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.
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