Exhibit 2.2
Stock Purchase Agreement dated as of December 6, 2001 between
Graham Energy of Nevada, Inc. and Silk Botanicals.Com, Inc.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of 6th December 2001 by
and between Silk Botanical.com, Inc. under the laws of the State of
Florida, hereinafter referred to as "First Party". First Party is
domiciled in and its principal office is at 975 S. Congress Avenue,
Suite 102, Delray Beach, Florida 3345*. The other contracting party
is Graham Energy, Inc. Graham Energy, Inc. is a Texas corporation
domiciled in Abilene, Texas and its address is 2482 Merchant, Abilene,
TX 79602. Graham Energy, Inc. will hereinafter be referred to as
"Second Party."
WHEREAS: Second Party is the owner of all of the issued and
outstanding shares of stock, which comprises fifteen million
(15,000,000) shares of common stock of Graham Energy of NV, Inc., a
Nevada corporation, hereinafter called "Graham Nevada." The fifteen
million (15,000,000) shares of common stock of Graham Nevada shall
hereinafter called, "the Graham Nevada Shares."
WHEREAS, Second Party wishes to sell to First Party First Party,
and First Party wishes to purchase from Second Party the Graham Nevada
Shares, and consideration of and in exchange for the issuance and
delivery by First Party to Second Party of four million (4,000,000)
shares of First Party's common stock, hereinafter called "the Subject
First Party Shares." The exchange will be on the terms and
conditions hereinafter set forth;
WHEREAS, it is the intention of the parties that the exchange of
stock herein provided for be treated as a Type "B" reorganization in
compliance with requirements of Section 368 of the Internal Revenue
Code of 1954, as amended;
WHEREAS, the transactions involving the offer and sale by First
Party to Second Party of the Subject First Party Shares are intended
to be in accordance with (1) the exemption of exemptions from
registration under the securities in Exchange Act of 1933, as amended,
hereinafter called "the Act," under Section 3 (b) and/or 4 (2) of the
Act and/or Regulation D, hereinafter called "Regulation D,"
promulgated there under by the United States Securities and Exchange
Commission, hereinafter called "the Commission," and/or Section 4
(6) of the Act; and, (2) the exemption from registration provided by
Section 90.530 (11) of Nevada Revised Statutes;
WHEREAS, the transactions involving the offer and sale by Second
Party to First Party of the Subject First Party Shares are intended to
be in accordance with (1) the exemption from registration under
Section 4(1) of the Act and (2) the exemption from registration
Exhibit 2.2 - Pg. 1
provided by Section 90.530 (1) of Nevada Revised Statutes; and,
NOW THEREFORE, the parties hereto, in consideration of the
promises and covenants hereinafter contained, hereby agree as follows:
1. Plan of Reorganization. It is the intention of the parties
hereto that all of the issued and outstanding capital stock of Graham
Nevada, being the Graham Nevada Shares, be acquired by First Party in
a tax free exchange solely for the Subject First Party Shares.
2. Exchange of Shares. The Graham Nevada Shares shall be
transferred to First Party in exchange for the Subject First Party
Shares, which shall be issued and delivered to Second Party at the
closing on the Closing Date (as hereinafter defined).
3. Representations of Second Party and Graham Nevada. Second
Party represents and warrants to First Party as follows:
a. Second Party is duly organized and shall be at
the time of the Closing Date or shortly
thereafter, validly existing under and pursuant
to the laws of the States of Texas with full
power to conduct the business in which they are
engaged.
b. This agreement has been duly authorized, executed
and delivered on behalf of Second Party, and is
enforceable in accordance with its terms; and
Second Party has full power and lawful authority
to sell the Graham Shares on the terms and
conditions herein set forth.
c. The consummation of the transactions contemplated
by this Agreement in compliance with the
provisions hereof will not result in any breach
of any of the terms, conditions, or provisions of
or constitute a default under, or result in the
creation of any lien, charge, or encumbrance on
any property or asset of said Second Party
pursuant to any indenture, mortgage, deed of
trust, agreement, articles of incorporation,
bylaws, contract, or any other instrument to
which Second Party is a party or to which Second
Party may be bound.
d. Second Party is the sole owner of the Graham
Nevada Shares appearing of record in its name and
of all of the outstanding shares, whether common
or preferred, of Graham Nevada. - The Graham
Exhibit 2.2. - Pg. 2
Nevada Shares are free from claims, liens, or
other encumbrances and Graham Nevada has the
unqualified right to the transfer the Graham
Nevada Shares. The Graham Nevada Shares
constitute all of validly issued shares of stock
of Graham Nevada and are fully paid and non-
assessable.
4. Second Party and Graham Nevada represent and warrant to
First Party as follows:
4.1 Due Organization; Capitalization and Articles, Bylaws
and Records.
Graham Nevada is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Nevada and has the full corporate power and authority to
own its properties, carry on its business as it is now or
will be conducted and perform its obligations under all
Contracts (as herein defined), and is duly qualified to do
business as a foreign corporation in the jurisdictions
specified in Part e.1 of the Disclosure Schedule
("Disclosure Schedule" shall mean the schedule (dated as of
the date of the Agreement) attached hereto as Exhibit "B"
which is attached to the Agreement and incorporated in the
Agreement by reference), which constitutes all the
jurisdictions in which Company conducts any business. The
authorized capital stock of Company consists of fifteen
million (15,000,000) shares of Common Stock, $0.0001par
value per share, of which fifteen million (15,000,000)
shares are outstanding, free and clear of all liens,
encumbrances, security agreements options, claims, charges
and restrictions, all of which outstanding shares are
validly issued, fully paid and non-assessable. There are
no shares of Graham Nevada's capital stock held in its
treasury. There are no options, warrants, rights,
shareholder agreements or other instruments or agreements
outstanding giving any person the right to acquire any
shares of capital stock of Graham Nevada, nor are there any
commitments to issue or execute any such options, warrants,
rights, shareholder agreements or other instruments or
agreements. There are no outstanding stock appreciation
rights or similar rights measured with respect to any of
Graham Nevada's capital stock, nor are there any
instruments, or agreements giving anyone the right to
acquire any such rights. The minute books and stock records
of Graham Nevada are complete and accurate and all
signatures included therein are the genuine signatures of
the persons indicated as signing. True, correct and
complete copies of Graham Nevada's minute books and stock
Exhibit 2.2 - Pg. 3
records, including Graham Nevada's Articles of
Incorporation and Bylaws and all amendments to both, have
been delivered to the Company. Graham Nevada is not in
default under or in violation of any provision of its
Articles of Incorporation or its Bylaws. The books of
account, stock records, minute books and other records of
Graham Nevada are accurate, up-to-date and complete, and
have been maintained in accordance with sound and prudent
business practices.
4.2 Authorities; Binding Nature of Agreements.
4.2.1 Graham Nevada has the absolute and unrestricted right,
power and authority to enter into and to perform its
obligations under this Agreement and all other agreements,
certificates and instruments contemplated to be executed
and delivered by Graham Nevada in connection with this
Agreement, and the execution, delivery and performance by
Graham Nevada of this Agreement and such other agreements,
certificates and instruments have been duly authorized by
all necessary action on the part of Graham Nevada and its
shareholders, Board of Directors and officers. Each of this
Agreement and such other agreements, certificates and
instruments constitutes, or upon execution and delivery
will constitute, the legal, valid and binding obligation of
Graham Nevada, enforceable against Graham Nevada in
accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar laws affecting
creditors rights.
4.3 Non-Contravention; Consents. To the best knowledge of
Company, neither the execution nor delivery of any of this
Agreement, nor the consummation or performance of any of
the transactions contemplated hereby, will directly or
indirectly (with or without notice or lapse of time):
4.3.1 Contravene, conflict with or result in a violation of
(i) any of the provisions of Graham Nevada's articles of
incorporation or Bylaws, or (ii) any resolution adopted by
Graham Nevada's shareholders, Graham Nevada's Board of
Directors or any committee of Graham Nevada's Board of
Directors;
4.3.2 Contravene, conflict with or result in a violation of,
or give any Governmental Body or other Person the right to
challenge any of the transactions contemplated hereby or to
exercise any remedy or obtain any relief under, any Legal
Exhibit 2.2 - Pg. 4
Requirement or any Order to which Graham Nevada, or any of
the assets owned or used by Graham Nevada, is subject;
4.3.3 Cause First Party to become subject to, or to become
liable for the payment of, any Tax;
4.3.4 Contravene, conflict with or result in a violation or
breach of, or result in a default under, any provision of
any of the Contracts;
4.3.5 Give any Person the right to (i) declare a default or
exercise any remedy under any Contract, (ii) accelerate the
maturity or performance of any Contract, or (iii) cancel,
terminate or modify any Contract;
4.3.6 Give any Person the right to any payment by Graham
Nevada or give rise to any acceleration or change in the
award, grant, vesting or determination of options, warrants,
rights, severance payments or other contingent obligations
of any nature whatsoever of Graham Nevada in favor of any
Person, in any such case as a result of the change in
control of Graham Nevada or otherwise resulting from the
transactions contemplated hereby;
4.4 Financial Statements.
4.4.1 Graham Nevada has delivered to the Company the
following financial statements and notes, which are included
in Part 2.4 of the Disclosure Schedule (collectively, the
"Financial Statements"):
(a) The audited balance sheets of
Graham Nevada as of September 30th, 2001 (the "Audited
Balance Sheet"), and related unaudited statements of
operations for the November month then ended; and
(b) The Financial Statements are
complete and correct, in accordance with the books and
records of Graham Nevada, present fairly and accurately the
financial position of Graham Nevada as of the respective
dates thereof and the results of operations and changes in
shareholder's equity and fund balance and cash flows of
Graham Nevada for the respective periods covered thereby,
and have been prepared in conformity with GAAP applied on a
consistent basis, subject, to normal recurring year-end
adjustments, the effect of which will not be material, and
the absence of notes.
Exhibit 2.2 - Pg. 5
4.5 Liabilities.
4.5.1 Graham Nevada has no Liabilities, except for:
(a) Liabilities reflected as part of the Audited
Balance Sheet;
(b) Liabilities (of the type required
to be reflected as current liabilities on a balance sheet
prepared in accordance with GAAP) incurred by Graham Nevada
in the ordinary course of business since September 30th,
2001, which are disclosed in Part 2.5 of the Disclosure
Schedule, none of which individually or in the aggregate had
or will have an material adverse effect on the business of
Graham Nevada or its property, assets, financial condition,
earnings, profits or prospects; and
(c) Graham Nevada's obligations under
the Contracts listed in Part e.5 of the Disclosure Schedule
and under Excluded Contracts.
4.5.2 Part e.5 of the Disclosure Schedule:
(a) Provides an accurate and complete
breakdown and aging of Graham Nevada's accounts payable as
of September 30th, 2001;
(b) Provides an accurate and complete
breakdown of Graham Nevada's long term debt (of which there
is none) as of the date of this Agreement; and
(c) Accurately identifies, and
provides an accurate and complete breakdown of the amounts
paid to, each supplier or other Person that received more
than $5,000 from Graham Nevada from September 30th, 2000
through September 30th, 2001. Except as disclosed in
Part 2.5 of the Disclosure Schedule, Graham Nevada has no
notice of or reason to believe that any of the suppliers
listed in this Part e.5 of the Disclosure Schedule will not
continue to be suppliers of Graham Nevada after the Closing.
4.6 Absence of Changes.
4.6.1 Except as set forth in Part e.6 of the Disclosure
Schedule since September 30th, 2001:
(a) Their Nevada's knowledge, there
has not been any material adverse effect in Graham Nevada's
business, condition, assets, liabilities, operations,
financial performance, results of operations or prospects,
and to Graham Nevada's knowledge, no event has occurred
Exhibit 2.2 - Pg. 6
that likely would have an adverse effect on Graham Nevada's
business, condition, assets, liabilities, operations,
financial performance, results of operations or prospects;
(b) To the best of their knowledge,
Graham Nevada has not entered into any transaction of any
kind or taken any other action outside the ordinary course
of business;
(c) To the best of their knowledge,
Graham Nevada has not implemented any change affecting the
banking and safe deposit arrangements or powers of attorney
or grants of agency in effect for Graham Nevada, any new
bank accounts or safe deposit boxes opened for Graham
Nevada, or any new powers of attorney or grants of agency
executed or made by Graham Nevada;
(d) To the best of their knowledge,
Graham Nevada has not failed to perform any of its
obligations in any material respect or suffering or
permitting any default to exist under, or receipt of a
notice of termination, breach or default with respect to any
contract to which any of them is a party or by which it or
any of its property may be bound or affected;
(e) To the best of their knowledge,
Graham Nevada has not transferred or granted any rights in
or entered into any settlement regarding its proprietary
assets;
(f) To the best of their knowledge,
Graham Nevada has used its best efforts to preserve its
business organization intact, to keep available the
services of its employees and to preserve its relationships
with its customers, suppliers and others with whom it
deals; and
(g) To the best of their knowledge,
Graham Nevada has not agreed or committed (in writing or
otherwise), to take any of the actions referred to in
clauses "c" through "f" above.
4.7.7 Real Estate.
4.7.1 To the best of their knowledge, Graham Nevada has no
right, title or interest in, or any obligation or duty
relating to, any real estate or real property, except for
its interest as a tenant, lessee, subtenant or sub lessee
under the leases disclosed on Part 2.7 of the Disclosure
Schedule (the "Leases");
Exhibit 2.2 - Pg. 7
4.7.2 (1) All written and oral leases or subleases
(collectively, the "Leases") of the Leased Properties are
disclosed on Part 2.7 of the Disclosure Schedule, including
for each its date, the name of the landlord (and owner if
different than the landlord), the name of the lessee and
any sub lessee, the location and use of the property, the
monthly base rental payment, any scheduled or formula
increases in base rent, a description of any provisions for
tax or expense pass-through, the amount of any security
deposit, the lease expiration date, all options to renew
and whether there are any non-disturbance agreements from
mortgagees or paramount lessors; (2) Graham Texas has
delivered to Graham Energy of NV, Inc. true and complete
copies of all Leases, all amendments and supplements
thereto and all such non-disturbance agreements; (3) Graham
Nevada is not in material default under any Lease, and no
event has occurred which, with the giving of notice or
passage of time or both, would constitute a material
default by Graham Nevada; and (4) neither the execution or
performance of this Agreement nor the consummation of any
of the transactions contemplated herein will result in a
breach of or constitute a default under any of the Leases.
4.8 Title to Assets. Except as set forth in Part e.8 of
the Disclosure Schedule, to the best of their knowledge,
Graham Nevada owns, free and clear of Encumbrances:
4.8.1 All assets reflected on the Audited Balance Sheet
(except for inventory sold by Graham Nevada since September
30th, 2001, in the ordinary course of business);
4.8.2 All assets acquired by Graham Nevada since August 31,
2001 (except for inventory sold by Graham Nevada since
August 31, 2001, in the ordinary course of business);
4.8.3 All assets referred to in Parts 4.9 and 4.10 of the
Disclosure Schedule and all of Graham Nevada's rights under
Contracts; and
4.8.4 All other assets reflected in Graham Nevada's books and
records as being owned by Graham Nevada.
4.9 Receivables.
4.9.1 To the best of their knowledge, Part 4.9 of the
Disclosure Schedule provides an accurate and complete
breakdown and aging of all accounts and notes receivable and
Exhibit 2.2 - Pg. 8
a list of all other receivables of Graham Nevada as of
_________, 2001;
4.9.1 Except as set forth in Part 4.9 of the Disclosure
Schedule, all existing accounts receivable of Graham Nevada
(including those accounts receivable reflected on the un-
audited Interim Balance Sheet that have not yet been
collected and those accounts receivable that have arisen
since September 30th, 2001, and have not yet been
collected):
(a) Represent valid obligations of
customers of Graham Nevada arising from bona fide
transactions entered into in the ordinary course of
business;
(b) Are current and where known
collection problems exist, such problems have been
disclosed;
4.10 Equipment, etc.
4.10.1 Part 4.10 of the Disclosure Schedule consists of
Graham Nevada's capital equipment and depreciation
schedule, which describes historical cost and depreciation
information with respect to all of Graham Nevada's capital
equipment, furniture, fixtures, improvements and other
tangible personal property. Part 4.10 also accurately
identifies all material tangible personal property leased
to Graham Nevada;
4.10.2 Each material asset of Graham Nevada:
(a) Is free of defects and
deficiencies and in good condition and repair, consistent
with its age and intended use (ordinary wear and tear
excepted);
(b) Complies in all material
respects and, to Graham Nevada's and each Shareholder's
Knowledge, is being operated and otherwise used in full
compliance with all applicable Legal Requirements;
(c) Is adequate for the uses to
which it is being put;
(d) Is adequate for the conduct of
Graham Nevada's business in the manner in which such
business is currently being conducted;
Exhibit 2.2 - Pg. 9
(e) Has been maintained in
accordance with reasonable maintenance schedules;
(f) Is owned by Graham Nevada free
and clear of any Encumbrance; and
(g) Is located at Graham Nevada's
principal operations office.
4.11 Tax Matters.
4.11.1 , To the best of their knowledge, except as set
forth in Part 4.11 of the Disclosure Schedule, each Tax
required to have been paid, or claimed by any Governmental
Body to be payable by Graham Nevada (whether pursuant to
any Tax Return or otherwise) has been duly paid in full on
a timely basis. Any Tax required to have been withheld or
collected by Graham Nevada has been duly withheld and
collected, and (to the extent required) each such Tax has
been paid to the appropriate Governmental Body;
4.11.2 To the best of their knowledge, Part 4.11 of the
Disclosure Schedule accurately identifies all Tax Returns
required to be filed by or on behalf of Graham Nevada with
any Governmental Body with respect to any taxable period
ending on or before the Closing Date ("Graham Nevada
Returns"). All Graham Nevada Returns (including monthly
payroll returns) (i) have been or will be filed when due,
and (ii) have been, or will be when filed, accurately and
completely prepared in full compliance with all applicable
Legal Requirements. All amounts shown on Graham Nevada
Returns to be due on or before the Closing Date, and all
amounts otherwise payable in connection with Graham Nevada
Returns on or before the Closing Date, have been or will be
paid on or before the Closing Date. Graham Nevada has
delivered to the Company accurate and complete copies of
Graham Nevada Returns (other than monthly payroll returns)
filed by Graham Nevada;
4.11.3 To the best of their knowledge, except as
disclosed in Part 4.11 of the Disclosure Schedule, Graham
Nevada's liability for unpaid Taxes for all periods ending
on or before the date of the Unaudited Interim Balance
Sheet does not, in the aggregate, exceed the amount of the
current liability accruals for Taxes (excluding reserves
for deferred taxes) reported in the Audited Balance Sheet;
4.11.4 To the best of their knowledge, Part 4.11 of the
Disclosure Schedule accurately identifies each examination
or audit of any Graham Nevada Return that has been
Exhibit 2.2 - Pg. 10
conducted by any Governmental Body. Graham Nevada has
delivered to the Company accurate and complete copies of
all audit reports and similar documents (to which Graham
Nevada has access) relating to Graham Nevada Returns.
Except as set forth in Part 4.11 of the Disclosure
Schedule, no extension or waiver of the limitation period
applicable to any of Graham Nevada Returns has been granted
(by Graham Nevada or any other Person), and no such
extension or waiver has been requested from Graham Nevada;
4.11.5 To the best of their knowledge, except as set
forth in Part 4.14 of the Disclosure Schedule, no claim or
other Proceeding is pending or has been threatened against
or with respect to Graham Nevada in respect of any Tax.
There are no unsatisfied Liabilities for Taxes (including
liabilities for interest, additions to tax and penalties
thereon and related expenses) with respect to any notice of
deficiency or similar document received by the Selling
Shareholder or Graham Nevada. Graham Nevada has not entered
into or become bound by any agreement or consent pursuant
to Sec. 341(f) of the Internal Revenue Code of 1986, as
amended (the "Code"). Graham Nevada has not been, and will
not be, required to include any adjustment in taxable
income for any tax period (or portion thereof) pursuant to
Sec. 481 or 263A of the Code or any comparable provision under
state or foreign Tax laws as a result of transactions or
events occurring, or accounting methods employed, prior to
the Closing;
4.11.6 To the best of their knowledge, there is no
agreement, plan, arrangement or other Contract covering any
employee or independent contractor or former employee or
independent contractor of Graham Nevada that, individually
or collectively, could give rise directly or indirectly to
the payment of any amount that would not be deductible
pursuant to Sec. 280G or Sec. 162 of the Code;
4.11.7 To the best of their knowledge, Graham Nevada is
not, and has never been, a party to or bound by any tax
indemnity agreement, tax sharing agreement, tax allocation
agreement or similar Contract;
4.11.8 To the best of their knowledge, Graham Nevada is
not a United States real property holding corporation
within the meaning of Sec. 897(c)(2) of the Code and has not
been a United States real property holding corporation
within the applicable period specified in Sec. 897(c)(1)(A)(ii)
of the Code;
Exhibit 2.2 - Pg. 11
4.11.9 To the best of their knowledge, except as set
forth in Part 4.11 of the Disclosure Schedule (Graham
Nevada's Audited Financial Statements as of September 30th,
2001) , Graham Nevada has no net operating losses or other
tax attributes presently subject to limitation under Code
Secs. 382, 383 or 384 or the federal consolidated return
regulations;
4.11.10 To the best of their knowledge, all Taxes
required to be withheld from employees, deemed employees or
other persons up to and through the Closing Date will have
been withheld and timely deposited prior to the Closing;
4.11.11 To the best of their knowledge, the requirements
of Sec. 274 of the Code (disallowance of certain entertainment
and similar expenses) have been complied with in all
material respects;
4.11.12 To the best of their knowledge, no non-deductible
expenses have been deducted on the federal income Tax Return
for any year open to audit by the Internal Revenue Service;
4.11.13 To the best of their knowledge, except as set
forth in Part 4.11 of the Disclosure Schedule, no Internal
Revenue Service or state, county or local tax audit is
currently in progress;
4.11.13 To the best of their knowledge, Graham Nevada is
not a party to any safe harbor lease within the meaning of
Sec. 168(f)(8) of the Code, as in effect prior to amendment by
the Tax Equity and Fiscal Responsibility Act of 1982.
Graham Nevada has not participated in an international
boycott as defined in Code Sec. 999. Graham Nevada does not
have a permanent establishment in any foreign country, as
defined in any applicable Tax treaty or convention between
the United States of America and such foreign country, and
Graham Nevada is not a party to any joint venture,
partnership or other agreement, contract or arrangement
(either in writing or verbally, formally or informally)
which could be treated as a partnership for federal income
tax purposes;
4.12 Contracts.
4.12.1 To the best of their knowledge, part 4.12 of the
Disclosure Schedule identifies each material Contract (the
"Contracts"). Except as identified in Part 2.15 of the
Disclosure Schedule, all material Contracts are in writing.
Graham Nevada has delivered to Graham Nevada accurate and
complete copies of all written material Contracts identified
in Part 4.12 of the Disclosure Schedule, including all
amendments thereto;
Exhibit 2.2 - Pg. 12
4.12.2 To the best of their knowledge, each Contract is
valid and in full force and effect, and is enforceable by
Graham Nevada in accordance with its terms;
4.12.3 To the best of their knowledge, except as set
forth in Part 4.11 of the Disclosure Schedule:
(a) No person acting for Graham
Nevada has violated or breached, or declared or committed
any default under, any Contract;
(b) No event has occurred, and no
circumstance or condition exists, that likely would (with or
without notice or lapse of time) (A) result in a violation
or breach of any of the provisions of any Contract, (B) give
any Person the right to declare a default or exercise any
remedy or hinder any Contract, (C) give any Person the right
to accelerate the maturity or performance of any Contract,
or (D) give any Person the right to cancel, terminate or
modify any Contract;
(c) Graham Nevada has not waived any
of its rights under any Contract.
4.12.4 To the best of their knowledge, each Person
against which Graham Nevada has or may acquire any rights
under any Contract is solvent and is able to satisfy all of
such Person's current and future monetary obligations and
other obligations and Liabilities to Graham Nevada;
4.12.5 To the best of their knowledge, except as set
forth in Part 4.12 of the Disclosure Schedule:
(a) Graham Nevada has never
guaranteed or otherwise agreed to cause, insure or become
liable for, and has never pledged any of its assets to
secure, the performance or payment of any obligation or
other Liability of any other Person except in the ordinary
course of business; and
(b) Graham Nevada has never been a
party to or bound by (A) any joint venture agreement,
partnership agreement, profit sharing agreement, cost
sharing agreement, loss sharing agreement or similar
Contract, or (B) any Contract that creates or grants to any
Person, or provides for the creation or grant of, any stock
appreciation right, phantom stock right or similar right or
interest.
Exhibit 2.2 - Page 13
4.12.6 To the best of their knowledge, the performance
of the Contracts will not result in any violation of or
failure to comply with any Legal Requirement;
4.12.7 To the best of their knowledge, except as
identified in Part 4.12 of the Disclosure Schedule, no
Person is materially renegotiating, or has the contractual
right to materially renegotiate, any amount paid or payable
to Graham Nevada under any Contract or any other term or
provision of any Contract;
4.12.8 To the best of their knowledge, the Contracts
identified in Part 4.12 of the Disclosure Schedule and the
Excluded Contracts collectively constitute all of the
Contracts necessary to enable Graham Nevada to conduct its
business in the manner in which its business is currently
being conducted and in the manner in which its business is
proposed to be conducted;
4.12.9 To the best of their knowledge, except as set
forth in Part 4.12 of the Disclosure Schedule: (i) the
Contracts of Graham Nevada, including but not limited to
those described in Part 4.12 of the Disclosure Schedule, are
legally valid, binding and enforceable agreements of Graham
Nevada, except as enforceability may be limited by
bankruptcy and other similar laws affecting creditors
rights, and, to the Knowledge of Graham Nevada and each
Shareholder, the other parties thereto; Graham Nevada is not
and, to the Knowledge of Graham Nevada and each Shareholder,
no other party to any such Contract is in violation of or in
default under such Contracts and no event or circumstances
have occurred which constitute, or after notice or lapse of
time or both would constitute, a violation or default there
under on the part of Graham Nevada or, to the Knowledge of
Graham Nevada, any other party thereto or result in a right
to accelerate or loss of rights; and such Contracts will
continue to be binding in accordance with their terms after
the Closing, assuming any Consents listed in Part 4.12 of
the Disclosure Schedule are obtained; (ii) Graham Nevada has
fulfilled all obligations required pursuant to each Contract
to have been performed by it, and Graham Nevada has no
reason to believe that Graham Nevada will not be able to
fulfill all of its obligations under the Contracts which
remain to be performed after the date hereof, and (iii) none
of the payments required to be made under any Contract has
been prepaid by more than 30 days prior to the due date of
such payment there under and the estimated cost to complete
any Contract of Graham Nevada, plus expenses incurred by
them on that Contract, will not exceed the total Contract
price.
Exhibit 2.2 - Pg. 14
4.13 Proprietary Assets.
4.13.1 Attached as Part 4.13 of the Disclosure Schedule
is (i) a description of all Proprietary Assets owned by,
licensed to or used in the business of Graham Nevada
together with a designation of ownership, and (ii) a listing
of all agreements or arrangements which affect the ownership
or use of any Proprietary Asset. Except as set forth in
Part 4.13 of the Disclosure Schedules, Graham Nevada is, or
upon consummation of the transactions contemplated hereby
will be, the owner of all right, title and interest in and
to each such Proprietary Asset free and clear of all
Encumbrances or has the right to use, free and clear of
royalties (other than any as identified in the audited
accounts) or any claims or rights of others, such
Proprietary Assets;
4.13.2 To the best of their knowledge, Graham Nevada has
taken all measures and precautions necessary to protect the
confidentiality and value of each Proprietary Asset
identified or required to be identified in Part 4.13 of the
Disclosure Schedule;
4.13.3 To the best of their knowledge, Graham Nevada is
not infringing, and has not at any time infringed or
received any notice or other communication (in writing or
otherwise) of any actual, alleged, possible or potential
infringement of, any Proprietary Asset owned or used by any
other Person. To the best Knowledge of Graham Nevada and
each Shareholder, no other Person is infringing, and no
Proprietary Asset owned or used by any other Person
infringes or conflicts with, any Proprietary Asset owned or
used by Graham Nevada;
4.13.4 To the best of their knowledge, the Proprietary
Assets identified in Part 4.13 of the Disclosure Schedule
constitute all of the Proprietary Assets necessary to enable
Graham Nevada to conduct its business in the manner in which
its business is currently being conducted;
4.13.5 To the best of their knowledge, Graham Nevada has
not licensed or sublicensed any party to use any of the
Proprietary Assets;
4.13.6 To the best of their knowledge, there are no
Orders pending against or affecting the Proprietary Assets;
4.13.7 To the best of their knowledge, there is no
unexpired valid patent on products or processes that Graham
Exhibit 2.2 - Pg. 15
Nevada uses in manufacturing its products that Graham Nevada
is not entitled to use;
4.13,8 To the best of their knowledge, neither the
Selling Shareholder nor any officer, director or employee of
Graham Nevada or, to the Knowledge of Graham Nevada or any
Shareholder, any third party has an interest in any of the
Proprietary Assets;
4.13.9 To the best of their knowledge, there is no
governmental restriction or limitation, domestic or foreign,
excepting regulation by the Texas Railroad Commission on the
manner in which any of the Proprietary Assets may be used.
4.14 Proceedings; Orders.
4.14.1 To the best of their knowledge, except as set
forth in Part 4.14 of the Disclosure Schedule, there is no
pending Proceeding, and no Person has threatened to commence
any Proceeding:
(a) That involves Graham Nevada or
that otherwise relates to or likely would affect Graham
Nevada's business or any of the assets owned or used by
Graham Nevada (whether or not Graham Nevada is named as a
party thereto); or
(b) That challenges, or that may have
the effect of preventing, delaying, making illegal or
otherwise interfering with, any of the transactions
contemplated hereby.
To the best of their knowledge, except as set forth in
Part 4.14 of the Disclosure Schedule, no event has occurred,
and no claim, dispute or other condition or circumstance
exists, that likely would directly or indirectly give rise
to or serve as a basis for Commencement of any such
Proceeding;
4.14.2 To the best of their knowledge, except as set
forth in Part 4.14 of the Disclosure Schedule, no Proceeding
has ever been commenced by or against Graham Nevada, and no
Proceeding otherwise involving or relating to Graham Nevada
has been pending or threatened at any time;
4.14.3 To the best of their knowledge, except as
disclosed in Part e14 of the Disclosure Schedule, each
Proceeding listed in Part 2.14 of the Disclosure Schedule is
fully covered by existing policies of insurance; and
Exhibit 2.2. - Pg. 16
4.14.5 To the best of their knowledge, except as
disclosed in Part 4.14 of the Disclosure Schedule, Graham
Nevada is not a party to any Proceeding as a party
plaintiff, nor is Graham Nevada presently contemplating the
initiation of any such Proceeding.
4.15 Bank Accounts.
To the best of their knowledge, Part 4.15 of the Disclosure
Schedule accurately sets forth, with respect to each account
maintained by or for the benefit of Graham Nevada at any
bank or other financial institution: (a) the name and
location of the institution at which such account is
maintained; (b) the name in which such account is maintained
and the account number of such account; (c) a description of
such account, and the purpose for which such account is
used; (d) the current balance in such account; and (e) the
names of all individuals authorized to draw on or make
withdrawals from such account and a description of the
authority of each such individual with respect thereto.
To the best of their knowledge, there are no safe deposit
boxes or similar arrangements maintained by or for the
benefit of Graham Nevada.
4.16 Compliance with Legal Requirements.
4.16.1 To the best of their knowledge:
(a) Graham Nevada is in full
compliance, in all material respects with each Legal
Requirement that is applicable to it or to the conduct of
its business or the ownership or use of any of its assets;
(b) No event has occurred, and no
condition or circumstance exists, that likely would (with or
without notice or lapse of time) constitute or result
directly or indirectly in any material violation by Graham
Nevada of, or a failure on the part of Graham Nevada to
comply with, any Legal Requirement; and
(c) Graham Nevada has not received,
at any time, any notice or other communication (in writing
or otherwise) from any Governmental Body or any other Person
regarding (i) any actual, alleged, possible or potential
violation of, or failure to comply with, any Legal
Requirement, or (ii) any actual, alleged, possible or
potential obligation on the part of Graham Nevada to
undertake, or to bear all or any portion of the cost of, any
cleanup or any remedial, corrective or response action of
any nature.
Exhibit 2.2 - Pg. 17
4.17 Environmental Matters.
4.17.1 Graham Nevada is in compliance in all-material
respects with all applicable Environmental Laws. Graham
Nevada has not received any notice or other communication
(in writing or otherwise) that alleges that Graham Nevada is
not in compliance with any Environmental Law, and there are
no circumstances that likely would prevent or interfere with
Graham Nevada's compliance with any Environmental Law in the
future;
4.17.2 No investigation made and no environmental
assessments obtained by Graham Nevada shall limit or
invalidate any representation or warranty made by or
disclosures required under this Agreement; and
4.17.3 Graham Nevada has not retained or assumed, either
contractually, by operation of law or otherwise, the
liability of any other person under any Environmental Law.
4.18 Brokers.
No broker or finder has acted for Graham Nevada in
connection with this Agreement or the transactions
contemplated hereby, and no broker or finder is entitled to
any brokerage or finder's or similar fees or other
commissions in respect of such transactions based in any way
on agreements, arrangements or understandings made by or on
behalf of Graham Nevada.
4.19 Full Disclosure.
4.19.1 To the best of their knowledge, none of the
representations and warranties of any Graham Nevada in the
Agreement or the Disclosure Schedule Updates contains or
will contain any untrue statement of material fact or omits
or will omit to state any fact necessary to make any of the
representations, warranties or statements contained therein
not misleading;
4.19.2 To the best of their knowledge, as of the date of
this Agreement, Graham Nevada has provided the Company and
the Company's Representatives with full and complete access
to all of Graham Nevada's records and other documents and
data requested by them.
Exhibit 2.2 - Pg. 18
4.20 Conduct of the Business of Graham Nevada Pending
Closing. Between the date hereof and the Closing hereunder,
Graham Nevada shall:
4.20.1 Not take or suffer or permit any action
which would render untrue any of the representations or
warranties of Graham Nevada herein contained, and not omit
to take any action, the omission of which would render
untrue any such representation or warranty;
4.20.2 Conduct its Business in a good and diligent
manner in the ordinary and usual course;
4.20.3 Not enter into any contract, agreement,
commitment or arrangement with any party, other than
contracts for the sale of merchandise or services and
contracts for the purchase of materials, services and
supplies in the ordinary and usual course of its Business,
and not amend, modify or terminate any Graham Nevada
Agreement without the prior written consent of Company; and
4.20.4 Use its best efforts to preserve its
business organization intact, to keep available the services
of its employees and to preserve its relationships with
customers, suppliers and others with whom it deals;
7. Since the date of the aforesaid Audited Financial Statements, on
the Closing Date there will not have been any material changes to the
financial position of Graham Nevada except changes arising in the
ordinary course of business, which change shall not amount to more
than $5000.00.
8. At the closing on the Closing Date Graham Nevada will be in good
standing as a Nevada corporation.
9. The Subject First Party Shares have not been and will not be
registered under the Act in reliance upon an exemption or exemptions
from registration as hereinabove stated. Second Party is purchasing
the Subject First Party Shares without being furnished any offering
memorandum or prospectus. However, during the course of the
transaction, which is the subject of this Agreement and prior to the
sale of the Subject First Party Shares, Second Party has had access to
the information provided for under paragraph (b) (2) of Rule 502 of
Regulation D.
5. Graham Nevada is the owner of certain oil and gas assets, that
has producing properties, inside locations and other available
drilling sites and wishes to raise capital to commence operations and
implement an orderly drilling and development program to fully develop
the oil reserves. A description of the wells and properties is set
Exhibit 2.2 - Pg. 19
forth in the Reserve Evaluation as provided by Nova Resources, Inc.,
Certified Petroleum Geologists and Professional Engineers, and Mooney
Engineering Co., Certified Petroleum Engineers, dated on or about
September, 2001, which is attached hereto and incorporated within as
Exhibit "A".
6. Audited Financial Statements of Graham Nevada, prepared by a
certified public accountant qualified to practice before the United
States Securities and Exchange Commission ("SEC"), will be provided to
First Party on or before the Closing and shall state a minimum
valuation of $81 million in assets of oil and gas reserves using a
price of approximately $26.00 per barrel, and said valuation shall be
based upon valuations dated on or about May 11, 2001 performed by
certified petroleum geologists and engineers stating an aggregate
value of of approximately $89,000,000, using a price of approximately
$26.00 per barrel, and taking into account historical purchase and
sale transactions required by the SEC. Said Audited Financial
Statements will be a true and complete statement of the financial
condition of Graham Nevada as of the date of September 30th, 2001.
There will be no substantial [set limit to amount of liabilities]
liabilities, either fixed or contingent, that are not reflected in
said Audited Financial Statements other than contracts or obligations
in the usual course of business and which have been disclosed; and, no
such contracts or obligations in the usual course of business are
liens or other liabilities which, if disclosed, would alter the
financial condition of Graham Nevada as reflected in said Audited
Financial Statements or as otherwise known to the parties hereto.
10. The Subject First Party Shares are being acquired solely for
Second Party and its Assigns' own accounts, for investment, and are
not being purchased with a view to or for resale, distribution,
subdivision, or fractionalization thereof, and Second Party has no
present plans to enter into any such contract, undertaking, agreement,
or arrangement or otherwise to act as an "underwriter" as defined in
Section 2 (11) of the Act.
11. Second Party acknowledges and is aware of the following:
a. First Party is a Florida corporation which until
recently was listed on the NASDAQ OTC Electronic
Bulletin Board.
b. The Subject First Party Shares constitute a
speculative investment, which involves a high degree
of risk to Second Party.
c. There are restrictions on the transferability of the
Subject First Party Shares. The Subject First Party
Shares will not be, and any holders of the Subject
First Party Shares have no rights to require that the
Subject First Party Shares be, registered under the
Exhibit 2.2 - Pg. 20
Act. Second Party will not be able to avail itself of
the provisions of Rule 144 promulgated by the
Commission under the Act with respect to the resale of
the Subject First Party Shares for at least one (1)
year from the date of the issuance of the Subject
First Party Shares. Accordingly, it may not be
possible for Second Party to liquidate its investment
in the Subject First Party Shares at the time that it
may wish to do so.
12. Representations of the First Party. First Party represents and
warrants to Second Party as follows:
a. First Party was duly organized and is and
shall be, on the Closing Date (as
hereinafter defined), validly existing
under and pursuant to the laws of the State
of Florida with full power to conduct the
business in which it is engaged and intends
to engage.
b. First Party's stock was until recently
listed on the NASDAQ OTC Electronic
Bulletin Board and will as soon possible
become relisted thereon. Thereafter, First
Party will take such action as is necessary
to cause its stock to be listed on the
American Stock Exchange. It is intended
that Application for such listing be
accomplished on or before March 31, 2002.
c. This Agreement has been duly authorized,
executed and delivered on behalf of First
Party, enforceable in accordance with its
terms, and First Party has full power and
lawful authority to sell and issue the
Subject First Party Shares on the terms and
conditions herein set forth.
d. The consummation of the transactions
contemplated by this Agreement in
compliance with the provisions hereof will
not result in any breach of any of the
terms, conditions, or provisions of, or
constitute a default under, or result in
the creation of any lien, charge, or
encumbrance on, any property or assets of
First Party pursuant to any indenture,
mortgage, deed of trust, agreement,
articles of incorporation, bylaws,
contract, or other instrument to which
Exhibit 2.2 - Pg. 21
First Party is a party or by which First
Party may be bound.
e. There is no litigation presently pending or
threatened against First Party.
f. The total number of shares of stock, which
First Party is authorized to issue, is
300,000,000 common stock having a par value
of $ 0.001 per share, and 50,000,000
shares of Preferred Stock, $.001 par value
per share, of which 6,488,119 shares are
presently issued and outstanding. These
shares (except for 1900) are convertible
each to one share of common stock.
g. The total number of the issued and
outstanding shares of the common stock of
First Party prior to the issuance of the
Subject First Party Shares is 20,087,130
common shares. As a result of the
anticipated reorganization currently being
completed the total number of shares issued
and outstanding before including the number
of shares to be issued to the second party
will be 9,815,014 shares of common stock.
Therefore, the Subject First Party issued
shares being 4,000,000 shares, (before the
anticipated 2:1 reverse split) when issued
and delivered to Second Party or its
Assigns, will represent approximately
thirty percent (30%) of the issued and
outstanding shares of the common stock of
First Party at that time.
h. The Subject First Party Shares all have
voting rights and are fully paid and non-
assessable.
i. First Party is not supplying Second Party
with any offering memorandum or other
disclosure documentation under Subparagraph
(b) (2) of Rule 502 of Regulation D other
than as set forth herein. However, Second
Party has had access to the requisite
information and opportunities specified in
subparagraph (b) (2) of Rule 502 of
Regulation D.
j. Shortly after the closing of the
transactions contemplated under this
Exhibit 2.2 - Pg. 22
Agreement and when Graham Nevada becomes a
wholly-owned subsidiary of First Party,
First Party will cause Graham Nevada to
acquire 100% of the outstanding shares of
and all of the assets of Texas
International Petroleum from Wolfstone
Corporation Inc. in exchange for two
million (2,000,000) shares of First Party's
common stock. The assets of Texas
International Petroleum shall exceed
$100,000,000 gross in oil and gas reserves
as evaluated by Certified Petroleum
Geologists and Engineers.
13. Indemnification. The parties hereto agree to and shall indemnify
each other and their successors and assigns against any and all
damages resulting from any breach of any representation, warranty, or
agreement set forth in this Agreement or the untruth or inaccuracy
thereof. The parties hereto further agree to and shall indemnify each
other and their successors and assigns against any and all debts,
liabilities, chooses in action, or claims of any nature, absolute or
contingent, resulting from such breach, untruth or inaccuracy. This
indemnity shall survive the closing of the transactions contemplated
hereunder but shall be limited to liabilities of which one party
hereto shall receive notice in writing from the other parties or their
or its successors and assigns within five (5) years from the date
hereof. Such party or its successors and assigns shall notify the
other parties of any such liabilities, breach of warranty, untruth, or
inaccuracy of representation or any claim thereof with reasonable
promptness, and such party or parties or its or their successors and
assigns shall have, at their election, the right to compromise or
defend any such matter involving asserted liability through counsel of
their own choosing and at their own expense. Such notice and
opportunity to compromise or defend, if applicable, shall be a
condition precedent to any liability of such party under this
indemnity. In the event that a party hereto undertakes to compromise
or defend any such liability, then such party shall notify the other
party or parties or its or their successors and assigns and shall
cooperate with the other party or parties and its or their counsel in
the compromising or defending against any such liabilities.
14. Survival of Representations. The representations, warranties,
and agreements of the parties hereto contained in this Agreement shall
not be discharged or dissolved upon but shall survive the closing
hereunder and shall be unaffected by any investigation made by any
party at any time.
15. Closing. The closing of the transactions contemplated under this
Agreement shall take place on January 10, 2002, at 3:00 p.m. ("the
Closing Date" herein), at the office of the Graham Nevada's attorney,
Patrick C. Clary, Chartered, 502 South Fourth Street, Suite 360, Las
Vegas, Nevada, 89101.
Exhibit 2.2 - Pg. 23
16. Notices. Any notices to be given hereunder by one party hereto
to the other party hereto shall be deemed to have been made if
personally delivered or sent by certified mail, return receipt
requested, Federal Express, United Parcel Service, Airborne Express,
Express Mail or other overnight mail service, or facsimile
transmission and addressed as follows:
If to First Party: J. R. Bergmann
975 S. Congress Ave., Suite 102
Delray Beach, Florida 33445
With copy to: Gary L. Blum, Esq.
3278 Wilshire Boulevard, Suite 603
Los Angeles, California 90010
If to Second Party: Graham Energy, Inc.
2482 Merchant, Abilene, Texas 79603
Abilene, Texas 79603
With copy to: Patrick C. Clary, Chartered
520 South Fourth Street, Suite 360
Las Vegas, Nevada 89101
With copy to: Nelson Quinn, Esq.
451 Pine Street, Suite 509 K
Abilene, Texas 79601
The foregoing addresses may be changed in the same manner as provided
hereinabove for the giving of notices.
17. Attorneys' Fees. If any litigation is commenced between or
among the parties hereto or their representatives concerning any
provisions of this Agreement or the rights and duties of any
person or entity in relation to it, the party prevailing in such
litigation shall be entitled, in addition to such other relief as
may be granted, to a reasonable sum as and for her or its
attorneys' fees in such litigation.
18. Counterparts. This Agreement may be executed in
counterparts and as executed shall constitute one Agreement,
binding on all the parties to it, notwithstanding all of the
parties are not signatory to the original or to the same
counterpart.
19. Binding Effect. Except as otherwise provided to the
contrary, this shall be binding upon and inure to the benefit of
the parties signatory to this and their successors and assigns.
Exhibit 2.2 - Pg. 24
20. Headings. The headings of the paragraphs of this Agreement
in no way define, limit, extend or interpret the scope of this
Agreement or of any particular paragraph or section.
21. Additional Documents, Each of the parties hereto agrees to
execute with acknowledgment or affidavit, if required, any and
all additional documents, which may be necessary or expedient in
the consummation of this Agreement and the achievement of its
purposes.
22. Validity. If any provision of this Agreement is held to
be invalid, the same shall not affect in any respect whatsoever
the validity of the remainder of this Agreement.
23. Interpretation. When the context in which words are used
in this Agreement indicates that such is the intent, words in the
singular number shall include the plural and in the masculine
gender shall include the feminine and neuter, and vise versa.
24. Applicable Law. It is the intention of the parties that
the laws of the State of Florida govern he validity of this
Agreement, the construction of its terms and conditions, and the
interpretation of the rights and duties of the parties.
25. Integrated Agreement. This Agreement constitutes the
entire understanding and agreement among the parties with respect
to the subject matter of it, and there are no agreements,
understandings, restrictions, representations or warranties among
the parties other than those set forth or provided in this
Agreement.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement the day and year first hereinabove written.
SILK BOTANICALS.COM, INC.
By:_________________________
Joseph R. Bergmann, President
Exhibit 2.2 - Pg. 25
GRAHAM ENERGY, INC.
By: ________________________
President
GRAHAM ENERGY OF NV, INC.
By: ________________________
President
Exhibit 2.2 - Pg. 26
EXHIBIT B
- ---------
(Disclosure Schedules)
2.1 States in Which Graham Nevada is Qualified to do Business
as a Foreign Corporation:
2.2 [Intentionally Omitted].
2.3 [Intentionally Omitted].
2.4 Financial Statements:
2.5 List of Liabilities:
2.6 Material Changes:
2.7 Leases:
2.8 Encumbered Assets:
2.9 Receivables:
2.10 Equipment:
2.11 Outstanding Tax Obligations:
2.12 Material Contracts
2.13 Proprietary Assets:
2.14 Legal Proceedings:
2.15 Bank Accounts:
Exhibit 2.2 - Pg. 27