-------------------- BEGINNING OF PAGE #1 ------------------- U. S. SECURITIES AND EXCHANGE COMMISSION Securities Exchange Act of 1934 Release No. 36641 / December 27, 1995 Accounting and Auditing Enforcement Release No. 742 / December 27, 1995 IN THE MATTER OF DAVID SIMS AND LOUIS KURTZ The Commission has ordered the institution of a public administrative proceeding pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") against David Sims ("Sims") and Louis Kurtz ("Kurtz"). The Order alleges that Sims and Kurtz, respectively as President and Chief Financial Officer of Everlast Filtration Corp. ("Everlast"), violated, or caused to be violated, the registration provisions, Section 12(g), reporting provisions, Section 13(a), record-keeping provisions, Section 13(b)(2)(A) and the internal control provisions, Section 13(b)(2)(B) of the Exchange Act and Rules 12b-20, 13a-1, 13a-11 and 13a-13 thereunder, when they caused Everlast to overstate its reported assets by as much as 478% by materially over valuing certain patents and land. The Order alleges that in a Form 10 filed in 1990 (the "Form 10"), a December 31, 1990 Form 10-K (the "Form 10-K"), and in three 1991 Forms 10-Q (the "Forms 10-Q"), Sims and Kurtz caused Everlast to report as assets certain oil filtration patents at an approximate $4 million value. The Order further alleges that Sims and Kurtz understood, at the time, that: (a) Everlast had obtained a 75% interest in the patents, in exchange for stock, from an entity under Sims' control; (b) the Sims controlled entity had acquired the 75% interest in the patents at no cost; and (c) Everlast acquired the remaining 25% interest from a third party in exchange for a $250,000 note payable. In such instances, Generally Accepted Accounting Principles ("GAAP") required that Everlast's 75% interest should be valued at zero. As a result, the Order alleges that in its Form 10, the Form 10-K and Forms 10-Q, Sims and Kurtz caused Everlast to overstate the reported value of the patents by at least $3,750,000 The Order also alleges that in the Form 10-K and the Forms 10-Q, Sims and Kurtz also caused Everlast to report the value of land in Branson, Missouri (the "Branson Property") at $106 million. Everlast had acquired the Branson Property in exchange for preferred stock. GAAP required that Everlast record the property at its fair value, which, the Order alleges, was materially less than Everlast reported. According to the Order's allegations, at the time, Sims and Kurtz understood, among other things, that: (a) the seller of the Branson Property had originally placed a $17.9 million value on the property; (b) the preferred stock that Everlast exchanged for the property had little or no value; (c) for about one third of the Branson Property, Everlast owned only an option to acquire and that for $650,000; (d) an appraisal Everlast used to value the Branson Property was prepared for former owners of the property based on assumptions not appropriate to Everlast; and (e) prior to the Form 10-K, the Commission staff had emphatically told Everlast that the $106 million value was not acceptable. The Order alleges that, nevertheless, Sims and Kurtz caused Everlast to report the $106 million value. Subsequently, in a 1992 Form 8-K, Everlast reported that it had traded the Branson Property for a 30% interest in a -------------------- BEGINNING OF PAGE #2 ------------------- partnership newly created to develop the Branson Property. In the Form 8-K, Everlast valued its 30% partnership interest at $29.6 million. Sims and Kurtz, as alleged above, had information showing that its 30% interest in the partnership was materially overstated.