STOCK EXCHANGE AGREEMENT
AMONG
AT HOME HOLDINGS, INC., a Nevada corporation
AND
THE HOLDERS OF ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF
SLATERDOME GAS, INC., a Florida corporation
August 10, 2001
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange of At Home Holdings Shares for Slaterdome Shares. . . 3
2.1 Basic Transaction. . . . . . . . . . . . . . . . . . . . 3
2.2 Exchange . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 The Closing. . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Deliveries at the Closing. . . . . . . . . . . . . . . . 3
3. Due Diligence Review Period. . . . . . . . . . . . . . . . . . 4
3.1 Due Diligence Review . . . . . . . . . . . . . . . . . . 4
3.2 Termination. . . . . . . . . . . . . . . . . . . . . . . 4
4. Representations and Warranties Concerning the Transaction. . . 4
4.1 Representations and Warranties of the Shareholders . . . 4
4.2 Representations and Warranties of At Home Holdings . . . 6
4.3 Representations and Warranties Concerning Slaterdome . . 6
5. Pre-Closing Covenants. . . . . . . . . . . . . . . . . . . . .10
5.1 General. . . . . . . . . . . . . . . . . . . . . . . . .10
5.2 Notices and Consents . . . . . . . . . . . . . . . . . .10
5.3 Operation of Business. . . . . . . . . . . . . . . . . .10
5.4 Preservation of Business . . . . . . . . . . . . . . . .10
5.5 Full Access. . . . . . . . . . . . . . . . . . . . . . .10
5.6 Notice of Developments . . . . . . . . . . . . . . . . .10
5.7 Exclusivity. . . . . . . . . . . . . . . . . . . . . . .11
6. Post-Closing Covenants . . . . . . . . . . . . . . . . . . . .11
6.1 General. . . . . . . . . . . . . . . . . . . . . . . . .11
6.2 Litigation Support . . . . . . . . . . . . . . . . . . .11
6.3 Confidentiality. . . . . . . . . . . . . . . . . . . . .11
7. Conditions to Obligation to Close. . . . . . . . . . . . . . .11
7.1 Conditions to Obligation of At Home Holdings . . . . . .11
7.2 Conditions to Obligation of the Shareholders . . . . . .12
8. Survival and Indemnification . . . . . . . . . . . . . . . . .13
8.1 Survival of Representations and Warranties . . . . . . .13
8.2 Indemnification Provisions for Benefit of At Home
Holdings . . . . . . . . . . . . . . . . . . . . . . . .13
8.3 Indemnification Provisions for Benefit of the
Shareholders . . . . . . . . . . . . . . . . . . . . . .13
8.4 Matters Involving Third Parties. . . . . . . . . . . . .13
8.5 Determination of Adverse Consequences. . . . . . . . . .14
8.6 Other Indemnification Provisions . . . . . . . . . . . .14
9. Termination. . . . . . . . . . . . . . . . . . . . . . . . . .14
9.1 Termination of Agreement . . . . . . . . . . . . . . . .14
9.2 Effect of Termination. . . . . . . . . . . . . . . . . .15
10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . .15
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . .15
10.2 Construction . . . . . . . . . . . . . . . . . . . . . .15
10.3 Counterparts . . . . . . . . . . . . . . . . . . . . . .15
10.4 Entire Agreement . . . . . . . . . . . . . . . . . . . .15
10.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . .15
10.6 Facsimile Execution. . . . . . . . . . . . . . . . . . .15
10.7 Governing Law. . . . . . . . . . . . . . . . . . . . . .15
10.8 Headings . . . . . . . . . . . . . . . . . . . . . . . .15
10.9 Incorporation of Exhibits, Annexes, and Schedules. . . .16
10.10 Nature of Certain Obligations. . . . . . . . . . . . . .16
10.11 No Third-Party Beneficiaries . . . . . . . . . . . . . .16
10.12 Notices. . . . . . . . . . . . . . . . . . . . . . . . .16
10.13 Press Releases and Public Announcements. . . . . . . . .16
10.14 Severability . . . . . . . . . . . . . . . . . . . . . .17
10.15 Specific Performance . . . . . . . . . . . . . . . . . .17
10.16 Submission to Jurisdiction . . . . . . . . . . . . . . .17
10.17 Succession and Assignment. . . . . . . . . . . . . . . .17
Exhibit 4.1 Shareholder Representations and Warranties
Exhibit 4.2 At Home Holdings Representations and Warranties
Exhibit 4.3 Disclosure Schedule
STOCK EXCHANGE AGREEMENT
Stock Exchange Agreement (the "Agreement") entered into on August
10, 2001, by and among At Home Holdings, Inc., a Nevada corporation
("At Home Holdings") and the holders (collectively, the
"Shareholders") of all of the issued and outstanding $.0001 par
value common stock (the "Slaterdome Shares") of Slaterdome Gas,
Inc., a Florida corporation ("Slaterdome"). At Home Holdings and
the Shareholders are hereinafter referred to collectively as the
"Parties."
This Agreement contemplates a transaction in which At Home Holdings
will exchange Eighteen Million Three Hundred Fifty Thousand
(18,350,000) of the $.001 par value common shares of At Home
Holdings (the "At Home Holdings Shares") with Shareholders for the
Slaterdome Shares, whereupon Slaterdome will become a wholly owned
Subsidiary of At Home Holdings.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, liens, losses, expenses, and fees, including
court costs and attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
"At Home Holdings" has the meaning set forth in the preface
above.
"At Home Holdings Shares" has the meaning set forth in the
preface above.
"Applicable Rate" means the prime rate of interest announced from
time to time by First Union National Bank per annum.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction that forms or could
form the basis for any specified consequence.
"Closing" has the meaning set forth in Paragraph 2.3 below.
"Closing Date" has the meaning set forth in Paragraph 2.3 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
businesses and affairs of Slaterdome that is not already generally
available to the public.
"Disclosure Schedule" has the meaning set forth in Paragraph 4.3
below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee
Pension Benefit Plan, (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c)
qualified defined benefit retirement plan or arrangement which is an
Employee Pension Benefit Plan (including any Multiemployer Plan), or
(d) Employee Welfare Benefit Plan or material fringe benefit plan or
program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Sec. 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Sec. 3(1).
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Resource Conservation and Recovery Act of 1976, and the Occupational
Safety and Health Act of 1970, each as amended, together with all
other laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies
thereof) concerning pollution or protection of the environment,
public health and safety, or employee health and safety, including
laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Indemnified Party" has the meaning set forth in Paragraph 8.4 below.
"Indemnifying Party" has the meaning set forth in Paragraph 8.4 below.
"Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice),
all improvements thereto, and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations
thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations,
adaptations, derivations, and combinations thereof and including all
goodwill associated therewith, and all applications, registrations,
and renewals in connection therewith, (c) all copyrightable works,
all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications,
registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and marketing
plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h)
all copies and tangible embodiments thereof (in whatever form or
medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and
whether due or to become due), including any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet contained
within the Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in
Paragraph 4.3(i) below.
"Most Recent Fiscal Period" has the meaning set forth in Paragraph
4.3(i) below.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due
and payable, or for Taxes that the taxpayer is contesting in good
faith through appropriate proceedings, (c) purchase money liens and
liens securing rental payments under capital lease arrangements, and
(d) other liens arising in the Ordinary Course of Business and not
incurred in connection with the borrowing of money.
"Shareholders" has the meaning set forth in the preface above.
"Slaterdome" has the meaning set forth in the preface above.
"Slaterdome Shares" has the meaning set forth in the preface
above.
"Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the
common stock or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including
taxes under Code Sec. 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including
any interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Third Party Claim" has the meaning set forth in Paragraph 8.4(a)
below.
2. Exchange of At Home Holdings Shares for Slaterdome Shares.
2.1 Basic Transaction. On and subject to the terms and
conditions of this Agreement, At Home Holdings agrees to acquire
from each of the Shareholders and each of the Shareholders agrees to
transfer to At Home Holdings, such amount of the Slaterdome Shares
owned by each such Shareholder for the number of At Home Holdings
Shares specified below in this Paragraph 2.
2.2 Exchange. At Home Holdings agrees, at the Closing, to
deliver to each Shareholder one (1) At Home Holdings Share for each
one (1) Slaterdome Share held by such Shareholder. The respective
holdings of Slaterdome Shares by each Shareholder is as set forth in
Paragraph 1 of Exhibit 4.1.
2.3 The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at
the offices of Xxxxxx X. Xxxxxxx, P.A. in Boca Raton, Florida,
commencing at 10:00 a.m. local time on the second business day
following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to actions
the respective Parties will take at the Closing itself) or such
other date as At Home Holdings and the Shareholders may mutually
determine (the "Closing Date"); provided, however, that the Parties
shall use their mutual best efforts to undertake the Closing within
ten (10) business days after expiration of the Due Diligence Review
Period (as hereinafter defined).
2.4 Deliveries at the Closing. At the Closing:
(a) each Shareholder will deliver to At Home Holdings
the various certificates, instruments, and documents referred
to in Paragraph 7.1 below;
(b) At Home Holdings will deliver to the Shareholders
the various certificates, instruments, and documents referred
to in Paragraph 7.2 below;
(c) each Shareholder will deliver to At Home Holdings
stock certificates representing all of such Shareholder's
Slaterdome Shares, endorsed in blank or accompanied by duly
executed assignment documents; and
(d) At Home Holdings will deliver to each of the
Shareholders, either the At Home Holdings Shares or an
executed irrevocable instruction (the "Issuance Instruction")
to the transfer agent of At Home Holdings (the "Transfer
Agent") directing the Transfer Agent to issue the At Home
Holdings Shares in accordance herewith.
3. Due Diligence Review Period.
3.1 Due Diligence Review. At Home Holdings shall have a
period of time (the "Due Diligence Review Period") commencing upon
the date of execution hereof by the Parties hereto and ending at
5:00 P.M. fifteen (15) business days thereafter (the "Due Diligence
Review Period Expiration Date") to review such business, legal and
accounting due diligence matters, in such manner as At Home Holdings
may deem necessary or appropriate, associated with Slaterdome and
the Slaterdome Shares.
3.2 Termination. At Home Holdings shall have the absolute
right to terminate this Agreement, in the exercise of the sole and
exclusive discretion of At Home Holdings, at any time prior to the
expiration of the Due Diligence Review Period Expiration Date. If
At Home Holdings elects to cancel this Agreement, At Home Holdings
shall deliver written notice to Shareholders of such election prior
to the Due Diligence Review Period Expiration Date, and thereupon,
this Agreement shall terminate and the Parties hereto shall be
released from any further obligation hereunder.
4. Representations and Warranties Concerning the Transaction.
4.1 Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to At Home Holdings
that the statements contained in this Paragraph 4.1 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement
throughout this Paragraph 4.1) with respect to such Shareholder,
except as set forth in Exhibit 4.1 attached hereto.
(a) Organization of Certain Shareholders. If the
Shareholder is a corporation or other entity, the Shareholder
is duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its organization.
(b) Authorization of Transaction. Each Shareholder
has full power and authority (including, if the Shareholder is
a corporation or other organization, full organizational power
and authority) to execute and deliver this Agreement and to
perform the obligations of Shareholder hereunder. This
Agreement constitutes the valid and legally binding obligation
of the Shareholder, enforceable in accordance with its terms
and conditions. The Shareholder need not give any notice to,
make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which any
Shareholder is subject or, if a Shareholder is an entity, any
provision of its organizational documents, or conflict with,
result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Shareholder is a
party or by which any Shareholder is bound or to which any of
the assets of such Shareholder is subject.
(d) Brokers' Fees. No Shareholder has any Liability
or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated
by this Agreement for which At Home Holdings could become
liable or obligated.
(e) Investment. Each Shareholder:
(1) understands that the At Home Holdings Shares have
not been, and will not be, registered under the Securities
Act, or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, which depends
upon, among other things, the accuracy of the required
representations and warranties of Shareholders;
(2) that there shall be imprinted on the face of each
certificate representing the At Home Holdings Shares acquired
by Shareholders the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT WITH RESPECT TO SUCH SECURITIES, OR AN OPINION
OF THE ISSUER'S COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
(3) understands that the At Home Holdings Shares must
be held indefinitely unless subsequently registered under the
Act or an exemption from such registration is available, and
Shareholders acknowledge that At Home Holdings shall have no
obligation whatsoever to register the At Home Holdings Shares
under that Act;
(4) understands the provisions of Rule 144 (the
"Rule") promulgated under the Act permit limited resale of
securities purchased in a private transaction, subject to the
satisfaction of certain conditions as set forth in the Rule;
(5) is acquiring the At Home Holdings Shares solely
for the account of such Shareholder for investment purposes,
and not with a view to the distribution thereof;
(6) is a sophisticated investor with knowledge and
experience in business and financial matters;
(7) has had the opportunity to obtain such information
as such Shareholder desired in order to evaluate the merits
and the risks inherent in acquiring and holding the At Home
Holdings Shares;
(8) is able to bear the economic risk and lack of
liquidity inherent in holding the At Home Holdings Shares; and
(9) is familiar with the requirements required to be
designated as an Accredited Investor, and is such an
Accredited Investor.
(f) Lack of Information. Shareholders understand that
Shareholders are acquiring the At Home Shares without being
furnished any offering literature or prospectus. THE
SHAREHOLDERS ACKNOWLEDGES THAT SHAREHOLDERS HAVE OBTAINED SUCH
INFORMATION OR DATA AS SHAREHOLDERS MAY DEEM APPROPRIATE IN
ORDER TO PROVIDE THE SHAREHOLDERS WITH THE BASIS OF MAKING AN
INFORMED INVESTMENT DECISION WITH RESPECT TO THE ACQUISITION
OF THE AT HOME SHARES. The Shareholders have been given the
opportunity to meet with representatives of At Home Holdings
and to have such representatives answer any questions and
provide any additional information regarding the terms and
conditions of an investment in the At Home Shares as deemed
relevant by the Shareholder or as a result of any independent
investigations made by any Shareholder or any of a
Shareholder's representatives.
(g) Slaterdome Shares. Each Shareholder holds of
record and owns beneficially the number of Slaterdome Shares
set forth next the name of such Shareholder on Exhibit 4.1,
free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities
laws), Taxes, Security Interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands.
No Shareholder is a party to any option, warrant, purchase
right, or other contract or commitment that could require the
Shareholder to sell, transfer, or otherwise dispose of any
Slaterdome Shares (other than this Agreement). The Slaterdome
Shares held by the Shareholders represents all of the issued
and outstanding capital stock of Slaterdome.
4.2 Representations and Warranties of At Home Holdings. At
Home Holdings represents and warrants to the Shareholders that the
statements contained in this Paragraph 4.2 are correct and complete
as of the date of this Agreement and will be correct and complete as
of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this
Paragraph 4.2), except as set forth in Exhibit 4.2 attached hereto.
(a) Organization of At Home Holdings. At Home
Holdings is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction. At Home Holdings
has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of At Home Holdings,
enforceable in accordance with its terms and conditions. At
Home Holdings need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which At Home
Holdings is subject or any provision of its charter or bylaws
or conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which At Home Holdings is
a party or by which it is bound or to which any of its assets
is subject.
(d) Brokers' Fees. At Home Holdings has no Liability
or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated
by this Agreement for which any Shareholder could become
liable or obligated.
(e) Investment. At Home Holdings is not acquiring
Slaterdome Shares with a view to or for sale in connection
with any distribution thereof within the meaning of the
Securities Act.
4.3 Representations and Warranties Concerning Slaterdome.
(a) The Shareholders have caused Xxxxxx Xxxxx, the
president and chairman of the board of directors of
Slaterdome (the "Slaterdome Responsible Party") to have
provided, and At Home Holdings acknowledges having received,
copies of the certain agreements, documents and other
information associated with or otherwise connected to that
certain Asset Purchase Agreement (the "Asset Purchase
Agreement") between Slaterdome and Wyoming Oil and Gas, Inc.
("Wyoming"), along with copies of all of the schedules,
exhibits, and closing documents associated with the Asset
Purchase Agreement (collectively, the "Transaction Documents").
(b) At Home Holdings has had the opportunity to obtain
such additional information as desired in order to evaluate
the merits and the risks inherent in acquiring and holding the
Slaterdome Shares.
(c) The Slaterdome Responsible Party represents and
warrants to At Home Holdings that the statements contained in
this Paragraph 4.3 are correct and complete as of the date of
this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement
throughout this Paragraph 4.3) with respect to Slaterdome,
except as set forth in Exhibit 4.3 (the "Disclosure
Schedule"). The Disclosure Schedule will be arranged in
paragraphs corresponding to the following lettered and
numbered paragraphs contained in this Paragraph 4.3.
(d) Organization, Qualification, and Corporate Power.
Slaterdome is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation. Slaterdome is duly authorized to conduct
business and is in good standing under the laws of each
jurisdiction where such qualification is required. Slaterdome
has full corporate power and authority and all licenses,
permits, and authorizations necessary to carry on the business
in which it is engaged and to own and use the properties owned
and used by it. Paragraph 4.3(d) of the Disclosure Schedule
lists the directors and officers of Slaterdome. Slaterdome is
not in default under or in violation of any provision of its
charter or bylaws.
(e) Capitalization. The entire authorized capital
stock of Slaterdome consists of One Hundred Million
(100,000,000) shares of capital stock of which Eighty Million
(80,000,000) is designated as $.0001 par value common shares
and of which Twenty Million (20,000,000), is designated as
$.0001 par value preferred shares, and only the Slaterdome
Shares are issued and outstanding. All of the issued and
outstanding Slaterdome Shares have been duly authorized, are
validly issued, fully paid, and nonassessable, and are held of
record by the respective Shareholders as set forth in on
Exhibit 4.1. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments
that could require Slaterdome to issue, sell, or otherwise
cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to
Slaterdome. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the
capital stock of Slaterdome.
(f) Noncontravention. Slaterdome is not required to
give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement. Neither the
execution and the delivery of this Agreement nor the
consummation of the transactions contemplated hereby will:
(1) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or
other restriction of any government, governmental agency, or
court to which Slaterdome is subject or any provision of the
charter or bylaws of Slaterdome; or
(2) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Slaterdome
is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security
Interest upon any of its assets).
(g) Title to Assets. Slaterdome has good and
marketable title to, or a valid leasehold interest in, it
properties and assets, whether acquired as a result of the
transactions (collectively, the "Transactions") undertaken
pursuant to the Transaction Documents or otherwise, free and
clear of all Security Interests, except as indicated in the
Transaction Documents or in paragraph 4.3(g) of the Disclosure
Schedule and except for properties and assets disposed of in
the Ordinary Course of Business since the date of the
conclusion of the Transactions.
(h) Subsidiaries. Slaterdome has no Subsidiaries.
(i) Financial Statements. Paragraph 4.3(i) of the
Disclosure Schedule sets forth the Most Recent Financial
Statements of Slaterdome. The Most Recent Financial
Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout
the periods covered thereby, present fairly the financial
condition of Slaterdome as of such dates and the results of
operations of Slaterdome for such periods, are correct and
complete, and are consistent with the books and records of
Slaterdome (which books and records are correct and complete);
provided, however, that the Most Recent Financial Statements
are subject to normal year-end adjustments (which will not be
material individually or in the aggregate) and lack footnotes
and other presentation items. Accordingly, the Most Recent
Financial Statements include the unaudited balance sheet and
statement of income for the period ended August 31, 2001(the
"Most Recent Fiscal Period") for Slaterdome.
(j) Events Subsequent to Most Recent Fiscal Period.
Since the Most Recent Fiscal Period, there has not been any
material adverse change in the business, financial condition,
operations, results of operations, or future prospects of any
of Slaterdome.
(k) Undisclosed Liabilities. Slaterdome does not have
any Liability (and there is no Basis for any present or future
action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against any of them giving rise to
any Liability), except for:
(1) Liabilities set forth on the Most Recent Financial
Statements (rather than in any notes thereto);
(2) Liabilities which have arisen after the Most
Recent Fiscal Period in the Ordinary Course of Business (none
of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of
warranty, tort, infringement, or violation of law); and
(3) Liabilities which have been disclosed to At Home
Holdings as part of the Transaction Documents.
(l) Legal Compliance. Slaterdome, and its
predecessors and Affiliates has complied with all applicable
laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder)
of federal, state, local, and foreign governments (and all
agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against any of them alleging any
failure so to comply.
(m) Tax Matters.
(1) Slaterdome has filed all Tax Returns that it was
required to file. All such Tax Returns were correct and
complete in all respects. All Taxes owed by any of Slaterdome
(whether or not shown on any Tax Return) have been paid.
Slaterdome is not currently the beneficiary of any extension
of time within which to file any Tax Return. No claim has
ever been made by an authority in a jurisdiction where
Slaterdome does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no
Security Interests on any of the assets of Slaterdome that
arose in connection with any failure (or alleged failure) to
pay any Tax.
(2) Slaterdome has withheld and paid all Taxes
required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(3) No director or officer (or employee responsible
for Tax matters) of any of Slaterdome expects any authority to
assess any additional Taxes for any period for which Tax
Returns have been filed. There is no dispute or claim
concerning any Tax Liability of Slaterdome either (A) claimed
or raised by any authority in writing or (B) as to which any
of the directors and officers (and employees responsible for
Tax matters) of Slaterdome has Knowledge based upon personal
contact with any agent of such authority.
(4) Slaterdome has not waived any statute of
limitations in respect of Taxes or agreed to any extension of
time with respect to a Tax assessment or deficiency.
(n) Real Property.
(1) Slaterdome does not own any real property.
(2) The Transaction Documents list and describe
briefly all real property leased or subleased to Slaterdome,
and provides correct and complete copies of the leases and
subleases.
(o) Intellectual Property. Slaterdome does not own
any Intellectual Property.
(p) Tangible Assets. Slaterdome own or leases all
buildings, machinery, equipment, and other tangible assets
necessary for the conduct of its businesses as presently
conducted.
(q) Inventory. Slaterdome does not own any Inventory.
(r) Contracts. The Transaction Documents identify
each material written agreement and provide a written summary
setting forth the terms and conditions of each material oral
agreement between Slaterdome and any third party. With
respect to each such agreement:
(1) the agreement is legal, valid, binding,
enforceable, and in full force and effect;
(2) the agreement will continue to be legal, valid,
binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions
contemplated hereby;
(3) no party is in breach or default, and no event has
occurred which with notice or lapse of time would constitute a
breach or default, or permit termination, modification, or
acceleration, under the agreement;
(4) no party has repudiated any provision of the
agreement.
(s) Notes and Accounts Receivable. Slaterdome does
not own any notes or accounts receivable.
(t) Powers of Attorney. There are no outstanding
powers of attorney executed on behalf of any of Slaterdome.
(u) Insurance. Slaterdome does not own or possess any
Insurance.
(v) Litigation. Slaterdome is not involved in any
material litigation matters, and the Slaterdome Responsible
Party has no reason to believe that any action, suit,
proceeding, hearing, or investigation may be brought or
threatened against Slaterdome.
(w) Product Warranty. Slaterdome does not
manufacture, sell, lease, or deliver and products, and
Slaterdome has no Liability (and there is no Basis for any
present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against
Slaterdome giving rise to any Liability) in connection with
any Product Warranty.
(x) Product Liability. Slaterdome has no Liability
(and there is no Basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim,
or demand against Slaterdome giving rise to any Liability)
arising out of any injury to individuals or property as a
result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by any of Slaterdome.
(y) Employees. To the Knowledge of the Slaterdome
Responsible Party no executive, key employee, or group of
employees has any plans to terminate employment with
Slaterdome. Slaterdome is not a party to and is not bound by
any collective bargaining agreement. Slaterdome has not
committed any unfair labor practice. The Slaterdome
Responsible Party has no Knowledge of any organizational
effort presently being made or threatened by or on behalf of
any labor union with respect to employees of Slaterdome.
(z) Employee Benefits. Slaterdome does not maintain
any Employee Benefit Plan.
(aa) Guaranties. Slaterdome is not a guarantor or
otherwise is liable for any Liability or obligation (including
indebtedness) of any other Person.
(ab) Environment, Health, and Safety.
(1) Slaterdome and its predecessors and Affiliates has
complied with all Environmental, Health, and Safety Laws, and
no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or
commenced against any of them alleging any failure so to comply.
(2) Slaterdome has no Liability (and none of
Slaterdome and its predecessors and Affiliates has handled or
disposed of any substance, arranged for the disposal of any
substance, exposed any employee or other individual to any
substance or condition, or owned or operated any property or
facility in any manner that could form the Basis for any
present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against
Slaterdome giving rise to any Liability) for damage to any
site, location, or body of water (surface or subsurface), for
any illness of or personal injury to any employee or other
individual, or for any reason under any Environmental, Health,
and Safety Law.
(ac) Disclosure. The representations and warranties
contained in this Paragraph 4.3 do not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements and information
contained in this Paragraph 4.3 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows
with respect to the period between the execution of this Agreement
and the Closing.
5.1 General. Each of the Parties will use such Parties'
best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction,
but not waiver, of the closing conditions set forth in Paragraph 7
below).
5.2 Notices and Consents. The Shareholders will cause
Slaterdome to give any notices to third parties, and will cause
Slaterdome to use its best efforts to obtain any third-party
consents that At Home Holdings may reasonably request in connection
with the transactions contemplated hereby.
5.3 Operation of Business. The Shareholders will not cause
or permit Slaterdome to engage in any practice, take any action, or
enter into any transaction outside the Ordinary Course of Business.
Without limiting the generality of the foregoing, the Shareholders
will not cause or permit Slaterdome to declare, set aside, or pay
any dividend or make any distribution with respect to its capital
stock or redeem, purchase, or otherwise acquire any of its capital
stock.
5.4 Preservation of Business. The Shareholders will cause
Slaterdome to keep its business and properties substantially intact,
including its present operations, physical facilities, working
conditions, and relationships with lessors, licensors, suppliers,
customers, and employees.
5.5 Full Access. Each of the Shareholders will permit, and
the Shareholders will cause Slaterdome to permit, representatives of
At Home Holdings to have full access at all reasonable times, and in
a manner so as not to interfere with the normal business operations
of Slaterdome to all premises, properties, personnel, books, records
(including Tax records), contracts, and documents of or pertaining
to Slaterdome.
5.6 Notice of Developments. The Shareholders will give
prompt written notice to At Home Holdings of any material adverse
development causing a breach of any of the representations and
warranties concerning Slaterdome in Paragraph 4.3. Each Party will
give prompt written notice to the other Parties of any material
adverse development causing a breach of any of such Parties
representations and warranties contained herein. No disclosure by
any Party pursuant to this Paragraph 5.6, however, shall be deemed
to amend or supplement the Disclosure Schedule or to prevent or cure
any misrepresentation, breach of warranty, or breach of covenant.
5.7 Exclusivity. None of the Shareholders will (and none
of the Shareholders will vote their Slaterdome Shares in favor of),
nor will the Shareholders cause or permit Slaterdome (and the
Shareholders will notify At Home Holdings immediately if any Person
makes any) of the following:
(a) solicit, initiate, or encourage the submission of
any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities,
or any substantial portion of the assets of Slaterdome
(including any acquisition structured as a merger,
consolidation, or share exchange); or
(b) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort
or attempt by any Person to do or seek any of the foregoing.
6. Post-Closing Covenants. The Parties agree as follows
with respect to the period following the Closing.
6.1 General. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes
of this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments
and documents) as any other Party reasonably may request, all at the
sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Paragraph 8
below). The Shareholders acknowledge and agree that from and after
the Closing, At Home Holdings will be entitled to possession of all
documents, books, records (including Tax records), agreements, and
financial data of any sort relating to Slaterdome.
6.2 Litigation Support. In the event and for so long as any
Party actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand in connection with any transaction contemplated under this
Agreement; or any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to the Closing Date
involving Slaterdome each of the other Parties will cooperate with
such other Party or its counsel in the contest or defense, make
available their personnel, and provide such testimony and access to
their books and records as shall be necessary in connection with the
contest or defense, all at the sole cost and expense of the
contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefor under Paragraph 8 below).
6.3 Confidentiality. Each of the Shareholders will treat
and hold as such all of the Confidential Information, refrain from
using any of the Confidential Information except in connection with
this Agreement, and deliver promptly to At Home Holdings or destroy,
at the request and option of At Home Holdings, all tangible
embodiments (and all copies) of the Confidential Information which
are in such Parties' possession. In the event that any of the
Shareholders is requested or required (by oral question or request
for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, then such Shareholder will
notify At Home Holdings promptly of the request or requirement so
that At Home Holdings may seek an appropriate protective order or
waive compliance with the provisions of this Paragraph 6.3. If, in
the absence of a protective order or the receipt of a waiver
hereunder, any of the Shareholders is, on the advice of counsel,
compelled to disclose any Confidential Information to any tribunal
or else stand liable for contempt, then such Shareholder may
disclose the Confidential Information to the tribunal; provided,
however, that the disclosing Shareholder shall use such
Shareholder's reasonable best efforts to obtain, at the reasonable
request of At Home Holdings, an order or other assurance that
confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as At Home
Holdings shall designate. The foregoing provisions shall not apply
to any Confidential Information which is generally available to the
public immediately prior to the time of disclosure.
7. Conditions to Obligation to Close.
7.1 Conditions to Obligation of At Home Holdings. The
obligation of At Home Holdings to consummate the transactions to be
performed by it in connection with the Closing is subject to
satisfaction of the following conditions, unless At Home Holdings
waives any condition specified in this Paragraph 7.1 by executing a
writing so stating at or prior to the Closing:
(a) the representations and warranties set forth in
Paragraphs 4.1 and 4.3 above shall be true and correct in all
material respects at and as of the Closing Date;
(b) the Shareholders shall have performed and complied
with all of their covenants hereunder in all material respects
through the Closing;
(c) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would prevent consummation of
any of the transactions contemplated by this Agreement, cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation, affect adversely the right
of At Home Holdings to own Slaterdome Shares and to control
Slaterdome or affect adversely the right of Slaterdome to own
its assets and to operate its business (and no such
injunction, judgment, order, decree, ruling, or charge shall
be in effect); and
(d) the Shareholders shall have delivered to At Home
Holdings a certificate to the effect that each of the
conditions specified above in Paragraphs 7.1(a) through 7.1(c)
is satisfied in all respects.
(e) all actions to be taken by the Shareholders in
connection with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to At Home Holdings.
7.2 Conditions to Obligation of the Shareholders. The
obligation of the Shareholders to consummate the transactions to be
performed by them in connection with the Closing is subject to
satisfaction of the following conditions, unless the Shareholders
waive any condition specified in this Paragraph 7.2 by executing a
writing so stating at or prior to the Closing:
(a) the representations and warranties set forth in
Paragraph 4.2 above shall be true and correct in all material
respects at and as of the Closing Date;
(b) At Home Holdings shall have performed and complied
with all of its covenants hereunder in all material respects
through the Closing;
(c) no action, suit, or proceeding shall be pending
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would prevent consummation of
any of the transactions contemplated by this Agreement or
cause any of the transactions contemplated by this Agreement
to be rescinded following consummation (and no such
injunction, judgment, order, decree, ruling, or charge shall
be in effect);
(d) At Home Holdings shall have delivered to the
Shareholders a certificate to the effect that each of the
conditions specified above in Paragraph 7.2(a)-7.2(c) is
satisfied in all respects; and
(e) At Home Holdings shall have received the
resignations, effective as of the Closing, of each director
and officer, and in substitution thereof shall, effective as
of the Closing, appointed those directors and officers whom
shall have specified in writing to At Home Holdings at least
three (3) business days prior to the Closing.
(f) all actions to be taken by At Home Holdings in
connection with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to the Shareholders.
8. Survival and Indemnification.
8.1 Survival of Representations and Warranties. All of the
representations and warranties of the Shareholders contained in this
Agreement shall not survive the Closing hereunder (even if At Home
Holdings knew or had reason to know of any misrepresentation or
breach of warranty at the time of Closing) and shall be merged
therein. All of the representations and warranties of At Home
Holdings contained in this Agreement shall not survive the Closing
hereunder (even if Shareholders knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and
shall be merged therein.
8.2 Indemnification Provisions for Benefit of At Home
Holdings. Shareholders shall not have any indemnification
obligation in favor of At Home Holdings in the event Shareholders
breaches (or in the event any third party alleges facts that, if
true, would mean any Shareholder has breached) any of its
representations, warranties and covenants contained herein.
8.3 Indemnification Provisions for Benefit of the
Shareholders. At Home Holdings shall not have any indemnification
obligation in favor of Shareholders in the event At Home Holdings
breaches (or in the event any third party alleges facts that, if
true, would mean At Home Holdings has breached) any of its
representations, warranties and covenants contained herein.
8.4 Matters Involving Third Parties.
(a) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this Paragraph 8, 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
thereby is prejudiced.
(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 the Indemnifying Party notifies
the Indemnified Party in writing within fifteen (15) days
after the Indemnified Party has given notice of the Third
Party Claim that the Indemnifying Party will indemnify the
Indemnified Party from and against the entirety of 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; 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; the
Third Party Claim involves only money damages and does not
seek an injunction or other equitable relief; settlement of,
or an 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
materially adverse to the continuing business interests of the
Indemnified Party; and 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
Paragraph 8.4(b) above:
(1) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the
defense of the Third Party Claim;
(2) 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 (not to be withheld
unreasonably); and
(3) 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 (not to be withheld
unreasonably).
(d) In the event any of the conditions in Paragraph
8.4(b) above is or becomes unsatisfied, however:
(1) 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 in any
manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith);
(2) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable
attorneys' fees and expenses); and
(3) the Indemnifying Parties 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 Paragraph 8.
8.5 Determination of Adverse Consequences. The Parties shall
take into account the time cost of money (using the Applicable Rate
as the discount rate) in determining Adverse Consequences for
purposes of this Paragraph 8.
8.6 Other Indemnification Provisions. The foregoing
indemnification provisions are in addition to, and not in derogation
of, any statutory, equitable, or common law remedy any Party may
have for breach of representation, warranty, or covenant. Each of
the Shareholders hereby agrees that such Shareholder will not make
any claim for indemnification against Slaterdome by reason of the
fact that such Shareholder was a director, officer, employee, or
agent of Slaterdome or was serving at the request of any such entity
as a partner, trustee, director, officer, employee, or agent of
another entity (whether such claim is for judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses,
expenses, or otherwise and whether such claim is pursuant to any
statute, charter document, bylaw, agreement, or otherwise) with
respect to any action, suit, proceeding, complaint, claim, or demand
brought by At Home Holdings against such Shareholder (whether such
action, suit, proceeding, complaint, claim, or demand is pursuant to
this Agreement, applicable law, or otherwise).
9. Termination.
9.1 Termination of Agreement. Certain of the Parties may
terminate this Agreement as provided below:
(a) At Home Holdings and the Shareholders may
terminate this Agreement by mutual written consent at any time
prior to the Closing;
(b) At Home Holdings may terminate this Agreement by
giving written notice to the Shareholders at any time prior to
the Due Diligence Review Period Expiration Date.
(c) At Home Holdings may terminate this Agreement by
giving written notice to the Shareholders at any time prior to
the Closing:
(1) in the event any of the Shareholders has breached
any material representation, warranty, or covenant contained
in this Agreement in any material respect, At Home Holdings
has notified the Shareholders of the breach, and the breach
has continued without cure for a period of ten (10) business
days after the notice of breach; or
(2) if the Closing shall not have occurred on or
before September 30, 2001, by reason of the failure of any
condition precedent under Paragraph 7.1 hereof (unless the
failure results primarily from At Home Holdings itself
breaching any representation, warranty, or covenant contained
in this Agreement); and
(d) the Shareholders may terminate this Agreement by
giving written notice to At Home Holdings at any time prior to
the Closing:
(1) in the event At Home Holdings has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, any of the
Shareholders has notified At Home Holdings of the breach, and
the breach has continued without cure for a period of ten (10)
business days after the notice of breach; or
(2) if the Closing shall not have occurred on or
before September 30, 2001, by reason of the failure of any
condition precedent under Paragraph 7.2 hereof (unless the
failure results primarily from any of the Shareholders
themselves breaching any representation, warranty, or covenant
contained in this Agreement).
9.2 Effect of Termination. If any Party terminates this
Agreement pursuant to Paragraph 9.1 above, all rights and
obligations of the Parties hereunder shall terminate without any
Liability of any Party to any other Party (except for any Liability
of any Party then in breach).
10. Miscellaneous.
10.1 Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing
and signed by At Home Holdings and the Shareholders. No waiver by
any Party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent such occurrence.
10.2 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 or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including
without limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that
there exists another representation, warranty, or covenant relating
to the same subject matter (regardless of the relative levels of
specificity) which the Party has not breached shall not detract from
or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
10.3 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
10.4 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among
the Parties and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
10.5 Expenses. Each of the Parties will bear their own costs
and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby. At Home Holdings acknowledges that Slaterdome may bear all
or a part of the Shareholders' costs and expenses (including any of
their legal fees and expenses) in connection with this Agreement or
any of the transactions contemplated hereby.
10.6 Facsimile Execution. Facsimile signatures on
counterparts of this Agreement are hereby authorized and shall be
acknowledged as if such facsimile signatures were an original
execution.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Florida without giving effect to any choice or conflict of law
provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
10.8 Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
10.9 Incorporation of Exhibits, Annexes, and Schedules. The
Exhibits, Annexes, and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
10.10 Nature of Certain Obligations.
(a) The covenants of each of the Shareholders in
Paragraph 2.1 above concerning the sale of such Shareholder's
Slaterdome Shares to At Home Holdings and the representations
and warranties of each of the Shareholders in Paragraph 4.1
above concerning the transaction are several obligations.
Accordingly, the particular Shareholder making the
representation, warranty, or covenant will be solely
responsible to the extent provided in Paragraph 8 above for
any Adverse Consequences At Home Holdings may suffer as a
result of any breach thereof.
(b) The remainder of the representations, warranties,
and covenants in this Agreement are joint and several
obligations. Accordingly, each Shareholder will be
responsible to the extent provided in Paragraph 8 above for
the entirety of any Adverse Consequences At Home Holdings may
suffer as a result of any breach thereof.
10.11 No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties
and their respective successors and permitted assigns.
10.12 Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any Party may
send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth below
using registered or certified mail, return receipt requested,
postage prepaid, personal delivery, recognized overnight delivery
service, telecopy or electronic mail, and such notice, request,
demand, claim, or other communication shall be deemed to have been
duly given three (3) days after mailing if sent by registered or
certified mail, on the day same is provided to the party undertaking
personal delivery, provided that such party provides an
acknowledgment of the delivery thereof at the address indicated
thereon, on the day after same is provided to the recognized
overnight delivery service, provided that such party provides an
acknowledgment of the delivery thereof at the address indicated
thereon and on the day same is transmitted by telecopy or electronic
mail, provided that the party sending same obtains a written
confirmation of the electronic delivery thereof. Any Party may
change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth. The addresses
of the Parties are as set forth below:
If to the Shareholders: To the Address listed on
Exhibit 4.1
If to At Home Holdings: 000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
If to Slaterdome: 0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
10.13 Press Releases and Public Announcements. No Party
shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior
written approval of At Home Holdings; provided, however, that any
Party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure). After the Closing,
At Home Holdings shall make such press releases or public
announcements as may be determined by At Home Holdings, in the
exercise of the reasonable judgement of At Home Holdings.
10.14 Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.15 Specific Performance. Each of the Parties acknowledges
and agrees that the other Parties would be damaged irreparably in
the event any of the provisions of this Agreement are not performed
in accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agrees that the other Parties shall
be entitled to an injunction or injunctions (without the necessity
of posting a bond therefor) to prevent breaches of the provisions of
this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in
Paragraph 10.16 below), in addition to any other remedy to which
they may be entitled, at law or in equity.
10.16 Submission to Jurisdiction. Each of the Parties submits
to the jurisdiction of any state or federal court sitting in Palm
Beach County, Florida, in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of
the action or proceeding may be heard and determined in any such
court. Each Party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law or at
equity. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other
court. Each of the Parties waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives
any bond, surety, or other security that might be required of any
other Party with respect thereto. Each Shareholder hereby appoints
the Secretary of State of the State of Florida as such Shareholder's
agent to receive on behalf of such Shareholder service of copies of
the summons and complaint and any other process that might be served
in the action or proceeding. Any Party may make service on any
other Party by sending or delivering a copy of the process as
follows (or in any other manner permitted by law or at equity):
(a) to the Party to be served at the address and in
the manner provided for the giving of notices in Paragraph
10.12 above; or
(b) to the Shareholder to be served in care of the
Secretary of State of the State of Florida.
10.17 Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein
and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of such Parties' rights,
interests, or obligations hereunder without the prior written
approval of At Home Holdings and the Shareholders.
(Signatures appear next page)
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first above written.
At Home Holdings, Inc.
/s/ Xxx Xxxxxxxxx
By:
Xxx Xxxxxxxxx, President
Slaterdome Responsible
Party
Slaterdome Gas, Inc.
/s/ Xxxxxx Xxxxx
By:
Xxxxxx Xxxxx, Chairman
of the Board of
Directors
SHAREHOLDER COUNTERPART SIGNATURE PAGE
SHAREHOLDER:
Print Name:
Print Name:
By:
Exhibit 4.1
Shareholder Representations and Warranties
1. Shares Issued:
Shareholder Address Shares Owned
Xxxxxx Xxxxx 8,000,000
Xxxxx Xxxxxxxx 500,000
Xxxxx Xxxxxx 50,000
Wyoming Gas & Oil, 400,000
Inc.
Xxxxxxx Xxxxxx 300,000
Dublin Asset Advisors 50,000
LLC
Euro Consulting 50,000
Group, Ltd.
Brokton International 3,000,000
Ltd.
Deevale Limited 3,000,000
Carn Associates 3,000,000
Limited
Total 18,350,000
