SHARE EXCHANGE AGREEMENT
EXHIBIT
1
This
Share Exchange Agreement (the “Agreement”) dated as of the 11th day of April
2008, by and among American Business Holdings, Inc., a Delaware corporation
having its offices at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx
00000 (the “Company”), Wealthlink Co., Ltd., a corporation organized under the
laws of the Cayman Islands (“Wealthlink”), and the shareholders of Wealthlink
named on the signature page of this Agreement (collectively, the “Shareholders”
and each, individually, a “Shareholder”).
WITNESSETH:
WHEREAS,
the Shareholders are the holders of all of the issued and outstanding capital
stock (the “Wealthlink Shares”) of Wealthlink;
WHEREAS,
the Shareholders are acquiring a controlling interest in the Company;
and
WHEREAS,
the Company is willing to issue shares of its common stock, par value $0.001 per
share (the “Common Stock”), to the Shareholders in consideration for all of the
Wealthlink Shares;
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
1.
Exchange of Shares and
Issuance to Bridge Investors.
(a) Issuance of Shares by the
Company. On and subject to the conditions set forth in this Agreement,
the Company will issue to the Shareholders, in exchange for _________ Wealthlink
Shares, which represents all of the issued and outstanding capital stock of
Wealthlink, an aggregate of ________ shares of Common Stock. The
Common Stock will be issued to the Shareholders in the amounts set forth after
their respective names in Schedule I to this Agreement.
(b) Transfer of Wealthlink
Shares by the Shareholders. Subject to the conditions set forth in this
Agreement, the Shareholders will transfer to the Company all of the Wealthlink
Shares in exchange for shares of Common Stock. Each Shareholder holds
the number of Wealthlink Shares set forth after his or her name in Schedule I to
this Agreement.
(c)
Closing.
The issuance of the Common Stock to the Shareholders and the transfer of the
Wealthlink Shares to the Company will take place at a closing (the “Closing”) to
be held at the office of Sichenzia Xxxx Xxxxxxxx Xxxxxxx, LLP, 00 Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as soon as possible after or contemporaneously
with the satisfaction or waiver of all of the conditions to closing set forth in
Section 6 of this Agreement (the “Closing Date”).
2.
Representations and
Warranties of the Company. The Company hereby represents, warrants,
covenants and agrees as follows:
(a)
Organization and
Authority.
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(ii)
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Complete
and correct copies of the Company’s certificate of incorporation and
by-laws are available for review on the XXXXX system maintained by the
U.S. Securities and Exchange Commission (the “Commission”) and has been
provided to counsel for Wealthlink.
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(iii)
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The
Company has full power and authority to carry out the transactions
provided for in this Agreement, and this Agreement constitutes the legal,
valid and binding obligations of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency and other laws of general application affecting the enforcement
of creditor’s rights and except that any remedies in the nature of
equitable relief are in the discretion of the court. All
necessary action required to be taken by the Company for the consummation
of the transactions contemplated by this Agreement has been
taken.
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(iv)
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The
execution and performance of this Agreement will not constitute a breach
of any agreement, indenture, mortgage, license or other instrument or
document to which the Company is a party or by which its assets and
properties are bound, and will not violate any judgment, decree, order,
writ, rule, statute, or regulation applicable to the Company or its
properties. The execution and performance of this Agreement
will not violate or conflict with any provision of the certificate of
incorporation or by-laws of the
Company.
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(v)
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The
Common Stock, when issued pursuant to this Agreement, will be duly and
validly authorized and issued, fully paid and non-assessable. The issuance
of the Common Stock to Shareholders and to Wealthlink is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to an exemption provided by Section 4(2) and
Rule 506 promulgated thereunder.
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(vi)
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The
authorized capital stock of the Company consists of 500,000,000 shares of
Common Stock, of which 82,000,000 shares are presently outstanding and
10,000,000 shares of preferred stock are authorized and of which none have
been designated or issued. Except as provided in, contemplated
by, or set forth in this Agreement or the Company SEC Documents (as
defined below), the Company has no outstanding or authorized warrants,
options, other rights to purchase or otherwise acquire capital stock or
any other securities of the Company, preemptive rights, rights of first
refusal, registration rights or related commitments of any
nature. All issued and outstanding shares were either (i)
registered under the Securities Act, or (ii) issued pursuant to valid
exemptions from registration
thereunder.
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(vii)
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No
consent, approval or agreement of any person, party, court, governmental
authority, or entity is required to be obtained by the Company in
connection with the execution and performance by the Company of this
Agreement or the execution and performance by the Company of any
agreements, instruments or other obligations entered into in connection
with this Agreement.
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(b)
SEC
Documents.
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(i)
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The
Company is registered pursuant to the Exchange Act of 1934 and is current
with its reporting obligations under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). None of the Company’s filings
made pursuant to the Exchange Act (collectively, the “Company SEC
Documents”) contains any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. The Company SEC Documents, as of
their respective dates, complied in all material respects with the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and are available on the Commission’s XXXXX
system.
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(ii)
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The
Company SEC Documents include the Company’s audited consolidated financial
statements for the fiscal years ended December 31, 2007 and 2006
(collectively, the “Financial Statements”), including, in each case, a
balance sheet and the related statements of income, stockholders’ equity
and cash flows for the period then ended, together with the related
notes. The Audited Financial Statements have been certified by
Xxxxxx & Associates, L.L.C. (“Xxxxxx”). The Financial
Statements are in accordance with all books, records and accounts of the
Company, are true, correct and complete and have been prepared in
accordance with GAAP, consistently applied. Xxxxxx is
independent as to the Company under the rules of the Commission pursuant
to the Securities Act and is registered with the PCAOB. The
Financial Statements present fairly the financial position of the Company
at the respective balance sheet dates, and fairly present the results of
the Company’s operations, changes in stockholders’ equity and cash flows
for the periods covered.
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(iii)
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At
the close of business on December 31, 2007, the Company did not have any
material liabilities, absolute or contingent, of the type required to be
reflected on balance sheets prepared in accordance with GAAP which are not
fully reflected, reserved against or disclosed on the December 31, 2007
balance sheet. The Company has not guaranteed or assumed or
incurred any obligation with respect to any debt or obligations of any
Person, except endorsements made in the ordinary course of business in
connection with the deposit of items for collection. The
Company does not have any debts, contracts, guaranty, standby, indemnity
or hold harmless commitments, liabilities or obligations of any kind,
character or description, whether accrued, absolute, contingent or
otherwise, or due or to become due except to the extent set forth or noted
in the Financial Statements, and not heretofore paid or
discharged.
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(c) Absence of Changes.
Since December 31, 2007, except as set forth
in the Company SEC Documents and except for the Asset Sale (as hereinafter
defined), to the best of Company’s knowledge, there have not
been:.
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(i)
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any
change in the consolidated assets, liabilities, or financial condition of
the Company, except changes in the ordinary course of business which do
not and will not have a material adverse effect on the
Company;
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(ii)
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any
damage, destruction, or loss, whether or not covered by insurance,
materially and adversely affecting the assets or financial condition of
the Company (as conducted and as proposed to be
conducted);
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(iii)
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any
change or amendment to a material contract, charter document or
arrangement not in the ordinary course of business to which the Company is
a party other than contracts which are to be terminated at or prior to the
Closing;
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(iv)
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any
loans made by the Company to any of affiliate of the Company or any of the
Company’s employees, officers, directors, shareholders or any of its
affiliates;
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(v)
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any
declaration or payment of any dividend or other distribution or any
redemption of any capital stock of the
Company;
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(vi)
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any
sale, transfer, or lease of any of the Company’s assets other than in the
ordinary course of business;
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(vii)
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any
other event or condition of any character which might have a material
adverse effect on the Company;
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(viii)
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any
satisfaction or discharge of any lien, claim or encumbrance or payment of
any obligation by Company except in the ordinary course of business and
that is not material to the assets or financial condition of the Company;
or
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(ix)
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any
agreement or commitment by the Company to do any of the things described
in this Section 2(c).
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(d) Property. Except
as set forth in the Company SEC Documents, the Company does not own any real
estate and is not a party to any lease agreement.
(e) Taxes. The
Company has filed all federal, state, county and local income, excise,
franchise, property and other tax, governmental and/or related returns, forms,
or reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material adverse impact
on the Company, and has paid or made adequate provision in the financial
statement included in the Company SEC Documents for the payment of all taxes,
fees, or assessments which have or may become due pursuant to such returns or
pursuant to any assessments received. The Company is not delinquent
or obligated for any tax, penalty, interest, delinquency or charge.
(f) Contracts and
Commitments. Except as contemplated under this Agreement or
set forth in the Company SEC Documents, the Company is not a party to any
contract or agreement.
(g) No Adverse
Change. Since December 31, 2007, there has not been any
Material Adverse Change in the financial condition of the Company, although
Shareholders recognize that the Company has continued not to generate any
revenue and has continued to operate at a loss as a result of ongoing expenses,
including expenses relating to this Agreement and the consummation of the
transactions contemplated hereby. A Material Adverse Change shall
mean a material adverse change in the business, financial condition, operations
or prospects of a person.
(h) No
Defaults. The Company is not in violation of its certificate
of incorporation or by-laws or any judgment, decree or order, applicable to
it.
(i) Litigation. There
are no material (i.e., claims which, if adversely determined based on the
amounts claimed, would exceed five thousand dollars ($5,000) in the aggregate)
claims, actions, suits, proceedings, inquiries, labor disputes or investigations
(whether or not purportedly on behalf of the Company) pending or, to Company’s
knowledge, threatened against the Company or any of its assets, at law or in
equity or by or before any governmental entity or in arbitration or
mediation.
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(j) Compliance with
Laws. The Company, to its knowledge, is in full compliance
with all laws applicable to it (including, without limitation, with respect to
zoning, building, wages, hours, hiring, firing, promotion, equal opportunity,
pension and other benefit, immigration, nondiscrimination, warranties,
advertising or sale of products, trade regulations, anti-trust or control and
foreign exchange or, to the Company’s knowledge, environmental, health and
safety requirements).
(k) Contracts and
Commitments. The Company is not a party to any contract of
agreement other than agreements that will be terminated at or prior to the
Closing.
(l) Intellectual
Property. The Company has no intellectual property
rights.
(m) No
Broker. Except for Primary Capital LLC, neither the Company
nor any of its agents or employees has employed or engaged any broker or finder
or incurred any liability for any brokerage fees, commissions or finders’ fees
in connection with the transactions contemplated by this
Agreement. The Company shall indemnify and hold the Shareholders
harmless against any loss, damage, liability or expense, including reasonable
fees and expenses of counsel, as a result of any brokerage fees, commissions or
finders’ fees which are due as a result of the consummation of the transaction
contemplated by this Agreement.
(n) Asset
Sale. Immediately prior to the date hereof, the Company has
completed the sale of all of its assets (including, but not limited to, its
subsidiary, Tissakin, Ltd.) in consideration for the transfer to the Company of
80,000,000 shares of Common Stock (the “Asset Sale”)
(m) Reliance by
Shareholders. The representations and warranties set forth in
this Section 2 taken together, do not contain any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein and therein, when taken together, not misleading, and there is
no fact which materially and adversely affects the business, operations or
financial condition of the Company. Shareholders may rely on the
representations set forth in this Section 2 notwithstanding any investigation it
may have made.
4. Closing
Deliveries.
(a) On
the Closing Date, the Company shall deliver or cause to be delivered to each
Shareholder:
(i) fully
executed and duly authorized transaction documents, including this Share
Exchange Agreement and all other ancillary documents and resolutions required by
the Company.
(ii) a
certificate registered in the name of each Shareholder representing the number
of shares of Common Stock set forth on Schedule I;
(iii) a
legal opinion of counsel to the Company acceptable to the Shareholders;
and
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(iv)
undated letters of resignation from each of the directors and officers of the
Company.
(b) On
the Closing Date, each Shareholder shall deliver or cause to be delivered to the
Company:
(i) fully
executed and duly authorized transaction documents, including this Share
Exchange Agreement and all other ancillary documents and resolutions required by
the Wealthlink.
(ii) the
certificate representing such Shareholder’s shares of Wealthlink stock, or if
the shares were issued in uncertificated form, a written representation executed
by an officer of Wealthlink that such Shareholder was issued the number of
shares set forth next to its name on Schedule I.
6. Conditions to the Obligation
of the Shareholders to Close. The obligations of Shareholders
under this Agreement are subject to the satisfaction of the following conditions
unless waived by Shareholders:
(a) Representations and
Warranties. On the Closing Date, the representations and
warranties of the Company shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as if made on such
date, and the Company shall have performed all of their respective obligations
required to be performed by them pursuant to this Agreement at or prior to the
Closing Date, and Shareholders shall have received a certificate of the Company
to such effect and as to any other matters set forth in this
Agreement.
(b) No Material Adverse
Change. No Material Adverse Change in the business or
financial condition of the Company shall have occurred or be threatened since
the date of this Agreement, and no action, suit or proceedings shall be
threatened or pending before any court of governmental agency or authority or
regulatory body seeking to restraint, prohibition or the obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated by this Agreement or that, if adversely decided, has or may have a
Material Adverse Effect.
(c) Liabilities. On the
Closing Date, the Company’s total liabilities shall not exceed
$2,000.
(d) Legal
Opinion. The Shareholders shall have received a legal opinion
from the Company’s legal counsel, acceptable to the Shareholders
(e) Resignations. All
officers and directors of the Company shall have tendered an undated letter of
resignation.
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(f) Elections and
Appointments. The following individuals shall have been
elected as directors of the Company effective as of the Closing
Date:
________________
The
following individuals shall have been appointed to the following
offices:
_________________
(g) Shares
Outstanding. The Company shall have ________ shares of
Common
Stock outstanding without giving effect to the issuances contemplated under this
Agreement.
7. Indemnification
Each of Syed Xxxxx Xxxxxx and Xxxx
Xxxxx Xxxxxx, each a principal stockholder of the Company (each an Indemnitor
and collectively, the “Indemnitors”), hereby acknowledges that he will gain
significant benefits from the transactions contemplated hereunder in exchange
for shares constituting a majority of the common stock of the
Company. In consideration for the consummation of the transactions
contemplated by this Agreement, each Indemnitor jointly and severally hereby
agrees to indemnify and hold harmless the Company and the Shareholders, from and
against any and all liabilities, losses, damages, judgments, costs and charges,
including reasonable attorney fees and expenses, as a result of (i) any
liabilities of the Company that were incurred by the Company or arose from its
actions or omissions prior to the Closing Date and (ii) the Company’s breach of
any representations and warranties contained herein. The provisions
of this Section 7 shall survive the consummation of the transactions
contemplated hereunder, and is intended to benefit the Company and the
Shareholders and their respective heirs, personal representatives, successors
and assigns.
This Section 7 shall survive in
conjunction with the separate Indemnification Agreement entered into of similar
date herein.
8. Accredited Investor
Status.
By countersigning this Agreement, each
of the Shareholders, severally and not jointly, represents that such Shareholder
is an accredited investor as such is defined in Regulation D promulgated under
the Securities Act of 1933 as amended, because such Shareholder fits one of the
definitions set forth in Exhibit A attached hereto.
9. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing and either delivered personally, telecopied or sent by certified or
registered mail, postage prepaid,
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with
a copy to:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx, LLP
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Attn:
Xxxx Xxxx
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00
Xxxxxxxx, 00xx Xxxxx
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Xxx Xxxx,
Xxx Xxxx 00000
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Tel:
(000) 000-0000
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Fax:
(000) 000-0000
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if
to the Company:
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American
Business Holdings, Inc.
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0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
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Attention: Syed
Xxxxx Xxxxxx
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with
a copy to:
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Xxxxxx
& Jaclin, LLP
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Attn:
Xxxx Xxxxx
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000
Xxxxx 0 Xxxxx, Xxxxx 000
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Xxxxxxxxx,
Xxx Xxxxxx
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Phone:
(000) 000-0000
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Fax:
(000) 000-0000
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or such
other address or fax number as such party may hereafter specify for the purpose
by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or telecopied or, if mailed, five business days
after the date of mailing if received prior to 5 p.m. in the place of receipt
and such day is a business day in the place of receipt. Otherwise,
any such notice, request or communication shall be deemed not to have been
received until the next succeeding business day in the place of
receipt
10.
Miscellaneous.
(a)
This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof, superseding any and all prior or
contemporaneous oral and prior written agreements, understandings and letters of
intent. This Agreement may not be modified or amended nor may any right be
waived except by a writing which expressly refers to this Agreement, states that
it is a modification, amendment or waiver and is signed by all parties with
respect to a modification or amendment or the party granting the waiver with
respect to a waiver. No course of conduct or dealing and no trade custom or
usage shall modify any provisions of this Agreement.
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(b)
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
(c)
This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted
assigns.
(d)
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same document.
(e)
The various representations, warranties, and covenants set forth in
this Agreement or in any other writing delivered in connection therewith shall
survive the issuance of the Shares.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have executed this Securities Exchange Agreement
the day and year first above written.
AMERICAN BUSINESS
HOLDINGS, INC.
By:
________________________________________
WEALTHLINK
CO., LTD.
By:
_________________________________________
Agreed as
to Sections 7 and 8 only:
________________________
_________________________
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SHAREHOLDER
SIGNATURE PAGE TO
WEALTHLINK/ABHI
SHARE EXCHANGE AGREEMENT
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Exhibit
A
Accredited
investors
A Person
who meets any one of the following tests is an accredited investor:
(a)
The Person is an individual who has a net worth, or joint net worth with
the Person’s spouse, of at least $1,000,000.
(b)
The Person is an individual who had individual income of more than
$200,000 (or $300,000 jointly with the Person’s spouse) for the past two years,
and the Person has a reasonable expectation of having income of at least
$200,000 (or $300,000 jointly with the Person’s spouse) for the current
year.
(c)
The Person is an officer or director of the Company.
(d)
The Person is a bank as defined in section 3(a)(2) of the Securities Act
or any savings and loan association or other institution as defined in section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity.
(e)
The Person is a broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934.
(f)
The Person is an insurance company as defined in section 2(13) of the
Securities
Act.
(g)
The Person is an investment company registered under the Investment
Company Act of 1940 or a business development company as defined in section
2(a)(48) of that Act.
(h)
The Person is a small Business Investment Company licensed by the U.S.
Small Business Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958.
(i)
The Person is an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors.
(j)
The Person is a private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940.
(k)
The Person is an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000.
(l)
The Person is a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of the Commission under the Securities Act.
(m)
The Person is an entity in which all of the equity owners are accredited
investors (i.e., all of the equity owners meet one of the tests for an
accredited investor).
If
an individual Person qualifies as an accredited investor, such individual may
purchase the Shares in the name of his or her individual retirement account
(“XXX”).
