UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
ss.240.13e-100.
Schedule 13E-3 [ss.240.13e-3], Rule 13e-3 Transaction Statement
Pursuant to Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3
[ss. 240.13e-3] thereunder.
RULE 13e-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
[Amendment No. _____________]
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OraLabs Holding Corp.
(Name of the Issuer)
OraLabs Holding Corp., Gary H. Schlatter
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(Name of Person(s) Filing Statement)
Common Stock, $0.001 par value
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(Title of Class of Securities)
684029200
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CUSIP Number of Class of Securities
Gary H. Schlatter, OraLabs Holding Corp.,
18685 E. Plaza Drive, Parker, Colorado 80134
Telephone: (303) 783-9499
COPY TO: Douglas B. Koff, Koff, Corn & Berger, P.C., 303 E. 17th Ave.,
Ste. 940, Denver, CO 80203
Telephone: (303) 861-1166
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
[X] a. The filing of solicitation materials or an information
statement subject to Regulation 14A (17 CFR 240.14a-1 to
240.14b-2], Regulation 14C [17 CFR 240.14c-1 to 240.14c-101]
or Rule 13e-3(c) [ss.240.13e-3(c)] under the Securities
Exchange Act of 1934.
[_] b. The filing of a registration statement under the Securities
Act of 1933.
[_] c. A tender offer.
[_] d. None of the above.
Check the following box if the soliciting materials or
information statement referred to in checking box (a) are
preliminary copies:[X]
Check the following box if the filing is a final amendment
reporting the results of the transaction: [_]
Calculation of Filing Fee
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Transaction Amount of filing fee
valuation* $84,688,992 $9,061.72
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*Set forth the amount on which the filing fee is calculated and state how it was
determined. (1)
(1) For purposes of calculating the amount of the filing fee only: This Rule
13e-3 Transaction Statement on Schedule 13E-3 ("Schedule 13E-3") relates to
a Stock Exchange Agreement dated as of March 31, 2006 (as amended from time
to time, the "Exchange Agreement"), by and among OraLabs Holding Corp.,
Partner Success Holdings Limited ("PSHL"), and Wo Hing Li. The Exchange
Agreement provides for 25,741,335 shares of OraLabs common stock to be
issued at closing. The value of the transaction was calculated by
multiplying that number of shares by the per-share price (based upon the
average of the high and low prices (i.e., $3.29) as of the close of trading
on August 14, 2006) and the filing fee was determined by multiplying that
result by 0.000107.
{X] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount previously paid: $9,061.72
Form of Registration No.: Preliminary Proxy Statement on Schedule 14A
Filing Party: OraLabs Holding Corp.
Date Filed: August 21, 2006
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 ("Schedule
13E-3") is being filed by OraLabs Holding Corp., a Colorado corporation
("OraLabs") and Gary H. Schlatter, President of OraLabs. The preceding persons
are collectively referred to herein as the Filing Persons and individually as a
Filing Person.
This Schedule 13E-3 relates to a Stock Exchange Agreement dated as of
March 31, 2006 (as amended from time to time, the "Exchange Agreement"), by and
among OraLabs, Partner Success Holdings Limited ("PSHL") and Wo Hing Li (the
"PSHL Shareholder"). If the transactions contemplated by the Exchange Agreement
are approved by OraLabs' stockholders and the other conditions to the closing as
provided in the Exchange Agreement are satisfied or waived, the following
transactions will occur, among others: OraLabs will acquire 100% of the
ownership interest of PSHL and the PSHL Shareholder or his designees will be
issued 94% of all the outstanding shares of common stock of OraLabs upon
completion of all of the transactions contemplated under the Exchange Agreement;
OraLabs will redeem all of the shares of OraLabs common stock owned individually
by Gary H. Schlatter, and OraLabs will transfer to Gary H. Schlatter all of its
shares in its wholly-owned subsidiary, OraLabs, Inc.; 300,000 shares of common
stock will be issued to Oralabs non-employee directors; OraLabs, Inc. may
purchase up to 100,000 shares of OraLabs common stock to satisfy a tax
liability with respect to the transfer to Mr. Schlatter of OraLabs, Inc.; and
OraLabs will be reorganized as a Delaware corporation and its authorized capital
will be increased.
The common stock of OraLabs is listed on the NASDAQ Capital Market,
symbol "OLAB". In order to maintain the listing as of the completion of the
transactions contemplated by the Exchange Agreement, OraLabs must then satisfy
all of the new listing requirements imposed by NASDAQ rather than the less
strict continued listing requirements. If OraLabs does not meet all of the
requirements as of the closing date, then a result of closing the transactions
contemplated by the Exchange Agreement will be the de-listing of OraLabs' common
stock from the NASDAQ Capital Market. This Schedule 13E-3 is being filed because
a Rule 13e-3 Transaction Statement on a Schedule 13E-3 is required to be filed
when a transaction or series of transactions of certain kinds (such as some of
the transactions contemplated by the Exchange Agreement) has a reasonable
likelihood of causing a class of equity securities of an issuer that is quoted
on a national securities exchange or in an inter-dealer quotation system of a
registered national securities association to not be quoted on such system. This
Schedule 13E-3 is being filed by the Filing Persons even though each Filing
Person expressly disclaims any obligation to file this Schedule 13E-3 and the
filing of this Schedule 13E-3 should not be construed as an admission that the
transactions contemplated by the Exchange Agreement are a Rule 13e-3 Transaction
for which a Rule 13e-3 Transaction Statement is required to be filed.
Concurrently with the filing of this Schedule 13E-3, OraLabs is filing
a preliminary proxy statement on Schedule 14A (the "Proxy Statement") pursuant
to Section 14(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), relating to the meeting of OraLabs' stockholders at which the
stockholders will consider and vote upon the proposals contemplated by the
Exchange Agreement. Each of the cross references indicated in the Items of this
Schedule 13E-3 shows the location in the Proxy Statement of the information
required to be included in response to such Item of this Schedule 13E-3. The
information set forth in the Proxy Statement, including all annexes thereto, is
hereby expressly incorporated by reference in this Schedule 13E-3 in its
entirety and the responses to each item herein are qualified in their entirety
by the provisions of the Proxy Statement and the annexes thereto. The Proxy
Statement is in preliminary form and is subject to completion and amendment. All
references in this Schedule 13E-3 to Items numbered 1001 through 1016 are
references to Items set forth in Regulation M-A under the Exchange Act.
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The information contained in this Schedule 13E-3 and/or the Proxy
Statement concerning Gary H. Schlatter was supplied by him, and OraLabs does not
take responsibility for the accuracy of that information.
ITEM 1. Summary Term Sheet
Regulation M-A Item 1001
The information set forth in the Proxy Statement under the caption "Summary
Term Sheet" is incorporated herein by reference:
ITEM 2. Subject Company Information
Regulation M-A Item 1002
(a) The Company is the subject company of this Schedule 13E-3. Its
principal executive offices are at 18685 E. Plaza Drive, Parker, Colorado 80134
and its phone number is (303) 783-9499.
(b) The information set forth in the Proxy Statement under the following
captions is incorporated herein by this reference: "Market for the Common
Stock", "Security Ownership of Certain Beneficial Owners and Management".
(c) - (d) The information set forth in the Proxy Statement under the
caption "Market for the Common Stock" is incorporated herein by reference.
(e) - (f) Not applicable.
ITEM 3. Identity and Background of Filing Persons
Regulation M-A Item 1003
(a, c) This Schedule 13E-3 is being filed by the Filing Persons. The
information about the Filing Persons contained in the sections entitled
"Summary" and "Other Matters" in the Proxy Statement is incorporated herein by
reference.
(b) Not applicable.
ITEM 4. Terms of the Transaction
Regulation M-A Item 1004
(a) (1) Not applicable.
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(2) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Summary - Reasons for Engaging in the Transactions",
"Information Concerning the Annual Meeting", "Special Factors -
Recommendation of the Special Committee and Board of Directors;
Fairness of the Proposed Transactions", "The Exchange Agreement", and
"Material Federal Income Tax Consequences of the Proposed
Transactions".
(c) The information set forth in the Proxy Statement under the caption
"Certain Relationships and Related Transactions: OraLabs" is incorporated herein
by reference.
(d) Dissenting shareholders are not entitled to any appraisal rights.
(e) None.
(f) Not applicable.
ITEM 5. Past Contacts, Transactions, Negotiations and Agreements
Regulation M-A Item 1005
(a) Not applicable.
(b) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary", "Special Factors": "Background of the Proposed
Transactions" and "Interests of Certain Persons in the Proposed
Transactions".
(c) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Special Factors": "Background of the Proposed
Transactions", "Recommendations of the Special Committee and Board of
Directors", and "The Exchange Agreement".
(e) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Information Concerning the Annual Meeting", "Security
Ownership of Certain Beneficial Owners and Management", "The Exchange
Agreement" and Annex 1 to the Proxy Statement. 5
ITEM 6. Purposes of the Transaction and Plans or Proposals
Regulation M-A Item 1006
(b) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers About the Proposed
Transactions" and "The Exchange Agreement - The Stock Exchange".
(c) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers About the Merger",
"Summary", "Special Factors": "Background of the Proposed
Transactions", "Information Concerning the Annual Meeting", "NASDAQ
Listing" and "The Exchange Agreement".
ITEM 7. Purposes, Alternatives, Reasons and Effects
Regulation M-A Item 1013
(a) - (d) The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Summary - Reasons for Engaging in the Transactions",
"Special Factors": "Background of the Proposed Transactions",
"Recommendations of the Special Committee and Board of Directors;
Fairness of the Proposed Transactions", "Benefits and Detriments of
the Proposed Transactions to OraLabs' Nonaffiliated Shareholders",
"Interests of Certain Persons in the Proposed Transactions"; "Material
Federal Income Tax Consequences of the Proposed Transactions" and "The
Exchange Agreement".
ITEM 8. Fairness to the Transaction
Regulation M-A Item 1014
(a) - (b) The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
"Summary Term Sheet", "Summary", "Special Factors": "Recommendation of
the Special Committee and Board of Directors; Fairness of the Proposed
Transactions", "Opinion of Financial Advisor to the Special Committee
of the Board of Directors" and "Certain Relationships and Related
Transactions": "OraLabs".
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(c) The information set forth in the Proxy Statement under the following
caption is incorporated herein by reference:
"Information Concerning the Annual Meeting - Required Vote".
(d) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary", "Special Factors": - "Background of the Proposed
Transactions" and "Recommendation of the Special Committee and Board
of Directors; Fairness of the Proposed Transactions".
(e) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Summary", "Special Factors": "Background of the
Proposed Transactions", "Recommendation of the Special Committee and
Board of Directors; Fairness of the Proposed Transactions", "Special
Committee", and "OraLabs Board of Directors".
(f) Not applicable.
ITEM 9. Reports, Opinions, Appraisals and Negotiations
Regulation M-A Item 1015
(a) - (c) The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
"Summary Term Sheet", "Summary - Opinion of Capitalink, L.C.",
"Special Factors": "Background of the Proposed Transactions",
"Recommendation of the Special Committee and Board of Directors;
Fairness of the Proposed Transactions", "Opinion of Financial Advisor
to the Special Committee of the Board of Directors", "Where You Can
Find More Information" and Annex 2 to the Proxy Statement.
ITEM 10. Source and Amounts of Funds or Other Consideration
Regulation M-A Item 1007
(a) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Certain Relationships and Related Transactions:
OraLabs" and "The Exchange Agreement".
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(b) Not applicable.
(c) Expenses. The information set forth in the Proxy Statement under the
following caption, "Fees and Expenses", is incorporated herein by reference.
(d) Not applicable.
ITEM 11. Interest in Securities of the Subject Company
Regulation M-A Item 1008
(a) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary - Interests of our Directors in the Proposed Transactions",
"Security Ownership of Certain Beneficial Owners and Management" and
"Certain Relationships and Related Transactions: OraLabs".
(b) Not applicable.
ITEM 12. The Solicitation or Recommendation
Regulation M-A Item 1012
(d) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions" and "Information Concerning the Annual Meeting -
Required Vote".
(e) The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
"Summary Term Sheet", "Questions and Answers about the Proposed
Transactions", "Summary" and "Special Factors - Recommendation of the
Special Committee and Board of Directors; Fairness of the Proposed
Transactions".
ITEM 13. Financial Statements
Regulation M-A Item 1010
(a) The information in the Proxy Statement under the following captions
is incorporated herein by reference:
"Summary Historical Financial Data for OraLabs", "Summary Historical
Financial Data for PSHL", "Audited Financial Statements as of June 30,
2005 and 2004 for PSHL, and Condensed Financial Statements (Unaudited)
as of March 31, 2006 for PSHL.
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In addition, the information set forth in the Consolidated Financial
Statements and Independent Auditors' Report included in OraLabs' Annual Report
on Form 10-KSB filed for the fiscal year ended December 31, 2005, OraLabs'
Annual Report on Form 10-KSB/A filed for the fiscal year ended December 31,
2004, and OraLabs' unaudited Financial Statements included in OraLabs' Quarterly
Report on Form 10-QSB filed for the quarters ended March 31, 2006 and June 30,
2006 are also incorporated herein by reference.
OraLabs' Forms 10-KSB, 10-KSB/A and 10-QSB were filed electronically
through the SEC's EDGAR system and are available to the public at the SEC's
website at http://www.sec.gov. The Forms 10-KSB, 10-KSB/A and 10-QSB are
available to be read and copied at the SEC's public reference room located at
450 Fifth Street, NW, Washington, D.C. 20549.
(b) The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
"Pro Forma Combined Summary of Historical Financial Data" and "Pro
Forma Condensed Consolidated Financial Statements (Unaudited)".
ITEM 14. Persons/Assets, Retained, Employed, Compensated or Used
Regulation M-A Item 1009
(a) - (b) The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
"Certain Relationships and Related Transactions: OraLabs", "Fees and
Expenses", "Special Factors": "Recommendation of the Special Committee
and Board of Directors; Fairness of the Proposed Transactions",
"Special Committee", and "OraLabs Board of Directors".
ITEM 15. Additional Information
Regulation M-A Item 1011
(b) The entire Proxy Statement, including all annexes thereto, is
incorporated herein by reference.
ITEM 16. EXHIBITS
Regulation M-A Item 1016
(a) (1) Form of Letter to Stockholders of OraLabs Holding Corp.,
incorporated herein by reference to Schedule 14A filed with the Securities and
Exchange Commission by OraLabs Holding Corp. on August 21, 2006 (the "Schedule
14A").
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(a) (2) Form of Notice of Annual Meeting of Shareholders of OraLabs Holding
Corp., incorporated herein by reference to the Schedule 14A.
(a) (3) Preliminary Proxy Statement filed with the Securities and Exchange
Commission on August 21, 2006, by OraLabs Holding Corp. and incorporated herein
by reference to the Schedule 14A and form of Proxy to be sent to stockholders of
OraLabs Holding Corp., filed with the Securities and Exchange Commission along
with the Schedule 14A and incorporated herein by reference to the Schedule 14A.
(b) Not applicable.
(c) Opinion of Capitalink, L.C. dated July 19, 2006 and incorporated herein
by reference to Annex 2 to the Schedule 14A.
(d) (1) Stock Redemption Agreement dated April 25, 2006, between OraLabs
and Gary H. Schlatter, filed herewith.
(d) (2) Irrevocable Voting Agreement Coupled with an Interest dated April
25, 2006 and executed by Gary H. Schlatter.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement are true, complete and correct.
ORALABS HOLDING CORP.
By: /s/ Michael I. Friess
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Michael I. Friess, Authorized Director
/s/ Gary H. Schlatter
------------------------------------------
Gary H. Schlatter, Individually
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
(d)(1) Stock Redemption Agreement dated April 25, 2006, between OraLabs and
Gary H. Schlatter, filed herewith.
(d)(2) Irrevocable Voting Agreement Coupled with an Interest dated April 25,
2006 and Executed by Gary H. Schlatter.
EXHIBIT
D-1
STOCK REDEMPTION AGREEMENT
THIS STOCK REDEMPTION AGREEMENT, made and entered into this 25th day of
April 2006, is by and between, Gary H. Schlatter, an individual (the "Seller"),
and OraLabs Holding Corp., a Colorado corporation, (the "Corporation"). Both
Seller and the Corporation will be referred to hereafter as the "Parties."
RECITALS
A. Seller is the record owner of three million six hundred twenty nine
thousand three hundred and fifty (3,629,350) shares of the Corporation's $0.001
par value common stock (the "Seller's Stock").
B. The Corporation desires to repurchase said Seller's Stock, and the
Seller desires to sell, or cause to be sold, all of said shares of stock upon
the terms and subject to the conditions set forth below.
C. The Corporation deems it to be in its best interests to redeem the
Seller's Stock.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements contained in this Agreement, and in order to consummate
the purchase and sale of the Seller's Stock, it is hereby agreed as follows:
1. Purchase Price and Sale of Seller's Stock.
1.1. Purchase and Sale. On the terms and subject to the conditions set
forth in this Agreement, Seller agrees to sell and transfer to the
Corporation, and the Corporation agrees to purchase and accept from Seller,
all of the Seller's Stock for the Consideration set forth below.
1.2. Consideration. Simultaneously with the purchase and sale
described in Section 1.1, the Corporation agrees to transfer to Seller all
100 shares that it owns of OraLabs, Inc., a Colorado corporation, a wholly
owned subsidiary of the Corporation (the "Consideration").
1.3. Closing. The Closing shall take place (the "Closing Date")
immediately after and at the location of the Closing as defined in that
Stock Exchange Agreement dated March 31, 2006 in which the Corporation and
the Seller are parties. Delivery of the Seller's Stock and the
Consideration, duly endorsed for transfer on the Corporation's and OraLabs,
Inc.'s books, together with any other documents necessary to transfer the
Seller's Stock and the Consideration shall be accomplished pursuant to the
Parties' instructions.
2. Seller's Representations and Warranties.
The Seller represents and warrants as follows:
2.1. The Seller is the record and beneficial owner of the Seller's
Stock being redeemed hereunder at the Closing Date. He has good, valid and
merchantable title to the Seller's Stock free and clear of any and all
mortgages, pledges, liens, security interests, conditional sale agreements,
charges, restrictions, and encumbrances of every nature whatsoever. Except
for the 100,000 shares held by The Schlatter Family Partnership, Seller
does not own, beneficially or of record, any additional shares of the
Corporation's common stock. Seller does not have any outstanding options to
purchase, or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contract or commitments to issue or
sell, shares of the Corporation's common stock, or any other class of
securities of the Corporation or any of such warrants, convertible
securities or obligations.
2.2. Seller has at all times had during the course of the negotiations
leading to the execution, acknowledgement, sealing and delivery of this
Agreement, access to all of the Corporation's books and financial and
operational records and to all of the documents and information relating or
pertaining to the Corporation's operations and activities.
2.3. Seller represents that he is a sophisticated investor with
knowledge and experience in business and financial matters, that, as an
officer and member of the Board of Directors of the Corporation, he has
been given access to full and complete information regarding the
Corporation and has utilized such access to his satisfaction, or waived the
opportunity to do so, for the purpose of obtaining information about and
asking questions and receiving answers concerning the Corporation.
2.4. No action, suit or proceeding is pending at any court or
quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction which is reasonably likely to result in an unfavorable
injunction, judgment, order, decree, ruling or charge which would (a)
prevent consummation of any of the material transactions contemplated by
this Agreement; or (b) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation.
2.5. Seller acknowledges that the Consideration for the Seller's
Shares has been arrived at through arms length negotiations and that by
entering into this transaction he will be foregoing the opportunity for any
further appreciation in the value of the Seller's Shares.
3. Representations and Warranties of the Corporation.
The Corporation represents and warrants to Seller that at the date of
execution of this Agreement and at the Closing:
3.1. The Corporation represents and warrants that the execution and
delivery of this Agreement has been duly authorized by the proper corporate
action and that the obligations of the Corporation incurred under this
agreement constitute valid, binding and enforceable obligations of the
Corporation in accordance with their terms.
2
3.2. No action, suit or proceeding is pending at any court or
quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction which is reasonably likely to result in an unfavorable
injunction, judgment, order, decree, ruling or charge which would (a)
prevent consummation of any of the material transactions contemplated by
this Agreement; or (b) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation.
4. Survival of Representations and Warranties.
All representations and warranties made under this Agreement shall survive
the Closing of this sale and delivery of shares of the Corporation by Seller to
the Corporation.
5. Post-Closing Covenants.
The Parties covenant and agree that in case at any time after the Closing
any further action is necessary to carry out the purposes of this Agreement,
each of the parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other party may
reasonably request, all at the sole cost and expense of the requesting party.
6. Miscellaneous Provisions.
6.1 Counterparts/Facsimile Copies. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument. The Parties agree that
facsimile copies of this Agreement and any signature thereon shall be as legally
binding and enforceable as the original or copy original of this Agreement or
any signatures thereof.
6.2 Assignability. This Agreement shall not be assignable by either
party without the prior written consent of the other party, which may be
withheld in the other party's exercise of its sole discretion. This
Agreement shall inure to the benefit of and be enforceable by the permitted
successors and assigns of the parties.
6.3 Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of any provisions of this Agreement.
6.4 Entire Agreement; Incorporation. This Agreement and the documents
and instruments and other agreements among the parties hereto as
contemplated by or referred to herein contain every obligation and
understanding between the parties relating to the subject matter hereof and
merges all prior discussions, negotiations, agreements and understandings,
both written and oral, if any, between them, and none of the parties shall
be bound by any conditions, definitions, understandings, warranties or
representations other than as expressly provided or referred to herein.
3
6.5 Notices. Any notices or other communications required or permitted
hereunder shall only be sufficiently given if in writing and hand delivered
to it, sent by overnight delivery by a courier service of United States and
international recognition (such as Federal Express, DHL or UPS) that
provides international delivery, expenses prepaid, or by facsimile
addressed as follows:
If to
Gary H. Schlatter: 18685 E. Plaza Drive
Parker, Colorado 80134
Telephone: (303) 783-9499
Facsimile: (303) 783-5759
Email: gschlatter@oralabs.com
If to OraLabs before
closing, to: Michael I. Friess
5353 Manhattan Circle, Suite 201
Boulder, Colorado 80303
Telephone: (303) 499-6000 x18
Facsimile: (303) 499-6666
Email: friessco@aol.com
If to OraLabs after
closing, to: Mr. Wo Hing Li
Partner Success Holdings Limited
8th Floor Teda Building
87 Wing Lok Street, Sheungwan
Hong Kong Special Administrative Region
The People's Republic of China
Telephone: (852)
Facsimile: (852)
Email:
With copies to: Henry F. Schlueter
Schlueter & Associates P.C.
1050 Seventeenth Street, Suite 1750
Denver, Colorado 80265
Telephone: (303) 292 3883
Facsimile: (303) 296 8880
Email: hfschlueter@hotmail.com
And Tracy Hung Wan
Belmont Capital Group Limited
Suite C, 20th Floor, Neich Tower
128 Gloucester Road, Wanchai
Hong Kong Special Administrative Region
The People's Republic of China
Telephone: (852) 2517 6262
Facsimile: (852) 2548 7788
Email: tracyyun@bcghk.com
4
or such other addresses as shall be furnished in writing by
any party in the manner for giving notices hereunder. Each notice or
other communication shall only be effective and deemed to have been
received (i) if given by facsimile, one business day after such
facsimile is transmitted to the facsimile number specified above, and
confirmation of delivery by the sender's machine is given, (ii) if
given by hand delivery, the date of delivery as evidenced by a written
receipt, or (iii) if given by a courier service, the third business day
following the business day of deposit with such service, with shipping
charges for the most expedited delivery prepaid or prearranged. As used
herein, a "business day" means Mondays through Fridays, excluding days
(at the location where the notice is to be delivered) that are national
bank holidays. Notice to PSHL shall be deemed to be notice to all
Shareholders for all purposes.
6.6 Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United States of
America and, with respect to matters of state law, with the internal laws
of the State of Colorado without giving effect to its choice of law rules.
Except as stated at the end of this paragraph, any dispute, controversy or
claim arising under or in any way related to this Agreement or the breach
thereof shall only be submitted to and settled by binding arbitration
before a single arbitrator by the American Arbitration Association in
accordance with the Association's commercial rules then in effect. The
arbitration (or legal proceedings described at the end of this paragraph)
will only be conducted in Denver, Colorado, which the parties agree is the
exclusive venue for the proceedings. Judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.
The arbitrator may award reasonable attorneys fees to the prevailing party,
or if the arbitrator believes that more than one party has prevailed in
separate aspects of the arbitration, the arbitrator may award attorneys
fees as it deems appropriate.
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IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed,
and delivered this Agreement the day and year first hereinabove set forth.
GARY H. SCHLATTER
/s/ Gary H. Schlatter
------------------------------------
Gary H. Schlatter
ORALABS HOLDING CORP.
/s/ Michael I. Friess
--------------------------------------
Michael I. Friess, authorized director
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EXHIBIT
D-2
IRREVOCABLE VOTING AGREEMENT
COUPLED WITH AN INTEREST
Gary H. Schlatter
This Irrevocable Voting Agreement ("Voting Agreement") is entered into
in connection with the transactions contemplated by that certain Stock Exchange
Agreement dated March 31, 2006 (the "Merger Agreement"), between OraLabs Holding
Corp., a Colorado corporation ("OraLabs"), Partner Success Holdings Limited, a
British Virgin Islands international business company ("PSHL"), and each of the
shareholders of PSHL ( the "Shareholders"). Capitalized terms not defined herein
shall have the definition as set forth in the Merger Agreement.
1. Gary H. Schlatter, a stockholder of OraLabs who owns 3,629,350 shares,
hereby irrevocably agrees to vote in favor of the following proposals at any
meeting of the stockholders of OraLabs in which the following proposals are
submitted to the shareholders of OraLabs for a vote:
(a) the election of Wo Hing Li, Leada Tak Tai Li and Shu Keung
Leung as directors of OraLabs effective on the Closing Date upon
completion of all of the transactions contemplated by the Merger
Agreement;
(b) the amendment to the Certificate of Incorporation of
OraLabs to change its name to "Ameriasia Steel, Inc." or such other
name to be determined by PSHL (the "New Name"), and to increase the
authorized number of shares of OraLabs from 25,000,000 to 200,000,000
shares;
(c) the approval of the Merger Agreement and the transactions
contemplated herein, and the Stock Redemption Agreement, and the
transactions contemplated therein; and
(d) the approval of OraLabs' 2006 Director Stock Plan and
issuance of 300,000 shares thereunder to OraLabs non-employee
directors, Michael I. Friess and Robert C. Gust prior to the Closing.
2. Gary H. Schlatter hereby irrevocably agrees to take any and all actions
necessary or appropriate to consummate the transactions set forth in the Merger
Agreement. Gary H. Schlatter and The Schlatter Family Partnership hereby
irrevocably agree not to dissent from the transactions contemplated in the
Merger Agreement.
3. This Voting Agreement is irrevocable and is given in connection with the
Merger Agreement and shall remain in full force and effect until the earlier of
the time that OraLabs's stockholders have approved the above listed matters or
the termination of the Merger Agreement pursuant to its terms.
Dated: April 25, 2006
GARY H. SCHLATTER
/s/ Gary H. Schlatter
-----------------------------------------------------
Gary H. Schlatter
THE SCHLATTER FAMILY PARTNERSHIP (with respect
to its obligations under Paragraph 2 only)
/s/ Gary H. Schlatter
-----------------------------------------------------
a partner of The Schlatter Family Partnership
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