PLAN OF EXCHANGE OF SHARES
BETWEEN
BERLITZ INTERNATIONAL, INC.
AND
BENESSE HOLDINGS INTERNATIONAL, INC.
ARTICLE I -- NAMES OF PARTICIPATING CORPORATIONS
(1) The name of the acquiring corporation is Benesse Holdings
International, Inc. ("BHI"), a Delaware corporation originally incorporated
under the name Fukutake Holdings (America), Inc.
(2) The name of the subject corporation is Berlitz International, Inc., a
New York corporation ("Berlitz").
ARTICLE II -- OUTSTANDING SHARES OF PARTICIPATING CORPORATIONS
(1) As to BHI, the designation and number of outstanding shares of each
class and series consists of 1,000 shares of common stock, par value $.01 per
share, entitled to one vote per share and 1 share of Series A Redeemable
Preferred Stock, par value $.01 per share, with no voting entitlement (other
than as may be required by the Delaware General Corporation Law).
(2) As to Berlitz, the designation and number of outstanding shares of
each class and series consists of 9,546,536 shares of common stock, par value
$.10 per share, entitled to one vote per share. The number of shares of common
stock is subject to change prior to the Effective Date (as defined below) if,
and to the extent that: (a) options to purchase shares of common stock issued
to present and former employees and directors of Berlitz are exercised; or (b)
Berlitz's 5% Convertible Exchangeable Debentures due 2011 are converted into
shares of common stock by the holders thereof.
ARTICLE III -- TERMS AND CONDITIONS OF EXCHANGE
(1) The cash consideration to be paid by BHI in exchange for the shares of
Berlitz common stock to be acquired in the Share Exchange (as defined below)
shall be $16.50 per share (the "Purchase Price").
(2) The other terms and conditions of the Share Exchange are as follows:
A. THE SHARE EXCHANGE. (i) As of the Effective Date (as defined below),
BHI shall effect a share exchange (the "Share Exchange") pursuant to which
ownership of all of the outstanding shares of common stock of Berlitz not then
owned by BHI (the "Shares") shall vest in BHI, whether or not the certificates
representing such Shares ("Certificates") have been surrendered for exchange,
and BHI shall have all such Shares registered in its name or at its direction.
As of the Effective Date, shareholders whose Shares have been so acquired shall
become entitled to receive the Purchase Price and all Certificates shall
evidence only the right to receive the Purchase Price, or, in the case of
dissenting shareholders, their appraisal rights under Section 910 and Section
623 of the New York Business Corporation Law ("NYBCL").
(ii) The Share Exchange shall have all of the effects specified in the
applicable provisions of the NYBCL.
B. EFFECTIVE DATE. BHI will cause a certificate of exchange (the
"Certificate of Exchange"), to be signed, verified and delivered to the
Department of State of the State of New York (the "Department of State") as
provided in the NYBCL. The Share Exchange shall become effective on the date on
which the Certificate of Exchange is filed by the Department of State, and such
date is referred to herein as the "Effective Date".
C. EXCHANGE OF CERTIFICATES. (i) Exchange Agent. BHI has entered into an
agreement (the "Exchange Agent Agreement") under which Citibank, N.A. has
agreed to act as exchange agent in the Share Exchange (the "Exchange Agent")
for purposes of effecting the exchange of Certificates for the Purchase Price.
(ii) Notification. At least thirty days prior to the Effective Date, BHI
will mail or cause to be mailed to each holder of record of Shares (a) a copy
of this Plan of Exchange, (b) a letter of transmittal with respect to the Share
Exchange (the "Share Exchange Letter of Transmittal") and (c) a Notice of Share
Exchange and Appraisal Rights that describes the procedures for the exercise of
appraisal rights under applicable sections of the NYBCL.
(iii) Exchange Procedures. On or immediately after the Effective Date, BHI
shall cause the Exchange Agent to pay the Purchase Price to holders who
surrender their Shares to the Exchange Agent in accordance with the
instructions contained in the Share Exchange Letter of Transmittal and the
procedures described herein, as follows:
(a) Delivery of Shares. In order for a Berlitz shareholder to receive
payment of the Purchase Price in the Share Exchange, the Exchange Agent
must receive the Share Exchange Letter of Transmittal (or a facsimile
thereof), properly completed and signed, together with any required
signature guarantees or an Agent's Message (as defined in the Share
Exchange Letter of Transmittal) in connection with a book-entry delivery of
Shares and any other documents that the Share Exchange Letter of
Transmittal requires at one of its addresses set forth in the Share
Exchange Letter of Transmittal and the shareholder must deliver
Certificates representing Shares delivered to the Exchange Agent or the
shareholder must cause his Shares to be delivered pursuant to the procedure
for book-entry transfer set forth below and the Exchange Agent must receive
Book-Entry Confirmation (as defined in the Share Exchange Letter of
Transmittal).
(b) Method of Delivery. The method of delivery of Certificates, the Share
Exchange Letter of Transmittal and all other required documents is at the
shareholder's option and sole risk, and delivery will be considered made
only when the Exchange Agent actually receives the Certificates.
(c) Book-Entry Transfer. The Exchange Agent has established an account
with respect to the Shares at the Book-Entry Transfer Facility (as defined
in the Share Exchange Letter of Transmittal) for purposes of the Share
Exchange. Any financial institution that is a participant in the system of
the Book-Entry Transfer Facility may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer the Shares into the
Exchange Agent's account at the Book-Entry Transfer Facility in accordance
with the Book-Entry Transfer Facility's procedures. However, although
Shares may be delivered through book-entry transfer into the Exchange
Agent's account at a Book-Entry Transfer Facility, the Exchange Agent must
receive the Share Exchange Letter of Transmittal (or facsimile thereof),
properly completed and signed, with any required signature guarantees, or
an Agent's Message in connection with a book-entry transfer, and any other
required documents, at one of its addresses set forth in the Share Exchange
Letter of Transmittal. Delivery of documents to the Book-Entry Transfer
Facility in accordance with its procedures does not constitute delivery to
the Exchange Agent.
(d) Signature Guarantees. A bank, broker, dealer, credit union, savings
association or other entity that is a member in good standing of the
Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion
Program (an "Eligible Institution") must guarantee signatures on all
letters of transmittal, unless the Shares tendered are tendered (a) by a
registered holder of Shares that has not completed the box labeled "Special
Payment Instructions" on the Share Exchange Letter of Transmittal or (b)
for the account of an Eligible Institution. See Instruction 2 of the Share
Exchange Letter of Transmittal.
(e) Other Instructions and Effects. If the Certificates are registered in
the name of a person other than the signer of the Share Exchange Letter of
Transmittal, or if payment is to be made to a person other than the
registered holder, then the Certificates delivered to the Exchange Agent
must
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be endorsed or accompanied by appropriate stock powers, signed exactly as
the name or names of the registered holder or holders appear on the
Certificates, with the signatures on the Certificates or stock powers
guaranteed by an Eligible Institution as provided in the Share Exchange
Letter of Transmittal and the person requesting payment shall either pay
any transfer or other taxes required by reason of payment to a person other
than the registered holder or establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not applicable. If the Certificates
are forwarded separately to the Exchange Agent, a properly completed and
duly executed Share Exchange Letter of Transmittal (or manually signed
facsimile) must accompany each delivery of Certificates.
(f) Rights of Holders. After the Effective Date each Share shall
represent only the right of its holder to receive the Purchase Price upon
its surrender or, in the case of dissenting shareholders, their appraisal
rights under Section 910 and Section 623 of the NYBCL. No interest shall be
paid or will accrue on the Purchase Price payable to holders of Shares.
(iv) Dissenting Shares. Any Shares outstanding immediately prior to the
Effective Date as to which the holder thereof shall have validly exercised such
holder's appraisal rights under Sections 623 and 910 of the NYBCL (such Shares
being hereinafter referred to as "Dissenting Shares" and such holders being
hereinafter referred to as "Dissenting Stockholders") shall not be converted
into the Purchase Price hereunder unless and until the holder thereof shall
have failed to perfect, or shall have effectively withdrawn or lost, such
holder's right to payment for such holder's Shares under Sections 623 and 910
of the NYBCL. Each Dissenting Stockholder who becomes entitled under the NYBCL
to payment for his Dissenting Shares shall receive payment therefor after the
Effective Date from Berlitz (but only after the amount thereof shall have been
agreed upon or finally determined pursuant to the procedures specified in the
NYBCL) and any Certificates relating to such Shares shall be cancelled.
(v) No Further Ownership Rights in Shares. From and after the Effective
Date, the holders of Certificates shall cease to have any rights with respect
to the Shares represented by such Certificates, except as otherwise provided
for under the terms of the Share Exchange or under applicable law. From the
date of termination of the Exchange Agent Agreement, Certificates presented to
BHI shall be cancelled and exchanged in accordance with the terms and
conditions of the Share Exchange.
(vi) Termination of Fund; No Liability. Upon the termination of the
Exchange Agent Agreement and payment of all outstanding fees and expenses to
the Exchange Agent, the Exchange Agent will be required to deliver to BHI any
funds which had been made available to the Exchange Agent and which have not
been disbursed to holders of Shares, and thereafter such holders shall be
entitled to look to BHI and Berlitz (subject to abandoned property, escheat or
other applicable laws) only as general creditors thereof with respect to the
Purchase Price payable upon due surrender of their Shares, without any interest
thereon. Notwithstanding the foregoing, none of BHI, Berlitz or the Exchange
Agent shall be liable to any holder of any Shares for the Purchase Price
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(vii) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
BHI, the posting by such person of a bond in such reasonable amount as BHI may
direct as indemnity against any claim that may be made against it with respect
to such Certificate, the Exchange Agent (or, in the event of the termination of
the Exchange Agent Agreement, BHI) shall pay the Purchase Price in exchange for
such lost, stolen or destroyed Certificate.
(viii) Abandonment. If, at any time prior to the filing of the certificate
of exchange by the Department of State, BHI is prevented by law or legal
process from effecting the Share Exchange, this Plan of Exchange may be
abandoned by the board of directors of BHI. The filing of a certificate of
exchange by the Department of State shall conclusively establish that this plan
has not been abandoned.
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