EXHIBIT 2.2
FIRST AMENDMENT TO
STOCK EXCHANGE AGREEMENT
DATED AS OF FEBRUARY 23, 2005
This First Amendment ("Amendment") is dated for referenced purposes only
June 20, 2005, and is by and between ORALABS HOLDING CORP., a Colorado
corporation ("OraLabs"), NVC LIGHTING INVESTMENT HOLDINGS LIMITED ("NVC"), and
Messrs. Xxxxx-Xxxxx Xx, Xxxx-Hong Hu and Gang Du (the "Shareholders").
WHEREAS, the parties entered into a Stock Exchange Agreement dated as of
February 23, 2005, as amended by a Letter Agreement dated March 21, 2005
(collectively, the "Original Agreement"); and
WHEREAS, the parties wish to amend the Original Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties agree as follows:
1. Except as modified by this Amendment, all provisions of the Original
Agreement remain in effect. Capitalized terms used in this Amendment that are
not otherwise defined herein, have the same meanings as set forth in the
Original Agreement. In the event of a conflict between any provision of this
Amendment and any provision of the Original Agreement, the provision of this
Amendment will prevail.
2. NVC has delivered to OraLabs its Consolidated Financial Statements as of
December 31, 2004 ("Financial Statements"), including the Report of Independent
Registered Public Accounting Firm. The Consolidated Statement of Operations
included in the Financial Statements shows Net Income for the year ended
December 31, 2004, in the amount of $7,105,027.00.
3. The parties acknowledge that under Section 1.1 of the Original
Agreement, the percentage of shares of OraLabs to be issued to the Shareholders
at Closing is 94 percent to the extent that there is more than $7,000,000 of net
after tax profits on a consolidated basis for the fiscal year ended December 31,
2004. Accordingly, the parties agree that, unless there is subsequently any
restatement of or other revision or adjustment to the Financial Statements that
reduces to below $7,000,000.00 the amount of consolidated net after tax profits
for the fiscal year ended December 31, 2004, then the number of shares to be
issued to the Shareholders will equal 94 percent of the fully diluted, total
issued and outstanding shares of common stock of OraLabs upon completion of the
Closing. The fully diluted, total issued and outstanding shares of common stock
of OraLabs will include the shares currently outstanding plus shares to be
issued at or before Closing as provided in the Original Agreement or otherwise.
4. As a result of delays in delivery of the audited NVC Financial
Statements and OraLabs has yet not delivered a fairness opinion from an
appropriate source that the terms of this Agreement and the transactions
contemplated hereby are fair to the shareholders of OraLabs from a financial
standpoint, the parties wish to confirm certain time periods in the Original
Agreement to reflect existing circumstances. Accordingly, the following
provisions of the Original Agreement are modified:
o The first sentence of Section 8.1(d) will read as follows: "This
Agreement may be terminated by either party if the transaction shall not have
been consummated or cleared by the SEC on or before September 30, 2005, which
date may be extended for a period not to exceed 45 days if the Proxy Statement
or Information Statement shall has been cleared by the SEC on or before
September 30, 2005, and which date may only be extended by mutual agreement of
the parties in writing."
o The final sentence of Section 1.3 will read as follows: "Notwithstanding
the foregoing, if this Agreement does not close by September 30, 2005, either
party may terminate this Agreement unless that date is extended under Section
8.1(d)."
o The NVC financial statements for the first quarter of 2005, which were
required to be delivered by April 30, 2005 in accordance with the provisions of
Section 2.3(c), must be delivered by June 30, 2005.
o Under the Letter Agreement, OraLabs was given ten business days after
receipt of all requested due diligence information within which to advise NVC of
its satisfaction or dissatisfaction with the results of its due diligence
investigation, and the right to terminate the Agreement if it is not satisfied
with such results. Additional due diligence information was delivered to OraLabs
on May 5, 2005, after the April 11, 2005 deadline in the Letter Agreement.
OraLabs has advised NVC that it will be presenting follow-up questions with
respect to the supplied due diligence materials. Accordingly, the parties agree
that OraLabs will continue to have ten business days after it receives the
responses to its follow-up due diligence requests within which to advise NVC of
its satisfaction or dissatisfaction with the results of the due diligence
information, and the right to terminate the Agreement if it is dissatisfied.
5. This Amendment 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. Facsimile and electronic signatures shall be accepted as
originals.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
ORALABS HOLDING CORP. NVC LIGHTING INVESTMENT HOLDINGS,
LIMITED
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx-Xxxxx Xx
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Xxxxxxx X. Xxxxxx, Authorized Director Xxxxx-Xxxxx Xx, President
/s/ Xxxxx-Xxxxx Xx
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Xxxxx-Xxxxx Xx, Shareholder
/s/ Yong-Hong Hu
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Yong-Hong Hu, Shareholder
/s/ Gang Du
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Gang Du, Shareholder
