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EXHIBIT 99(a)
FORM OF
STOCK PURCHASE AGREEMENT
David C. Collins
Eric R. Garen
The Collins Family Foundation
The Collins Charitable Remainder Unitrust #97-1
The Garen Family Foundation
c/o Learning Tree International, Inc.
6053 West Century Boulevard
Los Angeles, California 90045-0028
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
This Stock Purchase Agreement (the "Agreement") is made as of the date set forth
below among Learning Tree International, Inc., a Delaware corporation (the
"Company"), David C. Collins, Eric R. Garen, The Collins Family Foundation, The
Collins Charitable Remainder Unitrust #97-1 and The Garen Family Foundation (Mr.
Collins, Mr. Garen and The Collins Family Foundation, The Collins Charitable
Remainder Unitrust #97-1 and The Garen Family Foundation, collectively, the
"Sellers"), and the Investor.
Mr. Collins, Mr. Garen, The Collins Family Foundation; The Collins Charitable
Remainder Unitrust #97-1 and The Garen Family Foundation desire to sell up to
1,470,000, 25,000, 5,000, 1,400,000 and 100,000 shares, respectively,
(collectively, the "Shares") of common stock of the Company, $.0001 par value
per share (the "Common Stock") in a private placement (the "Offering").
The Sellers and the Investor agree that the Investor will purchase from the
Sellers and the Sellers collectively will sell to the Investor, on a pro rata
basis based on the maximum number of Shares proposed to be sold by each Seller,
____________ Shares at a purchase price of Forty Seven Dollars ($47) per Share,
or an aggregate purchase price of $____________________, pursuant to the Terms
and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by this reference as if fully set forth herein. Unless
otherwise requested by the Investor in Exhibit A, certificates representing the
Shares purchased by the Investor will be registered in the Investor's name and
address as set forth below.
The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
(If no exceptions, write "none." If left blank, response will be deemed
to be "none.")
The Company hereby acknowledges that it has received good, valuable and
sufficient consideration in connection with its execution of this Agreement and
the performance of its obligations hereunder.
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Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
<TABLE>
<S> <C>
Dated as of: September __, 2000
_____________________________________________________
"INVESTOR"
By:__________________________________________________
Print Name:__________________________________________
Title:_______________________________________________
Address:_____________________________________________
AGREED AND ACCEPTED:
LEARNING TREE INTERNATIONAL, INC.
By:________________________________________________
Title:_____________________________________________
___________________________________________________ ________________________________________
David C. Collins Eric R. Garen
The Collins Family Foundation The Garen Family Foundation
By____________________________________________ By_______________________________________________
David C. Collins, Secretary Eric R. Garen, Trustee
By____________________________________________ By_______________________________________________
Mary C. Collins, President Nancy Garen, Trustee
The Collins Charitable Remainder Unitrust #97-1
By____________________________________________
David C. Collins, Trustee
By____________________________________________
Mary C Collins, Trustee
</TABLE>
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Annex I
Terms and Conditions for Purchase of Shares
1. Agreement to Sell and Purchase the Shares; Subscription Date.
1.1 Purchase and Sale. At the Closing (as defined in Section 2),
the Sellers will collectively sell to the Investor, and the Investor
will purchase from the Sellers, on a pro rata basis based on the
maximum number of Shares proposed to be sold in the Offering by each
Seller, upon the terms and conditions hereinafter set forth, the
number of Shares set forth on the signature page to which these Terms
and Conditions for Purchase of Shares are attached as Annex I (the
"Signature Page") at the purchase price set forth on such Signature
Page.
1.2 Other Investors. As part of the Offering, the Sellers and the
Company propose to enter into this same form of Stock Purchase
Agreement (including the same price per share) with certain other
investors (the "Other Investors"), and the Sellers expect to complete
sales of Shares to them. (The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and
this Agreement and the Stock Purchase Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the
"Agreements.") The Sellers will accept executed Agreements from
Investors for the purchase of Shares commencing upon the date on which
the Sellers provide the Investors with the proposed purchase price per
Share and concluding upon the date (the "Subscription Date") on which
the Sellers have (i) executed Agreements with the Investors for the
purchase of at least 2,500,000 Shares and (ii) notified U.S. Bancorp
Piper Jaffray Inc. (in its capacity as Placement Agent for the Shares,
the "Placement Agent") in writing that they are no longer accepting
Agreements for the purchase of shares in the Offering.
1.3 Placement Agent Fee. Investor acknowledges that the Sellers
intend to pay the Placement Agent a fee in respect of the sale of
Shares to the Investor. The Investor`s obligations under this
Agreement are conditioned upon the payment by the Sellers of such fee
to the Placement Agent.
2. Delivery of the Shares at Closing. The completion of the purchase and
sale of the Shares (the "Closing") shall occur not later than September 29,
2000 at a place and time (the "Closing Date") to be specified by the
Sellers and the Placement Agent, and of which the Investors will be
notified in advance by the Placement Agent. At the Closing, the Sellers
shall deliver to the Investor one or more stock certificates representing
the number of Shares set forth on the signature page hereto, each such
certificate to be registered in the name of the Investor or, if so
indicated on the Stock Certificate Questionnaire attached hereto as Exhibit
A, in the name of a nominee designated by the Investor.
The Sellers' obligation to sell the Shares to the Investor shall be subject
to the following conditions, any one or more of which may be waived by the
Sellers: (a) receipt by the Sellers of the purchase price for the Shares being
purchased hereunder as set forth on the Signature Page hereto; (b) completion of
purchases and sales under the Agreements with the Other Investors; and (c) the
accuracy of the representations and warranties made by the Investors and the
fulfillment of those undertakings of the Investors to be fulfilled prior to the
Closing.
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The Investor's obligation to purchase the Shares shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
2,500,000 Shares;
(b) the Closing of the purchase and sale of the Shares shall occur on or
before September 29, 2000;
(c) the representations and warranties made by the Company in this
Agreement shall be accurate in all material respects and the undertakings of the
Company shall have been fulfilled in all material respects on or before the
Closing; and
Subject to clauses (a) through (c) above, the Investor's obligations are
expressly not conditioned on the purchase by any or all of the other Investors
of the Shares that they have agreed to purchase from the Company.
3. Representations, Warranties and Covenants of the Sellers and the
Company. Except as otherwise described in the Company's Annual Report on Form
10-K for the year ended September 30, 1999, the Company's Proxy Statement for
its 2000 Annual Meeting of Stockholders, or the Company's Quarterly Reports on
Form 10-Q for the quarters ended December 31, 1999, March 31, 2000 and June 30,
2000 (collectively, the "SEC Reports"), the Sellers and the Company hereby
represent and warrant to, and covenant with, the Investor, as follows:
3.1 Organization. Each of the Company and its Subsidiaries (as
defined in Rule 405 under the Securities Act of 1933, as amended
(the "Securities Act")) is duly incorporated and validly existing in
good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries has full
power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and is registered or
qualified to do business and in good standing in each jurisdiction
in which it owns or leases property or transacts business and where
the failure to be so qualified would have a material adverse effect
upon the business, financial condition, properties or operations of
the Company and its Subsidiaries, taken as a whole ("Material
Adverse Effect"), and no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
3.2 Due Authorization. The Company and each of the Sellers has all
requisite power and authority to execute, deliver and perform their
obligations under the Agreements, and the Agreements have been duly
authorized and validly executed and delivered by the Company and
each of the Sellers and constitute legal, valid and binding
agreements of the Company enforceable against the Company and each
of the Sellers in accordance with their terms, except as rights to
indemnity and contribution may be limited by state or federal
securities laws or the public policy underlying such laws, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability
may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
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3.3 Non-Contravention. The execution and delivery of the Agreements,
the sale of the Shares to be sold by the Sellers under the
Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A)
conflict with or constitute a violation of, or default (with the
passage of time or otherwise) under, (i) any material bond,
debenture, note or other evidence of indebtedness, or any material
lease, contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company,
any of its Subsidiaries or any of the Sellers is a party or by which
the Company, any of its Subsidiaries or any of the Sellers or their
respective properties are bound, where such conflict, violation or
default is reasonably expected to result in a Material Adverse
Effect or to prevent any of the Sellers from selling the Shares
pursuant to this Agreement, (ii) the charter, by-laws or other
organizational documents of the Company or any of its Subsidiaries
or (as applicable) any of the Sellers, or (iii) any law,
administrative regulation, ordinance or order of any court or
governmental agency, arbitration panel or authority binding upon the
Company or any of its Subsidiaries or their respective properties,
where such conflict, violation or default is likely to result in a
Material Adverse Effect or to prevent any of the Sellers from
selling the Shares pursuant to this Agreement. No consent, approval,
authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other
governmental body in the United States is required for the execution
and delivery of the Agreements by the Company or the Sellers and the
sale of the Shares by the Sellers pursuant to this Agreement, other
than such as have been made or obtained, and except for any filings
required to be made under federal or state securities laws.
3.4 Capitalization. The capitalization of the Company as of June 30,
2000 is as described in the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2000. The Company has not issued any capital stock since
June 30, 2000 other than pursuant to the exercise of employee stock options
under the stock option plans disclosed in the SEC Reports. The outstanding
shares of capital stock of the Company, including the Shares, have been duly and
validly issued and are fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and were not issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. Except for options issued under the Company's stock option
plans, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any unissued shares of capital stock or other equity
interest in the Company or any of its Subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind, in either case to which the
Company or any of its Subsidiaries is a party and providing for the issuance or
sale of any capital stock of the Company or any of its Subsidiaries, any such
convertible or exchangeable securities or any such rights, warrants or options.
Without limiting the foregoing, no co-sale right, registration right, right of
first refusal or other similar right exists with respect to the sale of the
Shares. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company or any of the
Sellers is a party. The Company owns the entire equity interest in its
Subsidiaries, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest, except for record ownership of
qualifying shares where required by applicable law. Subject to the accuracy of
the Investor's representations and warranties in Section 4 of this Agreement,
the offer, sale, and issuance of the Shares in conformity with the terms of this
Agreement constitute transactions exempt from the registration requirements of
Section 5 of the Securities Act and from the registration or qualification
requirements of the laws of any applicable state or United States jurisdiction.
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3.5 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company or the Sellers,
threatened, to which the Company or any of its Subsidiaries is a party or of
which the business or property of the Company or any of its Subsidiaries is
subject. The Company is not in default with respect to any judgment, order or
decree of any court or governmental agency or instrumentality which, singly or
in the aggregate, would likely have a Material Adverse Effect.
3.6 No Violations. Neither the Company nor any of its Subsidiaries
is in violation of its charter, bylaws or other organizational
documents, or in violation of any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or any of its
Subsidiaries, which violation, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect, nor is the
Company or any of its Subsidiaries in default (and there exists no
condition which, with the passage of time or otherwise, would
constitute a default) in the performance of any material bond,
debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or any other material agreement
or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or
by which the property of the Company or any of its Subsidiaries is
bound, which is reasonably likely to have a Material Adverse Effect.
3.7 Governmental Permits, Etc. Each of the Company and its
Subsidiaries has all necessary franchises, licenses, certificates
and other authorizations from any foreign, federal, state or local
government or governmental agency, department or body that are
currently necessary for the operation of the business of the Company
and its Subsidiaries as currently conducted, except where the
failure to currently possess such franchises, licenses, certificates
and other authorizations is not reasonably expected to have a
Material Adverse Effect.
3.8 Intellectual Property.
(a) Except for matters which are not reasonably likely to have a
Material Adverse Effect, (i) each of the Company and its
Subsidiaries has ownership or license or other legal right to
use all patent, patent application, copyright, trade secret,
trademark, trademark application, customer lists, designs,
manufacturing or other processes, computer software, systems,
data compilation, research results or other proprietary rights
used in the business of the Company or its Subsidiaries
(collectively, "Intellectual Property") (ii) all of the
Intellectual Property owned by the Company or the Subsidiaries
consisting of patents, registered trademarks and registered
copyrights have been duly registered in, filed in or issued by
the United States Patent and Trademark Office, the United States
Register of Copyrights or the corresponding offices of other
jurisdictions and have been maintained and renewed in accordance
with all applicable provisions of law and administrative
regulations in the United States and/or such other
jurisdictions; (iii) the Company is not subject to any judgment,
order, writ, injunction or decree of any court or any Federal,
state, local, foreign or other governmental department,
commission, board, bureau, agency or instrumentality, domestic
or foreign, or any arbitrator, and has not entered into or is
not a party to any contract which restricts or impairs the use
of any such Intellectual Property; (iv) the Company has not
entered into any consent, indemnification, forbearance to sue or
settlement agreement with
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respect to Intellectual Property other than in the ordinary
course of business; and (v) to the knowledge of the Company and
the Sellers, no person is infringing on or violating the
Intellectual Property.
(b) Except for matters which are not reasonably likely to have a
Material Adverse Effect, all material licenses or other material
agreements under which (i) the Company or any of its
Subsidiaries employs rights in Intellectual Property, or (ii)
the Company or any of its Subsidiaries has granted rights to
others in Intellectual Property owned or licensed by the Company
or any of its Subsidiaries, are in full force and effect and, to
the knowledge of the Sellers and the Company, there is no
default by the Company or any of its Subsidiaries thereto.
(c) The Sellers and the Company believe the Company has taken
all steps required in accordance with sound business practice
and business judgment to establish and preserve the Company's
ownership of all material Intellectual Property owned by the
Company or the Subsidiaries.
(d) Except for matters which are not reasonably likely to have
a Material Adverse Effect, to the knowledge of the Sellers and the Company, (i)
the present business, activities and products of the Company and its
Subsidiaries do not infringe any intellectual property of any other person; (ii)
neither the Company nor any of its Subsidiaries is making unauthorized use of
any confidential information or trade secrets of any person; (iii) the
activities of any of the employees on behalf of the Company or any of its
Subsidiaries do not violate any agreements or arrangements related to
confidential information or trade secrets of persons other than the Company or
its Subsidiaries or restricting any such employee's engagement in business
activities of any nature; (iv) no action, suit, arbitration, or legal,
administrative or other proceeding, or investigation is pending or threatened
which involves any Intellectual Property nor is there any reasonable basis
therefor, and (v) to the knowledge of the Company and the Sellers, there exists
no unexpired patent or patent application which includes claims that would be
infringed by the Intellectual Property or otherwise have a Material Adverse
Effect.
(e) No proceedings are pending which challenge the rights of the
Company or any of its Subsidiaries in respect of the Company's
or any of its Subsidiaries' right to the use of the Intellectual
Property, except for matters which are not reasonably likely to
have a Material Adverse Effect.
3.9 Financial Statements. The consolidated financial statements of
the Company and the related notes contained in the SEC Reports
present fairly, in accordance with generally accepted accounting
principles, the consolidated financial position of the Company and
its Subsidiaries as of the dates indicated, and the results of their
operations and cash flows for the periods therein specified,
subject, in the case of unaudited financial statements for interim
periods, to normal year-end audit adjustments. Such consolidated
financial statements (including the related notes) have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein
specified, except that unaudited financial statements may not
contain all footnotes required by generally accepted accounting
principles.
3.10 No Material Adverse Change. Since June 30, 2000, there has not
been (i) any Material Adverse Effect, (ii) neither the Company nor
any of its Subsidiaries have incurred any obligation, direct or
contingent, that is material to the Company or any
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of its Subsidiaries considered as one enterprise, except obligations
incurred in the ordinary course of business, (iii) any dividend or
distribution of any kind declared, paid or made on the capital stock
of the Company, or (iv) any loss or damage (whether or not insured) to
the physical property of the Company or any of its Subsidiaries which
has been sustained which has a Material Adverse Effect.
3.11 NASDAQ Compliance. The Company's Common Stock is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and is listed on the NASDAQ National Market (the "NASDAQ
Stock Market"), and the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from the
NASDAQ Stock Market. The Company and the Sellers are not aware of and have not
received any notice of, any efforts or actions to terminate the registration of
the Common Stock under the Exchange Act or delisting the Common Stock from the
Nasdaq Stock Market.
3.12 Reporting Status. The Company has timely made all filings
required under the Exchange Act during the 12 months preceding the
date of this Agreement, and all of those documents complied in all
material respects with the SEC's requirements as of their respective
filing dates, and the information contained therein as of the
respective dates thereof did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading.
3.13 Foreign Corrupt Practices. Neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Sellers, any agent or other
person acting on behalf of the Company or any of its Subsidiaries, has
(i) directly or indirectly, used any corporate funds of the Company or
any Subsidiary for unlawful contributions, gifts, entertainment or
other unlawful expenses related to foreign or domestic political
activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds of the Company or any
Subsidiary, (iii) failed to disclose fully any contribution made by
the Company or any of its Subsidiaries or made by any person acting on
behalf of the Company or any of its Subsidiaries and of which the
Company is aware in violation of law or (iv) caused the Company or any
Subsidiary to violate in any material respect any provision of the
Foreign Corrupt Practices Act of 1977, as amended.
3.14 No Manipulation of Stock. The Company has not taken and will not,
in violation of applicable law, take any action outside the ordinary
course of business designed to or that might reasonably be expected to
cause or result in unlawful manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
3.15 Accountants. To the knowledge of the Sellers, Arthur Andersen
LLP, who expressed their opinion with respect to the consolidated
financial statements to be incorporated by reference from the
Company's Annual Report on Form 10-K for the year ended September 30,
1999 into the Registration Statement (as defined below) and the
Prospectus which forms a part thereof, are independent accountants as
required by the Securities Act and the rules and regulations
promulgated thereunder (the "Rules and Regulations").
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3.16 Contracts. Except for matters which are not reasonably likely
to have a Material Adverse Effect, the contracts listed as exhibits
to the SEC Reports that are material to the Company are in full
force and effect on the date hereof, and none of the Company, its
Subsidiaries nor, to the Sellers' knowledge, any other party to such
contracts is in breach of or default under any of such contracts.
3.17 Environmental. Except for matters which are not, singly or in
the aggregate, likely to have a Material Adverse Effect,
(a) the Company is in compliance with all applicable
Environmental Laws (as defined below);
(b) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in
compliance with the requirements of such permits
authorizations and approvals;
(c) there are no pending or, to the knowledge of the Company and
the Sellers, threatened Environmental Claims against the
Company; and
(d) under applicable law, to the knowledge of the Company and
the Sellers, there are no circumstances with respect to any
property or operations of the Company that are reasonably
likely to form the basis of an Environmental Claim against the
Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
3.18 Labor Matters. Except for matters not reasonably likely to
have a Material Adverse Event, no labor dispute with the employees
of the Company exists or, to the knowledge of the Company and the
Sellers, is imminent.
3.19 Compliance. Except for matters not reasonably likely to have a
Material Adverse Event, to the knowledge of the Company and the
Sellers, the Company has conducted and is conducting its business in
compliance with all applicable Federal, state, local and foreign
statutes, laws, rules, regulations, ordinances, codes, decisions,
decrees, directives and orders.
3.20 Properties. Except for matters not reasonably likely to have a
Material Adverse Event, (i) the Company has good title to its
properties, free and clear of all security interests, mortgages,
pledges, liens, charges, encumbrances and claims of record; (ii) the
properties of the Company are, in the aggregate, in good repair
(reasonable wear and tear excepted), and suitable for their
respective uses; (iii) any real property held under lease by the
Company is held under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with
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the conduct of the business of the Company; and (iv) the Company
owns or leases all such properties as are necessary to its business
or operations as now conducted.
3.21 Taxes. Except for matters which are not reasonably expected to
have a Material Adverse Effect, the Company has filed all necessary federal,
state and foreign income and franchise tax returns, which returns are true and
correct in all material respects, and has paid or accrued all taxes shown as due
thereon, and the Sellers have no knowledge of a tax deficiency which has been or
might be asserted or threatened against the Company.
3.22 Transfer Taxes. On the Closing Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Shares hereunder
will be, or will have been, fully paid or provided for by the
Sellers and all laws imposing such taxes will be or will have been
fully complied with.
3.23 Investment Company. The Company is not an "investment company"
or an "affiliated person" of, or "promoter" or "principal
underwriter" for an investment company, within the meaning of the
Investment Company Act of 1940, as amended.
3.24 Insurance. The Company and its Subsidiaries maintain and will
continue to maintain insurance of the types and in the amounts that
the Sellers reasonably believe is adequate for the Company's
businesses, including, but not limited to, insurance covering real
and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against by similarly
situated companies, all of which insurance is in full force and
effect.
3.25 Prior Offerings. All offers and sales of capital stock of the
Company before the date of this Agreement were at all relevant times
duly registered or exempt from the registration requirements of the
Securities Act and were duly registered or subject to an available
exemption from the registration requirements of the applicable state
securities or Blue Sky laws.
3.26 Legal Opinion. The Sellers shall cause counsel to the Sellers
and/or the Company to deliver to the Investors and the Placement
Agent a legal opinion in the form attached hereto as Exhibit 3.26.
3.27 Offering Materials. Neither the Company nor the Sellers have
distributed and will not distribute prior to the Closing Date any
substantive offering materials in connection with the Offering other
than those provided to the Investor. Neither the Company nor the
Sellers have in the past nor will they hereafter take any action to
sell, offer for sale or solicit offers to buy any securities of the
Company which would bring the offer or sale of the Shares as
contemplated by this Agreement within the provisions of Section 5 of
the Securities Act.
4. Representations, Warranties and Covenants of the Investor.
4.1 Investor Knowledge and Status. The Investor represents and
warrants to, and covenants with, the Company and the Sellers that:
(i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act and the
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Investor is also knowledgeable, sophisticated and experienced in
making, and is qualified to make decisions with respect to,
investments in securities presenting an investment decision like
that involved in the purchase of the Shares, including investments
in securities issued by the Company and investments in comparable
companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to
purchase the Shares; (ii) the Investor is acquiring the number of
Shares set forth on the Signature Page hereto in the ordinary course
of its business and for its own account for investment only, has no
present intention of distributing any of such Shares and has no
arrangement or understanding with any other persons regarding the
distribution of such Shares; (iii) the Investor will not, directly
or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares except in compliance with the
Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder; (iv) the Investor has
answered all questions on the Signature Page hereto and the Investor
Questionnaire attached hereto as Exhibit B for use in preparation of
the Registration Statement and the answers thereto are true and
correct as of the date hereof and will be true and correct as of the
Closing Date; (v) the Investor will notify the Company immediately
of any change in any of such information until such time as the
Investor has sold all of its Shares or until the Company is no
longer required to keep the Registration Statement effective; and
(vi) the Investor has, in connection with its decision to purchase
the number of Shares set forth on the Signature Page hereto, relied
only upon the representations and warranties of the Company and the
Sellers contained herein. Investor understands that its acquisition
of the Shares has not been registered under the Securities Act, or
registered or qualified under any state securities law in reliance
on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor's
investment intent as expressed herein. The Placement Agent is not
authorized to make any representation or use any information in
connection with the placement, purchase and sale of the Shares, and
no person is authorized to provide any representations which is
inconsistent or in addition to those in the SEC Reports. The
Investor acknowledges that it has not received or relied on any such
representations.
4.2 International Actions. The Investor acknowledges, represents
and agrees that no action has been or will be taken in any
jurisdiction outside the United States by the Company, the Sellers
or the Placement Agent that would permit an offering of the Shares,
or possession or distribution of offering materials in connection
with the issue of the Shares, in any jurisdiction outside the United
States. If the Investor is located outside the United States, it has
or will take all actions necessary for the sale of the Shares to
comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares
or has in its possession or distributes any offering material, in
all cases at its own expense.
4.3 Registration Required. The Investor hereby covenants with the
Company not to make any sale of the Shares without complying with
the provisions of this Agreement, including Section 6.2 hereof, and
without effectively causing the prospectus delivery requirement
under the Securities Act to be satisfied, and the Investor
acknowledges that the certificates evidencing the Shares will be
imprinted with a legend that prohibits their transfer except in
accordance therewith. The Investor acknowledges that there may
occasionally be times when the Company, based on the advice of its
counsel, determines that it must suspend the use of the
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<PAGE>
Prospectus forming a part of the Registration Statement until such
time as an amendment to the Registration Statement has been filed by
the Company and declared effective by the SEC or until the Company
has amended or supplemented such Prospectus.
4.4 Power and Authority. The Investor further represents and
warrants to, and covenants with, the Company and the Sellers that
(i) the Investor has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii)
this Agreement constitutes a valid and binding obligation of the
Investor enforceable against the Investor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as the indemnification
agreements of the Investors herein may be legally unenforceable.
4.5 No Dispositions. Investor will not, prior to the effectiveness
of the Registration Statement, sell, offer to sell, solicit offers
to buy, dispose of, loan, pledge or grant any right with respect to
(collectively, a "Disposition"), the Common Stock Company, nor will
Investor engage in any hedging or other transaction which is
designed to or could reasonably be expected to lead to or result in
a Disposition of Common Stock by the Investor or any other person or
entity. Such prohibited hedging or other transactions would include,
without limitation, effecting any short sale or having in effect any
short position (whether or not such sale or position is against the
box and regardless of when such position was entered into) or any
purchase, sale or grant of any right (including, without limitation,
any put or call option) with respect to the Common Stock or with
respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of
its value from the Common Stock. This paragraph does not prohibit
the sale of Common Stock already held by Investor prior to the date
hereof, to the extent that the Investor represents and warrants that
it did not acquire any such shares in contemplation of the purchase
of the Shares, and did not contemplate selling the existing shares
as in conjunction with the purchase of the Shares.
4.6 No Tax or Legal Advice. The Investor understands that nothing
in this Agreement, or any other materials presented to the Investor
in connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase
of Shares.
5. Survival of Representations, Warranties and Agreements; Limitation.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Sellers and the Investor herein shall survive the
execution of this Agreement, the delivery to the Investor of the Shares being
purchased and the payment therefor. In no case shall any Seller be liable under
this Agreement for more than the amount of the proceeds it received from the
sale of its portion of the Shares hereunder.
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<PAGE>
6. Registration of the Shares; Compliance with the Securities Act.
6.1 Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the
investors, prepare and file with the SEC, as soon as
practicable, but in no event later than ten business days
after the Closing Date, a registration statement on Form S-3
(the "Registration Statement") to enable the resale of the
Shares by the Investors from time to time through the
automated quotation system of the NASDAQ Stock Market or in
privately-negotiated transactions.
(b) use its reasonable efforts, subject to receipt of necessary
information from the Investors, to cause the Registration
Statement to become effective as soon as practicable, but in
no event later than seventy-five (75) days after the
Registration Statement is filed by the Company;
(c) use its reasonable efforts to prepare and file with the SEC
such amendments and supplements to the Registration Statement
and the Prospectus used in connection therewith as may be
necessary to keep the Registration Statement current and
effective for a period not exceeding, with respect to each
Investor's Shares purchased hereunder, the earlier of (i) the
second anniversary of the Closing Date, (ii) the date on which
the Investor may sell all Shares then held by the Investor
without restriction by the volume limitations of Rule 144(e)
of the Securities Act or (iii) such time as all Shares
purchased by such Investor in this Offering have been sold
pursuant to a registration statement;
(d) furnish to the Placement Agent and to the Investor with
respect to the Shares registered under the Registration
Statement such number of copies of the Registration Statement,
Prospectuses and preliminary versions of the Prospectus filed
with the Securities Exchange Commission ("Preliminary
Prospectuses") in conformity with the requirements of the
Securities Act and such other documents as the Investor may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by the Investor,
provided, however, that the obligation of the Company to
deliver copies of Prospectuses or Preliminary Prospectuses to
the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will
comply with the applicable provisions of the Securities Act
and of such other securities or blue sky laws as may be
applicable in connection with any use of such Prospectuses or
Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states reasonably specified in writing by the
Investor in writing prior to the effectiveness of the
Registration Statement, provided, however, that the Company
shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now
so qualified or has not so consented;
(f) advise the Investors, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order
by the SEC delaying or
11
<PAGE>
suspending the effectiveness of the Registration Statement or
of the initiation of any proceeding for that purpose; and it
will promptly use its commercially reasonable efforts to
prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order
should be issued;
(g) with a view to making available to the Investor the
benefits of Rule 144 (or its successor rule) and any other
rule or regulation of the SEC that may at any time permit the
Investor to sell Shares to the public without registration,
the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) such date as all
of the Investor's Shares may be resold pursuant to Rule 144(k)
or any other rule of similar effect or (B) such date as all of
the Investor's Shares shall have been resold; (ii) file with
the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and under the
Exchange Act; and (iii) furnish to the Investor upon request,
as long as the Investor owns any Shares, (A) a written
statement by the Company that it has complied with the
reporting requirements of the Securities Act and the Exchange
Act, (B) a copy of the Company's most recent Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, and (C) such other
information as may be reasonably requested in order to avail
the Investor of any rule or regulation of the SEC that permits
the selling of any such Shares without registration;
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Section 6.1 that the Investor shall furnish to the
Company such information regarding itself, the Shares to be sold by Investor,
and the intended method of disposition of such securities as shall be required
to effect the registration of the Shares; and
(h) The Company understands that the Investor disclaims being
an underwriter, but the Investor being deemed an underwriter
by the SEC shall not relieve the Company of any obligations it
has hereunder, provided, however, that if the Company receives
notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated
to submit an acceleration request to the SEC shall be extended
to the earlier of (i) the 90th day after such SEC
notification, or (ii) 120 days after the initial filing of the
Registration Statement with the SEC.
The Sellers shall bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 6.1 and the registration of the Shares
pursuant to the Registration Statement.
6.2 Transfer of Shares After Registration; Suspension.
(a) The Investor agrees that it will not effect any Disposition
of the Shares or its right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act
except as contemplated in the Registration Statement referred
to in Section 6.1 or as otherwise permitted by law, and that
it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding
the Investor or its plan of distribution.
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<PAGE>
(b) Except in the event that paragraph (c) below applies, the
Company shall: (i) if deemed necessary by the Company, prepare
and file from time to time with the SEC a post-effective
amendment to the Registration Statement or a supplement to the
related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other
required document so that such Registration Statement will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares
being sold thereunder, such Prospectus will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; (ii) provide the
Investor copies of any documents filed pursuant to Section
6.2(b)(i); and (iii) inform each Investor that the Company has
complied with its obligations in Section 6.2(b)(i) (or that,
if the Company has filed a post-effective amendment to the
Registration Statement which has not yet been declared
effective, the Company will notify the Investor to that
effect, will use its reasonable efforts to secure the
effectiveness of such post-effective amendment as promptly as
possible and will promptly notify the Investor pursuant to
Section 6.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event: (i) of any
request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose; (iii) of
the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any
jurisdiction or the initiation of any proceeding for such
purpose; or (iv) of any event or circumstance which
necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or
deemed to be incorporated therein by reference, so that, in
the case of the Registration Statement, it will not contain
any untrue statement of a material fact or any omission to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; then the Company
shall deliver a certificate in writing to the Investor (the
"Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, the Investor will refrain
from selling any Shares pursuant to the Registration Statement
(a "Suspension") until the Investor's receipt of copies of a
supplemented or amended Prospectus prepared and filed by the
Company, or until it is advised in writing by the Company that
the current Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated
or deemed incorporated by reference in any such Prospectus. In
the event of any Suspension, the Company will use its
reasonable efforts to cause the use of the Prospectus
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<PAGE>
so suspended to be resumed as soon as reasonably practicable
within 30 days after delivery of a Suspension Notice to the
Investors. In addition to and without limiting any other
remedies (including, without limitation, at law or at equity)
available to the Investor, the Investor shall be entitled to
specific performance in the event that the Company fails to
comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section
6.2, the Investor shall not be prohibited from selling Shares
under the Registration Statement as a result of Suspensions on
more than three occasions of not more than 30 days each in any
twelve month period, unless, in the good faith judgment of the
Company's Board of Directors, upon advice of counsel, the sale
of Shares under the Registration Statement in reliance on this
paragraph 6.2(d) is reasonably likely to cause a violation of
the Securities Act or the Exchange Act and result in potential
liability to the Company.
(e) Provided that a Suspension is not then in effect the
Investor may sell Shares under the Registration Statement,
provided that it arranges for delivery of a current Prospectus
to the transferee of such Shares. Upon receipt of a request
therefor, the Company will provide an adequate number of
current Prospectuses to the Investor and to any other parties
requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor, the
Investor must also deliver to the Company's transfer agent,
with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit C, so
that the shares may be properly transferred.
6.3 Delay in Effectiveness of Registration. In the event that the
Registration Statement is not declared effective within seventy five
(75) days after the date of filing of the Registration Statement,
each Seller shall pay to the Investor liquidated damages in an
amount equal to 0.25% of the number of Shares sold by that Seller to
the Investor pursuant to this Agreement for each week after then end
of that period that the Registration Statement is not declared
effective. Such liquidated damages shall be paid through the
transfer of additional Shares at such time as the Registration
Statement is declared effective. Such additional Shares shall also
be registered within forty five (45) days of issuance under the
terms and conditions described in Sections 6.1.1(a) - (g) hereof.
6.4 Indemnification. For the purpose of this Section 6.3:
(a) the term "Selling Stockholder" shall include the Investor
and any affiliate of such Investor;
(b) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement referred to in Section
6.1; and
(c) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or
alleged omission to state in the Registration Statement a
material fact required to be stated therein or
14
<PAGE>
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) The Company and the Sellers, jointly and severally, agree
to indemnify and hold harmless each Selling Stockholder from
and against any losses, claims, damages or liabilities to
which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon (i) any untrue
statement of a material fact contained in the Registration
Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the
Company and the Sellers, jointly and severally, will reimburse
such Selling Stockholder for any reasonable legal or other
expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim,
provided, however, that neither the Company nor any of the
Sellers shall be liable in any such case to the extent that
such loss, claim, damage or liability arises out of, or is
based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such
Selling Stockholder specifically for use in preparation of the
Registration Statement or the failure of such Selling
Stockholder to comply with its covenants and agreements
contained in Sections 4.1, 4.2, 4.3 or 6.2 hereof or any
statement or omission in any Prospectus that is corrected in
any subsequent Prospectus that was delivered to the Investor
prior to the pertinent sale or sales by the Investor.
(ii) The Investor agrees to indemnify and hold harmless the
Company and the Sellers (and each person, if any, who controls
the Company or any Seller within the meaning of Section 15 of
the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from
and against any losses, claims, damages or liabilities to
which the Company or any Seller (or any such officer, director
or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, (i) any failure to
comply with the covenants and agreements contained in Section
4.1, 4.2, 4.3 or 6.2 hereof, or (ii) any untrue statement of a
material fact contained in the Registration Statement if such
untrue statement was made in reliance upon and in conformity
with written information furnished by or on behalf of the
Investor specifically for use in preparation of the
Registration Statement, and the Investor will reimburse the
Company (or such officer, director or controlling person), as
the case may be, for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend
any such action, proceeding or claim.
(iii) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of
which indemnity is to be sought against an indemnifying person
pursuant to
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<PAGE>
this Section 6.4, such indemnified person shall notify the
indemnifying person in writing of such claim or of the
commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party under this Section
6.4 (except to the extent that such omission materially and
adversely affects the indemnifying party's ability to defend
such action) or from any liability otherwise than under this
Section 6.4. Subject to the provisions hereinafter stated, in
case any such action shall be brought against an indemnified
person, the indemnifying person shall be entitled to
participate therein, and, to the extent that it shall elect by
written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified
party, shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person.
After notice from the indemnifying person to such indemnified
person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified
person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof,
provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the
reasonable opinion of counsel to the indemnified person, for
the same counsel to represent both the indemnified person and
such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain
its own counsel at the expense of such indemnifying person;
provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than one
separate counsel (together with appropriate local counsel) for
all indemnified parties. In no event shall any indemnifying
person be liable in respect of any amounts paid in settlement
of any action unless the indemnifying person shall have
approved the terms of such settlement; provided that such
consent shall not be unreasonably withheld. No indemnifying
person shall, without the prior written consent of the
indemnified person, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified
person is or could reasonably have been a party and
indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all
liability on claims that are the subject matter of such
proceeding.
(iv) If the indemnification provided for in this Section 6.4 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Investor on the
other in connection with the statements or omissions or other
matters which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, in
the case of an untrue statement, whether the untrue statement
relates to information supplied by the Company on the one hand
or an Investor on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement. The Company, the Sellers and
the Investor agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined
by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or
16
<PAGE>
actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be
determined by reference to, among other things, in the
case of an untrue statement, whether the untrue statement
relates to information supplied by the Company on the one
hand or an Investor on the other and the parties' relative
intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement. The Company,
the Sellers and the Investor agree that it would not be
just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or
by any other method of allocation which does not take into
account the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Investor shall be
required to contribute any amount in excess of the amount
by which the gross amount received by the Investor from
the sale of the Shares to which such loss relates exceeds
the amount of any damages which such Investor has
otherwise been required to pay by reason of such untrue
statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation.
(v) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were
represented by counsel during the negotiations regarding
the provisions hereof including, without limitation, the
provisions of this Section 6.4, and are fully informed
regarding said provisions. They further acknowledge that
the provisions of this Section 6.4 fairly allocate the
risks in light of the ability of the parties to
investigate the Company and its business in order to
assure that adequate disclosure is made in the
Registration Statement as required by the Securities Act
and the Exchange Act. The parties are advised that federal
or state public policy as interpreted by the courts in
certain jurisdictions may be contrary to certain of the
provisions of this Section 6.4, and the parties hereto
hereby expressly waive and relinquish any right or ability
to assert such public policy as a defense to a claim under
this Section 6.4 and further agree not to attempt to
assert any such defense.
6.5 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 4 or this Section 6 upon the
transferability of the Shares shall cease and terminate as to any
particular number of the Shares when such Shares shall have been
effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such
Shares or at such time as an opinion of counsel reasonably
satisfactory to the Company shall have been rendered to the
17
<PAGE>
effect that such conditions are not necessary in order to comply
with the Securities Act.
6.6 Information Available. So long as the Registration Statement
is effective covering the resale of Shares owned by the Investor,
the Company will furnish to the Investor:
(a) as soon as practicable after it is available, one copy of
(i) its Annual Report to Stockholders (which Annual Report
shall contain financial statements audited in accordance with
generally accepted accounting principles by a national firm of
certified public accountants) and (ii) if not included in
substance in the Annual Report to Stockholders, its Annual
Report on Form 10-K (the foregoing, in each case, excluding
exhibits);
(b) upon the reasonable request of the Investor, all exhibits
excluded by the parenthetical to subparagraph (a)(ii) of this
Section 6.6 as filed with the SEC and all other information
that is made available to stockholders; and
(c) upon the reasonable request of the Investor, an adequate
number of copies of the Prospectuses to supply to any other
party requiring such Prospectuses; and the Company, upon the
reasonable request of the Investor, will meet with the
Investor or a representative thereof at the Company's
headquarters to discuss all information relevant for
disclosure in the Registration Statement covering the Shares
and will otherwise cooperate with the Investor conducting an
investigation for the purpose of reducing or eliminating the
Investor's exposure to liability under the Securities Act,
including the reasonable production of information at the
Company's headquarters; provided, that the Company shall not
be required to disclose any confidential information to or
meet at its headquarters with the Investor until and unless
the Investor shall have entered into a confidentiality
agreement in form and substance reasonably satisfactory to the
Company with the Company with respect thereto.
6.7 Public Statements. Neither the Company nor any Seller will
issue any public statement, press release or any other public
disclosure listing Investor as one of the purchasers of the Shares
without Investor's prior written consent, except as may be
required by applicable law or rules of any exchange on which the
Company's securities are listed.
7. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express (or comparable
service) or facsimile, and shall be deemed given (i) if delivered by first-class
registered or certified mail domestic, three business days after so mailed, (ii)
if delivered by nationally recognized overnight carrier, one (1) business day
after so mailed, (iii) if delivered by International Federal Express (or
comparable service), two (2) business days after so mailed, (iv) if delivered by
facsimile, upon electric confirmation of receipt and shall be delivered as
addressed as follows:
(a) if to the Sellers, to:
_______________________
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____________________________
____________________________
____________________________
Phone: ____________________
Telecopy: _________________
and
____________________________
____________________________
____________________________
Phone: ____________________
Telecopy: _________________
(b) if to the Company, to:
Learning Tree International, Inc.
6053 West Century Boulevard
Los Angeles, CA 90045-0028
Attn: David C. Collins
Chief Executive Officer
Phone: (310) 417-9700
Telecopy:
with a copy mailed to:
Theodore E. Guth, Esq.
Guth Rothman & Christopher LLP
10866 Wilshire Boulevard, Suite 1250
Los Angeles, CA 90024
Phone: (310) 234-6939
Telecopy: (310) 470-8354
(c) if to the Investor, at its address on the Signature Page
hereto, or at such other address or addresses as may have
been furnished to the Company in writing.
8. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company, each of the Sellers and
the Investor.
9. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
10. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby.
11. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of law.
19
<PAGE>
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
13. Confidential Disclosure Agreement. Notwithstanding any provision of
this Agreement to the contrary, any confidential disclosure agreement
previously executed by the Company or any of the Sellers, on the one hand,
and the Investor, on the other hand, in connection with the transactions
contemplated by this Agreement shall remain in full force and effect in
accordance with its terms following the execution of this Agreement and the
consummation of the transactions contemplated hereby.
14. Attorneys' Fees. In any dispute between the parties hereto concerning
this Agreement, the prevailing party(ies) shall be entitled to the
reasonable attorneys' fees and court costs incurred by reason of such
dispute.
20
<PAGE>
Exhibit A
LEARNING TREE INTERNATIONAL, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be ______________________
registered in (this is the name that will
appear on your stock certificate(s)). You
may use a nominee name if appropriate:
2. The relationship between the Investor and ______________________
the registered holder listed in response to
item 1 above:
3. The mailing address of the registered holder ______________________
listed in response to item 1 above:
4. The Social Security Number or Tax ______________________
Identification Number of the registered
holder listed in the response to item 1
above:
A-1
<PAGE>
Exhibit B
LEARNING TREE INTERNATIONAL, INC.
INVESTOR QUESTIONNAIRE
(all information will be treated confidentially)
To: Learning Tree International, Inc., David C. Collins, Eric R. Garen, [other
Sellers]
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $.0001 per share (the "Securities"), of Learning Tree
International, Inc. (the "Company"). The Securities are being offered and sold
by David C. Collins, Eric R. Garen, [other Sellers] (the "Sellers") without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the securities laws of certain states, in reliance on the exemptions
contained in Section 4 of the Securities Act and on Regulation D promulgated
thereunder and in reliance on similar exemptions under applicable state laws.
The Sellers must determine that a potential investor meets certain suitability
requirements before offering or selling Shares to such investor. The purpose of
this Questionnaire is to assure the Sellers and the Company that each investor
will meet the applicable suitability requirements. The information supplied by
you will be used in determining whether you meet such criteria, and reliance
upon the private offering exemption from registration is based in part on the
information herein supplied.
This Questionnaire does not constitute an offer to sell or a
solicitation of an offer to buy any security. Your answers will be kept strictly
confidential. However, by signing this Questionnaire you will be authorizing the
Sellers and the Company to provide a completed copy of this Questionnaire to
such parties as the Sellers or the Company deem appropriate in order to ensure
that the offer and sale of the Shares will not result in a violation of the
Securities Act or the securities laws of any state and that you otherwise
satisfy the suitability standards applicable to purchasers of the Shares. All
potential investors must answer all applicable questions and complete, date and
sign this Questionnaire. Please print or type your responses and attach
additional sheets of paper if necessary to complete your answers to any item.
A. Background Information
Name:___________________________________________________________________________
Business Address:_______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: ( )_______________________________________________________
Residence Address:______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: ( )_______________________________________________________
If an individual:
Age:______ Citizenship:__________ Where registered to vote:_________
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:_________________________________________________________________
State of formation:______________ Date of formation:________________
Social Security or Taxpayer Identification No.__________________________________
Send all correspondence to (check one): ____ Residence Address ____ Business
Address
B-1
<PAGE>
B. Status as Accredited Investor
The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Securities Act, as at the time of the sale of the Shares
the undersigned falls within one or more of the following categories (Please
initial one or more, as applicable):(1)
_____(1) a bank as defined in Section 3(a)(2) of the Securities Act, or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48) of
that act; a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with the investment decisions made
solely by persons that are accredited investors;/1/
_____(2) a private business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940;
_____(3) an organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the Shares
offered, with total assets in excess of $5,000,000;
_____(4) a natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of such person's purchase of the Shares
exceeds $1,000,000;
_____(5) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
_____(6) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Shares offered, whose purchase is directed by
a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D; and
_____(7) an entity in which all of the equity owners are accredited investors
(as defined above).
___________________
1 As used in this Questionnaire, the term "net worth" means the excess of total
assets over total liabilities. In computing net worth for the purpose of
subsection (4), the principal residence of the investor must be valued at cost,
including cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of encumbrances. In determining
income, the investor should add to the investor's adjusted gross income any
amounts attributable to tax exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depiction,
contributions to an IRA or KEOGH retirement plan, alimony payments, and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
B-2
<PAGE>
C. Representations
The undersigned hereby represents and warrants to the Company and the Sellers as
follows:
1. Any purchase of the Shares would be solely for the account of the
undersigned and not for the account of any other person or with a view to any
resale, fractionalization, division, or distribution thereof.
2. The information contained herein is complete and accurate and may be
relied upon by the Company and the Sellers, and the undersigned will notify the
Company and the Sellers immediately of any material change in any of such
information occurring prior to the closing, if any, with respect to the purchase
of Shares by the undersigned or any co-purchaser.
3. There are no suits, pending litigation, or claims against the
undersigned that could materially affect the net worth of the undersigned as
reported in this Questionnaire.
4. The undersigned acknowledges that there may occasionally be times when
the Company, based on the advice of its counsel, determines that it must suspend
the use of the Prospectus forming a part of the Registration Statement (as such
terms are defined in the Stock Purchase Agreement to which this Questionnaire is
attached) until such time as an amendment to the Registration Statement has been
filed by the Company and declared effective by the Securities and Exchange
Commission or until the Company has amended or supplemented such Prospectus. The
undersigned is aware that, in such event, the Shares will not be subject to
ready liquidation, and that any Shares purchased by the undersigned would have
to be held during such suspension. The overall commitment of the undersigned to
investments which are not readily marketable is not excessive in view of the
undersigned's net worth and financial circumstances, and any purchase of the
Shares will not cause such commitment to become excessive. The undersigned is
able to bear the economic risk of an investment in the Shares.
5. The undersigned has carefully considered the potential risks relating
to the Company and a purchase of the Shares, and fully understands that the
Shares are speculative investments which involve a high degree of risk of loss
of the undersigned's entire investment. Among others, the undersigned has
carefully considered each of the risks described under the heading "Risk
Factors" in the Company's Annual Report on Form 10-K for the year ended
September 30, 1999.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this _____
day of _____________, 2000, and declares under oath that it is truthful and
correct.
Print Name
By:_____________________________________
Signature
Title:__________________________________
(required for any purchaser that
is a corporation, partnership,
trust or other entity)
B-3
<PAGE>
Exhibit C
LEARNING TREE INTERNATIONAL, INC.
CERTIFICATE OF SUBSEQUENT SALE
Computershare Trust Company, Inc.
Legal Transfer Branch
12039 West Alameda Parkway, Suite Z-2
Lakewood, Colorado 80228
RE: Sale of Shares of Common Stock of Learning Tree International, Inc.
(the "Company") pursuant to the Company's Prospectus dated
_______________, 2000 (the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the Shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner):________________________________
Record Holder (e.g., if held in name of nominee):__________________________
Restricted Stock Certificate No.(s):_______________________________________
Number of Shares Sold:_____________________________________________________
Date of Sale:______________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Dated:_______________ Very truly yours,
By:_________________________________
Print Name:_________________________
Title:______________________________
cc: Investor Relations
Learning Tree International, Inc.
6053 West Century Boulevard
Los Angeles, CA 90045-0028
C-1
<PAGE>
EXHIBIT 3.21
FORM OF LEGAL OPINION
Ladies and Gentlemen:
We have acted as counsel to Learning Tree International, Inc., a Delaware
corporation (the "Company"), in connection with the preparation, execution and
delivery of certain Stock Purchase Agreements (the "Agreements"), by and between
the Company, the individual Sellers named therein, and certain Investors (the
"Investors"). This opinion letter is provided to the Investors at the request of
the Company pursuant to Section 3.22 of the Agreements. Except as otherwise
indicated herein, capitalized terms used in this opinion letter are defined as
set forth in the Agreements.
We have examined certain corporate records, certificates and documents in
rendering this opinion. In making such examinations, we have made certain
customary assumptions, such as the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the lack of any
undisclosed modifications, waivers or amendments to any agreements reviewed by
us, the conformity to authentic originals of all documents submitted to us as
certified or photostatic copies and the truth and accuracy of factual statements
contained in such documents and certificates. Except as expressly set forth
herein, we have also assumed that the execution, delivery and performance of any
agreements or consents are within the powers of each signatory and have been
duly authorized and validly carried out. Our opinions expressed herein are
limited to the Federal laws of the United States of America, the laws of the
State of California and the corporate laws of the State of Delaware and do not
address the laws of any other jurisdiction.
Based upon and subject to the foregoing and the additional qualifications
set forth below, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the SEC Reports.
2. The Company is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification, except where the failure to so qualify is not
reasonably expected to have a Materially Adverse Effect. The Shares
have been duly authorized and validly issued and (assuming receipt of
the purchase price thereof) are fully paid and nonassessable.
3. To our knowledge, the sale of the Shares pursuant to the Agreements
does not violate any currently existing co-sale right, registration
right, right of first refusal or other similar right to purchase any
shares of Common Stock.
4. Each of the Company and the Sellers has the corporate or other
applicable power and authority to enter into the Agreements, and each
of the Sellers has the applicable power and authority to sell and
deliver to each Investor such Investor's respective portion of the
Shares to be sold and delivered by it pursuant to the Agreements. The
Company has the corporate power and authority to register the Shares
under the terms of the Agreements.
5. The Agreements have been duly authorized by all necessary corporate or
other applicable action on the part of the Company and each of the
Sellers and have been duly executed and delivered by the Company and
each of the Sellers and are valid and binding agreements of the
Company and each of the Sellers, enforceable in accordance with their
terms.
6. The execution, delivery and performance of the Agreements and the
consummation of the transactions therein contemplated do not and will
not conflict with or result in a breach of any
C-2
<PAGE>
Page 3
of the terms or provisions of, or constitute a default under,
the charter or bylaws of the Company or any agreement or
instrument listed as an exhibit in the Company's SEC Reports.
7. No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory,
administrative or other governmental body by the Company or
the Sellers is necessary in connection with the execution and
delivery of the Agreements and the consummation of the
transactions therein contemplated (other than as may be
required by federal or state securities laws).
8. The description of the Common Stock contained in the Company's
registration statement on Form 8-A filed under the Exchange
Act on December 10, 1995 are accurate.
9. Assuming that the representations and warranties of the
Investors, the Company and the Sellers set forth in the
Agreements and the exhibits thereto are true and correct,
whose accuracy we have not investigated and therefore cannot
confirm, but of which we have no knowledge that they are
false, the offer, sale and delivery of the Shares to the
Investors, in the manner contemplated by the Agreements, does
not need to be registered under the Securities Act, it being
understood that no opinion is expressed as to any subsequent
resale of any such Shares.
In addition, we have participated in conferences with officers and
other representatives of the Company at which the contents of the SEC Reports
were discussed. Although we are not passing upon and have not independently
checked or verified the accuracy, completeness or fairness of the statements
contained in the SEC Reports, we advise you that we have no knowledge that, as
of the date of the Agreements and as of the date hereof, the SEC Reports (not
including the financial statements, the notes thereto and related schedules and
other financial, statistical and accounting data included or incorporated by
reference therein or which should have been included or incorporated by
reference therein, as to which we are not called upon to and do not express any
opinion), as supplemented and updated by the most recent SEC Reports, contained
or contain an untrue statement of a material fact or omitted or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, are not
misleading.
For purposes of the opinions set forth above in paragraph 1 with
respect to the good standing and qualification of the Company, we are relying
solely upon certificates of good standing from the States of Delaware and
California as of September __, 2000 and September __, 2000 respectively (copies
of which are attached hereto as Exhibit A). We express no opinion with respect
---------
to such matters beyond the date of such certificates.
The opinions set forth above in paragraph 5 are subject to and limited
by the following:
(a) the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws and legal and equitable principles
relating to, limiting or affecting the enforcement of creditors'
rights generally including, without limitation, preferences and
fraudulent conveyances and concepts of materiality, reasonableness,
good faith, fair dealing and unconscionability;
(b) the discretion of courts in awarding equitable remedies
(regardless of whether considered in a proceeding in equity or at
law), including, but not limited to, specific performance or
injunctive relief;
<PAGE>
Page 4
(c) we express no opinion with respect to the enforceability of
the choice of law clauses of the Agreements;
(d) we express no opinion with respect to the enforceability of
the indemnification and contribution provisions of the Agreements; and
(e) we express no opinion as to the application or contravention
of Section 548 of the federal Bankruptcy Code and comparable provisions
of state law or of any antifraud laws, antitrust or trade regulation
laws.
The opinion set forth above in paragraph 7 is based upon our
consideration of only those statutes, rules and regulations which in our
experience are normally applicable to transactions such as those contemplated by
the Agreements.
We are relying in part as to certain factual matters on an Officer's
and a Trustee's Certificate, copies of which is attached hereto as Exhibits B
----------
and C. We have not undertaken any independent investigation to determine the
-----
existence or nonexistence of such facts, and, except as to the statements made
in the paragraph following paragraph 9 and as specifically set forth therein, no
inference as to our knowledge of the existence of such facts should be drawn
from the fact of our representation of the Company or the Representative in this
or other matters. Similarly, whenever our opinion herein with respect to the
existence or nonexistence of facts is qualified by the phrase "to our
knowledge", or any similar phrase implying a limitation on the basis of
knowledge, such phrase means only that the individual attorneys in this firm who
devoted substantive attention to the transactions contemplated by the Agreements
do not have actual knowledge that the facts as stated herein are untrue. Such
persons have not undertaken any investigation to determine the existence or
nonexistence of such facts in connection with the preparation of this opinion,
and no inference as to the extent of their investigation should be drawn from
the fact of our representation of the Company in this or any other instance.
This opinion letter is rendered solely for your benefit in connection
with the Agreements, and may not be relied upon for any other purpose, or
furnished to, used, circulated, quoted or referred to by any other person
without our prior written consent.
Sincerely,
Guth Rothman & Christopher LLP
<PAGE>
Page 5
EXHIBIT A
Good Standing Certificates
--------------------------
(see attached documents)
<PAGE>
Page 6
EXHIBIT B
---------
CERTIFICATE OF OFFICERS OF
LEARNING TREE INTERNATIONAL, INC.
IN SUPPORT OF OPINION OF
GUTH ROTHMAN & CHRISTOPHER LLP
The undersigned certify that they are duly elected, qualified and
acting officers of Learning Tree International, Inc., a Delaware corporation
(the "Company"), and further certify in support of the Opinion of Guth Rothman &
Christopher LLP being rendered pursuant to certain Stock Purchase Agreements
(the "Agreements") dated as of September 22, 2000 by and between the Company and
certain existing Shareholders, on the one hand, and certain purchasers on the
other hand. Capitalized terms used, but not defined herein, shall have the
meanings given them in the Agreements:
1. Attached hereto as Exhibit 1 is a true, complete and correct copy of
---------
resolutions duly adopted by written consents of the Board of Directors on
September 19, 2000, approving the terms, conditions and provisions of the
Agreements. Said resolutions have not been modified, amended or rescinded
and remain in full force and effect as of the date hereof.
2. The individuals who executed and delivered the Agreements are duly elected
to the positions set forth opposite their names on each of said documents.
3. Attached hereto as Exhibit 2 is a true, complete and correct copy of the
---------
Certificate of Incorporation of the Company as certified by the Delaware
Secretary of State. There has been no further amendment to the Certificate
of Incorporation since the date of certification attached hereto, and no
further amendment has been authorized or approved by the Board of Directors
or the stockholders of the Company as of the date hereof.
4. Attached hereto as Exhibit 3 is a true, complete and correct copy of the
---------
Bylaws of the Company. Said Bylaws have not been modified, amended or
rescinded and remain in full force and effect as of the date hereof.
Dated as of September 22, 2000.
Learning Tree International, Inc.
By: _____________________________ By: _____________________________
David C. Collins Eric R. Garen
Chief Executive Officer President
By: _____________________________ By: _____________________________
Mary Adams Gary Wright
Secretary Chief Financial Officer
<PAGE>
Page 7
EXHIBIT 1
---------
RESOLUTIONS ADOPTED BY WRITTEN CONSENT OF THE BOARD OF DIRECTORS
<PAGE>
Page 8
EXHIBIT 2
---------
CERTIFIED COPY OF
CERTIFICATE OF INCORPORATION
<PAGE>
Page 9
EXHIBIT 3
---------
BYLAWS OF LEARNING TREE INTERNATIONAL, INC.
<PAGE>
Page 10
EXHIBIT C
---------
CERTIFICATE OF TRUSTEES OF
LEARNING TREE INTERNATIONAL, INC.
IN SUPPORT OF OPINION OF
GUTH ROTHMAN & CHRISTOPHER LLP
Each of the undersigned severally certifies that he or she is a duly
qualified and acting trustee of the trust(s) for which he or she is listed as a
trustee below, and further severally certifies in support of the Opinion of Guth
Rothman & Christopher LLP being rendered pursuant to certain Stock Purchase
Agreements (the "Agreements") dated as of September 22, 2000 by and between the
Learning Tree International, Inc., a Delaware corporation and certain existing
shareholders, on the one hand, and certain purchasers on the other hand:
1. the copy of trust agreement previously delivered to Guth Rothman &
Christopher LLP for the trust(s) as to which he or she is listed as a
trustee below is true, correct and complete, and has not been modified,
amended or rescinded and remains in full force and effect as of the
date hereof, and that such trust(s) has no other trustees, and that as
trustee of such trust(s) he or she has approved the execution of the
Agreements.
Dated as of September 22, 2000.
The Collins Family Foundation The Garen Family Foundation
By_________________________________ By_________________________________
David C. Collins, Trustee Eric R. Garen,
By_________________________________ By_________________________________
Mary Adams, Trustee Nancy Garen, Trustee
The Collins Charitable Remainder Unitrust #97-1
By_________________________________
David C. Collins, Trustee
By_________________________________
Mary Adams, Trustee
