SEPARATION AGREEMENT
Exhibit 99.1
THIS
SEPARATION AGREEMENT (this “Agreement”) is
effective as of the 5th day
of March, 2010 (the “Effective Date”), by
and between CirTran Corporation (the “Company”), and Xxxxxx
Xxxxxxxx, an individual residing in the state of Utah (“Shaher”).
RECITALS
A. Prior
to the effective date of this Agreement, Shaher was an employee of the
Company.
B. The
Company and Shaher desire to terminate their relationship and the Company
desires to provide Shaher the separation consideration set forth herein and
Shaher desires to receive the separation consideration, all in exchange for the
promises, covenants and other consideration to be provided by Shaher as set
forth herein and all on the terms and conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the agreements and obligations set forth herein
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
SEPARATION
1.1 Resignation and Termination
of Employment Relationship. As of equal date of this Agreement
(the “Effective
Date”), Shaher’s employment with the Company is terminated and Shaher no
longer has any further employment obligations with the Company. The
employment agreement between the Company and Shaher is terminated as of the
Effective date, and no party has any continuing duty or obligation to the other,
except as specifically provided for in this Agreement.
1.2 Separation
Payment. In consideration for Shaher’s execution of this
Agreement and the release of claims contained herein, the Company shall pay
Shaher’ separation pay (“Separation Pay”) as
follows:
(a) Two
Hundred Ten Thousand Dollars ($210,000), in twenty-six (26) bi-weekly payments,
subject to applicable federal and state income tax withholding. The
first payment under this Section 1.2(a) shall
be paid on March 19, 2010 and subsequent payments shall be made bi-weekly in
accordance with the Company’s regularly established payroll practices;
and
(b) All
amounts necessary to cover health and medical insurance premiums on behalf of
Shaher, his spouse and dependents through April 30, 2010 though the COBRA
benefit required by law to be offered with respect to the Company’s health and
medical insurance plan as in effect on the date hereof; and
(c) All
outstanding car allowances and expense ($750 per month) due and owning to Shaher
as of February 28, 2010, pursuant to his employment agreement with the Company
(all amounts payable pursuant to this Section 1.2(c) shall
be paid on or before March 31, 2010); and
(d) Satisfaction
and payment by the Company (with a complete release of Shaher) of all
outstanding amounts due and owning on the Company’s Corporate American Express
Card (issued in the name of Shaher) (all amounts payable pursuant to this Section 1.2(d) shall
be paid on or before April 30, 2010); and
(e) The
Company shall issue and deliver to Shaher, Ten Million (10,000,000) shares of
the Company’s common stock within a reasonable time following authorization by
the Company’s shareholders of sufficient shares to cover such
issuance. The Company represents that it is in the process of
soliciting shareholder votes to authorize sufficient shares to make the issuance
pursuant to this Section 1.2(e) and
that it will use its best efforts obtain such shareholder consent.
1.3 Release of Claims by
Shaher.
(a) For
and in consideration of the Company’s payment of the Separation Pay, Shaher
hereby voluntarily and knowingly forever waives, releases, and discharges the
Company, and its predecessors, successors, parent, subsidiaries, affiliates,
officers, directors, shareholders, employees, agents, insurers, attorneys, and
assigns from any and all claims, losses, liabilities, demands, damages, and/or
causes of action, of any nature or kind, known or unknown, in law or in equity,
matured or contingent, regardless of when filed or brought, arising or accruing
prior to the Effective Date, which Shaher has or may have against any of
them. The claims released herein include, without limitation, (1) any
claims based either in whole or in part upon any facts, circumstances, acts, or
omissions in any way arising out of, based upon, or related to Shaher’
employment with the Company or the termination thereof; (2) any claims arising
under any federal or state statute or regulation, local ordinance, or the common
law, regarding employment or prohibiting employment discrimination, harassment,
or retaliation, including, without limitation, Title VII of the Civil Rights Act
of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, the Older
Workers’ Benefit Protection Act, the National Labor Relations Act, Section 1981
of the Civil Rights Act of 1866, the Americans with Disabilities Act, the Fair
Labor Standards Act, the Employee Retirement Income Security Act, the Family and
Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the
Health Insurance Portability and Accountability Act of 1996, the Utah
Antidiscrimination Act, and the Utah Payment of Wages Act; (3) any claim for
wrongful discharge, wrongful termination in violation of public policy, breach
of the covenant of good faith and fair dealing, breach of contract, personal
injury, harm, or other damages (whether intentional or unintentional),
negligence, negligent employment, defamation, misrepresentation, fraud,
intentional or negligent infliction of emotional distress, interference with
contract or other economic opportunity, assault, battery, or invasion of
privacy; (4) claims growing out of any legal restrictions on the Company’s right
to terminate its employees; (5) claims for wages, other compensation or
benefits; (6) any claim for general, special, or other compensatory damages,
consequential damages, punitive damages, back or front pay, fringe benefits,
attorneys’ fees, costs, or other damages or expenses; (7) any claim for
injunctive relief or other equitable relief; (8) any claim arising under any
federal or state statute or local ordinance regulating the health and/or safety
of the workplace; or (9) any other tort, contract or statutory
claim.
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(b) Notwithstanding
the terms of the foregoing paragraph, Shaher does not release the Company from
any obligations it may have with respect to any of the
following: Shaher’s right to the continuation of health insurance
coverage under COBRA; and his right to apply for unemployment compensation
benefits or worker’s compensation benefits.
(c) The
releases provided for in this section do not extend to any rights or remedies
which Shaher may have against the Company under the terms of this
Agreement.
(d) Shaher
agrees not to file or participate in a lawsuit or administrative proceeding to
assert any claims or to seek damages for any claims released
herein.
1.4 Release of Claims by the
Company.
(a) For
and in consideration of the release given by Shaher to the Company, the Company
hereby voluntarily and knowingly forever waives, releases, and discharges
Shaher, and associates, successors, affiliates, employees, agents, insurers,
attorneys, and assigns from any and all claims, losses, liabilities, demands,
damages, and/or causes of action, of any nature or kind, known or unknown, in
law or in equity, matured or contingent, regardless of when filed or brought,
arising or accruing prior to the Effective Date, which the Company has or may
have against any of them. The claims released herein include, without
limitation, (1) any claims based either in whole or in part upon any facts,
circumstances, acts, or omissions in any way arising out of, based upon, or
related to the Company’s employment of Shaher or the termination thereof; (2)
any claims arising under any federal or state statute or regulation, local
ordinance, or the common law; (3) any claim for breach of the covenant of good
faith and fair dealing, breach of contract, harm, or other damages (whether
intentional or unintentional), negligence, defamation, misrepresentation, fraud,
or interference with contract or other economic opportunity; (4) any claim for
general, special, or other compensatory damages, consequential damages, punitive
damages, attorneys’ fees, costs, or other damages or expenses; (5) any claim for
injunctive relief or other equitable relief; or (6) any other tort, contract or
statutory claim.
(b) The
releases provided for in this section do not extend to any rights or remedies
which the Company may have against Shaher under the terms of this
Agreement.
(c) the
Company agrees not to file or participate in a lawsuit or administrative
proceeding to assert any claims or to seek damages for any claims released
herein.
1.5 Nondiclosure and
Nonsolicition.
(a)
Nondisclosure.
Shaher shall not disclose any confidential information of the Company without
the written consent of the Company or as required by law.
(b) Nonsolicitation. For
one (1) year after the Effective Date, Shaher and his affiliates will not: (1)
directly or indirectly employ or solicit or assist any other person in employing
or soliciting for employment any person who is, or was at any time within six
(6) months prior to both the Effective Date and the time of such employment and
solicitation, an employee of the Company (except for those employees who have
left employment of the Company to join Shaher as of the Effective Date) or (2)
directly or indirectly, approach any customer or business partner of the Company
or its businesses and business associates for the purpose of providing services
substantially similar to the services provided by the Company or its businesses
and business associates.
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ARTICLE 2
MISCELLANEOUS
PROVISIONS
2.1 No Prior
Assignment. Each of Shaher and the Company represents and
warrants that each is the sole and lawful owner of all right, title, and
interest in and to all claims released herein, and has not and will not
voluntarily, by operation of law or otherwise, assign, transfer, or convey to
any other person or entity any claim, or any part or portion thereof or any
interest therein, released by this Agreement.
2.2 Bar Against
Action. Each of Shaher and the Company hereby agrees and
warrants that such party shall not bring, commence, institute, maintain, or
prosecute or allow any person, entity, or organization to bring, commence,
institute, maintain, or prosecute in such party’s name, any action at law or in
equity or any legal proceeding whatsoever, against the other party hereto or any
other individual or entity, relating to the claims released herein, other than
an action to enforce this Agreement or based on an alleged breach
thereof. This Section 2.2 may
be pleaded as a full and complete defense to, and may be used as a basis for
injunction relief against, any action, suit or other proceeding which may be
instituted, prosecuted, or attempted in breach of this Section 2.2.
2.3 No Admission of Liability or
Damages. Each of Shaher and the Company hereby acknowledges
and agrees that the mutual promises and release of claims contained herein are a
material part of this Agreement and that none of the parties hereto would have
entered into this Agreement without such release of claims. Neither
the execution of this Agreement nor any provision contained herein shall be
construed to be an admission by any party of any wrongdoing or liability to any
other party or to any other person or entity of any kind.
2.4 Survival. The
warranties and representations contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the effective
date and shall in no way be affected by any investigation of the subject matter
thereof. Any obligation under any provision of this Agreement which
is intended to survive expiration or termination of this Agreement shall
survive.
2.5 Successors and
Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
2.6 Entire
Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
subject matter of this Agreement and may not be contradicted by evidence of any
prior or contemporaneous agreement, except as expressly set forth in this
Agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding involving this Agreement.
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2.7 Amendments;
Waivers. This Agreement shall not be varied, altered,
modified, changed, or in any way amended except by an instrument in writing
executed by Shaher and a duly authorized representative of the
Company. No waiver or consent shall be binding except in a writing
signed by the party making the waiver or giving the consent. No
waiver of any provision or consent to any action shall constitute a waiver or
any other provision or consent to any other action, whether or not
similar. No waiver or consent shall constitute a continuing waiver or
consent except to the extent specifically set forth in writing.
2.8 Notice. Except
as otherwise provided in this Agreement, all notices, demands, requests,
consents, approvals, and other communications with respect to this Agreement,
shall be in writing and shall be deemed delivered upon: (i) the personal
delivery thereof; (ii) upon transmission if transmitted by fax or e-mail
and accompanied by a confirmation of valid transmission or receipt;
(iii) upon the earlier of (A) receipt or (B) three (3) days after posting
by registered mail or certified mail, return receipt requested; or (iv) on
the next business day following delivery to a reliable and recognized overnight
air freight delivery service; provided such notices
(other than personal delivery which may be made at any location) shall be
addressed or delivered to the parties at their respective physical addresses,
fax numbers, or e-mail addresses set on the signature page hereto (or to such
other physical address, fax number, or email address for a party as such party
may have substituted by notice pursuant to this Section
2.8). Each
of the foregoing methods of delivery is a writing for purposes of this
Agreement.
2.9 Severability;
Enforcement. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by an
arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or
void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect, and
such provision shall be enforced to fullest extent consistent with applicable
law.
2.10 Governing
Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of Utah (without giving effect to its conflicts of
law principles).
2.11 Venue. All
disputes and controversies arising out of or in connection with this Agreement
or the transactions contemplated hereby shall be resolved exclusively by the
state and federal courts located in the State of Utah, and each party hereto
agrees to submit to the jurisdiction of said courts and agrees that venue shall
lie exclusively with such courts. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
such party may raise now, or hereafter have, to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. Each party agrees that, to the fullest extent
permitted by applicable law, a final judgment in any such suit, action, or
proceeding brought in such a court shall be conclusive and binding upon such
party, and may be enforced in any court of the jurisdiction in which such party
is or may be subject by a suit upon such judgment. Each party also
agrees that personal jurisdiction may be affected by service of process by
certified mail addressed as provided in Section
2.8 of this
Agreement, and when so made shall be as if served personally within the State
of Utah.
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2.12 Attorneys’
Fees. In the event of any suit, action, or proceeding brought
by any party for a breach of any term hereof, or to enforce any provision
hereof, the prevailing party shall be entitled to reasonable attorneys’ fees in
addition to court costs and other expenses of litigation in said action or
proceeding. For purposes of this Section
2.12, “prevailing
party” includes, without limitation, a party who agrees to dismiss an action or
proceeding upon the other’s payment of the sums allegedly due or performance of
the covenants allegedly breached, or who obtains substantially the relief
sought.
2.13 Interpretation. This
Agreement shall be construed as a whole, according to its fair meaning, and not
in favor of or against any party. By way of example and not in
limitation, this Agreement shall neither be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes
only and should be ignored in the interpretation of this Agreement.
2.14 Acknowledgement. The
parties acknowledge that: (i) they have each had the opportunity to consult
with independent counsel of their own choice concerning this Agreement and have
done so to the extent they deem necessary, and (ii) they each have read and
understand the Agreement, are fully aware of its legal effect, and have entered
into it voluntarily and freely based on their own judgment and not on any
promises or representations other than those contained in the
Agreement.
2.15 Counterparts. This
Agreement may be signed in counterpart or duplicate copies, and any signed
counterpart or duplicate copy shall be equivalent to a signed original of this
Agreement for all purposes.
2.16 Further Documents and
Assurances. At any time and from time to time after the
Effective Date, each party shall execute, acknowledge, and deliver all such
further documents and instruments, and will take such action consistent with the
terms of this Agreement, as may be reasonably requested by another party hereto
to carry out the transactions contemplated herein.
[SIGNATURES
TO FOLLOW]
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IN
WITNESS WHEREOF, the parties have executed this Separation Agreement as of the
date first written above.
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“SHAHER”
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Xxxxxx
Xxxxxxxx
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“COMPANY”
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CIRTRAN
CORPORATION
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By:
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Name: Xxxxx
Xxxxxxxx
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Title: President
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Address:
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0000
Xxxxx 0000 Xxxx
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Xxxx
Xxxxxx Xxxx, Xxxx 00000
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(000)
000-0000 Phone
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(000)
000-0000 Fax
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SIGNATURE
PAGE
TO
THE
