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EXHIBIT 10.6
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (Settlement Agreement) is entered into by and
among Cana Capital Corporation, a Florida corporation, (CCC) Big Bike of
Daytona, Inc., a Florida corporation, d/b/a Biker's Dream of Jacksonville, (BBD)
Big Bike of Jacksonville, Inc., a Florida corporation, d/b/a Biker's Dream of
Jacksonville, (BBJ) and Scott & Johns Enterprises, Inc., a Florida corporation,
d/b/a/ Big Biker of Tampa Bay, Inc., (BBTB), individually, their parents,
subsidiaries, affiliates, officers, directors, shareholders, insurers, sureties,
employees, agents, attorneys, general partners, limited partners, predecessors,
successors and assigns, and Bruce A. Scott, individually, his heirs, personal
representatives, administrators, executors, family, agents, insurers, sureties,
employees, attorneys, successors and assigns, (collectively Cana) and Biker's
Dream, Inc., a California corporation, (BD) and Ultra Acquisition Corporation, a
Nevada corporation d/b/a/ Ultra Kustom Cycles, (Ultra) their parents,
subsidiaries, affiliates, officers, directors, shareholders, insurers, sureties,
employees, agents, attorneys, general partners, limited partners, predecessors,
successors and assigns, (collectively Biker's Dream).
WHEREAS, CCC has an action pending against BD in the Circuit Court, Fourth
Judicial Circuit Court in and for Duval County, Florida; styled Cana Capital
Corporation, a Florida corporation v. Biker's Dream, Inc., a California
corporation, Case No. 99-1438-CA, Division CV-G; and
WHEREAS, BBD has an action pending against Ultra in the Circuit Court,
Seventh Judicial Circuit Court in and for Volusia County, Florida; styled Big
Bike of Daytona, Inc., a Florida corporation, d/b/a Biker's Dream of
Jacksonville v. Ultra
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Acquisition Corporation, a Nevada corporation, d/b/a Ultra Kustom Cycles, Case
No. 2000-31183 CICI, Division 32; and
WHEREAS, BBJ has an action pending against Ultra in the County Court,
Fourth Judicial Circuit Court in and for Duval County, Florida; styled Big Bike
of Jacksonville, Inc., a Florida corporation, d/b/a biker's Dream of
Jacksonville v. Ultra Acquisition Corporation, a Nevada corporation, d/b/a/
Ultra Kustom Cycles, Case No. 99-6607-CC, Division G; and
WHEREAS, BBTB has an action pending against Ultra in the Circuit Court,
Thirteenth Judicial Circuit Court in and for Hillsborough County, Florida;
styled Scott & Johns Enterprises, Inc., a Florida corporation, d/b/a Big Bike of
Tampa Bay, v. Ultra Acquisition Corporation, a Nevada corporation d/b/a/ Ultra
Kustom Cycles, Case No. 99-7614-CC, Division G; and
WHEREAS, Cana and Biker's Dream desire to resolve and settle any and all
issues, claims, disputes, and causes of action among them.
Accordingly, IT IS EHREBY AGREED AS FOLLOWS:
1. In exchange for the consideration given by Biker's Dream as set forth below,
in paragraph A through J, the sufficiency of which Cana acknowledges, Biker's
Dream agrees as follows:
A. Biker's Dream will ship 8 Fat Pounders Model 2000; 3 Ground
Pounders S/T Model 2000; and 3 Ground Pounders Model 2000 (the motorcycles) to
Cana described on Exhibit A attached on or before July 31, 2000. The delivery
shall be made at Cana's offices located at 9543 Sunbeam Center Drive,
Jacksonville, Florida 32257.
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B. The motorcycles' paint schemes will be selected by Robert Dick from
those in inventory at his sole discretion on or before July 21, 2000.
C. Biker's Dream will deliver a Manufacturer's Certificate of Origin
(MSO) contemporaneously with each motorcycle.
D. Cana will pay the freight charges for the delivery of the
motorcycles, at the time of delivery.
E. All the motorcycles will be honored by Ultra's Warranty program.
None may be sold in Daytona or Clearwater.
F. Biker's Dream will transfer ownership and provide Cana with a Bill
of Sale for the 1998 Ultra Wide Series (18ZWS21A8WR000710) (1998 Ultra) located
in Daytona Beach, Florida. Biker's Dream will execute all documents necessary to
transfer the 1998 Ultra title to Cana.
G. Biker's Dream will transfer ownership and provide Cana with a Bill
of Sale or invoices marked "paid" for all parts consigned by Biker's Dream to
BBD which are currently located in Daytona Beach in BBD's possession.
H. Biker's Dream will provide Cana with a Termination and Release
Agreement for each and every Dealer and/or Warranty Agreement between Cana and
Biker's Dream.
I. Biker's Dream will provide Cana with a General Release of Dick
Lindholm, MN Beach Properties, Inc.
J. Biker's Dream will provide Cana with a General Release of all
parties to this Settlement Agreement.
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2. In exchange for the consideration given by Biker's Dream as set forth in
paragraphs A through D below, the sufficiency of which Cana acknowledges, Cana
agrees as follows:
A. Upon complete performance of all the conditions and agreements of
this Settlement Agreement, Cana shall dismiss the actions described in this
Settlement Agreement with prejudice.
B. Cana will provide Biker's Dream the MSO's on all bikes financed
under Cana's Floor Plan.
C. Cana will provide Biker's Dream with a General Release of BD from
Dick Lindholm, MN Beach Properties, Inc.
D. Cana will provide Biker's Dream with a General Release of all
parties to this Settlement Agreement.
3. For purposes of this Agreement, an "affiliate" of any person or entity
means any person, entity or group (currently existing or hereafter created)
controlling, controlled by or under common control with, the specified person or
entity, and "control" of a person or entity (including with correlative meaning,
the terms "control by" and "under common control with") means the power to
direct or cause the direction of the management, policies or affairs of the
controlled persons, whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise.
4. THE PARTIES SPECIFICALLY, KNOWINGLY AND INTENTIONALLY WAIVE THEIR RIGHT
TO A JURY TRIAL IN ANY ACTION RELATING TO THIS SETTLEMENT AGREEMENT.
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5. The parties to this Settlement Agreement agree to cooperate fully and
execute any and all supplementary documents and to take all additional actions
which may be necessary or appropriate to give full force and effect to the terms
and intent of this Settlement Agreement.
6. The parties to the Settlement Agreement acknowledge that they have had
the advice of counsel with regard to the meaning and purpose of this Settlement
Agreement. Each party represents that it, she or he has read this Settlement
Agreement, understands its terms and enters into this Settlement Agreement
freely and without reservation.
7. The parties to this Settlement Agreement further represent and warrant
that each signatory to this Settlement Agreement is duly authorized to sign for
the purpose and in the capacity in which she, or he purports to sign.
8. This Settlement Agreement shall be construed as a whole according to its
fair meaning and not strictly for or against any of the parties.
9. The terms of this Settlement Agreement are contractual in nature and are
not merely recitals and may not be changed except in a writing signed by all
parties.
10. If any provision of this Settlement Agreement or the application
thereof to any circumstance shall, in any event, be invalid or unenforceable,
the remainder hereof, the application of such provision to circumstances other
than those to which it is held invalid or unenforceable, shall not be affected
thereby, and each provision hereof shall be valid and enforced to the fullest
extent permitted by governing law.
11. This Stipulation of Settlement may be executed in counterparts and
signatures transmitted by facsimile and shall be binding on the parties.
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12. If a court of competent jurisdiction finds that either party has
breached any of the covenants, warranties, or agreements contained in this
Stipulation of Settlement, that party shall pay the attorneys' fees and expenses
of the prevailing party for litigation or resolving that breach.
13. Each party shall bear its own costs and attorneys' fees in connection
with all matters arising out of or concerning the litigation described in this
Settlement Agreement.
Dated this day of July, 2000.
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CANA CAPITAL CORPORATION BIG BIKE OF DAYTONA, INC.
By: /s/ Bruce A. Scott By: /s/ Bruce A. Scott
-------------------------- ----------------------------
Bruce A. Scott, President Bruce A. Scott, President
BIG BIKE OF JACKSONVILLE, INC. SCOTT & JOHNS ENTERPRISES,
INC.
By: /s/ Bruce A. Scott By: /s/ Bruce A. Scott
-------------------------- ---------------------------
Bruce A. Scott, President Bruce A. Scott, President
/s/ Bruce A. Scott
-----------------------------------
Bruce A. Scott, Individually
BIKER'S DREAM, INC. ULTRA ACQUISITION
CORPORATION
By: /s/ Harold L. Collins By: /s/ Harold L. Collins
-------------------------- ---------------------------
Its: CEO Its: CEO
-------------------------- ---------------------------
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SETTLEMENT AGREEMENT (CONTINUED)
/s/ Myra Loughran /s/ Daniel C. Shaughnessy
------------------------------------ ------------------------------------
Myra Loughran Daniel C. Shaughnessy
333 First St. N., Suite 305 4640 Blanding Blvd.
Jacksonville Beach, FL 32250 Jacksonville, FL 32201
Telephone: (904) 249-8500 Telephone: (904) 777-8383
Facsimile: (904) 249-0841 Facsimile: (904) 777-1330
Florida Bar No. 866849 Florida Bar No. 323586
Attorney for Cana Capital Corporation Attorney for Biker's Dream, Inc.,
Big Bike of Daytona, Inc., Big Bike of and Ultra Acquisition Corporation
Jacksonville, Inc. and Scott & Johns
Enterprises, Inc.
/s/ Albert M. Guemmer
------------------------------------
Albert M. Guemmer
3002 W. Kennedy Blvd.
Tampa, FL 33609
Telephone: (813) 875-1973
Florida Bar No. 99549
Attorney for Ultra Acquisition
Corporation
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GENERAL RELEASE
Cana Capital Corporation, Big Bike of Daytona, Inc., Big Bike of
Jacksonville, Inc., Scott & Johns Acquisitions, Inc. and Bruce A. Scott,
individually, (the "first party"), for valuable and sufficient consideration and
the settlement and compromise of certain claims and other valuable
consideration, received from or on behalf of Biker's Dream, Inc. and Ultra
Acquisition Corporation (the "second party"), the receipt and sufficiency
whereof are hereby acknowledged.
(Wherever used herein the term "first party" and "second party" shall
include singular and plural heirs, legal representatives, the assigns of
individuals, subsidiaries and the successors and assigns of corporations,
wherever the contexts so admits or requires.)
HEREBY remises, releases, acquits, satisfies, and forever discharges the
second party, of and from any and all manner of obligation, sequela, action and
actions, cause and causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, which the first
party ever had, now has or which the first party and any personal
representative, successor, heir or assign of the first party hereinafter can,
shall or may have, whether known or unknown, against the second party, for, upon
or by reason of any matter, cause or thing whatsoever, from the beginning of the
world to the date of this General Release, including but not limited to any and
all claims which were or which could have been set forth in those certain suits
filed in the Circuit Court of the Fourth Judicial Circuit, Duval County,
Florida, Cana Capital Corporation v. Bikers' Dream, Inc., Case No. 99-1438-CA;
the Circuit Court, Seventh Judicial Circuit in and of Volusia County, Florida,
Case No. 2000-31183 CICI, Big Bike of Daytona, Inc. v. Ultra Acquisition
Corporation; in the County Court, Fourth Judicial Circuit in and for Duval
County, Florida, Case No. 99-6607-CC, Big Bike of Jacksonville, Inc. v. Ultra
Acquisition Corporation; and in the Circuit Court, Thirteenth Judicial Circuit
in and for Hillsborough County, Florida, Scott & Johns Enterprises, Inc., v.
Ultra Acquisition Corporation.
Signed sealed and delivered Cana Capital Corporation in the presence of:
By: /s/ Bruce A. Scott
---------------------------- ------------------------------------
Bruce A. Scott, President
Big Bike of Daytona, Inc.
/s/ Bruce A. Scott By: /s/ Bruce A. Scott
----------------------------- -----------------------------------
Bruce A. Scott, Individually Bruce A. Scott, President
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Big Bike of Jacksonville, Inc.
By: /s/ Bruce A. Scott
-----------------------------------
Bruce A. Scott, President
Scott & Johns Acquisitions, Inc.
By: /s/ Bruce A. Scott
-----------------------------------
Bruce A. Scott, President
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GENERAL RELEASE
Dick Lindholm and MN Beach Properties, Inc. (the "first party"), for
valuable and sufficient consideration and the settlement and compromise of
certain claims and other valuable consideration, received from or on behalf of
Biker's Dream, Inc. and Ultra Acquisition Corporation (the "second party"), the
receipt and sufficiency whereof are hereby acknowledged.
(Wherever used herein the term "first party" and "second party" shall
include singular and plural heirs, legal representatives, the assign of
individuals, subsidiaries and the successors and assigns of corporations,
wherever the contexts so admits or requires.)
HEREBY remises, releases, acquits, satisfies, and forever discharges the
second party, of and from any and all manner of obligation, sequela, action and
actions, cause and causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, which the first
party ever had, now has or which the first party and any personal
representative, successor, heir or assign of the first party hereinafter can,
shall or may have, known or unknown, against the second party, for, upon or be
reason of any matter, cause or thing whatsoever, from the beginning of the world
to the date of this General Release.
Signed sealed and delivered MN Beach Properties, Inc.
in the presence of:
By: /s/ Dick Lindholm
--------------------------- ------------------------------------
Dick Lindholm
Its: President
------------------------------------
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Dick Lindholm, President
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this 21 day of July
2000 by Dick Lindholm, individually and on behalf of MN Beach Properties, Inc.
He is personally known to me or has provided Drivers License as identification.
-------------------------------------------
Notary Public, State of Florida
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