
Telecopier Number: 011-44-71-939-4173
(b) with copies to:
Xxxxx X'Xxxxxx
MCC Proceeds, Inc.
c/o Price Waterhouse LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. X'Xxxxxx, Esq.
Telecopier Number: (000) 000-0000
(c) IF TO THE PURCHASER:
c/o Berlitz International, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
Telecopier Number: (000) 000-0000
(d) with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopier Number: (000) 000-0000
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
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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 November 14, 1997, shall terminate as of December 1,
1997 if the Closing Date has not occurred prior thereto, unless the parties
hereto agree otherwise in writing.
14. 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).
15. 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.
16. 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.
17. 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.
(b) Without prejudice to Section 17(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.
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(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 17 shall limit
the liability of the Seller under this Agreement or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
THE PURCHASER:
BERLITZ INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President
THE SELLER:
MCC Proceeds, Inc.
As Trustee of the
Xxxxxxx Xxxxxxxxx Realization Trust
By: /s/ Xxxxx X'Xxxxxx
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Name: Xxxxx X'Xxxxxx
Title: Vice President
