PURCHASE AGREEMENT
THIS
AGREEMENT made as of the 8th day
of August,
2007.
B
E T W E E N:
EIGER
TECHNOLOGY, INC., a corporation governed under the laws of the Province
of Ontario
(hereinafter
called the "Parent")
-
and
-
ETIFF
HOLDINGS, LLC, a corporation governed under the laws of the State of
Delaware
(hereinafter
called the "Vendor")
-
and
-
FOUNDATION
VENTURE LEASING INC., in Trust., a corporation governed under the laws
of the Province of Ontario
(hereinafter
called the "Purchaser")
-
and
-
RACINO
ROYALE, INC., a corporation organized under the laws of the State of
Nevada (the "Corporation")
WHEREAS
the Vendor is the legal and beneficial owner of fourteen million twenty-one
thousand, six hundred (14,021,600) shares of common stock (the
"Shares")
of
the
Corporation;
AND
WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor the Shares;
NOW
THEREFORE THIS AGREEMENT WITNESSES that, for the consideration
hereinafter set forth, the receipt and sufficiency of which is being hereby
acknowledged,
the Parties have agreed and do hereby agree with each other as
follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions.
|
(a)
|
Where
used in this Agreement, unless the context or subject matter otherwise
requires, the following words and phrases shall have the meanings
set
forth below:
|
|
"1933
Act" means the United States Securities Act of 1933, as
amended;
|
|
"Agreement"
means this Agreement (including the Exhibits hereto) as it may be
amended
or supplemented from time to time; and the expressions
"Article", "Section",
"Subsection" or "Exhibit" followed by a
number or letter means and refers to the specified Article, Section,
Subsection or Exhibit of this Agreement;
|
|
"Business
Day" means any day, other than a Saturday, Sunday or statutory
holiday in Toronto, Ontario;
|
|
"Closing"
means the completion of the purchase and sale of the Shares in accordance
with the provisions of this Agreement;
|
|
"Closing
Date" means August 8, 2007 or such other date as the Parties
may
agree;
|
|
"Corporation"
means Racino Royale, Inc., a corporation governed under the laws
of the
State of Nevada;
|
|
"Exchange
Act" means the Securities Act of 1934, as
amended.
|
|
"Pledged
Shares" has the meaning set out in Section 2.3;
|
|
"OSC"
means the Ontario Securities Commission;
|
|
"Parent"
means Eiger technology, Inc., a corporation governed under the laws
of the
Province of Ontario;
|
|
"Parties"
means the Vendor, the Parent, the Purchaser and the Corporation and
their
successors and permitted assigns; and "Party" means
either of the Parties;
|
|
"Promissory
Note" means the Promissory Note attached as Exhibit "1"
hereto;
|
|
"Purchase
Price" has the meaning set out in Section 2.2(a);
|
|
"Purchaser"
means Foundation Venture Leasing Inc., in Trust, a corporation governed
under the laws of the Province of Ontario;
|
|
"SEC"
means the United States Securities and Exchange
Commission;
|
|
"Securities
Laws" means, collectively, the Securities Act (Ontario),
the 1933 Act, the regulations and rules made under those
statutes, and policy statements and interpretation notes of the OSC
or the
SEC or any state of the United States under "blue sky"
laws;
|
|
"Share
Pledge Agreement" has the meaning set out in Section 2.3;
|
|
"Shares"
means, collectively, fourteen million, twenty-one thousand, six hundred
(14,021,600) shares of common stock of the Corporation owned by the
Vendor; and
|
|
"Vendor"
means ETIFF Holdings, LLC, a corporation governed under the laws
of the
State of Delaware.
|
1.2 Currency. All
sums of money which are referred to in this Agreement are expressed in lawful
money of the United States of America.
1.3 Division
of Agreement. The division of this Agreement into Articles,
Sections, Subsections, paragraphs, subparagraphs and Exhibits and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "herein", "hereunder" and similar expressions refer to
this Agreement and not to any particular Article, Section or other portion
of
the Agreement.
1.4 Number
and Gender. Words importing the singular number only shall
include the plural and vice versa, and words importing the use of any gender
shall include all genders.
1.5 Including. Unless
otherwise specifically indicated or the context otherwise requires, "include",
"includes" and "including" shall be deemed to be followed by the words "without
limitation".
1.6 Exhibits. The
following are the Exhibits attached to this Agreement:
|
–
|
Form
of Promissory Note
|
|
|
–
|
Form
of Share Pledge Agreement
|
ARTICLE 2
PURCHASE
AND SALE OF SHARES AND INTELLECTUAL PROPERTY
2.1 Purchase
and Sale of Shares. Subject to the terms and conditions
hereof, the Vendor hereby sells, conveys, assigns, transfers and sets over
absolutely to the Purchaser, and the Purchaser hereby purchases from the Vendor,
all of the Vendor's rights, title and interest, directly or indirectly,
beneficial or otherwise, in and to the Shares, effective on and as of the
Closing.
2.2 Purchase
Price.
|
The
purchase price payable by the Purchaser to the Vendor for the Shares
shall
be $701,080 in the aggregate (the "Purchase
Price").
|
|
(b)
|
The
Purchaser shall satisfy the Purchase Price by delivery to the Vendor
on
Closing as follows:
|
|
(i)
|
cheque
or cash in the amount of thirty thousand dollars ($30,000) payable
to the
Vendor or as the Vendor may direct;
and
|
|
(ii)
|
the
Promissory Note granted by Purchaser in favour of Vendor in the principal
amount of $671,080 in the form of Exhibit "1" payable on the following
basis:
|
|
(A)
|
$70,000
on or before August 31, 2007;
|
|
(B)
|
$133,694
on or before September 30, 2007;
and
|
|
(C)
|
$233,693
on or before February 1, 2008; and
|
|
(D)
|
$233,693
on or before September 1, 2008.
|
2.3 Pledge
of Shares. The Purchaser agrees to pledge
to the Vendor on Closing 12,619,460 of the Purchased Shares (the
"Pledged Shares") as security for the Purchaser's obligation
under the Promissory Note, to be held by the Vendor and released in accordance
with the share pledge agreement in the form of Exhibit "2" attached hereto
(the
"Share Pledge Agreement").
2.4 Purchase
and Sale of Intellectual Property. The Parent and the
Corporation agree that, for a purchase price of $1.00, the Parent shall acquire
from the Corporation all of the Corporation’s right, title and interest in and
to the name "Racino Royale, Inc." or substantially similar names and all of
the
Corporation’s right, title and interest in and to the "Racino Royale, Inc." URL
(the URL and the name "Racino Royale, Inc." being, collectively, the
"IntellectualProperty"). The
Purchaser and the Vendor acknowledge and agree that the Parent has bought the
Intellectual Property and the Purchaser agrees to, on or before the six month
anniversary date of this Agreement, use its best efforts to cause the
Corporation to change its name, through shareholder vote, merger or directors
vote (as a Nevada corporation) from Racino Royale, Inc. to such other name
as
the Purchaser may deem appropriate.
ARTICLE 3
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Vendor. The Vendor represents and
warrants to the Purchaser as follows and acknowledges that the Purchaser is
relying upon such representations and warranties in connection with the entering
into of this Agreement and the purchase by the Purchaser of the
Shares:
|
(a)
|
Capacity. The
Vendor is a corporation duly incorporated, organized and validly
subsisting and in good standing under the laws of Delaware. The
Vendor has all necessary corporate power and capacity and is qualified
to
own, lease and operate its property and assets and to conduct its
business
at and in the places where such property and assets are now owned,
leased
or operated or such business is now conducted. The Vendor has
all the necessary corporate power and authority to enter into this
Agreement and other agreements and instruments contemplated herein
and
perform its obligations hereunder.
|
|
(b)
|
Agreement
Binding. This Agreement has been duly executed and
delivered by the Vendor and is a valid and binding obligation of
the
Vendor enforceable against the Vendor in accordance with its terms
except
as such enforcement may be limited by applicable bankruptcy, insolvency
or
other laws of general application affecting the rights of creditors
and
the availability of equitable remedies such as specific performance
and
injunction which are only available in the discretion of the court
from
which they are sought.
|
|
(c)
|
No
Violation. The execution and delivery of this Agreement by
the Vendor, and the performance of its obligations hereunder, do
not (or
would not with the giving of notice, the lapse of time or the happening
of
any event or condition) result in the violation of any terms or provisions
of any law applicable to (including all Securities Laws), or the
constating documents of, the Vendor or of any agreement, written
or oral,
to which the Vendor is a party or by which he is
bound.
|
|
(d)
|
Title. The
Vendor is the sole legal and beneficial owner of the Shares and has
good
and marketable title to the Shares free and clear of any mortgages,
charges, pledges, security interests or other
encumbrances.
|
|
(e)
|
Approvals
and Consents. No authorization, consent or approval of any
person, including any governmental authority, is required in connection
with the execution, delivery or performance of this Agreement by
the
Vendor or the sale of the Shares by the Vendor to the
Purchaser.
|
|
(f)
|
No
Option to Purchase. No person, firm or corporation has any
agreement, option or any right capable of becoming an agreement or
option
for the purchase from the Vendor of any of the
Shares.
|
|
(g)
|
No
Shareholders' Agreement. The Vendor is not a party to any
shareholders' agreement made among any shareholders of the Corporation
and
there is no unanimous shareholders' agreement among shareholders
of the
Corporation.
|
|
(h)
|
No
Other Interests. The Vendor does not have any interest,
directly or indirectly, legal or beneficial, or any right capable
of
becoming an interest, or any right to acquire any interest, in the
Corporation, other than the shares.
|
|
(i)
|
No
Liabilities. The Corporation has no outstanding
liabilities, real or contingent, to the
Vendor.
|
|
(j)
|
Capacity
of the Corporation. The Corporation is a corporation duly
incorporated, organized and validly subsisting and in good standing
under
the laws of the State of Nevada. The Corporation has all
necessary corporate power and capacity and is qualified to own, lease
and
operate its property and assets and to conduct its business at and
in the
places where such property and assets are now owned, leased or operated
or
such business is now conducted.
|
|
(k)
|
Trading
of Shares. The common shares of the Corporation are quoted
on the Over the Counter Bulletin Board under the symbol
"RCNR".
|
|
(l)
|
Withholding
Taxes. The Corporation has no obligation to pay withholding
taxes in Canada or in the United States of
America.
|
3.2 Representations
and Warranties of Purchaser. The Purchaser represents and
warrants to the Vendor as follows and acknowledges that the Vendor is relying
upon such representations and warranties in connection with the entering into
of
this Agreement and the sale by the Vendor of the Shares:
|
(a)
|
Capacity. The
Purchaser is a corporation duly established and validly existing
under the
laws of the Province of Ontario, has the necessary capacity and authority
to execute and deliver this Agreement and to observe and perform
its
covenants and obligations hereunder and has taken all necessary action
in
respect thereof;
|
|
(b)
|
Agreement
Binding. This Agreement has been duly authorized, executed
and delivered by the Purchaser, and is a valid and binding obligation
of
the Purchaser, enforceable against the Purchaser in accordance with
its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency or other laws of general application affecting the rights
of
creditors and the availability of equitable remedies such as specific
performance and injunction which are only available in the discretion
of
the court from which they are
sought.
|
|
(c)
|
No
Violation. The execution and delivery of this Agreement by
the Purchaser, and the performance of the Purchaser's obligations
hereunder, do not (or would not with the giving of notice, the lapse
of
time or the happening of any event or condition) result in the violation
of any terms or provisions of any law applicable to or, if applicable,
the
constating documents of the Purchaser or of any
agreement, written or oral, to which the Purchaser is a party or
by which
the Purchaser is bound.
|
|
(d)
|
Approvals
and Consents. No authorization, consent or approval of any
person, including any governmental authority, is required in connection
with the execution, delivery or performance of this Agreement by
the
Purchaser or the purchase of the Shares by the
Purchaser.
|
3.3 Representations
and Warranties of the Corporation.
The
Corporation represents and warrants
to the Purchaser as follows and acknowledges that the Purchaser is relying
upon
such representations and warranties in connection with the entering into of
this
Agreement and the purchase by the Purchaser of the Shares.
(a) Capacity. The
Corporation is a corporation duly incorporated, organized and validly existing
and in good standing under the laws of the State of Nevada. The Corporation
has
all necessary corporate power and capacity and is qualified to own, lease and
operate its property and assets and to conduct its business at and in the places
where such property and assets are now owned, leased or operated or such
business is now conducted. The Corporation has all the necessary
corporate power and authority to enter into this Agreement and other agreements
and instruments contemplated herein and perform its obligations
hereunder.
(b) Agreement
Binding. This
Agreement has been duly executed and delivered by the Corporation and is a
valid
and binding obligation of the Corporation enforceable against the Company in
accordance with its terms except as such enforcement may be limited by
applicable bankruptcy, insolvency or other laws of general application affecting
the rights of creditors and the availability bankruptcy, insolvency or other
laws of general application affecting the rights of creditors and the
availability of equitable remedies such as specific performance and injunction
which are only available in the discretion of the court from which they are
sought.
(c) No
Violation. The execution and delivery of this Agreement by the
Corporation, and the performance of its obligations hereunder, do not (or would
not with the giving of notice, the lapse of time or the happening of any event
or condition) result in the violation of any terms or provisions of any law
applicable to (including all Securities Laws), or the constituting documents
of,
the Company or of any agreement, written or oral, to which the Corporation
is a
party or by which he is bound.
(d) Approvals
and Consents. No authorization, consent or approval of any
person, including any governmental authority, is required in connection with
the
execution, delivery or performance of this Agreement by the
Corporation.
(e) Current
Filings. The Corporation represents that it is
current in all of its filings under the Exchange Act and that it has not been
informed by the SEC that any of such filings is under review.
(f) Capacity
of the Corporation. The Corporation is a corporation duly
incorporated, organized and validly subsisting and in good standing under the
laws of the State of Nevada. The Corporation has all necessary
corporate power and capacity and is qualified to own, lease and operate its
property and assets and to conduct its business at and in the places where
such
property and assets are now owned, leased or operated or such business is now
conducted.
(g) Trading
of Shares. The common shares of the Corporation are quoted on the
Over the Counter Bulletin Board under the symbol "RCNR" and the Corporation
has
not received any notice of an intent to remove such quotation.
(h) Absence
of Liabilities. Except as disclosed in the Form 10-QSB for the
quarter ended March 31, 2007, the Company has no liabilities, except those
arising in the ordinary course of business and which in no event exceed $50,000
in the aggregate. For a period of six months from the date hereof,
the Corporation will not occur any indebtedness, other than in the ordinary
course of business, without the prior written consent of the
Purchaser.
(i) Legal
Proceedings. Except as disclosed in the Corporation’s Form 10-QSB
for the quarter ended March 31, 2007, the Corporation is not a party to any
legal proceeding.
(j) Non-Dilution.
The Purchased Shares represent 49.68% of the total outstanding common stock
of
the Corporation and other than as disclosed in the Corporation’s 10-QSB for the
quarter ended March 31, 2007 there are no securities convertible into or
exercisable for common stock. For a period of six months from the
date hereof, the Corporation will not issue any additional shares of common
stock or securities convertible into common stock without the prior written
consent of the Purchaser.
3.4 Survival
of Representations and Warranties. The representations and
warranties of each Party contained in this Agreement shall survive the Closing
for a period of three (3) years and thereafter terminate and be of no further
force and effect.
ARTICLE 4
COVENANTS
4.1 Covenants
of the Vendor. The Vendor covenants and agrees
with the Purchaser that the Vendor will make or cause to be made all regulatory
filings and pay or cause to be paid all filing fees required to be made or
paid
by the Vendor with the OSC, SEC and other applicable securities regulatory
authorities with respect to the sale of the Shares from the Vendor to the
Purchaser within the time period prescribed by applicable Securities
Laws.
4.2 Covenants
of Purchaser. The Purchaser covenants and agrees
with the Vendor as that the Purchaser will execute and deliver all
documentation required by the Securities Laws and by applicable securities
regulatory authorities in connection with its purchase of the
Shares.
4.3 Non-Disclosure. The
Parties agree that no disclosure will be made with respect to the existence
of
this Agreement or the transaction of purchase and sale contemplated herein
unless:
|
(a)
|
it
is approved in advance by all Parties acting reasonably,
or
|
|
(b)
|
it
is required by law including any Securities
Law,
|
and
if
such disclosure is required, the Party making the disclosure shall use
reasonable efforts to give prior oral or written notice to the other Party,
and
if such prior notice is not possible, to give such notice immediately following
the making of such disclosure.
ARTICLE 5
CONDITIONS
ON CLOSING
5.1 The
Purchaser's obligation to purchase the Shares is subject to the conditions
that
the purchase of the Shares by the Purchaser from the Vendor is exempt from
the
registration requirements and prospectus filing requirements under applicable
Securities Laws.
5.2 If
any of
the conditions contained in Section 5.1 shall not be
performed or fulfilled at or prior to the time of Closing to the satisfaction
of
the Party benefiting from the condition, acting reasonably, such Party may,
by
notice to the other Party, terminate this Agreement and the obligations of
the
Parties under this Agreement. Any such condition may be waived in
whole or in part by the Party benefiting from the condition without prejudice
to
any claims it may have for breach of covenant, representation or
warranty.
ARTICLE 6
DELIVERIES
6.1 Deliveries
of the Vendor. The Vendor shall deliver or cause to be
delivered to the Purchaser on or before the Closing Date the
following:
|
(a)
|
share
certificates representing the Purchased Shares duly endorsed for
transfer
together with a general assignment and powers of attorney transferring
the
Shares from the Vendor to the
Purchaser;
|
|
(b)
|
resolutions
of the board of directors of the Vendor approving the sale of the
Purchased Shares from the Vendor to the Purchaser, and the execution
and
delivery of this Agreement and other documents contemplated
herein;
|
|
(c)
|
the
Share Pledge Agreement executed by the
Vendor;
|
|
(d)
|
all
corporate records of the Corporation in the possession of the Vendor
or
directly or indirectly under the control of the Vendor (the
"Corporate
Records");
|
|
(e)
|
any
other resolutions or consents or any other documents that may be
required
to effect the transaction contemplated
hereunder.
|
6.2 Deliveries
of the Purchaser. The Purchaser shall deliver to the Vendor
on or before the Closing Date:
|
(a)
|
cheque
or wire transfer in the amount of $30,000 payable to the Vendor
representing the cash portion of the Purchase Price for the Purchased
Shares due on the Closing Date;
|
|
(b)
|
the
Promissory Note; and
|
|
(c)
|
the
Share Pledge Agreement executed by the
Purchaser;
|
ARTICLE 7
MISCELLANEOUS
7.1 Expenses. Each
Party shall be responsible for its own legal fees and other charges incurred
in
connection with the negotiation of this Agreement.
7.2 Further
Assurances. Each of the Parties shall promptly do, execute,
deliver or cause to be done, executed or delivered all further acts, documents
and things in connection with this Agreement that the other Party may reasonably
require for the purposes of giving effect to this Agreement and take all such
steps as may be reasonably within its power to implement to their full extent
the provisions of this Agreement.
7.3 Survival
of Covenants. To the extent that they have not been fully
performed at or prior to the time of Closing, all covenants shall survive the
Closing and shall continue indefinitely notwithstanding the
Closing.
7.4 Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties concerning the subject matter hereof and supersedes all
prior statements, representations, discussions, negotiations and agreements,
both oral and written, concerning the subject matter hereof.
7.5 Amendment,
Waiver. No amendment, waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby and no such amendment or waiver shall extend to anything other than
the
specific subject matter thereof. The failure at any time of a Party
to insist upon strict performance of any provision of this Agreement shall
not
limit the ability of that Party to insist at any future time whatsoever upon
the
performance of the same or any other provision (except insofar as that Party
may
have given a valid and effective waiver or release).
7.6 Notices. Any
notice, certificate, consent, determination, or other communication required
or
permitted to be given or made under this Agreement shall be in writing and
shall
be effectively given and made if (i) delivered personally, (ii) sent
by courier service, or (iii) sent by fax, in each case to the applicable
address set out below:
For
the
Vendor:
ETIFF
Holdings, LLC
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0
Fax: 000-000-0000
Attention: Xxxxx
Xxxxxxx
For
Purchaser:
Foundation
Venture Leasing Inc., in Trust
00
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx
0000
Xxxxxxx,
Xxxxxxx X0X
0X0
Fax: 416-941-8852
Attention: Xxxxxx
Xxxxxxx
Any
such
communication so given shall be deemed to have been given and received on the
day of delivery if delivered, or on the day of faxing, provided that such day
in
either event is a Business Day and the communication is so delivered, or faxed,
before 4:30 p.m. (local time) on such day. Otherwise, such
communication shall be deemed to have been given and received on the next
following Business Day. Any Party may change its address under this
section by notice to the other Party given in the manner provided in this
section.
7.7 Severability. Each
of the provisions contained in this Agreement is distinct and severable and
a
declaration of invalidity or unenforceability of any provision of this Agreement
by a court of competent jurisdiction, including the breadth or scope of such
provision, shall not affect the validity or enforceability of any other
provision, or part thereof, of this Agreement. To the extent
permitted by applicable law, the Parties waive any provision of law which
renders any provision of this Agreement invalid or unenforceable in any
respect.
7.8 Successors. This
Agreement shall be binding upon and shall enure to the benefit of the Parties
hereto and their respective successors and permitted assigns.
7.9 Assignment. This
Agreement may not be assigned by a Party without the prior written consent
of
the other Party.
7.10 Counterparts. This
Agreement may be executed in counterparts, each of which shall be considered
an
original and both of which taken together shall constitute a single
agreement. For the purposes of this Section 7.10, a facsimile copy of an executed counterpart
of
this Agreement shall be deemed to be an original.
7.11 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. Each of the Parties hereto hereby attorns to the
jurisdiction of the courts of the Province of Ontario in the event of a
dispute.
7.12 Independent
Legal Advice. The Parties hereby acknowledge that they have either been
represented by independent legal counsel in respect of the negotiation and
completion of this Agreement and the matters contemplated herein or have been
provided the opportunity to obtain independent legal counsel. To the
extent that a Party hereto has declined to receive independent legal counsel,
such Party hereby waives the right, should a dispute later develop, to rely
on
its lack of independent legal counsel to avoid its obligations, to seek
indulgences from the other Parties hereto or to otherwise attack the integrity
of this Agreement or any of the provisions hereof, in whole or in
part.
SIGNATURE
PAGES TO FOLLOW
IN
WITNESS WHEREOF the Parties hereto have executed this
Agreement.
ETIFF
HOLDINGS, LLC.
Per:
Name:
Title:
I
have
the authority to bind the corporation.
FOUNDATION
VENTURE LEASING INC., in Trust
Per:
Name:
Title:
I
have
the authority to bind the corporation.
EIGER
TECHNOLOGY, INC.
Per:
Name:
Title:
I
have
the authority to bind the corporation.
Per:
Name:
Title:
I
have
the authority to bind the corporation.
