UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 18, 1999
eVision USA.Com, Inc.
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(Exact name of registrant as specified in its charter)
Colorado 0-17637 45-0411501
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(State or other jurisdiction (Commission File No.) (I.R.S. Employer
of incorporation) Identification No.)
1700 Lincoln Street, Suite 3200, Denver, CO 80203
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(Address of principal executive offices) (Zip Code)
(303) 860-1700
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(Registrant's telephone number, including area code)
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Item 5. Other Events
Secutron Corp. ("Secutron"), which is indirectly a majority owned subsidiary of
eVision USA.Com, Inc. ("the Company"), and the other named defendants have
entered into an agreement to settle the lawsuit by Anthony R. Kay and ARK
Consulting Services, Inc. (jointly hereinafter referred to as "Mr. Kay") that
was filed on July 30, 1998, in the District Court for the City and County of
Denver, Colorado, and that is described in Item 3 of the Company's Annual Report
on Form 10-K for the fiscal year ended September 30, 1998. The estimated net
effect to the Company of the settlement on the Company's reported operating
results for the period ended June 30, 1999, after giving consideration to income
taxes, accrued expenses, and insurance contributions, is less than $200,000.
Pursuant to the terms of the settlement, Secutron has paid Mr. Kay $400,000 in
cash and the Company agreed to issue Mr. Kay 550,000 shares of the Company's
Common Stock. In addition, the Company has agreed to register Mr. Kay's shares
of the Company's Common Stock for resale. The Company and the other defendants
have also agreed that if Mr. Kay does not receive a net amount of at least
$325,000 from the sale of the Common Stock, Secutron and the other defendants
will pay Mr. Kay the difference between what Mr. Kay does receive and $325,000
or provide Mr. Kay with additional shares of the Company's Common Stock to make
up the deficiency based upon the then current trading prices of the Common
Stock. If Mr. Kay does not realize $325,000 from the sale of all of the Common
Stock by April 1, 2000, Mr. Kay is entitled to receive the deficiency in cash.
Any sales by Mr. Kay of the Company's Common Stock must be made in a
commercially reasonable manner. As part of the agreement, all of the common
stock of Secutron held by Anthony R. Kay and his family, which approximates 5%
of the outstanding common stock of Secutron, were returned to Secutron and the
other defendants or their assigns. In addition, ARK Consulting Services, Inc.
agreed to cancel the contract that required payments to ARK Consulting Services,
Inc. of $10,000 per month through the year 2010.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
Exhibit 10.1 -- Settlement Agreement, Purchase and Sales Agreement, and
Mutual General Release
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September 24, 1999 eVISION USA.COM, INC.
By:/s/ Robert H. Trapp
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Robert H. Trapp,
Managing Director
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SETTLEMENT AGREEMENT, PURCHASE AND SALES AGREEMENT,
AND MUTUAL GENERAL RELEASE
This Settlement Agreement, Purchase And Sales Agreement And Mutual General
Release ("Settlement Agreement") is entered into between Anthony R. Kay ("Mr.
Kay") and ARK Consulting Services, a Colorado corporation ("ARK") (hereinafter,
Mr. Kay and ARK sometimes are jointly referred to as "Mr. Kay"), on the one
hand, and Secutron Corp., a Colorado corporation ("Secutron"), Midrange
Solutions Corp., a Colorado corporation ("Midrange"), Fronteer Financial
Holdings, Ltd., n/k/a eVision, a Colorado corporation ("Fronteer" or "eVision"),
Heng Fung Capital Private, Ltd. and Heng Fung Finance Company, Ltd.,
wholly-owned subsidiaries of Heng Fung Holding Company, Ltd., a Hong Kong
corporation ("Heng Fung"), Corporate Net Solutions, Inc., a Delaware
corporation, Fai H. Chan, Robert H. Trapp, Kwok Jen Fong, Gary Cook, Robert
Long, and Bernie Dylla, on the other hand (hereinafter, all of these parties are
sometimes collectively referred to as "Secutron, et al."). At times hereinafter
Mr. Kay and Secutron, et al. are referred to collectively as the "Parties". This
Settlement Agreement is effective upon execution by all of the Parties and is
not effective, and is null and void and of no validity whatsoever, unless
executed, in counterpart or otherwise, by all of the Parties prior to 5:00 p.m.
Mountain Daylight Time, Saturday, September 18, 1999.
RECITALS
1. On or about January 19, 1996, Mr. Kay and ARK, on the one hand, and
Secutron and Midrange, on the other hand, executed a Settlement Agreement And
Release (the "1996 Agreement").
2. The 1996 Agreement provided, inter alia, for comprehensive releases from
and against all claims which Mr. Kay and ARK had against Secutron and Midrange,
and vice versa, arising from facts prior to January 19, 1996, for Secutron to
make payments of $10,000 a month to Mr. Kay for the succeeding fifteen (15)
years, and for other covenants and agreements between the parties.
3. Pursuant to the 1996 Agreement, Mr. Kay sold most of his Secutron Corp.
stockholdings to Secutron. However, Mr. Kay personally retained 7,500,000 shares
of Secutron Corp.'s common stock. Members of Mr. Kay's family retained an
additional 1,633,332 shares of Secutron common stock. The Secutron stock held by
Mr. Kay and by members of Mr. Kay's family is hereinafter referred to as "Mr.
Kay's Secutron stock".(1)
4. In and about December, 1997 and February, 1998 Heng Fung and Fai Chan
entered into transactions pursuant to which they purchased a substantial amount
of the common stock of Fronteer. At the time Fronteer owned a substantial amount
of the outstanding common stock of Secutron Corp. Fronteer, through its
ownership of Q6 Technologies, Inc., continues to own a substantial amount of
Secutron stock.
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(1) The stock is held as follows: (a) Certificate No. 50, 653,332 shares,
held in the name of Carol D. Wilson; (b) Certificate No. 51, 490,000 shares,
held in the name of Sholem Kay; (c) Certificate No. 52, 490,000 shares, held in
the name of Minna Kay; and (d) Certificate No. 111, 7,500,000 shares, held in
the name of Anthony R. Kay.
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5. Several months after Heng Fung's acquisition of Fronteer stock, the
Parties became involved in a dispute concerning the 1996 Agreement and matters
related thereto.
6. In connection with this dispute, on or about July 30, 1998 Secutron and
Midrange filed a Complaint in Denver District Court against Mr. Kay and ARK. In
response, Mr. Kay and ARK filed an answer. Mr. Kay and ARK also filed counter
claims naming Secutron, Midrange, Fronteer, Heng Fung, Corporate Net Solutions,
Inc., and Messrs. Chan, Trapp, Fong, Cook, Long, and Dylla as
defendants-on-counterclaim. This lawsuit is hereinafter referred to as "Civil
Action No. 98-CV-6176".
7. In their Complaint instituting Civil Action No. 98-CV-6176, Midrange and
Secutron charged Mr. Kay and ARK with tortious interference with prospective
business advantage. In their counterclaim Mr. Kay and ARK charged Secutron, et
al. with breach of contract, tortious interference with contract, abuse of
process, and breach of the implied covenant of good faith and fair dealing. In
Mr. Kay's and ARK's counterclaims Mr. Kay sought an award of damages. Mr. Kay's
claimed damages include damages for mental distress, anguish, and stress, which
Mr. Kay claims has been responsible for a recent hospitalization and treatment
in an intensive care unit.
8. Civil Action No. 98-CV-6176 remains pending before the Denver District
Court and is scheduled for a trial to commence on Monday, September 20, 1999.
9. Mr. Kay continues to retain his Secutron stockholdings. Mr. Kay asserted
claims in his Counterclaims which arose from his status as a Secutron
stockholder.
10. The Parties have agreed that it is in their best interest, without
conceding the accuracy or merit of any of the claims, counterclaims, defenses or
assertions made against any of them by the others, to fully compromise and
settle their disputes and to forever, with the limited exceptions specified
below, resolve their differences and put their differences behind them.
11. For these reasons, and in consideration of the mutual undertakings,
releases and covenants described herein, and solely for purposes of compromise
and settlement, without any of the Parties admitting or agreeing to any of the
claims, denials, or assertions made by the others, the Parties agree as follows.
COVENANTS
1. All of the Recitals above are incorporated herein and made part of these
Covenants. These Recitals are agreed to only for purposes of this Settlement
Agreement and for purposes of actions involving the enforcement of this
Settlement Agreement, or for purposes of actions charging breach.
2. Secutron, et al., in full and complete satisfaction of Mr. Kay's claims,
in payment for Mr. Kay's Secutron stockholdings, and in compensation for Mr.
Kay's claimed mental distress and anguish, and related physical maladies, agree
to pay Mr. Kay the following: (a) $400,000 in cash; and (b) 550,000
freely-trading shares of the common stock of eVision.
3. Secutron, et al. shall pay Mr. Kay the $400,000 in cash by delivery of a
certified check or cashier's check in that amount made payable jointly to Mr.
Anthony Kay and Jay S. Horowitz, Esq., and delivered to Mr. Kay's counsel, Jay
Horowitz, Esq., at Mr. Horowitz's business address, no later than 5:00 p.m.
Mountain Daylight Time Friday, September 17, 1999. The failure of Secutron, et
al. to deliver the $400,000 in cash by the designated time shall render this
Agreement null and void and of no validity whatsoever.
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4. Secutron, et al. have represented, and hereby do represent, to Mr. Kay
that they currently are finalizing a Registration Statement with the Securities
and Exchange Commission ("SEC"), which Registration Statement has generally been
re viewed by the SEC and which has been given Filing No. 333-81-565. The
Registration Statement is not yet effective. Secutron, et al. have represented,
and hereby do represent, that they believe that the Registration Statement will
be effective no later than Monday, January 3, 2000 and that, to be effective,
the Registration Statement must also be approved by the NASD. Secutron, et al.
will furnish Mr. Kay with an opinion letter from Smith & McCullough that the
contemplated Registration Statement needs NASD approval. Further, Secutron, et
al. represents that this referenced Registration Statement, Filing No.
333-81-565, will be the next filed and effective registration statement for
eVision or its affiliates. As stated above, Secutron, et al. agree to include in
their payment to Mr. Kay 550,000 shares of the freely trading stock of eVision
which will be among the common stock to be registered in accordance with the
referenced Registration Statement.
5. Secutron, et al. represent that the current market value of the
agreed-to freely trading common stock to be paid to Kay is no less than
$325,000. Secutron, et al. acknowledge, however, that the referenced
Registration Statement may not become effective. The referenced Registration
Statement may become effective but may become effective later than December 1,
1999. Alternatively, the Registration Statement may become effective on or
before December 1, 1999. As a result of the timing of the Registration
Statement, fluctuations in the market value of eVision stock, or any one of a
number of other factors, Mr. Kay may be unable by on or before the close of the
trading day of January 31, 2000 to sell the eVision stock at prices which will
net him the represented value of $325,000.
6. In the event that Mr. Kay is unable to receive, by sale of the eVision
stock paid to him (which sale shall be managed by Mr. Kay in a commercially
reasonable manner), to obtain the represented value of $325,000, Secutron, et
al. agree that Mr. Kay will be entitled to the entry of judgment, jointly and
severally, against each and every one of the parties referenced herein as
Secutron, et al., who are the Parties named as plaintiffs and
defendants-on-counterclaim in Civil Action No. 98-CV-6176, in an amount
equivalent to the difference between the proceeds of sale and $325,000 ("the
deficiency amount"). Secutron et al. agree and understand that, in the event Mr.
Kay is able, through his sale of eVision stock, to obtain net proceeds in excess
of the $325,000 value he will be entitled to retain that excess value. Mr. Kay
has represented that it is his intent, upon receipt of the 550,000 shares of
eVision stock, to sell that stock in as efficient and reasonable a fashion as
possible, bearing in mind the trading activity of the stock, including the size
of the float and other factors which may impact the sales price which can
reasonably be received.
7. Mr. Kay may re-institute Civil Action No. 98-CV-6176 and move for the
entry of judgment in the deficiency amount at any time on or after February 7,
2000, if (a) Mr. Kay has not been able to generate by his sale of eVision stock
the $325,000 by January 31, 2000, and (b), Mr. Kay has given Secutron, et al.
seven business days written notice of the amount of net proceeds (i.e., proceeds
after brokerage commission but not after taxes) thus far received by him and the
amount of the deficiency claimed by Mr. Kay, and Secutron, et al. have not
tendered to Mr. Kay's counsel, Mr. Horowitz, (i) a cashier's check or certified
check for the deficiency amount, i.e., the difference between the net proceeds
thus far received by Mr. Kay from the sale of eVision stock and $325,000, or
(ii) an additional amount of eVision free-trading stock sufficient, based upon
then current trading prices, to eliminate the deficiency amount when sold in a
commercially reasonable manner.
8. If Secutron et al. elect to provide Mr. Kay with additional free-trading
eVision stock to attempt to cure the deficiency amount, as described in
paragraph 7 above, and that stock proves insufficient, upon commercially
reasonable sale by Mr. Kay, to eliminate the deficiency by April 1, 2000, upon
seven business days written notice from Mr. Kay to Secutron et al. of the net
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proceeds (i.e., after brokerage commission but not after taxes) thus far
received, and the amount of the remaining deficiency claimed by Mr. Kay,
Secutron, et al. will tender to Mr. Kay's counsel, Mr. Horowitz, a cashier's
check or certified check for the remaining difference between the total net
proceeds thus far received by Mr. Kay from the sale of eVision stock and
$325,000. If Secutron et al. fails to timely do so, Mr. Kay may re-institute
Civil Action No. 98-CV-6176 and move for entry of judgment against Secutron, et
al. as described above.
9. If Mr. Kay is able to sell sufficient eVision stock to yield a net
amount of $325,000 (i.e., after commissions but not after taxes), or otherwise
receives $325,000 through a combination of sales of stock and cash, by April 1,
2000, Mr. Kay will prepare and the parties will execute an Amended Stipulation
For Dismissal Of This Action, With Prejudice, to be filed by Mr. Kay on
September 19, 2000.
10. In the event Secutron, et al. are unable to obtain SEC approval to
issue a Registration Statement effective on or before December 31, 1999, Mr. Kay
may reinstate Civil Action No. 98-CV-6176 on or after January 8, 2000 and move
for entry of judgment as described above, unless Secutron, et al. pay Mr. Kay
$325,000 in cash on or before January 8, 2000.
11. Mr. Kay agrees that, contemporaneously with his receipt of the $400,000
referenced above, he will deliver to Secutron, et al., such documents as may
reasonably be required by Secutron, et al.'s counsel to effectuate the sale and
conveyance of all of Mr. Kay's Secutron stockholdings to Secutron, et al.,
and/or to the person or entity designated by Secutron, et al. to be the
purchaser of such stock. Mr. Kay warrants and represents that Mr. Kay's Secutron
stockholdings are free and clear of any encumbrance or lien, or claim by any
person not a member of Mr. Kay's immediate family. Mr. Kay further represents
that he has the authority to sell all of Mr. Kay's Secutron stockholdings as
well as Secutron stock held by his immediate family and indemnifies and holds
Secutron, et al. harmless from all claims that Mr. Kay does not have authority
to effectuate this sale.
12. Secutron, et al. agree that, should any of the individuals or companies
included in the Secutron, et al. group become a debtor in a bankruptcy
proceeding within one year of the effective date of this Settlement Agreement,
this Settlement Agreement as written will be binding in full upon Secutron, et
al., including as debtor-in-possession and upon any trustee in bankruptcy.
Secutron, et al. further agree to affirm this Settlement Agreement in full as
written in any bankruptcy proceeding. Should this Settlement Agreement be
challenged as voidable or void in such proceedings, then, in such event and at
Mr. Kay's sole election, Secutron, et al. agree that they will consent to the
Settlement Agreement being rescinded and deemed null and void, the transactions
envisioned by this Agreement being reversed, and the Parties resuming the status
quo before the execution of this Settlement Agreement, e.g., reinstating Civil
Action No. 98-CV-6176, and Mr. Kay refunding to Secutron et al. all
consideration received except for the $75,000 retention referenced in paragraph
19 below. The Parties' agreement to reinstate Civil Action No. 98-CV-6176,
rather than to proceed in an adversary proceeding, is based in part upon the
complexity of this litigation, and the fact that the case has been before Judge
Morris Hoffman, Courtroom 9, Denver District Court for the past year, and that
Judge Hoffman has managed the case and made important decisions of law, and is
in the best position to try the case should it be re-instituted.
13. With the exception of any claim of whatever type filed for purposes of
enforcing or implementing this Settlement Agreement, or claiming a breach of
this Settlement Agreement, and with the further exception of Mr. Kay having
elected to rescind the transactions effected by this Settlement Agreement as
described in paragraph 12 above, Mr. Kay hereby releases and discharges
Secutron, et al. and their heirs, executors, administrators, successors,
assigns, family members, consultants, representatives, employees, partners,
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affiliates, agents, insurers, and attorneys, including, but not limited to
Jeffrey M. Busch, Esquire, and Tom Birge, Esquire, and their officers,
directors, stockholders, parent corporations, affiliated corporations, and
subsidiaries from and against any and all claims, counterclaims, actions, causes
of action, liabilities, demands, rights, damages, costs, expenses, compensation,
controversies of every kind and description whatsoever, whether direct or
indirect, whether in law or in equity, which Mr. Kay now has or which Mr. Kay
may hereinafter acquire which claims were raised or could have been raised in
Civil Action No. 98-CV-6176, or which claims in any way arise out of or in any
way relate to Mr. Kay's dealings with Secutron, et al. in the past, including,
but not limited to, the Parties' dealings with respect to any of the matters
referred to in the Recitals, which claims may have existed at any time up to and
including the effective date of this Settlement Agreement, or which claims,
based on such pre-existing facts, may arise in the future.
14. With the exception of any claim of whatever type filed for purposes of
enforcing or implementing this Settlement Agreement, or claiming a breach of
this Settlement Agreement, and with the further exception of Mr. Kay having
elected to rescind the transactions effected by this Settlement Agreement as
described in paragraph 12 above, Secutron, et al. hereby release and discharge
Mr. Kay and his and its heirs, executors, administrators, successors, assigns,
family members, consultants, representatives, employees, partners, affiliates,
agents, insurers, and attorneys, and his and its officers, directors,
stockholders, parent corporations, affiliated corporations, and subsidiaries,
from and against any and all claims, counterclaims, actions, causes of action,
liabilities, demands, rights, damages, costs, expenses, compensation,
controversies of every kind and description whatsoever, whether direct or
indirect, whether in law or in equity, which Secutron, et al. now have, or which
Secutron, et al. may hereinafter acquire, which claims were raised, or could
have been raised, in Civil Action No. 98-CV-6176, or which claims in any way
arise out of or in any way relate to Secutron, et al.'s dealings with Mr. Kay in
the past, including, but not limited to, the Parties' dealings with respect to
any of the matters referred to in the Recitals, which claims may have existed at
any time up to and including the effective date of this Settlement Agreement, or
which claims, based on such pre-existing facts, may arise in the future.
15. The Release made by Mr. Kay above, and all other covenants and
provisions in this Settlement Agreement, are binding upon, and enforceable by,
not only Mr. Kay but also Mr. Kay's heirs, assigns, family members,
representatives, employees, agents, and any other persons purporting to
represent or to stand in the shoes of Mr. Kay, and upon Mr. Kay's officers,
directors, stockholders, affiliated corporations, parent corporations, or
subsidiaries.
16. The Release made by Secutron, et al. above, and all other provisions
and covenants in this Settlement Agreement, are binding upon, and enforceable
by, each of the separately identified parties included within the Secutron, et
al. group, including Secutron Corp., Midrange, Fronteer, Heng Fung Capital
Private, Ltd., Heng Fung Finance Company, Ltd., Heng Fung Holdings Company,
Ltd., Corporate Net Solutions, Inc., Fai Chan, Robert Trapp, Kwok Jen Fong, Gary
Cook, Robert Long, and Bernie Dylla, and the heirs, assigns, representatives,
attorneys, including Jeffrey M. Busch, Esquire and Tom Birge, Esquire, family
members, employees, and representatives and persons purporting to represent each
of these individuals and entities, and the entities' stockholders, officers,
directors, sister and brother corporations, affiliated corporations, parents,
successors, and all agents and representatives thereof.
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17. Each of the Parties hereto acknowledges and expressly intends that the
mutual releases set forth in this Settlement Agreement are full and final
releases. The Parties also acknowledge and intend that these releases apply to
all claims, damages, or causes of action of whatever nature between or among the
Parties, whether or not such matters are known now or become known after the
execution of this Settlement Agreement. The Parties also acknowledge that they
understand that they may have substantial or meritorious claims or causes of
action against one another that have not yet accrued or become manifest. The
Parties acknowledge that they may have claims which may be presently unknown, or
which have not yet been identified, but which the Parties nonetheless intend to
and hereby do deliberately release. It is the express intent of the Parties that
these releases constitute a waiver by them of any statute, law or doctrine which
limits or has the effect of limiting a release only to claims which the releasor
knows or suspects exist in his favor at the time of the execution of the release
and which the releasor knows would materially affect the settlement with the
releasee. No such statute, law or doctrine shall be applicable in this case or
to this Settlement Agreement.
18. The Parties warrant to one another that no promises or inducements have
been made or offered to one another except as expressly set forth herein. The
Parties further warrant that this Settlement Agreement is executed without
reliance upon any oral statements or representations by any other Party
concerning the nature or extent of damages, their legal liability for such
damages, or their defenses to such claims. Each Party has had a full
opportunity, both directly and through counsel, to investigate all claims which
that Party had, has, or may have against any other Party. All Parties have had a
full opportunity to consult with their respective counsel concerning the terms
and conditions of this Settlement Agreement and warrant and represent to one an
other that they have, personally or through their attorneys, fully investigated
to their satisfaction all facts surrounding the controversies and disputes which
are the subject of this Settlement Agreement. The Parties are fully advised and
satisfied with the terms and the effect of this Settlement Agreement as a
settlement and release of all claims which they may have against the other
Parties.
19. As part of this Settlement Agreement, Secutron, et al., on the one
hand, and Mr. Kay, on the other hand, agree that, as soon as can be reasonably
accommodated during the week of September 20, 1999, the Parties jointly will
file a Joint Motion And Stipulation For Dismissal Without Prejudice of Civil
Action No. 98-CV-6176. This Joint Motion And Stipulation will call for the
District Court to dismiss without prejudice Civil Action No. 98-CV-6176.
Secutron, et al. expressly acknowledge and understand that Mr. Kay reserves the
right to re-file and reinstate his claims in Civil Action No. 98-CV-6176 only
if:
(a) after Mr, Kay sells his eVision free trading stock in a
commercially reasonable manner within the periods of time referenced above,
he does not receive the value of $325,000, from the sale of the stock and
Secutron, et al. do not make payments as they are permitted to do under
paragraphs 7 and 8 of this Settlement Agreement, and/or
(b) there is instituted, within one year of the effective date of this
Settlement Agreement, a bankruptcy proceeding in which a challenge to the
validity and enforceability of this Settlement Agreement is filed.
In the former situation (a), Mr. Kay may only re-file and re-institute
Civil Action No. 98-CV-6176 for the sole and limited purpose of obtaining a
judgment as provided in paragraphs 6, 7 and 8 above, in the amount of the
deficiency referenced in paragraphs 6, 7 and 8 above. Secutron will be entitled
to notice of the application for a judgment. Secutron's, et al.'s defenses in
said action will be limited to (a) whether Mr. Kay's sales were commercially
reasonable (bearing in mind as well that Mr. Kay has represented that he does
intend and will attempt to sell eVision stock), and (b) whether the amounts
provided by Mr. Kay in his notices described in paragraphs 7 and 8 above are
accurate.
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In the latter situation (b), Mr. Kay will have the power to re-file this
lawsuit, as one aspect of his rescission of this Settlement Agreement, the other
aspects of which will include the Parties returning to one another the
respective consideration exchanged pursuant to this Settlement Agreement and
otherwise assuming the status quo as it now exists. The single exception to this
complete reinstatement of the Parties' current situation is that Mr. Kay will be
permitted to retain $75,000, from all the cash and stock consideration received
by him under this Settlement Agreement. The $75,000 retention will be applied
against any damages ever recovered by Mr. Kay in the reinstated lawsuit. In the
event that Mr. Kay does not recover damages, Mr. Kay nonetheless will be able to
retain this $75,000. After the expiration of one year from the date of this
Settlement Agreement, Mr. Kay shall be forever barred from re-instituting Civil
Action No. 98-CV-6176.
20. All notices required by this Settlement Agreement are to be sent, via
certified mail, to the following addresses, unless otherwise designated by the
respective party in a writing which itself is sent by certified mail:
To Mr. Kay and ARK:
Mr. Anthony R. Kay
565 South Harrison Lane
Denver, Colorado 80209
Jay S. Horowitz, Esquire
Krendl, Horowitz & Krendl
5350 Republic Plaza
370 Seventeenth Street
Denver, Colorado 80202
To Secutron, et al.:
Mr. Gary Cook
eVision USA.com, Inc.
1700 Lincoln St., Suite 3200
Denver, Colorado 80203
Thomas D. Birge, Esquire
Birge & Minckley, P.C.
1700 Broadway, Suite 1501
Denver, Colorado 80290
Notice will be effective upon mailing.
21. This Settlement Agreement constitutes the entire agreement between the
Parties. This Settlement Agreement supersedes any and all prior settlement
agreements, oral or written, between or among the Parties, including, but not
limited to, the 1996 Agreement. This Settlement Agreement is forever binding,
and no revision, rescission, modification or release from its terms will be made
for any mistakes, mutual or unilateral, of fact or of law, said risk being
assumed by each Party.
22. No modification of this Settlement Agreement, or any of its provisions,
and no waiver of the terms and conditions of this Settlement Agreement, shall be
binding on any Party unless signed by the Party to be bound by such modification
or waiver.
23. The terms of this Settlement Agreement are to be maintained in
confidence. The Parties agree that the terms of this Settlement Agreement shall
not be disclosed by them to anyone except their respective attorneys,
accountants, immediate family members, Board members, general partners, limited
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partners, or employees. It is understood that some of the Parties included
within Secutron, et al. are public companies and that their status as such may
require public disclosure of the Settlement Agreement or of its terms.
24. The Parties agree that, upon the conclusion of any proceeding that
concerns a Party's efforts to enforce this Settlement Agreement, or a Party's
claim that another party has breached this Settlement Agreement, the Party who
prevails in such proceeding will be entitled to an award of reasonable attorneys
fees and costs incurred by the prevailing Party in connection with the
proceeding.
25. The Parties agree to execute any and all additional documents necessary
and appropriate to carry out the purpose and intent of this Settlement
Agreement.
26. This Settlement Agreement is to be construed in accordance with the
laws of the State of Colorado. As used in this Settlement Agreement, the
singular includes the plural, masculine includes neuter and vice versa, and,
when the context so requires, "and" means "and/or".
27. Secutron, et al. represent and warrant to Mr. Kay that each of the
persons and each of the entities within the Secutron, et al. group executing and
entering into this Settlement Agreement, or counsel for Secutron, et al., has
the full right, power and authority to enter into this Settlement Agreement. Mr.
Kay represents and warrants that he has the full right, power and authority to
enter into this Settlement Agreement both on his own behalf and on behalf of
ARK.
28. This Settlement Agreement may be signed in counterparts all of which,
when taken together, will constitute one agreement. Execution by facsimile (with
an original signature being substituted within a reasonable time thereafter) is
acceptable and enforceable and Secutron, et al. agree that, although counsel may
sign this Settlement Agreement on their behalf initially, original counterpart
pages signed by each party itself will be delivered to Mr. Kay's counsel no
later than October 5, 1999.
29. Secutron, et al. indemnify and hold Mr. Kay harmless from any and all
claims of whatever type which may arise, or be asserted, at any time after the
effective date of this Settlement Agreement, based on the operations of Secutron
and Midrange. This indemnification and hold harmless agreement includes, but is
not limited to, any claims respecting Midrange's dealings with JD Edwards or the
"Y2K" problem.
/s/ Anthony R. Kay
- --------------------------------
Anthony R. Kay
ARK Consulting Services
By: /s/ Anthony R. Kay
-----------------------------
Its: President
-----------------------------
Secutron Corp.
By: /s/ Gary L. Cook
-----------------------------
Its: Chairman
-----------------------------
-8-
<PAGE>
Midrange Solutions Corp.
By: /s/ Bernie Dylla
-----------------------------
Its: President
-----------------------------
Fronteer Financial Holdings, Ltd., n/k/a
eVision
By: /s/ Robert H. Trapp
-----------------------------
Its: Director
-----------------------------
Heng Fung Capital Private, Ltd.
By: /s/ Thomas D. Birge
-----------------------------
Its: Attorney, Pursuant to Paragraph 28
-----------------------------
Heng Fung Finance Company, Ltd.
By: /s/ Thomas D. Birge
-----------------------------
Its: Attorney, Pursuant to Paragraph 28
-----------------------------
Heng Fung Holding Company, Ltd.
By: /s/ Thomas D. Birge
-----------------------------
Its: Attorney, Pursuant to Paragraph 28
-----------------------------
Corporate Net Solutions, Inc.
By: /s/ Robert H. Trapp
-----------------------------
Its: Director
-----------------------------
Fai H. Chan
/s/ by his attorney, Thomas D. Birge, Pursuant to Paragraph 28
- --------------------------------
Robert H. Trapp
/s/ Robert H. Trapp
- --------------------------------
Kwok Jen Fong
/s/ by his attorney, Thomas D. Birge, Pursuant to Paragraph 28
- --------------------------------
Gary Cook
/s/ Gary Cook
- --------------------------------
Robert Long
/s/ Robert Long
- --------------------------------
Bernie Dylla
/s/ Bernie Dylla
- --------------------------------
-9-
