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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made this 21st day of December, 2009,
by and between Harcom Production, Inc., an Oklahoma corporation
("Seller"), and Shane Harwell ("Buyer").
RECITALS:
WHEREAS, Harcom Productions, Inc., ("Seller") has assets as set out in
its balance sheet as of September 30, 2009 attached as Exhibit A; and
WHEREAS, due to the proposed merger of US Highland, Inc. into Seller,
Seller no longer intends to pursue its current business plan.
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, all Seller's rights, title and interest, if any, in and
to all assets on the terms described below.
NOW, THEREFORE, the parties agree as follows:
Preamble; Preliminary Recitals.
The preamble and preliminary recitals set forth above are by this
reference incorporated in and made a part of this Agreement.
Purchase of Assets.
Subject to the provisions of this Agreement, Buyer agrees to purchase,
and Seller agrees to sell, all Seller's rights, title and interest, if
any, in and to the Purchased Assets, as defined in this paragraph. The
purchase price for the Purchased Assets shall be Nine Hundred Fifty
Thousand (950,000) common shares of Harcom ("Purchase Price").
"Purchased Assets" means, collectively all tangible property, including
but not limited to, furniture, fixtures, machinery, equipment, tools,
and inventory ("Inventory"), and the following intangible property: all
right, title and interest of Seller, if any, under leases of personal
property and equipment and under the leases for the premises,
intellectual property (including, without limitation, trademarks,
tradenames, and service marks), telephone numbers and telephone
listings, insurance policies, trade accounts receivable ("Accounts"),
promissory notes arising from Accounts, all causes of action related to
the Purchased Assets, contingent and unliquidated claims, counterclaims
and rights to setoff claims related to the Purchased Assets, customer
lists, goodwill and other intangible property related to the Business,
which is located at the Premises on the Closing Date; but excluding all
other assets of Seller and specifically excluding: (i) cash; (ii) any
accounting related books and records, whether written or electronically
recorded; (iii) causes of action not related to the Purchased Assets;
(iv) contingent and unliquidated claims of every nature except those
related to the Purchased Assets, including tax refunds, counterclaims,
and rights to set off claims; (v) deposits and (vi) any personal
property subject to any security interest in favor of a third party.
Payment of Purchase Price.
Buyer shall deliver to Seller the Nine Hundred Fifty Thousand common
shares of Seller at Closing.
Assumption of Liabilities.
At Closing, Buyer shall enter into separate Transfer and Assumption of
Liabilities Agreement, attached hereto as Exhibit C pursuant to which
Buyer shall assume and agree to pay, discharge or perform as appropriate
only the following liabilities and obligations (the "Assumed
Liabilities"):
Except for the Assumed Liabilities, Buyer is not assuming, nor shall it
in any way be liable or responsible for, any liabilities, obligations or
debts of Seller, whether accrued, absolute, contingent or otherwise,
arising after the Closing.
Covenants of Seller.
Seller hereby covenants and agrees with Buyer that:
a. Until the Closing, Seller shall use its best efforts to
maintain its current relationships with suppliers, customers and others
having business relations with Seller in connection with the Purchased
Assets.
b. Until the Closing, except as may be first approved in
writing by Buyer or as is otherwise permitted or contemplated by this
Agreement, Seller shall conduct its business and all transactions with
respect to the Purchased Assets, only in the usual and ordinary course
of business consistent with Seller's past practice.
c. Until the Closing, Seller shall make no sale of assets other
than in the ordinary course of Seller's past practice.
Closing.
a. The consummation of the purchase and sale of the Purchased
Assets (the "Closing") shall be held at 4:00 p.m. on December 21, 2009
or sooner by agreement of the parties, at such place as Buyer and Seller
may agree.
b. At the Closing, Seller shall deliver the Purchased Assets to
Buyer and shall deliver the following documents to Buyer:
i. the Transfer and Assumption Agreement pursuant to which
Seller shall assign and Buyer shall assume and agree to pay all Assumed
Liabilities ("Assignment"); attached as Exhibit C;
ii. an Assignee's Bill of Sale in substantially the form
of Exhibit B;
iii. list of Accounts;
iv. list of Inventory;
v. Closing Statement; and
vi. such other documents as may be reasonably requested by
Purchaser in connection with the consummation of the transactions
contemplated by this Agreement.
c. At Closing, Buyer shall pay to Seller the Purchase Price and
shall deliver to Seller the following documents:
i. Certificates representing the 950,000 common shares with
transfer signature and medallion guarantee
ii. executed counterparts of the Assignment;
iii. executed counterparts of the Closing Statement; and
iv. such other documents as may be reasonably requested by
Seller in connection with the consummation of the transactions
contemplated by this Agreement.
Delivery and Condition of the Purchased Assets.
Immediately upon completion of the Closing, Seller shall be deemed to
have fully and completely transferred to Buyer all his rights, title and
interest, if any, in, as well as possession, custody and control of, the
Purchased Assets. Seller shall not be liable or responsible for any
liabilities or obligations of any kind or nature whatsoever arising out
of, under, or related to the Purchased Assets from and after the
Closing.
Buyer agrees that it is purchasing and shall take possession of the
Purchased Assets in their AS IS, WHERE IS condition and acknowledges
that it has previously been given the opportunity to and has conducted
such investigations and inspections of the Purchased Assets as it has
deemed necessary or appropriate for the purposes of this Agreement.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SELLER DOES NOT MAKE ANY
EXPRESS OR IMPLIED REPRESENTATIONS, STATEMENTS, WARRANTIES, OR
CONDITIONS OF ANY KIND OR NATURE WHATSOEVER CONCERNING THE PURCHASED
ASSETS, INCLUDING (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING) ANY
WARRANTIES REGARDING THE OWNERSHIP, CONDITION, QUANTITY AND/OR QUALITY
OF ANY OR ALL OF THE PURCHASED ASSETS AND ANY AND ALL IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.
Conditions Precedent to Closing.
The performance by Seller and Buyer of their respective obligations
under this Agreement is subject to the condition that on the Closing
Date no suit, action or other proceeding shall be pending before any
court or governmental or regulatory authority which seeks to restrain or
prohibit or to obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated by this
Agreement.
Default.
If Seller fails to make the required deliveries at the Closing or
otherwise defaults under this Agreement, then Buyer shall have the right
to terminate this Agreement and thereupon this Agreement shall be null
and void and of no legal effect whatsoever. If so terminated, each
party hereto shall suffer their own losses, costs, expenses or damages
arising out of, under or related to this Agreement.
Indemnity.
Buyer shall indemnify, defend and hold Seller harmless from and against
any and all losses, liabilities, damages, costs and obligations (or
actions or claims in respect thereof) (including reasonable counsel
fees), which Seller may suffer or incur arising out of or based upon:
a. the breach of any representation, warranty, covenant or
agreement of Buyer contained in this Agreement;
b. the Assumed Liabilities; and
c. the operation of the Business and the use of any of the
Purchased Assets after the Closing.
Notices.
Any notice required or permitted by this Agreement shall be in writing
and effectively delivered for all purposes if delivered personally, by
overnight delivery service or by United States mail, certified mail,
postage prepaid, return receipt requested and:
If directed to Seller:
Harcom Productions, Inc.
5459 South Mingo Rd- Ste A
Tulsa, OK 74146
If directed to Buyer:
Shane Harwell
5459 South Mingo Rd- Ste A
Tulsa, OK 74146
All notices shall be deemed delivered upon receipt.
Survival.
The representations, warranties and covenants contained herein shall not
survive the execution and delivery of this Agreement and Closing.
Brokers.
Buyer and Seller each warrants to the other that it has not engaged,
consented to, or authorized any broker, investment banker, or other
third party to act on its behalf, directly or indirectly, as a broker or
finder in connection with the transactions contemplated by this
Agreement and no such third party is entitled to any fee or compensation
in connection with this Agreement or the transactions contemplated
hereby by reason of any action of it.
Amendment and Modification.
This Agreement may be amended, modified or supplemented only by written
agreement of Buyer and Seller.
Severability.
Any provision of this Agreement that shall be prohibited or
unenforceable shall be deemed ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
Entire Agreement.
This Agreement sets forth all of the promises, covenants, agreements,
conditions and undertakings between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements and undertakings, inducements or conditions, express or
implied, oral or written.
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Oklahoma.
Counterparts.
This Agreement may be executed in one or more counterparts all of which
when taken together constitute one and the same instruments. A signed
counterpart is as binding as an original.
Headings, Exhibits.
The headings used in this Agreement are for convenience only and shall
not be used to limit or construe the contents of any of the sections of
this Agreement. All lettered Exhibits are attached to and by this
reference made a part of this Agreement.
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SELLER:
BUYER:
Harcom Productions, Inc.
By: /s/Damian Riddoch
Its: CFO
Shane Harwell
By: /s/Shane Harwell
EXHIBIT A
Purchased Assets
"Purchased Assets" means, collectively all tangible property, including
but not limited to, furniture, fixtures, machinery, equipment, tools,
and inventory ("Inventory"), and the following intangible property: all
right, title and interest of Seller, if any, under leases of personal
property and equipment and under the leases for the premises,
intellectual property (including, without limitation, trademarks,
tradenames, and service marks), telephone numbers and telephone
listings, insurance policies, trade accounts receivable ("Accounts"),
promissory notes arising from Accounts, all causes of action related to
the Purchased Assets, contingent and unliquidated claims, counterclaims
and rights to setoff claims related to the Purchased Assets, customer
lists, goodwill and other intangible property related to the Business,
which is located at the Premises on the Closing Date; but excluding all
other assets of Seller and specifically excluding: (i) cash; (ii) any
accounting related books and records, whether written or electronically
recorded; (iii) causes of action not related to the Purchased Assets;
(iv) contingent and unliquidated claims of every nature except those
related to the Purchased Assets, including tax refunds, counterclaims,
and rights to set off claims; (v) deposits and (vi) any personal
property subject to any security interest in favor of a third party.
EXHIBIT B
ASSIGNEE'S BILL OF SALE
For good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned, Harcom Productions, Inc., ("SELLER"),
hereby assigns, conveys and transfers over unto Shane Harwell ("BUYER"),
all of its right, title and interest, if any, in and to the Purchased
Assets as defined in that certain Asset Purchase Agreement between
Seller and Buyer dated December 21, 2009 (the "Purchase Agreement").
The purchase price for the Purchased Assets is Nine Hundred Fifty
Thousand common shares of Seller.
THE PURCHASED ASSETS ARE BEING SOLD "AS-IS, WHERE-IS" WITH NO WARRANTIES
OR REPRESENTATIONS WHATSOEVER, EXCEPT AS EXPRESSLY PROVIDED IN THE
PURCHASE AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to
be executed as of the 21st day of December 2009.
Harcom Productions, Inc.
/s/Damian Riddoch
--------------------------------------------
By: Damian Riddoch, CFO
EXHIBIT C
Transfer and Assumption Agreement
