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ASSET PURCHASE AND SALE AGREEMENT
By and Among
2U Online.com, Inc.
a Delaware corporation,
and
ASDAR Group,
a Nevada corporation.
THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered
into in duplicate this 20th day of September, 2000, by and among 2U
Online.com, Inc., a Delaware corporation ("Seller"), and ASDAR Group, a
Nevada corporation ("Purchaser"), and provides for the Purchaser to acquire
all of the business assets of the Seller as provided for in the ASSET
PURCHASE AND SALE AGREEMENT by and between Power Direct, Inc. a Delaware
corporation (Seller's predecessor Company), and Rising Phoenix Development
Group Ltd., a British Columbia corporation, hereinafter referred to as RPDI
Asset Purchase Agreement subject to the liabilities assumed pursuant to the
provisions of this Agreement by the Purchaser and no other liabilities, on
the terms and subject to the conditions specified in this Agreement.
RECITALS
A. The Purchaser desires to acquire, on the terms and subject to the
conditions specified in this Agreement, the business of the Seller insofar
as the same is conducted by the use of the Acquired Assets (as that term is
defined the provisions of Section 1.1 of this Agreement).
B. The Seller believes that it is in the best interests of the
Seller, and, therefore, it desires, to sell the Acquired Assets to the
Purchaser, on the terms and subject to the conditions specified in this
Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL
BE DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL
COVENANTS, PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND
WARRANTIES SPECIFIED IN THIS AGREEMENT AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED LEGALLY AND EQUITABLY, THE
PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT AND WARRANT AS
FOLLOWS:
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ARTICLE I
DEFINITIONS
As used in this Agreement, the capitalized terms specified in this
Agreement shall have the meanings and definitions specified and indicated
by the provisions of this Article I, unless a different and common meaning
of such a term is clearly indicated by the context, and variants and
derivatives of the those terms shall have correlative meanings. To the
extent that certain of the definitions specified in this Article I suggest,
indicate, or express agreements between or among parties to this Agreement,
or contain representations or warranties or covenants of a party, the
parties agree to the same, by execution of this Agreement. Agreements,
representations, warranties and covenants specified in any part or
provision of this Agreement shall for all purposes of this Agreement be
treated in the same manner as other such agreements, representations,
warranties and covenants specified elsewhere in this Agreement, and the
article, section or paragraph of this Agreement within which such an
agreement, representation, warranty, or covenant appears shall have no
separate meaning or effect on the same.
1.1 "Acquired Assets" The assets of the Seller being acquired by
the Purchaser pursuant to the provisions of this Agreement, as specified on
Schedule 2.1 of this Agreement, and all other assets of that the Seller
acquired pursuant to the RPDI Asset Purchase Agreement, whether tangible or
intangible, including contractual, warranty and other rights, the use or
value of which will come within the Control (as that term is defined by the
provisions of Section 1.15 of this Agreement) by the Purchaser when the
Transaction (as that term is defined by the provisions of Section 1.36 of
this Agreement) is consummated.
1.2 "Acquired Business" The business conducted by the Seller in which
the Seller utilized the Acquired Assets, as described on Schedule 2.1 to
this Agreement.
1.3 "Acquired Facilities" All office space, warehouses, stores,
plants, production facilities, manufacturing facilities, fixtures,
furniture, office equipment, computer equipment, common areas, storage
facilities, rights of way, driveways, and improvements owned or leased by
the Seller or otherwise used by the Seller in connection with the operation
of its business or leased or subleased by the Seller to other person or
Entities, but only to the extent that the same consist of Acquired Assets.
1.4 "Affiliate" When used with respect to a person, an "Affiliate"
of that person is a person controlling, controlled by, or under common
control with that person.
1.5 "Agreement" This Asset Purchase and Sale Agreement, including
all of its schedules and exhibits and all other documents specifically
referred to in this Agreement that have been or are to be delivered by a
party to this Agreement to another such party in connection with the
Transaction or this Agreement, and including, but not limited to, all duly
and validly adopted amendments, modifications, and supplements to or of
this Agreement and such schedules, exhibits and other documents.
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1.6 "Assumed Liabilities" The Liabilities (as that term is defined
by the provisions of Section 1.22 of this Agreement) of the Seller being
assumed by the Purchaser pursuant to the provisions of this Agreement, as
specifically identified in Schedule 2.1 to this Agreement, and no other
Liabilities of the Seller or the Acquired Business.
1.7 "Audited Financial Statements" The balance sheet, income
statement, statement of stockholders' equity, and statement of cash flows
or, in each instance, equivalent statements of the respective, subject
corporation as commonly provided to such corporation's shareholders, as at
December 31, 1999, and for the three (3) years then ended, as reported on
by Auditors.
1.8 "Auditors" Independent certified public accountants currently
retained for the purpose of auditing financial statements of the
respective, particular person.
1.9 "Business Day" Any day that is not a Saturday, Sunday or day on
which banks in Wilmington, Delaware are authorized to close.
1.10 "Closing" The completion and consummation of the Transaction, to
occur as contemplated in Article II of this Agreement.
1.11 "Closing Date" The date on which the Closing actually occurs,
which shall be no later than September 20, 2000, unless otherwise agreed by
the parties, but shall not in any event be prior to satisfaction or waiver
of the conditions to Closing specified in Article VII of this Agreement.
1.12 "Closing Time" The time at which the Closing actually occurs. All
events that are to occur at the Closing Time shall, for all purposes, be
deemed to occur simultaneously, except to the extent, if at all, that a
specific order of occurrence is otherwise described.
1.13 "Code" The Internal Revenue Code of 1986, as amended and in
effect on the date the parties sign this Agreement.
1.14 "Consideration" Five million (5,000,000) shares of $.0001 par
value common stock of the Purchaser to be issued by the Purchaser to the
Seller at the Closing ("Subject Shares").
1.15 "Control" Generally, the power to direct the management or
affairs of an Entity.
1.16 "Dollars" of the symbol "$" refers to and shall mean the currency
of the United States of America, unless otherwise specified.
1.17 "Entity" A corporation, trust, association, municipality,
partnership, sole proprietorship, joint venture, or other form of
organization formed for the conduct of a business, whether active or
passive.
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1.18 "ERISA" The Employee Retirement Income Security Act of 1974, as
amended and in effect at the time of execution of this Agreement.
1.19 "GAAP" Generally Accepted Accounting Principles as applied
consistently in the United States of America, as in effect on the date of
any statement, report or determination that purports to be, or is required
to be, prepared or made in accordance with GAAP. All references in this
Agreement to financial statements prepared in accordance with GAAP shall
mean in accordance with GAAP consistently applied throughout the periods to
which reference is made.
1.20 "Inventories" The stock of raw materials, work-in-process and
finished goods, including, but not limited to, finished goods purchased for
resale, held by the Seller for manufacturing, assembly, processing,
finishing, sale, or resale to others from time to time in the ordinary
course of the business of the Seller, in the form in which such inventories
then are held or after manufacturing, assembling, finishing, processing,
incorporating with other goods or items, refining, or similar processes.
1.21 "IRS" The United States Internal Revenue Service.
1.22 "Liabilities" At any time ("Determination Time"), the
obligations of a person or Entity, whether known or unknown, contingent or
absolute, recorded on its books or not, resulting in any way from facts,
events, agreements, obligations or occurrences that existed, occurred or
transpired at a prior time, or resulted from the passage of time to the
Determination Time, but not including obligations accruing or payable after
the Determination Time to the extent (but only to the extent) that such
obligations (a) result from previously existing agreements for services,
benefits, or other considerations and (b) accrue or become payable with
respect to services, benefits, or other considerations received by the
person or Entity after the Determination Time.
1.23 "Multiemployer Plan" A "multiemployer plan," as defined in
Section 3(37) of ERISA or Section 414(f) of the Code, or, in either case,
successor provisions to such provisions adopted by amendments to ERISA or
the Code, as the case may be, and including, in each case, other provisions
of ERISA, of the Code, or of other law, and regulations adopted pursuant to
ERISA, or the Code, or such other law, modifying, amending, interpreting,
or otherwise affecting the application of such provisions, either in
general or as applied to the nature or circumstances of a particular Entity
that is a party to, or is affected by, or is involved in, the Transaction
and with respect to which Entity the use of the term in this Agreement, or
in the particular provision in this Agreement, is relevant.
1.24 "Payables" Liabilities of a person or Entity resulting from
the borrowing of money or the incurring of obligations for merchandise or
goods purchased.
1.25 "Pension Plan" A "pension plan" or "employee pension benefit
plan," as defined in Section 3(2) of ERISA or successor provisions to such
provision adopted by amendments to ERISA and including other provisions of
ERISA; or of other law, and regulations adopted pursuant to ERISA or such
other law, modifying, amending, interpreting, or otherwise affecting the
application of such provision, either in general or as applied to the
nature or circumstances of a particular Entity that is a party to, or is
affected by, or is involved in, the Transaction and with respect to which
Entity the use of the term in this Agreement, or in the particular
provision in this Agreement, is relevant.
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1.26 "Projections" The projections of economic results of the Seller,
prepared quarterly through June 30, 2000, and delivered to the Purchaser
pursuant to the terms of this Agreement. The Projections include projected
financial results for the business operations of the Seller. The Purchaser
acknowledges that projections of future economic performance are
necessarily unreliable and subject to the occurrence or nonoccurrence of a
variety of events, but the Seller represents and warrants that the
Projections have been prepared on the basis of assumptions that are, in the
judgment of the Seller, reasonable in all respects and are not, to the
knowledge of the Seller, contrary in any material respect to fact or to
events that have occurred or are presently in existence.
1.27 "Proprietary Information" For example, but without any
limitation, any and all marketing and sales data, plans and strategies,
financial projections, customer lists, prospective customer lists,
promotional ideas, data concerning services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable, "know-how",
training and sales techniques and any other information of a similar
nature.
1.28 "Proprietary Rights" Trade secrets, copyrights, patents,
trademarks, service marks, customer lists, and all similar types of
intangible property developed, created or owned by the person claiming
ownership, proprietary or similar, or used by such person in connection
with such person's business, whether or not the same are entitled to legal
protection.
1.29 "Purchaser" ASDAR Group, a Nevada corporation, which, pursuant
to the provisions of this Agreement, is purchasing the Acquired Assets.
1.30 "Receivables" Accounts receivable, notes receivable, and other
obligations presented as assets on the books, records and financial
statements of an Entity or a person, in accordance with GAAP, indicating
moneys owed, due and payable to that Entity or person on whose financial
statements such receivables are presented.
1.31 "SEC" The Securities and Exchange Commission.
1.32 "Securities Act" The Securities Act of 1933, as amended to the
date as of which any reference thereto is relevant pursuant to this
Agreement, including any substitute or replacement statute adopted in place
or lieu thereof.
1.33 "Seller" 2U Online.com, Inc., a Delaware corporation, which,
pursuant to the provisions of this Agreement, is selling the Acquired
Assets.
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1.34 "Seller Balance Sheet" The most recent balance sheet included
in the Audited Financial Statements of the Seller.
1.35 "Subsidiary" or "Subsidiaries" With respect to any Entity,
another Entity of which fifty percent (50%) or more of the effective voting
power, or the effective power to elect a majority of the board of directors
or similar governing body, or fifty percent (50%) or more of the true
equity interest, is owned by such first Entity, directly or indirectly.
1.36 "Transaction" The sale of the Acquired Assets, subject to the
Assumed Liabilities, for the consideration as contemplated by, and on the
terms and subject to the conditions of, this Agreement.
1.37 "Unaudited Financial Statements" The balance sheet, income
statement, statement of stockholders' equity and statement of cash flows or
equivalent statements of the respective, subject Entity or person, as
commonly prepared, as at October 31, 1999, with comparable statements for
the similar period of the prior fiscal year.
1.38 "Welfare Plan" A "welfare plan" or an "employee welfare benefit
plan," as defined in Section 3(1) of ERISA or successor provisions to such
provision adopted by amendments to ERISA and including other provisions of
ERISA or of other law, and regulations adopted pursuant to ERISA or such
other law, modifying, amending, interpreting, or otherwise affecting the
application of such provision, either in general or as applied to the
nature or circumstances of a particular Entity that is a party to, or is
affected by, or is involved in, the Transaction and with respect to which
Entity the use of the term in this Agreement, or in the particular
provision in this Agreement, is relevant.
ARTICLE II
THE TRANSACTION
2.1 The Transaction. On the Closing Date, and at the Closing Time,
on, and in all instances subject to, each of the terms, conditions,
provisions and limitations specified in this Agreement, the Seller shall
sell, transfer, convey, assign, deliver and set over to the Purchaser, by
instruments satisfactory in form and substance to the Purchaser, and the
Purchaser shall acquire from the Seller, the Acquired Assets, subject to
the Assumed Liabilities, and only those Liabilities and no others, in
exchange for the Consideration. The assets specified on Schedule 2.1 to
this Agreement, the provisions of which, by this reference, are made a part
of this Agreement as though specified completely and specifically at length
in this Section 2.1, are all the assets reasonably necessary for the
conduct of the Acquired Business in the ordinary course and in the same
manner as that in which such business has been conducted in the immediate
past, including, but not limited to, all Proprietary Rights of the Seller
so used in the ordinary conduct of the Acquired Business and all contract,
warranty, and other intangible rights relating to or resulting from such
Acquired Business. Neither the Purchaser nor any of its Affiliates is
assuming, becoming liable for, agreeing to discharge or in any manner
becoming in any way responsible for, any of the Liabilities of the Seller,
other than those Liabilities expressly specified on Schedule 2.1 and
accepted by the Purchaser pursuant to this Section 2.1.
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2.2 Delivery of Consideration. Pursuant this Transaction, the
Purchaser shall deliver or cause to be delivered on the Closing Date the
certificate evidencing and representing the Subject Shares.
2.3 Closing. The Closing of the Transaction shall occur at the
offices of ASDAR Group, 1239 West Georgia Street, Suite 3004, Vancouver,
B.C., at 10:00 A.M., or at such other place as the Purchaser and the Seller
may agree, on the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
3.1 Organization and Qualification. The Purchaser is a corporation
duly organized, validly existing and in good standing pursuant to the laws
of its jurisdiction of incorporation and has the requisite corporate power
and authority to conduct its business as that business is now being
conducted. The Purchaser is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character
of the properties owned or leased by it, or the nature of its activities,
is such that qualification as a foreign corporation in that jurisdiction is
required by law.
3.2 Authority Relative to This Agreement. The Purchaser has the
requisite corporate power and authority to carry out its obligations
specified by the provisions of this Agreement. The execution and delivery
of this Agreement and the consummation of the Transaction have been duly
authorized and approved by the requisite corporate authority of the
Purchaser and no other corporate proceedings on the part of the Purchaser
are necessary to approve and adopt this Agreement or to approve the consum-
mation of the Transaction, including the issuance and delivery of the
Subject Shares. The Purchaser has, and any officer, director or
representative executing this Agreement for and on behalf of the Purchaser
has, the legal capacity and authority to enter into and deliver this
Agreement. This Agreement is a valid and legally binding obligation of the
Purchaser and is enforceable completely against the Purchaser 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, and subject to approval of any and
all governmental regulatory agencies and authorities having jurisdiction of
the relationship between the parties contemplated by the provisions of this
Agreement and the Transaction.
3.3 Absence of Breach; No Consents. The execution, delivery and
performance of this Agreement, and the performance by the Purchaser of its
obligations specified by the provisions of this Agreement (except for
compliance with any regulatory or licensing laws applicable to the business
of the Purchaser, all of which, to the extent applicable to the Purchaser
(and to the extent within its Control), will be satisfied in all material
respects prior to the Closing) do not (i) conflict with, and will not
result in a breach of, any of the provisions of the Certificate of
Incorporation or Bylaws of the Purchaser; (ii) contravene any law, rule or
regulation of any state or commonwealth, the United States, (except for
compliance with regulatory or licensing laws, all of which, to the extent
applicable to the Purchaser (and to the extent within the Control of the
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Purchaser), will be satisfied in all material respects prior to the
Closing), or any applicable foreign jurisdiction, or contravene any order,
writ, judgment, injunction, decree, determination, or award affecting or
obligating the Purchaser, in such a manner as to provide a basis for
enjoining or otherwise preventing consummation of the Transaction; (iii)
conflict with or result in a material breach of or default pursuant to any
material indenture or loan or credit agreement or any other material
agreement or instrument to which the Purchaser is a party, in such a manner
as to provide a basis for enjoining or otherwise preventing consummation of
the Transaction; or (iv) require the authorization, consent, approval or
license of any third party of such a nature that the failure to obtain the
same would provide a basis for enjoining or otherwise preventing
consummation of the Transaction.
3.4 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of Purchaser or any of
its Subsidiaries except as stated in Exhibit B.
3.5 Taxes. The Purchaser has properly filed or caused to be filed all
federal, state, local and foreign income and other tax returns, reports and
declarations that are required by applicable law to be filed by the
Purchaser and has paid, or made full and adequate provision for the payment
of, all federal, state, local and foreign income and other taxes properly
due for the periods for which such returns, reports and declarations are
applicable.
3.6 Litigation. No investigation or review by any governmental agency
with respect to the Purchaser is pending or threatened (other than
inspections and reviews customarily made of businesses such similar to that
the Purchaser), nor has any governmental agency indicated to the Purchaser
an intention to conduct the same. There is no action, litigation matter or
proceeding pending or threatened against or affecting the Purchaser at law
or in equity, or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality.
3.7 Employees, Etc. There are no collective bargaining, bonus, profit
sharing, compensation, or other plans, agreements, trusts, funds, or
arrangements maintained by the Purchaser for the benefit of directors,
officers or employees of, and there are no employment, consulting,
severance, or indemnification arrangements, agreements, or understandings
between the Purchaser, on the one hand, and any current or former
directors, officers or other employees (or Affiliates thereof), on the
other hand, except as disclosed to the Seller in writing. The Purchaser is
not, and following the Closing will not be, obligated by any express or
implied contract or agreement to employ, directly or as consultant or
otherwise, any person for any specific period of time or until any specific
age.
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3.8 Compliance With Laws. The Purchaser is in compliance with all,
and has received no notice of any violation of any, laws or regulations
applicable to its operations, including, but not limited to, the laws and
regulations relevant to the use or utilization of premises, or with respect
to which compliance is a condition of engaging in any aspect of the
business of the Purchaser and the Purchaser has all permits, licenses,
zoning rights and other governmental authorizations necessary to conduct
its business as presently conducted.
3.9 Ownership of Assets. The Purchaser has good, marketable and
insurable title, or valid, effective and continuing leasehold rights in the
case of leased property, to all real property (as to which, in the case of
owned property, such title is fee simple) and all personal property owned
or leased by the Purchaser in such a manner as to create the appearance or
reasonable expectation that the same is owned or leased by the Purchaser;
such ownership is free and clear of all liens, claims, encumbrances and
charges, except liens for taxes not yet due and minor imperfections of
title and encumbrances, if any, which, singly and in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or materially impair the use thereof; no other
person or Entity has any ownership or similar right in, or contractual or
other right to acquire any such right in, any of such assets. The
Purchaser does not know of any potential action by any party, governmental
or other, and no proceedings with respect thereto have been instituted of
which the Purchaser has notice, that would materially affect the
Purchaser's ability to use and to utilize each of the Purchaser's assets.
The Purchaser has received no notices from any mortgagee regarding any of
its leased properties.
3.10 Proprietary Rights. The Purchaser possesses full and complete
ownership of, or adequate and enforceable long-term licenses or other
rights to use (without payment), all of the Purchaser's Proprietary Rights;
the Purchaser has not received any notice of conflict which asserts the
rights of others with respect thereto; and the Purchaser has in all
material respects performed all of the obligations required to be performed
by the Purchaser, and is not in default in any material respect, pursuant
to any agreement relating to any such Proprietary Right.
3.11 Subsidiaries. All of the Subsidiaries of Purchaser, direct or
indirect, have been identified by the Purchaser to the Seller, and the
Purchaser has no other Subsidiaries.
3.12 Trade Names. The Purchaser has not utilized any fictitious
business names or similar names in the conduct of the Purchaser's business
or in the utilization of the Purchaser's assets.
3.13 Employee Benefit Plans. The Purchaser does not maintain or
contribute to any Pension Plan or any Welfare Plan, nor is the Purchaser
presently, nor has the Purchaser been within the last six (6) years, a
participating employer in any Multiemployer Plan, affecting, in any case,
employees of the Purchaser.
3.14 Accounts Receivable. All accounts receivable of the Purchaser
represent transactions in the ordinary course of business and are current
and collectible.
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3.15 Accounts Payable. The accounts payable of the Purchaser at the
time of the Closing will be all amounts owed by the Purchaser in respect of
trade accounts due and other Payables of the Purchaser.
3.16 Labor Matters. There are no activities or controversies,
including, but not limited to, any labor organizing activities, election
petitions or proceedings, proceedings preparatory thereto, unfair labor
practice complaints, labor strikes, disputes, slowdowns, or work stoppages,
pending or, to the best of the knowledge of the Purchaser, threatened,
affecting employees of the Purchaser.
3.17 Insurance. The Purchaser has insurance policies in full force and
effect insuring the assets of the Purchaser and such insurance policies
provide for coverages which are usual and customary in the business of the
Purchaser as to amount and scope, and are adequate to protect the assets of
the Purchaser against any reasonably foreseeable risk of loss, including
business interruption. The Purchaser has not within the past three (3)
years received any notice of cancellation of any insurance agreement
affecting the assets of the Purchaser.
3.18 Full Disclosure. The documents, certificates and other writings
furnished or to be furnished by or on behalf of the Purchaser to the Seller
pursuant to the provisions of this Agreement, taken together in the
aggregate, do not and will not contain any untrue statement of a material
fact, or omit to specify any material fact necessary to make the
information specified therein, considering the circumstances pursuant to
which such information was specified not misleading.
3.19 Capitalization; the Subject Stock; Related Matters. The
authorized capital stock of the Purchaser consists of Fifty Million
(50,000,000) shares of $.0001 par value common stock. As of the date of
this Agreement, there are Four Million Twenty Six Thousand Nine Hundred and
Ninety Nine (4,026,999) shares of such common stock issued and outstanding.
The Subject Shares, when issued, will be duly, legally and validly issued
and will be non-assessable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
4.1 Organization and Qualification. The Seller is a corporation duly
organized, validly existing and in good standing pursuant to the laws of
its jurisdiction of incorporation and has the requisite corporate power and
authority to conduct its business as that business is now being conducted.
The Seller is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of the
properties owned or leased by it, or the nature of its activities, is such
that qualification as a foreign corporation in that jurisdiction is
required by law.
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4.2 Authority Relative to This Agreement. The Seller has the
requisite corporate power and authority to carry out its obligations
specified by the provisions of this Agreement. The execution and delivery
of this Agreement and the consummation of the Transaction have been duly
authorized and approved by the requisite corporate authority of the Seller
and no other corporate proceedings on the part of the Seller are necessary
to approve and adopt this Agreement or to approve the consummation of the
Transaction, including the sale and delivery of the Acquired Business and
each of the Acquired Assets, except for shareholder approval specified
elsewhere in this Agreement. The Seller has, and any officer, director or
representative executing this Agreement for and on behalf of the Seller
has, the legal capacity and authority to enter into and deliver this
Agreement. This Agreement is a valid and legally binding obligation of the
Seller and is enforceable completely against the Seller 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, and subject to approval of any and
all governmental regulatory agencies and authorities having jurisdiction of
the relationship between the parties contemplated by the provisions of this
Agreement and the Transaction.
4.3 Absence of Breach; No Consents. The execution, delivery and
performance of this Agreement, and the performance by the Seller of its
obligations specified by the provisions of this Agreement, do not (i)
contravene any law, ordinance, rule or regulation of any State or
Commonwealth or political subdivision of the United States, except for and
compliance with regulatory or licensing laws all of which, to the extent
applicable to the Seller (and to the extent within the Control of the
Seller), will be satisfied in all material respects prior to the Closing),
or of any applicable foreign jurisdiction, or contravene any order, writ,
judgment, injunction, decree determination, or award of any court or other
authority having jurisdiction, or cause the suspension or revocation of any
authorization, consent, approval, or license, presently in effect, which
affects or obligates the Seller or all or any part of the Acquired Business
or any of the Acquired Assets or any material properties of the Acquired
Business, except in any such event when such contravention will not have a
material adverse effect on the business, condition (financial or
otherwise), operations or prospects of the Acquired Business or any of the
Acquired Assets and will not have a material adverse effect on the validity
of this Agreement or on the validity of the consummation the Transaction;
(ii) conflict with or result in a material breach of or default under any
material indenture or loan or credit agreement or any other material
agreement or instrument to which the Seller or any of part of the Acquired
Business is a party or by which any of the material properties of the
Acquired Business may be affected or obligated; (iii) require the
authorization, consent, approval, or license of any third party; or (iv)
provide justification for the loss or suspension of any permits, licenses,
or other authorizations used in the Acquired Business.
4.4 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's, or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of Seller or any of its
Subsidiaries. The Seller does not have any obligation to pay finder's or
broker's fees or commissions in connection with the exercise of options to
renew or extend real estate leases to which the Seller is a party.
4.5 Financial Statements. On or before the Closing, the Seller will
deliver or cause to be delivered to the Purchaser the following:
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1. Audited Financial Statements;
2. Unaudited Financial Statements;
3. All documents of the Seller filed with the SEC within the four
(4) years preceding the date of execution of this Agreement; and
4. The Projections.
All of the historical financial statements contained in such documents
were prepared from the books and records of the Seller. The Audited
Financial Statements were prepared in accordance with GAAP, and fairly and
accurately present the financial situation and condition of the Seller as
at the dates and for the periods indicated. Without limiting the
foregoing, at the date of the Seller Balance Sheet, the Seller owned each
of the assets specified on the Seller Balance Sheet, and the valuation of
such assets in the Seller Balance Sheet is not more than their fair
saleable value (on an item-by-item basis) at that date; and the Seller had
no Liabilities, other than those specified in the Seller Balance Sheet, nor
any Liabilities in amounts in excess of the amounts included for them in
the Seller Balance Sheet. The Unaudited Financial Statements were prepared
in a manner consistent with the basis of presentation used in the Audited
Financial Statements, and fairly present the financial situation and
condition of the Seller as at and for the periods indicated, subject to
normal year-end adjustments, none of which will be material. The
Projections reasonably anticipate the results of operations that the Seller
expects it will achieve, absent the occurrence of extraordinary events or
unusual conditions of which the Seller is not presently on notice. From
the date of this Agreement through the Closing Date the Seller will
continue to prepare financial statements on the same basis that it has done
so in the past, will promptly deliver the same to the Purchaser, and the
foregoing representations will be applicable to each financial statement so
prepared and delivered.
4.6 No Undisclosed Liabilities. The Seller has no Liabilities which
are not adequately presented or reserved against on the Seller Balance
Sheet, except Liabilities incurred since the date of the Seller Balance
Sheet in the ordinary course of business and consistent with past practice.
Without limiting the foregoing, (a) there are no unpaid leasehold
improvements at any of the Acquired Facilities or locations for which the
Seller is or will be responsible and (b) there are no deferred rents due to
lessors at or with respect to any of such Acquired Facilities or locations.
4.7 No Material Adverse Change, Etc. Since the date of the Seller
Balance Sheet, other than as contemplated or caused by this Agreement,
there has not been (i) any material adverse change in the business,
condition (financial or otherwise), operations, or prospects of the Seller;
(ii) any damage, destruction, or loss, whether covered by insurance or not,
having a material adverse effect on the business, condition (financial or
otherwise), operations or prospects of the Seller; (iii) any entry into or
termination of any material commitment, contract, agreement or transaction
(including, but not limited to, any material borrowing or capital
expenditure or sale or other disposition of any material asset or assets)
of or involving the Seller, other than this Agreement and agreements
executed in the ordinary course of business; (iv) any redemption,
repurchase or other acquisition for value of its capital stock by the
Seller, or any issuance of capital stock of the Seller or of securities
convertible into or rights to acquire any such capital stock or any
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dividend or distribution declared, set aside or paid on capital stock of
the Seller; (v) any transfer of or right granted pursuant to any material
lease, license, agreement, patent, trademark, trade name or copyright of
the Seller; (vi) any sale or other disposition of any asset of the Seller,
or any mortgage, pledge or imposition of any lien or other encumbrance on
any asset of the Seller, other than in the ordinary course of business, or
any agreement relating to any of the foregoing; or (vii) any default or
breach by the Seller in any material respect pursuant to any contract,
license or permit. Since the date of the Seller Balance Sheet, the Seller
has conducted its business only in the ordinary and usual course, and,
without limiting the foregoing, no changes have been made in (i) executive
compensation amounts, (ii) the manner in which other employees of the
Seller are compensated, (iii) supplemental benefits provided to any such
executives or other employees, or (d) inventory amounts in relation to
sales amounts, except, in any such event, in the ordinary course of
business and, in any event, without material adverse effect on the
business, condition (financial or otherwise), operations or prospects of
the Seller.
4.8 Taxes. The Seller has properly filed or caused to be filed all
federal. state, local and foreign income and other tax returns, reports and
declarations that are required by applicable law to be filed by the Seller
and that relate to or in any way affect the Acquired Business or the
Acquired Assets and has paid, or made full and adequate provision for the
payment of, all federal, state, local and foreign income and other taxes
properly due for the periods for which such returns, reports and
declarations are applicable.
4.9 Litigation. No investigation or review by any governmental agency
with respect to the Acquired Business or any of the Acquired Assets or the
use thereof is pending or threatened (other than inspections and reviews
customarily made of businesses such as the Acquired Business), nor has any
governmental agency indicated to the Seller an intention to conduct the
same. There is no action, litigation matter or proceeding pending or
threatened against or affecting the Acquired Business or the Acquired
Assets at law or in equity, or before any federal, state, municipal, or
other governmental department, commission, board, bureau, agency or
instrumentality.
4.10 Employees, Etc. There are no collective bargaining, bonus, profit
sharing, compensation or other plans, agreements, trusts, funds or
arrangements maintained by the Seller, and there are no employment,
consulting, severance or indemnification arrangements, agreements, or
understandings between the Seller, on the one hand, and any current or
former employees of the Seller (or Affiliates thereof), on the other hand.
The Seller is not, and following the Closing will not be, obligated by any
express or implied contract or agreement to employ, directly, or as a
consultant or otherwise, any person for any specific period of time or
until any specific age.
4.11 Compliance With Laws. The Acquired Business and each of the
Acquired Assets is in compliance with all, and has received no notice of
any violation of any, laws or regulations applicable to the operations of
the Acquired Business, including, but not limited to, the laws and
regulations relevant to the use or utilization of premises, or with respect
to which compliance is a condition of engaging in any aspect of the
business of the Acquired Business or utilizing any of the Acquired Assets,
and the Acquired Business has all permits, licenses, zoning rights and
other governmental authorizations necessary to conduct the Acquired
Business as presently conducted. All such permits, licenses, zoning rights
and other governmental authorizations will, as a part and consequence of
the Transaction, be transferred to the Purchaser at the Closing.
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4.12 Ownership of Assets. The Seller has good, marketable and
insurable title, or valid, effective and continuing leasehold rights in the
case of leased property, to all real property (as to which, in the case of
owned property, such title is fee simple) and all personal property owned
or leased by the Seller and comprising any part of the Acquired Assets or
the Acquired Business, or used by it in the conduct of the Acquired
Business in such a manner as to create the appearance or reasonable
expectation that the same is owned or leased by the Seller; such ownership
is free and clear of all liens, claims, encumbrances and charges, except
liens for taxes not yet due and minor imperfections of title and
encumbrances, if any, which, singly and in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or materially impair the use thereof; no other
person or Entity has any ownership or similar right in, or contractual or
other right to acquire any such right in, any of such assets; and such
ownership will be conveyed to the Purchaser at the Closing pursuant to the
Transaction. The Seller does not know of any potential action by any party,
governmental or other, and no proceedings with respect thereto have been
instituted of which the Seller has notice, that would materially affect the
Purchaser's ability to use and to utilize each of such assets in the
business of the Acquired Business. The Seller has received no notices from
any mortgagee regarding any leased properties of the Acquired Business or
the leasehold interest in which comprises any part of the Acquired Assets.
4.13 Proprietary Rights. The Seller possesses full and complete
ownership of, or adequate and enforceable long-term licenses or other
rights to use (without payment), all Proprietary Rights used in the
Acquired Business or utilized in conjunction with the Acquired Assets, and
all such ownership, license or other rights shall be conveyed to the
Purchaser at the Closing pursuant to the Transaction; the Seller has not
received any notice of conflict which asserts the rights of any other
person or Entity with respect thereto; and the Seller has in all material
respects performed all of the obligations required to be performed by the
Seller, and is not in default in any material respect, pursuant to any
agreement relating to any such Proprietary Right.
4.14 Trade Names. The Seller has not utilized any trade name,
fictitious business name, or other similar name to conduct any part of the
Acquired Business or to utilize any of the Acquired Assets during the ten
(10) years preceding the date of this Agreement.
4.15 Employee Benefit Plans. The Seller does not maintain or
contribute to any Pension Plan or Welfare Plan, nor is the Seller
presently, nor has the Seller been within the last six (6) years, a
participating employer in any Multiemployer Plan, affecting, in any case,
employees of the Acquired Business or employees of the Seller.
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4.16 Facilities. The Acquired Facilities are (as to physical plant and
structure) structurally sound and none of the Acquired Facilities, nor any
of the vehicles or other equipment used by the Seller in connection with
the Acquired Business, has any material defects and all of them are in all
material respects in good operating condition and repair and are adequate
for the uses to which they are being put; none of such Acquired Facilities,
vehicles or other equipment is in need of maintenance or repairs except for
ordinary, routine maintenance and repairs which are not material in nature
or cost. The Seller is not in breach, violation or default of any lease
affecting the Acquired Business or the Acquired Assets with respect to, or
as a result of, which the other party (whether lessor, lessee, sublessor,
or sublessee) thereto has the right to terminate the same, and the Seller
has not received notice of any claim or assertion that the Seller is or may
be in any such breach, violation or default.
4.17 Accounts Receivable. All accounts receivable of the Seller,
whether or not specified on the Seller Balance Sheet, represent
transactions in the ordinary course of business, and are current and
collectible net of any reserves specified on the Seller Balance Sheet
(which reserves are adequate and were calculated consistent with past
practice).
4.18 Inventories. All Inventories of the Seller are of a quality and
quantity usable and salable in the ordinary course of business, except for
obsolete items and items of below-standard quality, all of which, in the
aggregate, are immaterial in amount. Items included in such Inventories are
carried on the books of the Seller at the lower of cost or market and, in
any event, at not greater than their net realizable value, on an item by
item basis, after appropriate deduction for costs of completion, marketing
costs, transportation expenses and allocation of overhead.
4.19 Contracts. The Schedule 4.19 to this Agreement specifies all
contracts, agreements, or understandings, whether express or implied,
written or verbal, to which the Seller is a party. Schedule 4.19 to this
Agreement also specifies a brief summary of each such contract, agreement
or understanding identified therein. Without in any respect limiting the
foregoing, Schedule 4.19 to this Agreement specifies a description of all
leases of properties by the Seller, including all amendments, supplements,
extensions and modification thereof, identifying, inter alia, the date each
such document was executed and its effective period. The Seller is not a
party to any executory contract to sell or transfer any part of any
leasehold interest of the Seller. True and accurate copies of all leases,
and of all amendments, supplements, extensions, modifications thereof, have
heretofore been delivered to the Purchaser by the Seller.
4.20 Accounts Payable. The accounts payable specified on the Seller
Balance Sheet do, and those specified in the most recent balance sheet
included in the Unaudited Financial Statements do, and those specified on
the books and records of the Seller at the time of the Closing will,
specify all amounts owed by the Seller in respect of trade accounts due and
other Payables, and the actual Liabilities of the Seller in respect of such
obligations was not, and will not be, on any of such dates, in excess of
the amounts so specified on the balance sheets or the books and records of
the Seller, as the case may be.
4.21 Labor Matters. There are no activities or controversies,
including, but not limited to, any labor organizing activities, election
petitions or proceedings, proceedings preparatory thereto, unfair labor
practice complaints, labor strikes, disputes, slowdowns, or work stoppages,
pending or, to the best of the knowledge of the Seller, threatened, affect-
ing employees of the Seller.
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4.22 Insurance. The Seller has insurance policies in full force and
effect insuring the Acquired Assets and the Acquired Business, and such
insurance policies provide for coverages which are usual and customary in
the business of the Acquired Business as to amount and scope, and are
adequate to protect the Acquired Business and the Acquired Assets against
any reasonably foreseeable risk of loss, including business interruption.
The Seller has not within the past three (3) years received any notice of
cancellation of any insurance agreement affecting the Acquired Assets or
the Acquired Business.
4.23 Title to and Utilization of Real Properties. The Seller owns fee,
simple, insured title to all real property included in the Acquired Assets
and has the unfettered right to use the same, and is not aware of any
claim, notice or threat to the effect that the Seller's right to own and
use such property is subject in any way to any challenge, claim, assertion
of rights, proceeding toward condemnation or confiscation, in whole or in
part, or is otherwise subject to challenge. Each parcel of real property
the ownership of, or leasehold interest in, which is included among the
Acquired Assets is free of any and all hazardous wastes, toxic substances,
or other types of contamination or matters of environmental concern, and
the Seller is not subject to any liability resulting from or related to any
such wastes, substances, contaminants or matters of environmental concern
in connection with any such property. The Seller has, in conjunction with
acquiring ownership of, or any leasehold interest in, each parcel of real
property the ownership of, or leasehold interest in, which is included
among the Acquired Assets, (i) caused an audit and examination to be made
as to the existence of any hazardous wastes, toxic substances or other
types of contamination or matters of environmental concern affecting each
such property, which examination indicated that such property was free of
any such wastes, substances, contaminants or other matters of environmental
concern, and the Seller has delivered a copy of the report of such audit
and examination to the Purchaser; and (ii) obtained an appropriate policy
of title insurance insuring the interest of the Seller in such property,
which insurance policy was not subject to any exceptions not reasonably
acceptable in the ordinary course of business, and a copy of which has been
delivered to the Purchaser.
4.24 Full Disclosure. The documents, certificates, and other writings
furnished or to be furnished by or on behalf of the Seller to the Purchaser
pursuant to the provisions of this Agreement, taken together in the
aggregate, do not and will not contain any untrue statement of a material
fact, or omit to specify any material fact necessary to make the
information specified, considering the circumstances pursuant to which such
information was specified, not misleading.
4.25 Actions Since Seller Balance Sheet Date. Since the date of the
Seller Balance Sheet, the Seller has taken no actions that would be
prohibited pursuant to the provisions of this Agreement (without the prior
consent of the Purchaser) after the date of this Agreement.
4.26 The Seller's Acquisition Intention. Seller represents and
confirms to the Purchaser that it (i) is an "accredited investor" within
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the meaning of Rule 501(a) pursuant to the Securities Act or, if not such
an accredited investor, has, alone or together with a purchaser
representative within the meaning of Rule 501(h) pursuant to the Securities
Act, such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Purchaser's securities; (ii) is aware of the limits on resale of the
Subject Shares imposed because of the nature of the Transaction (Rule 144);
and (iii) is receiving the Subject Shares without registration pursuant to
the Securities Act, in reliance on that exemption from registration and
prospectus delivery requirements of the Securities Act specified by
Regulation S promulgated pursuant to the Securities Act for investment, and
without any intent to sale, resale, or otherwise distribute the Subject
Shares in any manner that is in violation of the Securities Act. The
certificates representing the Subject Shares, when delivered to the Seller
at the Closing, may have appropriate orders restricting transfer placed
against them on the records of the transfer agent for such securities, and
may have placed upon them the following legend:
THE SUBJECT SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933. THE SUBJECT SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE SECURITIES ACT OF 1933, OR A PRIOR OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
Seller shall not transfer or attempt any transfer of any the Subject
Shares without first complying with the substance of that legend, and
satisfaction of the Purchaser may, if the Purchaser so requests, depend in
part upon an opinion of counsel acceptable in form and substance to the
Purchaser, a no-action letter of the SEC, or equivalent evidence. Seller
acknowledges, without limitation, that the foregoing agreement and
representation shall apply to the Subject Shares issued to Seller.
ARTICLE V
COVENANTS OF THE PURCHASER
5.1 Affirmative Covenants. From the date of this Agreement through
the Closing Date, the Purchaser will take every action reasonably required
of the Purchaser in order to satisfy the conditions to Closing set forth in
this Agreement and otherwise to ensure the prompt and expedient
consummation of the Transaction, substantially as contemplated by this
Agreement and will exert all reasonable efforts to cause the Transaction to
be consummated; provided, however, in all instances that the
representations and warranties of the Seller in this Agreement are and
remain true and accurate and that the covenants and agreements of the
Seller in this Agreement are honored and that the conditions to the
obligations of the Purchaser set forth in this Agreement are not incapable
of satisfaction.
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5.2 Cooperation. The Purchaser shall cooperate with the Seller and
its counsel, accountants and agents in every way in closing and
consummating the Transaction and in delivering all documents and
instruments deemed reasonably necessary or useful by counsel to the Seller.
5.3 Expenses. Whether or not the Transaction is consummated, all
costs and expenses incurred by the Purchaser in connection with this
Agreement and the Transaction shall be paid by the Purchaser.
5.4 Publicity. Prior to the Closing any written news releases by the
Purchaser pertaining to this Agreement or the Transaction shall be
submitted to the Seller for review and approval prior to release by the
Purchaser, and shall be released only in a form approved by the Seller;
provided, however, that (i) such approval shall not be unreasonably
withheld, and (ii) such review and approval shall not be required of
releases by the Purchaser, if prior review and approval would prevent the
timely and accurate dissemination of such press release as required to
comply, in the judgment of counsel, with any applicable law, rule or
policy.
5.5 Access and Information. The Purchaser shall provide to the Seller
and to the Seller's accountants, counsel, and other representatives
reasonable access during normal business hours throughout the period prior
to the Closing to all of the Purchaser's properties, books, contracts,
commitments, records (including, but not limited to, tax returns) and
personnel relating to the Purchaser and, during such period, the Purchaser
shall furnish promptly to the Seller (i) all written communications
relating to the business of the Purchaser, (ii) internal monthly financial
statements of the Purchaser when and as available, and (iii) all other
information relating to the business of the Purchaser, as the Seller may
reasonably request, but no investigation pursuant to this Section 5.5 shall
affect any representations or warranties of the Purchaser or the conditions
to the obligations of the Seller to consummate the Transaction. In the
event of the termination of this Agreement, the Seller will, and will cause
its representatives to, deliver to the Purchaser or, upon Purchaser's
request, destroy all documents, work papers and other material, and all
copies thereof, obtained by the Seller or on the Seller's behalf from the
Purchaser as a result of this Agreement or in connection with this
Agreement or the Transaction, whether so obtained before or after the
execution of this Agreement, and will hold in confidence all confidential
information that has been designated as such by the Purchaser in writing or
by appropriate and obvious notation and will not use any such confidential
information, except in connection with the Transaction, until such time as
such information is otherwise publicly available. Seller and its
representatives shall assert their rights pursuant to this Section 5.5 in
such manner as to minimize interference with the business of the Purchaser.
5.6 Conduct of Business Pending the Transaction. Prior to the
consummation of the Transaction or the termination of this Agreement
pursuant to its terms, unless the Seller shall otherwise consent in
writing, which consent shall not be unreasonably withheld or delayed, and
except as otherwise contemplated by this Agreement, the Purchaser will
comply with each of the following:
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(1) The business of the Purchaser will be conducted only in the
ordinary and usual course, the Purchaser shall keep intact the
business organization and goodwill of the Purchaser's business,
keep available the services of the employees of the Purchaser and
maintain good relationships with suppliers, lenders, creditors,
distributors, employees, customers and others having business or
financial relationships with the Purchaser, and the Purchaser
shall immediately notify the Seller of any event or occurrence or
emergency material to, and not in the ordinary and usual course
of business of, the Purchaser;
(2) The Purchaser shall not create, incur or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, affecting
the business of the Purchaser;
(3) The Purchaser shall not (a) adopt, enter into, or amend any
bonus, profit sharing, compensation, stock option, warrant,
pension, retirement, deferred compensation, employment,
severance, termination, or other employee benefit plan,
agreement, trust fund, or arrangement for the benefit or welfare
of any employees of the Purchaser or (b) agree to any material
(in relation to historical compensation) increase in the
compensation payable or to become payable to, or any increase in
the contractual term of employment of, any such employee;
(4) The Purchaser shall not sell, lease, mortgage, encumber, or
otherwise dispose of or grant any interest in any of its assets;
(5) The Purchaser shall not enter into, or terminate, any material
contract, agreement, commitment, or understanding relating to or
affecting the business of the Purchaser;
(6) The Purchaser shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, with respect to
any of the matters referred to in subparagraphs (1) through (5)
above;
(7) The Purchaser will continue properly and promptly to file when
due all federal, state, local, foreign and other tax returns,
reports and declarations required to be filed by the Purchaser,
and will pay, or make full and adequate provision for the payment
of, all taxes and governmental charges due from or payable by the
Purchaser;
(8) The Purchaser will comply with all laws and regulations
applicable to the operations of the Purchaser;
(9) The Purchaser shall not issue or agree to issue any additional
shares of, or rights of any kind to acquire any shares of, the
Purchaser's capital stock of any class, or enter into any
contract, agreement, commitment, or arrangement with respect to
any of the foregoing, except as provided in Exhibit "B"; and
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(10) The Purchaser will maintain in full force and effect insurance
coverage relating to the Purchaser's business of a type and
amount customary in the business of the Purchaser (but not less
than that presently in effect).
5.7 Updating of Exhibits. The Purchaser shall notify the Seller of
any changes, additions or events which may cause any change in or addition
or events to any schedules or exhibits delivered by the Purchaser pursuant
to this Agreement, promptly after the occurrence of the same and at the
Closing by the delivery of updates of all schedules and exhibits. No
notification made pursuant to this section shall be deemed to cure any
breach of any representation or warranty made in this Agreement, unless the
Seller specifically agrees thereto in writing nor shall any such
notification be considered to constitute or be a waiver by the Seller of
any condition set forth in this Agreement.
5.8 Issuance and delivery of the Subject Shares. On the Closing, the
Purchaser shall issue and deliver or caused to be issued and delivered to
the Seller a certificate evidencing Five Million (5,000,000) shares of the
Purchaser's $.0001 par value common stock, which certificate shall specify
appropriate legend regarding the restricted nature of those shares.
ARTICLE VI
COVENANTS OF THE SELLER
6.1 Affirmative Covenants. From the date of this Agreement through
the Closing Date, the Seller will take every action reasonably required of
the Seller to satisfy the conditions to closing set forth in this Agreement
and otherwise to ensure the prompt and expedient consummation of the
Transaction substantially as contemplated hereby and will exert all
reasonable efforts to cause the Transaction to be consummated; provided,
however, in all instances that the representations and warranties of the
Purchaser in this Agreement are and remain true and accurate and that the
covenants and agreements of the Purchaser in this Agreement are correct and
that the conditions to the obligations of the Seller set forth in this
Agreement are not incapable of satisfaction.
6.2 Name. The Seller agrees that following consummation of the
Transaction, neither the Seller nor any Entity the Seller Controls or
Affiliate of the Seller shall make any attempt to make any use of any name
pursuant to which the Seller has conducted the Acquired Business, or
authorize any other person or Entity to do so, without the consent of the
Purchaser.
6.3 Access and Information. The Seller shall provide to the Purchaser
and to the Purchaser's accountants, counsel and other representatives
reasonable access during normal business hours throughout the period prior
to the Closing to all of its properties, books, contracts, commitments,
records (including, but not limited to, tax returns) and personnel relating
to the Acquired Assets or the Acquired Business and, during such period,
the Seller shall furnish promptly to the Purchaser (i) all written
communications relating to the Acquired Assets or the Acquired Business,
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(ii) internal monthly financial statements of the Acquired Business when
and as available, and (iii) all other information relating to the Acquired
Assets or the Acquired Business as the Purchaser may reasonably request,
but no investigation pursuant to this Section 6.3 shall affect any
representations or warranties of the Seller, or the conditions to the
obligations of the Purchaser to consummate the Transaction. In the event of
the termination of this Agreement, the Purchaser will, and will cause the
Purchaser's representatives to, deliver to the Seller or, upon Seller's
request, destroy all documents, work papers, and other material, and all
copies thereof, obtained by the Purchaser or on the Purchaser's behalf from
the Seller as a result of this Agreement or in connection with this
Agreement or the Transaction, whether so obtained before or after the
execution of this Agreement, and will hold in confidence all confidential
information that has been designated as such by the Seller in writing or by
appropriate and obvious notation, and will not use any such confidential
information except in connection with the Transaction, until such time as
such information is otherwise publicly available. Purchaser and its
representatives shall assert their rights pursuant to this Section 6.3 in
such manner as to minimize interference with the business of the Seller.
6.4 No Solicitation. The Seller and those acting on behalf of the
Seller will not, and the Seller will use its best efforts to cause its
employees, agents, and representatives (including any investment banker)
not, directly or indirectly, to solicit, encourage, or initiate any
discussions with, or negotiate or otherwise deal with, or provide any
information to, any person or Entity other than the Purchaser and its
officers, employees, and agents, relating to the Acquired Assets or the
Acquired Business. The Seller will notify the Purchaser immediately upon
receipt of any inquiry, offer or proposal relating to any of the foregoing.
None of the foregoing shall prohibit providing information to others in a
manner in keeping with the ordinary conduct of the Seller's business, or
providing information to government authorities.
6.5 Conduct of Business Pending the Transaction. The Seller covenants
and agrees with the Purchaser that, prior to the consummation of the
Transaction or the termination of this Agreement pursuant to its terms,
unless the Purchaser shall otherwise consent in writing, which consent
shall not be unreasonably withheld or delayed, and except as otherwise
contemplated by this Agreement, the Seller will comply with each of the
following:
(1) The Acquired Business, and the other businesses of the Seller
that relate to, use or affect the Acquired Assets, if any, will
be conducted only in the ordinary and usual course, the Seller
shall keep intact the business organization and goodwill of the
Acquired Business, keep available the services of the employees
of the Seller and maintain good relationships with suppliers,
lenders, creditors, distributors, employees, customers and others
having business or financial relationships with the Acquired
Business, and the Seller shall immediately notify the Purchaser
of any event or occurrence or emergency material to, and not in
the ordinary and usual course of business of, the Acquired
Business or affecting any material part of the Acquired Assets;
(2) The Seller shall not create, incur or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, affecting
the Acquired Business or any of the Acquired Assets, except in
the ordinary course of business and consistent with past
practice;
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(3) The Seller shall not (a) adopt, enter into, or amend any bonus,
profit sharing, compensation, stock option, warrant, pension,
retirement, deferred compensation, employment, severance,
termination, or other employee benefit plan, agreement, trust
fund, or arrangement for the benefit or welfare of any employees
of the Seller, or (b) agree to any material (in relation to
historical compensation) increase in the compensation payable or
to become payable to, or any increase in the contractual term of
employment of, any such employee;
(4) The Seller shall not sell, lease, mortgage, encumber, or
otherwise dispose of or grant any interest in any of the Acquired
Assets except for sales, encumbrances and other dispositions or
grants in the ordinary course of business of the Acquired
Business and consistent with past practice and except for liens
for taxes not yet due or liens or encumbrances that are not
material in amount or effect and do not impair the use of the
property, or as specifically provided for or permitted in this
Agreement;
(5) The Seller shall not enter into, or terminate, any material
contract, agreement, commitment, or understanding relating to or
affecting the Acquired Assets or the Acquired Business;
(6) The Seller shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, with respect to
any of the matters referred to in subparagraphs (1) through (5)
above;
(7) The Seller will continue properly and promptly to file when due
all federal, state, local, foreign and other tax returns, reports
and declarations required to be filed by it relating to the
Acquired Assets or the Acquired Business, and will pay, or make
full and adequate provision for the payment of, all taxes and
governmental charges due from or payable by the Seller relating
to the Acquired Assets or the Acquired Business;
(8) The Seller will comply with all laws and regulations applicable
to the operations of the Acquired Business and the utilization of
the Acquired Assets; and
(9) The Seller will maintain in full force and effect insurance
coverage relating to the Acquired Assets and the Acquired
Business of a type and amount customary in the business of the
Acquired Business (but not less than that presently in effect).
6.6 Cooperation. The Seller will cooperate with the Purchaser and the
Purchaser's counsel, accountants and agents in every way in consummating
and closing the Transaction and in delivering all documents and instruments
deemed reasonably necessary or useful by the Purchaser.
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6.7 Expenses. Whether or not the Transaction is consummated, all
costs and expenses incurred by the Seller in connection with this Agreement
and the Transaction shall be paid by the Seller.
6.8 Publicity. Prior to the Closing any written news releases by the
Seller relating to this Agreement or the Transaction shall be submitted to
the Purchaser for review and approval prior to release by the Seller, and
shall be released only in a form approved by the Purchaser.
6.9 Updating of Exhibits and Disclosure Documents. The Seller shall
notify the Purchaser of any changes, additions, or events which may cause
any change in or addition to any schedules or exhibits delivered by the
Seller pursuant to this Agreement promptly after the occurrence of the same
and again at the Closing by delivery of appropriate updates to all such
schedules and exhibits. No such notification made pursuant to this section
shall be deemed to cure any breach of any representation or warranty made
in this Agreement, unless the Purchaser specifically agrees thereto in
writing nor shall any such notification be considered to constitute or be a
waiver by the Purchaser of any condition set forth in this Agreement.
6.10 Payment of Unassumed Liabilities. The Seller agrees promptly to
pay when due, or otherwise to discharge, without cost or expense to the
Purchaser, each and every Liability of the Seller that is not specifically
assumed by the Purchaser pursuant to this Agreement, as described in
Section 2.1 of this Agreement.
6.11 Continued Action Regarding Exemption. The Seller shall take any
and all additional action which is necessary or appropriate to maintain
that exemption from the registration and prospectus delivery requirements
of the Securities Act provided by Rule 144 promulgated pursuant to the
Securities Act.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to Obligation of Purchaser. The obligation of the
Purchaser to effect and consummate the Transaction shall be subject to the
fulfillment at or prior to the Closing of the following conditions, unless
the Purchaser shall waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all
approvals, consents, authorizations, and waivers from
governmental and other regulatory agencies and other third
parties (including lenders, holders of debt securities and
lessors) required to consummate the Transaction;
(2) There shall not be in effect a preliminary or permanent
injunction or other order by any federal or state court which
prohibits the consummation of the Transaction;
(3) The Seller shall have performed in all material respects each of
the Seller's agreements and obligations specified in this
Agreement and required to be performed on or prior to the Closing
and shall have complied with all material requirements, rules,
and regulations of all regulatory authorities having jurisdiction
relating to the Transaction;
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(4) No material adverse change shall, in the judgment of the
Purchaser, have taken place in the business condition (financial
or otherwise), operations, or prospects of the Acquired Business
or the Acquired Assets since the date of this Agreement other
than those, if any, that result from the changes permitted by
this Agreement;
(5) The representations and warranties of the Seller set forth in
this Agreement shall be true in all material respects as of the
date of this Agreement and, except in such respects as, in the
judgment of the Purchaser, do not materially and adversely affect
the business, condition (financial or otherwise), operations, or
prospects of the Acquired Business or the Acquired Assets, as of
the Closing, as if made as of the Closing; and
(6) The Purchaser shall have received from the Seller an officers'
certificate, executed by the Chief Executive Officer and Chief
Financial Officer of the Seller (in their capacities as such),
dated the Closing Date, as to the satisfaction of the conditions
in Paragraphs (3), (4), and (5) of this section (to the best of
their knowledge).
7.2 Conditions to Obligation of the Seller. The obligation of the
Seller to effect the Transaction shall be subject to the fulfillment at or
prior to the Closing of the following conditions, unless the Seller shall
waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all
approvals, consents, authorizations, and waivers from
governmental and other regulatory agencies and other third
parties (including lenders, holders of debt securities and
lessors required by law to consummate the Transaction;
(2) There shall not be in effect a preliminary or permanent
injunction or other order by any federal or state authority which
prohibits the consummation of the Transaction;
(3) The Purchaser shall have performed in all material respects the
Purchaser's agreements and obligations specified in this
Agreement required to be performed on or prior to the Closing;
(4) The representations and warranties of the Purchaser set forth in
this Agreement shall be true in all material respects as of the
date of this Agreement and, except in such respects as do not
materially and adversely affect the business of the Purchaser, as
of the Closing Date as if made as of the Closing Date; and
(5) The Seller shall have received from the Purchaser an officers'
certificate, executed by the Chief Financial Officer and the
Chief Executive Officer of the Purchaser (in their capacities as
such), dated the Closing Date, as to the satisfaction of the
conditions of Paragraphs (3) and (4) of this section (to the best
of their knowledge).
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ARTICLE VIII
DOCUMENTS AND INSTRUMENTS TO BE DELIVERED AT CLOSING
8.1 The Purchaser to the Seller. On the Closing, the Purchaser shall
deliver or cause to be delivered the following instruments and documents to
the Seller:
(1) A certificate evidencing and representing Five Million
(5,000,000) shares of the Purchaser's $.0001 par value common
stock (the Subject Shares), which certificate shall specify the
appropriate legend regarding the restricted nature of those
Subject Shares; and
(2) The Officers' Certificate contemplated by the provisions of
Paragraph (5) of Section 7.2 of this Agreement.
8.2 The Seller to the Purchaser. On the Closing, the Seller shall
deliver or cause to be delivered the following instruments and documents to
the Purchaser:
(1) A Bill of Sale, executed by the President and the Secretary of
the Seller, pursuant to which title to the Acquired Assets are
transferred and vested in the Purchaser;
(2) All books, records, journals, disks, checks, minute books,
documents, memoranda and other instruments relating to the
business of the Seller which are necessary or appropriate to
enable the Purchaser to carry on and conduct the business and
affairs of the Acquired Business and to utilize the Acquired
Assets after the Closing; and
(3) The Officers' Certificate contemplated by the provisions of
Paragraph (6) of Section 7.1 of this Agreement.
ARTICLE IX
TERMINATION, AMENDMENT WAIVER
9.1 Termination. This Agreement and the Transaction may be terminated
at any time prior to the Closing:
(1) By mutual consent of the Purchaser and the Seller; or
(2) By either Purchaser or the Seller, upon written notice to the
other, if the conditions to such party's obligations to
consummate the Transaction, in the case of Purchaser, as
specified in Section 7.1 of this Agreement, or, in the case of
the Seller, as provided in Section 7.2 of this Agreement, were
not, or cannot reasonably be, satisfied on or before September
20, 2000, unless the failure of condition is the result of the
material breach of this Agreement by the party seeking to
terminate this Agreement.
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9.2 Amendment. This Agreement may be amended by the Purchaser and the
Seller by action taken at any time. This Agreement may not be amended,
except by an instrument in writing signed on behalf of the Purchaser and
the Seller.
9.3 Waiver. At any time prior to the Closing, the Purchaser or the
Seller may (i) extend the time for the performance of any of the
obligations or other acts of the other party, (ii) waive any inaccuracies
in the representations and warranties specified in this Agreement or in any
document delivered pursuant to this Agreement, or (iii) waive compliance
with any of the agreements or conditions specified in this Agreement. Any
agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of
such party.
ARTICLE X
GENERAL PROVISIONS
10.1 Notices. Any notice, direction or instrument required or
permitted to be given pursuant to this Agreement shall be given in writing
by (i) telegram, facsimile transmission or similar method, if confirmed by
mail as herein provided, by mail; (ii) if mailed postage prepaid, by
certified mail, return receipt requested; or (iii) hand delivery to any
party at the addresses of the parties specified, below. If given by
telegram or facsimile transmission or similar method or by hand delivery,
such notice, direction or instrument shall be deemed to have been given or
made on the day on which it was given, and if mailed, shall be deemed to
have been given or made on the second (2nd) business day following the day
after which it was mailed. Any party may, from time to time by similar
notice, give notice of any change of address, and in such event, the
address of such party shall be deemed to be changed accordingly. The
address, telephone number and facsimile transmission number for the notice
of each party are:
If to Purchaser: ASDAR Group
1239 West Georgia Street, Suite 3004
Vancouver, British Columbia V6E 4R8
If to Seller: 2U Online.com, Inc.
1288 Alberni Street, Suite 806
Vancouver, British Columbia V6E 4N5
10.2 Indemnification. Seller shall save Purchaser harmless from and
against and shall indemnify Purchaser for any liability, loss, costs,
expenses or damages howsoever caused by reason of any injury (whether to
body, property or personal or business character or reputation) sustained
by any person or to property by reason of any act, neglect, default or
omission of Seller or any of Seller's agents, employees or other
representatives, and Seller shall pay all amounts to be paid or discharged
in case of an action or any such damages or injuries. If Purchaser is sued
in any court for damages by reason of any of the acts of Seller, Seller or
such other party shall defend the resulting action (or cause same to be
defended) at Seller's expense and shall pay and discharge any judgment that
may be rendered in any such action; if Seller fails or neglects to so
defend in such action, Purchaser may defend such action and any expenses,
including reasonable attorneys' fees, which Purchaser may pay or incur in
defending such action and the amount of any judgment which Purchaser may be
required to pay shall be promptly reimbursed by Seller upon demand by
Purchaser.
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10.3 Recovery of Enforcement Costs. In the event either party shall
institute any action or proceeding to enforce any provision of this
Agreement to seek relief from any violation of this Agreement, or to
otherwise obtain any judgment or order relating to or arising from the
subject matter of this Agreement, the prevailing party shall be entitled to
receive from the losing party such prevailing party's actual attorneys'
fees and costs incurred to prosecute or defend such action or proceeding.
10.4 Assignment. Neither party shall have the right, without the
consent of the other party, to assign, transfer, sell, pledge, hypothecate,
delegate, or otherwise transfer, whether voluntarily, involuntarily or by
operation of law, any of such party's rights or obligations created by the
provisions of this Agreement, nor shall the parties' rights be subject to
encumbrance or the claim of creditors. Any such purported assignment,
transfer, or delegation shall be null and void.
10.5 Captions and Interpretations. Captions of the articles, sections
and paragraphs of this Agreement are for convenience and reference only,
and the works specified therein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction, or meaning of the
provisions of this Agreement. The language in all parts to this Agreement,
in all cases, shall be construed in accordance with the fair meaning of
that language as if prepared by all parties and not strictly for or against
any party. Each party and counsel for such party have reviewed this
Agreement. The rule of construction, which requires a court to resolve any
ambiguities against the drafting party, shall not apply in interpreting the
provisions of this Agreement.
10.6 Entire Agreement. This Agreement and the exhibits to this
Agreement are the final written expression and the complete and exclusive
statement of all the agreements, conditions, promises, representations,
warranties and covenants between the parties with respect to the subject
matter of this Agreement, and this Agreement supersedes all prior or
contemporaneous agreements, negotiations, representations, warranties,
covenants, understandings and discussions by and between and among the
parties, their respective representatives, and any other person, with
respect to the subject matter specified in this Agreement. No provision of
any exhibit or schedule to this Agreement shall supersede or annul the
terms and provisions of this Agreement, unless the matter specified in such
exhibit or schedule shall explicitly so provide to the contrary, in the
event of ambiguity in meaning or understanding between the provisions of
this Agreement proper and the appended exhibits or schedules, the
provisions of this Agreement shall prevail and control in all instances.
10.7 Choice of Law. This Agreement shall be deemed to have been
entered into in the State of Delaware. All questions concerning the
validity, interpretation, or performance of any of the terms, conditions
and provisions of this Agreement or of any of the rights or obligations of
the parties shall be governed by, and resolved in accordance with, the laws
of the State of Delaware without regard to conflicts of law principles.
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10.8 Number and Gender. Whenever the singular number is used in this
Agreement and, when required by the context, the same shall include the
plural, and vice versa; the masculine gender shall include the feminine and
the neuter genders, and vice versa.
10.9 Successors and Assigns. This Agreement and each of its
provisions shall obligate the heirs, executors, administrators, successors,
and assigns of each of the parties. Nothing specified in this article,
however, shall be a consent to the assignment or delegation by any party of
such party's respective rights and obligations created by the provisions of
this Agreement.
10.10 Third Party Beneficiaries. Except as expressly specified by
the provisions of this Agreement, this Agreement shall not be construed to
confer upon or give to any person, other than the parties hereto, any
right, remedy or claim pursuant to, or by reason of, this Agreement or of
any term or condition of this Agreement.
10.11 Severability. In the event any part of this Agreement, for
any reason, is determined by a court of competent jurisdiction to be
invalid, such determination shall not affect the validity of any remaining
portion of this Agreement, which remaining portion shall remain in full
force and effect as if this Agreement had been executed with the invalid
portion thereof eliminated. It is hereby declared the intention of the
parties that they would have executed the remaining portion of this
Agreement without including any such part, parts, or portion which, for any
reason, may be hereafter determined to be invalid.
10.12 Governmental Rules and Regulations. The transactions
contemplated by the provisions of this Agreement are and shall remain
subject to any and all present and future orders, rules and regulations of
any duly constituted authority having jurisdiction of that transaction.
10.13 Execution in Counterparts. This Agreement may be prepared
in multiple copies and forwarded to each of the parties for execution. All
of the signatures of the parties may be affixed to one copy or to separate
copies of this Agreement and when all such copies are received and signed
by all the parties, those copies shall constitute one agreement which is
not otherwise separable or divisible. Counsel for the Purchaser shall keep
all of such signed copies and shall conform one copy to show all of those
signatures and the dates thereof and shall mail a copy of such conformed
copy to each of the parties within thirty (30) days after the receipt by
such counsel of the last signed copy, and such counsel shall cause one such
conformed copy to be filed in the principal office of such counsel.
10.14 Reservation of Rights. The failure of any party at any time
or times hereafter to require strict performance by any other party of any
of the warranties, representations, covenants, terms, conditions and
provisions specified in this Agreement shall not waive, affect of diminish
any right of such party failing to require strict performance to demand
strict compliance and performance therewith and with respect to any other
provisions, warranties, terms, and conditions specified in this Agreement.
Any waiver of any default shall not waive or affect any other default,
whether prior or subsequent thereto, and whether the same or of a different
type. None of the representations, warranties, covenants, conditions,
provisions and terms specified in this Agreement shall be deemed to have
been waived by any act or knowledge of any party, its agents, trustees,
officers, or employees and any such waiver shall be made only by an
instrument in writing, signed by the waiving party and directed to any non-
waiving party specifying such waiver, and each party reserves such party's
rights to insist upon strict compliance herewith at all times.
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10.15 Survival of Covenants, Representations and Warranties. All
covenants, representations, and warranties made by each party to this
Agreement shall be deemed made for the purpose of inducing the other party
to enter into and execute this Agreement. The representations, warranties,
and covenants specified in this Agreement shall survive the Closing and
shall survive any investigation by either party whether before or after the
execution of this Agreement. The covenants, representations, and
warranties of the Seller and the Purchaser are made only to and for the
benefit of the other and shall not create or vest rights in other persons.
10.16 Concurrent Remedies. No right or remedy specified in this
Agreement conferred on or reserved to the parties is exclusive of any other
right or remedy specified in this Agreement or by law or equity provided or
permitted; but each such right and remedy shall be cumulative of, and in
addition to, every other right and remedy specified in this Agreement or
now or hereafter existing at law or in equity or by statute or otherwise,
and may be enforced concurrently therewith or from time to time. The
termination of this Agreement for any reason whatsoever shall not prejudice
any right or remedy which any party may have, either at law, in equity, or
pursuant to the provisions of this Agreement.
10.17 Force Majeure. If any party is rendered unable, completely
or partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of
this Agreement, such party shall give to the other party prompt written
notice of the event of "force majeure" with reasonably complete particulars
concerning such event; thereupon, the obligations of the party giving such
notice, so far as those obligations are affected by the event of "force
majeure," shall be suspended during, but no longer than, the continuance of
the event of "force majeure." The party affected by such event of "force
majeure" shall use all reasonable diligence to resolve, eliminate and
terminate the event of "force majeure" as quickly as practicable. The
requirement that an event of "force majeure" shall be remedied with all
reasonable dispatch as hereinabove specified, shall not require the
settlement of strikes, lockouts or other labor difficulties by the party
involved, contrary to such party's wishes, and the resolution of any and
all such difficulties shall be handled entirely within the discretion of
the party concerned. The term "force majeure" as used herein shall be
defined as and mean any act of God, strike, civil disturbance, lockout or
other industrial disturbance, act of the public enemy, war, blockage,
public riot, earthquake, tornado, hurricane, lightening, fire, epidemics,
quarantine restrictions, public demonstration, storm, flood, explosion,
freight embargoes, governmental action, governmental delay, restraint or
inaction, unavailability of equipment, default of a party's subcontractors
or suppliers, and any other cause or event, whether of the kind enumerated
specifically herein, or otherwise, which is not reasonably within the
control of the party claiming such suspension.
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10.18 Consent to Agreement. By executing this Agreement, each
party, for itself represents such party has read or caused to be read this
Agreement in all particulars, and consents to the rights, conditions,
duties and responsibilities imposed upon such party as specified in this
Agreement. Each party represents, warrants and covenants that such party
executes and delivers this Agreement of its own free will and with no
threat, undue influence, menace, coercion or duress, whether economic or
physical. Moreover, each party represents, warrants, and covenants that
such party executes this Agreement acting on such party's own independent
judgment.
10.19 Waiver and Modification. No modification, supplement or
amendment of this Agreement or of any covenant, representation, warranty,
condition, or limitation specified in this Agreement shall be valid unless
the same is made in writing and duly executed by both parties. No waiver
of any covenant, representation, warranty, condition, or limitation
specified in this Agreement shall be valid unless the same is made in
writing and duly executed by the party making the waiver. No waiver of any
provision of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver.
10.20 Further Assurances. The parties shall from time to time
sign and deliver any further instruments and take any further actions as
may be necessary to effectuate the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed
in duplicate on the date first written above by their respective officers
thereunto duly authorized.
SELLER: 2U Online.com, Inc., PURCHASER: ASDAR Group
a Delaware corporation a Nevada corporation
By: /S/ Jack Sha By: /S/ Stephen J. Nemergut
---------------------------- -------------------------
Jack Sha Stephen J. Nemergut
Its: President Its: President
By:/S/ Ferdinand Marehard By: /S/ Jack Sha
----------------------------- -------------------------
Ferdinand Marehard Jack Sha
Its: Secretary Its: Secretary
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EXHIBIT B
Finder's Fee: 500,000 shares of ASDAR Group's 50.001 par value
common stock.
Finder's Fee For: ASSET PURCHASE AND SALE OF AGREEMENT
Signed By: 2UOnline.com, Inc., a Delaware corporation,
and ASDAR Group, a Nevada corporation.
Stock Distribution: May Joan Liu 475,000 shares
Stephen J. Nemergut 25,000 shares
ASDAR Group
a Nevada Corporation
By: /S/ Stephen J. Nemergut
-----------------------
Stephen J. Nemergut
Its: President
By: /S/ Jack Sha
-----------------------
Jack Sha
Its: Secretary
