SUCH ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN
CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION TO ANY COURT
OTHER THAN ONE OF THE ABOVE-NAMED COURT WHETHER ON THE GROUNDS OF INCONVENIENT
FORUM OR OTHERWISE.
EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY
SUCH PROCEEDING IN ANY MANNER PERMITTED BY DELAWARE LAW, AND AGREES THAT SERVICE
OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 5.1 IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE.
11
5.13
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 5.13 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 5.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
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12
In Witness Whereof, the parties hereto have caused this Agreement to be executed
as of the date first above written.
Purchaser:
Stockholders' Representative
Everest/Sapphire Acquisition, LLC
By:
/s/ Philip A. Baratelli
/s/ Ed McCall
Name:
Philip A. Baratelli
Name:
Ed McCall
Title:
Secretary and Treasurer
Company:
Escrow Agent:
Black Diamond Equipment, Ltd.
U.S. Bank National Association
By:
/s/ Peter Metcalf
By:
/s/ Shirley Young
Name:
Peter Metcalf
Name:
Shirley Young
Title:
Chief Executive Officer
and President
Title:
Vice President