AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT (the "Plan") is made this day of March, 1998,
between Achiote Corporation, a Delaware corporation ("Achiote"); Jehu Hand,
Esq., the principal stockholder and the sole director and executive officer of
Achiote ("Hand"); Graystone World Wide, Inc., a Nevada corporation
("Graystone"); and the person listed in Exhibit A hereof who is the owner of
record of all of the outstanding common stock of Graystone (the "Graystone
Stockholder").
Achiote wishes to acquire all of the outstanding common stock of
Graystone in exchange for common stock of Achiote in a transaction qualifying
as a tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended; and
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, IT IS AGREED:
Section 1
Exchange of Stock
1.1 Number of Shares. The Graystone Stockholder agrees to
transfer to Achiote at the closing (the "Closing") 100% of the outstanding
securities of Graystone, which are listed in Exhibit A hereof attached hereto
and incorporated herein by reference (the "Graystone Shares"), in exchange for
12,463,000 post-split shares (as outlined below in Section 1.5 hereof) of the
one mill ($0.001) par value "unregistered" and "restricted" common voting
stock of Achiote.
1.2 Delivery of Certificates by Graystone Stockholder. The
transfer of the Graystone Shares by the Graystone Stockholder shall be
effected by the delivery to Achiote at the Closing of stock certificate or
certificates representing the transferred shares duly endorsed in blank or
accompanied by stock powers executed in blank, with all signatures witnessed
or guaranteed to the satisfaction of Achiote and with all necessary transfer
taxes and other revenue stamps affixed and acquired at the Graystone
Stockholder's expense.
1.3 Further Assurances. At the Closing and from time to time
thereafter, the Graystone Stockholder shall execute such additional
instruments and take such other action as Achiote may request in order to
exchange and transfer clear title and ownership in the Graystone Shares to
Achiote.
1.4 Resignation of Present Sole Director and Executive Officer
and Designation of New Directors and Executive Officers. On Closing, the sole
present director and executive officer of Achiote, Jehu Hand, Esq., shall
resign and designate the directors and executive officers nominated by
Graystone to serve in his place and stead, until the next respective annual
meetings of the stockholders and Board of Directors of Achiote, and until
their respective successors shall be elected and qualified or until their
respective prior resignations or terminations.
1.5 Amendment of Charter. The Closing shall be subject to the
Certificate of Incorporation of Achiote being amended to effect a forward
split of its 580,100 currently outstanding shares of common stock on a basis
of two for one (resulting in there being approximately 1,160,200 outstanding
post-split shares [depending upon rounding]), while retaining the present
authorized capital, shares and par value, with appropriate adjustments in the
stated capital and capital surplus accounts of Achiote, and to change the name
of Achiote to "Graystone World Wide, Inc."
1.6 Assets and Liabilities of Achiote at Closing. Achiote shall
have no material assets and no liabilities at Closing, and all costs incurred
by Achiote incident to the Plan shall have been paid or satisfied.
1.7 Funding. At or within a reasonable time of Closing, Achiote
shall use its "best efforts" to raise approximately $500,000 in net proceeds
for the benefit of the reorganized Achiote by the sale of approximately
112,000 "unregistered" and "restricted" shares of its post-split common stock
to certain "accredited investors" in consideration of the sum of $5.00 per
share (which includes payment of approximately $60,000 in expenses incident to
this limited offering), subject to adjustment in the number of shares to be
issued as follows: the shares shall be issued at the lesser of $5.00 or 50% of
the average bid price of all "market makers" for shares of common stock of the
reorganized Achiote on the OTC Bulletin Board of the NASD, for a period of 30
days following the initial quotation of shares of common stock of Achiote on
the OTC Bulletin Board.
1.8 Issuance of Additional Shares. The Company hereby adopts
the written compensation agreement of Graystone providing for the issuance of
20 and 6 shares, respectively, of Graystone, to Messrs. Xxxxxxx and
Xxxxxxxxxx, pursuant to Rule 701 of the Securities and Exchange Commission,
and agrees to issue shares of common stock of the Company in lieu thereof, in
the same ratio as being issued to the Graystone Stockholder, or 249,260 and
74,778 shares, respectively; and; the "unregistered" and "restricted" post-
split shares of common stock of the Company outlined in Section 8.3 hereof
shall also be issued simultaneous with the Closing.
Section 2
Closing
The Closing contemplated by Section 1.1 shall be held at the
offices of Xxxxxxx X. Xxxxxxxxxx, Esq., Suite 205 Hermes Building, 000 Xxxx
000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, unless another place or time is agreed
upon in writing by the parties. The Closing may be accomplished by wire,
express mail or other courier service, conference telephone communications or
as otherwise agreed by the respective parties or their duly authorized
representatives.
Section 3
Representations and Warranties of Achiote and Hand
Achiote and Hand represent and warrant to, and covenant with, the
Graystone Stockholder and Graystone as follows:
3.1 Corporate Status. Achiote is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is licensed or qualified as a foreign corporation in all states in which
the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary (Delaware only.) Achiote is a
publicly held company, having previously and lawfully offered and sold a
portion of its securities in accordance with applicable federal and state
securities laws, rules and regulations. There is presently no public market
for these or any other securities of Achiote.
3.2 Capitalization. The authorized capital stock of Achiote
consists of 20,000,000 shares of one mill ($0.001) par value common voting
stock, of which 580,100 shares are issued and outstanding, all fully paid and
non-assessable; and 1,000,000 shares of one mill ($0.001) par value preferred
stock, of which no shares are issued and outstanding. There are no outstanding
options, warrants or calls pursuant to which any person has the right to
purchase any authorized and unissued common stock of Achiote.
3.3 Financial Statements. The financial statements of Achiote
furnished to the Graystone Stockholder and Graystone, consisting of financial
statements for the periods ended March 31, 1997, 1996 and 1995, attached
hereto as Exhibit B and incorporated herein by reference, and unaudited
financial statements for the period ended December 31, 1997, attached hereto
as Exhibit B-1 and incorporated herein by reference, are correct and fairly
present the financial condition of Achiote at such dates and for the periods
involved; such statements were prepared in accordance with generally accepted
accounting principles consistently applied, and no material change has
occurred in the matters disclosed therein, except as indicated in Exhibit C,
which is attached hereto and incorporated herein by reference. Such financial
statements do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
3.4 Undisclosed Liabilities. Achiote has no liabilities of any
nature except to the extent reflected or reserved against in its balance
sheets, whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit C.
3.5 Interim Changes. Since the date of its balance sheets,
except as set forth in Exhibit C, there have been no (1) changes in financial
condition, assets, liabilities or business of Achiote which, in the aggregate,
have been materially adverse; (2) damages, destruction or losses of or to
property of Achiote, payments of any dividend or other distribution in respect
of any class of stock of Achiote, or any direct or indirect redemption,
purchase or other acquisition of any class of any such stock; or (3) increases
paid or agreed to in the compensation, retirement benefits or other
commitments to employees.
3.6 Title to Property. Achiote has good and marketable title to
all properties and assets, real and personal, reflected in its balance sheets,
and the properties and assets of Achiote are subject to no mortgage, pledge,
lien or encumbrance, except for liens shown therein or in Exhibit C, with
respect to which no default exists.
3.7 Litigation. There is no litigation or proceeding pending,
or to the knowledge of Achiote, threatened, against or relating to Achiote,
its properties or business, except as set forth in Exhibit C. Further, no
officer, director or person who may be deemed to be an affiliate of Achiote is
party to any material legal proceeding which could have an adverse effect on
Achiote (financial or otherwise), and none is party to any action or
proceeding wherein any has an interest adverse to Achiote.
3.8 Books and Records. From the date of this Plan to the
Closing, Achiote will (1) give to the Graystone Stockholder and Graystone or
their respective representatives full access during normal business hours to
all of its offices, books, records, contracts and other corporate documents
and properties so that the Graystone Stockholder and Graystone or their
respective representatives may inspect and audit them; and (2) furnish such
information concerning the properties and affairs of Achiote as the Graystone
Stockholder and Graystone or their respective representatives may reasonably
request.
3.9 Tax Returns. Achiote has filed all federal and state income
or franchise tax returns required to be filed or has received currently
effective extensions of the required filing dates.
3.10 Confidentiality. Until the Closing (and thereafter if there
is no Closing), Achiote and its representatives will keep confidential any
information which they obtain from the Graystone Stockholder or from Graystone
concerning the properties, assets and business of Graystone. If the
transactions contemplated by this Plan are not consummated by March 31, 1998,
Achiote will return to Graystone all written matter with respect to Graystone
obtained by Achiote in connection with the negotiation or consummation of this
Plan.
3.11 Investment Intent. Achiote is acquiring the Graystone
Shares to be transferred to it under this Plan for investment and not with a
view to the sale or distribution thereof, and Achiote has no commitment or
present intention to liquidate Graystone or to sell or otherwise dispose of
the Graystone Shares.
3.12 Corporate Authority. Achiote has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to the Graystone Stockholder and Graystone or their
respective representatives at the Closing a certified copy of resolutions of
its Board of Directors authorizing execution of this Plan by its officers and
performance thereunder, and the sole director adopting and delivering such
resolutions is the duly elected and incumbent director of Achiote.
3.13 Due Authorization. Execution of this Plan and performance
by Achiote hereunder have been duly authorized by all requisite corporate
action on the part of Achiote, and this Plan constitutes a valid and binding
obligation of Achiote and performance hereunder will not violate any provision
of the Articles of Incorporation, Bylaws, agreements, mortgages or other
commitments of Achiote.
3.14 Environmental Matters. Achiote has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of Achiote. In
addition, to the best knowledge of Achiote, there are no substances or
conditions which may support a claim or cause of action against Achiote or any
of its current or former officers, directors, agents or employees, whether by
a governmental agency or body, private party or individual, under any
Hazardous Materials Regulations. "Hazardous Materials" means any oil or
petrochemical products, PCB's, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, solid or hazardous wastes, chemicals, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," or "toxic substances" under any applicable
federal or state laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.15 Access to Information Regarding Graystone. Achiote
acknowledges that it has been delivered copies of what has been represented to
be documentation containing all material information respecting Graystone and
its present and contemplated business operations, potential acquisitions,
management and other factors; that it has had a reasonable opportunity to
review such documentation and discuss it, to the extent desired, with its
legal counsel, directors and executive officers; that it has had, to the
extent desired, the opportunity to ask questions of and receive responses from
the directors and executive officers of Graystone, and with the legal and
accounting firms of Graystone, with respect to such documentation; and that to
the extent requested, all questions raised have been answered to its complete
satisfaction.
Section 4
Representations, Warranties and Covenants of Graystone
and the Graystone Stockholder
Graystone and the Graystone Stockholder represent and warrant to,
and covenant with, Achiote as follows:
4.1 Graystone Shares. The Graystone Stockholder is the record
and beneficial owner of all of the Graystone Shares listed in Exhibit A, free
and clear of adverse claims of third parties; and Exhibit A correctly sets
forth the names, addresses and the number of Graystone Shares respectively
owned by the Graystone Stockholder.
4.2 Corporate Status. Graystone is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada and is licensed or qualified as a foreign corporation in all states
in which the nature of its business or the character or ownership of its
properties makes such licensing or qualification necessary.
4.3 Capitalization. The authorized capital stock of Graystone
consists of 50,000,000 shares of common voting stock, one mill ($0.001) par
value, of which 1,000 shares are issued and outstanding, all fully paid and
non-assessable. There are no outstanding options, warrants or calls pursuant
to which any person has the right to purchase any authorized and unissued
capital stock of Graystone.
4.4 Financial Statements. The financial statements of Graystone
furnished to Achiote, consisting of audited financial statements from the date
of inception (January 18, 1998) to January 31, 1998, attached hereto as
Exhibit D, and incorporated herein by reference, are correct and fairly
present the financial condition of Graystone as of these dates and for the
period involved, and such statements were prepared in accordance with
generally accepted accounting principles consistently applied. These
financial statements do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
4.5 Undisclosed Liabilities. Graystone has no material
liabilities of any nature except to the extent reflected or reserved against
in the balance sheet, whether accrued, absolute, contingent or otherwise,
including, without limitation, tax liabilities and interest due or to become
due, except as set forth in Exhibit E attached hereto and incorporated herein
by reference.
4.6 Interim Changes. Since the date of these balance sheet,
except as set forth in Exhibit E, there have been no (1) changes in the
financial condition, assets, liabilities or business of Graystone, in the
aggregate, have been materially adverse; (2) damages, destruction or loss of
or to the property of Graystone, payment of any dividend or other distribution
in respect of the capital stock of Graystone, or any direct or indirect
redemption, purchase or other acquisition of any such stock; or (3) increases
paid or agreed to in the compensation, retirement benefits or other
commitments to their employees.
4.7 Title to Property. Graystone has good and marketable title
to all properties and assets, real and personal, proprietary or otherwise,
reflected in these balance sheet, and the properties and assets of Graystone
are subject to no mortgage, pledge, lien or encumbrance, except as reflected
in the balance sheet or in Exhibit E, with respect to which no default exists.
4.8 Litigation. There is no litigation or proceeding pending,
or to the knowledge of Graystone, threatened, against or relating to Graystone
or its properties or business, except as set forth in Exhibit E. Further, no
officer, director or person who may be deemed to be an affiliate of Graystone
is party to any material legal proceeding which could have an adverse effect
on Graystone (financial or otherwise), and none is party to any action or
proceeding wherein any has an interest adverse to Graystone.
4.9 Books and Records. From the date of this Plan to the
Closing, the Graystone Stockholder will cause Graystone to (1) give to Achiote
and its representatives full access during normal business hours to all of its
offices, books, records, contracts and other corporate documents and
properties so that Achiote may inspect and audit them; and (2) furnish such
information concerning the properties and affairs of Graystone as Achiote may
reasonably request.
4.10 Tax Returns. Graystone has filed all federal and state
income or franchise tax returns required to be filed or has received currently
effective extensions of the required filing dates.
4.11 Confidentiality. Until the Closing (and continuously if
there is no Closing), Graystone, the Graystone Stockholder and their
representatives will keep confidential any information which they obtain from
Achiote concerning its properties, assets and business. If the transactions
contemplated by this Plan are not consummated by March 31, 1998, Graystone,
the Graystone Stockholder will return to Achiote all written matter with
respect to Achiote obtained by them in connection with the negotiation or
consummation of this Plan.
4.12 Investment Intent. The Graystone Stockholder are acquiring
the shares to be exchanged and delivered to them under this Plan for
investment and not with a view to the sale or distribution thereof, and the
Graystone Stockholder have no commitment or present intention to liquidate the
Company or to sell or otherwise dispose of the Achiote shares. The Graystone
Stockholder shall execute and deliver to Achiote on the Closing an Investment
Letter attached hereto as Exhibit F and incorporated herein by reference,
acknowledging the "unregistered" and "restricted" nature of the shares of
Achiote being received under the Plan in exchange for the Graystone Shares,
and receipt of certain material information regarding Achiote.
4.13 Corporate Authority. Graystone has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to Achiote or its representative at the Closing a certified
copy of resolutions of its Board of Directors authorizing execution of this
Plan by its officers and performance thereunder.
4.14 Due Authorization. Execution of this Plan and performance
by Graystone hereunder have been duly authorized by all requisite corporate
action on the part of Graystone, and this Plan constitutes a valid and binding
obligation of Graystone and performance hereunder will not violate any
provision of the Articles of Incorporation, Bylaws, agreements, mortgages or
other commitments of Graystone.
4.15 Environmental Matters. Graystone and the Graystone
Stockholder have no knowledge of any assertion by any governmental agency or
other regulatory authority of any environmental lien, action or proceeding, or
of any cause for any such lien, action or proceeding related to the business
operations of Graystone or its predecessors. In addition, to the best
knowledge of Graystone, there are no substances or conditions which may
support a claim or cause of action against Graystone or any of its current or
former officers, directors, agents, employees or predecessors, whether by a
governmental agency or body, private party or individual, under any Hazardous
Materials Regulations. "Hazardous Materials" means any oil or petrochemical
products, PCB's, asbestos, urea formaldehyde, flammable explosives,
radioactive materials, solid or hazardous wastes, chemicals, toxic substances
or related materials, including, without limitation, any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," or "toxic substances" under any applicable federal or
state laws or regulations. "Hazardous Materials Regulations" means any
regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
4.16 Access to Information Regarding Achiote. Graystone and the
Graystone Stockholder acknowledge that they have been delivered copies of what
has been represented to be documentation containing all material information
respecting Achiote and its present and contemplated business operations,
potential acquisitions, management and other factors; that they have had a
reasonable opportunity to review such documentation and discuss it, to the
extent desired, with their legal counsel, directors and executive officers;
that they have had, to the extent desired, the opportunity to ask questions of
and receive responses from the directors and executive officers of Achiote,
and with the legal and accounting firms of Achiote, with respect to such
documentation; and that to the extent requested, all questions raised have
been answered to their complete satisfaction.
Section 5
Conditions Precedent to Obligations of Graystone, the Graystone Stockholder
All obligations of Graystone and the Graystone Stockholder under
this Plan are subject, at their option, to the fulfillment, before or at the
Closing, of each of the following conditions:
5.1 Representations and Warranties True at Closing. The
representations and warranties of Achiote contained in this Plan shall be
deemed to have been made again at and as of the Closing and shall then be true
in all material respects and shall survive the Closing.
5.2 Due Performance. Achiote shall have performed and complied
with all of the terms and conditions required by this Plan to be performed or
complied with by it before the Closing.
5.3 Officers' Certificate. Graystone and the Graystone
Stockholder shall have been furnished with a certificate signed by the
President of Achiote, in such capacity and personally, attached hereto as
Exhibit G and incorporated herein by reference, dated as of the Closing,
certifying (1) that all representations and warranties of Achiote contained
herein are true and correct; and (2) that since the date of the financial
statements (Exhibit B and B-1 hereto), there has been no material adverse
change in the financial condition, business or properties of Achiote, taken as
a whole.
5.4 Opinion of Counsel of Achiote. Graystone and the Graystone
Stockholder shall have received an opinion of counsel for Achiote, dated as of
the Closing, to the effect that (1) the representations of Sections 3.1, 3.2
and 3.12 are correct; (2) except as specified in the opinion, counsel knows of
no inaccuracy in the representations in 3.5, 3.6 or 3.7; and (3) the shares of
Achiote to be issued to the Graystone Stockholder under this Plan will, when
so issued, be validly issued, fully paid and non-assessable.
5.5 Assets and Liabilities of Achiote. Achiote shall have no
material assets and no liabilities at Closing, and all costs, expenses and
fees incident to the Plan shall have been paid.
5.6 Resignation of Sole Director and Executive Officer and
Designation of New Directors and Executive Officers. The present sole
director and executive officer of Achiote shall resign, and shall have
designated nominees of Graystone as directors and executive officers of
Achiote to serve in their place and stead, until the next respective annual
meetings of the stockholders and Board of Directors of Achiote, and until
their respective successors shall be elected and qualified or until their
respective prior resignations or terminations.
5.7 Forward Split and Name Change of Achiote. The requirements
of Section 1.5 hereof shall have been fully satisfied at Closing.
Section 6
Conditions Precedent to Obligations of Achiote
All obligations of Achiote under this Plan are subject, at its
option, to the fulfillment, before or at the Closing, of each of the following
conditions:
6.1 Representations and Warranties True at Closing. The
representations and warranties of Graystone and the Graystone Stockholder
contained in this Plan shall be deemed to have been made again at and as of
the Closing and shall then be true in all material respects and shall survive
the Closing.
6.2 Due Performance. Graystone and the Graystone Stockholder
shall have performed and complied with all of the terms and conditions
required by this Plan to be performed or complied with by them before the
Closing.
6.3 Officers' and Stockholders' Certificate. Achiote shall have
been furnished with a certificate signed by the President of Graystone,
attached hereto as Exhibit H and incorporated herein by reference, dated as of
the Closing, certifying (1) that all representations and warranties of
Graystone and the Graystone Stockholder contained herein are true and correct;
and (2) that since the date of the financial statements (Exhibit D), there has
been no material adverse change in the financial condition, business or
properties of Graystone, taken as a whole.
6.4 Opinion of Counsel of Graystone. Achiote shall have
received an opinion of counsel for Graystone, dated as of the Closing, to the
effect that (1) the representations of Sections 4.2, 4.3 and 4.13 are correct;
(2) except as specified in the opinion, counsel knows of no inaccuracy in the
representations in 4.6, 4.7 or 4.8; (3) the Graystone Shares to be delivered
to Achiote under this Plan will, when so delivered, have been validly issued,
fully paid and non-assessable.
6.5 Books and Records. The Graystone Stockholder or the Board
of Directors of Graystone shall have caused Graystone to make available all
books and records of Graystone, including minute books and stock transfer
records; provided, however, only to the extent requested in writing by Achiote
at Closing.
6.6 Acceptance by Graystone Stockholder. The terms of this Plan
shall have been accepted by the Graystone Stockholder who own not less than
50.1% of the outstanding Graystone Shares by their execution and delivery of a
copy of the Plan and related instruments.
Section 7
Termination
Prior to Closing, this Plan may be terminated (1) by mutual
consent in writing; (2) by either the sole director of Achiote or Graystone
and the Graystone Stockholder if there has been a material misrepresentation
or material breach of any warranty or covenant by the other party; or (3) by
either the sole director of Achiote or Graystone and the Graystone Stockholder
if the Closing shall not have taken place, unless adjourned to a later date by
mutual consent in writing, by the date fixed in Section 2.
Section 8
General Provisions
8.1 Further Assurances. At any time, and from time to time,
after the Closing, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to confirm
or perfect title to any property transferred hereunder or otherwise to carry
out the intent and purposes of this Plan.
8.2 Waiver. Any failure on the part of any party hereto to
comply with any of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
8.3 Brokers. Except for 734,762 post-split shares to be issued
as compensation for services rendered as outlined in Exhibit I attached hereto
and incorporated herein by reference, each party represents to the other
parties hereunder that no broker or finder has acted for it in connection with
this Plan, and agrees to indemnify and hold harmless the other parties against
any fee, loss or expense arising out of claims by brokers or finders employed
or alleged to have been employed by he/she/it.
8.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Achiote: 0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to: Jehu Hand, Esq.
Hand & Hand
Suite 200, The Pavilion
00000 Xxxx Xxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
If to Graystone: 0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
455 East 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Graystone
Stockholder: To the Addresses listed in
Exhibit A
8.5 Entire Agreement. This Plan constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
8.6 Headings. The section and subsection headings in this Plan
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Plan.
8.7 Governing Law. This Plan shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, except to
the extent pre-empted by federal law, in which event (and to that extent
only), federal law shall govern.
8.8 Assignment. This Plan shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided
however, that any assignment by any party of its rights under this Plan
without the prior written consent of the other parties shall be void.
8.9 Counterparts. This Plan may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Plan of Reorganization effective the day and year first above written.
ACHIOTE CORPORATION
Date: 3/20/98 By /s/ Jehu Hand, Esq, President
Date: 3/20/98 /s/ Jehu Hand, Esq.
GRAYSTONE WORLD WIDE, INC.
Date: 3/23/98 By /s/ Xxxxxx X. Xxxxxxx, President
GRAYSTONE STOCKHOLDER
Date: 3/23/98 /s/ Xxxxxx X. Xxxxxxx
EXHIBIT A
Number of Shares of
Number of Shares Achiote
Owned of to be
Name and Address Graystone Received in Exchange
Xxxxxx X. Xxxxxxx 1,000 12,463,000
0000 Xxxxxxx Xxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
EXHIBIT B
ACHIOTE CORPORATION
FINANCIAL STATEMENTS
FOR THE PERIODS ENDED
MARCH 31, 1997, 1996 AND 1995 (AUDITED)
Attached to the Registrant's 10-KSB Annual Report for the fiscal
year ended March 31, 1997.
EXHIBIT B-1
ACHIOTE CORPORATION
UNAUDITED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED DECEMBER 31, 1997
Attached to the Registrant's 10-QSB Quarterly report for the
quarter ended December 31, 1997.
EXHIBIT C
Jehu Hand, Esq. has exercised his convertible option to purchase
155,500 pre-split shares of common stock of the Company in consideration of
the sum of $801; and
Mr. Hand has also agreed to contribute to capital, at the Closing,
any amounts owed to him by the Company, for advances, services or otherwise.
EXHIBIT D
GRAYSTONE WORLD WIDE, INC.
FINANCIAL STATEMENTS
FOR THE PERIOD FROM INCEPTION (JANUARY 16, 1998)
TO JANUARY 31, 1998
See Item 7 of this Report.
EXHIBIT E
None.
EXHIBIT F
Achiote Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Re: Exchange of shares of Graystone World Wide, Inc., a
Nevada corporation ("Graystone"), for shares of
Achiote Corporation, a Delaware corporation ("Achiote"
or the "Company")
Dear Ladies and Gentlemen:
Pursuant to that certain Agreement and Plan of Reorganization (the
"Plan") between the undersigned, Graystone, the sole stockholder of Graystone
and Achiote, I acknowledge that I have approved this exchange; that I am aware
of all of the terms and conditions of the Plan; that I have received and
personally reviewed a copy of the Plan and any and all material documents
regarding the Company, including, but not limited to Articles of
Incorporation, Bylaws, minutes of meetings of directors and stockholders,
financial statements and reports filed with the Securities and Exchange
Commission during the past twelve months. I represent and warrant that no
director or officer of the Company or any associate of either has solicited
this exchange; that I am an "accredited investor" as that term is known under
the Rules and Regulations of the Securities and Exchange Commission (see
Exhibit "A" hereto); and/or, I represent and warrant that I have sufficient
knowledge and experience to understand the nature of the exchange and am fully
capable of bearing the economic risk of the loss of my entire cost basis.
I further understand that immediately prior to the completion of
the Plan, Achiote had little, if any assets, of any measurable value, and that
in actuality, the completion of the Plan and the exchange of my shares of
Graystone for shares of Achiote results in a decrease in the actual percentage
of ownership that my shares of Graystone represented in Graystone prior to the
completion of the Plan.
I understand that you have and will make books and records of your
Company available to me for my inspection in connection with the contemplated
exchange of my shares, options or warrants, and that I have been encouraged to
review the information and ask any questions I may have concerning the
information of any director or officer of the Company or of the legal and
accounting firms for the Company. I understand that the accountant for the
Company is Xxxxxxx Xxxx & Co., LC, Certified Public Accountants, 000 Xxxxx
Xxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Telephone 000-000-0000; and that
legal counsel for Achiote is Jehu Hand, Esq., Suite 200, The Pavilion, 00000
Xxxx Xxxxx Xxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxxxxx 00000, Telephone #(714) 489-
2400; Mr. Hand is also the sole director and executive officer of Achiote.
I also understand that I must bear the economic risk of ownership
of any of the Achiote shares, options or warrants for a long period of time,
the minimum of which will be one (1) year, as these shares are "unregistered"
shares and may not be sold unless any subsequent offer or sale is registered
with the United States Securities and Exchange Commission or otherwise exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Act"), or other applicable laws, rules and regulations.
I intend that you rely on all of my representations made herein
and those in the personal questionnaire (if applicable) I provided to
Graystone for use by Achiote as they are made to induce you to issue me the
shares of Achiote under the Plan, and I further represent (of my personal
knowledge or by virtue of my reliance on one or more personal
representatives), and agree as follows, to-wit:
1. That the shares being acquired are being received for
investment purposes and not with a view toward further distribution;
2. That I have a full and complete understanding of the phrase
"for investment purposes and not with a view toward further distribution";
3. That I understand the meaning of "unregistered" shares and
know that they are not freely tradeable;
4. That any stock certificate issued by you to me in connection
with the shares being acquired shall be imprinted with a legend restricting
the sale, assignment, hypothecation or other disposition unless it can be made
in accordance with applicable laws, rules and regulations;
5. I agree that the stock transfer records of your Company
shall reflect that I have requested the Company not to effect any transfer of
any stock certificate representing any of the shares being acquired unless I
shall first have obtained an opinion of legal counsel to the effect that the
shares may be sold in accordance with applicable laws, rules and regulations,
and I understand that any opinion must be from legal counsel satisfactory to
the Company and, regardless of any opinion, I understand that the exemption
covered by any opinion must in fact be applicable to the shares;
6. That I shall not sell, offer to sell, transfer, assign,
hypothecate or make any other disposition of any interest in the shares,
options or warrants being acquired except as may be pursuant to any applicable
laws, rules and regulations;
7. I fully understand that my shares which are being exchanged
for shares of the Company are "risk capital," and I am fully capable of
bearing the economic risks attendant to this investment, without
qualification; and
8. I also understand that without approval of counsel for
Achiote, all shares of Achiote to be issued and delivered to me in exchange
for my shares of Graystone shall be represented by one certificate only and
which such certificate shall be imprinted with the following legend or a
reasonable facsimile thereof on the front and reverse sides thereof:
The shares, options or warrants of stock represented
by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be
sold or otherwise transferred unless compliance with
the registration provisions of such Act has been made
or unless availability of an exemption from such
registration provisions has been established, or
unless sold pursuant to Rule 144 under the Act.
Any request for more than one stock certificate must be
accompanied by a letter signed by the requesting stockholder setting forth all
relevant facts relating to the request. Achiote will attempt to accommodate
any stockholders' request where Achiote views the request is made for valid
business or personal reasons so long as in the sole discretion of Achiote, the
granting of the request will not facilitate a "public" distribution of
unregistered shares of Achiote.
You are requested and instructed to issue a stock certificate as
follows, to-wit:
Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Dated this 23rd day of March, 1998.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxx
EXHIBIT G
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of Achiote Corporation, a Delaware
corporation ("Achiote"), represents and warrants the following as required by
the Agreement and Plan of Reorganization (the "Plan") between Achiote and
Graystone, a Nevada corporation ("Graystone"), and the sole stockholder of
Graystone (the "Graystone Stockholder"), to-wit:
1. That he is the President of Achiote and has been authorized
and empowered by its Board of Directors to execute and deliver this
Certificate to Graystone and the Graystone Stockholder;
2. Based upon his personal knowledge, information, belief and
opinions of counsel for Achiote regarding the Plan:
(i) All representations and warranties of Achiote
contained within the Plan are true and correct;
(ii) Achiote has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of Achiote as set forth in its
financial statements for the periods ended March 31,
1997, 1996 and 1995, except as set forth in Exhibit C
to the Plan.
ACHIOTE CORPORATION
By /s/ Jehu Hand, Esq., President
/s/ Jehu Hand, Esq., Personally
EXHIBIT H
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of Graystone World Wide, Inc., a
Nevada corporation ("Graystone"), represents and warrants the following as
required by the Agreement and Plan of Reorganization (the "Plan") between
Graystone, its sole stockholder (the "Graystone Stockholder") and Achiote
Corporation, a Delaware corporation ("Achiote"), to-wit:
1. That he is the President of Graystone and has been
authorized and empowered by its Board of Directors to execute and deliver this
Certificate to Achiote;
2. Based on his personal knowledge, information, belief:
(i) All representations and warranties of Graystone
contained within the Plan are true and correct;
(ii) Graystone has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of Graystone as set forth in its
financial statements for the period from inception to
January 31, 1998, except as set forth in Exhibit E to
the Plan.
GRAYSTONE WORLD WIDE, INC.
By /s/ Xxxxxx X. Xxxxxxx, President
/s/ Xxxxxx X. Xxxxxxx, Personally
EXHIBIT I
Name of Consultant Number of "Unregistered" Post-Split Shares
Xxxxx Consulting Services, Inc. 353,000
Alliance Consulting, Inc. 381,762
Total: 734,762
