Attached files
| file | filename |
|---|---|
| 8-K - Clarus Corp | v184082_8k.htm |
| EX-2.1 - Clarus Corp | v184082_ex2-1.htm |
| EX-2.2 - Clarus Corp | v184082_ex2-2.htm |
| EX-10.1 - Clarus Corp | v184082_ex10-1.htm |
| EX-10.2 - Clarus Corp | v184082_ex10-2.htm |
| EX-10.4 - Clarus Corp | v184082_ex10-4.htm |
Exhibit 10.3
Company
Stockholders’ Support Agreement
(Other
Holders)
Agreement,
dated as of May 8, 2010 (this
“Agreement”),
by and among Christian Jaeggi (“Jaeggi”), Mark
Ritchie (“Ritchie”), Chris
Grover (“Grover”), Scott
Carlson (“Carlson”), Ed McCall
(“McCall”) and
Scott Bowers (“Bowers”), Paul
Bancroft (“Bancroft”), Maria
Cranor (“Cranor”), Michael
Metcalf (“Metcalf”), and
Phillip Boone, Jr. (“Boone”, and
collectively with Jaeggi, Ritchie, Grover, Carlson, McCall, Bowers, Bancroft,
Cranor and Metcalf, the “Principal
Stockholders” and individually as a “Principal
Stockholder”), each residing at the address specified under their
respective signature below; and Everest/Sapphire
Acquisition, LLC, a Delaware limited liability company (“Purchaser”).
Capitalized
terms not defined herein shall have the meanings ascribed to such terms in that
certain Agreement and Plan of Merger, dated as of May 7, 2010 (the “Merger Agreement”),
by and among Clarus
Corporation, a Delaware corporation (“Purchaser
Parent”); Purchaser; Sapphire
Merger Corp., a
Delaware Corporation and wholly owned Subsidiary of Purchaser (“Merger Sub”); Black
Diamond Equipment, Ltd.,
a Delaware corporation (the “Company”) and Ed
McCall, an individual, in his capacity as Stockholders’ Representative (“Stockholders’
Representative”).
Recitals
Whereas,
Purchaser Parent, Purchaser, Merger Sub, the Company and the Stockholders’
Representative have entered into the Merger Agreement pursuant to which, upon
satisfaction of the conditions specified therein, at the Closing, in exchange
for the payment of the Merger Consideration, Merger Sub will merge with and into
the Company with the effect that the Company will be the Surviving Corporation
and a wholly owned subsidiary of Purchaser; and
Whereas,
the Principal Stockholders are Stockholders of the Company and the
Officer/Director Stockholders are also officers and/or directors of the Company
and will benefit directly and indirectly from the Merger Agreement, the Merger
and the transactions contemplated thereby; and
Whereas,
as a condition to the Purchaser’s obligations for Closing under the terms of the
Merger Agreement, the Purchaser desires that, among other things, the business
of the Company and the Company Subsidiaries remain intact after the Closing;
and
Whereas,
in order to induce Purchaser to not terminate the Merger Agreement and to effect
the Merger upon the satisfaction of the terms and conditions of the Merger
Agreement (subject to any right to terminate the Merger Agreement as set forth
therein), the Principal Stockholders are entering into this
Agreement.
Now,
Therefore, in consideration of the mutual covenants set forth herein, it
is hereby agreed as follows:
1. Restrictive
Covenants.
(a) Non-Competition. Each
of Jaeggi, Ritchie, Grover, Bancroft and Cranor acknowledges that in order to
help assure Purchaser that the Company will retain the value of the Company as a
“going concern,” he or she agrees not to utilize his or her special knowledge of
the Business and his or her relationships with customers, prospective customers,
suppliers and others or otherwise to compete with the Company in the Business
for a one-year period commencing on the Closing Date (subject to the extension
provisions in Section 7(a) hereof). During the one-year period
commencing on the Closing Date (subject to the extension provisions in Section
7(a) hereof), each such Principal Stockholder named in this Section 1(a)
shall not, and shall not permit any of his or her respective employees, agents
or others under his or her control, directly or indirectly, on behalf of such
Principal Stockholder or any other Person, to engage or have an interest,
anywhere in the world in which the Company conducts business or markets or sells
its products as of the Closing Date, alone or in association with others, as
principal, officer, agent, employee, director, partner or stockholder (except as
an owner of two percent or less of the stock of any company listed on a national
securities exchange or traded in the over-the-counter market), whether through
the investment of capital, lending of money or property, rendering of services
or capital, or otherwise, in any Competitive Business. During the
one-year period commencing on the Closing Date (subject to the extension
provisions in Section 7(a) hereof), each Principal Stockholder named in this
Section 1(a) shall not, and shall not permit any of his or her respective
employees, agents or others under their control, directly or indirectly, on
behalf of him or her or any other Person, to accept Competitive Business from,
or solicit the Competitive Business of any Person who at Closing is a customer
of the Business conducted by the Company, or, to such Principal Stockholder’s
knowledge, is a customer of the Business conducted by the Company at any time
during such one-year period commencing on the Closing Date (subject to the
extension provisions in Section 7(a) hereof).
(b) Non-Disparagement and
Non-Interference. Each of Jaeggi, Ritchie, Grover, Bancroft,
Cranor, Carlson, McCall and Bowers shall not, either directly or indirectly: (i)
for a one-year period commencing on the Closing Date (subject to the extension
provisions in Section 7(a) hereof) (A) make or cause to be made, any statements
that are disparaging or derogatory concerning the Company or its business,
reputation or prospects; (B) request, suggest, influence or cause any party,
directly or indirectly, to cease doing business with or to reduce its business
with the Company or do or say anything which could reasonably be expected to
damage the business relationships of the Company; or (ii) at any time, use or
purport to authorize any Person to use any Intellectual Property which is owned
by the Company or exclusively licensed to the Company or to otherwise infringe
on the intellectual property rights of the Company.
(c) Non-Solicitation. Each of Jaeggi, Ritchie,
Grover, Bancroft and Cranor agree that for a one-year period commencing on the
Closing Date (subject to the extension provisions in Section 7(a) hereof), he,
she or it shall not recruit or otherwise solicit or induce any Person who is an
employee or consultant of, or otherwise engaged by Company, to terminate his or
her employment or other relationship with the Company, or such successor, or
hire any person who has left the employ of the Company during the preceding one
year.
(d) Certain
Definitions. For purposes of this Agreement: (i) the term
“Business”
shall mean the business of manufacturing, assembling, licensing, distributing,
marketing and selling mountain climbing, hiking and skiing equipment; and (ii)
the term “Competitive
Business” shall mean any business competitive with the
Business. For purposes of Section 1 and Section 2 of this Agreement
only, all references to the Company shall be deemed to include each Company
Subsidiary and each of their respective successors and assigns, including,
without limitation, the Surviving Corporation, and all references to an
individual Principal Stockholder shall be deemed to include all Affiliates of
such Principal Stockholder.
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2. Confidentiality. Each
Principal Stockholder acknowledges that the intangible property and all other
confidential or proprietary information with respect to the Business of the
Company are valuable, special and unique assets of Company. Boone and
Metcalfe agree that for a three-year period commencing on the Closing Date, and
each of Jaeggi, Ritchie, Grover, Carlson, Bowers, McCall, Bancroft and Cranor
agree that from and after the Closing without a termination date, that they
shall not disclose, directly or indirectly, to any Person, or use or purport to
authorize any Person to use any confidential or proprietary information with
respect to the Company, whether or not for their own benefit, without the prior
written consent of the Purchaser unless required by Law, including, without
limitation, (a) Trade Secrets, intangible property, marketing plans, business
plans and strategies; (b) confidential or proprietary information relating to
products or services; (c) the names of customers and contacts, vendors and
suppliers, the cost of materials and labor, the prices obtained for services
sold (including the methods used in price determination, manufacturing and sales
costs), compensation paid to employees and consultants and other terms of
employment, production operation techniques or any other confidential or
proprietary information of, about or pertaining to the Business, and any other
confidential or proprietary information and material relating to any customer,
vendor, licensor, licensee, or other party in connection with the Business; and
(d) any other confidential or propriety information which such Principal
Stockholder acquired or developed in connection with or as a result of his being
a shareholder, officer, director, employee, agent or representative of the
Company, excepting in each instance (a) – (d) only such information as (i) is
already known to the public or which may become known to the public without any
fault of such Principal Stockholder in violation of any confidentiality
restrictions, or (ii) (A) was available to such Principal Stockholder (prior to
its delivery to such Principal Stockholder by the Company) or (B) becomes
available to a Principal Stockholder, in each instance (A) or (B) on a
non-confidential basis from a Person other than the Company who is not otherwise
bound by a confidentiality agreement with respect to such information or is
otherwise prohibited from transmitting the information to such Principal
Stockholder, or (C) can be proven to have been independently developed by such
Principal Stockholder without reference to such information.
3. Representations and
Warranties. In order to induce Purchaser to enter into this
Agreement, not terminate the Merger Agreement and to effect the Merger upon
satisfaction of the terms and conditions of the Merger Agreement (subject to
Purchaser’s right to terminate the Merger Agreement as set forth therein) and
the transactions contemplated by the Merger Agreement, each Principal
Stockholder represents and warrants to Purchaser, severally and not jointly and
as to themselves and not as to any other Principal Stockholder, that the
following representations and warranties are true as of the date hereof and will
be true as of the Closing:
(a) Capacity; Authorization;
Enforceability. Such Principal Stockholder is a natural person
or a legal entity of the type set forth in the first paragraph
hereof. Such Principal Stockholder, if a natural person, is of legal
age and capacity and has all requisite power and authority to execute, deliver
and perform this Agreement and each of his or her obligations under this
Agreement. Such Principal Stockholder, if not a natural person, has
full entity power and authority to execute, deliver and perform this Agreement
and to consummate the transactions contemplated hereby and the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby have been duly and validly approved and
authorized by all necessary entity action on the part of such Principal
Stockholder. This Agreement has been duly and validly executed and
delivered by such Principal Stockholder, and constitutes the legal, valid and
binding obligation of such Principal Stockholder, enforceable against it in
accordance with its respective terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, or other similar Laws affecting or
relating to the rights of creditors generally or by general principles of
equity.
(b) Company Common Stock
Ownership. The shares of Company Common Stock listed on Schedule 3(b)
opposite such Principal Stockholder’s name (i) are owned beneficially by such
Principal Stockholder; (ii) constitute all of the shares of capital stock of the
Company and each Company Subsidiary that are owned beneficially by such
Principal Stockholder, and (iii) except with respect to shares of Company Common
Stock indicated on Schedule 3(b) as
being held in the Black Diamond Equipment, Ltd. Profit Sharing Plan (the “Company 401(k) Plan”)
for the benefit of such Principal Stockholder (the “401(k) Shares”) which
are held legally and of record by the custodian thereof, are owned legally and
of record by such Principal Stockholder. Such Principal Stockholder
has all right, title and interest in and to such shares of Company Common Stock
free and clear of all Liens and free of any other restriction, except for
restrictions imposed by applicable securities Laws; provided, that with
respect to the 401(k) Shares, the custodian under the Company’s 401(k) Plan has
legal title to the 401(k) Shares for the benefit of such Principal Stockholder
and the title to and transfer of the 401(k) Shares are subject to the terms and
conditions of the Company 401(k) Plan. Such Principal Stockholder has
not granted or acknowledged to any Person any Rights with respect to any shares
of capital stock of the Company (other than (i) Rights granted to the custodian
prior to the date hereof pursuant to the Company 401(k) Plan with respect to his
401(k) Shares and (ii) to Purchaser pursuant to any Company Stockholders’ Option
Agreement executed and delivered to Purchaser by such Principal Stockholder) and
such Principal Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth herein, sole power of
disposition, sole power of conversion, sole power to demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement with
respect to such Principal Stockholder’s shares of capital stock of the Company
with no limitations, qualifications or restrictions on such rights other than,
with respect to his 401(k) Shares, any rights granted to the custodian prior to
the date hereof under the Company’s 401(k) Plan.
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(c) No
Conflicts. Except for the limitation contained in Section 7.4
of the Bylaws of the Company (which the parties hereto anticipate will be
removed prior to Closing by action of the Board of Directors of the Company),
the execution, delivery and performance of this Agreement by such Principal
Stockholder, the delivery of such Principal Stockholder’s written consent to the
Merger Agreement and the Merger, and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) violate, or be in
conflict with, or constitute a default under, or result in, or provide the basis
for, the termination of, any of its obligations under any material Contract to
which such Principal Stockholder is a party; or (ii) violate any Law or Order of
any Governmental Authority applicable to such Principal Stockholder, or require
the consent, approval or action of, filing with or notice to any Governmental
Authority or other Person in order for such Principal Stockholder to consummate
the transactions contemplated by this Agreement.
4. Indemnification. Each
Principal Stockholder, severally and not jointly, hereby agrees to indemnify and
hold harmless each Purchaser Indemnified Party from, against and in respect of
the full amount of any and all Losses incurred or suffered by the Purchaser
Indemnified Parties or any of them in respect of, arising from, in connection
with, or incident to (a) any breach of, or inaccuracy in, any representation or
warranty made by such Principal Stockholder in Section 3 of this Agreement; (b)
any breach, violation, nonperformance or non-fulfillment of any covenants,
agreements or obligations of such Principal Stockholder in this Agreement; (c)
from and after the Closing, any fraud committed by the Company Known by such
Principal Stockholder as of the date of this Agreement with respect to this
Agreement, the Merger Agreement or the Merger; and (d) any fraud committed by
such Principal Stockholder with respect to this Agreement, the Merger Agreement
or the Merger; provided, however, that no
indemnification payment to be made by a Principal Stockholder in respect of
indemnification required to be made pursuant to this Agreement and any Company
Stockholders’ Option Agreement to which such Principal Stockholder is a party,
in the aggregate, shall be required to be made to the Purchaser Indemnification
Parties in excess of the sum of, without duplication (i) the Merger
Consideration actually paid to such Principal Stockholder and (ii) the Merger
Consideration that would have been paid to such Principal Stockholder in respect
of any shares of Company Common Stock that were donated or transferred by such
Principal Stockholder since April 1, 2010. “Known” means the actual
knowledge of such Principal Stockholder without a duty of
investigation.
5. Release, Acknowledgement and
Waiver. Each Principal Stockholder, for himself and his
successors and assigns, releases the Company, the Surviving Corporation and
their respective Affiliates from any claims, actions, suits and damages in
connection with any claims such Principal Stockholder may have in his capacity
as a Stockholder. Such Principal Stockholder acknowledges and agrees
that neither the Company nor any Company Subsidiary has breached any obligation
owing to such Principal Stockholder, and that no facts or circumstances exist
which could provide the basis for such a claim against the Company, any Company
Subsidiary, the Surviving Corporation or their respective
Affiliates.
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6. Authorization of
Stockholders’ Representative. Each Principal
Stockholder hereby confirms his approval of the Stockholders’ Representative’s
power and authority, and each of the other provisions set forth in Article XI of
the Merger Agreement is hereby agreed, confirmed and ratified and shall be
deemed incorporated by reference herein. In addition to the powers
and authority granted thereby, the Stockholders’ Representative is hereby
appointed, authorized and empowered to act for the benefit of each Principal
Stockholder in connection with and to facilitate the consummation of the
transactions contemplated by this Agreement, the Merger Agreement and the Escrow
Agreement, and the transactions contemplated hereby and thereby, as the
exclusive agent and attorney-in-fact to act on behalf of each Principal
Stockholder, for the following purposes and with the following powers and
authority:
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(i)
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in
the event of an amendment to the Merger Agreement which is approved by the
Board of Directors of the Company, to confirm to the Purchaser that this
Agreement, the Option Agreement and, to the extent any Stockholder consent
is required therefor, that the consents of the Principal Stockholders in
the Company Stockholders’ Consents remain in full force and effect;
and
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(ii)
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to
execute and deliver such immaterial modifications or waivers in connection
with this Agreement or, to the extent any Stockholder consent is required,
the Merger Agreement or the Escrow
Agreement.
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7. Miscellaneous.
(a) Continuing Obligations; Equitable
Remedies. The restrictions set forth in Sections 1 and 2 are
considered by the parties to be reasonable for the purposes of protecting the
value of the business and goodwill of the Surviving Corporation (after giving
effect to the transactions contemplated by the Merger) and each Principal
Stockholder acknowledges that the Purchaser and the Surviving Corporation would
be irreparably harmed and that monetary damages would not provide an adequate
remedy to the Purchaser in the event the covenants contained in Sections 1 and 2
were not complied with in accordance with their terms. The Principal
Stockholders agree that any breach by such Principal Stockholder of any
provision of Sections 1 or 2 shall entitle the Purchaser and, after the Closing,
the Surviving Corporation to an injunction, specific performance and other
equitable relief to secure the enforcement of these provisions, in addition to
any other remedies (including damages) which may be available to the Purchaser
and the Surviving Corporation. If any of the Principal Stockholders
or any of their respective Affiliates, heirs and personal and legal
representatives breaches the covenants set forth in Section 1, the one-year
period from the Closing Date described therein during which such restrictions
apply shall be extended for a period equal to the period that a court having
jurisdiction has determined that such covenant has been breached. It
is the desire and intent of the parties that the provisions of Sections 1 and 2
be enforced to the fullest extent permissible under the laws and public policies
of each jurisdiction in which enforcement is sought. If any
provisions of Section 1 or 2 relating to the time period, scope of activities or
geographic area of restrictions is declared by a court of competent jurisdiction
to exceed the maximum permissible time period, scope of activities or geographic
area, as the case may be, the time period, scope of activities or geographic
area shall be reduced to the maximum which such court deems
enforceable. If any provisions of Section 1 or 2 other than those
described in the preceding sentence are adjudicated to be invalid or
unenforceable, the invalid or unenforceable provisions shall be deemed amended
(with respect only to the jurisdiction in which such adjudication is made) in
such manner as to render them enforceable and to effectuate as nearly as
possible the original intentions and agreement of the parties.
(b) Public
Announcement. No public announcement or other publicity
regarding this Agreement, the Merger Agreement or the transactions contemplated
hereby and thereby shall be made prior to or after the date hereof without the
prior written consent of Company and Purchaser as to form, content, timing and
manner of distribution. Notwithstanding the foregoing, nothing in
this Agreement shall preclude any party or its Affiliates from making any public
announcement or filing required pursuant to any federal or state securities law,
rule or regulation.
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(c) Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered personally, (b) when transmitted by facsimile
(receipt confirmed), (c) on the fifth (5th)
Business Day following mailing by registered or certified mail (return receipt
requested), or (d) on the next Business Day following deposit with an overnight
delivery service of national reputation, to the parties at the following
addresses and facsimile numbers (or at such other address or facsimile number
for a party as may be specified by like notice):
If to
Purchaser:
c/o
Clarus Corporation
One
Landmark Square, 22nd Fl
Stamford,
CT 06901
Attn: Executive
Chairman
Fax:
(203) 552-9607
with a
copy to:
Kane
Kessler, P.C.
1350
Avenue of the Americas, 26th
Floor
New York,
New York 10019
Attn.: Robert
L. Lawrence, Esq.
Jeffrey S.
Tullman, Esq.
Fax:
(212) 245-3009
If to a
Designated Officer/Director Principal Stockholder, to the address and/or
facsimile number set forth below such Designated Officer/Director Principal
Stockholder’s name on the signature page hereto.
(d) Severability. The invalidity of any
term or terms of this Agreement shall not affect any other term of this
Agreement which shall remain in full force and effect.
(e) No Third Party
Beneficiaries. The Company shall be a
third party beneficiary of the provisions of Sections 1, 2 and
7(a). Except as set forth in the immediate preceding sentence, there
are no third party beneficiaries of this Agreement or of the transactions
contemplated hereby and nothing contained herein shall be deemed to confer upon
any one other than the parties hereto (and their permitted successors and
assigns, and including, with respect to the Company, the Surviving Corporation
and Purchaser Parent) any right to insist upon or to enforce the performance of
any of the obligations contained herein.
(f) Time of the Essence. Time is of the essence
with respect to the obligations of the parties hereunder.
(g) Negotiation of Agreement. Each party hereto
acknowledges that it had the opportunity to consult with independent counsel of
its choice throughout all negotiations that have preceded the execution of this
Agreement. Each party and its counsel (if any) has cooperated in the
drafting and preparation of this Agreement and the other documents referred to
herein, and any and all drafts relating thereto will be deemed the work product
of the parties hereto and may not be construed against any party by reason of
its preparation. Accordingly, any rule of law or any legal decision
that would require interpretation of any ambiguities in this Agreement against
the party that drafted it is of no application and is hereby expressly
waived.
(h) Counterparts. This
Agreement may be executed in any number of counterparts each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all
purposes.
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(i) Successors. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
(j) Entire Agreement; Waiver and
Modification. This Agreement and the
Merger Agreement (together with the certificates, agreements, exhibits,
schedules, instruments and other documents referred to herein or therein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersedes all prior agreements, both written and
oral, with respect to such subject matter. Any provision of this Agreement
may be waived at any time in writing by the party which is entitled to the
benefits thereof. No change, modification, extension, termination,
notice of termination, discharge, abandonment or waiver of this Agreement or any
of its provisions, nor any representation, promise or condition relating to this
Agreement, will be binding upon any party unless made in writing and signed by
such party.
(k) Governing
Law. THIS AGREEMENT HAS BEEN ENTERED INTO AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
(l) Consent to Jurisdiction. EACH PARTY TO THIS
AGREEMENT, BY ITS EXECUTION HEREOF, (I) HEREBY IRREVOCABLY SUBMITS, AND AGREES
TO CAUSE EACH OF ITS SUBSIDIARIES TO SUBMIT, TO THE EXCLUSIVE JURISDICTION OF
THE STATE COURTS OF THE STATE OF DELAWARE LOCATED IN NEW CASTLE COUNTY (OR IF
JURISDICTION THERETO IS NOT PERMITTED BY LAW, THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE) FOR THE PURPOSE OF ANY 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 RELATING TO THE
SUBJECT MATTER HEREOF, (II) HEREBY WAIVES, AND AGREES TO CAUSE EACH OF ITS
SUBSIDIARIES TO WAIVE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND
AGREES NOT TO ASSERT, AND AGREES NOT TO ALLOW ANY OF ITS SUBSIDIARIES TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, ANY CLAIM THAT
IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH
PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS IMPROPER, OR THAT THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT
AND (III) HEREBY AGREES NOT TO COMMENCE OR TO PERMIT ANY OF ITS SUBSIDIARIES TO
COMMENCE ANY 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 RELATING TO THE SUBJECT MATTER HEREOF OTHER THAN BEFORE ONE OF
THE ABOVE-NAMED COURTS NOR TO MAKE ANY MOTION OR TAKE ANY OTHER ACTION SEEKING
OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL OF ANY 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
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).
7
(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
Pages Follows]
8
In
Witness Whereof, the parties have executed this Agreement as of the date
first above written.
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Purchaser:
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Everest/Sapphire
Acquisition, LLC
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By: /s/
Philip A.
Baratelli
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Name: Philip A. Baratelli
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Title: Secretary and
Treasurer
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Principal
Stockholders:
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/s/ Maria
Cranor
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/s/ Paul
Bancroft
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Name: Maria
Cranor
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Name: Paul
Bancroft
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Address: ______________________
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Address: ______________________
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______________________
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______________________
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Fax:
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Fax:
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/s/ Mark
Ritchie
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/s/ Christian
Jaeggi
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|
|
Name: Mark
Ritchie
|
Name: Christian
Jaeggi
|
|
|
Address: ______________________
|
Address: ______________________
|
|
|
______________________
|
______________________ | |
|
Fax:
|
Fax:
|
|
|
/s/ Scott
Bowers
|
/s/ Chris
Grover
|
|
|
Name: Scott
Bowers
|
Name: Chris
Grover
|
|
|
Address: ______________________
|
Address: ______________________
|
|
|
______________________
|
______________________
|
|
|
Fax:
|
Fax:
|
[Page
1 of 2 of Signature Pages to Company Stockholders’ Support
Agreement]
|
Principal
Stockholders (Cont’d):
|
||
|
/s/ Scot
Carlson
|
/s/ Michael
Metcalf
|
|
|
Name: Scot
Carlson
|
Name: Michael
Metcalf
|
|
|
Address: ______________________
|
Address: ______________________
|
|
|
______________________
|
______________________
|
|
|
Fax:
|
Fax:
|
|
|
/s/ Phillip Boone,
Jr.
|
/s/ Ed
McCall
|
|
|
Name: Phillip
Boone, Jr.
|
Name: Ed
McCall
|
|
|
Address: ______________________
|
Address: ______________________
|
|
|
______________________
|
______________________
|
|
|
Fax:
|
Fax:
|
[Page
2 of 2 of Signature Pages to Company Stockholders’ Support
Agreement]
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
|
||
|
Maria
Cranor
|
6,509
|
1,227
|
||
|
Mark
Ritchie
|
1,410
|
232
|
||
|
Scott
Bowers
|
30
|
0
|
||
|
Scot
Carlson
|
756
|
100
|
||
|
Paul
Bancroft
|
7,952
|
0
|
||
|
Christian
Jaeggi
|
2,041
|
0
|
||
|
Chris
Grover
|
1,160
|
9
|
||
|
Michael
Metcalf
|
660
|
0
|
||
|
Edward
McCall
|
158
|
0
|
||
|
Phillip
Boone, Jr.
|
1751
|
0
|