SHARE EXCHANGE AGREEMENT
This
Agreement dated as of the ____ day of January 2008, by and among Soyodo Group
Holdings, Inc., a Delaware corporation having its offices at 0000 Xxxxxxxx
Xxxx
Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 (the “Company”), Omphalos Corp., a
corporation organized under the laws of the British Virgin Islands (“Omphalos”),
and the shareholders of Omphalos 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 “Omphalos Shares”) of Omphalos;
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 $0.0001
per share (the “Common Stock”), to the Shareholders in consideration for all of
the issued and outstanding capital stock of Omphalos.
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
1.
Exchange
of Shares.
(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 100,000 Omphalos Shares, which represents
all
of the issued and outstanding capital stock of Omphalos, an aggregate of
82,000,000 shares of Common Stock (the “Shares”). The Common Stock will be
issued to the Shareholders in the amounts set forth after their respective
names
in Schedule 3(a)IV to this Agreement.
(b)
Transfer
of Omphalos Shares by the Shareholders.
On and
subject to the conditions set forth in this Agreement, the Shareholders will
transfer to the Company all of the Omphalos Shares in exchange for the Shares.
Each Shareholder holds the number of Omphalos Shares set forth after his or
her
name in Schedule 3(a)IV to this Agreement.
(c)
Closing.
The
issuance of the Shares to the Shareholders and the transfer of the Omphalos
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”).
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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
Shares, when issued pursuant to this Agreement, will be duly and
validly
authorized and issued, fully paid and non-assessable. The issuance
of the
Shares to Shareholders 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
or
under Regulation S.
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(vi)
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The
authorized capital stock of the Company consists of 120,000,000 shares
of
Common Stock, of which 8,195,000 shares are presently outstanding.
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 Section 12 of the Exchange Act
and it 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,
2006 and 2005 (collectively, the “Audited Financial Statements”) and
unaudited financial statements for the nine months ended September
30,
2007 and 2006 (collectively, the “Interim Financial Statements,” and,
together with the Audited Financial Statements, 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 Xxx Xxxxxxx, CPA (“Xxx Xxxxxxx”), and
the Interim Financial Statements have been reviewed by Jaspers+Hall,
PC
(“Jaspers”). 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.
Jaspers
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 September 30, 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 September 30,
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
September 30, 2007, except as set forth in the Company SEC Documents, 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 ten thousand dollars ($10,000)) 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.
(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
as set forth on Schedule 2(m), 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.
(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.
3.
Representations
and Warranties of Omphalos.
Omphalos hereby represents, warrants, covenants and agrees as
follows:
(a)
Organization
and Authority.
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(i)
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Omphalos
is a corporation duly organized, validly existing and in good standing
under the laws of the British Virgin Islands.
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(ii)
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Omphalos
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 Omphalos, 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 Omphalos for the consummation of the transactions contemplated
by this
Agreement has been taken.
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(iii)
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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 Omphalos 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 Omphalos 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 Omphalos.
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(iv)
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The
authorized and issued and outstanding capital stock of Omphalos are
as set
forth on Schedule 3(a)(iv) under the column "Omphalos Number of Shares."
Except as provided in, contemplated by, or set forth in this Agreement,
Omphalos has no outstanding or authorized warrants, options, other
rights
to purchase or otherwise acquire capital stock or any other Ompahalos
securities, preemptive rights, rights of first refusal, registration
rights or related commitments of any nature.
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(v)
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No
consent, approval or agreement of any person, party, court, governmental
authority, or entity is required to be obtained by Omphalos in connection
with the execution and performance by Omphalos of this Agreement
or the
execution and performance by Omphalos of any agreements, instruments
or
other obligations entered into in connection with this
Agreement.
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(b) Absence
of Changes.
Since
September 30, 2007, to the best of Omphalos’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
Omphalos, except changes in the ordinary course of business which
do not
and will not have a material adverse effect on
Omphalos;
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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
Omphalos (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 Omphalos
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 Omphalos to any of affiliate of Omphalos or any of
Omphalos’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
Omphalos;
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(vi)
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any
sale, transfer, or lease of any of Omphalos’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 Omphalos;
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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 Omphalos except in the ordinary course of business
and
that is not material to the assets or financial condition of Omphalos;
or
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(ix)
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any
agreement or commitment by Omphalos to do any of the things described
in
this Section 3(b)).
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(c)
Property.
Omphalos does not own any real estate and is not a party to any lease
agreement.
(d)
Taxes.
Omphalos has filed all applicable 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 Omphalos, and has paid or made
adequate provision in its financial statements 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. Omphalos is not delinquent or obligated
for any tax, penalty, interest, delinquency or charge.
(e)
No
Adverse Change.
Since
December 31, 2006, except for the restructuring of Omphalos and its
subsidiaries, there has not been any Material Adverse Change in the financial
condition of Omphalos.
(f)
No
Defaults.
Omphalos is not in violation of its certificate of incorporation or by-laws
or
any judgment, decree or order, applicable to it.
(g)
Litigation.
There
are no material (i.e., claims which, if adversely determined based on the
amounts claimed, would exceed ten thousand dollars ($10,000)) claims, actions,
suits, proceedings, inquiries, labor disputes or investigations (whether or
not
purportedly on behalf of Omphalos) pending or, to Omphalos’s knowledge,
threatened against Omphalos or any of its assets, at law or in equity or by
or
before any governmental entity or in arbitration or mediation.
(h)
Compliance
with Laws.
Omphalos, 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 Omphalos’s
knowledge, environmental, health and safety requirements).
4.
Representations
and Warranties of Shareholders.
Each
Shareholder hereby severally and not jointly warrants, covenants and agrees
as
follows:
(a)
Such Shareholder understands that the offer and sale of the Shares
is being made only by means of this Agreement and understands that the Company
has not authorized the use of, and the Shareholder confirms that he or she
is
not relying upon, any other information, written or oral, other than material
contained in this Agreement. Such Shareholder is aware that the purchase of
the
Shares involves a high degree of risk and that such Shareholder may sustain,
and
has the financial ability to sustain, the loss of his or her entire investment,
understands that no assurance can be given that the Company will be profitable
in the future, that there is no public market for the Common Stock, and the
Company can give no assurance that there will ever be a public market for the
Common Stock. Furthermore, in subscribing for the Shares, such Shareholder
acknowledges it is not relying upon any projections or any statements of any
kind relating to future revenue, earnings, operations or cash flow in making
an
investment in the Shares.
(b)
Such Shareholder severally represents to the Company that he or
she
(A) is
an
accredited investor within the meaning of Rule 501 of the Commission under
the
Securities Act of 1933, as amended (the “Securities Act”) and it understands the
meaning of the term “accredited investor.” The requirements for an accredited
investor are as set forth in Exhibit A. Such Shareholder further represents
that
he or she has such knowledge and experience in financial and business matters
as
to enable the Shareholder to understand the nature and extent of the risks
involved in purchasing the Shares. Such Shareholder is fully aware that such
investments can and sometimes do result in the loss of the entire investment.
Such Shareholder has engaged his or her own counsel and accountants to the
extent that the Shareholder deems it necessary; or
(B) is
not
acquiring the Shares for the account or benefit of, directly or indirectly,
any
U.S. Person. The Shareholder is not a U.S. Person. The Shareholder is acquiring
the Shares for investment only and not with a view to resale or distribution
and, in particular, it has no intention to distribute either directly or
indirectly any of the Shares in the United States or to U.S. Persons. The
Shareholder acknowledges that the Shareholder has not acquired the Shares as
a
result of, and will not itself engage in, any "directed selling efforts" (as
defined in Regulation S under the 0000 Xxx) in the United States in respect
of
the Shares which would include any activities undertaken for the purpose of,
or
that could reasonably be expected to have the effect of, conditioning the market
in the United States for the resale of the Shares; provided, however, that
the
Shareholder may sell or otherwise dispose of the Shares pursuant to registration
of the Shares pursuant to the 1933 Act and any applicable state and provincial
securities laws or under an exemption from such registration requirements and
as
otherwise provided.
(c)
All of the information provided by such Shareholder in his or her
Confidential Questionnaire is true and correct in all material
respects.
(d)
Such Shareholder is acquiring the Shares pursuant to this Agreement
for his or her own account, for investment and not with a view to the sale
or
distribution thereof, for the Shareholder’s own account and not on behalf of
others; has not granted any other person any interest or participation in or
right or option to purchase all or any portion of the Shares; is aware that
the
Shares are restricted securities within the meaning of Rule 144 of the
Commission under the Securities Act, and may not be sold or otherwise
transferred other than pursuant to an effective registration statement or an
exemption from registration; and understands and agrees that the certificates
for the Shares shall bear the Company’s standard investment legend. The
Shareholder understands the meaning of these restrictions.
(e)
The Shareholder will not transfer any Shares except in compliance
with all applicable federal and state securities laws and regulations, and,
in
such connection, the Company may request an opinion of counsel reasonably
acceptable to the Company as to the availability of any exemption.
(f)
Such Shareholder represents and warrants that no broker or finder
was involved directly or indirectly in connection with his or her purchase
of
the Shares pursuant to this Agreement. Such Shareholder shall indemnify the
Company and hold it harmless from and against any manner of loss, liability,
damage or expense, including fees and expenses of counsel, resulting from a
breach of the Shareholder’s warranty contained in this Paragraph
3(f).
(g)
Such Shareholder understands that he or she has no registration
rights with respect to the Shares.
(h)
Such Shareholder represents and warrants that the address set forth
on Schedule I to this Agreement is its true and correct address, and understands
that the Company will rely on this representation in making filings under state
securities or blue sky laws.
(i)
Such
Shareholder is the record and beneficial owner of the Omphalos Shares, free
and
clear of any and all Liens. Such Shareholder has the power and authority to
sell, transfer, assign and deliver the Omphalos Shares as provided in this
Agreement, and such delivery will convey to the Company good and marketable
title to such Omphalos Shares, free and clear of any and all liens
5.
Closing
Deliveries.
(a)
On
the Closing Date, the Company shall deliver or cause to be delivered to each
Shareholder:
(i)
a
certificate registered in the name of each Shareholder representing the number
of shares of Common Stock set forth on Schedule I;
(ii)
a
legal opinion of counsel to the Company acceptable to the
Shareholders;
(iii)
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)
the
certificate representing such Shareholder’s shares of Omphalos capital
stock.
6.
Conditions
to the Obligation of the Shareholders and the Company 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
$5,000.
(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 shall have tendered resignations. Sole director of the Company shall
have tendered his resignation, effective upon compliance with Section 14f:
Notice to Shareholders under the Securities Exchange Act of 1934.
(f) Appointments.
Existing Board of Directors shall have appointed a new director, Xxxxx Xxxx
effective at closing.
7.
Conditions
to the Obligation of the Company to Close.
The
obligations of the Company under this Agreement are subject to the satisfaction
of the following conditions unless waived by the Company:
(a)
Representations and Warranties.
On the
Closing Date, the representations and warranties of Omphalos and the
Shareholders 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
Omphalos 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 the Company shall have received a certificate of the Company to such
effect.
(b)
No
Material Adverse Change.
No
Material Adverse Change in the business or financial condition of Omphalos
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.
8.
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.
(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]
IN
WITNESS WHEREOF, the parties have executed this Share Exchange Agreement the
day
and year first above written.
SOYODO
GROUP HOLDINGS, INC.
By:
________________________________________
OMPHALOS
CORP.
By:
_________________________________________
Exhibit
A
Accredited
investors
A
Shareholder who meets any one of the following tests is an accredited
investor:
(a)
The Shareholder is an individual who has a net worth, or joint net worth
with the Shareholder’s spouse, of at least $1,000,000.
(b)
The Shareholder is an individual who had individual income of more than
$200,000 (or $300,000 jointly with the Shareholder’s spouse) for the past two
years, and the Shareholder has a reasonable expectation of having income of
at
least $200,000 (or $300,000 jointly with the Shareholder’s spouse) for the
current year.
(c)
The Shareholder is an officer or director of the Company.
(d)
The Shareholder 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 Shareholder is a broker or dealer registered pursuant to section 15
of the Securities Exchange Act of 1934.
(f)
The Shareholder is an insurance company as defined in section 2(13) of
the Securities
Act.
(g)
The Shareholder 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 Shareholder 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 Shareholder 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 Shareholder is a private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940.
(k)
The Shareholder 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 Shareholder 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 Shareholder 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 Shareholder qualifies as an accredited investor, such individual
may
purchase the Shares in the name of his or her individual retirement account
(“XXX”).
