AMENDED AND RESTATED AGREEMENT BY AND BETWEEN
SOUTHWIN FINANCIAL LTD., UNICO, INC.,
T.C. EQUITIES, LTD AND XXXXXX INTERNATIONAL, INC.
THIS AGREEMENT dated as of November 30, 1999 (the
"Agreement"), is by and between SOUTHWIN FINANCIAL, LTD., a
Belize Corporation (hereinafter referred to as "SOUTHWIN"),
and UNICO, INC., a Delaware Corporation (hereinafter
referred to as "UNICO"), Xxxxxx International, Inc.
(hereinafter referred to as "XXXXXX") and T.C. Equities,
Ltd. (hereinafter referred to as "TCE"). (All the
Constituents hereto are sometimes referred to as the
"Parties").
SOUTHWIN and UNICO executed an Agreement dated as of
June 23, 1999 (the "Prior Agreement") and wish to amend and
restate the Prior Agreement in its entirety in this
Agreement.
Recitals
WHEREAS, UNICO on June 23, 1999 acquired all of the
issued and outstanding 40,027,951 shares of Silver Valley,
Energy, Inc., a Texas corporation (hereinafter referred to
as "SVE") including its proved oil and gas properties
independent valued at $40,027,951 from SOUTHWIN,
WHEREAS, UNICO on September 30, 1999, issued 1,080,000
restricted shares of Common Stock, par value $.01, to
SOUTHWIN and or its designees and issued 3,500,000 shares,
par value $.0,1 to XXXXXX,
WHEREAS, TCE undertook to assign 175,000 shares of
Common Stock, par value $.01 to SOUTHWIN or its designees,
WHEREAS, SOUTHWIN agrees to assign and return the
1,080,000 of Unico Common Stock to UNICO,
WHEREAS, XXXXXX agrees to assign 250,000 restricted
shares of Common Stock, par value $.01 to SOUTHWIN and pay
$35,000 in cash to UNICO,
WHEREAS, UNICO agrees to pay $35,000 in cash to
SOUTHWIN and
WHEREAS, TCE agrees to assign 50,000 shares to
SOUTHWIN.
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) Cancellation of Shares
----------------------
SOUTHWIN and its designees agree to transfer, convey,
assign and deliver back to UNICO all the previously on
September 30, 1999 issued and by SOUTHWIN and its designees
received, 1,080,000 shares of Unico Common Stock, par value
$.01.
2) Share transfer
--------------
(a) XXXXXX agrees to transfer, convey, assign and
deliver 250,000 restricted shares of Unico Common Stock, par
value $.01 to SOUTHWIN and/or its designees.
(b) TCE agrees to transfer, convey, assign and
deliver 50,000 shares of Unico Common Stock, par value $.01
to SOUTHWIN and/or its designees.
(c) The 50,000 shares assigned from TCE to SOUTHWIN
shall not be subject to a stock split reversal before
September 30, 2000.
(d) The 250,000 shares assigned from XXXXXX to
SOUTHWIN shall not be subject to a stock split reversal
before March 31, 2001.
(e) Share certificates delivered to UNICO shall be
in such denominations, amounts and names as may be requested
by SOUTHWIN. For the purpose herein, the shares are
sometimes referred collectively to as (the "Securities").
3) Cash Consideration
------------------
(a) In consideration of the sale and transfer of
the previously, by Unico on September 30, 1999, issued
restricted shares of Unico Common Stock, par value $.01 to
XXXXXX, XXXXXX shall pay to $35,000 in cash on or before
December 31, 1999 to UNICO.
(b) In consideration of the sale and transfer of
the previously, from SOUTHWIN, acquired Silver Valley
Energy, Inc., UNICO shall pay $35,000 in cash on or before
December 31, 1999 to SOUTHWIN.
4) Representations and Warrants
----------------------------
SOUTHWIN represents and warrants to XXXXXX and TCE as
follows:
(a) SOUTHWIN 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, SOUTHWIN 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) SOUTHWIN has had the opportunity to ask various
officers of UNICO regarding its assets, business and
prospects, and has received satisfactory answers to all such
questions, if any. No representative of UNICO has made any
representation regarding the current or future value of the
Securities, and SOUTHWIN has not relied on any such
representation in deciding to undertake the transaction
contemplated by this Agreement. In making the decision to
invest in UNICO, SOUTHWIN has relied solely upon independent
investigation, if any, made by him or on his behalf.
(c) The Securities will be acquired by SOUTHWIN 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) SOUTHWIN understands agrees and covenants with
UNICO 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. SOUTHWIN 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. SOUTHWIN has been advised that UNICO 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 SOUTHWIN to comply with any
exemption under the Securities Act that would permit the
Restricted Securities to be sold by SOUTHWIN. SOUTHWIN
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) SOUTHWIN is a corporation duly organized,
validly existing and in good standing under the laws of
Belize. SOUTHWIN has all requisite power and authority
(corporate and, when applicable, government) to own,
operate, and carry on its business as now being conducted.
(f) SOUTHWIN 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.
(g) 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
SOUTHWIN regarding the interests that are the subject of
this Agreement, or any of SOUTHWIN's or Silver valley
Energy, Inc's ("SVE") officers, directors, employees, or
stockholders that will materially adversely affect SOUTHWIN,
SVE or this agreement.
(h) SOUTHWIN 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 SOUTHWIN to consummate the
transaction contemplated by this Agreement.
(i) No representation or covenant made to XXXXXX,
TCE or UNICO in this Agreement nor any document,
certificate, exhibit, or other information given or
delivered to either Party 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.
(j) SOUTHWIN affirms that all of the
representations and warranties of SOUTHWIN contained herein,
and all information furnished by SOUTHWIN to XXXXXX, TCE or
UNICO, are true, correct and compete in all respects.
5) Indemnification by SOUTHWIN
---------------------------
SOUTHWIN agrees to indemnify and hold XXXXXX, TCE or
UNICO harmless against, and will reimburse UNICO 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 XXXXXX, TCE or UNICO in respect of any
omission, misrepresentation or breach of warranty on the
part of SOUTHWIN contained in this Agreement.
6) XXXXXX and TCE represents and warrants to SOUTHWIN
as follows:
--------------------------------------------------
(a) XXXXXX and TCE are corporations duly
organized, validly existing and in good standing, under the
laws of the State of Delaware and The Bahamas, respectively.
XXXXXX and TCE have all requisite power and authority
(corporate and, when applicable, government) to own,
operate, and carry on its business as now being conducted.
(b) XXXXXX and TCE are the sole owners of their
Securities listed in this Agreement with full right to sell
or dispose of their Securities as they may choose.
(c) XXXXXX and TCE are 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.
(d) 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 XXXXXX or TCE regarding
the stock that is the subject of this Agreement, or any of
NATHAN's or TCE's officers, directors, employees, or
stockholders that will materially adversely affect XXXXXX or
TCE or this Agreement.
(e) XXXXXX and TCE have 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 XXXXXX or TCE to
consummate the transaction contemplated by this Agreement.
(f) No representation or covenant made to SOUTHWIN
in this Agreement nor any document, certificate, exhibit, or
other information given or delivered to SOUTHWIN 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.
7) Indemnification by XXXXXX and TCE
----------------------------------
XXXXXX and TCE agree to indemnify and hold SOUTHWIN
harmless against, and will reimburse SOUTHWIN 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 SOUTHWIN in respect of any omission,
misrepresentation or breach of warranty on the part of
XXXXXX or TCE respectively contained in this Agreement.
8) Parties' obligation at Closing
-------------------------------
(a) SOUTHWIN and its designees shall, on or before
December 31, 1999, deliver the 1,080,000 restricted shares
of Common Stock to UNICO as specified in Paragraph 1 herein.
(b) XXXXXX shall, on or before December 31, 1999,
deliver 250,000 restricted shares of Common Stock, par value
$.01 to SOUTHWIN as specified in 2 (a) herein.
(c) TCE shall, on or before December 31, 1999,
deliver 50,000 shares to SOUTHWIN as specified in Paragraph
2 (b) herein.
(d) SOUTHWIN shall, on or before December 31, 1999,
execute and deliver to UNICO a correction Assignment of Oil,
Gas and Mineral to Silver Valley Energy, Inc., which removes
the "90 day, $2.00 minimum bid price" language.
9) Closing through Escrow Agent
----------------------------
Closing shall occur through the Escrow Agent, Xxxxxxx
X. Xxxxx, Attorney at Law, 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 pursuant to a separate Escrow
Agreement. SOUTHWIN shall escrow the 1,080,000 shares of
Unico Common Stock, par value $.01, with the Escrow Agent to
be released to UNICO upon SOUTHWIN's receipt of the 250,000
restricted shares of Unico Common Stock from XXXXXX, the
50,000 shares of Unico Common Stock from TCE, and the
$35,000 in cash from UNICO, pursuant to this Agreement.
UNICO, XXXXXX and TCE shall deliver the Unico Corporation
Stock and cash to the Escrow Agent. Closing constitutes the
Escrow Agent's receipt and disbursements of all events as
described above.
10) Effective date
--------------
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 by
December 31, 1999. The $35,000 payable in cash from XXXXXX
to UNICO, and from UNICO to SOUTHWIN shall take place at the
same time as the physical exchange of shares, on or before
December 31, 1999.
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
------------------
(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.
13) Assignment
----------
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 not 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
-------------
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 Parties hereto.
Signed on the dates below to be effective the 30th day of
November, 1999
SOUTHWIN FINANCIAL, LTD. Date:
By: //
UNICO: Date:
By: //
Xxxxxx International, Inc. Date:
By: //
T. C. Equities, Ltd. Date:
By: //
