Attached files
| file | filename |
|---|---|
| 8-K - CUSTOM Q 8-K 1-12-2010 - CUSTOM Q INC | form8-k.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-10.3 - EXHIBIT 10.3 - CUSTOM Q INC | ex10_3.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
2.1
THIS AGREEMENT AND PLAN OF SHARE
EXCHANGE (hereinafter referred to as the “Agreement”), is entered into as
of this 7th day of January, 2010, by and among, CUSTOM Q, INC., a
publicly-owned Nevada corporation (“Custom Q”), GREEN HOUSE HOLDINGS,
INC., a
Nevada corporation (“Green House”) and the Shareholders of Green House on the
signature page hereof (the “Green House Holders”). (Custom Q, Green House, and
the Green House Holders are sometimes hereinafter collectively referred to as
the “Parties” and individually as a “Party.”)
W
I T N E S S E T H
WHEREAS, Custom Q is a
publicly-owned Nevada corporation with 4,240,000 shares of common stock, par
value $0.001 per share, issued and outstanding (the “Custom Q Common Stock”) and
is quoted on the Over the Counter Bulletin Board under the symbol
“CTMQ”.
WHEREAS, Green House is a
Nevada corporation, the shares of which (the “Green House Shares”), are owned as
of the date hereof by all the Green House Holders.
WHEREAS, the Parties desire
that Custom Q acquire all of the Green House Shares from the Green House Holders
solely in exchange for an aggregate of 3,960,000 newly issued shares of Custom Q
Common Stock and options to purchase 156,800 shares of Custom Q Common Stock
(the “Exchange Shares”) pursuant to the terms and conditions set forth in this
Agreement.
WHEREAS, immediately upon
consummation of the Closing (as hereinafter defined), the Exchange Shares will
be issued to the Green House Holders on a pro rata basis, in proportion to the
ratio that the number Green House Shares held by such Green House Holder bears
to the pro rata portion of Green House Shares held by all the Green House
Holders as of the date of the Closing as set forth on Schedule I.
WHEREAS, immediately prior to,
and as a condition precedent of, the Closing, Green House shall consummate a
Stock Purchase Agreement to acquire 4,000,000 shares of Custom Q Common Stock,
representing 94.3% of the issued and outstanding shares of Custom Q (the
“Control Shares”);
WHEREAS, prior to the closing
of the transactions contemplated hereby, Custom Q shall have obtained
shareholder approval to amend its Articles of Incorporation (the “Amendment”) to
(a) increase its authorized capital stock to 310,000,000 shares of which
300,000,000 will be designated Custom Q Common Stock and 10,000,000 will be
designated preferred stock, (b) effect to a forward-split such that five (5)
shares of Custom Q Common Stock will be issued for every 1 share of Custom Q
Common Stock issued and outstanding immediately prior to filing of the amendment
(the “Split”), and (c) change its name to GreenHouse Holdings, Inc.
WHEREAS, simultaneously with
and as a condition precedent of, the Closing, Custom Q and Green House shall
consummate a private placement offering of Units, consisting of 16,667
post-Split shares of the Custom Q Common Stock and warrants (the “Warrants”) to
purchase 5,500 post-Split shares of Custom Q Common Stock (the “Warrant Shares”)
at the exercise price of $2.50 per share and expiring in three years pursuant to
Regulation D of the Securities Act of 1933, as amended, up to a maximum of 200
Units (the “Maximum Offering”) at the purchase price of $25,000 per Unit for a
maximum aggregate offering amount of $5,000,000 (the “Financing”).
WHEREAS, following the Closing,
Green House will become a wholly-owned subsidiary of Custom Q, following the
retirement of the Control Shares, and the Exchange Shares will represent
approximately ninety-four percent (94%) of the total outstanding shares of
Common Stock of Custom Q 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. At the Closing (as hereinafter defined), all of the
Green House Shares issued and outstanding immediately prior to the Closing Date
shall be exchanged for Three Million Nine Hundred Sixty Thousand (3,960,000)
shares of Custom Q Common Stock. From and after the Closing Date, the Green
House Holders shall no longer own any Green House Shares and the former Green
House Shares shall represent the pro rata portion of the
Exchange Shares issuable in exchange therefor pursuant to this
Agreement. Any fractional shares that would result from such exchange
will be rounded up to the next highest whole number.
1.2 No Dilution. Except
as set forth herein, Custom Q shall neither effect, nor fix any record date with
respect to, any stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Custom Q Common Stock between the
date of this Agreement and the Effective Time.
1.3 Closing. The closing
(“Closing”) of the transactions contemplated by this Agreement shall occur
immediately following the execution of this Agreement providing the closing
conditions set forth in Articles V and VI have been satisfied or waived (the
“Closing Date”).
1.4 Closing
Events. At the 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, officers’
certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings, or other instruments required by this Agreement to be so
delivered at or prior to the Closing, , 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. If agreed to by the parties, the Closing may take place
through the exchange of documents (other than the exchange of stock
certificates) by fax, email and/or express courier. At the Closing,
the Exchange Shares shall be issued in the names and denominations provided by
Green House.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF GREEN HOUSE
As an
inducement to, and to obtain the reliance of Custom Q, Green House represents
and warrants as follows:
2.1 Organization. Green
House is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada. Green House 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 by this Agreement in
accordance with the terms hereof will not, violate any provision of Green
House’s organizational documents. Green House has taken all action
required by laws, its certificate of incorporation, certificate of business
registration, or otherwise to authorize the execution and delivery of this
Agreement. Green House has full power, authority, and legal right and has taken
or will take all action required by law, its Articles of Incorporation, and
otherwise to consummate the transactions herein contemplated.
2
2.2 Capitalization. All
issued and outstanding shares of Green House are legally issued, fully paid, and
non-assessable and were not issued in violation of the pre-emptive or other
rights of any person. Green House has no outstanding options,
warrants, or other convertible securities.
2.3 Financial
Statements. Except as set forth herein or in the Green House
Schedules (if any):
(a) Green
House has filed all local income tax returns required to be filed by it from its
inception to the date hereof. All such returns are complete and
accurate in all material respects.
(b) Green
House has no liabilities with respect to the payment of federal, county, local,
or other taxes (including any deficiencies, interest, or penalties), except for
taxes accrued but not yet due and payable, for which Green House may be liable
in its own right or as a transferee of the assets of, or as a successor to, any
other corporation or entity.
(c) No
deficiency for any taxes has been proposed, asserted or assessed against Green
House. There has been no tax audit, nor has there been any notice to
Green House by any taxing authority regarding any such tax audit, or, to the
knowledge of Green House, is any such tax audit threatened with regard to any
taxes or Green House tax returns. Green House does not expect the
assessment of any additional taxes of Green House for any period prior to the
date hereof and has no knowledge of any unresolved questions concerning the
liability for taxes of Green House.
(d) Green
House shall have provided to Custom Q the audited balance sheet of Green House
as of, and the audited statements of income, stockholders’ equity and cash flows
of Green House for the years ended December 31, 2007 and 2008, and the unaudited
balance sheet of Green House as of, and the audited statements of income,
stockholders’ equity and cash flows of Green House for the six months ended June
30, 2009 (collectively “Green House Financial Statements”). The Green
House Financial Statements have been prepared from the books and records of
Green House in accordance with U.S. Generally Accepted Accounting
Principals. Except as set forth in the Green House Financial
Statements, Green House does not have any liabilities.
(e) The
books and records, financial and otherwise, of Green House are in all material
respects complete and correct and have been maintained in accordance with good
business and accounting practices.
2.4 Information. The
information concerning Green House set forth in this Agreement is and will be
complete and accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required to make
the statements made, in light of the circumstances under which they were made,
not misleading as of the date hereof and as of the Closing Date.
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2.5 Common Stock
Equivalents. There are no existing options, warrants, calls,
commitments of any character or other common stock equivalents relating to the
authorized and unissued Green House Shares.
2.6 Absence of Certain Changes
or Events. Except as set forth in this Agreement:
(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 Green
House; or (ii) any damage, destruction, or loss to Green House (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of Green House; and
(b) Green
House 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 Green House 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 Green House; or (v)
issued, delivered, or agreed to issue or deliver any stock, bonds or other
corporate securities including debentures (whether authorized and unissued or
held as treasury stock).
2.7 Litigation and
Proceedings. Except as set forth on Schedule 2.7, there are no
actions, suits, proceedings, or investigations pending or, to the knowledge of
Green House, threatened by or against Green House, or affecting Green House, or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind
2.8 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which Green House is a party or to which
any of its properties or operations are subject.
2.9 Contracts. Green
House has provided, or will provide Custom Q, copies of all material contracts,
agreements, franchises, license agreements, or other commitments to which Green
House is a party or by which it or any of its assets, products, technology, or
properties are bound.
2.10 Compliance With Laws and
Regulations. Green House has complied with all applicable
statutes and regulations of any national, county, or other governmental entity
or agency thereof, except to the extent that noncompliance would not materially
and adversely affect the business, operations, properties, assets, or condition
of Green House.
2.11 Approval of
Agreement. The board of directors of Green House (the “Green
House Board”) and the Green House Holders have authorized the execution and
delivery of this Agreement by Green House and have approved the transactions
contemplated hereby.
2.12 Title and Related
Matters. Green House has good and marketable title to all of
its properties, interest in properties, and assets, real and personal, which are
reflected in the Green House balance sheet or acquired after that date (except
properties, interest in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business), free and clear of all
liens, pledges, charges, or encumbrances except: statutory liens or claims not
yet delinquent; and as described in the Green House Schedules.
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2.13 Governmental
Authorizations. Green House has all licenses, franchises,
permits, and other government authorizations, that are legally required to
enable it to conduct its business operations in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Green House of this Agreement and the consummation by
Green House of the transactions contemplated hereby.
2.14 Continuity of Business
Enterprises. Green House has no commitment or present
intention to liquidate Green House or sell or otherwise dispose of a material
portion of its business or assets following the consummation of the transactions
contemplated hereby.
2.15 Ownership of Green House
Shares. The Green House Holders are the legal and beneficial
owners of 100% of the Green House Shares as set forth on Schedule I, free and
clear of any claims, charges, equities, liens, security interests, and
encumbrances whatsoever, and the Green House Holders have full right, power, and
authority to transfer, assign, convey, and deliver their respective Green
House Shares; and delivery of such common stock at the Closing will
convey to Custom Q 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 Custom Q.
2.16 Brokers. Green House
has not entered into any contract with any person, firm or other entity that
would obligate Green House or Custom Q to pay any commission, brokerage or
finders’ fee in connection with the transactions contemplated
herein.
2.17 Subsidiaries and Predecessor
Corporations. Except as set forth in Schedule 2.17 hereof,
Green House does not have any subsidiaries and does not own, beneficially or of
record, any shares or other equity interests of any other corporation or
entity.
ARTICLE
III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
CUSTOM
Q
As an
inducement to, and to obtain the reliance of Green House, Custom Q represents
and warrants as follows:
3.1 Organization. Custom
Q is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada, 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 Custom Q’s
Articles of Incorporation or bylaws. Custom Q 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 Custom Q 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.
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3.2 Capitalization. Custom
Q’s authorized capitalization consists of 100,000,000 shares of Common Stock, of
which no more than 4,240,000 shares will be issued and outstanding at Closing,
and 10,000,000 shares of Preferred Stock, of which no shares of are issued and
outstanding. All presently 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. The Exchange Shares will
be legally issued, fully paid and non-assessable and shall not be issued in
violation of the pre-emptive or other rights of any other person.
3.3 Financial
Statements. Except as described herein or in the Custom Q
Schedules:
(a) Custom
Q has no liabilities with respect to the payment of any federal, state, county,
local, or other taxes (including any deficiencies, interest, or penalties),
except for taxes accrued but not yet due and payable, for which Custom Q may be
liable in its own right, or as a transferee of the assets of, or as a successor
to, any other corporation or entity.
(b) Custom
Q has filed all federal, state, or local income tax returns required to be filed
by it from inception.
(c) The
books and records, financial and otherwise, of Custom Q are in all material
respects complete and correct and have been maintained in accordance with good
business and accounting practices.
(d) No
deficiency for any taxes has been proposed, asserted or assessed against Custom
Q. There has been no tax audit, nor has there been any notice to
Custom Q by any taxing authority regarding any such tax audit, or, to the
knowledge of Custom Q, is any such tax audit threatened with regard to any taxes
or Custom Q tax returns. Custom Q does not expect the assessment of
any additional taxes of Custom Q for any period prior to the date hereof and has
no knowledge of any unresolved questions concerning the liability for taxes of
Custom Q.
(e) Custom
Q has good and marketable title to its assets and, except as set forth in the
Custom Q Schedules, has no material contingent liabilities, direct or indirect,
matured or unmatured.
3.4 Information. The
information concerning Custom Q set forth in this Agreement and the Custom Q
Schedules are and will be complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading as of the date hereof
and as of the Closing Date.
3.5 Common Stock
Equivalents. Except as set forth herein, there are no existing
options, warrants, calls, and commitments of any character or other common stock
equivalents relating to authorized and unissued stock of Custom Q.
3.6 Absence of Certain Changes
or Events. Except as described herein or in the Custom Q
Schedules (if any):
(a) There
has not been (i) any material adverse change, financial or otherwise, in the
business, operations, properties, assets, or condition of Custom Q (whether or
not covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of Custom Q;
(b) Custom
Q has not (i) amended its Articles of Incorporation or by-laws; (ii) declared or
made, or agreed to declare or make any payment of dividends or distributions of
any assets of any kind whatsoever to stockholders or purchased or redeemed, or
agreed to purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary or material considering the
business of Custom Q; (iv) made any material change in its method of management,
operation, or accounting; (v) entered into any other material transactions; (vi)
made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present or
former officer or employee; (vii) increased the rate of compensation payable or
to become payable by it to any of its officers or directors or any of its
employees; or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement, made to, for, or with its officers, directors, or
employees;
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(c) Custom
Q has not (i) granted or agreed to grant any options, warrants, or other rights
for its stocks, bonds, or other corporate securities calling for the issuance
thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent) except
liabilities incurred in the ordinary course of business; (iii) paid or agreed to
pay any material obligation or liability (absolute or contingent) other than
current liabilities reflected in or shown on the most recent Custom Q balance
sheet and current liabilities incurred since that date in the ordinary course of
business and professional and other fees and expenses incurred in connection
with the preparation of this Agreement and the consummation of the transactions
contemplated hereby; (iv) sold or transferred, or agreed to sell or transfer,
any of its assets, property, or rights (except assets, property, or rights not
used or useful in its business which, in the aggregate have a value of less than
$10,000), or canceled, or agreed to cancel, any debts or claims (except debts or
claims which in the aggregate are of a value of less than $10,000); (v) made or
permitted any amendment or termination of any contract, agreement, or license to
which it is a party if such amendment or termination is material, considering
the business of Custom Q; or (vi) issued, delivered, or agreed to issue or
deliver any stock, bonds, or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock), except in
connection with this Agreement;
(d) Custom
Q has no assets, liabilities or accounts payable of any kind or nature, actual
or contingent, in excess of $10,000 in the aggregate as of the Closing Date;
and
(e) To
the best knowledge of Custom Q, it has not become subject to any law or
regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets, or condition of
Custom Q.
3.7 Title and Related
Matters. Custom Q has good and marketable title to all of its
properties, interest in properties, and assets, real and personal, which are
reflected in the Custom Q balance sheet or acquired after that date (except
properties, interest in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business), free and clear of all
liens, pledges, charges, or encumbrances except:
(a) statutory
liens or claims not yet delinquent; and
(b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties;
3.8 Litigation and
Proceedings. There are no actions, suits, or proceedings
pending or, to the knowledge of Custom Q, threatened by or against or affecting
Custom Q, at law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind.
7
3.9 Contracts. Custom
Q is not a party to any material contract, agreement, or other commitment,
except as specifically disclosed in its schedules to this
Agreement.
3.10 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute a default under, any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which Custom Q is a party or to which it or any of its assets or operations are
subject.
3.11 Governmental
Authorizations. Custom Q is not required to have any licenses,
franchises, permits, and other government authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Custom Q of this Agreement and the consummation by
Custom Q of the transactions contemplated hereby.
3.12 Compliance With Laws and
Regulations. To the best of its knowledge, Custom Q has
complied with all applicable statutes and regulations of any federal, state, or
other applicable governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the business,
operations, properties, assets, or conditions of Custom Q or except to the
extent that noncompliance would not result in the incurrence of any material
liability.
3.13 Insurance. Custom
Q owns no insurable properties and carries no casualty or liability
insurance.
3.14 Approval of
Agreement. The board of directors of Custom Q (the “Custom Q
Board”) has authorized the execution and delivery of this Agreement by Custom Q
and has approved this Agreement and the transactions contemplated
hereby.
3.15 Material Transactions of
Affiliations. Except as disclosed herein and in the Custom Q
Schedules, there exists no material contract, agreement, or arrangement between
Custom Q and any person who was at the time of such contract, agreement, or
arrangement an officer, director, or person owning of record or known by Custom
Q to own beneficially, 10% or more of the issued and outstanding common stock of
Custom Q and which is to be performed in whole or in part after the date hereof
or was entered into not more than three years prior to the date hereof. Neither
any officer, director, nor 10% stockholder of Custom Q has, or has had during
the last preceding full fiscal year, any known interest in any material
transaction with Custom Q which was material to the business of Custom Q. Custom
Q has no commitment, whether written or oral, to lend any funds to, borrow any
money from, or enter into any other material transaction with any such
affiliated person.
3.16 Employment
Matters. Custom Q has no employees other than its executive
officers.
3.17 Custom Q
Schedules. Prior to the Closing, Custom Q shall have delivered
to Green House the following schedules, which are collectively referred to as
the “Custom Q Schedules,” which are dated the date of this Agreement, all
certified by an officer to be complete, true, and accurate:
(a) a
schedule containing complete and accurate copies of the Articles of
Incorporation and by-laws, as amended, of Custom Q as in effect as of the date
of this Agreement;
8
(b) a
schedule containing a copy of the federal income tax returns of Custom Q
identified in Section 3.3(b); and
(c) a
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the Custom Q Schedules.
3.18 Brokers. Custom
Q has not entered into any contract with any person, firm or other entity that
would obligate Green House or Custom Q to pay any commission, brokerage or
finders’ fee in connection with the transactions contemplated
herein.
3.19 Subsidiaries. Custom
Q does not have any subsidiaries and does not own, beneficially or of record,
any shares or other equity interests of any other corporation or other
entity.
ARTICLE
IV
SPECIAL
COVENANTS
4.1 Name Change /
Forward-Split. As soon as practicable following the Closing,
Custom Q shall effectuate a forward-slit of its Common Stock on a five-for-one
basis and file an amendment to its Articles of Incorporation to change the name
of Custom Q to “Green House Inc.” or such similar name as is
available.
4.2 Green House Option
Plan. Prior to or at the Closing, the Board of Directors and
Shareholders of Custom Q shall have adopted an Employee Stock Option Plan
(“ESOP”) permitting the issuance of up to 2,000,000 shares of Custom Q Common
Stock.
4.3 Actions of Custom Q
Shareholders. Prior to the Closing, Custom Q shall cause the
following actions to be taken by the written consent of the holders of a
majority of the outstanding shares of common stock of Custom Q:
(a) the
approval of this Agreement and the transactions contemplated hereby and thereby;
and
(b) such
other actions as the directors may determine are necessary or
appropriate.
4.4 Actions of Green
House. Prior to the Closing, Green House shall cause the
following actions to be taken by the written consent of the holders of a
majority of the outstanding shares of common stock of Green House:
(a) the
approval of this Agreement and the transactions contemplated hereby and thereby;
and
(b) such
other actions as the directors may determine are necessary or
appropriate.
4.5 Access to Properties and
Records. Custom Q and Green House will each afford to the
officers and authorized representatives of the other reasonable access to the
properties, books, and records of Custom Q or Green House 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 will furnish the other with such
additional financial and operating data and other information as to the business
and properties of Custom Q or Green House as the other shall from time to time
reasonably request.
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4.6 Delivery of Books and
Records. At the Closing, Custom Q shall deliver to Green
House, the originals of the corporate minute books, books of account, contracts,
records, and all other books or documents of Custom Q now in the possession or
control of Custom Q or its representatives and agents.
4.7 Actions Prior to Closing by
both Parties.
(a) From
and after the date of this Agreement until the Closing Date and except as set
forth in the Custom Q or Green House Schedules or as permitted or contemplated
by this Agreement, Custom Q and Green House will each: (i) carry on its business
in substantially the same manner as it has heretofore; (ii) maintain and keep
its properties in states of good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to casualty; (iii)
maintain in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by it; (iv) perform in all material respects all
of its obligation under material contracts, leases, and instruments relating to
or affecting its assets, properties, and business; (v) use its best efforts to
maintain and preserve its business organization intact, to retain its key
employees, and to maintain its relationship with its material suppliers and
customers; and (vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and all
rules, regulations, and orders imposed by federal or state governmental
authorities.
(b) Except
as set forth herein, from and after the date of this Agreement until the Closing
Date, neither Custom Q nor Green House will: (i) make any change in their
organizational documents, charter documents or bylaws; (ii) take any action
described in Section 2.6 in the case of Green House, or in Section 3.6, in the
case of Custom Q (all except as permitted therein or as disclosed in the
applicable party’s schedules); (iii) enter into or amend any contract,
agreement, or other instrument of any of the types described in such party’s
schedules, except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business involving the sale of
goods or services, or (iv) make or change any material tax election, settle or
compromise any material tax liability or file any amended tax
return.
4.8 Indemnification.
(a) Green
House hereby agrees to indemnify Custom Q and each of the officers, agents and
directors of Custom Q 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. The
indemnification provided for in this paragraph shall not survive the Closing and
consummation of the transactions contemplated hereby but shall survive the
termination of this Agreement pursuant to Section 7.1(b) of this
Agreement.
(b) Custom
Q hereby agrees to indemnify Green House and each of the officers, agents and
directors of Green House 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. The
indemnification provided for in this paragraph shall not survive the Closing and
consummation of the transactions contemplated hereby but shall survive the
termination of this Agreement pursuant to Section 7.1(c) of this
Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF CUSTOM
Q
The
obligations of Custom Q under this Agreement are subject to the satisfaction, at
or before the Closing, of the following conditions:
5.1 Accuracy of Representations;
Performance. The representations and warranties made by Green
House in this Agreement were true when made and shall be true at the Closing
Date with the same force and effect as if such representations and warranties
were made at and as of the Closing Date (except for changes therein permitted by
this Agreement), and Green House shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or complied
with by Green House prior to or at the Closing. Custom Q may request to be
furnished with a certificate, signed by a duly authorized officer of Green House
and dated the Closing Date, to the foregoing effect.
5.2 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business, or
operations of Green House, nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business, or operations.
5.3 Other
Items.
(a) Custom
Q shall have received such further documents, certificates, or instruments
relating to the transactions contemplated hereby as Custom Q may reasonably
request.
(b) Complete
and satisfactory due diligence review of Green House by Custom Q.
(c) Approval
of the Transaction by the Green House Board and the Green House
Holders.
(d) Any
necessary third-party consents shall be obtained prior to Closing, including but
not limited to consents necessary from Green House’s lenders, creditors, vendors
and lessors.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF GREEN HOUSE
The
obligations of Green House under this Agreement are subject to the satisfaction,
at or before the Closing, of the following conditions:
6.1 Accuracy of Representations;
Performance. The representations and warranties made by Custom
Q in this Agreement were true when made and shall be true as of the Closing Date
(except for changes therein permitted by this Agreement) with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date, and Custom Q shall have performed and complied with all covenants
and conditions required by this Agreement to be performed or complied with by
Custom Q prior to or at the Closing. Green House shall have been
furnished with a certificate, signed by a duly authorized executive officer of
Custom Q and dated the Closing Date, to the foregoing effect.
6.2 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business, or
operations of Custom Q nor shall any event have occurred which, with the lapse
of time or the giving of notice, may cause or create any material adverse change
in the financial condition, business, or operations of Custom Q.
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6.3 Good
Standing. Green House shall have received a certificate of
good standing from the Secretary of State of the State of Nevada or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Custom Q is in good standing as a corporation in the State of
Nevada and has filed all tax returns required to have been filed by it to date
and has paid all taxes reported as due thereon.
6.4 Other
Items.
(a) Green
House shall have received a stockholder list of Custom Q containing the name,
address, and number of shares held by each Custom Q stockholder as of the date
of Closing certified by an executive officer of Custom Q as being true,
complete, and accurate by Custom Q transfer agent.
(b) Green
House shall have received such further documents, certificates, or instruments
relating to the transactions contemplated hereby as Green House may reasonably
request.
(c) Complete
and satisfactory due diligence review of Custom Q by Green House.
(d) Approval
of the Transaction by the Custom Q Board and the stockholders of Custom
Q.
(e) There
shall have been no material adverse changes in Custom Q, financial or
otherwise.
(f) There
shall be no Custom Q Common Stock Equivalents outstanding as of immediately
prior to the Closing. For purposes of the foregoing, “Custom Q Common
Stock Equivalents” shall mean any subscriptions, warrants, options or other
rights or commitments of any character to subscribe for or purchase from Custom
Q, or obligating Custom Q to issue, any shares of any class of the capital stock
of Custom Q or any securities convertible into or exchangeable for such
shares.
(g) Any
necessary third-party consents shall be obtained prior to Closing, including but
not limited to consents necessary from Custom Q’s lenders, creditors; vendors,
and lessors.
ARTICLE
VII
TERMINATION
7.1 Termination.
(a) This
Agreement may be terminated by either the Green House Board or the Custom Q
Board at any time prior to the Closing Date if: (i) there shall be any actual or
threatened action or proceeding before any court or any governmental body which
shall seek to restrain, prohibit, or invalidate the transactions contemplated by
this Agreement and which, in the judgment of such board of directors, made in
good faith and based on the advice of its legal counsel, makes it inadvisable to
proceed with the exchange contemplated by this Agreement; (ii) any of the
transactions contemplated hereby are disapproved by any regulatory authority
whose approval is required to consummate such transactions or in the judgment of
such board of directors, made in good faith and based on the advice of counsel,
there is substantial likelihood that any such approval will not be obtained or
will be obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the exchange; (iii) there
shall have been any change after the date of the latest balance sheets of Green
House and Custom Q, respectively, in the assets, properties, business, or
financial condition of Green House and Custom Q, which could have a materially
adverse affect on the value of the business of Green House and Custom Q
respectively, except any changes disclosed in the Green House and Custom Q
Schedules, as the case may be, dated as of the date of execution of this
Agreement. In the event of termination pursuant to this paragraph (a) of Section
7.1, no obligation, right, or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement and the transactions
herein contemplated; (iv) the Closing Date shall not have occurred by December
31, 2009; or (v) if Custom Q shall not have provided responses satisfactory in
Green House’s reasonable judgment to Green House’s request for due diligence
materials.
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(b) This
Agreement may be terminated at any time prior to the Closing by action of the
Custom Q Board if Green House shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement or if any of the
representations or warranties of Green House contained herein shall be
inaccurate in any material respect, and, in either case if such failure is
reasonably subject to cure, it remains uncured for seven days after notice of
such failure is provided to Green House. If this Agreement is terminated
pursuant to this paragraph (b) of Section 7.1, this Agreement shall be of no
further force or effect, and no obligation, right, or liability shall arise
hereunder, except that Green House shall bear its own costs as well as the costs
incurred by Custom Q in connection with the negotiation, preparation, and
execution of this Agreement and qualifying the offer and sale of securities
contemplated hereby for exemption from the registration requirements of state
and federal securities laws.
(c) This
Agreement may be terminated at any time prior to the Closing by action of the
Green House Board if Custom Q shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement or if any of the
representations or warranties of Custom Q contained herein shall be inaccurate
in any material respect, and, in either case if such failure is reasonably
subject to cure, it remains uncured for seven days after notice of such failure
is provided to Custom Q. If this Agreement is terminated pursuant to
this paragraph (c) of Section 7.1, this Agreement shall be of no further force
or effect, and no obligation, right, or liability shall arise hereunder, except
that Custom Q shall bear its own costs as well as the costs of Green House
incurred in connection with the negotiation, preparation, and execution of this
Agreement.
ARTICLE
VIII
MISCELLANEOUS
8.1 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.
8.2 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.
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8.3 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.
8.4 Confidentiality. Custom
Q, on the one hand, and Green House and the Green House Holders, 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 8.4 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. Custom Q and Green House 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.
8.5 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 Green House and Custom Q after the Closing shall
be borne by the surviving entity. After the Closing, the costs and
expenses of the Green House Holders shall be borne by the Green House
Holders.
8.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party’s schedules delivered pursuant to
this Agreement.
8.7 Third Party
Beneficiaries. This contract is solely between Custom Q, Green
House and the Green House Holders, 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.
8.8 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.
8.9 Survival. The
representations and warranties of the respective parties shall survive the
Closing Date and the consummation of the transactions herein
contemplated.
8.10 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.
8.11 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. At any time prior to the Closing Date, this Agreement may
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.
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IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, as of the date first
above-written.
|
CUSTOM
Q, INC.
|
GREEN
HOUSE HOLDINGS INC.
|
||||
|
By:
|
By:
|
||||
|
Name:
Chris Ursitti
|
Name:
Russ Earnshaw
|
||||
|
Title:
Chief Executive Officer
|
Title:
President
|
||||
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SCHEDULE
I
16
SCHEDULE
2.7
GREEN HOUSE
LITIGATION.
Keith
Miles v. R Squared Contracting, Inc., dba Green House Builders; Robert Russell
Earnshaw; John Galt; Galt Corp.; and Does 1 through 25, San Diego Superior Court
case number 37-2009-0007598-CU-BC-CTL.
17
SCHEDULE
2.17
GREEN HOUSE
SUBSIDIARIES:
R-Squared Contracting, Inc.,
d.b.a. Green House Builders
18