AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (herein, together with all
Exhibits, "Agreement") is entered in to as of January 22, 2010 by and
between US Highland, Inc., an Oklahoma corporation ("US Highland") and
Harcom Productions, Inc., a Oklahoma corporation ("Harcom").
This Agreement sets forth the terms and conditions upon which US
Highland will merge with and into Harcom (the "Merger"), pursuant to an
Agreement and Plan of Merger (the "Merger Agreement") in substantially
the form attached hereto as Exhibit A, which provides, among other
things, for the conversion and exchange of all outstanding shares of
$.00001 par value common stock of US Highland ("US Highland Stock")
into ten million, (10,000,000) shares of voting $.01 par value common
stock of Harcom ("Harcom Common Stock") (together, the "Merger
Consideration").
The parties intend the merger to qualify as a tax-free reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended (the
"Code")
In consideration of the mutual promises and covenants contained
herein, Harcom and US Highland agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms (whether used in
singular or plural forms) shall have the following meanings:
"Charter Documents" shall mean the Articles or Certificate of
Incorporation and the Bylaws of the applicable corporation.
"Closing" means the delivery and execution of all monies, common
stock, agreements, consents, exhibits and any other documents to and
from all parties.
"Contract" means any written contract, mortgage, deed of trust,
bond, indenture, lease, license, note, franchise, certificate, option,
warrant, right, or other instrument, document or agreement, and any
oral obligation, right or agreement.
"GAAP" means generally accepted accounting principles, as that
term is defined by the Institute of Certified Public Accountants under
the first standard of reporting under its generally accepted accounting
standards.
"Income Tax" means any federal, state, local or foreign Tax or Taxes
(x) based upon, measured by, or calculated with respect to, net income
or net receipts, proceeds or profits, or (y) based upon, measured by,
or calculated with respect to multiple bases
(including, but not limited to, corporate franchise or occupation
Taxes, if such Tax may be based upon, measured by, or calculated with
respect to one or more bases described in (x) above.
"Income Tax Return" includes all Tax Returns relating to Income Taxes.
"Intellectual Property" means (i) patents, patent applications
and statutory invention registrations, in each case in the United
States and all other countries, (ii) any trademarks, service marks,
trade dress, logos, trade names, corporate names, and other source
identifiers, including any registrations and applications for
registration of any of the foregoing in the United States and any
foreign country, (iii) all rights under the copyright laws of the
United States and all other countries, including, without limitations,
all copyrightable works, copyrights, and registrations and applications
for registration thereof, and (iv) all confidential and proprietary
information, including trade secrets and know-how.
"Knowledge" of Harcom of or with respect to any matter means that
any of the executive officers, directors of Harcom has, or after due
inquiry and investigation would have, actual awareness or knowledge of
such matter, and "Knowledge" of US Highland of or with respect to any
matter means that any of the executive officers, directors of US
Highland has, or after due inquiry and investigation would have, actual
awareness or knowledge of such matter.
"Legal Requirements" means applicable common law and any statute,
ordinance, code or other law, rule, regulation, order, technical or
other standard, requirement, judgment, or procedure enacted, adopted,
promulgated, applied or followed by any governmental authority,
including Judgments.
"Lien" means any security agreement, financing statement filed
with any governmental authority, conditional sale statement filed with
any governmental authority, conditional sale or other title retention
agreement, any lease, consignment or bailment given for purposes of
security, any lien, mortgage, indenture, pledge, option, encumbrance,
adverse interest, constructive trust or other trust, claim, attachment,
exception to or defect in title or other ownership interest (including
but not limited to reservations, rights of entry, possibilities of
reverter, encroachments, easement, rights-of-way, restrictive covenants
leases and licenses) of any kind, which otherwise constitutes an
interest in or claim against property, whether arising pursuant to any
Legal Requirement, Contract or otherwise.
"Surviving Corporation" means Harcom Productions, Inc.
"Tax" (including, with correlative meaning, the terms "Taxes" and
Taxable") includes all federal, state, local and foreign income tax,
profits, franchise, gross receipts, environmental, customs duty,
capital stock, communications services, severance, stamp, payroll,
sales, employment, unemployment, disability, use, property,
withholding, excise, production, value added, occupancy and other
taxes, duties or assessments of any nature whatsoever, together with
all interest, penalties and additions imposed with respect to such
amounts and any interest in respect to such penalties and additions,
and includes any liability for taxes of another person by contract, as
a transferee or successor, under Treasury Regulation Section 1.1502-6
or analogous state, local, or foreign law provision, or otherwise.
"Tax Return" includes all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information
returns) required to be supplied to a Tax authority relating to Taxes.
"Treasury Regulations" means the regulations prescribed under the Code.
ARTICLE 2
Merger
Section 2.1 Merger. Subject to the terms and conditions contained
in this Agreement, US Highland will be merged by statutory merger with
and into Harcom pursuant to the Merger Agreement at a Closing at the
Effective Time of the Merger as defined in the Merger Agreement. In
the Merger, each share of US Highland outstanding immediately prior to
the effective time of the Merger will be converted into and exchanged
for one common share of Harcom Common Stock.
Section 2.2 Name Change. The name of the Surviving Corporation
shall be amended to be US Highland, Inc.
Section 2.3 The Closing.
(a) Subject to the terms of this Agreement, the Closing of the
transactions contemplated hereby (the "Closing") shall take place at
the offices of Harcom at such time and date as the parties may mutually
agree (the "Closing Date").
(b) Prior to Closing, all instruments and documents shall be held in
escrow with Jody M. Walker, Attorney At Law as escrow agent.
(c) At the Closing, Harcom shall deliver to US Highland:
- The Merger Consideration (as defined in Section 2.1)
- Harcom's Certificates referred to in Section 6.1(d);
Such other instruments and documents, in form and substance reasonably
acceptable to US Highland, as may be necessary to affect the Closing.
(d) At the Closing, US Highland shall deliver to Harcom:
- US Highland's Certificate referred to in Section 6.2(d);
- The stockholder certificates evidencing shares of the common
stock of US Highland;
- A certified copy of the "Charter Documents" of US Highland, and a
good standing certificate for US Highland issued by the Secretary of
State of the State of Oklahoma; and
- Such other instruments and documents, in form and substance
reasonably acceptable to US Highland, as may be necessary to affect the
Closing.
Section 2.4 Mechanics for Closing Merger. At the Closing, each
party shall execute and deliver, or cause to be executed and delivered
to the other party, all monies, common stock, documents and
instruments, in form and substance satisfactory as reasonably required
to carry out or evidence the terms of this Agreement. Upon the
approval of the shareholders of US Highland and Harcom, the executed
Articles of Merger shall be filed with the Oklahoma Secretary of State.
Section 2.5 Certificate of Incorporation of the Surviving
Corporation. At the "Effective Date" of the Merger, the Charter
Documents of Harcom as in effect immediately prior to the Effective
Date shall be the Charter Documents of the Surviving Corporation.
Section 2.6 Bylaws of the Surviving Corporation. At the Effective
Date of the Merger, the bylaws of Harcom, as in effective immediately
prior to the Effective Date, shall be the bylaws of the Surviving
Corporation.
Section 2.7 Further Assurances. At or after the Closing, US
Highland, at the request of Harcom, shall promptly execute and deliver,
or cause to be executed and delivered, to Harcom all such documents and
instruments, in form and substance satisfactory to Harcom, as Harcom
reasonably may request in order to carry out or evidence the terms of
this Agreement
ARTICLE 3
Representations and Warranties of US Highland
US Highland represents and warrants to Harcom that the statements
contained in Article 3 are true and complete and will be correct and
complete, as of the date of this Agreement and as of Closing, as
follows:
Section 3.1 Organization and Qualification of US Highland. US Highland
is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all requisite corporate
power and authority to carry on its business as it is now being
conducted. US Highland is duly qualified to do business and is in good
standing as a foreign corporation in all jurisdictions where the nature
of the property owned or leased by it, or the nature of the business
conducted by it, makes such qualification necessary and the absence of
such qualification would, individually or in the aggregate, have a
Material Adverse Effect (as hereinafter defined). The term "Material
Adverse Effect" means any adverse change or effect that when taken
individually or together with all other adverse changes an effects, is
or is reasonably likely to be materially adverse to the business,
operations, results of operations or financial condition of US
Highland.
Section 3.2 Authority. US Highland has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
The execution, delivery and performance of this Agreement by US
Highland have been duly and validly authorized by all necessary action
on the part of US Highland. This Agreement has been duly and validly
executed and delivered by US Highland, and is a valid and binding
obligation of US Highland, enforceable against US Highland in
accordance with its terms.
Section 3.3 Ownership and Number of Shares of US Highland Stock.
The shareholders listed on Exhibit 3.3 own all of the issued and
outstanding shares the US Highland Stock, beneficially and of record,
free and clear of all liens. The US Highland Stock is not subject to,
or bound or affected by, any proxies, voting agreements, or other
restrictions on the incidents of ownership hereof. There are not, and
will not be at Closing more than ten million (10,000,000) outstanding
common shares.
Section 3.4 Subsidiaries. Except as disclosed on Exhibit 3.4, US
Highland does not control or hold direct or indirect equity interests
in, or hold rights to control or acquire direct or indirect equity
interests in, any corporation.
Section 3.5 Capitalization of US Highland. The authorized capital
stock of US Highland consists of ten million (10,000,000) shares of
common stock $.00001 par value per share, of which ten million
(10,000,000) shares are validly issued and outstanding, fully paid and
non-assessable. There are no other authorized or outstanding
subscriptions, options, convertible securities, warrants, calls or
other rights of any kind issued or granted by, or binding upon, US
Highland to purchase or otherwise acquire any securities of or equity
interest in US Highland. All of the issued and outstanding shares of
Harcom were issued in compliance with all applicable state and federal
securities laws, and shall remain free from any encumbrances or Liens.
Section 3.6 No Conflicts; Required Consents. The execution,
delivery and performance by US Highland of this Agreement will not:
- conflict with or violate any provision of the articles or Charter
Documents of US Highland;
- violate any Legal Requirements;
- result in the creation or imposition of any Lien against or upon
the US Highland Stock or any of the assets or properties owned or
leased by US Highland; or
- require any consent, approval, or authorization of, or filing of
any certificate, notice, application, report or other document with,
any governmental authority or other person.
Section 3.7 Litigation. Other than disclosed in Exhibit 3.7, there
is no litigation pending or, to US Highland's knowledge, threatened, by
or before any governmental authority or private arbitration tribunal,
against US Highland or its operations, nor, to US Highland's knowledge,
is there any basis for any such litigation.
Section 3.8 Compliance with Applicable Legal Requirements. Conduct
by US Highland of its activities as currently conducted does not
violate or infringe any Legal Requirements currently in effect, or, to
the knowledge of US Highland, proposed to become effective; and US
Highland has received no notice of any violation by US Highland of any
Legal Requirements applicable to US Highland or its activities as
currently conducted; and US Highland knows of no basis for the
allegation of any such violation.
Section 3.9 Financial Statements. US Highland shall deliver to
Harcom the audited financial statements from inception (January 29,
2009) to December 31, 2009 (the "Financial Statements"). The Financial
Statements shall be prepared in accordance with GAAP and present fairly
the financial position of US Highland as of the date indicated.
Section 3.10 Liabilities. US Highland has no liabilities or
obligations, whether absolute, accrued, contingent or otherwise, that
are not reflected in the Financial Statements or non-delinquent
obligations for ordinary and recurring expenses, including in the
ordinary course of business of US Highland since the date of the
Financial Statements.
Section 3.11 Taxes.
Except as set forth in Exhibit 3.11(a), all Tax Returns required to be
filed by or with respect to US Highland have been properly and timely
filed and all such Tax Returns are complete and accurate in all
material respects. Except to the extent reserved or reflected against
on the Financial Statements, all Taxes due with respect to such Tax
Returns or which are otherwise due and payable by US Highland have been
paid in full. All Taxes required to be withheld and paid over by US
Highland to any relevant Tax authority in connection with payments to
employees, independent contractors, creditors, stockholders or to third
parties have been so withheld and paid over.
Except as set forth in Exhibit 3.11(b):
- no Tax authority in a jurisdiction where US Highland does not
file Tax Returns has made a written claim, assertion or threat that US
Highland is or may be subject to tax in such jurisdiction;
- no deficiencies for any tax have been threatened, proposed,
asserted or assessed against US Highland that have not been satisfied;
- no audits or examinations with respect to US Highland are ongoing
or have been threatened or proposed, in writing by the Internal Revenue
Service or the appropriate state, local or foreign Tax authority;
- no waivers or extensions of statutes of limitation with respect
to Taxes have been given by or requested with respect to US Highland;
- there are no Tax rulings, requests for rulings, closing
agreements relating to US Highland that could affect the liability for
Taxes of US Highland for any period (or portion of a period) after the
Closing; and
- no power of attorney has been granted by US Highland with respect
to any matter relating to Taxes of US Highland that is currently in
force.
US Highland is not a party to or liable to under any tax sharing
agreement with respect to taxes of any consolidated, combined or
unitary group other than the consolidated, combined or unitary group
disclosed in Exhibit 3.11(c). Except as set forth in Exhibit 3.11(c),
US Highland has not with respect to any taxable period for which the
applicable statute of limitations has not run, filed a combined
consolidated or unitary tax return with respect to any jurisdictions
(foreign and domestic) in which US Highland has filed income tax
returns. US Highland will not, in the absence of a closing agreement
provided for in the Treasury Regulations under Section 1503 of the
Internal Revenue Code of 1986. (the "Code"), trigger the recapture of
any dual consolidated losses (as defined in Section 1503 of the Code)
by virtue of the transactions contemplated by this Agreement.
There are no tax liens on any assets of US Highland, except liens for
taxes not yet due and payable.
Section 3.12 Absence of Certain Changes or Events. Except as set
forth in Exhibit 3.12, since the date of the Financial Statements there
has not occurred:
(a) any material and adverse change in the financial condition or
operations of US Highland;
(b) any damage, destruction or loss to or of any of the material
assets or properties owned or leased by US Highland;
(c) the creation or attachment of any Lien against the capital
stock of US Highland;
(d) any waiver, release, discharge, transfer, or cancellation by
US Highland of any rights or claims of material value;
(e) any issuance by US Highland of any securities, or any merger
or consolidation of US Highland with any other Person, or any
acquisition by US Highland of the business of any other Person;
(f) any incurrence, assumption or guarantee by US Highland of any
indebtedness or liability;
(g) any declaration, setting aside or payment by US Highland of
any dividends on, or any other distribution with respect to, any
capital stock of US Highland or any repurchase, redemption, or other
acquisition of any capital stock of US Highland;
(h) (A) any payment of any bonus, profit sharing, pension or similar
payment or arrangement or special compensation to any employee of US
Highland, except in the ordinary course of the business of US Highland,
or (B) any material increase in the compensation payable or to become
payable to any employee of US Highland; or
(i) the entry by US Highland into any Contract to do any of the
foregoing.
Section 3.13 Material US Highland Contracts. As of the date of this
Agreement, US Highland does not have, except as disclosed in Exhibit
3.13:
(a) contracts evidence or evidencing or relating to any
liabilities or obligations of US Highland, whether absolute, accrued,
contingent or otherwise, or granting any Person a Lien or against any
properties or assets owned or leased by US Highland;
(b) joint venture or partnership Contracts between US Highland and
any other person;
(c) Contracts limiting the US Highland of US Highland to engage in
or to compete in any activity, or to use or disclose any information in
its possession;
(d) any other Contracts to which US Highland is a party or by
which it or the assets or properties owned or leased by it are bound or
affected that are not set forth on other Exhibits hereto, which in the
aggregate contemplate payments to or by US Highland exceeding $50,000
in any twelve-month period (collectively herein as the "Material US
Highland Contract"). US Highland has delivered to US Highland true and
complete copies of each of the Material US Highland Contracts,
including any amendments thereto or, in the case of oral Material US
Highland Contracts, a written description and representation that the
contract is valid, in full force and effect and enforceable in
accordance with its terms against the parties thereto other than US
Highland, and US Highland has fulfilled when due, or has taken all
action necessary to enable it to fulfill when due, all of its
obligations thereunder);
(e) there has not occurred any default (without regard to lapse of
time, the giving of notice, or the election of any person other than US
Highland, or any combination thereof) by US Highland, nor, to the
knowledge of US Highland, has there occurred any default (without
regard to lapse of time, the giving of notice, or the election of US
Highland, or any combination thereof) by any other person, under any of
the Material US Highland Contracts; and
(f) to the knowledge of US Highland, there is no other person in
arrears in the performance or satisfaction of its obligations under any
of the Material US Highland Contracts, and no waiver has been granted
by any of the parties thereto.
Section 3.14 Assets and Properties.
US Highland has good title to all of the material tangible personal
assets and properties which it purports to own (including those
reflected on the Financial Statement, except for assets and properties
sold, consumed or otherwise disposed of in the ordinary course of
business since the date of the Financial Statements, which are not
individually or in the aggregate material), free and clear of all
Encumbrances, except as set forth in Exhibit 3.14(a) and (b) liens for
taxes not yet due and payable or due but not delinquent or being
contested in good faith by appropriate proceedings. Except as set
forth in Exhibit 3.14(a), the assets owned or leased by US Highland
constitute all the assets used in and necessary to conduct the business
as currently conducted.
(b) All material tangible property and assets owned or utilized by US
Highland are in good operating condition and repair (except for
ordinary wear and tear), free from any defects (except such minor
defects as do not interfere with the use thereof in the conduct of the
normal operations), have been maintained consistent with the standards
generally followed in the industry and are sufficient to carry on the
business as presently conducted. All buildings, plants and other
structures owned or otherwise utilized by US Highland are in good
condition and repair (except for ordinary wear and tear) in all
material respects.
(c) US Highland owns no real property.
(d) Exhibit 3.14(d) sets forth a list of all real property leased by
US Highland (the "Leased Real Property"). US Highland has made
available to US Highland true and complete copies of all leases and
subleases relating to the Leased Real Property. With respect to the
Leased Real Property:
US Highland has good and valid leasehold estates in the Leased Real
Property, free and clear of all Encumbrances; and
- all existing water, sewer, gas, electricity, telephone and other
utilities required for the construction, use, occupancy, operation and
maintenance of the Leased Real Property are adequate in all material
respects for the use, occupancy, operation and maintenance thereof, as
currently conducted or currently exists. Except as set forth on
Exhibit 3.14(d),
- each such lease or sublease is legal, valid, binding and
enforceable and in full force and effect, and
the consummation of the transactions contemplated by this Agreement
will not cause a material breach under any such lease or sublease.
(e) Except as set forth on Exhibit 3.14(d):
(i) US Highland has not received written notice of any pending or
threatened condemnation or eminent domain proceedings or their local
equivalent with respect to the Leased Real Property;
(ii) the Leased Real Property, the use and occupancy thereof by US
Highland, and the conduct of the business thereon and therein does not
violate any deed restrictions, applicable law consisting of building
codes, zoning, subdivision or other land use or similar laws the
violation of which would materially adversely affect the use, value or
occupancy of any such property or the conduct of the business thereon;
- US Highland has received, written notice of a material violation
of the restrictions or laws described in the foregoing clause (ii); and
- none of the structures or improvements on any of the Leased Real
Property encroaches upon real property of another person or entity, and
no structure or improvement of another person or entity encroaches upon
any of the Leased Real Property, which would materially interfere with
the use thereof in the ordinary course of business.
Section 3.15 Books and Records. All of the books, records and
accounts of US Highland are in all material respects true and complete,
are maintained in accordance with good business practice and all
applicable Legal Requirements, accurately present and reflect in all
material respects all of the transactions therein described, and are
reflected accurately in the Financial Statements. US Highland has
previously delivered to US Highland the complete stock record book of
US Highland and true and complete copies of all of the minutes of
meetings and all other corporate actions of the stockholders, Board of
Directors and committees of the Board of Directors of US Highland since
the date of its incorporation.
Section 3.16 Certain Interests. None of US Highland or its
officers, directors, or holders of ten percent (10%) or more of US
Highland Common Stock, directly or indirectly is, or owns any interest
in, or controls, or is an employee, officer, director or partner of or
participant in, or consultant to, any person that is a competitor,
supplier or customer of US Highland.
Section 3.17 Bank Accounts. Exhibit 3.17 sets forth all bank
accounts, brokerage accounts, and safe deposit boxes of any kind
maintained by US Highland and, in each case, identifies the persons
that are authorized signatories for, or which are authorized to have
access to, each of them.
Section 3.18 Changes in Circumstances. US Highland has no knowledge
of:
any current or future condition or state of facts or circumstances
which could reasonably be expected to result in a material and adverse
change in the financial condition of operations of US Highland; or
any Legal Requirements currently in effect from which US Highland
currently is, or any currently proposed Legal Requirements from which
US Highland would be, exempt by reason of any "grandfather" clauses or
provisions contained therein, but which would be applicable to US
Highland following closing.
Section 3.19 Intellectual Property.
(a) Exhibit 3.19(a) sets forth a true and complete list of all
Software, registered U.S. and foreign patents and patent applications,
registered U.S. and foreign trademark applications, registered U.S. and
foreign copyrights and copyright applications and other Intellectual
Property (as hereinafter defined), in each case owned by US Highland
and material to the business of US Highland ("US Highland Owned
Intellectual Property"),
- licenses for the Software licensed to US Highland or by US
Highland to a third party (as hereinafter defined), in each case that
are material to the business of US Highland ("US Highland Licensed
Intellectual Property"), and
- all Software and Intellectual Property that is licensed by US
Highland to a third party ("Third Party Licensed Intellectual
Property").
(b) To the knowledge of US Highland, the conduct of the business of
US Highland as currently conducted does not infringe or misappropriate
the Intellectual Property rights of any third party, and no claim has
been asserted against US Highland that the conduct of the business of
US Highland as currently conducted infringes or may infringe or
misappropriate the Intellectual Property rights of any third party.
(c) With respect to each item of US Highland Owned Intellectual
Property, US Highland is the sole owner of the entire right, title and
interest in and to such Intellectual Property and without limitation of
the foregoing is entitled to use such Intellectual Property in the
continued operation of its business.
(d) With respect to each item of US Highland Licensed Intellectual
Property, US Highland has the right to use such US Highland Licensed
Intellectual Property in the continued operation of its business in
accordance with the terms of the license agreement governing such US
Highland Licensed Intellectual Property.
(e) To the knowledge of US Highland, US Highland Owned Intellectual
Property is valid and enforceable, and has not been adjudged invalid or
unenforceable in whole or part.
(f) To the knowledge of US Highland, no person is engaging in any
activity that infringes upon US Highland Owned Intellectual Property.
(g) To the knowledge of US Highland, each license of US Highland
Licensed Intellectual Property and Third Party Licensed Intellectual
Property is valid and enforceable, is binding on all parties to such
license, and is in full force and effect.
(h) To the knowledge of US Highland, neither party to any license of
US Highland Licensed Intellectual Property nor any Third Party Licensed
Intellectual Property is in breach thereof or default thereunder.
Section 3.20 Commitments.
(a) Exhibit 3.20(a) sets forth, as of the date hereof, each contract
or agreement, whether written or oral (including any and all amendments
thereto), to which US Highland is a party, or by which US Highland is
bound (collectively, the "Commitments") of the following types:
(i) Commitments for the sale of any real or personal (tangible or
intangible) properties other than in the ordinary course of business,
or for the grant of any option or preferential rights to purchase any
such properties;
(ii) Commitments for the construction, modification or repair of
any building, structure or facility or for the incurrence of any
capital expenditures or for the acquisition of fixed assets, providing
for aggregate payments in excess of $50,000.00;
(iii) Commitments relating to the acquisition by US Highland or a
Subsidiary of any operating business or the capital stock of any other
person or entity that have not been consummated or that have been
consummated but contain representations, covenants, guaranties,
indemnities or other obligations that remain in effect;
(iv) Commitments pursuant to which any party is required to purchase
or sell a stated portion of its requirements or output to another party
or perform a stated amount of service for, on behalf of, or upon the
referral of another party;
(v) Commitments relating to any Litigation (as defined hereinafter
in Section 3.7);
(vi) Commitments under which US Highland agrees to indemnify any
person or entity;
(vii) Commitments containing covenants of US Highland not to
compete do business in any line of business or in any geographical area
or with any person or entity, or to disclose certain information, or
covenants of any person or entity not to compete with US Highland in
any line of business or in any geographical area or disclose
information concerning US Highland;
(viii) Commitments pursuant to which US Highland (A) leases,
subleases, licenses or otherwise has the right to use any personal
property or (B) is the lessor of any personal property;
(ix) Commitments in respect of any joint venture, partnership or
other similar arrangement (including, without limitation, any joint
development agreement);
(x) Commitments relating to any governmental or regulatory
authority;
(xi) Commitments for the lease or sub-lease of any real property;
(xii) Commitments for the leasing of any personal property;
(xiii) Commitments relating to outstanding letters of credit or
performance bonds or creating any obligation or liability as guarantor,
surety, co-signer, endorser, co-maker, indemnitor or otherwise in
respect of the obligation of any person or entity, except as endorser
or maker of checks or letters of credit endorsed or made in the
ordinary course of business;
(xiv) Commitments that involve in excess of $50,000.00 in the
aggregate or that may not be terminated on less than ninety (90) days'
notice;
(xv) Commitments (other than those specified in any of clauses (i)
through (xiv) of this paragraph (a)) which relate to or affect the
business or any of the assets or properties of US Highland in any way
that are material to the business; and
(xvi) Commitments currently in negotiation by US Highland of a
type, which if entered into would be required to be listed on Exhibit
3.20(a) or to be disclosed on any other Schedule hereto.
Except as set forth in Exhibit 3.20(b), all of the Commitments referred
to in the preceding paragraph (a) are valid, binding, in full force and
effect and enforceable in accordance with their terms against US
Highland, and to the knowledge of US Highland, against the respective
counterparties to such Commitments. Complete copies (or, if oral, full
written descriptions) of all Commitments required to be so listed,
including all amendments thereto, and complete copies of all standard
form Commitments used in the conduct of the Business, have been
delivered to US Highland. Except as set forth in Exhibit 3.20(b):
there is no breach, violation or default and no event which, with
notice or lapse of time or both, would constitute a breach, violation
or default, or give rise to any Encumbrance or right of termination,
modification, cancellation, prepayment, suspension, limitation,
revocation or acceleration under, any Commitment listed in Exhibit
3.20(a), except for breaches, violations and defaults, or Encumbrances
or rights of termination, modification, cancellation, prepayment,
suspension, limitation, revocation or acceleration which, individually
or in the aggregate, are not material; and neither US Highland nor any
other party to any of the Commitments listed in Exhibit 3.20(a) is in
material arrears in respect of the performance or satisfaction of the
terms and conditions on its part to be performed or satisfied under any
of such Commitments and no material waiver or material indulgence has
been granted by any of the parties thereto.
Section 3.21 Compliance with Laws. Except as set forth in Exhibit
3.21, US Highland has not received any written notice of any violation
of any applicable laws, rules, regulations and orders relating to the
operation, conduct or ownership of the business. US Highland has all
permits, licenses, certificates and authorizations of governmental and
regulatory authorities necessary for the conduct of their business as
presently conducted, except where the failure to have any such permit,
certificate, or authorization would not have a Material Adverse Effect.
Section 3.22 Employee Benefit Plans; Labor Matters.
With respect to each employee benefit plan, program, arrangement and
contract (including, without limitation, any "Employee Benefit Plan",
as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), maintained or contributed to by US
Highland, or with respect to which US Highland could incur liability
under Section 4069 or 4201(c) of ERISA (US Highland Benefit Plans"), US
Highland has made available to US Highland a true and correct copy of
the most recent annual report (Form 5500) filed with the Internal
Revenue Service (the "IRS"), such US Highland Benefit Plan, each trust
agreement relating to such US Highland Benefit Plan, the most recent
summary plan described for each US Highland Benefit Plan for which a
summary plan described is required, the most recent actuarial report or
valuation relating to a US Highland Benefit Plan subject to Title IV of
ERISA, if any, and the most recent determination letter, if any, issued
by the IRS with respect to any US Highland Benefit Plan qualified under
Section 401 (a) of the Code.
(b) With respect to US Highland Benefit Plans, no event has occurred
and, to the knowledge of US Highland, there exists no condition or set
of circumstances, in connection with which US Highland could be subject
to any liability under the terms of such US Highland Benefit Plans,
ERISA, the Code or any other applicable law except as would not have a
US Highland Material Adverse Effect. US Highland has no actual or
contingent liability under Title IV of ERISA (other than the payment of
premiums to the Pension Benefit Guaranty Corporation) except as would
not have a US Highland Material Adverse Effect.
(c) US Highland has made available to Harcom:
(i) copies of all employment agreements with officers or key
employees of US Highland or any of its subsidiaries;
(ii) copies of all severance agreements, programs and policies of
US Highland; and copies of all plans, programs, agreements and other
arrangements of US Highland, which contain change in control
provisions.
(d) Except as set forth in Exhibit 3.22(d), neither the execution nor
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will:
- result in any material payment (including, without limitation,
severance, unemployment compensation, "golden parachute" or otherwise)
becoming due to any director, officer or employee of US Highland under
any US Highland Benefit Plan or otherwise;
- materially increase any benefits otherwise payable under any US
Highland Benefit Plan; or
- result in any acceleration of the time of payment or vesting of
any material benefits.
(e) Except as set forth in Exhibit 3.22(e) or as required by law, no
US Highland Benefit Plan provides retiree medical or retiree life
insurance benefits to any person.
(f) US Highland
(i) is in material compliance with all applicable federal, state
and local laws, rules and regulations (domestic and foreign) respecting
employment, employment practices, labor, terms and conditions of
employment and wages and hours, in each case, with respect to
employees;
(ii) has withheld all amounts required by law or by agreement to be
withheld from the wages, salaries and other payments to employees;
(iii) is not liable for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and
(iv) is not liable for any payment to any trust or other fund or to
any governmental or administrative authority, with respect to
unemployment compensation benefits, social security or other benefits
for employees.
(g) No employees are currently represented by any labor union for
purposes of collective bargaining and to the knowledge of US Highland,
no activities the purpose of which is to achieve such representation of
all or some of such employees are threatened or ongoing. No work
stoppage or labor strike against US Highland by employees is pending or
to the knowledge of US Highland threatened. US Highland is not:
(i) involved in or threatened with any labor dispute, grievance, or
litigation relating to labor matters involving any employees,
including, without limitation, violation of any federal, state or local
labor, safety or employment laws (domestic or foreign), charges of
unfair labor practices or discrimination complaints;
(ii) engaged in any unfair labor practices within the meaning of the
National Labor Relations Act or the Railway Labor Act; or
(iii) presently, nor has it been in the past a party to, or bound by,
any collective bargaining agreement or union contract with respect to
employees and no such agreement or contract is currently being
negotiated by US Highland or any of its affiliates.
(h) COBRA, FMLA, HIPAA, Cancer Rights. With respect to each US
Highland Employee Plan, US Highland has complied with:
(i) the applicable health care continuation and notice provisions
of the Consolidation Omnibus Budget Reconciliation Act of 1985
("COBRA") and the regulations thereunder or any state law governing
health care coverage extension or continuation;
(ii) the applicable requirements of the Family and Medical Leave Act
of 1993 ("FMLA") and the regulations thereunder;
the applicable requirements of the Health Insurance Portability and
Accountability Act of 1996 ("HIPPAA"); and
(iii) the applicable requirements of the Cancer Rights Act of 1998,
except to the extent that such failure to comply could not reasonably
be expected, individually or in the aggregate, to have Material Adverse
Effect on US Highland.
US Highland has no material unsatisfied obligations to any employees,
former employees or qualified beneficiaries pursuant to COBRA, HIPAA or
any state law governing health care coverage extension or continuation.
Section 3.23 Environmental Matters.
(a) To the knowledge of US Highland, it is and has at all times been
in compliance with all environmental laws governing US Highland and its
business, operations, properties and assets, except as would not have a
Material Adverse Effect.
(b) There are no judgments and no material non-compliance orders,
warning letters, notices of violation, claims, suits, actions,
penalties, fines, or administrative or judicial investigations of any
nature or to the knowledge of US Highland proceedings pending or
threatened in writing against or involving US Highland, any
Governmental Authority or third party with respect to any environmental
laws of licenses issued to US Highland, except as would not have a
Material Adverse Effect.
Section 3.24 Insurance. All of the material assets of US Highland
and all aspects of the business that are of insurable character are
covered by insurance with reputable insurers against risks of
liability, casualty and fire and other losses and liabilities
customarily obtained to cover comparable businesses and assets in
amounts, scope and coverage which are consistent with prudent industry
practice. US Highland is not in default with respect to its
obligations under any material insurance policy maintained by it.
Exhibit 3.24 sets forth a list of all insurance coverage carried by US
Highland, the carrier and the terms and amount of coverage. All such
policies and other instruments are in full force and effect and all
premiums with respect thereto have been paid. US Highland has not
failed to give any notice or present any claim under any such insurance
policy in due and timely fashion or as required by any of such
insurance policies, and US Highland has not otherwise, through any act,
omission or non-disclosure, jeopardized or impaired full recovery of
any claim under such policies, and there are no claims by US Highland
under any of such policies to which any insurance company is denying
liability or defending under a reservation of rights or similar clause.
US Highland has not received notice of any pending or threatened
termination of any of such policies or any premium increases for the
current policy period with respect to any of such policies and the
consummation of the transactions contemplated by this Agreement will
not result in any such termination or premium increase.
Section 3.25 Accuracy of Information. None of the written
information and documents which have been or will be furnished by US
Highland or any representatives of US Highland to Harcom or any of the
representatives of US Highland in connection with the transactions
contemplated by this Agreement contains or will contain, as the case
may be, any untrue statement of a material fact, or omits or will omit
to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances in which made. To
the knowledge of US Highland, US Highland has disclosed to Harcom as
the purchaser of Harcom Common Stock, all material information relating
to US Highland and its activities as currently conducted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF HARCOM
Harcom represents and warrants to US Highland that the statements made
in Article 4 are true and complete, as of the date of this Agreement
and will be correct and complete as of Closing, as follows:
Section 4.1 Organization and Qualification of Harcom. Harcom is a
corporation duly organized, validly existing, and in good standing
under the laws of the state of Oklahoma, and has all requisite
corporate power and authority to own and lease the properties and
assets it currently owns and leases and to conduct its activities as
currently conducted. Harcom is duly qualified to do business as a
foreign corporation in all jurisdictions in which the ownership or
leasing of the properties and assets owned or leased by it or the
nature of its activities makes such qualification necessary.
Section 4.2 Authority. Harcom has all requisite corporate power and
authority to execute, deliver and perform this Agreement. The
execution, delivery, and performance of this Agreement by Harcom have
been duly and validly authorized by all necessary action on the part of
Harcom. This Agreement has been duly and validly executed and
delivered by Harcom, and is the valid and binding obligation of Harcom,
enforceable against Harcom in accordance with its terms.
Section 4.3 Capitalization of Harcom. The authorized capital stock
of Harcom consists of one hundred million (100,000,000) authorized
shares of common stock $.01 par value per share of which eleven
million, four hundred sixty two thousand, five hundred (11,462,500)
post split common shares 4.4.are issued and outstanding fully paid and
non assessable. Except as listed in Exhibit 4.3, there are no other
authorized or outstanding subscriptions, options, convertible
securities, warrants, calls or other rights of any kind issued or
granted by, or binding upon, Harcom to purchase or otherwise acquire
any securities of or equity interest in Harcom.
Section 4.4 No Conflicts; Required Consents. The execution,
delivery and performance by Harcom of this Agreement does not and will
not: (i) conflict with or violate any provisions of the Charter
Documents of Harcom; (ii) violate any provision of any Legal
Requirements; or (iii) conflict with, violate, result in a breach of,
constitute a default under (without regard to requirements of notice,
lapse of time, or elections of other persons, or any combination
thereof) or accelerate or permit the acceleration of the performance
required by, any Contract or Lien to which Harcom is a party or by
which Harcom or the assets or properties owned or leased by it are
bound or affected; or (iv) require any consent, approval or
authorization, report or other document with, any Governmental
Authority or other person.
Section 4.5 Validity and Ownership of Harcom Common Stock. The
Harcom Common Stock received by the shareholders of US Highland at the
Closing will be validly issued and outstanding, fully paid and non-
assessable. The Harcom Common Stock will not be subject to, nor bound
or affected by, any proxies, voting agreements, or other restrictions
on the ownership thereof, and shall remain free from any encumbrances
or Liens.
Section 4.6 Subsidiaries. Harcom does not control or hold direct or
indirect equity interests in, or hold rights to control or acquire
direct or indirect equity interests in, any corporation other than
described in Exhibit 4.6.
Section 4.7 Litigation. Other than disclosed in Exhibit 4.7, there
is no litigation pending or, to Harcom's knowledge, threatened, by or
before any governmental authority or private arbitration tribunal,
against Harcom or its operations, nor, to Harcom's knowledge, is there
any basis for any such litigation.
Section 4.8 Compliance with Applicable Legal Requirements. Conduct
by Harcom of its activities as currently conducted does not violate or
infringe any Legal Requirements currently in effect, or, to the
knowledge of Harcom, proposed to become effective; and Harcom has
received no notice of any violation by Harcom of any Legal Requirements
applicable to Harcom or its activities as currently conducted; and
Harcom knows of no basis for the allegation of any such violation.
Section 4.9 Financial Statements. Harcom shall deliver to US
Highland the audited financial statements of Harcom as of December 31,
2009 (the "Harcom Financial Statements"). The Financial Statements
shall be prepared in accordance with GAAP and present fairly the
financial position of Harcom as of the date indicated.
Section 4.10 Liabilities. Harcom has no liabilities or obligations,
whether absolute, accrued, contingent or otherwise, that are not
reflected in the balance sheet or non-delinquent obligations for
ordinary and recurring expenses, including in the ordinary course of
business of Harcom since the date of the Financial Statements. At
Closing, Harcom shall have no liabilities or obligations, including
state and federal tax liabilities.
Section 4.11 Tax Returns and Payments. Except as set forth in Exhibit
4.11(a), all Tax Returns required to be filed by or with respect to
Harcom have been properly and timely filed and all such Tax Returns are
complete and accurate in all material respects. Except to the extent
reserved or reflected against on the Financial Statements, all Taxes
due with respect to such Tax Returns or which are otherwise due and
payable by Harcom have been paid in full. All Taxes required to be
withheld and paid over by Harcom to any relevant Tax authority in
connection with payments to employees, independent contractors,
creditors, stockholders or to third parties have been so withheld and
paid over.
(b) Except as set forth in Exhibit 4.11(b):
(i) no Tax authority in a jurisdiction where Harcom does not file
Tax Returns has made a written claim, assertion or threat that US
Highland is or may be subject to tax in such jurisdiction;
(ii) no deficiencies for any tax have been threatened, proposed,
asserted or assessed against Harcom that have not been satisfied;
(iii) no audits or examinations with respect to Harcom are ongoing
or have been threatened or proposed, in writing by the Internal Revenue
Service or the appropriate state, local or foreign Tax authority;
(iv) no waivers or extensions of statutes of limitation with
respect to Taxes have been given by or requested with respect to
Harcom;
(v) there are no Tax rulings, requests for rulings, closing
agreements relating to Harcom that could affect the liability for Taxes
of Harcom for any period (or portion of a period) after the Closing;
and
(vi) no power of attorney has been granted by Harcom with respect
to any matter relating to Taxes of Harcom that is currently in force.
(c) Harcom is not a party to or liable to under any tax sharing
agreement with respect to taxes of any consolidated, combined or
unitary group other than the consolidated, combined or unitary group
other than the consolidated, combined or unitary group disclosed in
Exhibit 4.11(c). Except as set forth in Exhibit 4.11(c), Harcom has
not with respect to any taxable period for which the applicable statute
of limitations has not run, filed a combined consolidated or unitary
tax return with respect to any jurisdictions (foreign and domestic) in
which Harcom has filed income tax returns for taxable periods ending on
or December 31, 2008. Harcom will not, in the absence of a closing
agreement provided for in the Treasury Regulations under Section 1503
of the Internal Revenue Code of 1986. (the "Code"), trigger the
recapture of any dual consolidated losses (as defined in Section 1503
of the Code) by virtue of the transactions contemplated by this
Agreement.
(d) There are no tax liens on any assets of Harcom,
except liens for taxes not yet due and payable.
Section 4.12 Absence of Certain Changes or Events. Since the date
of the Harcom Financial Statements there has not occurred:
(a) any material and adverse change in the financial condition
or operations of Harcom;
(b) any damage, destruction or loss to or of any of the
material assets or properties owned or leased by Harcom;
(c) the creation or attachment of any Lien against the Common
Stock of Harcom;
(d) any waiver, release, discharge, transfer, or cancellation
by Harcom of any rights or claims of material value;
(e) any issuance by Harcom of any securities, or any merger or
consolidation of Harcom with any other Person, or any acquisition by
Harcom of the business of any other Person;
(f) any incurrence, assumption or guarantee by Harcom of any
indebtedness or liability;
(g) any declaration, setting aside or payment by Harcom of any
dividends on, or any other distribution with respect to, any capital
stock of Harcom or any repurchase, redemption, or other acquisition of
any capital stock of Harcom;
(h) (A) any payment of any bonus, profit sharing, pension or
similar payment or arrangement or special compensation to any employee
of Harcom, except in the ordinary course of the administration of
Harcom, or (B) any increase in the compensation payable or to become
payable to any employee of Harcom; or
(i) the entry by Harcom into any Contract to do any of the
foregoing.
Section 4.13 Material Harcom Contracts. As of the date of this
Agreement, Harcom does not have except as disclosed in Exhibit 4.13:
(a) contracts evidence or evidencing or relating to any liabilities
or obligations of Harcom, whether absolute, accrued, contingent or
otherwise, or granting any Person a Lien or against any properties or
assets owned or leased by Harcom;
(b) joint venture or partnership Contracts between Harcom and any
other person;
(c) contracts limiting the Harcom to engage in or to compete in any
activity, or to use or disclose any information in its possession;
(d) any other contracts to which Harcom is a party or by which it or
the assets or properties owned or leased by it are bound or affected
that are not set forth on other Exhibits hereto, which in the aggregate
contemplate payments to or by Harcom exceeding $50,000 in any twelve-
month period (collectively herein as the "Material Harcom Contract").
Harcom has delivered to US Highland true and complete copies of each of
the Material Harcom Contracts, including any amendments thereto (or, in
the case of oral Material Harcom Contracts, a written description and
representation that the contract is valid, in full force and effect and
enforceable in accordance with its terms against the parties thereto
other than Harcom, has fulfilled when due, or has taken all action
necessary to enable it to fulfill when due, all of its obligations
thereunder);
(e) there has not occurred any default (without regard to lapse of
time, the giving of notice, or the election of any person other than
Harcom, or any combination thereof) by Harcom, nor, to the knowledge of
Harcom, has there occurred any default (without regard to lapse of
time, the giving of notice, or the election of Harcom, or any
combination thereof) by any other person, under any of the Material
Harcom Contracts; and
(f) neither Harcom nor, to the knowledge of Harcom, any other person
is in arrears in the performance or satisfaction of its obligations
under any of the Material Harcom Contracts, and no waiver has been
granted by any of the parties thereto.
Section 4.14 (a) Real Property. As of the date of this Agreement,
Harcom does not own any real property.
(b) Leased Property. Exhibit 4.14(b) sets forth a list of all real
property leased by Harcom (the "Leased Real Property"). Harcom has
made available to Harcom true and complete copies of all leases and
subleases relating to the Leased Real Property. With respect to the
Leased Real Property except as set forth on Exhibit 4.14(b)
(i) Harcom has not received written notice of any pending or, to the
knowledge of the Stockholders, threatened condemnation or eminent
domain proceedings or their local equivalent with respect to the Leased
Real Property;
(ii) the Leased Real Property, the use and occupancy thereof by
Harcom, and the conduct of the business thereon and therein does not
violate any deed restrictions, applicable law consisting of building
codes, zoning, subdivision or other land use or similar laws the
violation of which would materially adversely affect the use, value or
occupancy of any such property or the conduct of the business thereon;
(iii) Harcom has received, written notice of a material violation of
the restrictions or laws described in the foregoing clause (ii); and
(iv) none of the structures or improvements on any of the Leased Real
Property encroaches upon real property of another person or entity, and
no structure or improvement of another person or entity encroaches upon
any of the Leased Real Property, which would materially interfere with
the use thereof in the ordinary course of business.
Section 4.15 Employees. As of the date of this Agreement, Harcom
does not have any employees except as disclosed in Exhibit 4.15.
Section 4.16 Books and Records. All of the books, records and
accounts of Harcom are in all material respects true and complete, are
maintained in accordance with good business practice and all applicable
Legal Requirements, accurately present and reflect in all material
respects all of the transactions therein described, and are reflected
accurately in the Financial Statements. Harcom has previously
delivered to US Highland the complete stock record book of Harcom and
true and complete copies of all of the minutes of meetings and all
other corporate actions of the stockholders, Board of Directors and
committees of the Board of Directors of Harcom since the date of its
incorporation.
Section 4.17 Certain Interests. None of Harcom or its officers,
directors, or holders of ten percent (10%) or more of Harcom Common
Stock, directly or indirectly is, or owns any interest in, or controls,
or is an employee, officer, director or partner of or participant in,
or consultant to, any person which is a competitor, supplier or
customer of Harcom.
Section 4.18 Bank Accounts. Exhibit 4.18 sets forth all bank
accounts, brokerage accounts, and safe deposit boxes of any kind
maintained by Harcom and, in each case, identifies the persons that are
authorized signatories for, or which are authorized to have access to,
each of them.
Section 4.19 Changes in Circumstances. Harcom has no knowledge of:
(i) any current or future condition or state of facts or
circumstances which could reasonably be expected to result in a
material and adverse change in the financial condition of operations of
Harcom; or
(ii) any Legal Requirements currently in effect from which Harcom
currently is, or any currently proposed Legal Requirements from which
Harcom would be, exempt by reason of any "grandfather" clauses or
provisions contained therein, but which would be applicable to Harcom
following closing.
Section 4.20 Insurance. All of the material assets of Harcom and
all aspects of the business that are of insurable character are covered
by insurance with reputable insurers against risks of liability,
casualty and fire and other losses and liabilities customarily obtained
to cover comparable businesses and assets in amounts, scope and
coverage which are consistent with prudent industry practice. Harcom
is not in default with respect to its obligations under any material
insurance policy maintained by it. Exhibit 4.20 sets forth a list of
all insurance coverage carried by Harcom, the carrier and the terms and
amount of coverage. All such policies and other instruments are in
full force and effect and all premiums with respect thereto have been
paid. Harcom has not failed to give any notice or present any claim
under any such insurance policy in due and timely fashion or as
required by any of such insurance policies, and Harcom has not
otherwise, through any act, omission or non-disclosure, jeopardized or
impaired full recovery of any claim under such policies, and there are
no claims by Harcom under any of such policies to which any insurance
company is denying liability or defending under a reservation of rights
or similar clause. Harcom has not received notice of any pending or
threatened termination of any of such policies or any premium increases
for the current policy period with respect to any of such policies and
the consummation of the transactions contemplated by this Agreement
will not result in any such termination or premium increase.
Section 4.21 Accuracy of Information. None of the written
information and documents which have been or will be furnished by
Harcom or any representatives of Harcom to Harcom or any of the
representatives of Harcom in connection with the transactions
contemplated by this Agreement contains or will contain, as the case
may be, any untrue statement of a material fact, or omits or will omit
to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances in which made. To
the knowledge of Harcom, Harcom has disclosed to Harcom as the
purchaser of Harcom Common Stock all material information relating to
Harcom and its activities as currently conducted.
ARTICLE 5
Covenants of US Highland and Harcom
Section 5.1 Affirmative Covenants of US Highland. Except as US
Highland may otherwise consent in writing, between the dates of this
Agreement and Closing, US Highland shall:
(a) conduct its business only in the usual, regular, and ordinary
course and in accordance with past practices:
(b) (i) duly comply with all applicable Legal Requirements;
(ii) perform all of its obligations under all US Highland
Contracts without default; and
(iii) maintain its books, records, and accounts on a basis
consistent with past practices.
(c) (i) give to Harcom and its counsel, accountants and other
representatives reasonable access during normal business hours to the
premises of US Highland, all of the assets and properties owned or
leased by US Highland, US Highland's books and records, and US
Highland's personnel;
(ii) furnish to Harcom and such representatives all such additional
documents (certified by an officer of US Highland, if requested),
financial information and other information as Harcom may from time to
time reasonably request; and
(iii) cause US Highland's accountants to permit Harcom and its
accountants to examine the records and working papers pertaining to US
Highland's Financial Statements' provided that no investigation by US
Highland or its representatives will affect or limit the scope of any
of the representations and warranties of US Highland herein or in any
Exhibit or other related document.
(d) use its best efforts to obtain in writing as promptly as possible
all approvals and consents required to be obtained by US Highland in
order to consummate the transactions contemplated hereby and deliver to
US Highland copies, satisfactory in form and substance to US Highland,
of such approvals and consents;
(e) promptly deliver to Harcom true and complete copies of all monthly
and quarterly financial statements of US Highland and any reports with
respect to the activities of US Highland which are prepared by or for
US Highland at any time from the date hereof until Closing; and
(f) promptly notify Harcom of any circumstance, event or action, by US
Highland or otherwise:
(i) which, if known at the date of this Agreement, would have been
required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence or taking of which would result in
any of the representations and warranties of US Highland in this
Agreement or any Exhibit not being true and correct in all material
respects.
Section 5.2 Negative Covenants of US Highland. Except as US
Highland may otherwise consent in writing, between the dates of this
Agreement and Closing, US Highland shall not:
(a) change the character of its business;
(b) incur any liability or obligation or enter into any
Contract except, in each case, in the ordinary course of business
consistent with prior practices and not prohibited by any other
provision hereof;
(c) incur, assume or guarantee any indebtedness or liability in
respect of borrowed money;
(d) make any capital expenditure or commitment for capital
expenditure exceeding $500,000 for a single project or $1,000,000 for
all projects, whether or not in the ordinary course of business;
(e) modify, terminate, or abrogate any Material US Highland
Contract other than in the ordinary course of business, or waive,
lease, discharge, transfer or cancel any rights or claims of material
value;
(f) create or permit the creation or attachment of any Lien
against any of the assets or properties owned or leased by it;
(g) except as otherwise required by this Agreement, prepay any
material liabilities or obligations;
(h) issue any securities, or merge or consolidate with any
other person, or acquire any of the securities, partnership or joint
venture interests, or business of any other person;
(i) declare, set aside or pay any dividends on, or make any
other distribution with respect to, any of its capital stock, or
repurchase, redeem or otherwise acquire any of its capital stock; or
(j) enter into any transaction or permit the taking of any action
that would result in any of the representations and warranties in this
Agreement not being true and correct in all material respects at
Closing.
Section 5.3 Affirmative Covenants of Harcom. Except as US Highland
may otherwise consent in writing, between the dates of this Agreement
and Closing, Harcom shall:
(a) conduct its business only in the usual, regular, and
ordinary course and in accordance with past practices;
(b) (i) duly comply with all applicable Legal Requirements;
(ii) perform all of its obligations under all Harcom Contracts
without default; and
(iii) maintain its books, records, and accounts on a basis
consistent with past practices.
(c) (i) give to US Highland and its counsel, accountants and
other representatives reasonable access during normal business hours to
the premises of Harcom, all of the assets and properties owned or
leased by Harcom, Harcom's books and records, and Harcom's personnel:
(ii) furnish to US Highland and such representatives all such
additional documents (certified by an officer of Harcom, if requested),
financial information and other information as US Highland may from
time to time reasonably request; and
(iii) cause Harcom's accountants to permit US Highland and its
accountants to examine the records and working papers pertaining to
Harcom's Financial Statements' provided that no investigation by US
Highland or its representatives will affect or limit the scope of any
of the representations and warranties of Harcom herein or in any
Exhibit or other related document.
(d) use its best efforts to obtain in writing as promptly as possible
all approvals and consents required to be obtained by US Highland in
order to consummate the transactions contemplated hereby and deliver to
US Highland copies, satisfactory in form and substance to US Highland,
of such approvals and consents;
(e) promptly deliver to US Highland true and complete copies of all
monthly and quarterly financial statements of Harcom and any reports
with respect to the activities of Harcom which are prepared by or for
Harcom at any time from the date hereof until Closing; and
(f) promptly notify US Highland of any circumstance, event or action,
by Harcom or otherwise:
(i) which, if known at the date of this Agreement, would have been
required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence or taking of which would result in
any of the representations and warranties of Harcom in this Agreement
or in any Transaction Document not being true and correct in all
material respects.
Section 5.4 Negative Covenants of Harcom. Except as US Highland may
otherwise consent in writing, between the dates of this Agreement and
Closing, Harcom shall not:
(a) change the character of its business;
(b) incur any liability or obligation or enter into any
Contract except, in each case, in the ordinary course of business
consistent with prior practices and not prohibited by any other
provision hereof;
(c) incur, assume or guarantee any indebtedness or liability in
respect of borrowed money;
(d) make any capital expenditure or commitment for capital
expenditure exceeding $5,000 for a single project or $10,000 for all
projects, whether or not in the ordinary course of business;
(e) modify, terminate, or abrogate any Material Harcom Contract
other than in the ordinary course of business, or waive, lease,
discharge, transfer or cancel any rights or claims of material value;
(f) create or permit the creation or attachment of any Lien
against any of the assets or properties owned or leased by it;
(g) except as otherwise required by this Agreement, prepay any
material liabilities or obligations;
(h) issue any securities, or merge or consolidate with any
other person, or acquire any of the securities, partnership or joint
venture interests, or business of any other person;
(i) declare, set aside or pay any dividends on, or make any
other distribution with respect to, any of its capital stock, or
repurchase, redeem or otherwise acquire any of its capital stock; or
(j) enter into any transaction or permit the taking of any
action that would result in any of the representations and warranties
in this Agreement not being true and correct in all material respects
at Closing.
Section 5.5 Joint Undertakings. Each of US Highland and Harcom
shall cooperate and exercise commercially reasonable efforts to
facilitate the consummation of the transactions contemplated by this
Agreement so as to permit Closing to take place on the date provided
herein and to cause the satisfaction of conditions to Closing set forth
in Article 6.
Section 5.6 Confidentiality.
(a) Any non-public information that Harcom may obtain from US
Highland in connection with this Agreement, including but not limited
to information concerning trade secrets, licenses, research projects,
costs, profits, markets, sales, customer lists, strategies, plans for
future development and any other information of a similar nature, shall
be deemed confidential and, unless and until Closing shall occur,
Harcom shall not disclose any such information to any third party
(other than its directors, officers and employees, and persons whose
knowledge thereof is necessary to facilitate the consummation of the
transactions contemplated hereby) or use such information to the
detriment of US Highland; provided that
(i) Harcom may use and disclose any such information once it has
been publicly disclosed (other than by Harcom in breach of its
obligations under this Section) or which rightfully has come into the
possession of Harcom (other than from US Highland); and
(ii) to the extent that Harcom may become compelled by Legal
Requirements to disclose any of such information, Harcom may disclose
such information if it shall have used all reasonable efforts, and
shall have afforded US Highland the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
In the event of termination of this Agreement, Harcom shall use all
reasonable efforts to cause to be delivered to US Highland, and retain
no copies of, any documents, work papers and other materials obtained
by Harcom or on its behalf from US Highland, whether so obtained before
or after the execution hereof.
(b) Any non-public information that US Highland may obtain from
Harcom in connection with this Agreement, including but not limited to
information concerning trade secrets, licenses, research projects,
costs, profits, markets, sales, customer lists, strategies, plans for
future development and any other information of a similar nature, shall
be deemed confidential and, unless and until Closing shall occur, US
Highland shall not disclose any such information to any third party
(other than its directors, officers and employees, and persons whose
knowledge thereof is necessary to facilitate the consummation of the
transactions contemplated hereby) or use such information to the
detriment of Harcom; provided that
(i) US Highland may use and disclose any such information once it
has been publicly disclosed (other than by US Highland in breach of its
obligations under this Section) or which rightfully has come into the
possession of US Highland (other than from Harcom); and
(ii) to the extent that US Highland may become compelled by Legal
Requirements to disclose any of such information, US Highland may
disclose such information if it shall have used all reasonable efforts,
and shall have afforded Harcom the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
In the event of termination of this Agreement, US Highland shall use
all reasonable efforts to cause to be delivered to Harcom, and retain
no copies of, any documents, work papers and other materials obtained
by US Highland or on its behalf from Harcom, whether so obtained before
or after the execution hereof.
Section 5.7 Publicity. Harcom and US Highland shall each consult
with and obtain the consent of the other before issuing any press
release or making any other public disclosure concerning this Agreement
or the transactions contemplated hereby unless, in the reasonable
judgment of the disclosing party, a release or disclosure is required
to discharge its disclosure obligations under applicable Legal
Requirements, in which case it shall in good faith consult with the
other party about the form, content and timing of such release or
disclosure prior to its release or disclosure.
Section 5.8 US Highland's Responsibility for Taxes; Returns; Audits.
(a) Tax Returns; Filing and Payments.
(i) US Highland shall timely prepare (or cause to be prepared), and
shall timely file (or cause to be timely filed) all Income Tax Returns
of US Highland for any taxable year or period ending on or before the
Closing Date which are not required to be filed on or before the
Closing Date.
(ii) US Highland shall prepare (or cause to be prepared) and file
(or cause to be filed) all Income Tax Returns of US Highland for any
Taxable year or period commencing prior to the Closing Date and ending
subsequent to the Closing Date.
(iii) The Tax Returns referred to in this Section 5.8(a)(i) and
(ii), shall, to the extent not otherwise required by law, be prepared
in a manner consistent with US Highland's (as appropriate) past
practice (including any Tax elections and methods of accounting). With
respect to any Tax Return referred to in Sections 5.8(a)(i) and (ii)
above, the party preparing such return shall provide the other party a
draft of such Tax Return and Tax information (including, without
limitation, work papers and schedules) for review of such Tax Return in
a timely manner no later than thirty (30) days prior to the due date
(taking into account valid extensions) for the filing of such Tax
Return. The parties shall consult in good faith with regard to the
form and content of such Tax Returns, provided that, in the event of
any disagreement, the Tax Returns shall be filed in the form set forth
by the party with responsibility for the preparation of the Tax Return.
(b) Termination of Tax Sharing Agreements; Powers of Attorney.
(i) Any Tax Sharing Agreement to which US Highland is a party shall
be terminated as of the Closing Date, and US Highland shall have no
further obligations thereunder. For purposes of this Agreement, the
term "Tax Sharing Agreement" includes any agreement or arrangement,
whether or not written, providing for the sharing or allocation of
liability for Taxes of the parties thereto.
(ii) All powers of attorney granted by US Highland with respect to
Taxes shall be revoked as of the Closing Date.
Between the date of the Agreement and the Closing Date, US Highland
will not cause or permit US Highland to:
(i) make any change in US Highland's Tax accounting methods, any
new election with respect to Taxes or any modification or revocation of
any existing election with respect to Taxes; or
(ii) settle or otherwise dispose of any Tax audit, dispute, or
other Tax proceeding, in each case without US Highland' express written
consent thereto.
(c) Assistance and Cooperation.
(i) From and after the Closing Date, to the extent reasonably
requested by the other party, Harcom and US Highland shall assist and
cooperate with each other in the preparation of any Tax Return which
the other party is responsible to file pursuant to Section 5.8(a)
herein and shall assist and cooperate with the other party in preparing
for any audits or disputes relating to Taxes for which the other party
is responsible pursuant to this Agreement. From and after the Closing
Date, Harcom and US Highland shall, pursuant to the other party's
reasonable request, make available to the other party all information,
records and documents reasonably available to that party, which are
necessary for the preparation of any Tax Return or resolution of any
audit or dispute. In all such cases, the party seeking assistance or
cooperation shall bear the expenses of the other party incurred in
connection with respect thereto.
(ii) From and after the Closing Date, Harcom and US Highland shall
provide timely notice to the other in writing of any pending or
threatened tax audits or assessments of US Highland for taxable periods
for which the other is liable under this Agreement, and shall furnish
the other with copies of all correspondence received from any taxing
authority in connection with any tax audit or information request with
respect to any such taxable period.
Section 5.9 Harcom's Responsibility for Taxes; Returns; Audits.
Tax Returns; Filing and Payments.
(i) Harcom shall timely prepare (or cause to be prepared), and
shall timely file (or cause to be timely filed) all Income Tax Returns
of Harcom for any taxable year or period ending on or before the
Closing Date which are not required to be filed on or before the
Closing Date
(ii) The Tax Returns referred to in this Section 5.9 shall, to the
extent not otherwise required by law, be prepared in a manner
consistent with Harcom's (as appropriate) past practice (including any
Tax elections and methods of accounting). With respect to any Tax
Return referred to in Sections 5.9 above, between the dates of the
Agreement and the Closing Date, US Highland will not make any change in
Harcom's Tax accounting methods, any new election with respect to Taxes
or any modification or revocation of any existing election with respect
to Taxes.
Section 5.10 Cooperation with Public Filings. US Highland shall
cooperate with Harcom and its affiliates and advisors in the
preparation and filing of any public filings (and any related
documentation or filings) in a timely fashion and shall use its
reasonable best efforts to assist Harcom in having any such
registration statement declared effective by the Securities and
Exchange Commission as promptly as practicable and in maintaining the
effectiveness of any such registration statement. If US Highland shall
obtain knowledge of any information pertaining to US Highland that
would require any amendment or supplement to any registration
statement, US Highland shall so advise Harcom in writing and shall
promptly furnish Harcom with all information as shall be required for
such amendment or supplement and shall promptly take such action as
shall be required to amend or supplement any such registration
statement.
Section 5.11 Tax Reorganization. Each party to this Agreement hereby
intends and agrees to take all reasonable actions to cause the Merger
to qualify as a reorganization within the meaning of Section 368(a) of
the Code and will immediately notify each of the other parties of any
circumstance or condition of which it is or becomes aware of which
might cause the Merger to fail to so qualify. US Highland represents
that it has not taken any action that would cause the Merger to fail to
so qualify as reorganization within the meaning of Section 368(a) of
the Code, and is not aware of any circumstances, which would cause the
Merger to fail to so qualify.
ARTICLE 6
Conditions Precedent
Section 6.1 Conditions to US Highland's Obligations. The
obligations of US Highland to consummate the transactions contemplated
by this Agreement are subject to the following conditions:
(a) Accuracy of Representations. The representations of Harcom in
this Agreement or in any Exhibit hereto shall be true and accurate in
all material respects at and as of Closing with the same effect as if
made at and as of Closing, except as affected by the transactions
contemplated hereby.
(b) Performance of Agreements. Harcom shall have performed all
obligations and agreements and complied with all covenants in this
Agreement to be performed and complied with by it at or before Closing.
(c) Receipt of Harcom Common Stock. Harcom shall have delivered to
US Highland at Closing, certificates representing Ten Million
(10,000,000) issued in the name of the shareholders of US Highland.
(d) Officer's Certificate. US Highland shall have received a
certificate executed by an executive officer of Harcom, dated as of
Closing, reasonably satisfactory in form and substance to US Highland
certifying that the conditions stated in subparagraphs (a), (b) and (c)
of this Section have been satisfied.
(e) Legal Proceedings. There shall be no Legal Requirement, and no
judgment shall have been entered and not vacated by any governmental
authority of competent jurisdiction and no litigation shall be pending
which restrains, makes illegal or prohibits consummation of the
transactions contemplated hereby.
(f) Consents. US Highland shall have obtained evidence, in form and
substance satisfactory to it, that there has been obtained all
consents, approvals and authorizations required by this Agreement.
(g) Resignation of Officers and Directors. Each of the officers and
directors of Harcom whose written resignation US Highland has requested
shall have delivered to US Highland effective as of the Closing.
(h) Legal Matters Satisfactory to US Highland's Counsel. All
actions, proceedings, instruments and documents required to carry out
the transactions contemplated by this Agreement or incidental thereto
and all related legal matters shall be reasonably satisfactory to and
approved by US Highland's counsel, and such counsel shall have been
furnished with such certified copies of actions and proceedings and
such other instruments and documents as it shall have reasonably
requested.
Section 6.2 Conditions to Harcom's Obligations. The obligations of
Harcom to consummate the transactions contemplated by this Agreement
are subject to the following conditions:
(a) Accuracy of Representations. The representations of US Highland
in this Agreement or in any Exhibit hereto shall be true and accurate
(in all material respects) at and as of Closing with the same effect as
if they were made at and as of Closing, except as affected by the
transactions contemplated hereby.
(b) Performance of Agreements. US Highland shall have performed all
obligations and agreements and complied with all covenants in this
Agreement or in any Transaction Document to which it is a party to be
performed and complied with by it at or before Closing.
(c) Delivery of US Highland Stock. US Highland shall have delivered
at Closing, certificates representing ten million (10,000,000) shares
of common stock.
(d) Officer's Certificate. Harcom shall have received a certificate
executed by an executive officer of US Highland, dated as of Closing,
reasonably satisfactory in form and substance to Harcom, certifying
that the conditions stated in subparagraphs (a) and (b) of this Section
have been satisfied.
(e) Legal Proceedings. There shall be no Legal Requirement, and no
judgment shall have been entered and not created by any governmental
authority of competent jurisdiction and no litigation shall be pending
which,
(i) restrains, make illegal or prohibits consummation of the
transactions contemplated hereby, or
(ii) could have a material adverse effect upon the operations or
financial condition of US Highland.
(f) Consents. Harcom shall have received evidence, in form and
substance satisfactory to it, that there have been obtained all
consents, approvals, and authorizations required by this Agreement.
(g) Legal Matters Satisfactory to Harcom and its Representatives.
All actions, proceedings, instruments and documents required to carry
out the transactions contemplated by this Agreement or incidental
thereto and all related legal matters shall be reasonably satisfactory
to and approved by Harcom's counsel, and such counsel shall have been
furnished with such certified copies of actions and proceedings and
such other instruments and documents as it shall have reasonably
requested.
ARTICLE 7
Termination
Section 7.1 Termination Events. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of Harcom and US Highland;
(b) by either Harcom and US Highland, if the other is in material
breach or default of its respective covenants, agreements or other
obligations hereunder or if any of its representations and warranties
herein are not true and accurate in all material respects when made or
when otherwise required by this Agreement to be true and accurate.
(c) by Harcom, if any of the conditions to its obligations set forth
in Section 6.1 shall not have been satisfied as of Closing, unless
satisfaction shall have been frustrated or made impossible by an act or
failure to act of US Highland; or
(d) by US Highland, if any of the conditions to its obligations set
forth in Section 6.2 shall not have been satisfied as of Closing,
unless satisfaction shall have been frustrated or made impossible by an
act or failure to act of Harcom; or
Section 7.2 Effect of Termination. If this Agreement shall be
terminated, all obligations of the parties hereunder shall terminate,
except for the obligations set forth in Section 5.6 and 5.7. In such
event, US Highland shall return any and all Harcom Common Stock
received hereunder and both parties shall file the necessary documents
in the state of Oklahoma, to complete the transfer of any and all US
Highland shares of stock received by Harcom hereunder to the Principal
Shareholders.
ARTICLE 8
Miscellaneous
Section 8.1 Waiver and Modifications. Any of the provisions of this
Agreement may be waived at any; time by the party entitled to the
benefit thereof, upon the authority of the Board of Directors of such
party; provided, however, that no waiver by US Highland shall be
authorized after the last vote of the stockholders of US Highland if
such waiver shall, in the judgment of the Board of Directors of Harcom,
affect materially and adversely the benefits of the Harcom stockholders
under this Agreement or the Agreement of Merger. Any of the provisions
of this Agreement (including the exhibits and the Agreement of Merger)
may be modified at any time prior to and after the vote of the
stockholders of US Highland by agreement in writing approved by the
Board of Directors of each party and executed in the same manner (but
not necessarily by the same persons) as this Agreement, provided that
such modification, after the last vote of the stockholders of Harcom
shall not, in the judgment of the Board of Directors of US Highland,
affect material and adversely the benefits of US Highland's
stockholders under this Agreement or the Agreement of Merger. To the
extent permitted by law, the powers of the Board of Directors may be
delegated by the Board of the Executive Committee of such Board or by
such Board (or by the Executive Committee to the extent any matter has
been delegated to such Committee by the Board) to any officer or
officers of such party, and any notices, consents or other action
referred to in this Agreement may be given or taken by any officer so
authorized.
Section 8.2 Finder Commissions. US Highland represents and warrants
that no broker or finder is entitled to any brokerage or finder's fee
or other commission based on agreements, arrangements or understandings
made by it with respect to the transactions contemplated by this
Agreement or by the Agreement of Merger, other than set forth in
Exhibit 8.2.
Section 8.3 Notices. Any notice, request, instruction or other
document to be given hereunder or under the Agreement of Merger by any
party to another shall be in writing and delivered personally or sent
by registered or certified mail, postage prepaid,
if to US Highland, addressed to:
Damian Riddoch
US Highlands, Inc.
Verktygsvagen 8
SE-553 -2 Konkoping, Sweden
With Copies To:
Jody M. Walker
Attorney At Law
7841 South Garfield Way
Centennial, CO 80122
if to Harcom, addressed to:
Mats Malmberg
Harcom Productions, Inc.
8722 South Peoria
Jenks, OK 74132
Section 8.4 Entire Agreement. This Agreement including Exhibits and
referenced documents represents the entire agreement between the
parties. Any and all other oral or written agreements concerning this
merger shall be deemed null and void.
Section 8.5 Governing Law. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the state of
Oklahoma.
Section 8.6 Counterparts. In order to facilitate the filing and
recording of this Agreement the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
Section 8.7 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that this Agreement may not be assigned by either party hereto
without the prior written consent of the other (except that Harcom may
without the prior written consent of US Highland assign this Agreement
to any affiliate of Harcom so long as such assignee shall execute a
counterpart of this Agreement agreeing to be bound by the provisions
hereof as "Harcom," and agreeing to be jointly and severally liable
with the assignor and any other assignee for all of the obligations of
the assignor hereunder), but no such assignment of this Agreement or
any of the rights or obligations hereunder shall relieve Harcom of its
obligations under this Agreement. Notwithstanding anything contained
in this Agreement to the contrary, nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors, administrators
and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
Section 8.8 Headings. The headings of the Articles, Sections and
paragraphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect
the construction hereof.
Section 8.9 Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by the
parties hereto, except that any of the terms or provisions of this
Agreement may be waived in writing at any time by the party which is
entitled to the benefits of such waived terms or provisions. No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar). No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
Section 8.10 Expenses. Except as otherwise provided herein, Harcom
and US Highland shall pay all costs and expenses incurred by them or it
or on their or its behalf in connection with this Agreement and the
transactions contemplated hereby, including, without limiting the
generality of the foregoing, fees and expenses of their respective
financial consultants, accountants and counsel.
Section 8.11 Severability. If any provision of this Agreement is held
to be void, illegal or unenforceable under present or future laws, such
provision shall be fully severable and this Agreement shall be
construed and enforced as if such void, illegal or unenforceable
provision never comprised a part hereof, and the remaining provisions
of this Agreement shall remain in full force and effect and shall not
be affected in any way by the void, illegal or unenforceable provision
or by its severance herefrom. Furthermore, in lieu of such severed
provision, there shall be added automatically as part of this Agreement
a provision as similar in its terms to such severed provision as may be
possible and be valid, legal and enforceable
IN WITNESS WHEREOF, Harcom and US Highland, by their duly authorized
officers, have executed and delivered this Agreement effective as of
the date first above written.
US Highland, Inc.
By: /s/Damian Riddoch
Name: Damian Riddoch
Title: Chief Financial Officer
Harcom Productions, Inc.
By: /s/Mats Malmberg
Name: Mats Malmberg
Title: Managing Director and President
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