Attached files
| file | filename |
|---|---|
| 8-K - Fresca Worldwide Trading CORP | v174853_8k.htm |
| EX-2.2 - Fresca Worldwide Trading CORP | v174853_ex2-2.htm |
| EX-99.1 - Fresca Worldwide Trading CORP | v174853_ex99-1.htm |
| EX-2.3 - Fresca Worldwide Trading CORP | v174853_ex2-3.htm |
| EX-16.1 - Fresca Worldwide Trading CORP | v174853_ex16-1.htm |
Exhibit
2.1
AGREEMENT
FOR
THE EXCHANGE OF SECURITIES
BY
AND AMONG
FRESCA
WORLDWIDE TRADING CORP.
(A
NEVADA CORPORATION)
AND
GOSOLARUSA,
INC.
(A
WYOMING CORPORATION)
AND
THE
SHAREHOLDERS OF
GOSOLARUSA,
INC.
i
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INDEX
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Page
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Cover
page
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i
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ARTICLE
I – Exchange of Securities
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1
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Exchange
of Securities
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1
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1.1
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Issuance
of Securities
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1
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1.2
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Exemption
from Registration
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2
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ARTICLE
II – Representations and Warranties of GoSolarUSA, Inc.
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2
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Representations
and Warranties of GOSOLARUSA, INC.
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2
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2.1
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Organization
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2
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2.2
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Capital
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2
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2.3
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Subsidiaries
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2
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2.4
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Directors
and Executive Officers
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2
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2.5
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Financial
Statements
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2
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2.6
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Absence
of Changes
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3
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2.7
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Absence
of Undisclosed Liabilities
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3
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2.8
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Tax
Returns
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3
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2.9
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Investigation
of Financial Condition
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3
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2.10
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Intellectual
Property Rights
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3
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2.11
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Compliance
with Laws
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3
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2.12
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Litigation
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3
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2.13
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Authority
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4
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2.14
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Ability
to Carry Out Obligations
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4
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2.15
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Full
Disclosure
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4
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2.16
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Assets
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4
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2.17
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Indemnification
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4
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2.18
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Criminal
or Civil Acts
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4
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2.19
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Restricted
Securities
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5
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ARTICLE
III – Representations and Warranties of Fresca Worldwide Trading
Corp.
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5
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Representations
and Warranties of FRESCA WORLDWIDE TRADING CORP.
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5
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3.1
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Organization
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5
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3.2
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Capital
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5
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3.3
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Subsidiaries
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5
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3.4
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Directors
and Officers
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5
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3.5
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Financial
Statements
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5
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3.6
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Absence
of Changes
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6
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3.7
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Absence
of Undisclosed Liabilities
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6
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3.8
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Tax
Returns
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6
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3.9
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Investigation
of Financial Condition
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6
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3.10
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Intellectual
Property Rights
|
6
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ii
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3.11
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Compliance
with Laws
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6
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3.12
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Litigation
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6
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3.13
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Authority
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6
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3.14
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Ability
to Carry Out Obligations
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7
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3.15
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Full
Disclosure
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7
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3.16
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Assets
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7
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3.17
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Indemnification
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7
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3.18
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Criminal
or Civil Acts
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7
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ARTICLE
IV – Covenants Prior to the Closing Date
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8
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Covenants
Prior to the Closing
Date
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8
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4.1
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Investigative
Rights
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8
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4.2
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Conduct
of Business
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8
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4.3
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Confidential
Information
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8
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4.4
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Notice
of Non-Compliance
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8
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ARTICLE
V – Conditions Precedent to FRESCA WORLDWIDE TRADING
CORP. Performance
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8
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Conditions
Precedent to FRSC’s Performance
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8
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5.1
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Conditions
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8
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5.2
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Accuracy
of Representations
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8
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5.3
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Performance
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9
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5.4
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Absence
of Litigation
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9
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5.5
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Officer’s
Certificate
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9
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5.6
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Corporate
Action
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9
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5.7
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Acceptance
of Financial Statements
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9
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ARTICLE
VI – Conditions Precedent to GOSOLARUSA,
INC. Performance
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9
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Conditions
Precedent to GOSOLARUSA, INC. Performance
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9
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6.1
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Conditions
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9
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6.2
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Accuracy
of Representations
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9
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6.3
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Performance
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9
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6.4
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Absence
of Litigation
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9
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6.5
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Officer’s
Certificate
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10
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6.6
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Payment
of Liabilities
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10
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6.7
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Directors
of FRSC
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10
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6.8
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Officers
of FRSC
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10
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ARTICLE
VII – Closing
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10
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Closing
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10
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7.1
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Closing
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10
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iii
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ARTICLE
VIII – Covenants Subsequent to the Closing Date
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11
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Covenants
Subsequent to the Closing
Date
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11
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8.1
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Change
in Name and Address
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11
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8.2
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Registration
and Listing
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11
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ARTICLE
IX – Miscellaneous
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11
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Miscellaneous
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11
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9.1
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Captions
and Headings
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11
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9.2
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No
Oral Change
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11
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9.3
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Non-Waiver
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11
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9.4
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Time
of Essence
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11
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9.5
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Entire
Agreement
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11
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9.6
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Choice
of Law
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11
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9.7
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Counterparts
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11
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9.8
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Notices
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12
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9.9
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Binding
Effect
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12
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9.10
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Mutual
Cooperation
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12
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9.11
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Finders
/ Brokers
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12
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9.12
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Announcements
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12
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9.13
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Expenses
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12
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9.14
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Survival
of Representations and Warranties
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12
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9.15
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Exhibits
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12
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9.16
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Termination,
Amendment and Waiver
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13
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EXHIBITS
|
Allocation
of Securities
|
Exhibit
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1.1
|
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Subscription
Agreement
|
Exhibit
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1.2
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Financial
Statements of GOSOLARUSA, INC.
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Exhibit
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2.5
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Financial
Statements of FRSC.
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Exhibit
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3.5
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iv
AGREEMENT
THIS AGREEMENT (“Agreement”)
is made as of February 10, 2010, by and among FRESCA WORLDWIDE TRADING CORP., a
Nevada corporation (“FRSC” or the “Company”), GOSOLARUSA,
INC., a Wyoming corporation (“GOSOLAR”), and Sunset Developments, Inc.
and Essential Strategies, Inc., the shareholders of 100% of the shares of
GOSOLAR (each, a “SHAREHOLDER” and collectively
the “SHAREHOLDERS”).
WHEREAS, FRSC desires to acquire all of
the issued and outstanding common stock of (“GOSOLAR”)
from the SHAREHOLDERS in
exchange for newly issued unregistered shares of common stock of FRSC;
WHEREAS, GOSOLAR desires to assist
FRSC in acquiring all of
the issued and outstanding shares of GOSOLAR pursuant to the terms
of this Agreement; and
WHEREAS, each SHAREHOLDER desires to
exchange one hundred percent (100%) of the shares of GOSOLAR held by such SHAREHOLDER (i.e. 500,000
shares) for 7,500,000 shares of the Company’s common stock for a cumulative
total of 15,000,000 shares of the common stock of the Company (the “Purchase Shares”) to be issued
to the SHAREHOLDERS in
exchange for the Gosolar Shares (as hereinafter defined), or (87.7%) of the
capital stock of the Company outstanding after the exchange.
NOW, THEREFORE, in consideration of the
mutual promises, covenants and representations contained herein, the parties
hereto agree as follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance of Securities.
Subject to the terms and conditions of this Agreement, FRSC agrees to issue and
exchange the Purchase
Shares for one hundred percent (100%) of the issued and outstanding
shares of GOSOLAR, i.e.,
1,000,000 shares (the “Gosolar Shares”) held collectively by the SHAREHOLDERS. Upon
the Closing Date of this
Agreement (the “Closing
Date”), the Board of Directors of FRSC (the “Board”) shall
direct that the Purchase
Shares of FRSC be
issued as set forth in Section 1.1 hereof.
(a) Existing
FRSC Common
Stock. The
FRSC shareholders existing prior to the
Closing
Date shall, upon the
occurrence of the Closing and the issuance of the additional shares to be issued
pursuant to this Agreement, including the Purchase
Shares, continue to own
all of the common shares of FRSC currently issued and outstanding representing
approximately 12.3 % of the equity interest or instruments convertible into
common shares of the Company after the exchange on a fully diluted
basis.
(b) FRSC MAJORITY SHAREHOLDER
Approval. By his signature affixed at the end of this
Agreement, the FRSC MAJORITY
SHAREHOLDER indicates his assent to all the provisions of this Agreement
including, without limitation, the issuance of the Purchase Shares to the
SHAREHOLDERS.
1
1.2
Exemption
from Registration. The parties hereto intend that all FRSC common shares to be
issued to the SHAREHOLDERS shall be exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “Act”), pursuant to Section 4(2) and/or Section 506 of Regulation D of the
Act and rules and regulations promulgated thereunder. In furtherance
thereof, the SHAREHOLDERS will execute and
deliver to FRSC on the
Closing Date
subscription agreements formalizing this exchange.
ARTICLE
II
Representations
and Warranties of GOSOLAR
GOSOLAR hereby represents and
warrants to FRSC
that:
2.1
Organization. GOSOLAR is a corporation duly
organized, validly existing and in good standing under the laws of Wyoming, has
all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
2.2
Capital. There are
an aggregate of 1,000,000 shares of GOSOLAR shares issued and
outstanding. There are no outstanding subscriptions, options, rights, warrants,
debentures, instruments, convertible securities or other agreements or
commitments obligating GOSOLAR
to issue any additional GOSOLAR shares of any
class.
2.3
Subsidiaries. GOSOLAR does not have any
subsidiaries or own any interest in any other enterprise.
2.4
Directors and Executive
Officers. The names and titles of the directors and executive officers of
GOSOLAR are as
follows:
|
Name
|
Position
|
|
|
J.
David Brotherton
|
President
/ Sole Director
|
2.5
Financial
Statements. On or before the Closing Date, GOSOLAR shall provide FRSC with financial statements
of GOSOLAR for the
fiscal years ended January 31, 2010 and January 31, 2009 (the “GOSOLAR
Financial Statements”). The financial statements are attached
hereto as Exhibit
2.5. GOSOLAR’s
Financial Statements shall be prepared in accordance with generally accepted
accounting principles and practices consistently followed by GOSOLAR throughout the
periods indicated,
and fairly present the financial position of GOSOLAR as of the date of the
balance sheets included in the GOSOLAR Financial Statements
and the results of operations for the periods indicated.
2
2.6 Absence of
Changes. Since January 31, 2010, there has not been any
material change in the financial condition or operations of GOSOLAR. As used
throughout this Agreement, “material” means: Any change or effect (or
development that, insofar as can be reasonably foreseen, is likely to result in
any change or effect) that causes substantial increase or diminution in the
business, properties, assets, condition (financial or otherwise) or results of
operations of a party. Taken as a whole, material change shall not
include changes in national or international economic conditions or industry
conditions generally; changes or possible changes in statutes and regulations
applicable to a party; or the loss of employees, customers or suppliers by a
party as a direct or indirect consequence of any announcement relating to this
transaction.
2.7 Absence of Undisclosed
Liabilities. As of January 31, 2010, GOSOLAR did not have any
material debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the GOSOLAR Financial
Statements.
2.8 Tax Returns. GOSOLAR has filed all federal,
state and local tax returns required by law and has paid all taxes, assessments
and penalties due and payable. The provisions for taxes, if any, reflected in
Exhibit 2.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by GOSOLAR.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, FRSC, its legal counsel and
accountants shall have the opportunity to meet with GOSOLAR’s accountants and
attorneys to discuss the financial condition of GOSOLAR during reasonable
business hours and in a manner that does not interfere with the normal operation
of GOSOLAR’s
business. GOSOLAR shall make available
to FRSC all books and
records of GOSOLAR.
2.10 Intellectual Property Rights.
GOSOLAR owns or has the
right to use all trademarks, service marks, trade names, copyrights and patents
material to its business.
2.11 Compliance with Laws. To the
best of GOSOLAR’s
knowledge, GOSOLAR has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations, including federal and state securities laws,
except where such non-compliance would not have a material adverse impact upon
its business or properties.
2.12 Litigation. GOSOLAR is not a defendant in
any suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of GOSOLAR, threatened against or
affecting GOSOLAR or its
business, assets or financial condition. GOSOLAR is not in default with
respect to any order, writ, injunction or decree of any federal, state, local or
foreign court, department, agency or instrumentality applicable to
it. GOSOLAR
is not engaged in any material litigation to recover monies due to
it.
3
2.13 Authority. The Board of
Directors of GOSOLAR has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and GOSOLAR has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of GOSOLAR and is enforceable in
accordance with its terms and conditions. SHAREHOLDER has agreed to and
has approved the terms of this Agreement and the exchange of securities
contemplated hereby.
2.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by GOSOLAR and the performance by
GOSOLAR of its
obligations hereunder in the time and manner contemplated will not cause,
constitute or conflict with or result in (a) any breach or violation of any of
the provisions of or constitute a default under any license, indenture,
mortgage, instrument, article of incorporation, bylaw, or other agreement or
instrument to which GOSOLAR
is a party, or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (b) an event
that would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of GOSOLAR, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of GOSOLAR.
2.15 Full Disclosure. None of the
representations and warranties made by GOSOLAR herein or in any
exhibit, certificate or memorandum furnished or to be furnished by GOSOLAR, or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
2.16 Assets. GOSOLAR’s assets are fully
included in Exhibit
2.5 and are not subject to any claims or encumbrances except as indicated
in Exhibit
2.5.
2.17 Indemnification. GOSOLAR agrees to indemnify,
defend and hold FRSC
harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against FRSC
which arise out of, or result from (i) any breach by GOSOLAR in performing any of
its covenants or agreements under this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by GOSOLAR under this Agreement,
(ii) a failure of any representation or warranty in this Article II or (iii) any
untrue statement made by GOSOLAR in this
Agreement.
2.18 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of GOSOLAR has been convicted of
a felony crime, filed for personal bankruptcy, been the subject of a Securities
and Exchange Commission (the “Commission”) or National Association of Securities
Dealers (the “NASD”) judgment or decree, or is currently the subject to any
investigation in connection with a felony crime or Commission or NASD
proceeding.
2.19 Restricted
Securities. GOSOLAR and GOSOLAR’s SHAREHOLDERS
acknowledge that all of the FRSC shares issued by FRSC pursuant to section 1.1
hereof are restricted securities and none of such securities may be sold or
publicly traded except in accordance with the provisions of the Securities Act
of 1933, as amended (the “Act”).
4
ARTICLE
III
Representations
and Warranties of FRSC
FRSC represents and warrants
to GOSOLAR
that:
3.1
Organization. FRSC is a corporation duly
organized, validly existing and in good standing under the laws of Nevada, has
all necessary corporate powers to carry on its business, and is duly qualified
to do business and is in good standing in each of the states where its business
requires qualification.
3.2
Capital. The
authorized shares of FRSC consists of (i)
100,000,000 shares of common stock, $0.001 par value, of which 2,100,000 shares
are issued and outstanding as of the Closing Date; and (ii)
10,000,000 shares of undesignated preferred stock, of which no shares are issued
and outstanding.
As of the Closing Date, following the
issuance of the Purchase
Shares as set forth in 1.1 hereof, there shall be a total of (i)
17,100,000 shares of common stock of the Company issued and outstanding; and
(ii) no shares of the preferred stock issued and outstanding.
All of the outstanding common shares
prior to the entering into this Agreement are, and all of the Purchase Shares to be issued
as set forth in 1.1 hereof, shall be duly and validly issued, fully paid and
non-assessable. Other than as set forth herein, there are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating FRSC to issue any additional
shares of any class.
3.3
Subsidiaries. FRSC does not have any
subsidiaries or own any interest in any other enterprise.
3.4
Directors and Officers. The
name and title of the director(s) and executive officer(s) of FRSC are as
follows:
|
Name
|
Position
|
|
|
Margaret
A. Burton
|
President
|
3.5
Financial
Statements. On or before the Closing Date, FRSC shall provide GOSOLAR with financial
statements of FRSC for
the two fiscal years ended December 31, 2008 and December 31, 2009 (the “FRSC
Financial Statements”). The financial statements are attached
hereto as Exhibit
3.5. FRSC’s Financial
Statements will be prepared in accordance with generally accepted accounting
principles and practices consistently followed by FRSC throughout the
periods indicated,
and fairly present the financial position of FRSC as of the date of the
balance sheets included in the FRSC Financial Statements and
the results of operations for the periods indicated.
5
3.6 Absence of
Changes. As of December 31, 2009, there has not been any
material change in the financial condition or operations of FRSC. As used
throughout this Agreement, “material” means: Any change or effect (or
development that, insofar as can be reasonably foreseen, is likely to result in
any change or effect) that causes substantial increase or diminution in the
business, properties, assets, condition (financial or otherwise) or results of
operations of a party. Taken as a whole, material change shall not
include changes in national or international economic conditions or industry
conditions generally; changes or possible changes in statutes and regulations
applicable to a party; or the loss of employees, customers or suppliers by a
party as a direct or indirect consequence of any announcement relating to this
transaction.
3.7 Absence of Undisclosed
Liabilities. As of December 31, 2009, FRSC did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the FRSC Financial
Statements.
3.8 Tax Returns. FRSC has filed all federal,
state and local tax returns required by law and has paid all taxes, assessments
and penalties due and payable. The provisions for taxes, if any, reflected in
Exhibit 3.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by FRSC.
3.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise
mitigating the representations contained herein, GOSOLAR, its legal counsel and
accountants shall have the opportunity to meet with FRSC’s accountants and
attorneys to discuss the financial condition of FRSC during reasonable
business hours and in a manner that does not interfere with the normal operation
of FRSC’s
business. FRSC
shall make available to GOSOLAR all books and records
of FRSC.
3.10 Intellectual Property
Rights. FRSC has no trademarks,
service marks, trade names, copyrights or patents material to its
business.
3.11 Compliance with
Laws. To the best of FRSC’s knowledge, FRSC has complied with, and is
not in violation of, applicable federal, state or local statutes, laws and
regulations, including federal and state securities laws, except where such
non-compliance would not have a material adverse impact upon its business or
properties.
3.12 Litigation. FRSC is not a defendant in any
suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of FRSC, threatened against or
affecting FRSC or its
business, assets or financial condition. FRSC is not in default with
respect to any order, writ, injunction or decree of any federal, state, local or
foreign court, department, agency or instrumentality applicable to
it. FRSC is
not engaged in any material litigation to recover monies due to it.
3.13 Authority. The
Board of FRSC has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and FRSC has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of FRSC and is enforceable in
accordance with its terms and conditions.
6
3.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by
FRSC and the performance
by FRSC of its
obligations hereunder in the time and manner contemplated will not cause,
constitute or conflict with or result in (a) any breach or violation of any of
the provisions of or constitute a default under any license, indenture,
mortgage, instrument, article of incorporation, bylaw, or other agreement or
instrument to which FRSC
is a party, or by which it may be bound, nor will any consents or authorizations
of any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of FRSC, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of FRSC.
3.15 Full
Disclosure. None of the representations and warranties made by
FRSC herein or in any
exhibit, certificate or memorandum furnished or to be furnished by FRSC, or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
3.16 Assets. FRSC assets are fully included
in Exhibit 3.5
and are not subject to any claims or encumbrances except as indicated in Exhibit
3.5.
3.17 Indemnification. FRSC agrees to indemnify,
defend and hold GOSOLAR
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against GOSOLAR
which arise out of, or result from (i) any breach by FRSC in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by FRSC under this Agreement,
(ii) a failure of any representation or warranty in this Article III or (iii)
any untrue statement made by FRSC in this
Agreement.
3.18 Criminal or Civil Acts. For the period
of five years prior to the execution of this Agreement, no executive officer,
director or principal stockholder of FRSC has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD judgment or decree, or is currently the subject to any investigation in
connection with a felony crime or Commission or NASD
proceeding.
7
ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative
Rights. Prior to the Closing Date, each party shall
provide to the other party, and such other party’s counsel, accountants,
auditors and other authorized representatives, full access during normal
business hours and upon reasonable advance written notice to all of each party’s
properties, books, contracts, commitments and records for the purpose of
examining the same. Each party shall furnish the other party with all
information concerning each party’s affairs as the other party may reasonably
request. If, during the investigative period one party learns that a
representation of the other party was not accurate, no such claim may be
asserted by the party so learning that a representation of the other party was
not accurate.
4.2 Conduct of
Business. Prior to the Closing Date, each party shall
conduct its business in the normal course and shall not sell, pledge or assign
any assets without the prior written approval of the other party, except in the
normal course of business. Neither party shall amend its Articles of
Incorporation or Bylaws (except as may be described in this Agreement), declare
dividends, redeem or sell stock or other securities. Neither party
shall enter into negotiations with any third party or complete any transaction
with a third party involving the sale of any of its assets or the exchange of
any of its common stock.
4.3 Confidential Information. Each party will
treat all non-public, confidential and trade secret information received from
the other party as confidential, and such party shall not disclose or use such
information in a manner contrary to the purposes of this
Agreement. Moreover, all such information shall be returned to the
other party in the event this Agreement is terminated.
4.4 Notice of Non-Compliance. Each party shall
give prompt notice to the other party of any representation or warranty made by
it in this Agreement becoming untrue or inaccurate in any respect or the failure
by it to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this
Agreement.
ARTICLE
V
Conditions
Precedent to FRSC’s Performance
5.1 Conditions. FRSC’s obligations hereunder
shall be subject to the satisfaction at or before the Closing Date of all the
conditions set forth in this Article V. FRSC may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by FRSC of any other condition of
or any of FRSC’s other
rights or remedies, at law or in equity, if GOSOLAR shall be in default of
any of its representations, warranties or covenants under this
Agreement.
5.2 Accuracy of
Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by GOSOLAR in this Agreement or
in any written statement that shall be delivered to FRSC by GOSOLAR under this Agreement
shall be true and accurate on and as of the Closing Date as though made at
that time.
8
5.3 Performance. GOSOLAR shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before the Closing Date.
5.4 Absence of
Litigation. No action, suit or proceeding, including
injunctive actions, before any court or any governmental body or authority,
pertaining to the transaction contemplated by this Agreement or to its
consummation, shall have been instituted or threatened against GOSOLAR on or before the Closing Date.
5.5 Officer’s
Certificate. GOSOLAR shall have delivered
to FRSC a certificate
dated the Closing Date
signed by the Chief Executive Officer of GOSOLAR certifying that each
of the conditions specified in this Article has been fulfilled and that all of
the representations set forth in Article II are true and correct as of the Closing Date.
5.6 Corporate
Action. GOSOLAR shall have obtained
the approval of the
SHAREHOLDERS for the transaction contemplated by this
Agreement.
5.7 Acceptance of Financial
Statements. GOSOLAR shall have reviewed
and in its sole discretion accepted, prior to the Closing Date, the FRSC Financial Statements as
set forth in Exhibit
3.5.
ARTICLE
VI
Conditions
Precedent to GOSOLAR’s Performance
6.1 Conditions. GOSOLAR’s obligations
hereunder shall be subject to the satisfaction at or before the Closing Date of all the
conditions set forth in this Article VI. GOSOLAR may waive any or all
of these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by GOSOLAR of any other condition
of or any of GOSOLAR’s
rights or remedies, at law or in equity, if FRSC shall be in default of
any of its representations, warranties or covenants under this
Agreement.
6.2 Accuracy of
Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by FRSC in this Agreement or in
any written statement that shall be delivered to GOSOLAR by FRSC under this Agreement
shall be true and accurate on and as of the Closing Date as though made at
that time.
6.3 Performance. FRSC shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before the Closing Date.
6.4 Absence of
Litigation. No action, suit or proceeding before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against FRSC
on or before the Closing
Date.
9
6.5 Officer’s
Certificate. FRSC shall have delivered to
GOSOLAR a certificate
dated the Closing Date
signed by the Chief Executive Officer of FRSC certifying that each of
the conditions specified in this Article has been fulfilled and that all of the
representations set forth in Article III are true and correct as of the Closing Date.
6.6 Payment of Liabilities. On or before the
Closing Date, FRSC shall have paid any
outstanding obligations and liabilities of FRSC through the Closing Date, including
obligations created subsequent to the execution of this Agreement.
6.7 Directors of FRSC. On or
before the Closing Date,
the Board of FRSC shall
appoint the designees of GOSOLAR to FRSC’s Board of Directors and
all directors not so designated simultaneously resign from the Board of
Directors.
6.8 Officers of
FRSC. On or before the Closing Date, the newly
constituted Board of FRSC shall elect the officers
of FRSC and any other
then existing executive
officers of FRSC shall resign.
6.9 Acceptance of Financial
Statements. FRSC shall have reviewed and in its sole
discretion accepted, prior to the Closing Date, the GOSOLAR’s Financial Statements
as set forth in Exhibit
2.5.
ARTICLE
VII
Closing
7.1 Closing. The
closing of this Agreement shall be held at the offices of Jean-Pierre & Jean-Pierre, LLC
Boca Raton, FL or at any mutually agreeable place on or prior to March
31, 2010, unless extended by mutual agreement. At the
closing:
(a) GOSOLAR shall deliver to FRSC (i) the SHAREHOLDERS stock certificates
representing 100% of the outstanding shares of GOSOLAR, (ii) an
assignment of all of the GOSOLAR’s shares to FRSC, (iii) the officer’s
certificate described in Section 5.5, and (iv) signed minutes of its directors
approving this Agreement.
(b) FRSC shall deliver to GOSOLAR (i) certificates
representing the Purchase
Shares, (ii) the officer’s certificate described in Section 6.5, (iii)
signed minutes of its directors approving this Agreement, and (iv) resignations
of its executive officers and directors pursuant to Sections 6.7 and
6.8.
10
ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Change in Name and
Address. Immediately upon the Closing or as soon thereafter as
practicable, FRSC
shall:
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(a)
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Change
its name to GoSolarUSA, Inc.;
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(b)
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Appoint
new management designated by the SHAREHOLDERS; and
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(c)
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Change
its corporate address to:
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201 St.
Charles Ave, Suite 2500
New
Orleans, LA 70170
ARTICLE
IX
Miscellaneous
9.1 Captions and
Headings. The article and Section headings throughout this
Agreement are for convenience and reference only and shall not define, limit or
add to the meaning of any provision of this Agreement.
9.2 No Oral
Change. This Agreement and any provision hereof may not be
waived, changed, modified or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification or discharge is sought.
9.3 Non-Waiver. The
failure of any party to insist in any one or more cases upon the performance of
any of the provisions, covenants or conditions of this Agreement or to exercise
any option herein contained shall not be construed as a waiver or relinquishment
for the future of any such provisions, covenants or conditions. No
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other subsequent breach.
9.4 Time of
Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
9.5 Entire
Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings.
9.6 Choice of Law. This
Agreement and its application shall be governed by the laws of the state of
Florida.
9.7 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11
9.8 Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, via
facsimile or by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
GOSOLAR: GOSOLARUSA,
INC.
201 St. Charles Ave, Suite
2500
New Orleans, LA 70170
FAX No.:
FRSC: FRESCA
WORLDWIDE TRADING CORP.
7337 Oswego Road
Liverpool NY 13090
FAX No.:
9.9 Binding
Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
9.10 Mutual
Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
9.11 Finders /
Brokers. There are no finders or brokers in connection with
this transaction.
9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. Each
party will bear their own expenses, including legal fees incurred in connection
with this Agreement. None of the SHAREHOLDERS will be
responsible personally for any costs incurred in connection with the transaction
contemplated by this Agreement.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and
agreements of the parties set forth in this Agreement or in any instrument,
certificate, opinion or other writing providing for in it, shall survive the
Closing
Date.
9.15 Exhibits. As of the
execution hereof, the parties have provided each other with the exhibits
described herein. Any material changes to the exhibits shall be
immediately disclosed to the other party.
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9.16
Termination, Amendment
and Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to the Closing Date, whether before
or after approval of matters presented in connection with the share exchange by
the shareholders of FRSC
or by the SHAREHOLDERS:
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(1)
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By
mutual written consent of GOSOLAR and FRSC;
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(2)
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By
either GOSOLAR or
FRSC;
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(i)
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If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
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(ii)
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If
the transaction shall not have been consummated on or before March 31,
2010 unless the failure to consummate the transaction is the result of a
material breach of this Agreement by the party seeking to terminate this
Agreement.
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(3) By GOSOLAR, if FRSC breaches any of its
representations or warranties hereof or fails to perform in any material respect
any of its covenants, agreements or obligations under this Agreement;
and
(4) By FRSC, if GOSOLAR breaches any of its
representations or warranties hereof or fails to perform in any material respect
any of its covenants, agreements or obligations under this
Agreement.
(b) Effect of
Termination. In the event of termination of this Agreement by
either FRSC or GOSOLAR, as provided herein,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of GOSOLAR or FRSC, and such termination
shall not relieve any party hereto for any intentional breach prior to such
termination by a party hereto of any of its representations or warranties or any
of its covenants or agreements set forth in this Agreement.
(c) Extension;
Waiver. At any time prior to the Closing Date, the parties may,
to the extent legally allowed, (a) extend the time for the performance of any of
the obligation of the other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
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(d) Procedure for Termination, Amendment,
Extension or Waiver. A termination of this Agreement, an
amendment of this Agreement or an extension or waiver shall, in order to be
effective, require in the case of GOSOLAR or FRSC, action by its respective
Board of Directors or the duly authorized designee of such Board of
Directors.
In witness whereof, the parties hereto
have executed this Agreement concerning the exchange of securities on the date
first above written.
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GOSOLARUSA,
INC.
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By:
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/s/J. David Brotherton
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J.
David Brotherton,
President
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FRESCA
WORLDWIDE TRADING CORP.
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By:
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/s/Margaret Burton
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Margaret
A. Burton,
President
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14
Exhibit
1.1
ALLOCATION
OF SECURITIES
UPON
CLOSING
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A.
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COMMON
STOCK OF COMPANY
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Authorized: 100,000,000 shares, .001 par
value
Issued and
Outstanding: 17,100,000
shares
Voting Power
represented: 87.7
%
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B.
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PREFERRED
STOCK
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Authorized: 10,000,000 shares
Issued and
Outstanding: 0
shares
15