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SETTLEMENT AGREEMENT
AND
MUTUAL RELEASE
This agreement is made and entered into this 10th day of February,
2006, by and between Xxxxxx Xxxxxxx d/b/a Xxxxxxx Xxxxxxxx ("Xxxxxxx") and
CirTran Corporation ("CirTran").
Recitals
X. Xxxxxxx is an individual who does business in his own name and
under the name "Salamon Brothers."
B. CirTran is a Nevada corporation. CirTran maintains its
principal place of business in Utah.
C. On February 26, 2003, Xxxxxxx filed a complaint against
CirTran in the United States District Court, Eastern District of New York,
entitled "Xxxxxx Xxxxxxx d/b/a Salamon Brothers, Plaintiff, vs. CirTran
Corporation, Defendant," case no. 2:03-cv-00948-JS-ARL. On April 7, 2003,
CirTran filed a motion objecting to the jurisdiction of the Eastern District of
New York. On May 9, 2003, Xxxxxxx voluntarily dismissed the lawsuit in the
Eastern District of New York
D. On September 11, 2003, Xxxxxxx re-filed the lawsuit in the
United States District Court for the District of Utah, Central Division, case
no. 2:03-cv-00787-TS-SA. The Complaint asserts claims for Specific Performance
and Breach of Contract seeking to recover a fee to be paid in the form of
restricted shares of CirTran common stock that allegedly became due on November
5, 2002, based on a $5 million equities financing transaction that occurred
between CirTran and third-party Cornell Capital Partners L.P. ("Cornell") on
that date.
E. On October 10, 2003, CirTran filed an Answer to the Complaint
denying the material allegations thereof and asserting various affirmative
defenses.
F. On December 13, 2004, Xxxxxxx filed a Supplemental Complaint
in the District of Utah in which he added claims for Specific Performance and
Breach of Contract seeking to recover an additional fee from a second equities
financing transaction that occurred between CirTran and Cornell on May 12, 2004.
G. On January 26, 2005, CirTran filed an Answer to the
Supplemental Complaint denying the material allegations of the Supplemental
Complaint and asserting various affirmative defenses.
H. The claims asserted in the Complaint and Supplemental
Complaint allege that CirTran is obligated to pay Xxxxxxx these fees pursuant to
a Financial Consulting Agreement dated October 2, 2002. Xxxxxxx alleges that his
fees became due and owing on the date of each of CirTran's transactions with
Cornell, as recited above, and that CirTran has failed to pay the fee by
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issuance of the restricted shares of CirTran common stock required by the
parties' contracts.
I. The parties hereto disagree whether and to what extent CirTran
is liable to Xxxxxxx for the claims asserted in the Complaint and Supplemental
Complaint. Nevertheless, the parties have agreed to a settlement of the claims
asserted in these actions on the terms stated herein.
NOW THEREFORE, pursuant to these Recitals, and for and in consideration
of the terms and conditions of this agreement, the mutual benefits to be derived
herefrom, and other good and valuable consideration, the parties agree as
follows:
1. Shares of Common Stock.
a. Issuance of CirTran Stock. Not later than four (4)
business days following the execution of this agreement by all of the parties
hereto, CirTran shall deliver to Xxxxxxx a certificate (the "Certificate")
representing four million (4,000,000) shares (the "Shares") of CirTran common
stock. This Certificate will bear the restrictive legend required by Rule 144.
b. Removal of the Restrictive Legend. Upon tender by
Xxxxxxx to CirTran or its counsel of (i) the Certificate signed by Xxxxxxx, and
(ii) the Rule 144(k) Representations in the form attached hereto as Exhibit A,
CirTran shall cause its counsel to deliver an opinion to CirTran's transfer
agent, with a copy to Xxxxxxx, stating that the restrictive legend on the
Certificate may be removed, which opinion shall be issued within two (2)
business days after receipt of the signed Certificate and Rule 144(k)
Representations. CirTran shall immediately thereafter cause its transfer agent
to cancel the Certificate bearing the restrictive legend and issue to Xxxxxxx a
new certificate representing the Shares without a restrictive legend.
c. Ownership of Shares. CirTran hereby acknowledges that
it is issuing these Shares in connection with this settlement as payment of
Xxxxxxx'x fee, that this fee was earned by Xxxxxxx on November 5, 2002, the date
on which CirTran closed an equity financing transaction with Cornell, that the
Company should have paid this fee on that date, and that Xxxxxxx was entitled to
receive the fee as of that date.
2. Warrants to Purchase Common Stock.
a. Issuance of Warrants. Not later than five (5)
business days following the execution of this agreement by all of the parties
hereto, CirTran shall deliver the following to Xxxxxxx:
i. A Warrant for Xxxxxx Xxxxxxx to purchase
5,250,000 shares of CirTran common stock at a strike price of five
cents per share that shall remain open for 5 years following the date
of issuance of the Warrant. This Warrant shall be in the form attached
hereto as Exhibit B.
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ii. A Warrant for Xxxxxxx X. Xxxxx to purchase
1,750,000 shares of CirTran common stock at a strike price of five
cents per share that shall remain open for 5 years following the date
of issuance of the Warrant. This Warrant shall be in the form attached
hereto as Exhibit C.
b. Piggy-Back Registration Rights. Not later than 6
months following the date of execution of this agreement by all of the parties
hereto, CirTran shall prepare and file with the U.S. Securities and Exchange
Commission ("SEC") a registration statement (the "Registration Statement") and
shall include in the Registration Statement the resale by the Holders (as that
term is defined in the Warrants attached hereto) of the shares of common stock
(the "Underlying Shares") issuable upon exercise of the Warrants. CirTran shall
use its best efforts to have the Registration Statement declared effective by
the SEC, and Xxxxxxx shall cooperate and assist CirTran by providing whatever
information may be necessary or requested by the SEC. CirTran does not represent
or warrant that the Registration Statement will be declared effective or that
the SEC will allow it to remain effective for any period of time. CirTran shall
send a copy of the Registration Statement to Xxxxxxx when it is filed with the
SEC.
c. Investment Representations and Warranties. Because
the issuance of the Warrants by the CirTran to Xxxxxxx constitutes a transaction
in securities, to further induce CirTran's issuance of the Warrants, Xxxxxxx
hereby represents and warrants to CirTran and its agents and attorneys as
follows:
i. Accredited Status. Xxxxxxx is an "Accredited
Investor" as that term is defined in Regulation D under the Securities
Act.
ii. Sole Party in Interest. Xxxxxxx is the sole
and true party in interest, and no person or entity other than Xxxxxxx
and Xxxxxxx X. Xxxxx have or will have upon the issuance of the
Warrants any beneficial ownership interest in the Warrants or any
portion of the Warrants, whether direct or indirect.
iii. Investment Purpose. Xxxxxxx represents that
he is acquiring the Warrants for his own account for investment
purposes and not on behalf of any other person or entity or for or with
a view to resale or distribution.
iv. Knowledge and Experience. Xxxxxxx has been
advised, to his satisfaction and understanding, with respect to the
advisability of an investment in CirTran. Xxxxxxx is experienced in
evaluating and making speculative investments, and has the capacity to
protect his interests in connection with the acquisition of the
Warrants and any share issued thereunder. Xxxxxxx has such knowledge
and experience in financial and business matters in general, and
investments in the manufacturing industry in particular, that Xxxxxxx
is capable of evaluating the merits and risks of Xxxxxxx'x investment
in CirTran. Xxxxxxx has been informed that an investment in CirTran is
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speculative and has concluded that Xxxxxxx'x proposed investment is
appropriate in light of his overall investment objectives and financial
situation.
v. Investment Advisors. Xxxxxxx represents that
no investment advisor or Xxxxxxx representative has been consulted or
retained in connection with Xxxxxxx'x decision to obtain the Warrants.
vi. Exclusive Reliance on this Agreement. In
making the decision to obtain the Warrants, Xxxxxxx has relied
exclusively upon information included in this Agreement, and
investigations made by Xxxxxxx, and not on any other representations,
promises or information, whether written or verbal, by any person.
vii. Accuracy of Representations and Information.
All representations made by Xxxxxxx in this Agreement and all documents
and instruments related to this Agreement, and all information provided
by Xxxxxxx to CirTran concerning Xxxxxxx and his respective financial
positions is correct and complete as of the date hereof. If there is
any material change in such information before the actual issuance of
the Warrants, Xxxxxxx immediately will provide such information to
CirTran. Xxxxxxx specifically acknowledges that CirTran will rely on
these representations contained in this Section 2.c. in connection with
CirTran's ability to issue the Warrants.
viii. No Representations. None of the following
have ever been represented, guaranteed, or warranted to Xxxxxxx or
Xxxxxxx X. Xxxxx by CirTran or any of its employees, agents,
representatives or affiliates, or any broker or any other person,
including Xxxxxxx, expressly or by implication:
(a) The approximate or exact length of time
that Xxxxxxx or Xxxxxxx X. Xxxxx will be
required to remain as owner of the Shares
and the Warrants;
(b) The percentage of profit or amount of or
type of consideration, profit or loss
(including tax write-offs or other tax
benefits) to be realized, if any, as a
result of an investment in the Shares and
the Warrants; or
(c) The past performance or experience on
the part of the Company or any affiliate or
their associates, agents or employees, or of
any other person as being indicative of
future results of an investment in the
Shares and the Warrants.
3. Release by Xxxxxxx. In exchange for this agreement, Xxxxxxx
and his agents, successors and assigns, hereby irrevocably and unconditionally
release and forever discharge CirTran, its successors, assigns, officers,
directors, owners, employees, insurers, agents, representatives, and attorneys,
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and all persons acting by, through, under or in concert with them, or any of
them, including Xxxxx Xxxxxxxx, from any and all actions, causes of action,
suits, claims, rights, damages, losses, costs and expenses (including attorneys'
fees and costs actually incurred) of any nature whatsoever, known or unknown,
suspected or unsuspected, fixed or contingent which he now has, owns or holds,
or claims to have, own or hold, or at any time heretofore had, owned or held, or
claimed to have, own or hold, or may hereafter have, own or hold, or claim to
have, own or hold, arising out of conduct or matters occurring prior to the date
of this agreement.
It is the intention of the parties that CirTran shall have no further
obligation to Xxxxxxx. CirTran is free to engage in financing arrangements of
its choosing with any party of its choosing without incurring any obligation to
pay a fee to Xxxxxxx or give him some other consideration. Xxxxxxx hereby
acknowledges that all obligations owed by CirTran pursuant to any contract he
has or may have had with CirTran, including but not limited to the Financial
Consulting Agreement dated September 20, 2001, and the Letter of Agreement dated
October 2, 2002, are by this agreement irrevocably and unconditionally
discharged and satisfied in full.
4. Release by CirTran. In exchange for this agreement, CirTran
and its officers, agents, successors and assigns, hereby irrevocably and
unconditionally release and forever discharge Xxxxxxx and his insurers, agents,
representatives, and attorneys, and all persons acting by, through, under or in
concert with them, or any of them, from any and all actions, causes of action,
suits, claims, rights, damages, losses, costs and expenses (including attorneys'
fees and costs actually incurred) of any nature whatsoever, known or unknown,
suspected or unsuspected, fixed or contingent which they now have, own or hold,
or claim to have, own or hold, or at any time heretofore had, owned or held, or
claimed to have, own or hold, or may hereafter have, own or hold, or claim to
have, own or hold, arising out of conduct or matters occurring prior to the date
of this agreement.
5. Dismissal of Action. Concurrent with the execution of this
agreement by all of the parties hereto, the parties will execute, through their
respective attorneys, and file with the United States District Court a Request
for Dismissal and proposed Order of Dismissal, in the form attached hereto as
Exhibit D, requesting that the court dismiss the Complaint and Supplemental
Complaint with prejudice with each party to bear its own attorneys' fees and
costs. By executing this Settlement Agreement, the parties each hereby authorize
and instruct their respective attorneys to execute and file the Request for
Dismissal and proposed Order of Dismissal attached hereto.
6. Notices and Delivery. Any notice to be given to any party
shall be served by U.S. Mail, certified, return receipt requested, and shall be
deemed complete on the date the notice is received by the recipient as indicated
on the return receipt. The deliveries required under paragraphs 1 and 2, above,
shall be done by Federal Express next business day delivery with a tracking
number. Deliveries and notice shall be given as follows, unless written notice
of change of address is given to all parties:
If to Xxxxxxx:
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Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxx X. Xxxxx PC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
If to CirTran:
CirTran Corporation
Attn: Xxxxx Xxxxxxxx
0000 Xxxxx 0000 Xxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Durham Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
7. Consideration. The parties hereto acknowledge and agree that
good and valuable consideration has been given for the covenants and agreements
set forth herein and that each party has been fully advised (to the extent that
they have deemed necessary) regarding this agreement and their respective claims
by competent legal counsel of their choosing.
8. No Admission of Liability. The parties agree that this
agreement is entered into in settlement of disputed claims, and execution of
this agreement shall not be deemed to be an admission of liability or an
admission against interest by any party hereto.
9. Non-assignment. The parties each warrant and represent that
there has been no assignment, sale, or transfer of any of the claims being
released hereby and that their execution of this agreement constitutes a full
and complete release and discharge of those claims. The parties each warrant and
represent that there has been no prior assignment of the assets being
transferred hereunder.
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10. Full and Independent Knowledge. Each party hereto represents
that it has been represented by an attorney in connection with the preparation
and review of this agreement, that its representative has specifically discussed
with its attorney the meaning and effect of this agreement and that its
representative has carefully read and understands the scope and effect of each
provision contained herein. Each party hereto further represents that it does
not rely and has not relied upon any representation or statement made by the
other party hereto or any of its representatives with regard to the subject
matter, basis or effect of this agreement and has voluntarily entered into this
agreement.
11. Successors. This agreement shall be binding upon and inure to
the benefit of the administrators, successors and assigns of each of the
parties.
12. Preparation of This Agreement and Construction of its Terms.
The parties agree that each of them have, through their attorneys, participated
in and contributed to the preparation of this agreement. The parties agree that
this agreement shall be regarded and deemed as having been prepared jointly by
the parties hereto. Any ambiguity or uncertainty existing herein shall not be
interpreted or construed against any party thereto by virtue of who may have
drafted such provision.
13. Amendment to This Agreement. This agreement may not be
altered, amended, modified or otherwise changed in any respect or particular
whatsoever except by a writing executed by an authorized representative of each
party hereto.
14. Further Assurances. Each of the parties, without further
consideration, agrees to execute and deliver such other documents and take such
other action as may be necessary to consummate more effectively the subject
matter hereof.
15. Authorization. Any person signing this agreement for or on
behalf of an entity other than a natural person does by said signature warrant
that he or she is duly authorized by said entity to undertake such action on its
behalf, and that such signature is the valid and binding act of that entity.
16. Attorneys' Fees. If any action is brought because of any
breach of or to enforce, interpret, rescind, or terminate any of the provisions
of this agreement, the party prevailing in such action shall be entitled to
recover from the other party reasonable attorneys' fees and court costs incurred
in connection with such action, the amount of which shall be fixed by the court
and made a part of any judgment rendered.
17. Entire Agreement. This agreement sets forth the entire
agreement between the parties and supersedes any and all prior contracts,
agreements or understandings between the parties pertaining to the subject
matter hereof.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
and Mutual Release as of the date first shown above.
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CirTran: CIRTRAN CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Xxxxx Xxxxxxxx, President
Xxxxxxx:
/s/ Xxxxxx Xxxxxxx
-----------------------------
Xxxxxx Xxxxxxx, an individual,
d/b/a Salamon Brothers
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EXHIBIT A
Rule 144(k) Representations
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To CirTran Corporation
Re: Removal of Restrictive Legend Pursuant to Rule 144(k)
Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Total Number of Shares: 4,000,000 Certificate Number ___________________
Gentlemen:
This letter is submitted to the Company in connection with my request
that the restrictive legend on the certificate(s) representing the above
identified securities (the "Securities") be removed pursuant to Rule 144
promulgated under the Securiteis Act of 1933 ("Rule 144"). In connection
herewith, the undersigned represents and warrants to the Company as follows:
1. The undersigned is not and has not during the preceding three months
of the date of this letter been an affiliate of the Company, within
the meaning of Rule 144(a)(1), (i.e. a person that directly or
indirectly, through one or more intermediaries, control or is
controlled by or is under common control with the Company.)
2. The Securities are "restricted securities" as defined in Rule
144(a)(3).
3. I have been the beneficial owner of the Securities for more than the
past two years. Neither I nor any "related persons" have had a short
position in, or any put or option to dispose of, any of the securities
of the Company or any securities convertible into such securities of
the same class at any time; and the full purchase price for the
Securities was paid more than two years ago.
4. I understand that Rule 144(k) prohibits sales made by a person who is
an affiliate at the time of sale or by a person who was an affiliate
of the Company during the 3 months preceding the sale. Thus, while the
Company may remove the restricted legend from the certificate(s)
representing my securities based upon the facts as they exist on the
date of this letter, any change in my status may require the Company
to reissue certificates to me with a restricted legend placed thereon.
5. I further agree to notify the Company promptly of any changes in the
facts set forth in this letter.
6. I have not agreed to act in concert with any other person for the
purpose of selling securities of the Company.
To the best of my knowledge and belief, all of the foregoing information is
accurate and complete as of the date hereof.
Sincerely,
________________________________________ Date ________________________
Xxxxxx Xxxxxxx
EXHIBIT B
EXHIBIT C
EXHIBIT D
DURHAM XXXXX & XXXXXXX
Xxxxx X. Xxxxxxxxx (4267)
Xxxxx X. Xxxxx (8736)
Xxxx X. Xxxxxxx (9224)
000 Xxxx Xxxxxxxx, Xxxxx 000
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
(000) 000-0000
Attorneys for Defendant
XXXX XXXXXXXX XXXXX XXX & XXXXXXXX
Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
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XXXXXX XXXXXXX d/b/a SALAMON BROTHERS, REQUEST FOR DISMISSAL
Plaintiff,
Case No. 2:03CV00787 TS
vs.
Xxxxxxxxx Xxx Xxxxxxx
CIRTRAN CORP.,
Defendant.
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IT IS HEREBY STIPULATED by and between plaintiff Xxxxxx Xxxxxxx d/b/a
Salamon Brothers and defendant CirTran Corporation that plaintiff's Complaint
and Supplemental Complaint in this action be dismissed with prejudice, pursuant
to Rule 41(a)(2), Federal Rules of Civil Procedure, each party to bear its own
attorneys' fees and costs.
Dated: February ___, 0000 XXXXXX XXXXX & XXXXXXX
--------------------------------
Xxxxx X. Xxxxx
Attorneys for defendant
Dated: February ___, 2006 XXXX XXXXXXXX XXXXX XXX & XXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxx
Attorneys for plaintiff
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DURHAM XXXXX & XXXXXXX
Xxxxx X. Xxxxxxxxx (4267)
Xxxxx X. Xxxxx (8736)
Xxxx X. Xxxxxxx (9224)
000 Xxxx Xxxxxxxx, Xxxxx 000
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
(000) 000-0000
Attorneys for Defendant
XXXX XXXXXXXX XXXXX XXX & XXXXXXXX
Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
---------------------------------------- ---------------------------------------
XXXXXX XXXXXXX d/b/a SALAMON BROTHERS, ORDER OF DISMISSAL
Plaintiff,
Case No. 2:03CV00787 TS
vs.
Xxxxxxxxx Xxx Xxxxxxx
CIRTRAN CORP.,
Defendant.
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BASED ON THE STIPULATION by and between plaintiff Xxxxxx Xxxxxxx d/b/a
Salamon Brothers and defendant CirTran Corporation, it is ordered that
plaintiff's Complaint and Supplemental Complaint in this action be, and hereby
are, dismissed with prejudice, pursuant to Rule 41(a)(2), Federal Rules of Civil
Procedure, each party to bear its own attorneys' fees and costs.
Dated: __________________
BY THE COURT:
-----------------------------------------
Judge Xxx Xxxxxxx
United States District Court, District of Utah
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