Unassociated Document


     

    Exhibit
10.7


     

    Escrow
Agreement

    


    This Escrow Agreement (this “Agreement”) is made
as of May 28, 2010, by and among (a) Everest/Sapphire
Acquisition, LLC, a Delaware limited liability company (“Purchaser”); (b)
Ed
McCall, an individual, in his capacity as Stockholders’ Representative
(“Stockholders’
Representative”); (c) Black
Diamond Equipment, Ltd., a Delaware corporation (including the Surviving
Corporation, the “Company”); and (d)
U.S. Bank
National Association, as escrow agent (the “Escrow
Agent”).  Capitalized terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to them in the Merger Agreement
(as defined below).  For purposes of this Agreement, the Stockholders
and the Option Holders shall collectively be referred to herein as the “Company Escrow
Parties”.


    


    Recitals

    


    Whereas,
the parties hereto are entering into this Agreement pursuant to that certain
Agreement and Plan of Merger, dated as of May 7, 2010, by and among Clarus
Corporation, a Delaware corporation (“Purchaser Parent”),
the Purchaser, Sapphire
Merger Corp., a Delaware corporation and wholly owned direct subsidiary
of Purchaser (“Merger
Sub”), the Company and the Stockholders’ Representative, (the “Merger Agreement”; an
executed copy of which has been provided to Escrow Agent), pursuant to which
Merger Sub has agreed to merge with and into the Company with the result that
the Company shall be the surviving corporation and shall become a wholly owned
subsidiary of the Purchaser (the “Merger”);

    


    Whereas,
pursuant to this Agreement, Section 11.1 of the Merger Agreement, Section 6 of
each Company Stockholders’ Support Agreement and
Section 3 of each Option Holder Agreement (collectively, the “Authorizing
Provisions”), the Stockholders’ Representative has been appointed,
authorized and empowered by the Company Escrow Parties as the agent and
attorney-in-fact to act on behalf of the Company Escrow Parties with respect to
certain matters; and

    


    Whereas,
under the terms of the Merger Agreement, the Escrow Funds (as hereinafter
defined) are to be delivered to the Escrow Agent, deposited into the escrow
account established hereunder to (a) secure payment of the indemnification
obligations of the Company and the stockholders of the Company thereunder
pursuant to Sections 8.2(a) and 10.3(a) of the Merger Agreement and distributed
by the Escrow Agent pursuant to the terms and conditions of this Agreement and
(b) provide for the payment by the Company of certain amounts that may
become payable pursuant to Retention Bonus Agreements.

    


    Now,
Therefore, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby covenant
and agree as follows:


    


    Article
I

    Appointment
of Escrow Agent;

    Establishment
of Escrow Arrangement


    


    1.1           Appointment of the Escrow
Agent.  The Purchaser and the Stockholders’ Representative
hereby constitute and appoint the Escrow Agent as, and the Escrow Agent hereby
agrees to assume and perform the duties of, the escrow agent under and pursuant
to the terms and conditions of this Agreement.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    1.2          Deposit of Escrow
Funds.  Simultaneously with the execution and delivery of this
Agreement, the Purchaser will deliver to the Escrow Agent, by wire transfer of
same day funds, the following sums:

    


    (a)           Four
Million Five Hundred Thousand Dollars ($4,500,000.00) (such sum together with
any Escrow Earnings (as hereinafter defined) thereon and subject to the
deductions provided for in this Agreement, the “Indemnification
Fund”); and

    


    (b)           Three
Hundred Seventy-Five Thousand Dollars ($375,000) (such sum together with any
Escrow Earnings thereon and subject to the deductions provided for in this
Agreement, the “Retention Bonus Fund”
and together with the Indemnification Fund, the “Escrow
Funds”).

    


    All such
sums shall be delivered to the following account:

    


    
      	
               
      

            	
              BBK:

            	
              U.S.
      Bank N.A. (ABA #091000022)

            


    

    
      	
               
      

            	
              BNF:

            	
              U.S.
      Bank Trust N.A./AC #180121167365

            


    

    
      	
               
      

            	
              Ref:

            	
              Everest/Sapphire
      Acq(                                )

            


    

    
      	
               
      

            	
              Attn:

            	
              Ryan
      Brennan/206-344-4648

            


    

    


    The Escrow Agent agrees to hold the
Escrow Funds in escrow subject to the terms and conditions of this
Agreement.

    


    1.3           Transferability.  Except
as provided in Section 5.9 hereof, the interests of the Purchaser, the
Stockholders’ Representative, and the Company Escrow Parties in the Escrow Funds
shall not be assignable or transferable by any party hereto other than by
operation of law or pursuant to the terms of this Agreement.  Notice
of any such assignment or transfer shall be delivered in writing by such
transferring party to each other party hereto and no such assignment or transfer
shall be valid until such notice is provided.

    


    1.4           Authority of Stockholders’
Representative.  The Stockholders’ Representative confirms that
he has been appointed by, and is authorized and empowered to act on behalf of,
the Company Escrow Parties as their agent and representative for and in respect
of each of the matters set forth in the Authorizing Provisions including,
without limitation, each of the matters contemplated to be decided or acted
upon, or performed by, the Stockholders’ Representative pursuant to this
Agreement on behalf of the Company Escrow Parties, and each party hereto shall
be entitled to rely on such appointment and power for all purposes of this
Agreement.

    


    1.5           Investment of Escrow
Funds.  The Escrow Agent shall establish and maintain one
escrow account for the Indemnification Fund and one escrow account for the
Retention Bonus Fund and shall promptly invest and reinvest the Escrow Funds and
any earnings on, proceeds from investment of, and interest accruing on the
Escrow Funds (the “Escrow Earnings”)
through the date of payment of all funds therein in the U.S. Bank Money Market
Savings Account or as or as otherwise instructed, such instruction to be jointly
in writing by the Purchaser and the Stockholders’
Representative.  Escrow Earnings will be added to the respective
Escrow Funds and distributed pursuant to Article II hereof.  The
parties hereto acknowledge that the U. S. Bank Money Market account is Escrow
Agent’s interest-bearing money market deposit account designed to meet the needs
of Escrow Agent’s Corporate Trust Services Escrow Group and other Corporate
Trust customers of Escrow Agent.  Selection of this investment
includes authorization to place funds on deposit with Escrow
Agent.  Escrow Agent uses the daily balance method to calculate
interest on this account (actual/365 or 366).  This method applies a
daily periodic rate to the principal balance in the account each
day.  Interest is accrued daily and credited monthly to the
account.  Interest rates currently offered on the accounts are
determined at Escrow Agent’s discretion and may be tiered by customer deposit
amount.  The owner of the accounts is Escrow Agent as Agent for its
trust customers.  Escrow Agent’s trust department performs all account
deposits and withdrawals.  Each customer’s deposit is insured by the
Federal Deposit Insurance Corporation as determined under FDIC Regulations, up
to applicable FDIC limits.  A statement of citizenship will be
provided if requested by Agent.  Agent shall not be responsible for
maximizing the yield on the Escrow Funds.  Escrow Agent shall not be
liable for losses, penalties or charges incurred upon any sale or purchase of
any such investment.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    Article
II

    Distribution
of Escrow Funds


    


    2.1           Termination of
Agreement.  Unless the Purchaser and the Stockholders’
Representative provide the Escrow Agent joint written instructions to the
contrary, this Agreement shall terminate on the date when all of the Escrow
Funds have been distributed in their entirety by the Escrow Agent in accordance
with the terms of this Agreement; provided, however, that the
provisions of Section 3.1 hereof shall survive such termination and/or the
resignation or removal of the Escrow Agent.

    


    2.2           Delivery of Escrow
Funds.

    


    (a)           Subject
to the withholding of the Retained Escrow Portion (as hereinafter defined)
pursuant to Section 2.7 hereof, the Escrow Agent shall, no later than ten (10)
Business Days after the first anniversary of the date of this Agreement (the
“Scheduled Release
Date”) deliver the Indemnification Fund to the Company Escrow Parties, it
being agreed that each such Person shall be delivered such Person’s “Pro Rata Percentage”
(as set forth opposite such Person’s name on Exhibit A) of the
aggregate amount of the Indemnification Fund being released.  Such
amount shall be delivered to bank account(s) designated in writing by the
Stockholders’ Representative on behalf of such Persons at least three (3)
Business Days prior to the payment date or, if no such wire instructions have
been provided for a Stockholder, by check payable to such Stockholder delivered
or mailed to the address for such Stockholder provided by the Stockholders’
Representative, it being agreed that any amounts delivered in respect of the
Option Holders shall be delivered to the Company for payment through its payroll
system.  For purposes hereof, a “Business Day” shall
mean any day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to
close.

    


    (b)           If
the Escrow Agent is provided written instructions signed by the Company and the
Stockholders’ Representative to release any amount of the Retention Bonus Fund
prior to the Scheduled Release Date, such amount shall be promptly delivered to
the bank account(s) of the Company designated by the Chief Executive Officer or
Chief Financial Officer of the Company at least three (3) Business Days prior to
the payment date.  With regard to any amounts remaining in the
Retention Bonus Fund on the Scheduled Release Date, the Escrow Agent shall, no
later than ten (10) Business Days after the Scheduled Release Date, deliver the
remaining Retention Bonus Fund to the bank account(s) of the Company designated
by the Chief Executive Officer or Chief Financial Officer of the Company at
least three (3) Business Days prior to the payment date. All amounts delivered
to the Company pursuant to this Section 2.2(b) shall be paid to employees having
Company Retention Agreements (who remain eligible for such retention bonuses
pursuant to the terms thereof) through the Company’s payroll system, with any
balance of the Retention Bonus Fund to be retained by the Company.

    


    2.3           Purchaser Indemnity
Claims.  At any time prior to the Scheduled Release Date, the
Purchaser may give written notice (an “Indemnity Notice”),
which notice shall state that it is given pursuant to this Section 2.3, of each
claim for payment to the Purchaser from the Indemnification Fund for
indemnification pursuant to Sections 8.2(a) or 10.3(a) of the Merger Agreement
(each, a “Purchaser
Indemnity Claim”) to each of the Stockholders’ Representative and Escrow
Agent setting forth (i) the Purchaser’s belief of the basis therefor, (ii) a
description of the matter requiring such payment or that is subject to
indemnification in reasonable detail in light of the circumstances then known to
the Purchaser and (iii) either (A) the amount of the Purchaser Indemnity Claim,
if determined, or (B) the Purchaser’s estimate of the reasonably foreseeable
amount of the Purchaser Indemnity Claim.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

    2.4           Purchaser Indemnity Claims
Not Disputed by the Stockholders’ Representative.  If, within
thirty (30) days after receipt of the Indemnity Notice, the Escrow Agent and the
Purchaser have not received written notice from the Stockholders’ Representative
that the Stockholders’ Representative disputes the Purchaser Indemnity Claim
described in such Indemnity Notice or the amount the Purchaser seeks payment on
account of such Purchaser Indemnity Claim (a “Dispute Notice”), the
Purchaser shall be entitled to make demand (an “Undisputed Indemnity Notice
Demand”) that the Escrow Agent either (i) deliver to the Purchaser,
if the amount of such Purchaser Indemnity Claim has then been determined, an
aggregate amount of cash from the Indemnification Fund equal to the amount of
the Purchaser Indemnity Claim set forth in such Indemnity Notice up to the
amount then remaining in the Indemnification Fund or (ii) retain, as part of the
Retained Escrow Portion (as defined below) an aggregate amount of cash from the
Indemnification Fund equal to the estimated amount of the Purchaser Indemnity
Claim set forth in such Indemnity Notice, up to the amount then remaining in the
Indemnification Fund.

    


    2.5           Purchaser Indemnity Claim
Disputed by the Stockholders’ Representative in Whole.  In the
event that the Stockholders’ Representative disputes an entire Purchaser
Indemnity Claim, the Stockholders’ Representative shall, within thirty (30) days
after receipt of the applicable Indemnity Notice, provide the Escrow Agent and
the Purchaser a Dispute Notice setting forth the basis therefor in reasonable
detail in light of the circumstances then known to the Stockholders’
Representative, and the Escrow Agent shall not distribute any portion of the
Indemnification Fund in respect of such Purchaser Indemnity Claim until the
Escrow Agent receives (i) a written agreement signed by the Purchaser and the
Stockholders’ Representative stating the aggregate amount to which the Purchaser
is entitled in connection with such Purchaser Indemnity Claim (an “Indemnity Claim
Agreement”), provided that the
Escrow Agent shall have given written notice of the proposed distribution of
such amount, together with copies of all such documents and opinions to the
Purchaser and the Stockholders’ Representative at least five (5) Business Days
prior to the date of such distribution by the Escrow Agent, or (ii) a copy of an
arbitrator’s award or court order or judgment stating the aggregate amount to
which the Purchaser is entitled in connection with such Purchaser Indemnity
Claim, provided
that such award, order or judgment is final and binding with respect to the
Purchaser and the Stockholders’ Representative and from which no appeal may be
taken or for which the time to appeal has expired (a “Final
Judgment”).  After the occurrence of the events specified in
clause (i) or (ii) above, the Escrow Agent shall deliver to Purchaser an amount
of cash from the Indemnification Fund equal to the amount specified in the
Indemnity Claim Agreement or Final Judgment, as applicable, up to the amount
remaining in the Indemnification Fund.  The Stockholders’
Representative shall, upon the Purchaser’s request, make available to the
Purchaser all relevant information concerning the Dispute Notice relating to a
Purchaser Indemnity Claim as the Purchaser shall reasonably request and that is
in or comes into the possession of the Stockholders’ Representative and/or the
Company Escrow Parties.



    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    2.6          Purchaser Indemnity Claim
Disputed by the Stockholders’ Representative in Part.  In the
event that the Stockholders’ Representative disputes part of, but not all of, a
Purchaser Indemnity Claim, the Stockholders’ Representative shall, within thirty
(30) days after receipt of the Purchaser Indemnity Notice, deliver to the Escrow
Agent and the Purchaser a Dispute Notice setting forth (a) the basis for the
disputed portion of such Purchaser Indemnity Claim in reasonable detail in light
of the circumstances then known to the Stockholders’ Representative and (b) the
undisputed portion of the Purchaser Indemnity Claim and an authorization to
release a portion of the Indemnification Fund to Purchaser in respect thereof to
the extent such amount is determined, up to the amount remaining in the
Indemnification Fund, and the Escrow Agent shall, with respect to that portion
of the Purchaser Indemnity Claim that is not disputed by the Stockholders’
Representative (i) deliver to the Purchaser an aggregate amount of cash from the
Indemnification Fund equal to the amount of the Purchaser Indemnity Claim set
forth in such Indemnity Notice that has been determined, up to the amount
remaining in the Indemnification Fund, and (ii) retain, as part of the Retained
Escrow Portion, an aggregate amount of cash from the Indemnification Fund equal
to the estimated amount of the Purchaser Indemnity Claim set forth in such
Indemnity Notice (to the extent that the amount of such Purchaser Indemnity
Claim is not determined), up to the amount remaining in the Indemnification Fund
after payment of the amount set forth in clause (i) above; provided, however,
notwithstanding clauses (i) and (ii) above, the Escrow Agent shall not deliver
any portion of the Indemnification Fund that is attributable to the portion of
such Purchaser Indemnity Claim that is disputed by the Stockholders’
Representative.  The Escrow Agent shall not deliver any of the cash in
the Indemnification Fund to the Purchaser or the Company Escrow Parties relating
to the disputed portion of such Purchaser Indemnity Claim, except in accordance
with the procedures set forth in Section 2.5 of this Agreement as if the
disputed portion of such Purchaser Indemnity Claim consisted of a separate
Purchaser Indemnity Claim that was disputed by the Stockholders’ Representative
in whole.  Receipt by Purchaser of the undisputed portion of any
Purchaser Indemnity Claim shall not be deemed to be a waiver of any rights to
the disputed portion of such Purchaser Indemnity Claim.

    


    2.7          Retention of Escrow Funds
After Scheduled Release Date.  After the Scheduled Release
Date, the Escrow Agent shall continue to hold an amount of cash in the
Indemnification Fund having an aggregate value equal to the entire amount of any
unresolved Purchaser Indemnity Claim that is the subject of an Indemnity Notice
received by the Escrow Agent prior to the Scheduled Release Date (the “Retained Escrow
Portion”) until such time as the Escrow Agent receives for such
unresolved Indemnity Claim (i) an Indemnity Claim Agreement or (ii) a Final
Judgment, in each case evidencing the ultimate resolution of any of the
underlying claims referred to in such Indemnity Notice, at which time, and no
later than ten (10) Business Days after receipt of the Indemnity Claim Agreement
or Final Judgment, as applicable, the Escrow Agent shall deliver an amount of
cash from the Retained Escrow Portion to the Purchaser specified in the
Indemnity Claim Agreement or Final Judgment, as applicable, and the remaining
Retained Escrow Portion, if any, to the Company Escrow Parties in accordance
with the procedures set forth in Section 2.2(a) of this Agreement.

    


    2.8          Payments to the
Purchaser.  Any portion of the Indemnification Fund to be paid
to the Purchaser in cash pursuant to any provision of this Agreement will be
paid by bank check or wire transfer of immediately available funds pursuant to
wire transfer instructions given to the Escrow Agent by the
Purchaser.  In the event that wire transfer instructions are given,
whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to
seek confirmation of such instructions by telephone call-back to the person or
persons designated on Exhibit B hereto, and
the Escrow Agent may rely upon the confirmation of anyone purporting to be the
person or persons so designated.  The persons and telephone numbers
for call-backs may be changed only in a writing actually received and
acknowledged by the Escrow Agent.  The Escrow Agent may rely solely
upon any account numbers or similar identifying numbers provided in writing by
the Purchaser, Stockholders’ Representative or the Company, as applicable, to
identify (i) the beneficiary, (ii) the beneficiary’s bank or (iii) an
intermediary bank.  Notwithstanding anything in this Agreement to the
contrary, the Purchaser shall have no right to receive any funds from the
Retention Bonus Fund for any Purchaser Indemnity Claim.


    


    Article
III

    Escrow
Agent


    


    3.1          Exculpation and
Indemnification of the Escrow Agent.  The Escrow Agent’s duties
and responsibilities shall be limited to those expressly set forth in this
Agreement.  Without limiting the foregoing, it is understood and
agreed that the Escrow Agent shall:

    


    (a)           be
under no duty to accept information from any Person other than the Purchaser or
the Stockholders’ Representative (as applicable) in the manner provided in this
Agreement;


    
      
         


      

      
        4

        
          

        

      

      
         


      

    

     

    (b)           be
protected in acting upon any written notice, opinion, request, certificate,
approval, consent, judgment, arbitration award, demand or other document
believed by it to be genuine and to be signed by the proper Person or Persons,
including but not limited to a determination of jurisdiction of any
court;

    


    (c)           upon
delivery of any notice in writing to the intended recipient thereof, be deemed
for all purposes to have given, delivered and received such notice (i) if the
same is delivered personally to the Person or to an officer of the Person to
whom the same is directed, or (ii) when the same is actually received, if sent
by a nationally recognized courier service (which provides proof of delivery),
or by facsimile (if such facsimile is followed by a hard copy of the facsimile
communication sent promptly thereafter by a nationally recognized courier
service (which provides proof of delivery)), addressed as follows:

    


    If to the
Stockholders’ Representative:

    


    Ed
McCall

    2114
Manhattan Avenue

    Hermosa
Beach, CA  90254

    
      	
               
      

            	
              Fax:

            	
              (310)
      318-5252

            


    

    


    with a
copy to:

    


    Davis
Wright Tremaine LLP

    1201 3rd
Avenue

    Suite
2200

    Seattle,
WA  98101

    
      	
               
      

            	
              Attn:

            	
              Bruce
      T. Bjerke, Esq.

            


    

    
      	
               
      

            	
              Fax:

            	
              (206)
      757-7071

            


    

    


    If to the
Purchaser or the Company:

    


    c/o
Clarus Corporation

    One
Landmark Square, 22nd Fl

    Stamford,
CT  06901

    
      	
               
      

            	
              Attn:

            	
              Executive
      Chairman

            


    

    
      	
               
      

            	
              Fax:

            	
              (203)
      552-9607

            


    

    


    and

    


    Black
Diamond Equipment, Ltd.

    2084 East
3900 South

    Salt Lake
City, UT 84124

    
      	
               
      

            	
              Attn:

            	
              President

            


    

    
      	
               
      

            	
              Fax:

            	
              (801)
      278-5544

            


    


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

    


    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

            


    

    


    or, in
each case, to such other address as any party hereto may specify by notice in
writing given in the manner described above in this clause (c);

    


    (d)           be
indemnified and held harmless jointly and severally by the other parties hereto
against any claim made against it by reason of its acting or failing to act in
connection with any of the transactions contemplated hereby and against any
loss, liability or expense, including the expense of defending itself (including
reasonable attorneys’ fees) against any claim of liability it may sustain in
carrying out the terms of this Agreement, except such claims as are occasioned
by its bad faith, gross negligence, willful misconduct, fraud or any other
breach of fiduciary duty;

    


    (e)           have
no liability or duty to inquire into the terms and conditions of any agreements
to which the Escrow Agent is not a party nor be subject to or obliged to
recognize any other agreement between the Purchaser and the Stockholder
Representative or Company Escrow Parties (other than referenced defined terms of
the Merger Agreement, a copy of which has been furnished to the Escrow Agent
herewith) even though reference to such an agreement may be made herein, its
duties under this Agreement being understood to be purely ministerial in
nature;

    


    (f)           be
permitted to consult with counsel of its choice and shall not be liable for any
action taken, suffered or omitted by it in good faith in accordance with the
written advice of such counsel; provided, that,
nothing contained in this clause (f), nor any action taken by the Escrow Agent,
or of any counsel, shall relieve the Escrow Agent from liability for any claims
which are occasioned by its bad faith, gross negligence, willful misconduct,
fraud or any other breach of fiduciary duty, all as provided in clause (d)
above;

    


    (g)           not
be bound by any modification, amendment, termination, cancellation, rescission
or supersession of this Agreement, unless the same shall be in writing and
signed by the parties hereto;

    


    (h)           have
no liability for any act or omission done pursuant to the instructions contained
or expressly provided for herein, or written instructions given by the Purchaser
and the Stockholders’ Representative pursuant hereto, or for incidental,
punitive or consequential damages, other than for its gross negligence or
willful misconduct;

    


    (i)         
  have no liability in connection with its investment or reinvestment
of any cash held by it hereunder in good faith, in accordance with the terms
hereof, including, without limitation, any liability for delays (not resulting
from bad faith, gross negligence, willful misconduct, fraud or any other breach
of fiduciary duty) in the investment or reinvestment of the Escrow Funds, or any
loss of interest incident to such delays.

    


    (j)       
    be reimbursed from either the Indemnification Fund or
the Retention Bonus Fund, as applicable, for all reasonable expenses,
disbursements and advances incurred or made by it in accordance with any
provisions of this Agreement in respect of the Indemnification Fund or the
Retention Fund, as applicable, except any such expenses, disbursements or
advances as may be attributable to its gross negligence, willful misconduct, bad
faith, fraud or any other breach of fiduciary duty.


    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    (k)           not
be required to make any representation as to the validity, value, genuineness or
the collectability of any security or other document or instrument held by or
delivered to it;

    


    (l)       
    not be called upon to advise any party as to the wisdom
in selling or retaining or taking or refraining from any action with respect to
any securities or other property deposited hereunder;

    


    (m)          be
authorized by the Purchaser and Stockholders’ Representative to use the services
of any United States central securities depository it reasonably deems
appropriate, including, without limitation, the Depositary Trust Company and the
Federal Reserve Book Entry System, for any securities held hereunder;
and

    


    (n)     
     maintain books and records regarding its
administration of the Escrow Funds, and the deposit, investment, collections and
disbursement or transfer of the assets in the Escrow Funds, shall retain copies
of all written notices and directions sent or received by it in the performance
of its duties hereunder, and shall afford each of the Purchaser and the
Stockholders’ Representative reasonable and prompt access, during regular
business hours, to review and make photocopies (at such party’s cost) of the
same.

    


    3.2          Resignation or Replacement
of the Escrow Agent.  In addition, the Escrow Agent may resign
and be discharged from its duties under this Agreement at any time by giving at
least thirty (30) days’ prior written notice of such resignation to the
Purchaser and the Stockholders’ Representative and specifying a date upon which
such resignation shall take effect.  Upon receipt of such notice, a
successor escrow agent shall jointly be appointed by the Purchaser and the
Stockholders’ Representative, such successor escrow agent to become the Escrow
Agent hereunder on the resignation date specified in such notice and the Escrow
Agent shall deliver the assets remaining in the Escrow Funds, less any fees and
expenses due to the Escrow Agent, to such successor Escrow Agent, whereupon the
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Agreement.  If no successor Escrow
Agent is appointed prior to the date specified, the Escrow Agent shall have the
right to deposit the Escrow Funds (including any Escrow Earnings) with a court
of competent jurisdiction and the Escrow Agent shall have no further obligation
with respect thereto.  The Purchaser and the Stockholders’
Representative, acting jointly, may at any time substitute a new escrow agent by
giving ten (10) days’ notice thereof to the Escrow Agent then acting and paying
all fees and expenses of such Escrow Agent.  Any Person into which the
Escrow Agent may be merged or converted or with which it may be consolidated, or
any Person to which all or substantially all the escrow business of the Escrow
Agent’s corporate trust line of business may be transferred, shall be the Escrow
Agent under this Agreement without further act.



    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    3.3           Payment of Fees to Escrow
Agent.  The Escrow Agent shall be paid a fee for its services
as set forth on Exhibit C attached
hereto and incorporated herein and reimbursed for its reasonable costs and
expenses incurred.  If the Escrow Agent’s fees, or reasonable costs or
expenses, provided for herein, with respect to the Indemnification Fund or the
Retention Bonus Fund are not paid within ten (10) Business Days after the Escrow
Agent delivers to the Purchaser (in respect of the Indemnification Fund) or the
Company (in respect of the Retention Bonus Fund) an invoice therefor, Escrow
Agent shall have the right to sell such portion of the Indemnification Fund or
the Retention Bonus Fund, as applicable, and reimburse itself therefor from the
proceeds of such sale or from the cash held therein in respect of such fees,
costs or expenses.  In the event that the terms and conditions of this
Agreement are not promptly fulfilled, or if the Escrow Agent renders any service
not provided for in this Agreement, or if the Stockholders’ Representative and
the Purchaser request a substantial modification of its terms, or if any
controversy arises, or if the Escrow Agent is made a party to, or intervenes in,
any litigation pertaining to this escrow or its subject matter, in respect of
the Indemnification Fund or the Retention Bonus Fund, the Escrow Agent shall be
reasonably compensated for such extraordinary services and reimbursed for all
costs, attorneys’ fees, including allocated costs of in-house counsel, and
expenses occasioned by such default, delay, controversy or litigation and the
Escrow Agent shall have the right to retain all documents and/or other things of
value at any time held by the Escrow Agent in the Indemnification Fund or
Retention Bonus Fund, as applicable, until such compensation, fees, costs and
expenses are paid.  The Company and the Stockholders’ Representative
jointly and severally promise to pay such sums relating to the Indemnification
Fund upon demand and the Company agrees to pay such sums relating to the
Retention Bonus Fund upon demand.  The Company will pay all amounts
owing to the Escrow Agent hereunder (whether as fees, reimbursement of expenses
or otherwise) and the Escrow Agent may deduct such sums from the funds deposited
in the manner provided herein.  The Company and Stockholders’
Representative and their respective successors and assigns agree jointly and
severally to indemnify and hold the Escrow Agent harmless against any and all
losses, claims, damages, liabilities and expenses, including reasonable costs of
investigation, counsel fees, including allocated costs of in-house counsel and
disbursements that may be imposed on the Escrow Agent or incurred by the Escrow
Agent in connection with the performance of its duties under this Agreement with
respect to the Indemnification Fund, including but not limited to any litigation
arising in connection therewith or involving such subject matter.  The
Company and its respective successors and assigns agree to indemnify and hold
the Escrow Agent harmless against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation, counsel
fees, including allocated costs of in-house counsel and disbursements that may
be imposed on the Escrow Agent or incurred by the Escrow Agent in connection
with the performance of its duties under this Agreement with respect to the
Retention Bonus Fund, including but not limited to any litigation arising in
connection therewith or involving such subject matter.  The Escrow
Agent shall have a first lien on the assets of the Indemnification Fund or the
Retention Bonus Fund, as applicable, pursuant to this Agreement for such
compensation and expenses.


    


    Article
IV

    Tax
Matters


    


    4.1           Tax
Reporting.  The Escrow Agent does not have any interest in the
Escrow Funds deposited hereunder, but is serving as escrow holder only and
having only possession thereof.  The parties hereto shall, for federal
income tax purposes and, to the extent permitted by applicable law, state and
local tax purposes, report consistent with the Company Escrow Parties as the
owners of the Indemnification Fund and the Company as the owner of the Retention
Bonus Fund, it being agreed that (a) each of the Company Escrow Parties
shall be attributed for taxation purposes with an amount of the Indemnification
Fund and Escrow Earnings on the Indemnification Fund equal to such Person’s Pro
Rata Percentage as set forth opposite such Person’s name on Exhibit A hereto and
(b) the Company shall be attributed for taxation purposes with an amount of
the Retention Bonus Fund and Escrow Earnings on the Retention Bonus
Fund.

    


    4.2           Payment of
Taxes.  The Company Escrow Parties shall pay all applicable
income, withholding and any other taxes imposed or measured by income which is
attributable to income from the Indemnification Fund, and the Company shall pay
all income, withholding and any other taxes imposed or measured by income which
is attributable to income from the Retention Bonus Fund, and each shall file all
tax and information returns applicable thereto.  Each such Person
shall include in its gross income any Escrow Earnings for each taxable year of
such Person (a “Taxable Year”) that
have accrued during such Taxable Year, based on such Person’s Pro Rata
Percentage as set forth opposite such Person’s name on Exhibit A hereto with
respect to the Indemnification Fund, in each case without regard to whether such
Escrow Earnings have been distributed.



    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    4.3           Tax Reporting Documentation;
Withholding.  With respect to amounts held in the
Indemnification Fund, the Stockholders’ Representative (on behalf of each of the
Company Escrow Parties other than the Option Holders) and the Company shall
provide, and with respect to the Retention Bonus Fund the Company shall provide,
to the Escrow Agent upon execution of this Agreement each of the Company Escrow
Parties’ (other than the Option Holders), or Company’s, as applicable,
respective certified tax identification numbers on Forms W-9 (or Forms W-8 if
they are non-U.S. persons) and such other tax-related forms, documents and
information as the Escrow Agent may reasonably request (collectively, “Tax Reporting
Documentation”).  The parties hereto understand that, if such
Tax Reporting Documentation is not so certified to the Escrow Agent, the Escrow
Agent may be required by the Internal Revenue Code of 1986, as it may be amended
from time to time, to withhold a portion of any Escrow Earnings earned on the
investment of the Escrow Funds or other property held by the Escrow Agent
pursuant to this Agreement.  The Escrow Funds will be subject to
applicable United States withholding tax and any distribution thereof to (I)(a)
the Company Escrow Parties other than the Option Holders and (b) the Company
(with respect to the Indemnification Fund) and (II) the Company with respect to
the Retention Bonus Fund, will be made net of such withholding if required by
law, which withholding shall be determined on the basis of the Tax Reporting
Documentation provided pursuant to this Agreement as required
herein.  All interest or other income earned under this Agreement
shall be reported by the Escrow Agent to the Internal Revenue Service,
applicable tax authorities of the State of Washington or other taxing authority
if and as required by law.  The Escrow Agent shall report and withhold
any taxes from the Company or any of the Company Escrow Parties (other than the
Option Holders) as it determines is required by any law or regulation in effect
at the time of the distribution and shall remit such taxes to the appropriate
authorities.

    


    4.4           Survival.  Notwithstanding
any other provision of this Agreement, this Article IV shall survive any
termination of this Agreement and/or the resignation or removal of the Escrow
Agent.


    


    Article
V

    Miscellaneous

    


    5.1           Notices.  Any
notice, demand, or communication required or permitted to be given by any
provision of this Agreement shall be in writing and shall be deemed to have been
delivered, given, and received for all purposes (i) if delivered personally to
the Person or to an officer of the Person to whom the same is directed, or (ii)
when the same is actually received, if sent by a nationally recognized courier
service (which provides proof of delivery), or by facsimile (if such facsimile
is followed by a hard copy of the facsimile communication sent promptly
thereafter by a nationally recognized courier service (which provides proof of
delivery)), addressed (i) to the addresses of the Purchaser and the
Stockholders’ Representative set forth in Section 3.1(c) above, or (ii) to the
address of the Escrow Agent as follows:

    


    U.S. Bank
National Association

    60
Livingston Ave

    EP-MN-WS3T

    St. Paul,
MN 55107-2292

    Attention:Scott
Kjar

    Telephone:(651)
495-3808

    Facsimile(651)
495-8708

    


    With a
faxed copy to:

    Shirley
Young

    (206)
344-4630

    


    Notwithstanding the foregoing, any
notice addressed to the Escrow Agent shall be effective only upon receipt at the
address set forth above.  If any notice or other document is required
to be delivered to the Escrow Agent and any other Person, the Escrow Agent may
assume without inquiry that it has been received by such other Person if it has
been received by the Escrow Agent.


    
      
         


      

      
        9

        
          

        

      

      
         


      

    

    


    5.2           Confidentiality.  The
Escrow Agent agrees that it will not disclose to any third party any of the
terms or provisions of the Merger Agreement, the Merger or the other
transactions contemplated in the Merger Agreement, and that the Escrow Agent
will keep the same confidential.  Notwithstanding the foregoing,
nothing shall prevent the Escrow Agent from any required disclosure pursuant to
a subpoena, court order or other regulatory process applicable to the Escrow
Agent; provided, that the
Escrow Agent will give prompt written notice to the other parties hereto of any
such proceeding and cooperate with each such party in such party’s attempts to
retain the confidential nature of the Merger Agreement, the Merger and the other
transactions contemplated in the Merger Agreement, all at the cost of such
party.

    


    5.3           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 Stockholders’
Representative 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 pursuant to any federal or state securities law, rule or
regulation.

    


    5.4           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.

    


    5.5           No Third Party
Beneficiaries.  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) any right to insist upon or to enforce the
performance of any of the obligations contained herein.

     

    5.6           Time of the
Essence.  Time is of the essence with respect to the
obligations of the parties hereunder.

     

    5.7           Negotiation of
Agreement.  Each of the parties acknowledges that it has been
represented by independent counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement.  Each party and
its counsel 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.

     

    5.8           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.

     

    5.9           Successors and
Assigns.  This Agreement
will inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and permitted assigns; provided, however, that this
Agreement may not be assigned by any party hereto, in whole or in part, without
the prior written consent of the other parties hereto (which consent may be
withheld in the sole discretion of such other party), except that the Purchaser
may assign its rights hereunder to an Affiliate of the Purchaser.  Any
attempted assignment in violation of this Section 5.9 shall be null and
void.


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    5.10           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.

     

    5.11           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.

     

    5.12           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 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.

     

    [remainder
of page intentionally left blank]


    
      
         


      

      
        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