Attached files
| file | filename |
|---|---|
| 8-K - CUSTOM Q 8-K 1-12-2010 - CUSTOM Q INC | form8-k.htm |
| EX-2.1 - EXHIBIT 2.1 - CUSTOM Q INC | ex2_1.htm |
| EX-3.1 - EXHIBIT 3.1 - CUSTOM Q INC | ex3_1.htm |
| EX-99.1 - EXHIBIT 99.1 - CUSTOM Q INC | ex99_1.htm |
| EX-10.2 - EXHIBIT 10.2 - CUSTOM Q INC | ex10_2.htm |
| EX-10.6 - EXHIBIT 10.6 - CUSTOM Q INC | ex10_6.htm |
| EX-21.1 - EXHIBIT 21.1 - CUSTOM Q INC | ex21_1.htm |
| EX-10.1 - EXHIBIT 10.1 - CUSTOM Q INC | ex10_1.htm |
| EX-99.2 - EXHIBIT 99.2 - CUSTOM Q INC | ex99_2.htm |
| EX-10.5 - EXHIBIT 10.5 - CUSTOM Q INC | ex10_5.htm |
| EX-10.4 - EXHIBIT 10.4 - CUSTOM Q INC | ex10_4.htm |
Exhibit
10.3
SECURITIES
EXCHANGE AGREEMENT
THIS SECURITIES EXCHANGE AGREEMENT
(hereinafter referred to as the “Agreement”), is entered into as of this
20th day of September, 2009 (the “Closing Date”), by and among GREEN HOUSE
HOLDINGS, INC., a Nevada corporation (“GHH”), R Squared Contracting,
Inc. d/b/a “Green House Builders”, a California corporation (“R Squared”) and
all of the equity holders of R Squared set forth on the signature page hereof
(the “R Squared Shareholders”) collectively referred to as the “Parties” and
individually as a “Party.”)
W
I T N E S S E T H
WHEREAS, the Parties desire
that GHH acquire all of the issued and outstanding capitalization of R Squared
from the R Squared Shareholders in exchange for an aggregate of Eight Hundred
Thousand (800,000) shares of GHH Common Stock (the “Exchange Shares”) pursuant
to the terms and conditions set forth in this Agreement.
WHEREAS, R Squared shall be a
wholly-owned subsidiary of GHH and the Exchange Shares will represent
approximately one hundred percent (100%) of the total outstanding shares of GHH
on a fully-diluted basis.
WHEREAS, the Parties intend
that the transaction contemplated herein (the “Transaction”) qualify as a
reorganization and tax-free exchange under Section 368(a) of the Internal
Revenue Code of 1986, as amended.
NOW THEREFORE, on the stated
premises and for and in consideration of the foregoing recitals which are hereby
incorporated by reference, the mutual covenants and agreements hereinafter set
forth and the mutual benefits to the Parties to be derived herefrom and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the Parties hereto agree as follows:
ARTICLE
I
PLAN
OF EXCHANGE
1.1 The
Exchange. Upon Closing (defined below), all of the R Squared
Shares issued and outstanding immediately prior to the Closing Date shall be
exchanged for Eight Hundred Thousand (800,000) shares of GHH Common Stock. From
and after the Closing Date, the R Squared Shareholders shall no longer own any
stock ownership interest in R Squared, and the former R Squared Shares shall
represent the Exchange Shares issuable in exchange therefor pursuant to this
Agreement.
1.2 Closing. The closing
(“Closing”) of the transactions contemplated by this Agreement shall occur as of
the date hereof.
1.3 Closing
Events. Upon Closing, each of the respective Parties hereto
shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any and all stock certificates, membership
certificates, officers’ certificates, opinions, financial statements, schedules,
agreements, resolutions, rulings, or other instruments required by this
Agreement to be so delivered hereunder together with such other items as may be
reasonably requested by the Parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated
hereby. The Closing may take place through the exchange of documents
by fax, email and/or express courier. Upon Closing, the Exchange
Shares shall be issued to the R Squared Shareholders as set forth in Schedule A attached
hereto.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF GHH
As an
inducement to, and to obtain the reliance of R Squared, GHH represents and
warrants as follows:
2.1 Organization. GHH
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada. GHH has the power and is duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, including qualification to do business as a foreign
corporation in jurisdictions in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will not, violate
any provision of GHH’s Articles of Incorporation or By-Laws. GHH has taken all
action required by law, its Articles of Incorporation, its By-Laws, or otherwise
to authorize the execution and delivery of this Agreement, and GHH has full
power, authority, and legal right and has taken all action required by law, its
Articles of Incorporation, By-Laws, or otherwise to consummate the transactions
herein contemplated.
2.2 Approval
of Agreement. Board of Directors of GHH have authorized the
execution and delivery of this Agreement by GHH and has approved the
transactions contemplated hereby.
2.3 Absence
of Certain Changes or Events. Except as described
herein:
(a) except
in the normal course of business, there has not been (i) any material adverse
change in the business, operations, properties, assets, or condition of GHH; or
(ii) any damage, destruction, or loss to GHH (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of GHH;
(b) GHH
has not (i) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent) not
otherwise in the ordinary course of business; (ii) paid any material obligation
or liability not otherwise in the ordinary course of business (absolute or
contingent) other than current liabilities reflected in or shown on the most
recent GHH consolidated balance sheet, and current liabilities incurred since
that date in the ordinary course of business; (iii) sold or transferred, or
agreed to sell or transfer, any of its assets, properties, or rights not
otherwise in the ordinary course of business; (iv) made or permitted any
amendment or termination of any contract, agreement, or license to which they
are a party not otherwise in the ordinary course of business if such amendment
or termination is material, considering the business of GHH; or (v) issued,
delivered, or agreed to issue or deliver to any third party any membership
interests, bonds or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock);
2
(c) neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which GHH is a party or by which it is bound or to which any of its assets is
subject; and
(d) no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of GHH threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this
Agreement.
ARTICLE
III
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF
R
SQUARED
As an
inducement to, and to obtain the reliance of GHH, R Squared represents and
warrants as follows:
3.1 Organization. R
Squared is a corporation duly organized, validly existing, and in good standing
under the laws of the State of California, and has the corporate power and is
duly authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, and there is no jurisdiction in which it is not
qualified in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of R Squared’s
Articles of Incorporation or Bylaws. R Squared has taken all action required by
law, its Articles of Incorporation, its Bylaws, or otherwise to authorize the
execution and delivery of this Agreement, and R Squared has full power,
authority, and legal right and has taken all action required by law, its
Articles of Incorporation, Bylaws, or otherwise to consummate the transactions
herein contemplated.
3.2 Capitalization. R
Squared’s authorized capitalization consists of One Million (1,000,000) shares
of stock, Eight Hundred Thousand (800,000) of which are issued and outstanding
as of Closing. All issued and outstanding shares are legally issued,
fully paid, and non-assessable and not issued in violation of the pre-emptive or
other rights of any person.
3.3 Absence
of Certain Changes or Events. Except as
described herein:
(a) except
in the normal course of business, there has not been (i) any material adverse
change in the business, operations, properties, assets, or condition of R
Squared; or (ii) any damage, destruction, or loss to R Squared (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of R Squared;
3
(b) R
Squared has not (i) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or contingent)
not otherwise in the ordinary course of business; (ii) paid any material
obligation or liability not otherwise in the ordinary course of business
(absolute or contingent) other than current liabilities reflected in or shown on
the most recent R Squared consolidated balance sheet, and current liabilities
incurred since that date in the ordinary course of business; (iii) sold or
transferred, or agreed to sell or transfer, any of its assets, properties, or
rights not otherwise in the ordinary course of business; (iv) made or permitted
any amendment or termination of any contract, agreement, or license to which
they are a party not otherwise in the ordinary course of business if such
amendment or termination is material, considering the business of R Squared; or
(v) issued, delivered, or agreed to issue or deliver to any third party any
stock, bonds or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock);
(c) neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which R Squared is a party or by which it is bound or to which any of its
assets is subject; and
(d) no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of R Squared threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this
Agreement.
3.4 Approval
of Agreement. The Board of Directors of R Squared (the
“R Squared Board”) and the R Squared Shareholders have authorized the execution
and delivery of this Agreement by R Squared and have approved this Agreement and
the transactions contemplated hereby.
3.5 Ownership of R Squared
Shares. The R Squared Shareholders are the only legal and
beneficial owners of the R Squared Shares, free and clear of any claims,
charges, equities, liens, security interests, and encumbrances whatsoever, and
the R Squared Shareholders have full right, power, and authority to transfer,
assign, convey, and deliver the R Squared Shares; and delivery of such stock
upon Closing will convey to GHH good and marketable title to such shares free
and clear of any claims, charges, equities, liens, security interests, and
encumbrances except for any such claims, charges, equities, liens, security
interests, and encumbrances arising out of such shares being held by R
Squared.
ARTICLE
IV
SPECIAL
COVENANTS
4.1 Actions of R Squared
Shareholders. Prior to the Closing, R Squared shall cause the
following actions to be taken by the written consent of the R Squared
Shareholders:
(a) the
approval of this Agreement and the transactions contemplated hereby and thereby;
and
4
(b) such
other actions as the directors of R Squared may determine are necessary or
appropriate.
4.2 Actions of GHH
Shareholders. At or prior to Closing, GHH shall cause the
following actions to be taken by the written consent of all the Shareholders of
GHH:
(a) the
approval of this Agreement and the transactions contemplated hereby and thereby;
and
(b) such
other actions as the Managers of GHH may determine are necessary or
appropriate.
4.3 Access to Properties and
Records. R Squared and GHH have each afforded the officers and
authorized representatives of the other reasonable access to the properties,
books, and records of R Squared or GHH in order that each may have full
opportunity to make such reasonable investigation as it shall desire to make of
the affairs of the other, and each has furnished the other with such additional
financial and operating data and other information as to the business and
properties of R Squared or GHH as the other has reasonably
requested.
4.4 Delivery
of Books and Records. Upon Closing, R Squared shall
deliver to GHH, the originals of the corporate minute books, books of account,
contracts, records, and all other books or documents of R Squared now in the
possession or control of R Squared or its representatives and
agents.
4.5 Indemnification.
(a) GHH
hereby agrees to indemnify R Squared and each of the officers, agents and
directors of R Squared as of the date of execution of this Agreement against any
loss, liability, claim, damage, or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out of or based on
any inaccuracy appearing in or misrepresentation made in Article
II.
(b) R
Squared hereby agrees to indemnify GHH and each of the officers, agents and
directors of GHH as of the date of execution of this Agreement against any loss,
liability, claim, damage, or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentation made under Article III.
ARTICLE
V
MISCELLANEOUS
5.1 Governing
Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United States of America
and, with respect to matters of state law, with the laws of
Nevada. Any dispute arising under or in any way related to this
Agreement will be submitted to binding arbitration before a single arbitrator by
the American Arbitration Association in accordance with the Association’s
commercial rules then in effect. The arbitration will be conducted in New York,
New York. The decision of the arbitrator will set forth in reasonable detail the
basis for the decision and will be binding on the parties. The arbitration award
may be confirmed by any court of competent jurisdiction.
5
5.2 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram and any such notice or
communication shall be deemed to have been given as of the date so delivered,
mailed, or telegraphed.
5.3 Attorney’s
Fees. In the event that any party institutes any action or suit to
enforce this Agreement or to secure relief from any default hereunder or breach
hereof, the breaching party or parties shall reimburse the non-breaching party
or parties for all costs, including reasonable attorneys’ fees, incurred in
connection therewith and in enforcing or collecting any judgment rendered
therein.
5.4 Confidentiality.
GHH, on the one hand, and R Squared and the R Squared Shareholders, on the other
hand, will keep confidential all information and materials regarding the other
Party designated by such Party as confidential. The provisions of
this Section 5.4 shall not apply to any information which is or shall become
part of the public domain through no fault of the Party subject to the
obligation from a third party with a right to disclose such information free of
obligation of confidentiality. R Squared and GHH agree that no public disclosure
will be made by either Party of the existence of the Transaction or the letter
of intent or any of its terms without first advising the other Party and
obtaining its prior written consent to the proposed disclosure, unless such
disclosure is required by law, regulation or stock exchange rule.
5.5 Expenses. Except
as otherwise set forth herein, each Party shall bear its own costs and expenses
associated with the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, all
costs and expenses incurred by GHH and R Squared after the Closing shall be
borne by the surviving entity.
5.6 Schedules;
Knowledge. Each Party is presumed to have full
knowledge of all information set forth in the information disclosed and
delivered by the other Party pursuant to this Agreement.
5.7 Third
Party Beneficiaries. This Agreement is solely between
GHH, R Squared and the R Squared Shareholders, and, except as specifically
provided, no director, officer, stockholder, employee, agent, independent
contractor, or any other person or entity shall be deemed to be a third party
beneficiary of this Agreement.
5.8 Entire
Agreement. This Agreement represents the entire agreement
between the Parties relating to the Transaction. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written or
oral, except as set forth herein.
5.9 Survival. The
representations and warranties of the respective Parties shall survive the
Closing Date and the consummation of the transactions herein
contemplated.
6
5.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be deemed
an original and all of which taken together shall be but a single
instrument.
5.11 Amendment
or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. This Agreement may only be amended by a
writing signed by all Parties hereto, with respect to any of the terms contained
herein, and any term or condition of this Agreement may be waived or the time
for performance hereof may be extended by a writing signed by the Party or
Parties for whose benefit the provision is intended.
(The
rest of this page left intentionally blank.)
7
IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be duly authorized and executed as
of the date first above-written.
|
GREEN HOUSE HOLDINGS,
INC.
|
R
SQUARED CONTRACTING, INC.
|
|||
|
By:
|
/s/ Russ Earnshaw
|
By:
|
/s/ Russ Earnshaw
|
|
|
Name:
Russ Earnshaw
|
Name:
Russ Earnshaw
|
|||
|
Title:
President
|
Title:
President
|
|||
8
Schedule
A
Pre-Closing Interests of R
Squared Shareholders in R Squared
|
Keith
Miles
|
112,000
|
Shares
|
|
|
Roy
Pharis
|
112,000
|
Shares
|
|
|
Jon
Sheinberg
|
41,000
|
Shares
|
|
|
Thea
Sheinberg Chiprut
|
5,000
|
Shares
|
|
|
Nicholas
Sheinberg
|
5,000
|
Shares
|
|
|
Harrison
Sheinberg
|
5,000
|
Shares
|
|
|
Rick
Ursitti
|
40,000
|
Shares
|
|
|
David
P. Beitchman
|
16,000
|
Shares
|
|
|
Kirk
Peruccelli
|
8,000
|
Shares
|
|
|
Edward
Mazurek
|
8,000
|
Shares
|
|
|
Robert
R. Earnshaw
|
83,765
|
Shares
|
|
|
Rich
Earnshaw
|
18,824
|
Shares
|
|
|
Paul
Terkun
|
7,059
|
Shares
|
|
|
Terry
Mason
|
2,353
|
Shares
|
|
|
Sean
Entin
|
78,400
|
Shares
|
|
|
Allen
& Susan Entin
|
3,765
|
Shares
|
|
|
Savannah
Entin
|
2,353
|
Shares
|
|
|
Megan
Milnes
|
941
|
Shares
|
|
|
Misty
Milnes
|
941
|
Shares
|
|
|
Sam
Smith
|
941
|
Shares
|
|
|
Stan
Milnes
|
941
|
Shares
|
|
|
Suzanne
Milnes
|
941
|
Shares
|
|
|
Chace
Garner
|
941
|
Shares
|
|
|
Andrew
Crow
|
329
|
Shares
|
|
|
Ari
Ryan
|
329
|
Shares
|
|
|
Brent
Corman
|
1,647
|
Shares
|
|
|
Elise
Slivkin McClure
|
329
|
Shares
|
|
|
Eric
Van Cronk
|
329
|
Shares
|
|
|
Harold
Turk
|
329
|
Shares
|
|
|
Joie
Tavernise
|
329
|
Shares
|
|
|
Jordan
Miller
|
329
|
Shares
|
|
|
Marty
Rauch
|
1,647
|
Shares
|
|
|
Justin
Brauer
|
471
|
Shares
|
|
|
Robert
Cortes
|
1,647
|
Shares
|
|
|
Alex
Viecco
|
9,412
|
Shares
|
|
|
Sy
Silverstein
|
4,706
|
Shares
|
|
|
Chris
Ursitti
|
80,941
|
Shares
|
|
|
Peter
Brosnan
|
4,706
|
Shares
|
|
|
Brian
Brosnan
|
4,706
|
Shares
|
|
|
Ken
Johnson
|
4,706
|
Shares
|
|
|
Calvary
Christian School
|
471
|
Shares
|
|
|
Chip
Murdock
|
2,353
|
Shares
|
|
|
Martin
Rauch
|
14,118
|
Shares
|
|
|
John
Galt
|
88,471
|
Shares
|
|
|
Franziska
Muller
|
9,412
|
Shares
|
|
|
Vickie
Lynn Gailey (as her sole and separate property)
|
14,118
|
Shares
|
9