SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is made effective as of the
8th day of December, 2005, by and among Bancorp International Group, Inc., a
Nevada corporation with the trading symbol "BCIT" (hereinafter sometimes
referred to as "BCIT"), Xxxxx X. Xxxx, an individual, Xxx Xxxx, an individual,
Xxxx Xxxxxx Xxxxxx, an individual, Xxxxxxx Xxxxxx, an individual, Xxxxxx
Xxxxxxxx, an individual, Xxxxxx Xxxxxxx, an individual, Clearstock, Inc., a
Texas corporation, DealFlo, L.L.C., a New York Limited Liability Company, The
Grace Trust a foreign trust, Global Consulting Group, a Maryland corporation,
Intelligent Message Distributors, a Nevada corporation, and Wall Street Group,
L.L.C., an Arizona limited liability company, (collectively, the "Defendants"),
Capital Growth Financial, L.L.C., a Florida limited liability company, and XX
Xxxxxx & Co., a New York corporation.
I. RECITALS
1.1 BCIT is a Nevada corporation licensed to do business in the State of
Oklahoma. BCIT is a publicly traded corporation. Its authorized Transfer Agent
is Pacific Stock Transfer Company, 000 X Xxxx Xxxxxxx Xxxx, Xxx. 000, Xxx Xxxxx,
XX 00000.
1.2 Each of the following Defendants are individuals or entities that held
brokerage accounts at Capital Growth Financial, L.L.C., a brokerage firm with
offices in, among other locations, Oklahoma City, Oklahoma: Xxxxx X. Xxxx;
Clearstock, Inc.; Dealflo, L.L.C.; Gene Xxxxxx Xxxxxx; Xxxxxxx Xxxxxx; The Xxxxx
Trust; Global Consulting Group; Xxx Xxxx; Wall Street Group, Xxxxxx Xxxxxxxx,
and Intelligent Message Distributors.
1.3 Each of the following Defendants are individuals or entities that held
brokerage accounts at XX Xxxxxx & Co., a brokerage firm located at 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000: Xxxxx Xxxx (individually);Wall Street
Group, L.L.C., c/o Xxxxx Xxxx; Xxxxxx Xxxxxxxx; and Xxxxxx Xxxxx Xxxxxxx.
1.4 On or about September 21, 2005, BCIT filed a civil action in the
District Court of Oklahoma County, Oklahoma styled Bancorp International Group,
Inc. v. Xxxxx X. Xxxx, et al., Case No. CJ-2005-7459 (the "Civil Action"),
wherein BCIT alleged, among other things, claims against the Defendants for
violations of the Oklahoma Uniform Securities Act of 2004, the Securities Act of
1933, as amended (the 1933 Act"), and other applicable common law, and for a
declaratory judgment. In the Civil Action some of the Defendants filed an Answer
denying the claims of BCIT, or, though properly served with Summons and
Petition, wholly failed to answer and therefore are in default.
1.5 On November 18, 2005, Capital Growth Financial, L.L.C. and
XX Xxxxxx & Co. (the "Interveners") intervened in the Civil Action, claiming an
interest in the Civil Action, and on November 21, 2005 filed an Answer and
Cross-claims against the Defendants. In the Petition in Intervention, the
Intervenors each filed cross-claims against BCIT alleging that BCIT negligently
hired Defendants and negligently supervised the actions and activities of
Defendants, and asserting the following claims against BCIT: (i) fraud under the
Oklahoma Securities Act, Okla. Stat. tit. 71, ss.1.101-1.701 (the "Oklahoma
Act"); (ii) fraud under the 1933 Act; and (iii) fraud under the Securities
Exchange Act of 1934; as amended, and asserting the following claims against the
Defendants: (i) common law fraud; and (ii) failure to register under the
Oklahoma Act (collectively, the "Cross-claims").
1.6 In the Civil Action, BCIT alleged that, beginning some
time during the summer of the year 2005, Defendant, Xxxxx X. Xxxx, individually
and through various affiliated entities and coconspirators including Defendant,
Wall Street Group, L.L.C., prepared or possessed at least twenty (20) stock
certificates of BCIT (the "Wrongfully Issued Shares") purportedly representing
235,000,000 shares of common stock of BCIT. BCIT alleges that said Defendants
thereupon caused the Wrongfully Issued Shares of BCIT to be distributed, both as
compensation for work performed and as gifts, to various individuals and
entities, including the remaining Defendants.
1.7 With the exception of Defendant, Xxxxxxx Xxxxxx (who did
not deposit the Wrongfully Issued Shares into the public market), the Defendants
listed below thereupon deposited the Wrongfully Issued Shares with Capital
Growth Financial, L.L.C., causing the Wrongfully Issued Shares to be entered
into the public market, as follows:
------------------------------- ---------------------------- -------------------
Defendant Sales Proceeds Net Amount
------------------------------- ---------------------------- -------------------
Clear Stock 77,405.83 42,188.90
------------------------------- ---------------------------- -------------------
DealFlo 874.96 874.96
------------------------------- ---------------------------- -------------------
Zero Zero One 16,211.07 16,211.07
------------------------------- ---------------------------- -------------------
Xxxxxx 43,579.94 43,579.94
------------------------------- ---------------------------- -------------------
Xxxxxx 0 0
------------------------------- ---------------------------- -------------------
Grace Trust 30,349.39 30,349.39
------------------------------- ---------------------------- -------------------
Global Consulting 6,547.17 6,547.17
------------------------------- ---------------------------- -------------------
Xxxxxx Xxxx 16,502.68 16,502.68
------------------------------- ---------------------------- -------------------
Intelligent Mess. Dist. 36,794.43 36,794.43
------------------------------- ---------------------------- -------------------
Wall Street Group 160,913.75 160,913.75
------------------------------- ---------------------------- -------------------
Xxxxxx Xxxxxxxx 58,854.22 18,145.95
--------- ---------
------------------------------- ---------------------------- -------------------
2
In April 2005, Defendants Kibarian, Morales, and Wall Street Group/Xxxxx
Xxxx delivered to XX Xxxxxx & Co. certain Wrongfully Issued Shares as follows:
-------------------------- ---------- --------------------- --------------------
Defendant Cert. No. Number of Shares Sale Proceeds
-------------------------- ---------- --------------------- --------------------
Xxxxxx Xxxxxxxx 1088 5 million(1) $18,415.70
-------------------------- ---------- --------------------- --------------------
Wall Street Group/ Mario 1063 20 million $108,123.93
X. Xxxx
-------------------------- ---------- --------------------- --------------------
Xxxxxxx Xxxxx Xxxxxxx 1066 25,000 $124.99
-------------------------- ---------- --------------------- --------------------
XX Xxxxxx & Co. has alleged that it accepted the certificates from
these Defendants in good faith and did not know at the time that these
certificates were counterfeit. In accordance with its customers' instructions,
XX Xxxxxx & Co. delivered the Wrongfully Issued Certificates to its clearing
broker, NF Clearing, for sale.(2) XX Xxxxxx & Co. has alleged that NF Clearing
delivered the certificates to Depository Trust Company ("DTC"), which delivered
them to BCIT's transfer agent for re-registration. On August 16, 2005, DTC
issued Important Notice 8418, quoting a press release from BCIT indicating that
"`individuals and corporate entities involved with the illegal takeover of the
company printed invalid share certificates.'" DTC suspended all services with
respect to BCIT shares, other than custody. DTC demanded replacement
certificates from NF Clearing.
XX Xxxxxx & Co. attempted to purchase replacement certificates in the
open market and tried to buy 6,668,500 shares for which it paid $118,297.59.
However, X.X. Xxxxxx & Co. alleges that it never received those shares because
the market was flooded with counterfeit shares and there were no valid shares
available to purchase. XX Xxxxxx & Co. has never recovered the $118,297.59 it
paid in its effort to purchase replacement securities.
1.8 Defendants Xxxxxxx Xxxxxx and The Grace Trust each deny
the wrongdoing alleged in the Petition, and further deny that BCIT, Capital
Growth Financial, L.L.C. or XX Xxxxxx & Co. suffered any damages as a result of
their actions.
-------------------
(1) See note 3 below.
(2) With respect to Xxxxxx Xxxxxxxx, XX Xxxxxx & Co. sold 1,140,000 shares for
$18415.70, and transferred by ACAT to Capital Growth Financial L.L.C., the
remaining 3,860,000 shares. XX Xxxxxx & Co. remains liable to its clearing firm,
NF Clearing, which is in turn liable to DTC, for all 5 million shares.
3
1.9 BCIT, Capital Growth Financial, L.L.C. and XX Xxxxxx & Co.
and each of the Defendants desire to compromise and resolve claims against one
another on the terms as set forth in this Settlement Agreement.
1.10 Defendant, Global Consulting Group has alleged that it
accepted the certificates in good faith and did not know at the time that these
certificates were alleged to be counterfeit. Defendant, Global Consulting Group
denies the wrongdoing alleged in the Petition, and further denies that BCIT,
Capital Growth Financial, L.L.C. or XX Xxxxxx & Co. suffered any damages as a
result of their actions.
II. TERMS OF SETTLEMENT
In consideration of the mutual covenants as set forth herein,
the parties hereto agree as follows:
3.1 Exchange of Shares, Claims and Cash. Upon approval
of this Settlement Agreement by the District Court in the Civil Action:
3.1.1 Capital Growth Financial, L.L.C. and XX
Xxxxxx & Co. shall take all such steps as may be reasonably necessary to cause
the respective clearing firms of each to release and deliver to counsel for BCIT
all of the Wrongfully Issued Shares held by them, if any. Should the respective
clearing firm of either Capital Growth Financial, L.L.C. or XX Xxxxxx & Co. fail
to deliver the Wrongfully Issued Shares, Capital Growth Financial, L.L.C. or XX
Xxxxxx & Co. shall not be held liable for such failure. All of the Defendants,
including Xxxxxxx Xxxxxx, will forthwith release and return to counsel for BCIT,
all of the certificates representing the Wrongfully Issued Shares, if any are
remaining in such Defendants' possession or control.
3.1.2 XX Xxxxxx & Co. previously acquired
25,075,000 shares of common stock of BCIT (the "Restricted Shares") in a
transaction intended to comply with Section 4(2) of the 1933 Act, for $72,500.
Upon approval of this Settlement Agreement by the Court, BCIT shall issue to XX
Xxxxxx & Co. 25,025,000 shares of Common Stock of BCIT possessing the attributes
described in Section 3.3 below. In exchange, XX Xxxxxx & Co. shall cause the
Restricted Shares to be released and distributed to BCIT. Further, upon approval
of this Settlement Agreement by the Court, BCIT shall issue to Capital Growth
Financial, L.L.C., for transfer to or for the accounts of the respective
Defendants at Capital Growth Financial, L.L.C., as appropriate, an aggregate of
219,723,000 New Shares. The 25,025,000 shares to be issued to XX Xxxxxx & Co.
and the 219,723,000 shares to be issued to Capital Growth Financial, L.L.C. are
hereinafter referred to as the "New Shares."
3.1.3 All of the Defendants, by their execution
below, hereby agree and authorize Capital Growth Financial, L.L.C. (with
reservation of rights) to take such steps as may be reasonably necessary to
transfer to BCIT, in full or partial satisfaction of the claims of BCIT, the
cash amounts as set forth below in Column 3 if such funds are currently held in
the brokerage accounts of such Defendants as of the date of this Agreement, at
Capital Growth Financial, L.L.C. such transferred amounts to be paid to BCIT in
full or partial satisfaction of the indebtedness of each such respective
Defendant to BCIT (but not of Capital Growth Financial, L.L.C. ) for the value
of the New Shares:
4
Amounts Held at Capital Growth Financial, L.L.C.
---------------------------- ------------------------- ---------------------------------- ----------------------------
Column 1 Column 2 Column 3 Column 4
Defendant Cash on Deposit Amt. to Transfer to BCIT Amt. Still Due BCIT
---------------------------- ------------------------- ---------------------------------- ----------------------------
Clear Stock, Inc. $42,669.92 $42,669.92 $35,216.92
---------------------------- ------------------------- ---------------------------------- ----------------------------
DealFlo 82,379.13 17,086.07
---------------------------- ------------------------- ---------------------------------- ----------------------------
Xxxxxx 151.55 151.55 43,428.39
---------------------------- ------------------------- ---------------------------------- ----------------------------
Xxxxxx 0.00 0.00
---------------------------- ------------------------- ---------------------------------- ----------------------------
Grace Trust 22,928.68 22,928.68 7,420.71
---------------------------- ------------------------- ---------------------------------- ----------------------------
Global Consulting 10.41 10.41 6,536.76
---------------------------- ------------------------- ---------------------------------- ----------------------------
Xxxxxx Xxxx 5.04 5.04 16,497.64
---------------------------- ------------------------- ---------------------------------- ----------------------------
Intelligent Mess. Dist. 0.43 0.43 36,794.00
---------------------------- ------------------------- ---------------------------------- ----------------------------
Wall Street Group 87,855.32 87,855.32 73,058.43
---------------------------- ------------------------- ---------------------------------- ----------------------------
Xxxxxx Xxxxxxxx 838.94 838.94 58,015.28
---------------------------- ------------------------- ---------------------------------- ----------------------------
Xxxxxx Xxxxxxx 0 0 124.99
---------------------------- ------------------------- ---------------------------------- ----------------------------
Each of the Defendants, as set forth in Column 1, above, shall herewith cause to
be delivered to counsel for BCIT the respective amounts set forth in Column 4,
as payment in full satisfaction of the exchange of the Wrongfully Issued Shares
for the New Shares. Other than the amounts set forth in Column 4, above held in
such accounts at Capital Growth Financial, L.L.C., nothing in this provision
shall require XX Xxxxxx & Co. or Capital Growth Financial, L.L.C. to forward to
BCIT any funds that such entities recover from any Defendants.
5
3.2 Court Approval of Settlement Agreement. Counsel for BCIT,
counsel for Capital Growth Financial, L.L.C. and XX Xxxxxx & Co., and each
counsel for the Defendants, shall undertake to obtain the approval of the terms
and conditions of this Agreement in accordance with the provisions of Section
3(a)(10) of the 1933 Act and in accordance with SEC Division of Corporation
Finance Revised Staff Legal Bulletin No. 3 (October 20, 1999), such that the New
Shares may be issued by BCIT in accordance with the terms and conditions of this
agreement, without restriction under the 1933 Act.
3.3 Attributes of New Shares. Upon entry of an appropriate
court order approving the terms and conditions of this Agreement as set forth in
sections 3.1 and 3.2, above, the New Shares shall be deemed to be free-trading
stock exempt from registration pursuant to Section 3(a)(10) of the 1933 Act.
BCIT shall take such steps as are reasonably necessary and appropriate to ensure
that such New Shares, among other things, shall be:
a) Properly authorized and issued under the relevant state blue sky and
corporate law;
b) Issued in compliance with the federal securities laws and the rules
thereunder; and
c) Not be restricted shares, i.e., shall be freely tradable without legal
or equitable restriction and shall be without adverse claim under UCC Article 8.
Provided further, that with respect to the 25,025,000 shares that BCIT
shall issue to XX Xxxxxx & Co., BCIT shall take such steps as are reasonably
necessary and appropriate to ensure that such New Shares, among other things,
shall be:
a) Reasonably acceptable to DTC for deposit therein in satisfaction of NF
Clearing/XX Xxxxxx'x open short position, as described in Section 1.7 hereof;
and
b) Reasonably acceptable to NF Clearing in satisfaction of XX Xxxxxx &
Co.'s obligation for the 25,025,000 shares.
Provided further, that with respect to the 25,025,000 shares that BCIT
shall issue to XX Xxxxxx & Co., BCIT:
a) Shall not seek or instruct its transfer agent to impose any stops or
stop transfer orders on these New Shares or on any shares that flow
therefrom; and
b) Shall not assert any adverse claim against such new shares.
3.4 Cash Payments. Upon entry of an appropriate court order approving
the terms and conditions of this Agreement as set forth in sections 3.1 and 3.2,
above counsel for BCIT shall release to BCIT the sums held by it in its trust
account deposited there by XX Xxxxxx & Co. on or about September 29, 2005.
6
3.6 Failure to Receive Court Approval. In the event that, for any
reason the District Court in the Civil Action does not approve the terms and
conditions of this Agreement pursuant to section 3.1 and 3.2 hereof, this
Agreement shall be deemed to be void and held for naught, and the Civil Action
shall proceed to trial and judgment.
3.7 Dismissal of Certain Claims.
3.7.1 Upon entry of an appropriate court order approving the
terms and conditions of this Agreement as set forth in sections 3.1 and 3.2,
above, BCIT, Capital Growth Financial, L.L.C. and XX Xxxxxx & Co. shall execute
and deliver to the District Court in the Civil Action a Dismissal With Prejudice
of all of the respective claims asserted by them against each other in the Civil
Action.
3.8 Releases of Certain Claims
3.8.1 Capital Growth Financial, L.L.C. and XX Xxxxxx
& Co. Release of Claims. Capital Growth Financial, L.L.C. and XX Xxxxxx & Co.
each, individually and collectively, hereby release, discharge, and relinquish
any and all claims whatsoever, demands, causes of action, whether in law or in
equity, whether known or unknown, anticipated or unanticipated, direct or
indirect, fixed or contingent, whether heretofore asserted or not, which they
ever had, now have, or may claim to have, against BCIT, including, without
limitation, the claims asserted in their respective Petitions in Intervention.
3.9 BCIT Release of Claims. BCIT hereby releases, discharges,
and relinquishes any and all claims whatsoever, demands, causes of action,
whether in law or in equity, whether known or unknown, anticipated or
unanticipated, direct or indirect, fixed or contingent, whether heretofore
asserted or not, which it ever had, now have, or may claim to have, against
Capital Growth Financial, L.L.C., XX Xxxxxx & Co., and the Defendants.
3.10 Defendants Release of Claims. The Defendants hereby
release, discharge and relinquish any and all claims whatsoever, demands, causes
of action, whether in law or in equity, whether known or unknown, anticipated or
unanticipated, direct or indirect, fixed or contingent, whether heretofore
asserted or not, which it ever had, now have, or may claim to have, against
BCIT.
3.11 Claims. BCIT hereby acknowledges and agrees that the
releases described in this Section are an important element of this Settlement
Agreement and further BCIT's desire to resolve these issues as quickly and
efficiently as possible. The claims, if any, of BCIT, Defendants, Capital Growth
Financial, L.L.C. and XX Xxxxxx & Co. not expressly released hereby shall in all
respects remain unimpaired by this Settlement Agreement.
7
IV. INDEMNIFICATION
4.1 Indemnification of BCIT. Xxxxx X. Xxxx, an individual,
Xxxx Xxxxxx Xxxxxx, an individual, Xxxxxx Xxxxxxxx, an individual, Xxxxxx
Xxxxxxx, an individual, Global Consulting Group, a Maryland Corporation,
Intelligent Message Distributors, a Nevada corporation, and Wall Street Group,
L.L.C., a Arizona Limited liability Company, individually and collectively (and
not the Intervenors), hereby agree to indemnify and hold harmless BCIT and each
officer, director and employee (whether past, present or future) of BCIT against
and in respect of all actions, suits, proceedings, demands, and assessments
brought by any past, present or future holder of one or more shares of common
stock of BCIT in connection with both this Settlement Agreement and the various
claims of BCIT finally resolved and settled hereby, and any judgments,
attorney's fees, costs and expenses associated therewith.
V. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of BCIT. BCIT represents
and warrants to Capital Growth Financial, L.L.C. XX Xxxxxx & Co., and the
Defendants as follows:
5.1.1 BCIT is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, with all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted. BCIT has
taken all corporate action necessary to authorize its execution, delivery and
performance of this Settlement Agreement. BCIT has full corporate power and
authority to enter into this Agreement and carry out the terms hereof. This
Settlement Agreement, when executed by the person(s) identified herein, will
have been validly executed and delivered by BCIT, binding upon and enforceable
against it in accordance with its terms, except as enforceability may be limited
or affected by applicable bankruptcy, insolvency, reorganization, or other laws
of general application relating to or affecting creditors' rights generally and
except as enforceability may be limited by rules of law governing specific
performance, injunctive relief or other equitable remedies.
5.1.2 The execution, delivery and performance of
this Settlement Agreement by BCIT, the compliance by BCIT with the provisions of
this Settlement Agreement and the consummation of the transactions described in
this Settlement Agreement will not conflict with or result in the breach of any
of the terms or provisions of or constitute a default under:
5.1.2.1 the articles of incorporation or
bylaws of BCIT;
5.1.2.2 any agreement or instrument to
which BCIT is a party or by which BCIT is bound; or
8
5.1.2.3 to the best of the knowledge of
BCIT, any order, rule, regulation or decision of any court or regulatory
authority or governmental body applicable to BCIT.
5.1.3 Except for any review initiated by any
state securities and regulatory authority or the Federal Securities and Exchange
Commission as to an exemption from registration of any shares issued pursuant to
this Settlement Agreement, or as otherwise provided herein, no consent,
approval, authorization, order, designation or declaration of any court or
regulatory authority or governmental body, federal or other, or third person is
required to be obtained by BCIT for the consummation of the transactions
described in this Agreement.
5.1.4 To the best of its knowledge and
belief, BCIT currently has 29,105,078 outstanding shares of its common stock.
5.1.5 To the best of its knowledge and belief, BCIT
has 500,000,000 authorized shares of common stock, par value $.0001.
5.2 Representations and Warranties of Capital Growth
Financial, L.L.C. Capital Growth Financial, L.L.C. represents and warrants to
BCIT as follows:
5.2.1 Capital Growth Financial, L.L.C. is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, with all requisite corporate power and
authority to own and operate its properties and to carry on its business as now
conducted. Capital Growth Financial, L.L.C. has taken all corporate action
necessary to authorize its execution, delivery and performance of this
Settlement Agreement. Capital Growth Financial, L.L.C. has full corporate power
and authority to enter into this Agreement and carry out the terms hereof. This
Settlement Agreement, when executed by the person(s) identified herein, will
have been validly executed and delivered by Capital Growth Financial, L.L.C.,
binding upon and enforceable against it in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy, insolvency,
reorganization, or other laws of general application relating to or affecting
creditors' rights generally and except as enforceability may be limited by rules
of law governing specific performance, injunctive relief or other equitable
remedies.
5.2.2 The execution, delivery and performance of
this Settlement Agreement by Capital Growth Financial, L.L.C., the compliance by
Capital Growth Financial, L.L.C. with the provisions of this Settlement
Agreement and the consummation of the transactions described in this Settlement
Agreement will not conflict with or result in the breach of any of the terms or
provisions of or constitute a default under:
9
5.2.2.1 the articles of incorporation or
bylaws of Capital Growth Financial, L.L.C.;
5.2.2.2 any agreement or instrument to which
Capital Growth Financial, L.L.C. is a party or by which Capital Growth
Financial, L.L.C. is bound; or
5.2.2.3 to the best of the knowledge of
Capital Growth Financial, L.L.C., any order, rule, regulation or decision of any
court or regulatory authority or governmental body applicable to Capital Growth
Financial, L.L.C.
5.2.3 Except for any review initiated by any state securities and regulatory
authority or the Federal Securities and Exchange Commission as to an exemption
from registration of any shares issued pursuant to this Settlement Agreement, or
as otherwise set forth herein, no consent, approval, authorization, order,
designation or declaration of any court or regulatory authority or governmental
body, federal or other, or third person is required to be obtained by Capital
Growth Financial, L.L.C. for the consummation of the transactions described in
this Agreement.
5.3 Representations and Warranties of XX Xxxxxx & Co.
XX Xxxxxx & Co. represents and warrants to BCIT as follows:
5.3.1 XX Xxxxxx & Co. is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, with all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted. XX Xxxxxx
& Co. has taken all corporate action necessary to authorize its execution,
delivery and performance of this Settlement Agreement. XX Xxxxxx & Co. has full
corporate power and authority to enter into this Agreement and carry out the
terms hereof. This Settlement Agreement, when executed by the person(s)
identified herein, will have been validly executed and delivered by XX Xxxxxx &
Co., binding upon and enforceable against it in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization, or other laws of general application relating to or
affecting creditors' rights generally and except as enforceability may be
limited by rules of law governing specific performance, injunctive relief or
other equitable remedies.
5.3.2 The execution, delivery and performance of
this Settlement Agreement by XX Xxxxxx & Co., the compliance by XX Xxxxxx & Co.
with the provisions of this Settlement Agreement and the consummation of the
transactions described in this Settlement Agreement will not conflict with or
result in the breach of any of the terms or provisions of or constitute a
default under:
5.3.2.1 the articles of incorporation or
bylaws of XX Xxxxxx & Co.;
5.3.2.2 any agreement or instrument to
which XX Xxxxxx & Co. is a party or by which XX Xxxxxx & Co. is bound; or
10
5.3.2.3 to the best of the knowledge of
XX Xxxxxx & Co., any order, rule, regulation or decision of any court or
regulatory authority or governmental body applicable to XX Xxxxxx & Co.
5.3.3 Except for any review initiated by any
state securities and regulatory authority or the Federal Securities and Exchange
Commission as to an exemption from registration of any shares issued pursuant to
this Settlement Agreement, or as otherwise set forth herein, no consent,
approval, authorization, order, designation or declaration of any court or
regulatory authority or governmental body, federal or other, or third person is
required to be obtained by XX Xxxxxx & Co. for the consummation of the
transactions described in this Agreement.
VI. MISCELLANEOUS PROVISIONS
6.1 Press Releases. Neither BCIT nor XX Xxxxxx & Co. nor Capital Financial
Growth, L.L.C. shall issue any press release describing or in any way referring
to this Settlement Agreement without the prior written approval of the other.
BCIT, XX Xxxxxx & Co. and Capital Financial Growth, L.L.C. shall each work in
good faith to prepare either a mutually acceptable joint release or mutually
acceptable separate releases.
6.1 Compromise. The parties agree that they are entering into this
Agreement as a compromise of disputed claims to avoid the cost and expense of
litigation. By entering into this Agreement, none of the parties hereto admits
any wrongdoing, liability or obligation whatsoever.
6.2 Additional Documents. All parties agree to furnish any additional
information and execute any and all additional documents not inconsistent with
the provisions of this Agreement which may be required by, or as may be
necessary or proper to carry out effectively, the provisions and purposes of
this Agreement.
6.3 Entire Agreement. This Agreement embodies the entire agreement between
the parties hereto with respect to the matters involved herein and supersedes
any previous negotiations or agreements between the parties with respect to such
matters. This Agreement was not executed in reliance upon any statement or
representation by either party other than those set forth above. This Agreement
may not be modified except by a subsequent agreement in writing signed by all
affected parties. No amendment or modification of this Agreement shall be
effective unless executed in writing by the parties affected by such amendment
or modification.
6.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which constitutes an original and all of which taken
together shall constitute one and the same agreement.
11
6.5 Authority to Execute. The signatories hereto each warrant that they
have the authority to enter this Agreement, and any related documents, on behalf
of the individual and/or entity on whose behalf they execute said documents.
6.6 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors, assigns, heirs and personal
representatives.
6.7 Paragraph Headings. The paragraph headings contained herein are
included for convenience and reference purposes only and are not to be used in
construing or interpreting this Agreement.
6.8 Time of Essence. Time is of the essence of this Agreement.
6.9 Governing Law. The validity, construction and enforcement of this
Agreement shall be governed by the laws of the State of Oklahoma.
6.10 Enforceability. The covenants of this Agreement shall be specifically
enforceable. In the event either party shall file an action to enforce the
obligations imposed on the other party, the prevailing party shall be entitled
to its costs and expenses, including a reasonable attorney's fee, incurred in
connection with enforcement of such obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
12
BANCORP INTERNATIONAL GROUP, INC., a
Nevada corporation
By: /S/XXXXXX XXXXX
Its: President
ATTEST:
------------------------
secretary
CORPORATE ACKNOWLEDGMENT
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Xxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Bancorp International Group, Inc., and
acknowledged to me that he is authorized to execute on behalf of the
corporation, and that he executed the same for the purposes and consideration
therein expressed in the capacity herein stated and as the act and deed of the
corporation.
Given under my hand and seal of office this 5th day of January, 2006.
/S/XXXXX XXXXX
Notary Public
My Commission Expires:
9/25/06
13
X X XXXXXX & CO, INC., a
New York corporation
By: /S/XXXXXX RABINAOVITZ
Its: President
ATTEST:
------------------------
secretary
CORPORATE ACKNOWLEDGMENT
STATE OF NY )
) ss.
COUNTY OF NY )
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Rabinnaovitz, known to me to be the person whose name is subscribed to
the foregoing instrument as President of XX Xxxxxx & Co., Inc., and acknowledged
to me that he is authorized to execute on behalf of the corporation, and that he
executed the same for the purposes and consideration therein expressed in the
capacity herein stated and as the act and deed of the corporation.
Given under my hand and seal of office this 10 day of January, 2006.
/S/XXXXX XXXXX
Notary Public
My Commission Expires:
11-14-09
14
CAPITAL GROWTH FINANCIAL, L.L.C., a
Florida limited liability company
By: /S/XXXXXXX X. XXXXXX
Its: (Title) President
ACKNOWLEDGMENT
STATE OF Florida )
) ss.
COUNTY OF Palm Beach )
Before me, the undersigned authority, on this day personally appeared
Xxxxxxx X. Xxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as ____________________ of Capital Growth Financial,
L.L.C., and acknowledged to me that he is authorized to execute on behalf of the
limited liability company, and that he executed the same for the purposes and
consideration therein expressed in the capacity herein stated and as the act and
deed of the limited liability company.
Given under my hand and seal of office this 11th day of January, 2006.
/S/XXXXXX X. XXXX
Notary Public
My Commission Expires:
4-17-09
15
CLEARSTOCK, INC., a
Texas corporation
By: /S/XXX XXXXXXXXX
Its: President
ATTEST:
------------------------
secretary
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
Before me, the undersigned authority, on this day personally appeared
Xxx Xxxxxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Clearstock, Inc., and acknowledged to me
that he is authorized to execute on behalf of the corporation, and that he
executed the same for the purposes and consideration therein expressed in the
capacity herein stated and as the act and deed of the corporation.
Given under my hand and seal of office this 4th day of January, 2006.
/S/ XXXX XXXXX XXX
Notary Public
My Commission Expires:
4-14-06
16
GLOBAL CONSULTING GROUP, a
Maryland corporation
By: /S/XXXX XXXXXX
Its: President
ATTEST:
/S/XXXXXXXXX XXXXXX
secretary
CORPORATE ACKNOWLEDGMENT
STATE OF MARYLAND )
) ss.
COUNTY OF XXXX ARUADEL )
Before me, the undersigned authority, on this day personally appeared
Xxxx Xxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Global Consulting Group, and acknowledged
to me that he is authorized to execute on behalf of the corporation, and that he
executed the same for the purposes and consideration therein expressed in the
capacity herein stated and as the act and deed of the corporation.
Given under my hand and seal of office this 5th day of January, 20065.
/S/AMSTEW XXXXXX XXXX
Notary Public
My Commission Expires:
Nov. 9th, 2009
17
INTELLIGENT MESSAGE DISTRIBUTORS, a
Nevada corporation
By: /S/XXXXXX XXXX
Its: President
ATTEST:
/S/XXXXXX XXXX
secretary
CORPORATE ACKNOWLEDGMENT
STATE OF California )
) ss.
COUNTY OF San Diego )
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Xxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Intelligent Message Distributors, and
acknowledged to me that he is authorized to execute on behalf of the
corporation, and that he executed the same for the purposes and consideration
therein expressed in the capacity herein stated and as the act and deed of the
corporation.
Given under my hand and seal of office this 4th day of January, 2006.
/S/XXXXXXX XXXXXXX
Notary Public
My Commission Expires:
Aug. 15, 2006
18
DEALFLO, L.L.C., a
New York limited liability company
By: /S/XXXX XxXXXXXX
Its: (Title) Presient
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.
COUNTY OF MONROE )
Before me, the undersigned authority, on this day personally appeared
Xxxx XxXxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Dealflo, L.L.C., and acknowledged to me
that he is authorized to execute on behalf of the limited liability company, and
that he executed the same for the purposes and consideration therein expressed
in the capacity herein stated and as the act and deed of the limited liability
company.
Given under my hand and seal of office this 4th day of January, 2006.
/S/XXXX XXXXX XXX
Notary Public
My Commission Expires:
4-14-06
00
XXXX XXXXXX GROUP, L.L.C., an
Arizona limited liability company
By: /S/Xxxxx Xxxx
Its: (Title)
ACKNOWLEDGMENT
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
Before me, the undersigned authority, on this day personally appeared
________________________, known to me to be the person whose name is subscribed
to the foregoing instrument as ____________________ of Wall Street Group,
L.L.C., and acknowledged to me that he is authorized to execute on behalf of the
limited liability company, and that he executed the same for the purposes and
consideration therein expressed in the capacity herein stated and as the act and
deed of the limited liability company.
Given under my hand and seal of office this 4th day of January, 2006.
/S/XXXXX X. XXXXX
Notary Public
My Commission Expires:
5-19-2009
20
/S/XXXXX XXXX
Xxxxx Xxxx, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
Before me, the undersigned authority, on this day personally appeared
Xxxxx Xxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this 4th day of January, 2006.
/S/XXXXX X. XXXXX
Notary Public
My Commission Expires:
5-19-2009
21
THE GRACE TRUST, a
foreign trust
By: _____________________
Its: Trustee
ACKNOWLEDGMENT
STATE OF _______________ )
) ss.
COUNTY OF _______________ )
Before me, the undersigned authority, on this day personally appeared
________________________, known to me to be the person whose name is subscribed
to the foregoing instrument as Trustee of The Grace Trust, and acknowledged to
me that (s)he is authorized to execute on behalf of the trust, and that (s)he
executed the same for the purposes and consideration therein expressed in the
capacity herein stated and as the act and deed of the trust.
Given under my hand and seal of office this ___________ day of
___________________________, 2005.
--------------------------------------
Notary Public
My Commission Expires:
--------------------
22
------------------------------------
Xxxxxxx Xxxxxx, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF _______________ )
) ss.
COUNTY OF _______________ )
Before me, the undersigned authority, on this day personally appeared
Xxxxxxx Xxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this ___________ day of
___________________________, 2005.
--------------------------------------
Notary Public
My Commission Expires:
--------------------
23
/S/XXXXXX KIBIRIAN
Xxxxxx Kibirian, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Kibirian, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this 5th day of January, 2006.
/S/XXXXXXX XXXX
Notary Public
My Commission Expires:
February 17, 2007
24
------------------------------------
Xxxxxx Xxxxxxx, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF _______________ )
) ss.
COUNTY OF _______________ )
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Xxxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this ___________ day of
___________________________, 2005.
--------------------------------------
Notary Public
My Commission Expires:
--------------------
25
/S/XXXX XXXXXX XXXXXX
Xxxx Xxxxxx Xxxxxx, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF _______________ )
) ss.
COUNTY OF _______________ )
Before me, the undersigned authority, on this day personally appeared
Xxxx Xxxxxx Xxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this ___________ day of
___________________________, 2005.
--------------------------------------
Notary Public
My Commission Expires:
--------------------
26
/S/XXX XXXX
Xxx Xxxx, an individual
INDIVIDUAL ACKNOWLEDGMENT
STATE OF California )
) ss.
COUNTY OF San Diego )
Before me, the undersigned authority, on this day personally appeared
Xxx Xxxx, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she executed the same as her free and
voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office this 4th day of January, 2006.
/S/XXXXXXX XXXXXXX
Notary Public
My Commission Expires:
Aug. 15, 2006
