AGREEMENT BY AND BETWEEN
SOUTHWIN FINANCIAL LTD., AND UNICO, INC.
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This Agreement ("Agreement") entered into June 25,
1999, is by and between SOUTHWIN FINANCIAL, LTD., a Belize
Corporation (hereinafter referred to as "Seller"), and
UNICO, INC., a Delaware Corporation ("Purchaser") X-Corp.,
(hereinafter referred to as "X-Corp") and Y-Corp.,
(hereinafter referred to as "Y-Corp").
Recitals
WHEREAS, Southwin Financial Ltd., believes it to be in
the best interests of its shareholders who own all of the
authorized, issued and outstanding 40,027,951 shares of the
Common Stock of Silver Valley Energy, Inc., a Texas
Corporation, (hereinafter referred to as "SVE") to sell
these shares to the Purchaser,
WHEREAS, the Purchaser believes it will be in the best
interest to its business and in the best interest of its
shareholders, to acquire the 40,027,951 shares (hereinafter
referred to as the "Shares") of the authorized and issued
shares of the Seller, and
WHEREAS, Purchaser agrees to reverse split one for
three (1:3) its currently issued and outstanding 6,331,817
shares of Common Stock, par value $.01, and thereafter issue
1,080,000 restricted new shares, par value $.01 to Seller
and/or assigns or nominees, and 3,500,000 restricted new
shares, par value $.01 to Y-Corp. in consideration for SVE,
WHEREAS, X-Corp. assigns 120,000 free trading shares,
par value $.01 to Seller or its designees, and
WHEREAS, Purchaser will, based upon this transaction,
within 90 days from the date of this Agreement, maintain a
minimum bid price not less than $2.00 per share for its
common stock, listed on NASD-OTC.
NOW, THEREFORE, In consideration of the mutual promises
of the parties; in reliance on the representations,
warranties, covenants, and conditions contained in this
Agreement; and for other good and valuable considerations,
the parties agree as follows:
1) Sale of Assets
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Seller agrees to sell, convey, transfer, assign and deliver
to Purchaser, and Purchaser agrees to purchase or accept
from Seller, Forty million Twenty-Seven Thousand Nine
Hundred Fifty One (40,027,951) shares of the authorized and
issued Common Stock of Silver Valley Energy, Inc.
2) Consideration
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In consideration of the sale and transfer of the Shares of
Silver Valley Energy, Inc., and the representations,
warranties, and covenants of Seller set forth in this
Agreement, Purchaser shall issue to Seller, or its nominees,
(i) One Million Eighty Thousand (1,080,000) restricted 144
shares of Purchaser's Common Stock (hereinafter referred to
as ("Restricted Securities") to be restricted from sale by
Seller for a period of one (1) year from the date of
closing; (ii) Three million Five Hundred Thousand
(3,500,000) restricted 144 shares of the Purchaser's Common
Stock to Y-Corp; (iii) X-Corp., shall transfer to Seller,
or its designees, One Hundred Twenty Thousand (120,000) free
trading shares of Purchasers' Common Stock as follows:
(a) One Hundred and Twenty Thousand (120,000) of
the free trading shares shall be lodged with a Brokerage
Firm of Sellers choice without restrictions for sale, with
all the proceeds from any sale going to Seller or its
assigns.
(b) The 120,000 free trading shares shall not be
subject to a stock split reversal for a period of twelve
(12) months from the date of closing.
(c) The 1,080,000 restricted shares shall not be
subject to a stock split reversal for a period of twelve
(12) months from the date of closing.
(d) Share certificates delivered to the Purchaser
shall be in such denominations, amounts and names as may be
requested by Seller. For the purpose herein, the restricted
shares and the free trading shares are sometimes referred
collectively to as (the "Securities").
(e) Purchaser undertakes to change its name to
Nateko, Corp. which name has been reserved, and change its
trading symbol to NTKO or similar designated trading symbol.
3) Representations and Warrants
----------------------------
Seller represents and warrants to Buyer as follows:
(a) Seller has the financial ability to bear the
economic risk of its investment in the Securities, has
adequate means of providing for its current needs and
contingencies, and has no need for immediate liquidity in
its investment in the Securities. Further, alone or with
representatives or advisors, if any, Seller has such
knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the
transaction contemplated by this Agreement.
(b) Seller has had the opportunity to ask various
officers of Buyer regarding its assets, business and
prospects, and has received satisfactory answers to all such
questions, if any. No representative of Buyer has made any
representation regarding the current or future value of the
Securities, and Seller has not relied on any such
representation in deciding to undertake the transaction
contemplated by this Agreement. In making the decision to
invest in Buyer, Seller has relied solely upon independent
investigation, if any, made by him or on his behalf.
(c) The Securities will be acquired by Seller in
good faith for investment purposes only, and are not being
acquired with a view to, or for, a "distribution" thereof
within the meaning of the Securities Act of 1933, as amended
(the "Securities Act").
(d) Seller understands agrees and covenants with
Buyer that the Restricted Securities have not been
registered under the Securities Act, and agrees that none of
the Restricted Securities may be sold, offered for sale,
transferred, pledged, hypothecated or otherwise disposed of
except in compliance the Securities Act. Seller will not,
directly or indirectly, voluntarily offer, sell, transfer,
pledge, hypothecate or otherwise dispose of (or solicit any
offers to purchase or otherwise acquire or take a pledge of)
any of the Restricted Securities unless (i) registered
pursuant to the provisions of the Securities Act, or (ii) an
exemption from registration is available under the
Securities Act. Seller has been advised that Buyer does not
have an obligation, and does not intend, to cause the
Restricted Securities to be registered under the Act, or to
take any action necessary for Seller to comply with any
exemption under the Securities Act that would permit the
Restricted Securities to be sold by Seller. Seller further
understands that the Restricted Securities will bear
substantially the following restrictive legend:
THE SHARES OF STOCK EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("THE ACT") NOR QUALIFIED UNDER THE SECURITIES LAWS OF
ANY STATES, AND HAVE BEEN ISSUED IN RELIANCE UPON
EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATIONS FOR
PUBLIC OFFERINGS. ACCORDINGLY, THE SALE, TRANSFER,
PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION OF ANY SUCH
SECURITIES OR ANY INTEREST THEREIN MAY NOT BE
ACCOMPLISHED PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO
AN OPINION OF COUNCIL SATISFACTORY IN FORM AND SUBSTANCE
TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION AND
QUALIFICATION RE NOT REQUIRED.
(e) Seller is a corporation duly organized, validly
existing and in good standing under the laws of Belize.
Seller has all requisite power and authority (corporate and,
when applicable, government) to own, operate, and carry on
its business as now being conducted.
(f) Seller is the sole owner of the 40,027,951
shares of SVE with full right to sell or dispose of the
shares as Seller my choose. SVE is the owner of certain oil
and gas reserves with a valuation of $40,027,951 as verified
by certified petroleum geologist Xxxxxx X. Xxxxxxxxx,
attached hereto as Exhibit "A". Seller neither makes nor
gives any warranty or guaranty, express or implied,
regarding the appraisal attached hereto as Exhibit A.
Purchaser hereby discharges and indemnifies Seller against
all debts, liabilities, losses or obligations made or
incurred in connection with the appraisal attached hereto as
Exhibit A.
(g) Upon Purchasers demand, Seller undertakes to
within 30 days thereof, arrange for audit financials of SVE,
including the assets described herein, as of the date of
Close of this transaction pursuant to US GAAP and the
requirements from the Securities and Exchange Commission for
publicly listed companies. Costs for such audit at an
expected amount of $2,800, will be at the sole expense by
Purchaser.
(h) Seller represents and warrants that the assets
described in Exhibit A are the sole assets of SVE, and when
sold and delivered in accordance with the terms hereof for
the consideration expressed herein, will be fully paid and
non-assessable. Seller further represents and warrants to
Buyer that SVE never has had, currently not has and as of
the day of Close not will have any other assets or any
liability whatsoever.
(i) Seller or SVE is not in default or in violation
of any law, regulation, court order, or order of any
federal, state, municipal, foreign, or other government
department, board, bureau, agency, or instrumentality,
wherever located, that would materially adversely affect
this agreement or future prospects.
(j) There are no pending, outstanding, or
threatened claims; legal, administrative, or other
proceedings; or suits, investigations, inquiries,
complaints, notices of violation, judgments, injunctions,
orders, directives, or restrictions against or involving
Seller or SVE regarding the interests that are the subject
of this Agreement, or any of Seller's or SVE's officers,
directors, employees, or stockholders that will materially
adversely affect Seller, SVE or this agreement.
(k) Seller has full power and authority to execute,
deliver, and/or consummate this Agreement. All reports and
returns required to be filed with any government and
regulatory agency with respect to this transaction have been
or will be property filed. Except as otherwise disclosed in
this Agreement, no notice to or approval by any other
person, form or entity, including governmental authorities
is required of Seller or SVE to consummate the transaction
contemplated by this Agreement.
(l) No representation or covenant made to Purchaser
in this Agreement nor any document, certificate, exhibit, or
other information given or delivered to Purchaser pursuant
to this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit a
material fact necessary to make the statements contained in
this Agreement or the matters disclosed in the related
documents, certificates, information, or exhibits not
misleading, except as otherwise stated herein.
(m) Seller affirms that all of the representations
and warranties of Seller contained herein, and all
information furnished by Seller to Buyer, are true, correct
and compete in all respects.
(n) Seller will not sell, pledge, lease mortgage,
encumber, dispose of, or agree to do any of these acts
regarding any of the assets listed in this agreement.
4) Indemnification by Seller
-------------------------
Seller agrees to indemnify and hold Buyer harmless
against, and will reimburse Buyer on demand for, any
payment, loss, cost or expense (including reasonable
attorney's fees and reasonable costs of investigation
incurred in defending against such payment, loss, cost or
expense claim therefore) made or incurred by or asserted
against Buyer in respect of any omission, misrepresentation
or breach of warranty on the part of Seller contained in
this Agreement.
5) Purchaser represents and warrants to Seller as
follows:
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(a) Purchaser is a corporation duly organized,
validly existing and in good standing, under the laws of the
State of Delaware. Purchaser has all requisite power and
authority (corporate and, when applicable, government) to
own, operate, and carry on its business as now being
conducted.
(b) Purchaser is the sole owner of its Restricted
Securities listed in this Agreement with full right to sell
or dispose of it as purchaser may choose. X-Corp. is the
sole owner of free trading Securities listed in this
Agreement with full right to sell or dispose of it as herein
described.
(c) Purchaser is a "Reporting Issuer" and is
current in its filings with the SEC (except for Buyer's
annual report of December 31, 1998 and its quarterly report
for the first quarter of 1999 on Form 10-QSB and 10-KSB
respectively.
(d) Purchaser is not in default or in violation of
any law, regulation, court order, or order of any federal,
state municipal, foreign, or other government department,
board bureau, agency, or instrumentally, wherever located,
that would materially affect this Agreement.
(e) There are no pending, outstanding or threatened
claims; legal administrative, or other proceedings; or
suits, investigations, inquiries, complaints, notices of
violation, judgements, injunctions, orders, directives, or
restrictions against or involving Purchaser or X-Corp
regarding the stock that is the subject of this Agreement,
or any of Purchaser's officers, directors, employees, or
stockholders that will materially adversely affect Purchaser
or this Agreement.
(f) Purchaser has full power and authority to
execute, deliver, and/or consummate this Agreement. Except
as otherwise disclosed in this Agreement, no notice pr
approval by any other person, form or entity, including
governmental authorities, is required of Purchaser to
consummate the transaction contemplated by this Agreement.
(g) No representation or covenant made to Seller in
this Agreement nor any document, certificate, exhibit, or
other information given or delivered to Seller pursuant to
this Agreement contains or will contain any untrue statement
of a material fact necessary to make the statements
contained in this Agreement or the matters disclosed in the
related documents, certificates, information, or exhibits
not misleading, except as otherwise stated herein.
6) Indemnification by Purchaser
----------------------------
Purchaser agrees to indemnify and hold Seller harmless
against, and will reimburse Seller on demand for, any
payment, loss, cost or expense (including reasonable
attorney's fees and reasonable costs of investigation
incurred in defending against such payment, loss, cost or
expense claim therefore) made or incurred by or asserted
against Seller in respect of any omission, misrepresentation
or breach of warranty on the part of Purchaser contained in
this Agreement.
7) Covenants
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Seller covenants with Purchaser and Purchaser covenants with
Seller, that from and after the date of this Agreement,
Seller and Purchaser will:
(a) Assist and cooperate with Purchaser or Seller
in resisting any claim of any claim by any broker,
investment banker, or third party for any brokerage fee,
finder's fee, or commission against Purchaser or Seller in
connection with the transactions contemplated by this
Agreement.
(b) As soon as reasonably practical after the
execution of this Agreement, obtain and furnish the written
consents of all entities necessary to approve this sale, if
required, or deemed necessary by Purchaser or Seller.
8) Closing
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The parties agree to use their best efforts to
consummate this transaction ("Closing"). The closing shall
take place within the offices of the Seller and Purchaser
and finalized with the exchange via fax of the duly signed
Agreement, on or before July 18, 1999, or at such other
time, date and place as mutually agreed upon by Seller and
Purchaser ("Closing Date").
9) Parties' obligation at the Closing
----------------------------------
(a) Seller's obligation at the Closing
At the Closing, Seller shall deliver to Purchaser 40,027,951
shares of the authorized and issued Common Stock of SVE.
(b) Purchaser's obligation at the Closing
At the Closing, Purchaser shall issue against delivery of
the 40,027,951 shares, and the assets specified herein,
deliver to Seller 1,080,000 restricted shares and 120,000
free trading shares as specified in paragraph 2 (a) and (b).
10) Effective date
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This Agreement shall be become effective, upon
execution by authorized, witnessed, signatures of the
Constituents. The exchange of physical shares involved in
the herein detailed transaction shall be accomplished within
30 days.
11) Counterparts
------------
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. This document may be executed by the
Constituents, utilizing Facsimile Transmission, to bind this
Agreement, and it shall be as legally binding as executed in
hard copy.
12. General provisions
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(a) Survival of Representations, Warranties, and
Covenants
--------------------------------------------
The representations, covenants, and agreements of the
parties contained in this Agreement or contained in any
writing delivered pursuant to this Agreement shall survive
the Closing date.
(b) Notices
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All notices that are required or that may be given
pursuant to the terms of this Agreement shall be in writing
and shall be sufficient in all respects if given in writing
and delivered personally or by registered mail, return
receipt requested, postage prepaid as follows:
If to Seller: Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxx, 00000
If to Purchaser: Xxx Xxxxx
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
13) Assignment
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This Agreement shall be binding on and inure to the
benefit of the parties to this Agreement and their
respective successors and permitted assigns. This Agreement
may no be assigned by any party without the written consent
of all parties thereto and any attempt to make an assignment
without consent is void.
14) Governing Law
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This Agreement shall be construed and governed by the laws
of the State of Texas. Venue shall be in Xxxxxx County,
Texas.
15) Amendments; Waiver
------------------
This Agreement may be amended only in writing by the mutual
consent of all the parties, evidenced by all necessary and
proper corporate authority. No waiver of any provision of
this Agreement shall arise from any action or inaction of
any party, except an instrument in writing expressly waiving
the provision executed by the party entitled to the benefit
of the provision.
(a) Non Waiver
----------
The failure of any constituent to this Agreement, to
insist in any one or more cases upon the performance by
another Constituent, of any of the provisions, terms or
conditions of this Agreement, or to fail to exercise any
option herein contained, shall not be construed as a waiver
or relinquishment of any other provision, terms or condition
to this Agreement. No waiver by a Constituent, shall be
construed as a waiver with respect to any other subsequent
breach.
(b) Captions and Headings
---------------------
The Article and paragraph headings throughout this
Agreement are for convenience and reference only and shall
not define, limit, or add the meaning of any provision of
this Agreement.
(c) Mutual Consideration
--------------------
The Constituents hereto shall cooperate with each other
to achieve the mutual desired purpose of this Agreement and
shall execute such other and further documents and take such
other and further actions as may be necessary or convenient
to successfully accomplish the intention of the transaction
described herein, for the best interest of each of the
Constituent Companies.
(d) Any exhibit referred to in this Agreement, but
not currently available, shall be provided at the earliest
possible date. The representations by the Constituents
hereto, of this Agreement, and in any Attachments and
Addendums hereto, shall survive the Effective date hereof,
and shall supersede any and all prior agreements and
understandings if any, between the Constituent Companies, or
by vote of shareholders carrying the right to vote a
majority of the controlling shares of the parent
corporation.
[SIGNATORIES APPEAR ON THE NEXT PAGE]
Signed on the dates below to be effective the day of
, 1999
Seller:
SOUTHWIN FINANCIAL, LTD.
Date: By:
Purchaser:
Unico, Inc.
Date: By:
X-Corp.
Date: By:
Y-Corp.
Date: By:
