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TAX INDEMNITY AGREEMENT

Indemnification Agreement

TAX INDEMNITY AGREEMENT | Document Parties: CHINA PRECISION STEEL, INC. | OraLabs Holding Corp.,  | OraLabs, Inc | Partner Success Holdings Limited You are currently viewing:
This Indemnification Agreement involves

CHINA PRECISION STEEL, INC. | OraLabs Holding Corp., | OraLabs, Inc | Partner Success Holdings Limited

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Title: TAX INDEMNITY AGREEMENT
Governing Law: Colorado     Date: 1/4/2007
Industry: Personal and Household Prods.    

TAX INDEMNITY AGREEMENT, Parties: china precision steel  inc. , oralabs holding corp.   , oralabs  inc , partner success holdings limited
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TAX INDEMNITY AGREEMENT

 

This Tax Indemnity Agreement (“Agreement”) is dated for reference purposes only December 28, 2006, and is by and between OraLabs, Inc., a Colorado corporation (“OraLabs”), China Precision Steel, Inc., formerly known as OraLabs Holding Corp., a Colorado corporation (“Holding”) and Partner Success Holdings Limited, a British Virgin Islands international business company (“PSHL”).

 

WHEREAS, Holding and PSHL entered into a Stock Exchange Agreement (the “Exchange Agreement”) dated as of March 31, 2006, as amended by First Amendment to Stock Exchange Agreement (“First Amendment”) and the Second Amendment to Stock Exchange Agreement, dated October 12, 2006, under which, among other things, PSHL became on even date herewith (the “Closing Date”) a wholly-owned subsidiary of Holding in consideration for the issuance to the principals of PSHL and their designees of controlling ownership of Holding; and

 

WHEREAS, under the Exchange Agreement, such acquisition of the ownership of PSHL was followed immediately on the Closing Date by the redemption by Holding of all of the stock of Holding owned individually by Gary H. Schlatter (“Schlatter”) in exchange for the conveyance to Schlatter of all of the stock of OraLabs owned by Holding (the “Redemption Transaction”); and

 

WHEREAS, the parties agree that the Redemption Transaction is a taxable transaction under the Internal Revenue Code of 1986, as amended, (the “Code”), calculated upon the excess, if any, of the value of OraLabs (“OraLabs Value”) on the Closing Date over Holding’s basis in the OraLabs’ common stock owned by Holding immediately prior to the distribution of those shares of common stock to Schlatter (the “Basis”), and that income taxes assessed by a State may also be payable with respect to the Redemption Transaction; and

 

WHEREAS, on the Closing Date, OraLabs estimated that the Basis is $7,006,586 and the OraLabs Value is $8,542,000, (as determined from a fairness opinion from Capitalink, L.C.); and

 

WHEREAS, on the Closing Date, the Spinoff Tax Liability (defined below) was estimated to be $522,041, and to pay the same, OraLabs purchased 100,000 shares of common stock from Holding for the total purchase price of $450,690, and paid to Holding an additional sum of $71,351 (the “Cash Payment”) (collectively, the “Estimated Tax”) plus a Gross-Up Amount (as defined in Section 5B below) on the Cash Payment of $36,756.25, to provide the public company with the funds to pay the Estimated Tax and taxes thereon; and

 

WHEREAS, Holding and PSHL have required an indemnity from OraLabs to the extent that the amount of Spinoff Tax Liability owing with respect to the Redemption Transaction is Finally Determined to be more than the Estimated Tax, and OraLabs is willing to provide an indemnity in accordance with the provisions of this Agreement.

 


NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, the parties agree as follows:

 

1.   For the purposes of this Agreement, the capitalized terms set forth below have the meanings set forth in this Section:

 

1.1   “Final Determination” or “Finally Determined” means with respect to any liability for Taxes for any period, (a) a final, unappealable decision by a court of competent jurisdiction, (b) the expiration of applicable statutes of limitations on assessment of Taxes or filing of claims for refund, (c) the execution of a closing agreement under section 7121 of the Code or the acceptance by the IRS of an offer in compromise pursuant to section 7122 of the Code (or similar agreements with tax authorities entered into under applicable state or local tax law), but excluding any agreement or compromise that reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for refund and/or the right of the Taxing Authority to assert a further deficiency, or (d) any other final, irrevocable and unappealable determination of Taxes for such period.

 

1.2   “IRS” means the United States Internal Revenue Service or any successor thereto.

 

1.3   “Income Tax” or “Income Taxes” means Taxes based upon or measured by net income.

 

1.4   “Income Tax Return” means a Tax Return relating to the payment or receipt of any refund of any Income Tax.

 

1.5   “Neutral Auditors” means a firm of nationally or regionally recognized independent accountants who shall not have had a material relationship with OraLabs, Holding or PSHL.

 

1.6   “Preclosing Taxable Period” means a Taxable Year that ends on or before the Closing Date.

 

1.7   “Spinoff Tax Liability” means the excess of the OraLabs Value (as finally determined) over the Basis (as finally determined) multiplied by 34% plus the state income tax rate, if applicable.

 

1.8   “Tax” or “Taxes” means any taxes imposed by any federal, state or local government or agency thereof within the United States.

 

1.9   “Tax Practices” means the most recently applied policies, procedures and practices employed by Holding in the preparation and filing of, and positions taken on, any Tax Returns of Holding for any Preclosing Taxable Period.

 

2


1.10   “Tax Return” means all returns and other filings relating to, or required to be filed by any taxpayer in connection with, the payment or receipt of any refund of any Income Tax.

 

1.11   “Taxable Year” means a taxable year (which may be shorter than a full calendar or fiscal year) or similar period with respect to which any Tax may be imposed.

 

1.12   “Taxing Authority” means the IRS or any other governmental authority responsible for the administration of any Tax.

 

2.   Holding has the responsibility to file the Income Tax Return(s) that will report the Redemption Transaction for the Taxable Year during which the Closing Date occurs. Holding will prepare the Tax Return(s) with respect thereto in a manner consistent with past Tax Practices except as otherwise required by changes in applicable law or material underlying facts. Holding will report the Redemption Transaction in the Income Tax Return(s) for said Taxable Year and agrees that the basis in its OraLabs stock and the value of OraLabs will be reported as the Basis and OraLabs Value stated above. However, the Basis calculation (but not the OraLabs Value) may be adjusted as required by changes in applicable law or material underlying facts, or by a determination by Holding after Holding’s compliance with Section 4 below of a different amount of Basis. The parties agree that OraLabs has no indemnity obligation with respect to the amount of Income Tax owed with respect to the Redemption Transaction except to the extent that the amount of Spinoff Tax Liability exceeds the Estimated Tax. Prior to Holding’s filing any Income Tax Return that reports the Redemption Transaction, Holding will comply with the provisions of Section 4 of this Agreement, and if the amount of Basis reported in said Income Tax Return is lower than the Basis used to compute the Estimated Tax, OraLabs will pay to Holding, within 30 days after filing the Income Tax Return, the additional amount of Estimated Tax calculated upon the lower Basis, plus the applicable Gross-Up Amount defined in Section 5B. If the amount of Basis reported in said Income Tax Return is higher than used to calculate the Estimated Tax at Closing, then to the extent of any Cash Payment (and Gross-Up Amount thereon) made at Closing, Holding will refund to OraLabs an amount equal to the sum of the overpayment portion of the Cash Payment made at Closing, plus the applicable Gross-Up Amount on the refunded amount.

 

3.   In the event that Holding does not comply with its obligations under this Agreement, then notwithstanding any provision of this Agreement to the contrary, OraLabs will be relieved of all of its indemnity obligations under this Agreement.

 

4.   OraLabs will cooperate and assist Holding in the preparation and filing of all Tax Returns required to be filed for Holding after the date hereof that relate to a Preclosing Taxable Period. At least 45 days prior to the filing of any Tax Return (including amendments thereto) for Holding for a Preclosing Taxable Period, Holding will pr


 
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