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ASSET PURCHASE AGREEMENT
(BUSINESS)
THIS AGREEMENT made as of September 30, 2003 between Astir, Inc., a Nevada
Corporation, (the "Buyer") and ▇▇▇▇ ▇▇▇▇▇▇ dba Zow Graphics Online of Fountain
Valley, California (the "Seller").
IN CONSIDERATION of the mutual covenants and agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. PURCHASE OF ASSETS. The Buyer agrees to purchase from the Seller and the
Seller agrees to sell to the Buyer only the property described in Schedule "A"
hereto (the "Assets") used in Seller's business ▇▇▇.▇▇▇ (the "Business") and the
business as a going concern.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") payable by the
Buyer to the Seller for the Assets shall be 2,500,000 common shares of Astir,
Inc., a Nevada Corporation at $.001 par value per share as of the Closing Date
(hereafter defined). Immediately after the payment of the 2,500,000 common
shares of Astir, Inc. a total of 4,000,000 common shares will be issued and
outstanding so that, at that time, Seller will be 60% owner of Astir, Inc.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid and satisfied
at Closing by the Buyer delivering to Seller the shares of Astir, Inc. as
mutually agreed upon.
4. TAXES. Any sales tax, use tax, excise tax, transfer tax, recordation tax,
or other tax imposed upon the transfer of the Assets from the Seller to the
Buyer shall be the responsibility of the Seller. All state and local personal
property taxes shall be adjusted as of the Closing Date.
5. ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated among
the Assets according to an allocation that the parties settle upon, acting
reasonably, prior to Closing. The Seller and the Buyer agree that the amounts so
attributed to the Assets are the respective fair market values thereof, and
shall file in mutually agreeable form all elections required or desirable under
the Internal Revenue Code of 1986, as amended in respect of the foregoing
allocations.
6. INVESTIGATION. After fulfillment or waiver of all conditions in this
Agreement which are intended for the benefit of the Buyer, the Buyer and its
advisers shall during business hours have reasonable access to the Premises,
books, leases and other records of the Business for the purpose of investigating
the business and affairs of the Business.
7. CLOSING DATE. Time shall be of the essence of this Agreement. The closing
of this transaction shall take place on September 30, 2003 or such earlier or
later date as may be mutually acceptable to the parties hereto (the "Closing
Date" or "Closing") at a location mutually acceptable to the parties.
8. INSURANCE. The Seller shall, up to Closing maintain in force all
insurance presently in force on the Assets or in respect of the Business. Any
proceeds of insurance payable in respect of any event which occurs on or prior
to the Closing Date shall be received in trust for the Buyer and shall promptly
be paid over to the Buyer at Closing if the Buyer shall complete the purchase of
the Assets, failing which the Seller shall be absolutely entitled to such
proceeds. The Buyer acknowledges that it will be responsible for placing its own
insurance in respect to the Assets and Business at or before Closing if the
Seller's insurance is not transferred to the Buyer on Closing if the Seller's
insurance is not transferred to the Buyer on Closing.
9. NORMAL COURSE OF BUSINESS. After the date of this Agreement, the Seller
shall cause the Business to be carried on in the normal course of business.
10. THIRD PARTY CONSENTS. The Seller shall use its best efforts to obtain
consents of all requisite parties to the assignment of contracts forming part of
the Assets; and the Seller shall pay the cost of soliciting such consents. The
Buyer will cooperate in obtaining such consents.
11. REPRESENTATIONS AND WARRANTIES. The Seller represents and warrants to
the Buyer as follows:
(a) The Seller is not and will not be a non-resident alien within the
meaning of the Internal Revenue Code of 1986, as amended.
(b) All financial statements provided to the Buyer have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and present fairly the financial position of the Business as at the date
thereof and include and disclose the material liabilities (either actual,
accrued or contingent and whether direct or indirect) of the Business as of such
date.
(c) The Business is not now, nor at Closing will be bound by any agreement
whether written or oral with any employee providing for a specified period of
notice of termination nor providing for any fixed term of employment; and has
now and at Closing will have no employees who cannot be dismissed upon such
notice as is required by statutory or common law;
(d) The Business will not, at Closing be bound by any outstanding contract
or commitment which requires prior approval of the assignment thereof by the
Seller to the Buyer resulting from the consummation of the transactions provided
for herein, unless such consent is obtained and provided to the Buyer on
Closing.
(e) The Seller now has and at Closing will have a good and marketable title
to the Assets, free and clear of any and all claims, liens, encumbrances and
security interests whatsoever.
(f) The Business is not now and at Closing will not be in arrears or in
default in respect of the filing of any required state, local or foreign or
other return, and at each of such times (i) all taxes, filing fees and other
assessments due and payable or collectable from the Business shall have been
paid or collected, (ii) no claim for additional taxes, filing fees or other
amounts and assessments has been made which has not been paid, and (iii) to the
best of the Seller's knowledge, no such return shall have contained any
misstatement or concealed any statement that should have been included therein.
The Business has withheld and will withhold up to Closing from each payment made
to any employee the amount of all taxes (including but not limited to income
tax) and other deductions required to be withheld therefrom and have paid or
will pay such amounts to the proper tax or other receiving authority.
The representations and warranties of the Seller contained herein shall survive
the Closing and shall continue in full force and effect for the benefit of the
Buyer for a period of three years following the Closing Date after which time
the Seller shall be released from all obligations and liabilities hereunder in
respect of such representations and warranties except with respect to any claims
made by the Buyer in writing prior to the expiration of such period.
12. CONDITIONS FOR THE SELLER'S BENEFIT. This Agreement is conditional for a
period of 365 days upon any of the following conditions: (365 Days begins upon
Astir trading.)
(a) The Buyer not arranging satisfactory financing of up to $500,000;
(b) Should the buyer not raise the aforementioned $500,000, the Seller shall
have the option to cancel this Agreement and rescind the transaction if, in his
sole discretion, it is determined that substantial benefits did not accrue to
the Seller even though the full $500,000 was not raised during the first year of
operation.
The above conditions have been inserted for the sole benefit of the Seller and
may be waived by the seller in whole or in part, without prejudice to its rights
of termination in the event of non-fulfillment of any other condition in whole
or in part. If any of the foregoing conditions shall not have been fulfilled or
waived by the Seller on or before the Closing Date, the Seller may terminate
this Agreement by notice in writing to the Buyer in which event the Seller shall
return all 2,500,000 common shares of stock of Astir, Inc., plus all shares
acquired by other means or method the Seller may have in his possession or
control. Such returned to the Buyer will be without interest or deduction and
the Buyer and the Seller shall be released from all obligations under this
Agreement.
13. CLOSING DELIVERIES. At Closing, the parties shall deliver the following,
in addition to any other documents, agreements or deliverables required or
provided by this Agreement:
(a) the Seller shall deliver to the Buyer:
(i) possession of the Assets;
(ii) a ▇▇▇▇ of sale conveying the Assets to the Buyer;
(iii) a Certificate certifying that all representations and warranties
contained in this Agreement are true and correct in all material respects as of
the Closing Date;
(iv) all other instruments, assurances, transfers, assignments, consents,
elections (and supporting materials) under the Internal Revenue Code of 1986, as
amended, and other documents as the Buyer's attorneys consider reasonably
necessary or desirable to validly and effectively complete the transfer the
Assets to the Buyer; and
(b) the Buyer shall deliver to the Seller:
(i) the 2,500,000 common shares of Astir, Inc., a Nevada Corporation of the
Purchase Price payable on Closing; and
(ii) all other instruments, assurances and documents as the Seller's
attorneys consider reasonably necessary or desirable to validly and effectively
complete this transaction.
(c) At Close of Escrow, Seller is to employ ▇▇▇▇ ▇▇▇▇▇ to oversee the
job, and he
will have a salary of $7,500.00 per month.
(d) At Close of Escrow, existing Directors shall resign and
▇▇▇▇ ▇▇▇▇▇ and his
nominees will be appointed to The Board of Directors.
NON-COMPETITION. The Seller will not (without the prior written consent of the
Buyer) at any time within 48 months from the date hereof either individually or
in partnership or jointly or in conjunction with any person or persons, firm,
association, syndicate, company or corporation, as principal, agent, employee
officer, director or shareholder or in any other manner whatsoever carry on or
be engaged in or concerned with or interested in, or advise, lend money to,
guarantee the debts or obligations of, or permit his name or any part thereof to
be used or employed by or associated with, any person or persons, firm,
association, syndicate, company or corporation engaged in or concerned with of
interested in, any business which competes with the Business (except as a
shareholder, officer, director or employee of the Buyer) within a radius of 50
miles from the Premises business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. On Closing, the Seller agrees to deliver to the Buyer a non-competition
agreement, in form and substance satisfactory to the Buyer, which incorporates
this provision.
14. BULK SALES COMPLIANCE. The Seller shall comply with applicable bulk
sales legislation.
15. GENERAL.
(a) Schedules and other documents attached or referred to in this Agreement
are an integral part of this Agreement.
(b) The division of this Agreement into paragraphs and subparagraphs and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation hereof.
(c) This Agreement constitutes the entire agreement among the parties and
except as herein stated and in the instruments and documents to be executed and
delivered pursuant hereto, contains all of the representations and warranties of
the respective parties. There are no oral representations or warranties amount
the parties of any kind. This Agreement may not be amended or modified in any
respect except by written instrument signed by both parties.
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
(e) Any notice required or permitted to be given hereunder shall be in
writing and shall be effectively given if (i) delivered personally, (ii) sent by
prepaid courier service or mail, or (iii) sent prepaid by facsimile, telex or
other similar means of electronic communication (confirmed on the same or
following day by prepaid mail) addressed to the recipient at the address of the
recipient noted above. Any notice so given shall be deemed conclusively to have
been received when so personally delivered or sent by telex, facsimile or other
electronic communication or on the second day following the sending thereof by
private courier or mail. Any party hereto or others mentioned above may change
any particulars of its address for notice by notice to the others in the manner
aforesaid.
(f) This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above mentioned.
Witness ▇▇▇▇ ▇▇▇▇▇▇ dba Zow Graphics Online
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Witness
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Witness ▇▇▇▇▇ ▇▇▇▇▇▇, Astir, Inc.
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SCHEDULE "A"
LIST OF ASSETS
Sellers Client List
All Computer Equipment where the Sellers Client Files are hosted.
The Business Trade Name
The Goodwill of the Business