SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __) /*/
New Generation Plastic, Inc.
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(Name of Issuer)
Common Stock, par value $.001 per share
- --------------------------------------------------------------
(Title of Class of Securities)
64446R108
- -------------------------------------------------------------
(CUSIP Number)
Marc R. Engel, Executive Vice President
New Generation Plastic, Inc.
245 Park Avenue, 39th Floor
New York, New York 10167
(212)792-4104
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 10, 1999
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition that is the subject of
this Schedule 13D, and is filing this schedule because of
Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
/*/ The remainder of this cover page shall be filled out
for a reporting person's initial filing on this form with
respect to the subject class of securities, and for any
subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section
18 of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that Section of the Act but
shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 64446R108
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Bachkine & Meyer Industries, S.A.
(Taxpayer ID No. N\A )
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
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7 SOLE VOTING POWER
NUMBER OF
11,580,000
SHARES ----------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
-0-
OWNED BY ----------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
11,580,000
REPORTING ----------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
11,580,000
- -------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97.78%
- -------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
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<PAGE>
CUSIP No. 64446R108
- -------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Jacques Mot
- -------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- -------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- -------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
- -------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
-0-
SHARES ----------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
11,580,000
OWNED BY ----------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
-0-
REPORTING ----------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 11,580,000
- --------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
11,580,000
- -------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97.78%
- -------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
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<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the Common Stock, par value
$0.001 (the "Common Stock") of New Generation Plastic, Inc.
(the "Issuer"). Based solely on information provided by the
Issuer, as of June 10, 1999 there were 11,842,733 shares of
Common Stock issued and outstanding.
The address of the Issuer's principal executive office is
245 Park Avenue, 39th Floor, New York, NY 10167.
ITEM 2. IDENTITY AND BACKGROUND.
(a). The person filing this statement is Bachkine &
Meyer Industries, S.A. ("BMI"). Jacques Mot is the Chairman
and President of BMI. Information called for by Items 2
through 6 of this Schedule 13D, as applicable, with respect
each director and executive officer of BMI is attached hereto
as Annex A.
(b-c). BMI's main business address is 125 Main Street,
Road Town, Tortola, BVI. BMI is a private holding company
which pursues investment opportunities world wide.
(d). BMI has not been convicted in any criminal
proceeding (excluding traffic violations or similar
misdemeanors) during the last five years.
(e). During the last five years, BMI has not been a party
to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f). BMI is a British Virgin Islands company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On June 10, 1999, BMI acquired Eleven Million Five
Hundred and Eighty Thousand (11,580,000) shares (the "Shares")
of the Common Stock in a private transaction exempt from
registration under the Securities Act of 1933 pursuant
Regulation S promulgated thereof, in exchange for certain
assets and liabilities of BMI.
ITEM 4. PURPOSE OF TRANSACTION.
BMI acquired the Shares and control of the Issuer as part
of the reorganization and reincorporation of the Issuer's
predecessor in exchange for certain assets and technology from
BMI related to a new business operation. Other than the
potential future sale of additional shares by the Issuer of
its Common Stock to the public for cash or in privately-
negotiated transactions with sophisticated or accredited
investors, the Reporting Person does not have any plans or
proposals which relate to or that would result in any of the
matters set forth in paragraphs a-j of this Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) BMI beneficially owns in the aggregate 11,580,000
shares of the Common Stock or 97.78% of the outstanding and
issued shares of Common Stock.
(b) BMI has the sole power to vote on 11,580,000 Shares.
(c) Other than its acquisition of the Shares in a single
transaction, there have been no transactions in the Common
Stock by BMI during the past 60 days.
(d) No persons, other than BMI, have the right to
receive or the power to direct the receipt of the dividends
from, or the proceeds from the sale of, the Shares acquired by
BMI.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
Other than the Asset Purchase Agreement referenced under
Item 7 below and the joint filing agreement attached as
Exhibit B, there are no contracts, arrangements,
understandings or relationship between BMI and any person with
respect to the securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Attached as Exhibit A hereto is a copy of the Asset
Contribution Agreement among BMI, SW Ventures, Inc. and Guido
Cloetens, dated as of April 14, 1999, pursuant to which BMI
acquired control of the Issuer.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated as of: July 31, 1999
BACHKINE & MEYER INDUSTRIES, S.A.
By: /S/ JACQUES MOT
--------------------------------
Name: Jacques Mot
Title: Chairman and Chief
Executive Officer
JACQUES MOT
/s/ JACQUES MOT
-----------------------------------
<PAGE>
ANNEX A
Directors and Executive Officers of BMI
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ITEM 2. IDENTITY AND BACKGROUND
(a). Jacques Mot is a Director and the Chairman and
President of BMI.
(b). His business address is 125 Main Street, Road Town,
Tortola, British Virgin Islands.
(c). Mr. Mot is currently employed by BMI as its
Chairman and President.
(d). Mr. Mot has not been convicted in any criminal
proceeding (excluding traffic violations or similar
misdemeanors) during the last five years.
(e). During the last five years, Mr. Mot has not been a
party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f). Mr. Mot is a citizen of Switzerland.
- -------------------------------------------
(a). Marcel J. Rokegem is a Director of BMI.
(b). His business address is Lessensestraat 60, 9500
Geraardsbergen, Belgium.
(c). Mr. Rokegem is currently employed as a consultant by
Van Moer Santerre Group, Lessensestraat 60, 9500
Geraardsbergen, Belgium.
(d). Mr. Rokegem has not been convicted in any
criminal proceeding (excluding traffic violations or similar
misdemeanors) during the last five years.
(e). During the last five years, Mr. Rokegem has not been
a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f). Mr. Rokegem is a citizen of Belgium.
<PAGE>
EXHIBIT A
ASSET CONTRIBUTION AGREEMENT
BETWEEN
BACHKINE & MEYER INDUSTRIES, S.A.
and
SW VENTURES, INC.
AND
GUIDO CLOETENS
As of April 14, 1999
<PAGE>
TABLE OF CONTENTS
Page
RECITALS i
ARTICLE I CONTRIBUTION AND CLOSING 1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF CLOETENS 3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SWV 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BMI 11
ARTICLE V ADDITIONAL AGREEMENTS OF THE PARTIES 12
ARTICLE VI CONDITIONS OF BMI 14
ARTICLE VII CONDITIONS OF SWV AND CLOETENS 15
ARTICLE VIII INDEMNIFICATION 16
ARTICLE IX OTHER PROVISIONS 19
<PAGE>
ASSET CONTRIBUTION AGREEMENT
THIS ASSET CONTRIBUTION AGREEMENT ("Agreement"), is made
and entered into as of this 14th day of April, 1999, by and
between Bachkine & Meyer Industries, S.A., a British Virgin
Islands corporation ("BMI,"), on one part, and SW Ventures,
Inc., a Nevada corporation ("SWV") and Guido Cloetens, an
individual resident of Belgium ("Cloetens") on the other part.
RECITALS
BMI and its wholly owned subsidiary, BAMI Intelligence,
S.A. ("BAMI") (References herein to BMI include both BMI and
BAMI) are the owners of a processing and recycling technology
that is capable of producing discrete plastic polymers from a
stream of either mixed virgin resins or mixed plastic waste
without the necessity of expensive compatibilizers (the "New
Generation PlasticTM Process") The assets, including, the
patents, trademarks, know-how, proprietary process control
software, the NGP BT-30 (the "Bench Top Unit")(that BMI is
currently assembling), certain contractual rights and
agreements and all other related assets and liabilities that
form the basis of the New Generation Plastic(tm) Process are
referred to herein as the "NGP Assets." SWV is currently a
reporting company under Section 12(g) of the Securities
Exchange Act of 1934 (the "Exchange Act"). However, none of
the outstanding common stock of SWV is currently registered
under the Securities Act of 1933 (the "Securities Act").
Cloetens, as the record owner of more than 50% of the
currently outstanding common stock of SWV, has agreed to vote
his shares in favor of the transactions contemplated by this
Agreement.
In accordance with the provisions of this Agreement,
after the completion of the Reorganization (as defined herein)
required by Article V of this Agreement, BMI desires to
contribute the NGP Assets owned by BMI or BAMI to New
Generation Plastic, Inc. ("NGP Delaware"), a Delaware
corporation, in exchange for 11,580,000 shares of the common
stock of NGP Delaware (the "NGP Contribution"). The parties
intend that the NGP Contribution qualifies for tax free
treatment under Section 351 of the Internal Revenue Code of
1986, as amended (the "Code").
Throughout this Agreement various Schedules are
referenced as being attached to this Agreement.
Notwithstanding anything herein to the contrary, this
Agreement may be executed without any Schedules attached
hereto and if so executed shall be valid and binding without
regard to the contemplated Schedules until same are attached
in final form and delivered to the other party for review at
Closing.
ARTICLE I
Contribution and Closing
Section 1.1 Incorporation of Recitals and Preamble. The
recitals and preamble set forth above are incorporated herein
by reference and are a part of this Agreement.
Section 1.2 Time and Place for Closing. Closing under
this Agreement shall take place within fifteen (15) days after
the conditions set forth in Article VI and Article VII being
satisfied or waived, time being of the essence, at the offices
of BMI, Rue de la Rotisserie 29, Geneva, Switzerland, or such
other place as the parties hereto may agree upon. The date
that Closing occurs is referred to hereinafter as the "Closing
Date" and the act of closing as "Closing." The exact Closing
Date shall be established by mutual consent of BMI and SWV.
Section 1.3 Agreement to Contribute the NGP Assets;
Issuance of Common Stock. At the Closing, BMI agrees to
assign, transfer and deliver to NGP Delaware all of its right
title and interest in the NGP Assets (a list of the NGP Assets
is attached hereto as Schedule 1.3) currently owned by BMI and
/or BAMI to NGP Delaware, and NGP Delaware shall deliver to
BMI 11,580,000 shares (the "NGP Delaware Stock") of the common
stock of NGP Delaware (the "NGP Contribution").
Section 1.4 Closing. Following execution of this
Agreement, BMI and SWV shall be obligated to conclude the
transaction strictly in accordance with its terms within five
(5) days after the conditions of Closing set forth in Article
VI and Article VII have been satisfied or waived, time being
of the essence. If the failure to conclude this transaction
is due to the refusal and failure of SWV and/or Cloetens to
perform their obligations under this Agreement, BMI may seek
to enforce this Agreement with an action of specific
performance, in addition to, and not in limitation of, any
other rights and remedies available to BMI under this
Agreement, or at law or in equity, including, without
limitation an action to recover its actual damages resulting
from the default of SWV and/or Cloetens. If the failure to
conclude this transaction is due to the refusal and failure of
BMI to perform its obligations under this Agreement, SWV may
seek to enforce this Agreement with an action of specific
performance, in addition to and not in limitation of any other
rights and remedies available to SWV under this Agreement, or
at law or in equity, including without limitation an action to
recover his actual damages resulting from the default of BMI.
Section 1.5 Termination. This Agreement and the
transactions contemplated hereby may be terminated at any time
prior to the Closing Date: (a) by mutual written agreement
of BMI and SWV and Cloetens; (b) by BMI within the later of
thirty (30) days after the date of this Agreement or five (5)
days after all Schedules to be prepared by SWV are delivered
to BMI, if BMI is not satisfied, in its sole discretion, with
the due diligence it has conducted on SWV; (c) by BMI or
SWV, in the event the other makes a material misrepresentation
under this Agreement or breaches a material covenant or
agreement under this Agreement which is not cured within
fifteen (15) days after notice is received; or (d) by BMI or
SWV, if the Closing shall not have occurred by June 30, 1999,
or such other date as may be agreed to by all of the parties
hereto in writing, due to the non-fulfillment of a condition
precedent to such party's obligation to close as set forth at
Article VI or VII hereof, as applicable (through no fault or
breach by the terminating party).
In the event this Agreement is terminated as provided
herein, this Agreement shall become void and be of no further
force and effect and no party hereto shall have any further
liability to any other party hereto, except that Section 1.5,
Section 9.1 and Section 9.15 shall survive and continue in
full force and effect, notwithstanding termination. The
termination of this Agreement shall not limit, waive or
prejudice the remedies available to the parties, at law or in
equity, for a breach of this Agreement. If this Agreement is
terminated, all due diligence and other documentation
delivered to BMI by SWV shall be returned promptly to SWV.
Section 1.6 Deliveries by SWV. At the Closing, SWV
shall deliver or cause to be delivered, all duly and properly
executed, authorized and issued (where applicable): (a)
Certificates representing the NGP Delaware Stock, as provided
in Section 1.3 above; (b) Resignations of Officers in the
form attached a Schedule 1.6(b); and (c) A favorable
opinion from counsel for SWV, dated the Closing Date, in the
form attached as Schedule 1.6(c).
Section 1.7 Deliveries by BMI. At the Closing, BMI
shall deliver to SWV or cause to be delivered, all duly and
properly executed, authorized and issued (where applicable)
the following: (a) Duly executed Assignments of the NPG
Assets in the forms attached as Schedule 1.7(a); and (b) An
opinion from counsel for BMI, dated the Closing Date, in form
attached as Schedule 1.7(b).
ARTICLE II
Representations and Warranties of Cloetens
With knowledge that BMI is relying upon the
representations, warranties and covenants herein contained,
Cloetens represents and warrants to BMI and makes the
following covenants for BMI's benefit.
Section 2.1 Authority Relative to this Agreement.
Cloetens has full authority to enter into and perform his
obligations under this Agreement and the Collateral Documents,
and neither the execution, delivery nor performance by
Cloetens of this Agreement or the Collateral Documents will
(i) result in a violation or breach of any term or provision
nor constitute a default under any contract or agreement to
which Cloetens is a party or by which he is bound, or violate
any order, writ, injunction or decree of any court,
administrative agency or governmental body, or (ii) result in
a violation or breach of any term or provision, or constitute
a default or accelerate the performance required, under any
indenture, mortgage, deed of trust or other contract or
agreement to which Cloetens is a party or by which he or his
properties is bound.
Section 2.2 Majority Ownership of SWV. Cloetens is the
sole owner of and possesses sole voting power over 1,838,000
shares of the common stock of SWV. As such, Cloetens
possesses a majority of the voting power of the outstanding
shares of SWV.
ARTICLE III
Representations and Warranties of SWV
With knowledge that BMI is relying upon the
representations, warranties and covenants herein contained,
SWV represents and warrants to BMI and makes the following
covenants for BMI's benefit. When the phrase "to SWV's
knowledge" or any equivalent phrase is used in this Agreement,
the phrase shall mean the actual knowledge of SWV or the
information and/or knowledge of an officer or director of SWV
acting with reasonable diligence in the conduct of his or her
duties as an officer or director.
Section 3.1 Organization and Standing. SWV is duly
organized, validly existing and in good standing under the
laws of the State of Nevada, with full power and authority to
own its properties and conduct its business as now being
conducted. Except as listed in Schedule 3.1, SWV does not own
any stock or interest in any other corporation, partnership,
or other business organization.
Section 3.2 Authority Relative to this Agreement. The
execution, delivery and performance of this Agreement and the
Collateral Documents by SWV have been duly authorized and
approved by the Board of Directors of SWV and as of the
Closing Date by the shareholders of SWV. No further corporate
action is necessary on the part of SWV to consummate this
Agreement and the Collateral Documents in accordance with
their terms. SWV has full authority to enter into and perform
its obligations under this Agreement and the Collateral
Documents, and neither the execution, delivery nor performance
by SWV of this Agreement or the Collateral Documents will (i)
result in a violation or breach of any term or provision nor
constitute a default under the certificate of incorporation or
bylaws of SWV or under any contract or agreement to which SWV
is a party or by which it is bound, or violate any order,
writ, injunction or decree of any court, administrative agency
or governmental body, or (ii) result in a violation or breach
of any term or provision, or constitute a default or
accelerate the performance required, under any indenture,
mortgage, deed of trust or other contract or agreement to
which SWV is a party or by which it or its properties is
bound.
Section 3.3 Securities. SWV has the authorized and
outstanding securities set forth on Schedule 3.3. All
outstanding shares of stock are legally and validly authorized
and issued, fully-paid and nonassessable. There are no
outstanding rights of any kind to acquire additional shares of
any class of stock of SWV, except as set forth on Schedule
3.3.
Section 3.4 Contracts, Permits and Material Documents.
The items listed in Schedule 3.4 attached hereto are all of
the following ("Material Documents") with respect to SWV which
provide a benefit or impose a detriment of a value of $5,000
or more: (i) leases for real and personal property, (ii)
licenses, (iii) franchises, (iv) promissory notes, guarantees,
bonds, mortgages, liens, pledges, and security agreements
under which SWV is bound or under which SWV is the
beneficiary, (v) collective bargaining agreements, (vi)
patents, trademarks, trade names, copyrights, trade secrets,
proprietary rights, symbols, service marks, and logos, (vii)
all permits, licenses, consents and other approvals from
governments, governmental agencies (federal, state and local)
and/or third parties relating to, used in or required for the
operation of any of the business of SWV, (viii) all surety
bonds, closure bonds or any other obligation which SWV has
liability for with respect to its operations and (ix) other
contracts, agreements and instruments not listed on another
Schedule attached to this Agreement which are binding on SWV
or any of its property and pursuant to which SWV derives a
benefit or incurs a detriment having a value of $15,000 or
more. Except as set forth on Schedule 3.4, neither SWV nor
any person or party to any of the Material Documents or bound
thereby is in material default under any of the Material
Documents, and, to the knowledge of SWV, no act or event has
occurred which with notice or lapse of time, or both, would
constitute such a default. SWV is not a party to, and none of
SWV's properties are bound by, any agreement or instrument
which is material to the continued conduct of business
operations of SWV, as now being conducted, except as listed in
Schedule 3.4.
Section 3.5 Personal Property. All items of personal
property used in the business of SWV (the "Business") are
listed on Schedule 3.5. All such items are owned by SWV by
good and marketable title free of all liens and are now and at
closing will be in good condition, normal wear and tear
excepted, and except as noted on Schedule 3.5.
Section 3.6 Real Property. SWV has never owned, leased
or otherwise occupied, had an interest in or operated any real
property other than the real property (the "Real Property")
listed on Schedule 3.6 attached hereto and incorporated herein
by reference. SWV has good, marketable and insurable title to
the Real Property.
(a) In all material respects, except as set forth
in Schedule 3.6(a) attached hereto and incorporated herein,
the Real Property is, and at all times during operation of the
Business thereon has been, licensed, permitted and authorized
for the operation of such Business under all applicable
federal, state and local statutes, laws, rules, regulations,
orders, permits (including, without limitation, zoning
restrictions and land use requirements) and licenses and all
administrative and judicial judgments, rulings, decisions and
orders affecting or otherwise applicable to the protection of
the environment and the Real Property (collectively, the
"Applicable Laws").
(b) Except as set forth in Schedule 3.6(b) attached
hereto and incorporated herein by reference, all activities
and operations conducted on the Real Property, whether by SWV
or by third parties, are now being conducted and, to SWV's
knowledge, have always been conducted in compliance with all
Applicable Laws.
(c) SWV shall make available on BMI's reasonable
request all engineering, geologic, environmental and other
similar reports, documentation and maps relating to the Real
Property in the possession or control of the SWV or its
consultants or employed professional firms.
(d) Except as set forth in Schedule 3.6(d) attached
hereto and incorporated herein by reference, neither SWV nor
the Real Property now is or ever has been involved in any
litigation or administrative proceeding seeking to impose
fines, penalties or other liabilities or seeking injunctive
relief for violation of any Applicable Laws relating to the
environment.
(e) To SWV's knowledge, there have been no spills,
leaks, deposits or other releases into the environment or onto
or under the Real Property of any Hazardous Materials as
defined in any Applicable Law or other material environmental
conditions other than as disclosed on Schedule 3.6(e).
(f) No party, other than SWV, has a present or
future right to possession of all or any part of the Real
Property, except for any right defined in, under or by any of
the Permitted Exceptions.
(g) No portion of the Real Property contains any
areas that could be characterized as disturbed, undisturbed or
man-made wetlands or as "waters of the United States" pursuant
to any Applicable Laws or the procedural manuals of the
Environmental Protection Agency, U.S. Army Corps of Engineers
or the [Nevada Department of Environmental Protection] whether
such characterization reflects current conditions or historic
conditions which have been altered without the necessary
permits or approvals, except as listed on Schedule 3.6(g)
attached hereto and incorporated herein by reference.
(h) There are no mechanic's liens affecting the
Real Property and no work has been performed on the Real
Property within twelve (12) months of the date hereof for
which a mechanic's lien could be filed, except as set forth in
Schedule 3.6(h) attached hereto and incorporated herein by
reference.
(i) There are no levied or pending special
assessments affecting all or any part of the Real Property
owed to any governmental entity and none is threatened.
Section 3.7 Liabilities. SWV does not have any
liabilities, fixed or contingent, other than: (a) liabilities
fully reflected in the Most Recent Balance Sheet, except for
liabilities not required to be disclosed therein in accordance
with GAAP; and (b) accounts payable arising since the date of
the Most Recent Balance Sheet arising during the normal course
of business consistent with past custom and practice.
Section 3.8 Fiscal Condition of SWV. Since the date of
the Most Recent Balance Sheet, except as set forth in Schedule
3.8, there has not (except as otherwise specifically permitted
by this Agreement or as set forth in the Schedules to this
Agreement) been: (a) Any material adverse change in the
financial condition, business organization or personnel of SWV
or in the relationships of SWV with third parties; (b) Any
disposition by SWV of any of its capital stock or any grant of
any option or right to acquire any of its capital stock, or
any acquisition or retirement by SWV of any of its capital
stock or any declaration or payment of any dividend or other
distribution of its capital stock; (c) Any sale or other
disposition of any asset owned by any of SWV at the close of
business on the date of the Most Recent Balance Sheet, or
acquired by it since that date, other than in the ordinary
course of business consistent with past practice or in
accordance with the terms of this Agreement; (d) Except as
set forth in Section 3.8(d), any expenditure or commitment by
SWV for the acquisition of any single asset or any single
business; (e) Except as set forth in Section 3.8(e), any
material bonuses or increases in the compensation payable or
to become payable by SWV to any officer or key employee,
except in the ordinary course of business or as required by
law or pursuant to a contract which is listed on a Schedule to
this Agreement; (f) Except as set forth in Section 3.8(f),
any loans or advances to or by SWV other than renewals or
extensions of existing indebtedness and other than in the
ordinary course of business consistent with past practice; or
(h) Any change in accounting method or practice.
Section 3.9 Tax Returns. SWV has filed all Federal and
other tax returns for all periods on or before the due date of
such return (as may have been extended by any valid extension
of time) and has paid all taxes due for the periods covered by
the said returns. SWV has no liability for taxes incurred by
their operations prior to Closing, except for taxes for the
current fiscal year in an amount not exceeding the reserve
therefor on the Most Recent Balance Sheet. SWV is a
Subchapter C corporation under the Internal Revenue Service
Code. Cloetens warrants that it will pay with his own funds
any and all federal, state and local taxes due and payable by
SWV with respect to all periods prior to the Closing, to the
extent such taxes exceed the reserves for taxes established on
SWV's Most Recent Balance Sheet, including, without limiting
the generality of the foregoing, all federal, state and local
income, sales, use, payroll, franchise, excise and property
taxes. The reserves for all taxes reflected in the Most
Recent Balance Sheet, if any, are adequate to cover all taxes,
interest and penalties in connection therewith that may be
assessed with respect to the property and business operations
for the period(s) ending on the Closing Date and for all prior
periods. SWV has filed or timely extended the time for filing
and will file, in a timely manner, all requisite federal,
state, local and other tax returns due for all fiscal periods
ended on or before the date hereof and as of the Closing shall
have filed in a timely manner all such returns due for all
periods ended on or before the Closing Date. No federal,
state, local or other tax returns or reports filed by SWV
(whether filed prior to, on, or after the date hereof), will
result in any taxes, assessments, fees or other governmental
charges in excess of the amounts reserved for on the Most
Recent Balance Sheet. SWV has duly withheld and collected all
taxes which SWV is required to withhold or collect by law, has
paid over to the proper authorities all such amounts required
to be paid, and has in reserve all amounts so withheld or
collected which have not yet been required to be paid. No
taxing authority has asserted any deficiency for any prior tax
period of SWV, and to SWV's knowledge, there are no facts
which would constitute the basis for the assertion of such a
deficiency.
Section 3.10 Policies of Insurance. All insurance
policies, performance bonds, and letters of credit insuring
SWV or which SWV has had issued and which have not expired are
listed on Schedule 3.10 attached hereto. Schedule 3.10
includes the names and addresses of the insurers and sureties,
policy and bond numbers, types of coverage or bond, time
periods or projects covered and the names and addresses of all
known banks, beneficiaries, agents or agencies with respect to
each listed insurance policy, performance bond and letter of
credit. All current insurance policies, performance bonds and
letters of credits of SWV are in force and effect and the
premiums thereon are not delinquent. Except as set forth in
Schedule 3.10, SWV has not received any notification from any
insurance carrier denying or disputing any claim made by SWV
or denying or disputing any coverage for any such claim or
denying or disputing the amount of any claim. SWV has no
claim against any of its insurance carriers under any of
policies insuring it pending or anticipated and there has been
no occurrence of any kind which would give rise to any such
claim.
Section 3.11 Employees, Pensions, and ERISA.
(a) SWV does not have, nor has it ever had, any
employees.
(b) SWV does not have, nor has it ever had, any
employee benefit plans, funds or programs (within the meaning
of the Code or the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) which are currently maintained
and/or were established or sponsored by SWV (whether or not
they are now terminated) or to which SWV currently
contributes, or has an obligation to contribute in the future,
including, without limitation, employment agreements and any
other agreements containing "golden parachute" provisions
("Plans"), whether or not the Plans are or are intended to be
(i) covered or qualified under the Code, ERISA or any other
applicable law, (ii) written or oral, (iii) funded or
unfunded, or (iv) generally available to all employees of SWV.
Section 3.12 Legality of Operation. In regard to SWV:
(a) Except as disclosed in Schedule 3.12(a) to this
Agreement, and except as to Environmental Laws, as hereinafter
defined in Section 3.12(b) below, SWV is in substantial
compliance with all federal, state and local laws, rules and
regulations including, without limitation, the following laws:
land use or zoning laws; payroll, employment, labor,
interstate commerce, transportation or safety laws; or
federal, state or local "anti-trust" or "unfair competition"
or "racketeering" laws such as but not limited to the Sherman
Act, Clayton Act, Robinson Patman Act, Federal Trade
Commission Act, or Racketeer Influenced and Corrupt
Organization Act (collectively, "Law"). Except as disclosed
in Schedule 3.12(a), SWV is in substantial compliance with all
permits, franchises, licenses, and orders that have been
issued with respect to the Laws and are or may be applicable
to any of their property and operations, including, without
limitation, any order, decree or directive of any court or
federal, state, municipal, or other governmental department,
commission, board, bureau, agency or instrumentality wherever
located, federal, state and local permits, orders, franchises
and consents. Except as set forth on Schedule 3.12(a), with
respect to any Law there are no claims, actions, suits,
investigations or proceedings pending, or to SWV's knowledge,
threatened against or affecting SWV, at law or in equity, or
before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, wherever located, which would result in any
adverse change in the financial condition or business of SWV
or which would invalidate this Agreement or any action taken
in connection with this Agreement. Except as disclosed in
Schedule 3.12(a), SWV has received no notification of any past
or present failure by SWV to comply with any Law applicable to
it or its assets.
(b) Except as disclosed in Schedule 3.12(b) to this
Agreement, SWV is in compliance with all federal, state and
local laws, rules and regulations relating to environmental
issues of any kind ("Environmental Law"). Except as disclosed
in Schedule 3.12(b), with respect to any Environmental Law,
SWV is in compliance with all permits, licenses, and orders
related thereto or issued thereunder, as are or may be
applicable to the property and operations of SWV, including,
without limitation, any order, decree or directive of any
court or federal, state, municipal, or other governmental
department, commission, board, bureau, agency or
instrumentality wherever located. Except as set forth on
Schedule 3.12(b), there are no Environmental Law related
claims, actions, suits or proceedings pending or to SWV's
knowledge threatened against or affecting SWV, at law or in
equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, wherever located, which would result in an
adverse change in the financial condition or business of SWV
or which would invalidate this Agreement or any action taken
in connection with this Agreement.
(c) Except as set forth in Schedule 3.12(c), to
SWV's knowledge, no employee, officer, director, or
shareholder of SWV is under investigation by the Attorney
General of any state, by the District Attorney of any county
of any state, or by any United States Attorney or any other
governmental investigative agency for the violation of any
Laws, including, without limitation, the violation of any
anti-trust, racketeering, securities or unfair competition
Laws.
(d) All pending or to SWV's knowledge threatened
litigation and administrative or judicial proceedings
involving SWV, or its assets or liabilities, are set forth on
Schedule 3.12(d) attached, together with a description of each
such proceeding.
Section 3.13 Working Interest in the Montana Prospect.
Except as disclosed in Schedule 3.13 to this Agreement, the
Montana Prospect, a 320 acre oil lease in Crook County,
Wyoming (the "Montana Prospect"), in which SWV has a working
interest, is in compliance with all federal, state and local
laws, rules and regulations relating to environmental issues
of any kind ("Environmental Law"). Except as disclosed in
Schedule 3.13, with respect to any Environmental Law, the
Montana Prospect is in compliance with all permits, licenses,
and orders related thereto or issued thereunder, as are or may
be applicable to the property and operations of the Montana
Prospect, including, without limitation, any order, decree or
directive of any court or federal, state, municipal, or other
governmental department, commission, board, bureau, agency or
instrumentality wherever located. Except as set forth on
Schedule 3.12(b), there are no Environmental Law related
claims, actions, suits or proceedings pending or to SWV's
knowledge threatened against or affecting the Montana
Prospect, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, wherever located,
which would result in an adverse change in the financial
condition or business of the Montana Prospect.
Section 3.14 Corrupt Practices. SWV has not made,
offered or agreed to offer anything of value to any employees
of any customers of SWV (except in conformity with Law) for
the purpose of attracting business to SWV or any foreign or
domestic governmental official, political party or candidate
for government office or any of their respective employees or
representatives, nor has SWV otherwise taken any action which
would cause it to be in violation of the Foreign Corrupt
Practices Act of 1977, as amended.
Section 3.15 Legal Compliance. SWV has the right,
power, legal capacity and authority to enter into, and perform
each of its obligations under this Agreement, and, except as
set forth in Schedule 3.15, no approvals or consents of any
other persons, business or governmental units are necessary to
be obtained by SWV in connection with the transactions,
filings with or notices to, contemplated by this Agreement.
Except as disclosed in Schedule 3.15 to this Agreement, the
execution and performance of this Agreement will not result in
a material breach of or constitute a material default or
result in the loss of any material right or benefit under: (a)
Any charter, by-law, agreement or other document to which SWV
is a party or by which the SWV or any of its properties are
bound, including, without limitation, any agreement by or
between any shareholder of SWV; or (b) Any decree, order or
rule of any court or governmental authority which is binding
on SWV or on any property of SWV; or (c) Any permit,
certificate or license issued by any governmental authority
under which SWV operates or pursuant to which any of the
property of SWV is bound; or (d) Any agreement to which SWV
is bound, including, without limitation, bank loan documents,
agreements with customers or suppliers and leases for
equipment.
Section 3.16 Transaction Intermediaries. Except as
disclosed in Schedule 3.16, SWV has no agreement or
understanding with any agent, broker, financial advisor or
other person acting pursuant to the express authority of SWV
with respect to any commission or finder's fee in connection
with the transactions contemplated by this Agreement.
Section 3.17 Intellectual Property. To SWV's knowledge,
SWV has not infringed, and is not now infringing, on any trade
name, trademark, service mark or copyright belonging to any
person, firm or corporation ("Intellectual Property") and no
one has or is infringing any Intellectual Property right of
SWV. SWV owns or has legally licensed all computer software
used in connection with its business and has not infringed,
and is not now infringing, on the rights of any third parties
by its use of computer software.
Section 3.18 SEC Filings. SWV has delivered to BMI all
historical filings made by SWV on Forms 8-K, 10-KSB, 10-QSB
and Proxy Statements timely filed with the Securities and
Exchange Commission ("SEC") for fiscal years ending December
31, 1998 (the "Public Reports"). The Public Reports accurately
and completely describe, in all material respects, SWV's
financial status, business operations and prospects as of the
date of such filings and as of the date hereof, and do not
omit any material fact(s) necessary to make the information
contained in the filings not misleading.
Section 3.19 Issued Common Stock. The NGP Delaware
Stock to be issued pursuant to this Agreement has been duly
authorized and, when issued, will be validly issued, fully
paid and nonassessable.
Section 3.20 Disclosure. The representations and
warranties of SWV contained in this Agreement, or in any
Schedule or other document delivered by SWV pursuant hereto,
do not contain any untrue statement of a material fact, or
omit any statement of a material fact necessary to make the
statements contained not misleading. If, prior to Closing,
SWV becomes aware of any inaccuracy or misrepresentation or
omission in any of the Schedules, SWV shall immediately advise
BMI in writing of the inaccuracy, misrepresentation or
omission.
ARTICLE IV
Representations and Warranties of BMI
With knowledge that SWV is relying upon the
representations, warranties and covenants contained herein,
BMI represents and warrants to SWV and makes the following
covenants for SWV's benefit.
Section 4.1 Organization and Existence. BMI is a
corporation duly organized, validly existing and in good
standing under the laws of the British Virgin Islands and has
all requisite corporate power and authority to carry on its
business as now conducted. BMI has all requisite corporate
power and authority to consummate the transactions
contemplated by this Agreement.
Section 4.2 Authority Relative to this Agreement. The
execution, delivery and performance of this Agreement and the
Collateral Documents by BMI has been duly authorized and
approved by the Board of Directors of BMI. No further
corporate action is necessary on the part of BMI to consummate
this Agreement and the Collateral Documents in accordance with
their terms. BMI has full authority to enter into and perform
its obligations under this Agreement and the Collateral
Documents, and neither the execution, delivery nor performance
by BMI of this Agreement or the Collateral Documents will (i)
result in a violation or breach of any term or provision nor
constitute a default under the certificate of incorporation or
bylaws of BMI or under any contract or agreement to which BMI
is a party or by which it is bound, or violate any order,
writ, injunction or decree of any court, administrative agency
or governmental body, or (ii) result in a violation or breach
of any term or provision, or constitute a default or
accelerate the performance required, under any indenture,
mortgage, deed of trust or other contract or agreement to
which BMI is a party or by which it or its properties is
bound.
Section 4.3 NGP Assets. BMI and/or BAMI have all right
title and interest to the NGP Assets (attached hereto as
Schedule 1.3) free of any liens.
Section 4.4 Transaction Intermediaries. Except for
Section 5.1, BMI has no agreement or understanding with any
agent, broker, financial advisor or other person acting
pursuant to the express authority of BMI with respect to any
commission or finder's fee in connection with the transactions
contemplated by this Agreement.
ARTICLE V
Additional Agreements of the Parties
The parties hereto covenant and agree with the other, as
applicable, as follows:
Section 5.1 The Reorganization. Subject to SWV
Shareholder approval, SWV has agreed, prior to Closing, to:
(X) effect the disposition and/or distribution of all of its
non-cash assets, including, without limitation, any limited
partnership interest in a working interest in the Montana
Prospect (the "Working Interest") and to satisfy or otherwise
extinguish all liabilities (the "SWV Purge") and (Y) form NGP
Delaware and to merge (the "Delaware Merger") SWV into NGP
Delaware, with NGP Delaware as the survivor (The SWV Purge and
the Delaware Merger are referred to herein collectively as,
the "Reorganization").
(a) Terms of the SWV Purge. SWV may determine, in
its discretion, the nature of the transaction by which the SWV
Purge shall be accomplished, provided, that, the SWV Purge
must be completed prior to the Delaware Merger. It is
presently contemplated that SWV will effect the SWV Purge by
means of a "spin off" on a pro rata basis of the stock of a
newly formed subsidiary to which SWV shall have previously
contributed all of its assets and liabilities. To the extent
that the transactions contemplated by the SWV Purge give rise
to any federal and/or state income tax liability, SWV agrees
that it shall ensure that prior to the closing of the NGP
Contribution such liabilities are paid in full or that the
cash necessary to satisfy such tax liabilities is on hand in
NGP Delaware.
(b) Terms of the Delaware Merger. The terms of the
Delaware Domicile Merger shall provide that, upon the
effectiveness, each shareholder of SWV shall receive one (1)
share of the common stock of NGP Delaware for every fifteen
(15) shares of the common stock of SWV. The number of
authorized shares of NGP Delaware shall be 50,000,000. Except
for the conversion ratio above, the terms of the NGP Delaware
common stock shall be identical to the terms of the common
stock of SWV. As a result of the Delaware Merger, prior to the
NGP Contribution, the former shareholders of SWV will hold
227,733 shares of stock of NGP Delaware. On the formation of
NGP Delaware, SWV shall appoint the persons designated by BMI
as the Directors of NGP Delaware.
(c) Finder's Shares and Options. SWV and BMI agree
that after the Delaware Merger and prior to the Closing of the
NGP Contribution, NGP Delaware will issue 20,000 shares of its
common stock to E. T. International Limited (P.O. Box 235, 14
New Street, St. Peter Port Guernsey, UK GY14LE) as a finder's
fee. In addition, NGP Delaware will enter into Consulting
Agreements with Cloetens or a company designated by Cloetens
that provide for grants, under a NGP Delaware Stock Option
Plan of an aggregate of 50,000 five (5) year options (the
"Options") (10,000 at $7.50, $8.00, $8.50, $9.00 and $9.50,
respectively), to purchase publicly registered shares of
common stock of NGP Delaware.
Section 5.2 Proxy Statement. SWV has agreed to prepare
and file a Proxy Statement (the "Proxy Statement") pursuant to
Regulation 14A, giving notice of a special meeting of
shareholders to the record owners of SWV. The Proxy Statement
shall be filed with the Securities and Exchange Commission
(the "SEC") no later than thirty (30) days after the date of
this Agreement. In accordance with SEC rules, the Proxy
Statement will be sent to the record shareholders of SWV
giving them notice of the time and place of a special meeting
of the shareholders on a date no more than twenty (20) after
the date of mailing of the Proxy Statement. The Proxy
Statement shall seek proxies for the approval of the following
actions:
(i) The Reorganization.
(ii) The SWV Purge.
(iii) The ratification and approval of the NGP
Contribution, including without limitation, the issuance of
common stock to BMI.
(iv) Any other matter that may properly come before
the meeting of the shareholders.
Section 5.3 Access to Records. SWV will give to BMI and
its representatives, from the date hereof until the Closing
Date, full access during normal business hours, upon
reasonable notice, to all of the properties, books, contracts,
documents and records of SWV, and will make available to BMI
and its representatives all additional financial statements of
and all information with respect to the business and affairs
of SWV that BMI may reasonably request.
Section 5.4 Continuation of Insurance. SWV will keep in
existence all policies of insurance insuring SWV against
liability and property damage, fire and other casualty through
the Closing Date, consistent with the policies currently in
effect.
Section 5.5 Standstill Agreement. Until the Closing
Date, unless this Agreement is earlier terminated pursuant to
the provisions hereof, SWV will not, directly or indirectly,
solicit offers for the shares or the assets of SWV or for a
merger or consolidation involving SWV, or respond to inquiries
from, share information with, negotiate with or in any way
facilitate inquiries or offers from, third parties who express
or who have heretofore expressed an interest in acquiring SWV
by merger, consolidation or other combination or acquiring any
of SWV's assets.
Section 5.6 Payment of Expenses. Each party will pay
its own expenses incurred in conjunction with this Agreement,
the Collateral Documents and the transactions contemplated
thereby, including all fees and expenses of counsel and
accountants and any broker or finder commission, whether or
not such transaction is completed. It is acknowledged by the
parties, that BMI will bear the cost of the preparation of the
Proxy Statement by its attorneys and that SWV shall bear the
cost of its attorney's review of the Proxy Statement.
Section 5.7 Vote by Cloetens; Board Recommendation.
Cloetens hereby agrees that he will vote all of his shares of
SWV common stock in favor of all the actions to be taken
hereunder that require SWV shareholder approval and that he
will execute any agreement, proxy or other document as may be
reasonably required by BMI to ensure his vote. Further,
Cloetens agrees that a statement to the effect that he will
vote in favor of the actions will be included in the Proxy
Statement. The Board of Directors of SWV agree that it will
recommend the approval of the Reorganization and the NGP
Contribution to the shareholders of SWV.
Section 5.9 Consents. SWV and BMI shall cooperate with
each other and use their reasonable best efforts to obtain all
approvals, authorizations and consents required to be obtained
to consummate the transaction set forth in this Agreement,
including, the approval of every regulatory agency of federal,
state, or local government that may be required in the opinion
of either BMI or SWV.
ARTICLE VI
Conditions of BMI
The obligations of BMI to effect the transactions
contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of each of the
following items that are conditions to the Closing:
Section 6.1 Compliance by SWV and Cloetens. SWV and
Cloetens shall have performed and complied with all material
obligations and conditions required by this Agreement to be
performed or complied with by SWV and Cloetens at or prior to
the Closing Date, including, without limitation, Sections 5.1
and 5.2. All representations and warranties of SWV and
Cloetens contained in this Agreement shall be true and correct
in all material respects at and as of the Closing Date, with
the same force and effect as though made at and as of the
Closing Date, except for changes expressly permitted by this
Agreement, and BMI shall have received a Certificate duly
executed by the President of SWV representing and warranting
the foregoing.
Section 6.2 Litigation Affecting This Transaction.
There shall be no actual or threatened action by or before any
court which seeks to restrain, prohibit or invalidate the
transactions contemplated by this Agreement or which might
affect the right of BMI to own the NGP Delaware Stock or
control SWV or the business SWV operates, which, as a result
of the transactions contemplated by this Agreement, might
affect such right as to BMI or any affiliate thereof
subsequent to the Closing Date and which, in the judgment of
the Board of Directors of BMI, made in good faith and based
upon advice of its counsel, makes it inadvisable to proceed
with the transactions contemplated by this Agreement.
Section 6.3 Fiscal Condition of Business. There shall
have been no material adverse change in the results of
operations, financial condition or business of SWV.
Section 6.4 Opinions of Counsel. SWV shall have
delivered to BMI the opinion of counsel, dated the Closing
Date, in the form annexed hereto as Schedule 1.6(c).
Section 6.5 Consents. All approvals, authorizations and
consents required to be obtained shall have been obtained.
BMI shall have been furnished with appropriate evidence,
reasonably satisfactory to BMI and its counsel, of the
granting of such approvals, authorizations and consents.
Section 6.6 Phase 1 Environmental Survey. BMI shall
have ordered, at its sole cost and expense, and received a
Phase 1 Environmental survey of the Montana Prospect that is
satisfactory to BMI in its sole discretion.
ARTICLE VII
Conditions of SWV
The obligations of SWV to effect the transaction
contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of each of the
following conditions:
Section 7.1 Compliance by BMI. BMI shall have performed
and complied with all material obligations and conditions
required by this Agreement to be performed or complied with by
it at or prior to the Closing Date. All representations and
warranties of BMI contained in this Agreement shall be true
and correct in all material respects at and as of the Closing
Date, with the same force and effect as though made at and as
of the Closing Date, except for changes expressly permitted by
this Agreement.
Section 7.3 Material Adverse Change. There shall not
have been, and on the Closing Date shall not be in existence,
any event, condition or state of facts which could reasonably
be expected to result in, any material adverse change in the
condition (financial or otherwise), assets, real property,
personal property, results of operations, business or
prospects of BMI and its subsidiaries taken as a whole.
Section 7.4 Opinion of Counsel. BMI shall have
delivered to SWV the opinion of counsel to BMI, dated the
Closing Date, in the form annexed hereto as Schedule 1.7(b).
Section 7.5 Consents. All approvals, authorizations and
consents required to be obtained shall have been obtained.
SWV shall have been furnished with appropriate evidence,
reasonably satisfactory to SWV and its counsel, of the
granting of such approvals, authorizations and consents.
ARTICLE VIII
Indemnification
Section 8.1 Indemnification by Cloetens. Subject to
Section 8.8 below, Cloetens agrees that he will indemnify,
defend, protect and hold harmless BMI or NGP Delaware and
their officers, shareholders, directors, divisions,
subdivisions, affiliates, subsidiaries, parents, agents,
employees, legal representatives, successors and assigns from
and against all claims, damages, actions, suits, proceedings,
demands, assessments, adjustments, penalties, costs and
expenses whatsoever (including specifically, but without
limitation, reasonable attorneys' fees and expenses of
investigation) whether equitable or legal, matured or
contingent, known or unknown to SWV and/or Cloetens, foreseen
or unforeseen, ordinary or extraordinary, patent or latent,
arising out of occurrences prior to the Closing of this
Agreement, from: (a) any breach of, misrepresentation in,
untruth in or inaccuracy in the representations and warranties
by the SWV and/or Cloetens, set forth in this Agreement or in
the Schedules attached to this Agreement or in the Collateral
Documents; (b) nonfulfillment or nonperformance of any
agreement, covenant or condition on the part of SWV or
Cloetens made in this Agreement and to be performed by SWV or
Cloetens before the Closing Date, provided, however, that such
nonfulfillment or nonperformance is within the control of SWV
and/or Cloetens; (c) violation of the requirements of any
governmental authority relating to the reporting and payment
of federal, state, local or other income, sales, use,
franchise, excise or property tax liabilities of SWV arising
or accrued prior to the Closing Date; (d) any violation of any
federal, state or local "anti-trust" or "racketeering" or
"unfair competition law", including, without limitation, the
Sherman Act, Clayton Act, Robinson Patman Act, Federal Trade
Commission Act, or Racketeer Influenced and Corrupt
Organization Act; and (e) any claim by a third party that, if
true, would mean that a condition for indemnification set
forth in subsections (a), (b), (c) or (d) of this Section 8.1
of this Agreement has occurred.
Section 8.2 Indemnification by BMI. BMI agrees that it
will indemnify, defend, protect and hold harmless SWV and/or
Cloetens and their agents, employees, heirs, legal
representatives, successors and assigns, as applicable, from
and against all claims, damages, actions, suits, proceedings,
demands, assessments, adjustments, penalties, costs and
expenses whatsoever (including specifically, but without
limitation, reasonable attorneys' fees and expenses of
investigation) incurred by them, as a result of or incident
to: (a) any breach of, misrepresentation in, untruth in or
inaccuracy in the representations and warranties of BMI set
forth in this Agreement or in the Schedule attached to this
Agreement or in the Collateral Documents; (b) nonfulfillment
or nonperformance of any agreement, covenant or condition on
the part of BMI made in this Agreement and to be performed by
BMI before or after the Closing Date; (c) any claim by a third
party that, if true, would mean that a condition for
indemnification set forth in subsections (a), (b), or (c) of
this Section 8.2 has occurred.
Section 8.3 Procedure for Indemnification with Respect
to Third Party Claims.
(a) If any third party shall notify a party to this
Agreement (the "Indemnified Party") with respect to any matter
(a "Third Party Claim") that may give rise to a claim for
indemnification against any other party to this Agreement (the
"Indemnifying Party") under this Article VIII, then the
Indemnified Party shall promptly notify each Indemnifying
Party thereof in writing; provided, however, that no delay on
the part of the Indemnified Party in notifying any
Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the
extent) the Indemnifying Party is thereby prejudiced. Such
notice shall state the amount of the claim and the relevant
details thereof.
(b) Any Indemnifying Party will have the right to
defend the Indemnified Party against the Third Party Claim
with counsel of its choice reasonably satisfactory to the
Indemnified Party so long as (i) the Indemnifying Party
notifies the Indemnified Party in writing within ten days
after the Indemnified Party has given notice of the Third
Party Claim that the Indemnifying Party will indemnify the
Indemnified Party pursuant to the provisions of this Article
VIII, as applicable, from and against the entirety of any
adverse consequences (which will include, without limitation,
all losses, claims, liens, and reasonable attorneys' fees and
related expenses) the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused
by the Third Party Claim, (ii) the Indemnifying Party provides
the Indemnified Party with evidence reasonably acceptable to
the Indemnified Party that the Indemnifying Party will have
the financial resources to defend against the Third Party
Claim and fulfill its indemnification obligations hereunder,
(iii) the Third Party Claim involves only monetary damages and
does not seek an injunction or equitable relief, (iv)
settlement of, or adverse judgment with respect to the Third
Party Claim is not, in the good faith judgment of the
Indemnified Party, likely to establish a precedential custom
or practice adverse to the continuing business interests of
the Indemnified Party, and (v) the Indemnifying Party conducts
the defense of the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with
Section 8.3(b) above, (i) the Indemnified Party may retain
separate co-counsel at its sole cost and expense and
participate in (but not control) the defense of the Third
Party Claim, (ii) the Indemnified Party will not consent to
the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (which will not be
unreasonably withheld), and (iii) the Indemnifying Party will
not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the
prior written consent of the Indemnified Party (which will not
be unreasonably withheld). In the case of (c)(ii) or (c)(iii)
above, any such consent to judgment or settlement shall
include, as an unconditional term thereof, the release of the
Indemnifying Party from all liability in connection therewith.
(d) If any condition set forth in Section 8.3(b)
above is or becomes unsatisfied, (i) the Indemnified Party may
defend against, and consent to the entry of any judgment or
enter into any settlement with respect to, the Third Party
Claim and any matter it may deem appropriate and the
Indemnified Party need not consult with, or obtain any consent
from, any Indemnifying Party in connection therewith, (ii) the
Indemnifying Party will reimburse the Indemnified Party
promptly and periodically for the cost of defending against
the Third Party Claim (including attorneys' fees and
expenses), and (iii) the Indemnifying Party will remain
responsible for any adverse consequences the Indemnified Party
may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim to the fullest
extent provided in this Article IX.
Section 8.4 Procedure for Non-Third Party Claims. If
BMI, NGP Delaware, SWV or Cloetens wishes to make a claim for
indemnity under Section 8.1 or Section 8.2, as applicable, and
the claim does not arise out of a third party notification
which makes the provisions of Section 8.3 applicable, the
party desiring indemnification ("Indemnified Party") shall
deliver to the party from which indemnification is sought
("Indemnifying Party") a written demand for indemnification
("Indemnification Demand"). The Indemnification Demand shall
state: (a) the amount of losses, damages or expenses to which
the Indemnified Party has incurred or has suffered or is
expected to incur or suffer to which the Indemnified Party is
entitled to indemnification pursuant to Section 8.1 or Section
8.2, as applicable; (b) the nature of the event or occurrence
which entitles the Indemnified Party to receive payment under
Section 8.1 or Section 8.2, as applicable. If the
Indemnifying Party wishes to object to an Indemnification
Demand, the Indemnifying Party must send written notice to the
Indemnified Party stating the objections and the grounds for
the objections ("Indemnification Objection"). If no
Indemnification Objection is sent within thirty (30) days
after the Indemnification Demand is sent, the Indemnifying
Party shall be deemed to have acknowledged the correctness of
the claim or claims specified in the Indemnification Demand
and shall pay the full amount claimed in the Indemnification
Demand within forty-five (45) days of the day the
Indemnification Demand is dated. If for any reason the
Indemnifying Party does not pay the amounts claimed in the
Indemnification Demand, within thirty days of the
Indemnification Demand's date, the Indemnified Party may
institute legal proceedings to enforce payment of the
indemnification claim contained in the Indemnification Demand
and any other claim for indemnification that the Indemnified
Party may have.
Section 8.5 Survival of Claim. All of the respective
representations, warranties and obligations of the parties to
this Agreement shall survive consummation of the transactions
contemplated by this Agreement as follows: (i) all
representations and warranties pertaining to federal, state
and local taxes, including, without limitation, the
representations and warranties set forth in Section 3.9 shall
survive until the expiration of the applicable statute of
limitations on any claim which can be brought against the
Companies by tax authorities or governmental agencies or
governmental units and (ii) all representations and warranties
other than set forth in (i) above shall survive twelve (12)
months from the Closing Date. Notwithstanding the prior
sentence which provides that the representations and
warranties expire after certain stated periods of time, if
within the stated period of time, a notice of a claim for
indemnification or Indemnification Demand is given, or a suit
or action based upon representation or warranty is commenced,
the Indemnified Party shall not be precluded from pursuing
such claim or action, or from recovering from the Indemnifying
Party (whether through the courts or otherwise) on the claim
or action, by reason of the expiration of the representation
or warranty.
Section 8.6 Limitation of Liability. The Parties agree
that they shall not bring a claim for indemnification under
this Article VIII unless and until all claims a party has
exceed $50,000, and that the first $50,000 of damages are not
recoverable.
Section 8.7 Prompt Payment. In the event that any party
is required to make any payment under this Article VIII, such
party shall promptly pay the Indemnifying Party the amount so
determined. If there should be a dispute as to the amount or
manner of determination of any indemnity obligation owed under
this Article VIII, the Indemnifying Party shall, nevertheless,
pay when due such portion, if any, of the obligation as shall
not be subject to dispute. The portion in dispute shall be
paid upon a final and non-appealable resolution of such
dispute. Upon the payment in full of any claim, the
Indemnifying Party shall be subrogated to the rights of the
Indemnified Party against any person with respect to the
subject matter of such claim.
Section 8.8 Condition to Cloetens' Indemnification
Obligation. Notwithstanding any other provision of this
Article VIII to the contrary, BMI agrees that it will not
assert, for itself or on behalf of NGP Delaware, any right to
indemnification under Section 8.1 that arises from SWV's
ownership and participation in the Working Interest for the
period ending on the Closing Date (a "Working Interest Claim")
against Cloetens, unless and to the extent BMI and/or NGP
Delaware is not indemnified for such Working Interest Claim by
the new owner of the Working Interest (the "New Owner").
Cloetens acknowledges that in structuring the SWV Purge, the
New Owner must be obligated to assume Cloetens'
indemnification obligation for any Working Interest Claim on
terms substantially the same as provided in this Article VIII.
ARTICLE IX
Other Provisions
Section 9.1 Nondisclosure by SWV and Cloetens. SWV and
Cloetens recognize and acknowledge that they have in the past,
currently has, and in the future will have certain
confidential information of BMI. SWV and Cloetens agree that
for a period of ten (10) years from the Closing Date they will
not disclose such confidential information to any person,
firm, corporation, association or other entity for any purpose
or reason whatsoever, except to authorized representatives of
BMI, unless (i) such information becomes known to the public
generally through no fault of SWV or Cloetens or (ii) SWV is
compelled to disclose such information by a governmental
entity or pursuant to a court proceeding. In the event of a
breach or threatened breach by SWV or Cloetens of the
provisions of this Section, BMI shall be entitled to an
injunction restraining SWV or Cloetens from disclosing, in
whole or in part, such confidential information. Nothing
herein shall be construed as prohibiting BMI from pursuing any
other available remedy for such breach or threatened breach,
including, without limitation, the recovery of damages.
Section 9.2 Assignment; Binding Effect; Amendment. This
Agreement and the rights of the parties hereunder may be
assigned with the prior consent of the other parties and shall
be binding upon and shall inure to the benefit of the parties
hereto, and the successors and/or assigns of BMI , SWV and
Cloetens. This Agreement, upon execution and delivery,
constitutes a valid and binding agreement of the parties
hereto enforceable in accordance with its terms and may be
modified or amended only by a written instrument executed by
all parties hereto.
Section 9.3 Entire Agreement. This Agreement, is the
final, complete and exclusive statement and expression of the
agreement among the parties hereto with relation to the
subject matter of this Agreement, it being understood that
there are no oral representations, understandings or
agreements covering the same subject matter as the Agreement.
The Agreement supersedes, and cannot be varied, contradicted
or supplemented by evidence of any prior to contemporaneous
discussions, correspondence, or oral or written agreements of
any kind. The parties to this Agreement have relied on their
own advisors for all legal, accounting, tax or other advice
whatsoever with respect to the Agreement and the transactions
contemplated hereby.
Section 9.4 Counterparts. This Agreement may be
executed simultaneously in two or more counterparts, each of
which shall be deemed an original and all of which together
shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signatures.
Section 9.5 Notices. All notices or other
communications required or permitted hereunder shall be in
writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage
prepaid, registered or certified with return receipt
requested, by overnight courier or by delivering the same in
person to such party.
(a) If to BMI, addressed to it at: Rue de la
Rotisserie 29 1204 Geneva Switzerland Attention: Jacques Mot
with a copy to: Thomas R Marshall, Esq. Schnader Harrison
Segal & Lewis LLP 330 Madison Avenue New York, New York 10017
(b) If to SWV or Cloetens, addressed to it or him
at: 455 East 400 South, Suite 100 Salt Lake City, UT 84111
Attention: President with a copy to: Leonard W. Burningham,
Esq. 455 East 500 South, Suite 205 Salt Lake City, UT 84111
Notice shall be deemed given and effective the day personally
delivered, the day after being sent by overnight courier and
three business days after the deposit in the U.S. mail of a
writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually
received, if earlier. Any party may change the address for
notice by notifying the other parties of such change in
accordance with this Section 9.5.
Section 9.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws
of the State of Nevada, without giving effect to any choice or
conflict of law provision or rule (whether of the State of
Nevada or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the
State of Nevada.
Section 9.7 No Waiver. No delay of or omission in the
exercise of any right, power or remedy accruing to any party
as a result of any breach or default by any other party under
this Agreement shall impair any such right, power or remedy,
nor shall it be construed as a waiver of or acquiescence in
any such breach or default, or of or in any similar breach or
default occurring later; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach of
default occurring before or after that waiver.
Section 9.8 Time of the Essence. Time is of the essence
of this Agreement.
Section 9.9 Captions. The headings of this Agreement
are inserted for convenience only, shall not constitute a part
of this Agreement or be used to construe or interpret any
provision hereof.
Section 9.10 Severability. In case any provision of
this Agreement shall be invalid, illegal or unenforceable, it
shall, to the extent possible, be modified in such manner as
to be valid, legal and enforceable but so as most nearly to
retain the intent of the parties. If such modification is not
possible, such provision shall be severed from this Agreement.
In either case the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
Section 9.11 Construction. The parties have
participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue
of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local or foreign statute
shall be deemed to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
The word "including" means included, without limitation.
Section 9.12 Extension or Waiver of Performance. Either
BMI or SWV may extend the time for or waive the performance of
any of the obligations of the other, waive any inaccuracies in
the representations or warranties by the other, or waive
compliance by the other with any of the covenants or
conditions contained in this Agreement, provided that any such
extension or waiver shall be in writing and signed by SWV and
BMI.
Section 9.13 Liabilities of Third Parties. Nothing in
this Agreement, whether expressed or implied, is intended to
confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and
their respective officers, shareholders, directors,
affiliates, subsidiaries, parents, agents, employees, legal
representatives, successors and assigns, nor is anything in
this Agreement intended to relieve or discharge the obligation
or liability of any third persons to any party to this
Agreement, nor shall any provisions give any third person any
rights of subrogation or action over or against any party to
this Agreement.
Section 9.14 Publicity. Prior to Closing, except as may
be required by law, no party to this Agreement shall issue any
press release or otherwise make any statement with respect to
the transactions contemplated by this Agreement without the
prior consent of the other party, which shall not be
unreasonably withheld.
Section 9.15 Arbitration.
(a) Each and every controversy or claim arising out
of or relating to this Agreement shall be settled by
arbitration in the State of Nevada, in accordance with the
commercial rules (the "Rules") of the American Arbitration
Association then obtaining, and judgment upon the award
rendered in such arbitration shall be final and binding upon
the parties and may be confirmed in any court having
jurisdiction thereof. Notwithstanding the foregoing, this
Agreement to arbitrate shall not bar any party from seeking
temporary or provisional remedies in any Court having
jurisdiction. Notice of the demand for arbitration shall be
filed in writing with the other party to this Agreement, which
such demand shall set forth in the same degree of
particularity as required for complaints under the Federal
Rules of Civil Procedure the claims to be submitted to
arbitration. Additionally, the demand for arbitration shall
be stated with reasonable particularity with respect to such
demand with documents attached as appropriate. In no event
shall the demand for arbitration be made after the date when
institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by
the applicable statutes of limitations.
(b) The arbitrators shall have the authority and
jurisdiction to determine their own jurisdiction and enter any
preliminary awards that would aid and assist the conduct of
the arbitration or preserve the parties' rights with respect
to the arbitration as the arbitrators shall deem appropriate
in their discretion. The award of the arbitrators shall be in
writing and it shall specify in detail the issues submitted to
arbitration and the award of the arbitrators with respect to
each of the issues so submitted.
(c) Within sixty (60) days after the commencement
of any arbitration proceeding under this Agreement, each party
shall file with the arbitrators its contemplated discovery
plan outlining the desired documents to be produced, the
depositions to be take, if ordered by the arbitrators in
accordance with the Rules, and any other discovery action
sought in the arbitration proceeding. After a preliminary
hearing, the arbitrators shall fix the scope and content of
each party's discovery plan as the arbitrators deem
appropriate. The arbitrators shall have the authority to
modify, amend or change the discovery plans of the parties
upon application by either party, if good cause appears for
doing so.
(d) The award pursuant to such arbitration will be
final, binding and conclusive.
(e) Counsel to SWV and BMI in connection with the
negotiation of and consummation of the transactions under this
Agreement shall be entitled to represent their respective
party in any and all proceedings under this Section or in any
other proceeding (collectively, "Proceedings"). SWV and BMI,
respectively, waive the right and agree they shall not seek to
disqualify any such counsel in any such Proceedings for any
reason, including but not limited to the fact that such
counsel or any member thereof may be a witness in any such
Proceedings or possess or have learned of information of a
confidential or financial nature of the party whose interests
are adverse to the party represented by such counsel in any
such Proceedings.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date first above written.
Bachkine & Meyer Industries, S.A.
By: /s/Jacques Mot
----------------------------
Jacques Mot
President
SW Ventures, Inc.
By: /s/ Guido Cloetens
----------------------------
Guido Cloetens
President
Guido Cloetens
/s/ Guido Cloetens
-----------------------------
<PAGE>
Exhibit B
Joint Filing Agreement
The undersigned acknowledge and agree that the foregoing
statement on Schedule 13D is filed on behalf of each of the
undersigned and that all subsequent amendments to this
statement shall be filed on behalf of each of the undersigned
without the necessity of filing additional joint filing
agreements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for
the completeness and accuracy of the information concerning it
contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning the
others, except to the extent that it knows or has reason to
believe that such information is inaccurate.
Dated July 31, 1999 BACHKINE & MEYER INDUSTRIES, S.A.
By: /s/ JACQUES MOT
----------------------------
Jacques Mot
President
/s/ JACQUES MOT
---------------------------------
Jacques Mot
