SETTLEMENT AGREEMENT
This
Settlement Agreement (“Agreement”), made this 24th day of August, 2007, by and
on behalf of the following entities: (i) Eiger Technology Inc. (“Eiger” or the
“Company”), a public company listed on the Toronto Stock Exchange (“AXA”); and
(ii) Xxxxx Xxxxxxx (“Xxxxxxx”), the former President and Chief Executive Officer
of Eiger. Eiger and Xxxxxxx are referred to collectively as the “Parties.”
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WHEREAS
Xxxxxxx has retired from all offices and his directorship of Eiger following
sixteen (16) years of service with the Company;
AND
WHEREAS the Parties to this Agreement desire to settle the terms of Xxxxxxx’x
retirement package;
AND
WHEREAS due to cash flow issues faced by the Company, Xxxxxxx and the Company
deferred the payment of certain obligations owed by the Company to Xxxxxxx’x
management services company, 1040614 Ontario Ltd. for services provided;
AND
WHEREAS the Parties wish to make arrangements for the satisfaction of such
deferred obligations;
NOW,
THEREFORE, in consideration of the recitals, the mutual covenants and agreements
contained herein, and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1.
Retirement Date
The
effective date of
Xxxxxxx’x retirement from the Company is April 18, 2007 (the “Retirement
Date”).
2.
Retirement Payment
The
Company has agreed to pay Xxxxxxx a retirement payment valued at five hundred
thousand dollars ($500,000) of which ninety six thousand dollars ($96,000)
has
been paid by way of the Company transferring to Xxxxxxx 960,000 Newlook
Industries Corp.’s common shares it owns at a deemed price of $.10 per
share. The Company will also pay Xxxxxxx four hundred and four thousand
dollars ($404,000) for past services in cash. Two payments of two hundred
and two thousand dollars ($202,000) each are to be made payable to Xxxxxxx
on
September 30, 2007 and on November 30, 2007.
3.
Back Pay
In
respect of back pay owing by the Company to 1040614 Ontario Ltd., the Company
will pay 1040614 Ontario Ltd. a total sum of five hundred thirty eight
thousand, three hundred twenty five dollars and thirty seven cents
($538,325.37), of which thirty-eight thousand three hundred twenty-five dollars
and thirty seven cents ($38,325.37) has been paid and received by Xxxxxxx
leaving a balance of five hundred thousand dollars ($500,000.00). The said
back
pay shall be payable in two instalments of two hundred and fifty thousand
dollars ($250,000.00) each, the first such instalment due on January 31,
2008
and the second instalment being the final payment due on March 31,
2008.
4.
Expense Cheques
The Company
has paid and Xxxxxxx has received five thousand dollars ($5,000), representing
reimbursement of outstanding expenses incurred by Xxxxxxx prior to the
Retirement Date in the course of his duties to the Company.
5.
Additional Benefits
a)
The Company will continue to indemnify Xxxxxxx in respect of all public
companies in accordance with the terms of the Indemnity Agreement attached
hereto as Exhibit “A”;
b)
Notwithstanding Xxxxxxx’x retirement, any stock options already granted to
Xxxxxxx shall continue in effect and shall expire on the expiry date set
out in
the original grant of such options.
6.
Security
To
secure the obligation of the Company to Xxxxxxx herein set forth, the Company
hereby grants to Xxxxxxx a general security interest pursuant to the Personal
Property Security Act of Ontario providing to Xxxxxxx a security interest in
all of the collateral of the Company ranking senior in priority to all liens,
security interests, encumbrances and charges, other than those expressly
consented to in writing by Xxxxxxx or, in existence at the time of execution
of
this Agreement.
7.
Release by Xxxxxxx
In consideration of the terms of this
Agreement, Xxxxxxx hereby agrees to release Eiger in accordance with the
Release
attached hereto as Exhibit B”.
8.
Entire Agreement and Successors in Interest
This
Agreement contains the entire agreement between the Parties with regard to
the
matter set forth herein and shall be binding upon and enure to the benefit
of
the executors, administrators, personal representatives, heirs, successors
and
assigns of each.
9.
Governing Law
This
Agreement made and entered into in the Province of Ontario and shall in all
respects be interpreted, enforced and governed under the laws of Ontario.
10.
Counterparts
This
Agreement may be signed in counterparts, each of which shall be deemed an
original. This Agreement may only be amended in writing, which amendment
may also be signed in counterparts.
11.
Severability
Should
any covenant, condition or other provision contained herein be held invalid,
void or illegal by any court of competent jurisdiction, it shall be deemed
severable from the remainder of the Agreement and shall in no way affect,
impair
or invalidate any other covenant, condition or other provision herein
contained. If such condition, covenant or other provision shall be deemed
invalid due to its scope or breadth, it shall be deemed valid to the extent
of
the scope or breadth permitted by law.
12.
Mutual Contribution
This
Agreement was drafted by both of the Parties and, thus, shall not be construed
against any party because that party initially drafted any particular
provision.
13.
Effectiveness
This
Agreement shall become effective on execution.
14.
Miscellaneous
(a)
This Agreement cannot be amended, altered, modified, waived or superseded,
in
the whole or in part, except by a written agreement so stating which is signed
the Parties to this Agreement.
(b)
Waiver of any one breach of any provision hereof shall not be deemed to be
a
waiver of any other breach of the same or any other provision hereof.
(c)
Section headings are for convenience only and are not part of the
Agreement.
(d)
Each person who executes this Agreement on behalf any party to the Agreement
represents and warrants that he or she has been duly authorized by such party
to
execute the Agreement.
IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the date set
forth above.
/s/ Xxxx
Xxxxxxxx
/s/ Xxxxx Xxxxxxx
_______________________
___________________________
Per:
Xxxxx Xxxxxxx
CORPORATE
INDEMNITY AGREEMENT
THIS
AGREEMENT is dated effective as of the 24th day of August, 2007.
BET
WEE N:
XXXXX
XXXXXXX, of Xxxxxxx, Xxxxxxx, X0X 0X0
(herein
referred to as the "Director")
OF
THE FIRST PART
-
and -
EIGER
TECHNOLOGY INC., NEWLOOK INDUSTRIES CORP. AND XXXXXX XXX ALE
(herein
collectively referred to as the "Corporations")
OF
THE SECOND PART
WHEREAS:
A.
By the General By-Laws of the Corporations, the Corporations are required
to
indemnify a director or officer, a former director or officer or a person
who
acts or acted at the request of the Corporations as a director or officer
of a
body corporate of which the Corporations are or were a shareholder or creditor
and his or her heirs and legal representatives against all costs, charges
and
expenses including, without limitation, an amount paid to settle an action
or
satisfy a judgment reasonably incurred by him or her in respect of any civil,
criminal or administrative action or proceeding to which he or she is made
a
party by reason of having been a director or officer of such body corporate
if:
(i)
he or she acted honestly and in good faith
with a view to the best interests of the
Corporations;
and
(ii)
in the case of a criminal or administrative
action or proceeding that is enforced by a
monetary
penalty, he or she had reasonable grounds for believing that his or her conduct
was lawful.
B.
The Corporations have agreed to execute an agreement evidencing its indemnity
of
the Director to the fullest extent permitted by law.
NOW
THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the sum
of [TEN DOLLARS ($10.00)] now paid by the Director to the Corporations (the
receipt of which is hereby acknowledged) and for other good and valuable
consideration, the parties hereto agree each with the other as follows:
1.
Except in respect of an action by or on behalf of the Corporations to procure
a
judgment in its favour, the Corporations will indemnify and save harmless
the
Director and his or her heirs and legal representatives against all costs,
charges and expenses, including, without limitation, an amount paid to settle
any action or to satisfy a judgment reasonably incurred by him or her in
respect
of any civil, criminal or administrative action or proceeding to which he
or she
is made a party by reason of being or having been a director or officer of
the
Corporations or a director or officer of a body corporate of which the
Corporations are a shareholder or creditor, as long as he or she is or was
acting as a director or officer of such body corporate at the request of
the
Corporations, if:
(a) the Director acted honestly and in good
faith with a view to the best interests of
the
Corporations; and
(b) in the case of a criminal or
administrative action or proceeding that is enforced by
a
monetary penalty, the Director had reasonable grounds for believing that
his or
her conduct was lawful.
2.
For the purposes of section 1 hereof, the termination of any civil, criminal
or
administrative action or proceeding by judgment, order, settlement, conviction
or similar or other result shall not of itself create a presumption either
that
the Director did not act honestly and in good faith with a view to the best
interests of the Corporations or that; in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty,
the
Director did not have reasonable grounds for believing that his or her conduct
was lawful.
3.
In respect of an action by or on behalf of the Corporations or a body corporate
of which the Corporations are or were a shareholder or creditor to procure
a
judgment in its favour to which the Director is made a party by reason of
being
or having been a director or officer of the Corporations or a director or
officer of a body corporate at the Corporations' request, the Corporations
will
make application for approval of the appropriate court, as defined in the
Business Corporations Act, (Ontario) (the "Act") to indemnify the
Director and his or her heirs and legal representatives against all costs,
charges and expenses reasonably incurred by him or her in connection with
such
action if:
(a) the Director acted honestly and in good
faith with a view to the best interests of
the
Corporations; and
(b) in the case of a criminal or
administrative action or proceeding that is enforced by
a
monetary penalty, the Director had reasonable grounds for believing that
his or
her conduct was lawful.
4.
Notwithstanding anything in this Agreement, the Corporations shall indemnify
the
Director in respect of all costs, charges and expenses reasonably incurred
by
him or her in connection with the defence of any civil, criminal or
administrative action or proceeding to which he or she is made a party by
reason
of being or having been a director or officer of the Corporations or a director
or officer of a body corporate to which the Corporations are or were a
shareholder or creditor, as long as he or she was so acting as a director
or
officer of such body corporate at the request of the Corporations, if:
(a) the Director was substantially
successful on the merits in his or her defence of the
action
or proceeding;
(b) the Director acted honestly and in good
faith with a view to the best interests of
the
Corporations; and
(c) in the case of a criminal or
administrative action or proceeding that is enforced by
a
monetary penalty, the Director had reasonable grounds for believing that his
or
her conduct was lawful.
5.
Subject as hereinafter provided, the Corporations will pay all expenses covered
by this Agreement and incurred by the Director, his or her heirs and legal
representatives, in defending any civil, criminal or administrative action
or
proceeding to which the Director or his or her heirs and legal representatives
are made a party by reason of the Director's being or having been a director
or
officer of the Corporations or a director or officer of a body corporate of
which the Corporations are a shareholder or creditor if he or she was so acting
as a director or officer of such body corporate at the request of the
Corporations, in advance of the final disposition of such action or proceeding.
Inrespect of an action by or on behalf of the Corporations
to
procure a judgment in its favour and in respect of which the Corporations are
obliged by section 3 hereof to make application for approval of the appropriate
court, as defined in the Act, to indemnify the Director or his or her heirs
and
legal representatives, the Corporations shall pay all such expenses in advance
of the final disposition of such action or proceeding only upon receipt of
an
undertaking satisfactory to the Corporations by or on behalf of the Director
or
his or her heirs or legal representatives, to repay such amount if such
appropriate court determines that the Director or his or her heirs or legal
representatives is not entitled to be indemnified.
6.
This Agreement shall not operate to abridge or exclude any other rights, in
law
or in equity, to which the Director may be entitled by operation oflaw or under
any statute, bylaw of the Corporations, agreement, vote of the shareholders
of the Corporations, vote of disinterested directors of the Corporations or
otherwise.
7.
This Agreement and the benefit and obligation of all covenants herein contained
shall enure to the benefit of and be binding upon the heirs, executors,
administrators, legal personal representatives and successors and assigns of
the
Director and the successors and assigns of the Corporations.
IN
WITNESS WHEREOF this Agreement has been executed by the parties hereto
as of the 24th day of August, 2007.
| _______________________ | /s/ XXXXX XXXXXXX |
| WITNESS |
Xxxxx
Xxxxxxx
|
| EIGER TECHNOLOGY, INC. | |
| Per: /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |
| Title: Director | |
| I/we have authority to bind the corporation | |
| RACINO ROYALE, INC. | |
|
Per:
/s/ Xxxx X. Xxxxxxxx
|
|
| Name: Xxxx Xxxxxxxx | |
| Title: Director | |
| I/we have authority to bind the corporation | |
| NEWLOOK INDUSTRIES CORP. | |
| Per: /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |
| Title: Director | |
| I/we have authority to bind the corporation |
TO: EIGER TECHNOLOGY INC. (the
"Corporation")
RELEASE
KNOW
ALL MEN BY THESE PRESENTS that the undersigned, in consideration of the
sum of Ten Dollar ($10.00) of lawful money of Canada and for other good and
valuable consideration (the receipt and sufficiency whereof are hereby
irrevocably acknowledged) the undersigned does hereby remise, release and
forever discharge the Corporation of and from all manner of actions, causes
of
action, deeds, suits, proceedings, debts, dues, duties, accounts, bonds,
covenants, contracts, claims, demands, damages (known or unknown), sums of
money, and liabilities whatsoever both in law and in equity which against the
Corporation the undersigned ever had, now has or hereafter can, shall or may
have for or by reason of or in respect of any cause, act, matter or thing
whatsoever existing up to and including the date hereof in connection with
the
undersigned's respective capacities as a director, shareholder and employee
of
the Corporation provided;
SAVE
AND EXCEPT that this Release shall not be in respect of any rights the
undersigned may have present to a Settlement Agreement dated August 24, 2007
between the undersigned and the Corporation.
The
provisions hereof shall enure to the benefit of the Corporation and the
Shareholders and their heirs, executors, administrators, successors, assigns
and
legal representatives, and shall be binding upon the undersigned and his/her
respective heirs, executors, administrators, successors, assigns and legal
representatives.
IN
WITNESS WHEREOF the undersigned has duly executed these presents this
24th day of August, 2007.
SIGNED,
SEALED AND DELIVERED
in the presence of
_____________________________
/s/
XXXXX XXXXXXX
Witness
Xxxxx Xxxxxxx
