EXHIBIT 1
STOCK PURCHASE AND
ASSET ACQUISITION AGREEMENT
This Stock Purchase and Asset Acquisition Agreement (the "Agreement") is
entered into as of this 19th day of August 1999, by and among Silverthorne
Production Company, a Colorado corporation ("Silverthorne"), Inter-American
Telecommunications Holding Corporation, a Delaware corporation ("ITHC"), and
Xxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxxx, and Xxxxxx X. Xxxxxxx,
C/F X.X. Xxxxxxx (the "Selling Shareholders").
RECITALS
WHEREAS, Silverthorne is a publicly-traded company which has evaluated and
wishes to acquire all of the assets owned by ITHC in order to maximize
Silverthorne's business development for the benefit of Silverthorne and its
shareholders;
WHEREAS, ITHC is a privately held marketing service provider of long
distance communications services which desires to enter into a transaction in
which all of its assets would be transferred to Silverthorne and would result in
ITHC ultimately holding approximately 84.59% of the shares of Silverthorne
outstanding;
WHEREAS, Selling Shareholders desire to sell an aggregate of 12,602,431
shares of Silverthorne common stock held by them to ITHC;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations set forth below and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
as follows:
ARTICLE 1
TRANSFER OF SECURITIES AND ASSETS
1.1 Transfer of Shares by Selling Shareholders. Subject to the terms and
conditions of this Agreement, Selling Shareholders agree to sell and ITHC agrees
to purchase an aggregate of 12,602,431 shares of Silverthorne common stock in
exchange for $190,000 in cash and 300 shares of ITHC's common stock. The number
of shares being sold by each Selling Shareholder is set forth in the signature
block to this Agreement. This sale shall occur at the First Closing, as
described herein.
1.2 Issuance of Shares. Subject to the terms and conditions of this
Agreement, Silverthorne hereby agrees to issue to ITHC at the First Closing,
29,242,953 restricted shares of Common Stock of Silverthorne; provided, however,
if Silverthorne has not been able to cancel the 75,000 shares held in the name
of Xxxxx X. Xxxxxxxx by the First Closing, the number issued to ITHC will be
reduced by 75,000, and Silverthorne agrees to use its best efforts to have the
75,000 shares canceled as soon as possible at which time the remaining 75,00
shares will be issued to ITHC. After the First Closing, Silverthorne shall call
a meeting of its shareholders for the purposes described in this Agreement
including the consideration of a 1 for 4 reverse split of the outstanding shares
of Silverthorne Common Stock. After the effective date of such reverse stock
split, a Second Closing shall be held at which an additional 4,949,611
post-split shares of Common Stock of Silverthorne shall be issued to ITHC as
final payment for the assets purchased hereby. All of the shares of Silverthorne
Common Stock to be issued to ITHC shall be fully restricted under Rule 144 but
shall be free and clear of any and all encumbrances.
1.3 Transfer of Assets. In exchange for the shares of Silverthorne Common
Stock to be issued to ITHC, ITHC hereby agrees to transfer and assign to
Silverthorne, at the First Closing, fully and absolutely, all right, title and
interest of all of the assets of ITHC set forth on Schedule A which is attached
hereto and incorporated herein by reference, and ITHC agrees that Silverthorne
shall be the sole owner of such assets.
1.4 Exemption from Registration. The parties hereto intend that the Common
Stock to be issued by Silverthorne to ITHC shall be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Act"), pursuant to
Section 4(2) of the Act and the rules and regulations promulgated thereunder,
and the Common Stock to be transferred by Selling Shareholders to ITHC shall be
exempt from the registration requirements in reliance upon Section 4(1) of the
Act.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SILVERTHORNE
Except as disclosed in Schedule 2 which is attached hereto and incorporated
herein by reference, Silverthorne represents and warrants to ITHC that:
2.1 Organization. Silverthorne is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business.
2.2 Capitalization. The authorized capital stock of Silverthorne consists
of 50,000,000 shares of $.001 par value Common Stock of which 15,832,047 shares
of Common Stock are currently issued and outstanding, and 75,000 of these shares
are in the process of being cancelled. All of the issued and outstanding shares
of Common Stock are duly authorized, validly issued, fully paid and
nonassessable. There are no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
Silverthorne to issue or to transfer from treasury any additional shares of its
capital stock of any class.
2.3 Subsidiaries. Silverthorne does not presently have any subsidiaries or
own any interest in any other enterprise (whether or not such enterprise is a
corporation).
2.4 Directors and Officers. Schedule 2 contains the names and titles of all
directors and officers of Silverthorne as of the date of this Agreement.
2.5 Financial Statements. Silverthorne has delivered to ITHC its audited
balance sheet and statements of operations and cash flows as of and for the
period ended June 30, 1999 (the "Financial Statements"). The Financial
Statements are complete and correct in all material respects and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated. The Financial Statements
accurately set out and describe the financial condition and operating results of
Silverthorne as of the dates, and for the periods, indicated therein. As of the
First Closing, there shall be no more than $10,000 in liabilities.
2.6 Absence of Changes. Since June 30, 1999, except for changes in the
ordinary course of business which have not in the aggregate been materially
adverse, to the best of Silverthorne's knowledge, Silverthorne has not
experienced or suffered any material adverse change in its condition (financial
or otherwise), results of operations, properties, business or prospects or
waived or surrendered any claim or right of material value.
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2.7 Absence of Undisclosed Liabilities. To the best of Silverthorne's
knowledge, neither Silverthorne nor any of its assets are subject to any
liabilities or obligations of any nature, whether absolute, accrued, contingent
or otherwise and whether due or to become due, that are not reflected in the
Financial Statements.
2.8 Tax Returns. Within the times and in the manner prescribed by law,
Silverthorne has filed all federal, state and local tax returns required by law
and has paid all taxes, assessments and penalties due and payable.
2.9 Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, ITHC shall have the
opportunity to meet with Silverthorne's accountants and attorneys to discuss the
financial condition of Silverthorne. Silverthorne shall make available to ITHC
all books and records of Silverthorne.
2.10 Trade Names and Rights. Silverthorne does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks, copyrights,
copyright registrations or applications.
2.11 Compliance with Laws. To the best of Silverthorne's knowledge,
Silverthorne has complied with, and is not in violation of, applicable federal,
state or local statutes, laws and regulations (including, without limitation,
any applicable building, zoning, or other law, ordinance, or regulation)
affecting its properties or the operation of its business.
2.12 Litigation. Silverthorne is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the best knowledge of Silverthorne, threatened
against or affecting Silverthorne or its business, assets, or financial
condition. Silverthorne is not in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign court, department
agency, or instrumentality. Silverthorne is not engaged in any legal action to
recover moneys due to it.
2.13 No Pending Investigation. Silverthorne is not aware of any pending
investigations or legal proceedings by the SEC, any state securities regulatory
agency, or any other governmental agency regarding Silverthorne or any officers
or directors of Silverthorne or any shareholders or controlling persons of such
shareholders.
2.14 Authority. Silverthorne has full corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The Board of Directors of Silverthorne has taken all action
required to authorize the execution and delivery of this Agreement by or on
behalf of Silverthorne, the performance of the obligations of Silverthorne under
this Agreement and the consummation by Silverthorne of the transactions
contemplated under this Agreement. No other corporate proceedings on the part of
Silverthorne are necessary to authorize the execution and delivery of this
Agreement by Silverthorne in the performance of its obligations under this
Agreement. This Agreement is, and when executed and delivered by Silverthorne,
will be a valid and binding agreement of Silverthorne, enforceable against
Silverthorne in accordance with its terms, except as such enforceability may be
limited by general principles of equity, bankruptcy, insolvency, moratorium and
similar laws relating to creditors rights generally.
2.15 Ability to Carry Out Obligations. Neither the execution and delivery
of this Agreement, the performance by Silverthorne of its obligations under this
Agreement, nor the consummation of the transactions contemplated under this
Agreement will, to the best of Silverthorne's knowledge: (a) violate any
provision of Silverthorne's articles of incorporation or bylaws; (b) with or
without the giving of notice or the passage of time, or both, violate, or be in
conflict with, or constitute a default under, or cause or permit the termination
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or the acceleration of the maturity of, any debt, contract, agreement or
obligation of Silverthorne, or require the payment of any prepayment or other
penalties; (c) require notice to, or the consent of, any party to any agreement
or commitment, lease or license, to which Silverthorne is bound; (d) result in
the creation or imposition of any security interest, lien or other encumbrance
upon any property or assets of Silverthorne; or (e) violate any statute or law
or any judgment, decree, order, regulation or rule of any court or governmental
authority to which Silverthorne is bound or subject.
2.16 Validity of Silverthorne Shares. The shares of Silverthorne Common
Stock to be delivered pursuant to this Agreement, when issued in accordance with
the provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
2.17 Full Disclosure. None of the representations and warranties made by
Silverthorne herein, or in any exhibit, certificate or memorandum furnished or
to be furnished by Silverthorne, or on its behalf, contains or will contain any
untrue statement of material fact, or omit any material fact necessary in order
to make the statements made, in light of the circumstances under which they were
made, not misleading.
2.18 Assets. Silverthorne does not have any assets.
2.19 Material Contracts and Obligations. Silverthorne has no material
contracts to which it is a party or by which it is bound.
2.20 Consents and Approvals. No consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Silverthorne in connection with:
(a) the execution and delivery by Silverthorne of its obligations under this
Agreement; (b) the performance by Silverthorne of its obligations under this
Agreement; or (c) the consummation by Silverthorne of the transactions
contemplated by this Agreement.
2.21 Real Property. Silverthorne does not own, use or claim any interest in
any real property, including without limitation any license, leasehold or any
similar interest in real property.
2.22 Articles of Incorporation and Bylaws. The Articles of Incorporation of
Silverthorne and all amendments thereto to date, certified by the Secretary of
State of the State of Colorado, and the by-laws of Silverthorne, as amended to
date, certified by Silverthorne's Secretary or Assistant Secretary, (1) shall be
delivered to ITHC at the First Closing, (2) are true, complete and correct and
(3) have not been further amended subsequent to the date of delivery of such
documents. The minute book of Silverthorne (or a true and correct copy thereof,
certified by the Secretary or Assistant Secretary of Silverthorne) (1) shall be
delivered to legal counsel to ITHC at the First Closing and (2) correctly
reflects all actions taken and resolutions adopted by Silverthorne, the board of
directors and all committees of the board of directors of Silverthorne.
2.23 Termination of Xxxxxxxx.xxx Transaction. The transaction between
Silverthorne and Xxxxxxxx.xxx which was executed on March 11, 1999, was
terminated on March 30, 1999, and Silverthorne has no liabilities or obligations
with respect thereto.
2.24 SEC Filings. Silverthorne is current in its filings with the SEC
required under the Securities Exchange Act of 1934, as amended (the "SEC
Filings"). The SEC filings, as of their respective filing dates, complied in all
material respects with all applicable requirements of the Exchange Act and the
SEC Filings, as of their filing dates, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements and information therein, in light of
the circumstances under which they were made, not misleading.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ITHC
Except as disclosed in Schedule 3 which is incorporated herein by
reference, ITHC represents, warrants and covenants to the Silverthorne that:
3.1 Authority of ITHC. ITHC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. ITHC has
full corporate power and authority to enter into this Agreement, to consummate
these transactions and to comply with its terms, conditions and provisions. This
Agreement constitutes, and each other agreement and instrument to be executed
and delivered pursuant to the terms of this Agreement (collectively, the "ITHC
Transaction Documents") by ITHC will constitute, the legal, valid and binding
obligation of the ITHC enforceable in accordance with such ITHC Transaction
Document's terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general equitable principles. Neither the
execution and delivery of this Agreement or other ITHC Transaction Documents,
nor the consummation of the transactions contemplated by it or them will
conflict with or result in any violation of or constitute a default under any
term of the Articles of Incorporation or Bylaws of the ITHC or any agreement,
mortgage, debt instrument, indenture or other instrument, judgment, decree,
order, award, law or regulation by which ITHC is bound.
3.2 Consents. No consent, approval, authorization or other action by, or
filing or registration with, any federal, state or local governmental authority
or any other person or entity, is required in connection with the execution and
delivery by ITHC of this Agreement, the consummation by ITHC of the transactions
contemplated hereby or the performance of ITHC's obligations hereunder.
3.3 Investment Intent. ITHC is acquiring the shares of Silverthorne Common
Stock pursuant to this Agreement from Silverthorne and the Selling Shareholders
for investment purposes and not with a view to public distribution, provided
that such shares may be distributed by ITHC to its shareholders. ITHC
understands that the shares of Silverthorne Common Stock to be acquired
constitute "restricted securities" as that term is defined under Rule 144 under
the Securities Act of 1933, as amended.
3.4 Title to Assets. ITHC is the owner of its assets with the full right to
sell or dispose of such assets. Excepting only the lien of property taxes not
delinquent and the security interests disclosed in Schedule 3, ITHC has title to
the assets, free and clear of any interest to secure payment or performance of
an obligation, or which retains or reserves such an interest for such purpose.
3.5 Material Contracts. There are no contracts (including written
employment contracts), permits or agreements of any kind which materially affect
the assets other than those which have been disclosed in Schedule 3 attached
hereto; and ITHC will not enter into any new contracts or agreements which would
materially affect such asset without the prior written consent of Silverthorne.
3.6 Tax Returns. Within the times and in the manner prescribed by law, ITHC
has filed all federal, state and local tax returns required by law and has paid
all taxes, assessments and penalties due and payable.
3.7 Compliance with Laws. To the best of ITHC's knowledge, ITHC has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations (including, without limitation, any applicable
building, zoning, or other law, ordinance, or regulation) affecting its
properties or the operation of its business.
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3.8 Litigation. ITHC is not a party to any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of ITHC, threatened against or affecting ITHC
or its business, assets, or financial condition. ITHC is not in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality. ITHC is not engaged in
any legal action to recover monies due to it.
3.9 No Pending Investigation. ITHC is not aware of any pending
investigations or legal proceedings by the SEC, any state securities regulatory
agency, or any other governmental agency regarding ITHC or any officers or
directors of ITHC or any shareholders or controlling persons of such
shareholders.
3.10 Disclosures. No representation or warranty by ITHC in this Agreement
or any Schedule or Exhibit, or any statement, list or certificate furnished or
to be furnished by the ITHC pursuant to this Agreement, or in connection with
these transactions, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact required to be stated
herein or therein or necessary to make the statements contained herein or
therein not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
SELLING SHAREHOLDERS
The Selling Shareholders hold at least the number of shares set forth next
to their names on the signature page hereof, and the shares to be sold by the
Selling Shareholders hereunder are owned of record and beneficially by the
respective Selling Shareholders and are not subject to any claim, lien,
encumbrance or pledge. Each Selling Shareholder has authority to sell such
shares pursuant to this Agreement.
ARTICLE 5
COVENANTS
5.1 Investigative Rights. From the date of this Agreement until the First
Closing, each party shall provide to the other party, and such other party's
counsels, accountants, auditors, and other authorized representatives, full
access during normal business hours and upon reasonable advance written notice
to all of each party's properties, books, contracts, commitments, and records
for the purpose of examining the same. Each party shall furnish the other party
with all information concerning each party's affairs as the other party may
reasonably request. If the transaction contemplated hereby is not completed, all
documents received by each party and/or its attorneys and accountants, auditors
or other authorized representatives shall be returned to the other party who
provided same upon request. The parties hereto, their directors, employees,
agents and representatives shall not disclose any of the information described
above unless such information is already disclosed to the public, without the
prior written consent of the party to which the confidential information
pertains. Each party shall take such steps as are necessary to prevent
disclosure of such information to unauthorized third parties.
5.2 Conduct of Business. Prior to the First Closing, Silverthorne and ITHC
shall each conduct its business in the normal course, and shall not sell,
pledge, or assign any assets, without the prior written approval of the other
party, except in the regular course of business. Neither Silverthorne nor ITHC
shall amend its Articles of Incorporation or Bylaws, declare dividends, redeem
or sell stock or other securities, incur additional or newly-funded liabilities,
acquire or dispose of fixed assets, change employment terms, enter into any
material or long-term contract, guarantee obligations of any third party, settle
or discharge any balance sheet receivable for less than its stated amount, pay
more on any liability than its stated amount, or enter into any other
transaction other than in the regular course of business except as otherwise
contemplated herein. The parties do contemplate that ITHC may incur additional
debt prior to the date of the First Closing.
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5.3 Meeting of Silverthorne Shareholders. Following the First Closing,
Silverthorne shall, as soon as reasonably possible, call a meeting of the
Shareholders of Silverthorne for the purposes of (a) approving a 1 for 4 reverse
split of the outstanding Common Stock of Silverthorne; (b) a change of
Silverthorne's name to a name designated by ITHC; (c) approving an amendment to
the Articles of Incorporation of Silverthorne to authorize the issuance of
preferred stock in series in a number designated by ITHC; (d) electing a slate
of Directors designated by ITHC; (e) approving a stock option plan designated by
ITHC; and (f) approving any other amendments to the Articles of Incorporation
reasonably requested by ITHC.
ARTICLE 6
CONDITIONS PRECEDENT TO SILVERTHORNE'S PERFORMANCE
6.1 Conditions. The obligations of Silverthorne hereunder shall be subject
to the satisfaction, at or before the First Closing, of all the conditions set
forth in this Article 6. Silverthorne may waive any or all of these conditions
in whole or in part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Silverthorne of any other condition
of or any of Silverthorne's other rights or remedies, at law or in equity, if
ITHC shall be in default of any of their representations, warranties, or
covenants under this Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ITHC in this Agreement or in
any written statement that shall be delivered to Silverthorne by ITHC under this
Agreement shall be true and accurate on and as of the First Closing as though
made at that time.
6.3 Approval of Shareholders of ITHC. The shareholders of ITHC shall have
approved the transfer of all of the assets of ITHC in the manner prescribed by
the Delaware Business Corporation Act.
6.4 Performance. ITHC shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the First Closing.
6.5 Delivery of Assignment. ITHC shall have delivered an assignment of all
of its assets to Silverthorne.
6.6 Auditor's Letter. Prior to the First Closing, ITHC shall have obtained
a letter from its auditors that states that they will be able to complete an
audit of ITHC for its last two fiscal years within 75 days of the date of the
First Closing.
6.7 Absence of Litigation. No action, suit, or proceeding before any court
or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against ITHC on or before the First Closing.
ARTICLE 7
CONDITIONS PRECEDENT TO ITHC'S PERFORMANCE
7.1 Conditions. ITHC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article 7. ITHC may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by ITHC of any other condition of or any of ITHC's
rights or remedies, at law or in equity, if Silverthorne shall be in default of
any of its representations, warranties, or covenants under this Agreement.
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7.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Silverthorne in this Agreement
or in any written statement that shall be delivered to ITHC by Silverthorne
under this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
7.3 Performance. Silverthorne shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them, on or before the Closing Date.
7.4 Absence of Litigation. No action, suit or proceeding before any court
or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Silverthorne on or before the Closing Date.
7.5 Directors of Silverthorne. Effective on the First Closing, Xxxxxxxx X.
Xxxxxxx shall have submitted her resignation as a Director of Silverthorne, and
one person designated by ITHC shall have been elected as a Director effective on
the Closing of this transaction.
ARTICLE 8
CLOSING
8.1 First Closing. The First Closing of this transaction shall be held at
the offices of Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C., or such other place as shall
be mutually agreed upon, on August 23, 1999, or as soon thereafter as
practicable. At the First Closing:
(a) Selling Shareholders shall deliver to ITHC stock certificates
aggregating 12,602,431 shares of Common Stock of Silverthorne together with
duly executed stock powers with Medallion Guarantees.
(b) ITHC shall deliver to Selling Shareholders cashiers checks
totaling $190,000 payable to Selling Shareholders and stock certificates
representing an aggregate of 300 shares of ITHC common stock.
(c) Silverthorne shall deliver to ITHC a stock certificate
representing 29,242,953 shares of Silverthorne restricted Common Stock
registered in the name of ITHC; or this number may be reduced by 75,000
pursuant to the provisions of Section 1.2 above.
(d) ITHC shall deliver to Silverthorne an assignment of all of its
assets in a form or forms approved by counsel for Silverthorne.
(e) Silverthorne shall deliver a signed Consent and/or Minutes of the
Directors approving this transaction.
(f) ITHC shall deliver a signed Consent and/or Minutes of the
Directors and Shareholders of ITHC approving this Agreement and each matter
to be approved by the Directors and Shareholders of ITHC.
(g) Silverthorne shall deliver a certificate of its President, dated
the closing date, certifying that all of the representations and warranties
by Silverthorne are true and accurate as of the closing date, and that all
of the conditions to be performed or complied with by it, including the
conditions set forth in Sections 7.2 through 7.6 hereof, have been met.
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(h) ITHC shall deliver a certificate of its President, dated the
closing date, certifying that all of the representations and warranties by
ITHC are true and accurate as of the closing date, and that all of the
conditions to be performed or complied with by it, including the conditions
set forth in Sections 6.2 through 6.7 hereof, have been met.
(i) Silverthorne shall deliver to Xxxx Xxxxxxxxx and Xxxx Xxxxx
certificates aggregating 5,000,000 shares of Silverthorne restricted Common
Stock as partial payment of finders' fees.
8.2 Second Closing. The Second Closing of this transaction shall be held at
the offices of Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C., or such other place as shall
be mutually agreed upon at such date and time as the parties shall agree upon,
which date shall be after the effective date of a 1 for 4 reverse split of the
outstanding Common Stock of Silverthorne. At the Second Closing:
(a) Silverthorne shall deliver to ITHC a stock certificate
representing 4,949,611 post-split shares of Silverthorne's Common Stock
registered in the name of ITHC.
(b) Silverthorne shall deliver to ITHC signed Minutes of a meeting of
the Shareholders of Silverthorne at which the matters set forth in
paragraph 5.3 shall have been approved.
(c) Silverthorne shall deliver to Xxxx Xxxxxxxxx and Xxxx Xxxxx
certificates representing a total of 550,000 post-split shares of
Silverthorne Common Stock as final payment of finders' fees.
ARTICLE 9
MISCELLANEOUS
9.1 Captions and Headings. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
9.2 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
9.3 Non-Waiver. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants,
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
9.4 Time of Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
9.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings. There are and have in fact been no restrictions, promises,
warranties or undertakings other than those set forth herein. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a subsequent amendment in writing signed by all parties hereto.
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9.6 Choice of Law. This Agreement and its application shall be governed by
the laws of the State of Colorado, except to the extent its conflict of laws
provisions would apply the laws of another jurisdiction, and Colorado will be
the proper venue for jurisdictional purposes for any actions brought to enforce
this Agreement.
9.7 Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed as follows:
Silverthorne and Selling Shareholders:
Xxxxx X. Xxxxxxx, President
Silverthorne Production Company
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxx Xxxxx Xxxxxxxx Xxxxx & Xxxxxx, P.C.
600 Seventeenth Street, Suite 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
ITHC:
Xxxxx Xxxxxx
Inter-American Telecommunications Holding Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (___) ___-____
with a copy to:
Xxxxxx X. Xxxxx
Xxxxx XxXxxxxxxx, P.C.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
9.8 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
9.9 Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the 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 effect the transaction described herein.
9.10 Brokers. Other than as set forth herein, the parties hereto represent
and agree that no broker has brought about the aforementioned transaction. Each
of the parties hereto shall indemnify and hold the other harmless against any
and all claims, losses, liabilities or expenses which may be asserted against it
as a result of its dealings, arrangements or agreements with any broker or
person, except as described in this paragraph.
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9.11 Announcements. Silverthorne and ITHC will consult and cooperate with
each other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers.
9.12 Expenses. Silverthorne and ITHC will pay their own legal, accounting
and any other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is consummated.
9.13 Exhibits. As of the execution hereof, the parties hereto have provided
each other with the Exhibits provided for herein above, including any items
referenced therein or required to be attached thereto. Any material changes to
the Exhibits shall be immediately disclosed to the other party.
9.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be considered an original instrument and all of
which together will be considered one and the same agreement, and will become
effective when counterparts, which together contain the signatures of each
party, will have been delivered to Silverthorne and to ITHC. Delivery of
executed signature pages by facsimile transmission will constitute effective and
binding execution and delivery of this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
SILVERTHORNE PRODUCTION INTER-AMERICAN
COMPANY TELECOMMUNICATIONS HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------- ------------------------------------
Xxxxx X. Xxxxxxx, President Xxxxx X. Xxxxxxx, President
SELLING SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx (10,536,720 shares)
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx (1,715,280 shares)
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxx (175,231 shares)
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, C/F X.X. Xxxxxxx
(175,200 shares)
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