SERVICE
OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 7(c) IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE.
IN ANY PROCEEDINGS INSTITUTED IN CONNECTION WITH THIS AGREEMENT,
THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ITS REASONABLE ATTORNEYS'
FEES AND COSTS UPON FINAL DETERMINATION THEREOF (INCLUDING ANY APPEALS IN
RESPECT THEREOF OR THE EXPIRATION OF ANY RIGHT TO APPEAL IN CONNECTION
THEREWITH).
(m)
Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE)
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION,
CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY,
PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING.
EACH OF THE PARTIES AGREES AND ACKNOWLEDGES THAT IT HAS BEEN
INFORMED THAT THIS SECTION 7(m) CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THE
OTHER PARTIES HERETO ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT
AND ANY OTHER AGREEMENTS RELATING HERETO OR CONTEMPLATED HEREBY.
ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 7(m) WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
[Signature Page Follows]
8
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Purchaser:
Everest/Sapphire Acquisition, LLC
By:
/s/ Philip A. Baratelli
Name: Philip A. Baratelli
Title: Secretary and Treasurer
Designated Officer/Director
Principal Stockholders:
/s/ Peter Metcalf
Name:
Peter Metcalf
Address:
Fax:
/s/ Philip Duff
Name:
Philip Duff
Address:
Fax:
/s/ Robert Peay
Name:
Robert Peay
Address:
Fax:
Schedule 3(b)
Company Common Stock Ownership
Name of Stockholder
No. of Shares of Company
Common Stock
(other than 401(k) Shares
No. of 401(k) Shares
Philip Duff
14,200
0
Peter Metcalf
6,822
5,819
Robert Peay
193
70