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Exhibit 10.64
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement"), between CirTran
Corporation, a Nevada corporation (the "Company"), and Xxxx Xxxx, an individual
(the "Purchaser"), is entered into as of the date set forth opposite the
Company's signature hereon.
WHEREAS, as of the date of this Agreement the Purchaser has loaned
funds in the amount of $225,000 (the "Loan Amount") to the Company; and
WHEREAS, the Purchaser and the Company desire to exchange the right to
receive repayment of the full Loan Amount for shares of the Company's Common
Stock; and
WHEREAS, the Purchaser desires to subscribe for, and the Company
desires to issue to the Purchaser, the number of shares of Common Stock
indicated on the signature page hereto (the "Shares"), all upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
premises, covenants, representations and warranties herein contained, the
parties hereby agree as follows:
1. Purchase Price; Issuance.
(a) Subject to the terms and conditions hereof, the Purchaser
hereby agrees to purchase the Shares for an amount equal to $0.003 per Share
(which purchase price per share is equal to the market price of the Company's
common stock on the date immediately prior to the execution of this Agreement)
for the aggregate amount set forth on the signature page hereto (the "Purchase
Price").
(b) The Company hereby agrees to accept the prior loans by the
Purchaser to the Company in the amount of $225,000 as payment in full for the
Shares.
(c) The Purchaser and the Company acknowledge and agree that the
Company does not have sufficient shares of common stock to issue to the
Purchaser as of the date of this Agreement. The Company agrees to use reasonable
commercial efforts to take the necessary corporate actions, to inform the
Purchaser once such actions have been taken and the Shares can be issued, and to
issue the shares as soon as possible thereafter.
2. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows:
(a) Corporate Status. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada with
full corporate power and authority to carry on its business as now conducted.
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(b) Authorization. The Company has the power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of and the performance by the Company under this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company,
and this Agreement constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights generally now or hereafter in
effect and subject to the application of equitable principles and the
availability of equitable remedies.
(c) No Conflicts. The execution, delivery and performance of this
Agreement and the other instruments and agreements to be executed, delivered and
performed by the Company pursuant hereto and the consummation of the
transactions contemplated hereby and thereby by the Company do not and will not,
with the giving of notice or the passage of time of both, violate or result in a
breach or termination of any provision of, or constitute a default under, the
Articles of Incorporation or the Bylaws of the Company or any order, judgment,
decree, statute, regulation, contract, agreement or any other restriction of any
kind or description to which the Company or its assets is bound or subject.
(d) Fully Paid and Non-Assessable Upon issuance of the Shares and
payment therefor pursuant to the terms hereof, each Share of Common Stock shall
be validly issued, fully paid and non-assessable.
3. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company as follows:
(a) Status. The Purchaser is a bona fide resident of the State
identified in the address set forth on the signature page of this Agreement as
the Purchaser's home address and is not a resident of any other state except as
disclosed on the signature page hereto, is at least 21 years of age, is legally
competent to execute this Agreement and has legal capacity to execute, deliver
and perform his or her obligations under this Agreement.
(b) Authority for Agreements. The Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of the Purchaser, and this
Agreement constitutes the valid and legally binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights generally now or hereafter in
effect and subject to the application of equitable principles and the
availability of equitable remedies.
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(c) No Conflicts. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby and
thereby by the Purchaser do not and will not, with the giving of notice or the
passage of time or both, violate or result in a breach or termination of any
provision of, or constitute a default under, any order, judgment, decree,
statute, regulation, contract, agreement or any other restriction of any kind or
description to which the Purchaser is a party or by which the Purchaser or its
assets may be bound.
(d) Investor Representations and Acknowledgments.
(i) The Purchaser is acquiring the Shares for the
Purchaser's own account for investment only and not as nominee or agent and not
with a view to, or for sale in connection with, a distribution of the Shares and
with no present intention of selling, transferring, granting a participation in
or otherwise distributing, the Shares, all within the meaning of the Securities
Act and any applicable state, securities or blue-sky laws.
(ii) The Purchaser is not a party or subject to or bound by
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge the Shares to any person, and has no present intention to
enter into such a contract, undertaking, agreement or arrangement.
(iii) The Company has advised the Purchaser that the Shares
have not been registered under the Securities Act or under the laws of any state
on the basis that the issuance thereof contemplated by this Agreement is exempt
from such registration, and the Company's reliance on the availability of such
exemption is, in part, based upon the accuracy and truthfulness of the
Purchaser's representations contained herein.
(iv) The Purchaser has received, read carefully and is
familiar with this Agreement and has had an opportunity to obtain such
information as it has deemed appropriate respecting the Company, its business,
plans, and financial condition. The Purchaser has had access to all additional
information necessary to verify the accuracy of the information set forth in
this Agreement and any other materials furnished herewith, and has taken all the
steps necessary to evaluate the merits and risks of an investment as proposed
hereunder.
(v) The Purchaser or the Purchaser's representative has
such knowledge and experience in finance, securities, investments and other
business matters so as to be able to protect the interests of the Purchaser in
connection with this transaction, and the Purchaser's investment in the Company
hereunder is not material when compared to the Purchaser's total financial
capacity.
(vi) The Purchaser understands that an investment in the
Company as proposed herein involves substantial risk, and the Purchaser can
afford to bear such risks, including, but not limited to, the risk of loss of
the Purchaser's entire investment.
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(vii) The Purchaser has been advised by the Company that
none of the Shares have been registered under the Securities Act, that the
Shares will be issued on the basis of the statutory exemption provided by
Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or
both, relating to transactions by an issuer not involving any public offering
and under similar exemptions under certain state securities laws, that this
transaction has not been reviewed by, passed on or submitted to any Federal or
state agency or self- regulatory organization where an exemption is being relied
upon, and that the Company's reliance thereon is based in part upon the
representations made by the Purchaser in this Agreement. The Purchaser
acknowledges that the Purchaser has been informed by the Company of, or is
otherwise familiar with, the nature of the limitations imposed by the Securities
Act and the rules and regulations thereunder on the transfer of securities. In
particular, the Purchaser agrees that no sale, assignment, or transfer of any of
the Shares shall be valid or effective, and the Company shall not be required to
give any effect to any such sale, assignment or transfer, unless (i) the sale,
assignment or transfer of such Shares is registered under the Securities Act, it
being understood that the Shares are not currently registered for sale and that
the Company has no obligation or intention to so register the Shares, or (ii)
such Shares are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Securities Act, it being
understood that Rule 144 is not available at the present time for the sale of
the Shares, or (iii) such sale, assignment or transfer is otherwise exempt from
registration under the Securities Act. The Purchaser further understands that an
opinion of counsel and other documents may be required to transfer the Shares.
The Purchaser acknowledges that the certificate or certificates evidencing any
Shares shall bear the following or a substantially similar legend and such other
legends as may be required by state blue sky laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
(2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE COMPANY
OR SUCH OTHER COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
(IN WHICH CASE SUCH OPINION SHALL ALSO BE REASONABLY
SATISFACTORY TO THE COMPANY), THAT SUCH SECURITIES MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS.
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(viii) The Purchaser will acquire the Shares for the
Purchaser's own account (or for the joint account of the Purchaser and the
Purchaser's spouse either in joint tenancy, tenancy by the entirety or tenancy
in common) for investment and not with a view to sale or distribution thereof or
the granting of any participation therein, and has no present intention of
distributing or selling to others any of such interest or granting any
participation therein.
(ix) Neither the Company nor any representative of the
Company have ever represented, guaranteed or warranted, whether expressly of by
implication, that:
(a) the Purchaser will realize any given
percentage of profits and/or amount or type of consideration, profit or loss as
a result of the Company's activities or the Purchaser's investment in the
Company; or
(b) the past performance or experience of the
management of the Company, or any other person, will in any way indicate the
predictable results of the ownership of the Shares or of the Company's
activities.
(x) No oral or written representations have been made other
than as stated in this Agreement, and no oral or written information furnished
to the Purchaser or the Purchaser's advisor(s) in connection with the Offering
were in any way inconsistent with the information stated in this Agreement.
(xi) The Purchaser is not subscribing for Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio (and is not aware of the existence of any of the
above), or presented at any seminar or meeting, or any solicitation of a
subscription by a person other than a representative of the Company with which
the Purchaser had a pre-existing relationship in connection with investments in
securities generally.
(xii) The Purchaser acknowledges that the representations,
warranties and agreements made by the Purchaser herein shall survive the
execution and delivery of this Agreement and the purchase of the Shares.
(xiii) Accredited Investor. The Purchaser, by initialing
the applicable paragraph (a) through (g) below, hereby represents and warrants
that the Purchaser is an "Accredited Investor" as defined in Regulation D under
the Securities Act, because the Purchaser meets the requirements set forth in
one or more of the enumerated categories. Place your initials in the space
provided in the beginning of each applicable paragraph thereby representing and
warranting as to the applicability to the Purchaser of the initialed paragraph
or paragraphs:
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[ ] (a) any individual Purchaser whose net worth, or joint net
worth with that person's spouse at the time of his purchase,
exceeds $1,000,000 (including any individual participant of a
Xxxxx Plan, XXX or XXX Rollover Purchaser);
[ ] (b) any individual Purchaser who had an income in excess of
$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of $300,000 in each of those years
and who reasonably expects an income in excess of the same income
level in the current year (including any individual participant of
a Xxxxx Plan, XXX or XXX Rollover Purchaser);
[ ] (c) any corporation or partnership not formed for the specific
purpose of making an investment in the Common Stock, with total
assets in excess of $5,000,000;
[ ] (d) any trust, which is not formed for the specific purpose of
investing in the Common Stock, with total assets in excess of
$5,000,000, whose purchase is directed by a sophisticated person,
as such term is defined in Rule 506(b) of Regulation D under the
Securities Act;
[ ] (e) any ERISA Plan if the investment decision is made by a
plan fiduciary, as defined in section 3(21) of ERISA, which is
either a bank, insurance company, or registered investment
adviser, or the Plan has total assets in excess of $5,000,000;
[ ] (f) an individual Purchaser who is an executive officer or
director of the Company;
[ ] (g) any entity in which all of the equity owners are
Accredited Investors under paragraphs (a), (b), (c) or (f) above
or any other entity meeting required "Accredited Investor"
standards under Rule 501 of Regulation D under the Securities Act
and applicable State securities law criteria. IF THE PURCHASER IS
AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE ACCREDITED
INVESTORS, THE PURCHASER MUST PROVIDE A SUBSCRIPTION AGREEMENT
FROM EACH OF ITS EQUITY OWNERS;
[ ] (h) other (please explain i.e., a foreign investor)
(xiv) If at any time prior to issuance of the Shares to the
Purchaser, any representation or warranty of the Purchaser contained herein
shall no longer be true, the Purchaser promptly shall give written notice to the
Company specifying which representation and warranties are not true and the
reason therefor, whereupon the Purchaser's subscription for the Shares may be
rejected.
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5. Further Assurances. At any time and from time to time after the date
hereof, each party shall, without further consideration, execute and deliver to
the other such other instruments or documents and shall take such other actions
as the other may reasonably request to carry out the transactions contemplated
by this Agreement.
6. Miscellaneous. Any party may waive compliance by the other with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. This
Agreement may not be modified or amended except in writing signed by both
parties hereto. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Utah,
applicable to contracts made and to be performed in Utah, without reference to
Utah's principles of conflicts of law. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto. This Agreement shall not be assignable by either party without
the prior written consent of the other, such consent not to be unreasonably
withheld. The rights and obligations contained in this Agreement are solely for
the benefit of the parties hereto and are not intended to benefit or be
enforceable by any other party, under the third party beneficiary doctrine or
otherwise.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
set forth opposite the Company's execution of this Agreement.
NUMBER OF SHARES SUBSCRIBED FOR: 75,000,000 shares
Multiplied by $0.003 per share = $225,000.00
TOTAL SUBSCRIPTION AMOUNT $225,000.00
|_| INDIVIDUAL OWNER |_| CUSTODIAN UNDER
(One signature required below) Uniform Gifts to Minors Act
|_| JOINT TENANTS WITH RIGHT OF SURVIVORSHIP (Insert applicable state)
(All tenants must sign below) (Custodian must sign below)
|_| TENANTS IN COMMON |_| COMMUNITY PROPERTY
(All tenants must sign below) (Both spouses in community
property states must sign below)
Print information as it is to appear on the Company records.
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(Name of Subscriber) (Social Security or Taxpayer ID No.)
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(Home Address) (Home Telephone)
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(Business Address) (Business Telephone)
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(Name of Co-Subscriber) (Social Security or Taxpayer ID No.)
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(Home Address) (Home Telephone)
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(Business Address) (Business Telephone)
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SIGNATURE(S)
Dated: July 30, 2009
(1) /s/ Xxxx Xxxx (2)
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By: Signature of Authorized Signatory By: Signature of Authorized
Co-Signatory
Xxxx Xxxx
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Print Name of Signatory Print Name of Co-Signatory
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Title Title
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Print Name of Signatory and Title, Print Name of Co-Signatory
if applicable and Title, if applicable
ACCEPTED AND AGREED:
CIRTRAN CORPORATION
By:/s/ Xxxxx Xxxxxxxx Dated: July 30, 2009
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