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EXHIBIT 99(b)
REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
THIS REIMBURSEMENT AND INDEMNIFICATION AGREEMENT (the "Agreement") is
made and entered into as of September 15, 2000 by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
The ▇▇▇▇▇▇▇ Family Foundation; The ▇▇▇▇▇▇▇ Charitable Remainder Unitrust #97-1,
▇▇▇▇ ▇. ▇▇▇▇▇ and The Garen Family Foundation and (each, an "Indemnitor"), and
Learning Tree International, Inc. ("Learning Tree") with reference to the
following facts and circumstances:
A. Indemnitors are shareholders of Learning Tree, and intend to sell certain
other shares pursuant to a private placement (the "Offering").
B. The potential buyers in the Offering have requested that Learning Tree
provide certain representations and warranties, and file and keep effective a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission relating to the shares being purchased in the Offering, all
as provided in Securities Purchase Agreements.
C. As an inducement for Learning Tree to provide such representations and
warranties and to undertake the filing of the Registration Statement, and to
sign the Securities Purchase Agreements, Indemnitors wish to reimburse Learning
Tree for any expenses of, and to indemnify Learning Tree against liabilities
arising from, the Offering or the Registration Statement.
NOW, THEREFORE, the parties agree as follows:
1. Reimbursement of Costs. Indemnitors jointly and severally agree to
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reimburse Learning Tree for any costs incurred by it in connection with
the Offering or the Registration Statement, including but not limited
to fees to the Securities and Exchange Commission or any state
agencies, as well as to accountants and attorneys.
2. Indemnification.
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2.1 Indemnity. Indemnitors jointly and severally agree to indemnify
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and hold Learning Tree, its officers, directors, employees, agents and
attorneys harmless from and against any losses suffered as a result of
a claim based on or related to the Offering or the Registration
Statement (a "Claim").
2.2 Procedure.
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2.2.1 Notice. Promptly upon receipt by Learning Tree of a
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notice of a Claim, Learning Tree shall give written notice thereof to
Indemnitors, although failure to do so shall not affect the right to
indemnification except to the extent of actual prejudice.
2.2.2 Cooperation. Indemnitors and Learning Tree shall
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cooperate in determining the validity of any Claim, and shall also use
all reasonable efforts to minimize all losses suffered as a result of a
Claim. In any case, Indemnitors and Learning Tree shall cooperate and
assist each other in such defense, and shall make available to the
other all records, documents and information (written or otherwise)
relevant to such defense.
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2.3 Contribution. In order to provide for the just and equitable
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contribution, if a claim for indemnification is found unenforceable in
a final judgment by a court of competent jurisdiction (not subject to
further appeal) despite the fact that the express provisions hereof
provide for indemnification in such case, the Indemnified Person and
the Indemnitors shall contribute to the Losses to which the Indemnified
Person may be subject in accordance with the relative benefits received
by, and the relative fault of, each in connection with the statements,
acts or omissions which resulted in such Losses.
3. Rights Among Indemnitors. Although an Indemnified Person may proceed
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against any Indemnitor, each Indemnitor agrees to contribute to any
payments required to be made hereunder to an Indemnified Person in
proportion to the percentages of shares sold in the Offering (the
"Contribution Percentages"). If any Indemnitor does not contribute his
Contribution Percentage despite the good faith efforts of another
Indemnitor, then the Contribution Percentage of the other Indemnitors
shall be increased by disregarding that of the non-contributing
Indemnitor until such Indemnitor does contribute pursuant to this
Section 2. Any contribution by an Indemnitor shall also include
interest at the rate of 10% per annum from the date of the payment to
the Indemnified Person to the date of contribution. Any decision to be
made hereunder by the Indemnitors may be made by Indemnitors holding a
majority in interest of the Indemnitors, who shall have no liability
for decisions made in good faith.
4. Miscellaneous
4.1 Amendments and Waivers.
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4.1.1 Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement,
or in the case of a waiver, by the party against whom the waiver is to
be effective.
4.1.2 No failure or delay by any party in exercising any
right, power or privilege hereunder will operate as a waiver thereof
nor will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided will be cumulative
and not exclusive of any rights or remedies provided by law.
4.2 Successors and Assigns. The provisions of this Agreement will be
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binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign,
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delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto.
4.3 No Third Party Beneficiaries. This Agreement is for the sole
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benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied will give or be construed to give to any
Person, other than the parties hereto and such permitted assigns any
legal or equitable rights hereunder.
4.4 Governing Law. This Agreement will be governed by, and construed
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in accordance with, the law of the State of California, without regard
to the conflict of laws rules of such state.
4.5 Attorneys' Fees. In any dispute between the parties hereto or
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their representatives concerning any provision of this Agreement or the
rights and duties of any person or entity hereunder, the party or
parties prevailing in such dispute shall be entitled, in addition to
such other relief as may be granted, to the attorneys' fees and court
costs incurred by reason of such dispute.
4.6 Jurisdiction. Except as otherwise expressly provided in this
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Agreement, any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be
brought in any court of competent
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jurisdiction in Los Angeles, California or the United States District
Court for the Central District of California and each of the parties
hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient form. Process in any such
suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
4.7 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
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IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
4.8 Counterparts. This Agreement may be signed in any number of
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counterparts, each of which will be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
4.9 Headings. The headings in this Agreement are for convenience of
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reference only and will not control or affect the meaning or
construction of any provisions hereof.
4.10 Entire Agreement. This Agreement constitutes the entire agreement
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among the parties with respect to the subject matter of this Agreement.
This Agreement and the Stock Purchase Agreement (including any
ancillary agreements entered into in connection therewith) supersede
all prior agreements and understandings, both oral and written, between
the parties with respect to the subject matter hereof of this
Agreement.
4.11 Severability. If any provision of this Agreement or the
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application of any such provision to any person or circumstance is held
invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision hereof.
4.12 Certain Interpretive Matters. No provision of this Agreement will
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be interpreted in favor of, or against, any of the parties hereto by
reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to
which any such provision is inconsistent with any prior draft hereof or
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Family Foundation The Garen Family Foundation
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By_______________________________
By_________________________________ Its _____________________________
Its _______________________________
The ▇▇▇▇▇▇▇ Charitable Remainder ▇▇▇▇▇▇▇▇ #▇▇-▇
By_________________________________
Its _______________________________
Learning Tree International, Inc.
By____________________________________
Its___________________________________