AGREEMENT
This Agreement is dated for reference purposes only August 24, 1999, and is
by and between OraLabs Holding Corp., a Colorado corporation (the "Company") and
Creative Business LLC, a Colorado limited liability company ("CBS") and Xxxxx X.
Xxxxxxxxx ("Xxxxxxxxx").
WHEREAS, the Company recently closed a transaction (the "Transaction")
between it and Pecos Acquisition Company ("Pecos") pursuant to which the Company
was paid a fee represented by $500,000 in cash as well as securities
representing a five percent (5%) ownership interest in Pecos (consisting of
631.579 shares of preferred stock (the "Preferred Stock") and 50 shares of
common stock (the "Common Stock") of Pecos (the 631.579 shares of Preferred
Stock and 50 shares of Common Stock are collectively referred to as the
"Shares"); and
WHEREAS, throughout the negotiations of the transaction, CBS, which is
solely owned by Goldstone, provided consulting and brokerage services to the
Company which consisted of services separate and apart from those provided by
Goldstone to the Company in his capacity as a director; and
WHEREAS, the parties have agreed upon the compensation payable to CBS in
consideration for the performance of its services; and
WHEREAS, Goldstone wishes to resign as a member of the Board of Directors
of the Company and the Company wishes to accept his resignation; and
WHEREAS, the board of directors of the Company has determined that the
payment of the compensation described herein is reasonable and is fair to the
Company.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the adequacy and sufficiency of which is acknowledged,
the parties agree as follows:
1. By no later than September 1, 1999, the Company shall compute its out of
pocket expenses incurred in connection with the Transaction and a copy of such
computations shall be delivered to Goldstone. Promptly thereafter, the Company
shall pay to CBS a cash payment equal to 25% of the number obtained by
subtracting the expenses from the figure of $500,000.
2. The Company hereby grants CBS, solely in CBS's capacity as an assignee
of distributions, a beneficial interest in 25% of all distributions which may
hereafter be made to the Company by Pecos with respect to the Shares (CBS
acknowledges that the five percent (5%) share may be diluted by Pecos and in
such event the 25% interest of CBS shall thereafter apply to the Company's
diluted interest). Such beneficial interest of CBS shall be applicable as well
to any securities issued to the Company with respect to the Shares such as by
means of a stock dividend or stock split. Upon receipt of any distributions from
Pecos respecting the Shares, the Company shall promptly pay CBS an amount equal
to 25% of any such distribution. In no event shall this paragraph
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be construed to require the Company to make any payment to CBS except to the
extent of and from 25% of proceeds actually received by the Company with respect
to the Shares. Within a reasonable time after the Company receives any report
from Pecos which relates to distributions payable to the Company arising out of
the Company's ownership of the Shares, the Company shall send a copy thereof to
Goldstone. Goldstone agrees to maintain the confidentiality of such reports and
the Company has the right to redact provisions of any such reports which do not
relate to the amount of any distributions owing to the Company by Pecos.
3. Notwithstanding any provision of Agreement to the contrary, all voting
rights and all other rights of the Company as a shareholder of Pecos shall be
exercisable solely by the Company and CBS shall have no right to participate
therein. In addition, CBS shall have no right to participate in any other
transactions which the Company in the exercise of its sole discretion may desire
to enter into with or otherwise relating to Pecos.
4. CBS and Goldstone each agree that the payments which may be made to CBS
pursuant to this Agreement represent fair compensation for the services provided
by CBS. Goldstone and CBS, together and separately and for the benefit of their
affiliates and themselves, their heirs, successors and assigns (collectively,
the "Releasing Party"), hereby release OraLabs Holding Corp. and its
subsidiaries, each of its officers and directors, and all of their respective
successors and assigns (collectively, the "Released Party"), from any and all
claims and causes of action which the Releasing Party or any of them has or may
have in the future against any one or more of the Released Parties arising out
of any facts or circumstances whatever. As an illustration of the foregoing but
not as a limitation of the generality thereof, the Releasing Party agrees that
it is not entitled to any other compensation from the Released Party for any
matter whatsoever. The provisions of this release have been agreed upon by
Goldstone and CBS knowingly, with advice of counsel as they deem appropriate,
and the execution of this release has been voluntarily made.
5. In order to avoid any confusion about compensation which may be owing to
Goldstone or CBS in consideration for services they may render with respect to
any subsequent transactions by the Company, Goldstone and CBS agree that they
shall not be entitled to any claim for compensation unless and until the parties
execute a written agreement concerning such compensation on terms acceptable to
all of the parties in the exercise of their respective sole discretions. No
course of conduct or alleged oral agreement by the parties may be relied upon by
any party in support of a claim for compensation.
6. The law firm of Waldbaum, Corn, Xxxx & Xxxxxx, P.C. has acted as the
Company's counsel in connection with the negotiation and execution of this
Agreement. Goldstone and CBS have been advised to obtain the advice of their own
separate legal counsel and other advisors as they deem appropriate. Goldstone
and CBS are separately responsible for obtaining advice about the tax
consequences, if any, of entering into this Agreement.
7. Goldstone hereby tenders his resignation as a director and from all
officer positions held by him with the Company and its subsidiaries and the
Company hereby accepts such
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resignations, effective immediately upon mutual execution of this instrument. In
connection with such resignation, Goldstone agrees that he is not resigning
because of a disagreement with the Company on any matter related to the
Company's operations, policies or practices.
8. This Agreement may be executed in counterparts and facsimile signatures
shall be accepted as originals.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
specified below.
ORALABS HOLDING CORP., a Colorado
corporation
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, President
Date:8/24/99
--------------------------------
CREATIVE BUSINESS LLC, a
Colorado limited liability company
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx, Managing
Member
Date:8/25/99
--------------------------------
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, individually
Date: 8/25/99
--------------------------------
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ADDENDUM TO AUGUST 24, 1999 AGREEMENT
This document is an addendum to the agreement dated August 24, 1999 between
OraLabs Holding Corp. (OL) and Xxxxx Xxxxxxxxx (Xxxxxxxxx) and Creative
Business, LLC (CBS), collectively (GCBS).
GCBS hereby agrees to indemnify OL for any fees and expenses that OL pays
to Xxxxx Xxxxxx and his affiliates (LK) resulting from a claim that LK is due a
fee for his participation in the acquisition by OL of a minority interest in
Pecos Pharmaceutical.
If LK asserts a claim against OL, GCBS will either settle the claim or
defend the claim at its expense with legal counsel satisfactory to OL. In the
event of any litigation between OL and GCBS concerning this agreement the
prevailing party shall be awarded its cost and attorneys fees incurred
therewith.
To the extent any claim is made by LK against OL, relating to this
transaction, then funds otherwise payable to CBS under this Agreement may be
withheld and offset against those payments due GCBS until the claim is resolved.
ORALABS HOLDING CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, President
Date: 9/17/99
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, individually
Date 9/17/99
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CREATIVE BUSINESS LLC
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
Date: 9/17/99
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