1
EXHIBIT 2.1
EXCHANGE OF STOCK AGREEMENT
THIS EXCHANGE OF STOCK AGREEMENT (this "Agreement") is made
and entered into this 12th day of April, 2001, by and among LONE WOLF ENERGY,
INC., a Colorado corporation, together with its successors and assigns ("Lone
Wolf"), its wholly-owned subsidiary corporation, PRESTIGE INVESTMENTS, INC., an
Oklahoma corporation ("Prestige"), the wholly-owned subsidiary corporation of
Prestige, ZENEX LONG DISTANCE, INC., an Oklahoma corporation, d/b/a Zenex
Communications, Inc. ("Zenex") and the wholly-owned subsidiary corporation of
Lone Wolf, CHURCHLINK.COM, INC., an Oklahoma corporation ("ChurchLink"), all of
the foregoing with the principal business address of 201 S. Robert S. Kerr
Avenue, Suite 500, Oklahoma City, Oklahoma 73102, and NAYLOR CONCRETE
CONSTRUCTION CO., INC., an Oklahoma corporation ("Naylor Concrete"), and RICKY
A. NAYLOR ("Ricky Naylor"), an individual, both with mailing address of 821 S.W.
66th Street, Oklahoma City, Oklahoma 73139. Naylor Concrete and Ricky Naylor
shall sometimes hereinafter be collectively referred to as "Naylor." Lone Wolf,
Prestige, Zenex, ChurchLink and Naylor shall sometimes hereinafter be
collectively referred to as the "Parties."
RECITALS:
A. Lone Wolf is a Colorado corporation and a publicly-held
company which files periodic reports with the Securities and Exchange Commission
("SEC"). Lone Wolf owns all of the issued and outstanding stock of Prestige.
Prestige, in turn, owns all of the issued and outstanding stock of Zenex, which
is engaged in the business of providing long-distance calling cards and certain
other telecommunications products and services. Lone Wolf also owns all of the
issued and outstanding stock of ChurchLink (the "ChurchLink Stock"), which is
engaged in the business of providing online computer services on a subscription
basis for churches and other religious organizations.
B. Ricky Naylor is the principal owner and President of Naylor
Concrete. Naylor Concrete is the owner and holder of 7,400,000 issued and
outstanding shares of the common stock, par value, $0.001 per share, of Lone
Wolf (the "Naylor Lone Wolf Stock"). In addition, Ricky Naylor was granted fully
vested stock options by Lone Wolf on January 31, 2001, to purchase 1,200,000
shares of the common stock of Lone Wolf, par value, $0.001 per share, for an
option price of $0.10 per share during a five-year term ("Stock Option"). Zenex
recently borrowed the sum of $300,000 from Ricky Naylor as evidenced by that
certain promissory note made, executed and delivered by Zenex and ChurchLink to
Ricky Naylor dated January 31, 2001 (the "Zenex Loan"), which sum Ricky Naylor
had, in turn, borrowed, individually, from the First National Bank, a national
banking association with principal offices in Midwest City, Oklahoma ("Bank").
In addition, both Ricky Naylor and Naylor Concrete have jointly and severally
guaranteed the repayment of all of the indebtedness of Zenex to the Bank
including, without limitation, the January 2000 loan and the March 2000 loan,
which are more
2
specifically described below, by virtue of separate guaranty agreements executed
and delivered by them to the Bank (collectively, "Naylor Guaranties").
C. Naylor Concrete is desirous of acquiring all of the
ChurchLink Stock from Lone Wolf in exchange for the transfer to Lone Wolf of all
of the Naylor Lone Wolf Stock and of receiving the benefit of certain other
indemnity obligations and covenants of Lone Wolf, Zenex and Prestige with regard
to the Zenex Loan and the Naylor Guaranties as set forth in this Agreement.
Ricky Naylor, in consideration for Lone Wolf, Prestige and Zenex entering into
this Agreement and making the covenants for his benefit with regard to the Zenex
Loan and the Naylor Guaranties which are set forth herein and for the other
considerations contained in this Agreement, is willing to cancel and surrender
the Stock Option and all of his rights thereunder.
D. Lone Wolf is desirous of: (i) redeeming all of the Naylor
Lone Wolf Stock owned by Naylor Concrete in exchange for the ChurchLink Stock;
(ii) obtaining the cancellation of the Stock Option granted to Ricky Naylor; and
(iii) obtaining the cancellation of that certain Letter Agreement made and
entered into by and between Lone Wolf, Zenex, Prestige, ChurchLink, Marc W.
Newman, Douglas A. Newman (collectively, the "Newmans"), and Naylor dated
January 24, 2001 ("Letter Agreement") and is accordingly willing to make the
covenants and indemnities for the benefit of Naylor set forth in this Agreement.
NOW, THEREFORE, in consideration of the aforementioned
Recitals, the premises and of the mutual covenants, promises, representations
and warranties set forth herein, and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the Parties hereto, the Parties hereto do hereby covenant and agree as follows:
1. CLOSING DATE; EXCHANGE OF SHARES AND CLOSING DATE
DELIVERIES BY THE PARTIES. The Closing Date for the transactions contemplated by
this Agreement shall be the same date upon which this Agreement is fully
executed by all of the Parties. The Closing shall be held at the offices of
Naylor's counsel, Fellers, Snider, Blankenship, Bailey & Tippens, 100 N.
Broadway, Suite 1700, Oklahoma City, Oklahoma, at which time this Agreement
shall be fully executed and all Closing Date deliveries described below shall be
effected. The Closing shall be held at a date and time mutually agreeable to the
Parties ("Closing Date"). At the Closing on the Closing Date, Lone Wolf shall
deliver to Naylor Concrete stock certificates representing all of the issued and
outstanding ChurchLink Stock, duly endorsed in blank for transfer by Lone Wolf,
or accompanied by stock powers duly executed by it in blank for transfer,
together with the ChurchLink corporate minute book and all of its stock and
accounting records and copies of all of its federal and state tax returns for
the periods during which the ChurchLink Stock was held by Lone Wolf. Upon
delivery by Lone Wolf to Naylor Concrete of all of the ChurchLink Stock, Naylor
Concrete shall become the sole owner of all of the issued and outstanding
ChurchLink Stock. ChurchLink shall thereafter be Naylor Concrete's wholly-owned
subsidiary. At the Closing on the Closing Date, Naylor Concrete shall deliver to
Lone Wolf all of the Naylor Lone Wolf Stock, duly endorsed in blank for transfer
by Naylor Concrete, or accompanied by a stock power duly executed by it in blank
for transfer, sufficient to vest ownership of all of the shares of Naylor Lone
Wolf Stock in Lone Wolf, together with the executed resignations of Ricky
Naylor, Debra G. Morehead and Bobby Boyles from all positions which they hold,
respectively, as an officer, director or employee of Lone Wolf or ChurchLink, as
is required below in this Agreement.
3
2. RELEASE OF THE NAYLOR GUARANTIES AND PAYMENT OF THE
ZENEX LOAN.
(a) RELEASE OF THE NAYLOR GUARANTIES. As described
above, Naylor Concrete and Ricky Naylor have each executed and
delivered to the Bank the Naylor Guaranties which are their joint and
several unlimited guaranties of all of the indebtedness of Zenex to the
Bank including, without limitation, the following loans:
(i) That certain Promissory Note and
Business Loan Agreement made, executed and delivered by Zenex
to the Bank dated January 11, 2000 ("January 2000 Loan"),
pursuant to which Zenex borrowed the principal sum of
$250,302.00 from the Bank; and
(ii) That certain Promissory Note and
Business Loan Agreement dated as of March 10, 2000 ("March
2000 Loan"), pursuant to which Zenex borrowed the additional
principal sum of $100,260.00 from the Bank.
On or before October 1, 2001, Lone Wolf and Zenex will use their respective best
efforts to cause the Bank to release Naylor Concrete and Ricky Naylor from any
and all liabilities, duties and obligations which they have, may have, or
hereafter might have had under the Naylor Guaranties as to any and all
indebtedness of Zenex to the Bank.
(b) SATISFACTION OF ZENEX LOAN. Lone Wolf, Zenex,
Prestige, ChurchLink, the Newmans and Naylor made and entered into the
Letter Agreement on January 24, 2001 which set forth the terms and
conditions pursuant to which Naylor would agree to borrow the sum of
$300,000.00 from the Bank and, in turn, loan that same amount to Zenex
and ChurchLink. In fulfillment of the Letter Agreement, Ricky Naylor
borrowed the sum of $300,000.00 from the Bank on January 31, 2001, and,
on that same date, made a loan in that same amount to Zenex and
ChurchLink, as evidenced by that certain Promissory Note and Business
Loan Agreement (collectively, the "Note"), each dated January 31, 2001.
The repayment of the Note was secured by the creating and granting to
Naylor of the following collateral:
(i) The guaranty of Prestige evidenced by a
Guaranty Agreement executed and delivered by Prestige to
Naylor on January 31, 2001;
(ii) The guaranty of Lone Wolf evidenced by
a Guaranty Agreement executed and delivered by Prestige to
Naylor on January 31, 2001;
(iii) The pledge by Lone Wolf to Naylor of
all of the issued and outstanding stock of ChurchLink as
evidenced by a Pledge Agreement executed and delivered by Lone
Wolf to Naylor on January 26, 2001;
5
4
(iv) The pledge by Prestige to Naylor of all
of the issued and outstanding stock of Zenex pursuant to a
Pledge Agreement executed and delivered by Prestige to Naylor
on January 26, 2001;
(v) The creation and granting by ChurchLink
to Naylor of a security interest in all of its inventory,
accounts, equipment, contracts, software, permits, tariffs and
general intangibles ("ChurchLink Security Interest") as
evidenced by a Pledge and Security Agreement executed and
delivered by ChurchLink to Naylor on January 26, 2001; and
(vi) The creation and granting by Zenex to
Naylor of a security interest in all of its inventory,
accounts, equipment, contracts, software, permits, tariffs and
other general intangibles ("Zenex Security Interest") as
evidenced by a Pledge and Security Agreement executed and
delivered by Zenex to Naylor on January 26, 2001.
(All of the foregoing collateral as described in Subparagraphs (b)(i) - (vi),
above, together with all of the loan documents, instruments, financing
statements and security agreements which evidence that collateral, shall
hereinafter be collectively referred to as the "Zenex Loan Collateral.") All of
the Zenex Loan Collateral granted to Naylor by Lone Wolf, Prestige and Zenex,
respectively, is expressly subject and subordinate to the security interests,
pledges, and guaranties previously created and granted by each of them to the
Bank in that same collateral in order to secure the repayment of all of Zenex's
indebtedness to the Bank. In addition, all of Ricky Naylor's right, title and
interest in and to the Note and all of the Zenex Loan Collateral were assigned
by him to the Bank on January 26, 2001, in order to secure his repayment of the
$300,000 loan he obtained from the Bank on that same date to fund the Zenex
Loan. On or before October 1, 2001, Lone Wolf and Zenex hereby covenant and
agree to use their respective best efforts to pay, in full, the Zenex Loan to
Naylor.
3. INDEMNITY BY LONE WOLF AND ZENEX OF NAYLOR'S OBLIGATIONS
UNDER THE NAYLOR GUARANTIES. In fulfillment of the terms and conditions of
Paragraph 3 of the Letter Agreement, which was a material inducement to Naylor
to make the Zenex Loan, Lone Wolf and Zenex each hereby expressly covenant and
agree to indemnify and hold each of Naylor Concrete and Ricky Naylor wholly
harmless from and against any and all loss, cost, claims, causes of action and
liabilities incurred or suffered by either Naylor Concrete or Ricky Naylor
(including court costs and reasonable attorneys' fees) as a result of, or
arising in any way out of, the Naylor Guaranties which have been executed and
delivered by Naylor to the Bank (i) to secure the repayment of all of Zenex's
indebtedness to the Bank, and (ii) to secure the repayment of the $300,000 loan
obtained by Ricky Naylor from the Bank on January 26, 2001, in order to fund the
Zenex Loan. Lone Wolf, Zenex and Prestige also hereby specifically covenant and
agree that the Zenex Loan Collateral previously created and granted by each of
them, respectively, in order to secure the repayment of the Zenex Loan was also
intended to, and does, secure the full performance by Lone Wolf and Zenex of the
indemnity obligation set forth in Paragraph 3 of the Letter Agreement and
reiterated in this Section 3 of this Agreement. Lone Wolf and Zenex further
specifically covenant and agree that the repayment in full of the Zenex Loan
will not
6
5
entitle Lone Wolf, Zenex or Prestige to the release of any of the Zenex Loan
Collateral so long as Naylor has any remaining obligation or potential liability
under the Naylor Guaranties.
4. PENALTIES FOR NON-PAYMENT OF ZENEX LOAN AND/OR FAILURE TO
OBTAIN BANK'S RELEASE OF NAYLOR GUARANTIES. Lone Wolf and Zenex covenant and
agree that, if for any reason, they are unable on or before October 31, 2001 to:
(i) repay in full the Zenex Loan; and/or (ii) obtained the full and complete
release of the Naylor Guaranties from the Bank that then, and in such event,
they shall, jointly and severally, be obligated to pay to Naylor the sum of
$2,000 per month commencing October 1, 2001, and continuing such payments to
Naylor in that same amount on the first day of each month thereafter until such
time as Lone Wolf and Zenex have been able to accomplish each of the foregoing,
i.e., the full payment of the Zenex Loan and the complete release of the Naylor
Guaranties by the Bank. In addition, and as a further inducement to Naylor to
enter into this Agreement, Lone Wolf and Zenex further covenant and agree that,
in the event that Lone Wolf and Zenex have not, on or before March 31, 2003: (y)
made payment in full to Naylor of the Zenex Loan; and/or (z) obtained the full
and complete release of Naylor from the Naylor Guaranties that then, and in such
event, they shall grant to Ricky Naylor on that date a fully vested option to
purchase One Million (1,000,000) shares of the common stock of Lone Wolf, par
value, $0.001 per share, for an option purchase price of $0.06 per share, which
may be exercised by Ricky Naylor at any time during a term of ten (10) years
from and after the date of the granting of said option. The option grant shall
be in form and substance satisfactory to Ricky Naylor at such time and shall be
made pursuant to the terms and conditions of a valid stock option plan duly
adopted by Lone Wolf in accordance with all applicable provisions of securities
and federal income taxation laws.
5. LONE WOLF, ZENEX AND PRESTIGE AGREE TO THE RELEASE BY
NAYLOR OF CHURCHLINK FROM ALL LIABILITY UNDER THE ZENEX LOAN AND OF THE
CHURCHLINK SECURITY INTEREST. As described above, ChurchLink and Zenex were the
original co-makers of the Zenex Loan and are both obligated on the Note for
repayment of the Zenex Loan to Naylor. In view of the acquisition of ChurchLink
by Naylor Concrete pursuant to this Agreement, Lone Wolf, Zenex and Prestige
each hereby covenant and agree that it is necessary and appropriate for Naylor
to completely release ChurchLink from any and all liability which it has, may
have or otherwise may have had for the repayment of the Zenex Loan to Naylor by
virtue of the Note or the Zenex Collateral, or otherwise, to specifically
include the release of the ChurchLink Security Interest. Lone Wolf, Prestige and
Zenex further acknowledge and agree that Zenex shall henceforth be the sole
obligor under the Note to Naylor given to evidence the repayment of the Zenex
Loan and that the rest of the Zenex Collateral, including, without limitation,
the Zenex Security Interest, shall remain in full force and effect. Accordingly,
Naylor, effective upon the Closing of this Agreement, fully and completely
releases and discharges ChurchLink from any and all liability or obligation of
whatsoever kind or nature to Naylor, under and pursuant to the Note, Business
Loan Agreement, Commercial Pledge Agreement, Security Agreement, financing
statements, and any and all other documents executed and delivered by ChurchLink
in connection with the making by it of the Zenex Loan and agrees, subject to the
prior, written approval of the Bank, to release the UCC Financing Statement
filed by Naylor with regard to the ChurchLink Security Interest on the Closing
Date.
7
6
6. CANCELLATION OF LETTER AGREEMENT AND OF THE STOCK OPTION
AGREEMENT. Naylor, Lone Wolf, Prestige, Zenex, ChurchLink and the Newmans do
each hereby respectively covenant and agree, except as otherwise specifically
provided in this Agreement, to release any and all right, title, obligations and
benefits which they have, might have or otherwise might have had under the
Letter Agreement effective upon the Closing Date. In addition, Ricky Naylor
agrees to cancel, release and render null, void and of no further force and
effect the Stock Option granted to him by Lone Wolf on January 31, 2001,
effective as of the Closing Date.
7. NAYLOR'S RELINQUISHMENT OF RIGHTS AS ONE OF THE
SHAREHOLDERS TO DESIGNATE MEMBERS OF THE BOARD OF DIRECTORS OF LONE WOLF,
PRESTIGE AND ZENEX. Section 5.8 of that certain Agreement and Plan of
Reorganization by and among Lone Wolf, Prestige, Zenex, Ricky Naylor and certain
other persons constituting the former shareholders of Prestige dated May 4, 2000
("Merger Agreement") provides that the former Prestige Shareholders shall be
entitled to elect two (2) of the members of Lone Wolf's, Prestige's and Zenex's
Board of Directors, respectively, on the closing date under the Merger Agreement
and each year thereafter. Naylor agrees, effective as of the Closing Date under
this Agreement, to release any and all rights which Naylor has, or may have,
under Section 5.8 of the Merger Agreement as one of the former Prestige
Shareholders. In addition, Naylor agrees to obtain and provide to Lone Wolf on
the Closing Date resignations executed and dated effective as of the Closing
Date by Ricky Naylor, Bobby Boyles and by Debra G. Morehead from any and all
positions which they, respectively, hold as either an officer, director or
employee of Lone Wolf, Zenex and Prestige.
8. REPRESENTATIONS AND WARRANTIES OF LONE WOLF. Lone Wolf
represents and warrants to Naylor as of the Closing Date of this Agreement, as
follows:
(a) ORGANIZATION AND STANDING OF LONE WOLF AND
CHURCHLINK. Lone Wolf is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado.
ChurchLink is a corporation duly organized, validly existing and in
good standing under the laws of the State of Oklahoma. Each of Lone
Wolf and ChurchLink has all requisite power and authority (corporate
and other), and is duly qualified and licensed and possesses all
respective licenses, franchises, permits and other governmental
authorizations necessary to own, lease and operate its respective
assets and properties and to conduct its respective business as now
being conducted by it, including, without limitation, the full power
and authority for Lone Wolf and ChurchLink, respectively, to enter into
and perform their respective obligations under this Agreement and the
transactions contemplated hereby. Each of Lone Wolf and ChurchLink is
duly licensed or qualified to do business and is in good standing in
each jurisdiction in which its respective ownership or leasing of
property or the conduct of its respective business requires such
licensing or qualification and where the failure to be so licensed,
qualified or in good standing would have a material adverse effect on
the financial condition, operations, business, or prospects of Lone
Wolf or ChurchLink, respectively. All requisite approvals for this
Agreement and the transactions to be consummated hereby have been
obtained from the respective Board of Directors or the Shareholders of
Lone Wolf or of ChurchLink under their respective Certificates of
Incorporation or By-Laws, or under the provisions of applicable law.
8
7
(b) CAPITALIZATION OF CHURCHLINK. The authorized
capital stock of ChurchLink consists of Fifty Thousand (50,000) shares
of Common Stock, par value, $1.00 per share ("ChurchLink Stock"), of
which One Hundred (100) shares are issued and outstanding (the
"Shares"), and are all owned by Lone Wolf. None of the capital stock of
ChurchLink is held in its treasury. No share of the capital stock of
ChurchLink has been reserved for any purpose. All of the Shares of
ChurchLink Stock are duly and validly authorized and issued, fully paid
and non-assessable and have not been issued in violation of any
pre-emptive rights. Lone Wolf is the record and beneficial owner of all
of the issued and outstanding Shares. Except for the prior pledge of
the ChurchLink Stock by Lone Wolf to Naylor to secure the repayment of
the Zenex Loan which was, in turn, assigned by him to the Bank on that
same date to secure his $300,000 loan from the Bank, all of the Shares
are held by Lone Wolf free and clear of all liens, encumbrances,
pledges, options, charges, claims, security interests, agreements,
equities and assessments whatsoever, with Lone Wolf having full right
and authority to sell, assign, transfer and deliver the Shares as
provided in this Agreement. There are no outstanding securities
convertible into or exchangeable for the capital stock of ChurchLink
and there are no outstanding options, rights (pre-emptive or
otherwise), or warrants to purchase or to subscribe for any equity
securities of ChurchLink. There are no outstanding agreements,
arrangements, commitments or understandings of any kind affecting or
relating to the voting, issuance, purchase, redemption, repurchase or
transfer of the capital stock of ChurchLink, or any equity securities
of ChurchLink, except as expressly provided for in this Agreement.
(c) TRADE NAMES. To the knowledge of Lone Wolf, no
other person, firm or corporation is presently using or claiming, or
has the right to use or claim, the trade name: "ChurchLink" or
"ChurchLink.Com" or to any of the trademarks, logos or symbols used by
ChurchLink in conjunction with said trade names. ChurchLink has not
conferred any right or license to use any of the aforesaid trade names,
trademarks, logos, or symbols on any other person, firm or corporation.
After the Closing Date, Lone Wolf shall forego and not make a claim to
any right, title or interest in or to the use of the trade names listed
above in this Section, or any trademarks, logos or symbols currently
used or previously used by ChurchLink in conjunction with any of those
said trade names or otherwise in any manner in conjunction with the
business being currently conducted by ChurchLink.
(d) LIABILITIES. To the knowledge of Lone Wolf,
ChurchLink does not have any indebtedness, obligation or liability,
contingent or otherwise, whether due or to become due, which is
required by generally accepted accounting principles to be reflected in
the financial statements of ChurchLink which have been delivered to
Naylor, or which is material, except (i) those which have been
reflected in the current financial statements of ChurchLink which have
been delivered to Naylor, (ii) those individual liabilities
subsequently incurred by ChurchLink in the ordinary course of business,
or (iii) the potential contingent liability created by the claim of
Phase II Development Corporation and any which have been set forth in
an exhibit to this Agreement. All deposit accounts and notes payable,
and other liabilities of ChurchLink are current and not in default.
9
8
(e) TAXES. All tax returns of ChurchLink for the
calendar year 2000 will be filed as part of the consolidated tax
returns of Lone Wolf, for which Lone Wolf has obtained an extension to
file until September 15, 2001. Except for calendar years 2000 and 2001,
to the best of the knowledge and belief of Lone Wolf, ChurchLink has
fully filed with the appropriate governmental agencies, all tax reports
and returns required to be filed, including, without limitation, all
federal, state and local income, franchise, sales and property tax
returns. ChurchLink has duly paid in full, or made adequate provision
for the payment of, all taxes and other charges shown on all returns to
be due or claimed to be due in regard to such tax returns by federal,
state or local taxing authorities. There are no federal, state or local
tax liens upon any of the property or assets of ChurchLink. All of such
reports are, to the best of the knowledge, information and belief of
Lone Wolf, true, correct and complete in all material respects. All of
the tax liabilities of ChurchLink for the current year to date and all
prior years, whether or not they have become due and payable, have been
paid in full and to the extent tax liabilities have accrued but not
become payable, they are properly reflected on the books and records of
ChurchLink, or in its financial statements. No income, franchise, sales
or property tax return of ChurchLink is currently being audited by the
Internal Revenue Service or any other taxing authority having
jurisdiction over ChurchLink. ChurchLink is not a party to, or bound
by, or has any obligation under any tax sharing or similar agreement.
Except for the extension for filing of the calendar year 2000
consolidated tax returns of Lone Wolf until September 15, 2001, there
are no outstanding agreements or waivers extending the statutory period
of limitation applicable to any state or federal income tax return of
ChurchLink for any period. ChurchLink is not a party to any action or
proceeding by any governmental authority for assessment or collection
of taxes, and no claim for assessment or collection of taxes by any
governmental authority has been asserted against ChurchLink. All
federal or state income taxes that ChurchLink is or was required by
applicable laws to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper
governmental body or other person who is entitled by law to receive
such withholding.
(f) PROPERTY AND ASSETS. ChurchLink does not own any
real property and the real property leased by ChurchLink has never been
owned by ChurchLink. ChurchLink has good and marketable title to all of
its property and assets as described on the exhibit to this Agreement
and to all of its software and source codes which are used in its
current business and operations.
(g) LITIGATION. There is not pending any legal,
administrative, arbitration, governmental or other proceeding to which
ChurchLink is a party, or, to the knowledge of Lone Wolf, is threatened
to be made a party. To the knowledge of Lone Wolf, ChurchLink is not
under any investigation with respect to, or is charged with any
violation or alleged violation of, any federal, state, local or other
law or regulation. Except with respect to the potential claims of Phase
II Development Corporation, to the knowledge of Lone Wolf, no one has
asserted, nor has any grounds to assert, any material claims against
ChurchLink based upon the wrongful action or inaction of
10
9
ChurchLink, or any of the respective officers, directors, agents or
employees of ChurchLink.
(h) AUTHORITY. This Agreement constitutes valid and
legally binding obligations of Lone Wolf, Prestige, and Zenex,
respectively, enforceable against them in accordance with its terms,
except that the enforcement of the rights and remedies created hereby
is subject to bankruptcy, insolvency, reorganization and similar laws
of general application affecting the rights and remedies of creditors
and that the availability of the remedy of specific performance or of
injunctive or other equitable relief is subject to the discretion of
the court before which any proceeding therefor may be brought. Neither
the execution and delivery of this Agreement, nor the consummation by
Lone Wolf, Prestige, Zenex or ChurchLink of the transactions
contemplated hereby in accordance with the terms and conditions hereof,
nor the respective compliance by Lone Wolf, Prestige, Zenex or
ChurchLink with any of the provisions hereof, will violate, conflict
with, result in a breach of, constitute a default under, accelerate the
performance required by the terms of, or permit the termination of any
order, writ, injunction, decree, statute, rule, regulation or policy
guidelines applicable to Lone Wolf, Prestige, Zenex or ChurchLink,
respectively, or any contract, agreement, indenture or instrument to
which any of Lone Wolf, Prestige, Zenex or ChurchLink is a party or by
which any of Lone Wolf, Prestige, Zenex or ChurchLink is bound or
committed or the respective Certificate of Incorporation or By-Laws of
Lone Wolf, Prestige, Zenex or ChurchLink. Neither Lone Wolf nor
ChurchLink is required to obtain any consent, approval, order or
authorization of (or to effect any registration, declaration or filing
with), any governmental authority, or court, or under the terms of any
contract, agreement, indenture or instrument to which it is a party, or
by which it is bound or committed in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
(i) BOOKS AND RECORDS. The minute book of ChurchLink
reflects accurately all significant actions ever taken by the
respective Shareholders and Board of Directors (or any committee
thereof), of ChurchLink. The books of account and stock record books
and other records of ChurchLink are complete and correct and have been
maintained in accordance with sound business practices. At the Closing
hereunder, all of these books and records will be in the possession of
Lone Wolf and delivered to Naylor.
(j) FULL DISCLOSURE. None of the information
concerning ChurchLink contained in this Agreement and the exhibits and
schedules hereto, or in any of the lists, documents or instruments
attached hereto or delivered by Lone Wolf to Naylor as contemplated by
any provision of this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state any
material fact necessary to make the statements contained herein or
therein, taken as a whole with all other such lists, documents,
instruments or other information so furnished in light of the
circumstances in which they are made, not misleading.
11
10
9. REPRESENTATIONS AND WARRANTIES OF NAYLOR CONCRETE. Naylor
Concrete represents and warrants to Lone Wolf as of the Closing Date of this
Agreement, as follows:
(a) ORGANIZATION AND STANDING OF NAYLOR CONCRETE.
Naylor Concrete is a corporation organized, validly existing and in
good standing under the laws of the State of Oklahoma. Naylor Concrete
has all requisite corporate power and authority and is duly qualified
and licensed and possesses all licenses, franchises, permits and other
governmental authorizations necessary to own, lease and operate its
assets and properties and to conduct its business as now being
conducted, including, without limitation, the full power and authority
to enter into and perform under this Agreement and the transactions
contemplated hereby. All approvals, if any, required to be obtained
from the Board of Directors of Naylor Concrete under Naylor Concrete's
Certificate of Incorporation and By-Laws or applicable law have been
obtained or will be obtained prior to the Closing Date. Naylor Concrete
has full corporate power and authority to carry out the transactions
provided for in this Agreement on the terms and conditions set forth
herein. This Agreement constitutes a valid and legally binding
obligation of Naylor Concrete, enforceable against Naylor Concrete in
accordance with its terms, except that the enforcement of the rights
and remedies created hereby is subject to bankruptcy, insolvency,
reorganization and similar laws of general application affecting the
rights and remedies of creditors and that the availability of the
remedy of specific performance or of injunctive relief is subject to
the discretion of the court before which any proceeding therefor may be
brought. Neither the execution and delivery of this Agreement, nor the
consummation by Naylor Concrete of the transactions contemplated
hereby, will conflict with, require a consent under, or result in a
breach of, any terms, condition or provision of, or constitute a
default under (a) the Certificate of Incorporation or By-Laws of Naylor
Concrete, (b) any agreement, indenture, mortgage, deed of trust, lease,
license or other instrument to which Naylor Concrete is a party or by
which it is bound, or any license, permit or certificate held by it, or
(c) any applicable provision of law or any rule or regulation of any
federal, state or local administrative agency or governmental authority
applicable to Naylor Concrete, or any material order, judgment or
decree to which Naylor Concrete is subject.
(b) LONE WOLF STOCK. Naylor Concrete owns Seven
Million Four Hundred Thousand (7,400,000) Shares of the common stock,
par value $0.001, per share of Lone Wolf ("Naylor Lone Wolf Stock").
All of the shares of Naylor Lone Wolf Stock have been duly and validly
authorized and issued, are currently outstanding, are fully paid and
non-assessable and have not been issued in violation of any pre-emptive
rights. Naylor Concrete does not possess any securities convertible
into or exchangeable for the capital stock of Lone Wolf and does not
hold any outstanding options, rights (pre-emptive or otherwise), or
warrants to purchase or to subscribe for any equity securities of Lone
Wolf. Naylor Concrete is the record and beneficial owner of all of the
Naylor Lone Wolf Stock and all of the Naylor Lone Wolf Stock is held by
Naylor Concrete free and clear of all liens, encumbrances, pledges,
options, charges, claims, security interests, agreements, equities and
assessments whatsoever, with Naylor Concrete having the full right and
authority to sell, assign, transfer and deliver the Naylor
12
11
Lone Wolf Stock to Lone Wolf as provided in this Agreement. There are
no outstanding agreements, arrangements, commitments or understandings
of any kind affecting or relating to the voting, issuance, purchase,
redemption, repurchase or transfer of the Naylor Lone Wolf Stock by
Naylor Concrete, except as expressly provided for and described in this
Agreement.
(c) FULL DISCLOSURE. None of the information
concerning Naylor contained in this Agreement and the schedules hereto,
or in any of the lists, documents or instruments attached hereto or to
be delivered by or on behalf of Naylor as contemplated by a provision
of this Agreement, contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact
necessary to make the statements contained herein or therein, taken as
a whole with all other such lists, documents, instruments or other
information so furnished in light of the circumstances in which they
are made, not misleading.
10. COOPERATION AND RECORDS RETENTION. After Closing, each
Party (considering, for purposes of this Section, Naylor, as one Party, and Lone
Wolf, as the other Party) shall (i) each provide to the other such assistance as
may reasonably be requested by any of them in connection with the preparation of
any income tax return, audit or other examination by any taxing authority or
judicial or administrative proceedings relating to liability for taxes, (ii)
each retain and provide the other with any records or other information which
may be relevant to such tax return, audit or examination, proceeding or
determination, and (iii) each provide the other with any final determination of
any such audit or examination, or proceeding or determination that affects any
amount required to be shown on any income tax return of the other for any
period. Without limiting the generality of the foregoing, Naylor shall retain,
and Lone Wolf shall retain, until the applicable statutes of limitations
(including any extensions) have expired, copies of all income tax returns,
supporting work schedules and other records or information which are relevant to
such income tax return filed for all tax periods or portions thereof ending
before or including the Closing Date pertaining to ChurchLink, and shall not
destroy or otherwise dispose of any such records without first providing the
other Party with a reasonable opportunity to review and copy the same.
11. LONE WOLF ENTITIES' COVENANT OF NON-COMPETITION. Lone
Wolf, Prestige, Zenex and the Newmans (collectively, the "Lone Wolf
Covenantors") hereby expressly covenant and agree, for a period of five (5)
years commencing with the Closing Date of the consummation of this Agreement and
terminating on the fifth (5th) anniversary of such Closing Date, that none of
the Lone Wolf Covenantors, nor any corporation, partnership, limited liability
company, limited liability partnership, trust, or any other entity owned or
controlled by any of the Lone Wolf Covenantors, shall, either directly or
indirectly, compete with, or own, manage, operate, control, lend to, consult
with, engage or participate in the ownership, management, operation or control,
or be connected with, whether as director, officer, employee, agent, consultant
or otherwise, any person, partnership, trust, limited liability company, limited
liability partnership, or other entity or corporation which is in competition in
any respect with ChurchLink within the geographic area constituting the United
States of America, by engaging in any business activities SUBSTANTIALLY
comparable to the business being conducted by ChurchLink as of the Closing Date
of this Agreement, to include, specifically, without
13
12
limitation, providing online computer services of any kind or nature to churches
or other religious organizations in the manner in which ChurchLink is currently
doing, or be involved in any manner with any other business which is in any way
in competition with the business being conducted by ChurchLink on the Closing
Date; except, and provided, however, that nothing in this Section 11 shall be
deemed to apply to, or restrict or prevent in any manner, the Lone Wolf
Covenantors' rights to provide TELECOMMUNICATIONS AND internet services only to
churches or religious organizations. In addition, Lone Wolf Covenantors will be
permitted, anything in this Agreement to the contrary notwithstanding, to own no
more than five percent (5%) of a class of equity securities issued by any
aforesaid competitor of ChurchLink, which is publicly traded and registered
under the provisions of Section 12 of the Securities Exchange Act of 1934.
12. CHURCHLINK ENTITIES' COVENANT OF NON-COMPETITION.
ChurchLink, Naylor and Bobby Boyles (collectively, the "ChurchLink
Covenantors"), hereby expressly covenant and agree, for a period of five (5)
years commencing with the Closing Date of the consummation of this Agreement and
terminating on the fifth (5th) anniversary of such Closing Date, that none of
the ChurchLink Covenantors, nor any corporation, partnership, limited liability
company, limited liability partnership, trust or other entity owned or
controlled by any of the ChurchLink Covenantors, shall, either directly or
indirectly, compete with, or own, manage, operate, control, lend to, consult
with, engage or participate in the ownership, management, operation or control,
or be connected with, whether as director, officer, employee, agent, consultant
or otherwise, any person, partnership, trust, limited liability company, limited
liability partnership, or other entity or corporation which is in competition in
any respect with Lone Wolf, Prestige or Zenex within the geographic area
constituting the United States of America, by engaging in any business
activities substantially comparable to the business being conducted by Lone
Wolf, Prestige or Zenex as of the Closing Date of this Agreement; except, and
provided, however, that nothing in this Section 12 shall be deemed to apply to,
or restrict or prevent in any manner, the ChurchLink Covenantors' right to
provide TELECOMMUNICATIONS AND internet services to churches or other religious
organizations only. In addition, ChurchLink Covenantors will be permitted,
anything in this Agreement to the contrary notwithstanding, to own no more than
five percent (5%) of a class of equity securities issued by any aforesaid
competitor of Lone Wolf, Prestige or Zenex, which is publicly traded and
registered under the provisions of Section 12 of the Securities Exchange Act of
1934.
13. LONE WOLF ENTITIES' COVENANT OF NON-SOLICITATION. The Lone
Wolf Covenantors further expressly covenant and agree, for a period of two (2)
years commencing with the Closing Date of this Agreement and terminating on the
second (2nd) anniversary of such Closing Date, that none of the Lone Wolf
Covenantors, nor any corporation, partnership, limited liability company,
limited liability partnership, trust or any other entity owned or controlled by
any of the Lone Wolf Covenantors shall, either directly or indirectly,
intentionally solicit business from, divert business from, or attempt to convert
to other methods of using the same type of computer services or activities which
are being provided by ChurchLink during said period of time, any client,
customer or other account of ChurchLink (except, and provided, however, that
nothing in this Section 13 shall be deemed to apply to, or restrict or prevent
in any manner, the Lone Wolf Covenantors from soliciting telecommunications and
internet service business from the churches or other religious organizations
which are now, or in the future, customers of ChurchLink). In addition, during
the above term of this covenant, the Lone Wolf
14
13
Covenantors shall not, directly or indirectly, solicit for employment or employ
any person who is, or was, during the two (2) years previous to when the Lone
Wolf Covenantors, or their respective affiliates, seek to so employ him/her, an
employee of ChurchLink, without the express prior written consent of ChurchLink.
Further, during said period of time, the Lone Wolf Covenantors agree not to
disparage by word, action, deed or otherwise the business reputation, financial
condition, or, in any other regard, the operation and ownership of ChurchLink or
Naylor, except as they may be required to do by applicable law. The Lone Wolf
Covenantors further agree that the foregoing covenant not to solicit shall apply
during the entire two (2) year period specified above in this Section 13, within
the geographic area constituting the entire United States of America, without
exception. For purposes of the application of the foregoing covenant not to
solicit, the terms "customer, client or account" shall mean any person or
entity, any corporation, joint venture, partnership, limited liability company,
limited liability partnership, individual or other legal entity who maintained a
business relationship, or was a subscriber to the computer services provided by,
or otherwise transacted business in any material respect with ChurchLink, within
the two (2) year period prior to the Closing Date, or transacts any business
with ChurchLink, or becomes a subscriber to its computer services, at any time
during the two (2) year term of this covenant not to solicit, as specified in
this Section 13, above.
14. CHURCHLINK ENTITIES' COVENANT OF NON-SOLICITATION. The
ChurchLink Covenantors further expressly covenant and agree, for a period of two
(2) years commencing with the Closing Date of this Agreement and terminating on
the second (2nd) anniversary of such Closing Date, that none of the ChurchLink
Covenantors, nor any corporation, partnership, limited liability company,
limited liability partnership, trust or any other entity owned or controlled by
any of the ChurchLink Covenantors shall, either directly or indirectly,
intentionally solicit business from, divert business from, or attempt to convert
to other methods of using the same type of computer services or activities which
are being provided by Lone Wolf, Prestige or Zenex during said period of time,
any client, customer or other account of Lone Wolf, Prestige or Zenex (except,
and provided, however, that nothing in this Section 14 shall be deemed to apply
to, restrict or prevent in any manner, the ChurchLink Covenantors from
soliciting telecommunications and internet service business from the churches or
other religious organizations which are now, or in the future, customers of any
of the Lone Wolf Covenantors). In addition, during the above term of this
covenant, the ChurchLink Covenantors shall not, directly or indirectly, solicit
for employment or employ any person who is, or was, during the two (2) years
previous to when the ChurchLink Covenantors, or their respective affiliates,
seek to so employ him/her, an employee of Lone Wolf, Prestige or Zenex, without
the express prior written consent of Lone Wolf, Prestige or Zenex. Further,
during said period of time, the ChurchLink Covenantors agree not to disparage by
word, action, deed or otherwise the business reputation, financial condition,
or, in any other regard, the operation and ownership of Lone Wolf, Prestige or
Zenex , except as they may be required to do so by applicable law. The
ChurchLink Covenantors further agree that the foregoing covenant not to solicit
shall apply during the entire two (2) year period specified above in this
Section 14, within the geographic area constituting the entire United States of
America, without exception. For purposes of the application of the foregoing
covenant not to solicit, the terms "customer, client or account" shall mean any
person or entity, any corporation, joint venture, partnership, limited liability
company, limited liability partnership, individual or other legal entity who
maintained a business relationship, or was obtaining the telecommunications and
internet services provided by, or
15
14
otherwise transacted business in any material respect with, Lone Wolf, Prestige
or Zenex within the two (2) year period prior to the Closing Date, or transacts
any business with Lone Wolf, Prestige or Zenex, or becomes a customer of their
telecommunications or internet services, at any time during the two (2) year
term of this covenant not to solicit, as specified in this Section 14, above.
15. CONSTRUCTION AND INTERPRETATION OF THE COVENANTS OF
NON-COMPETITION AND NON-SOLICITATION. Each of the Lone Wolf Covenantors and each
of the ChurchLink Covenantors, respectively, covenant and agree that he or it
has carefully read and considered the provisions and scope of the covenants he
or it has made in Sections 11 and 13 and 12 and 14, respectively, above, in this
Agreement and has been advised by legal counsel concerning the meaning and
effect of the covenants of non-competition and non-solicitation set forth as to
them in those Sections 11 and 13 and 12 and 14, respectively. The Lone Wolf
Covenantors and the ChurchLink Covenantors all agree that the restrictions set
forth in this Agreement as to the time period and the geographic area
restrictions of the non-competition and non-solicitation covenants applicable to
each of them, as set forth above in Sections 11 and 13 and 12 and 14 of this
Agreement, respectively, are fair and reasonable and are reasonably required for
the benefit of and the protection of the respective interests of the Lone Wolf
Covenantors and of the ChurchLink Covenantors, as the respective beneficiaries
of those said covenants, and of the good will of the ChurchLink Covenantors and
of the Lone Wolf Covenantors, as applicable. In the event that, notwithstanding
the foregoing, any of the provisions of this Agreement shall be held to be
invalid or unenforceable, the remaining provisions thereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
provision had not been included therein. In the event that any of the above
provisions relating to the time period and/or geographical area of the
restrictions imposed by said covenants in Sections 11 and 13 and 12 and 14,
respectively, shall be declared by a court of competent jurisdiction to exceed
the maximum time period or geographical area such court deems reasonable and
enforceable, said time period and/or geographical area of restriction shall be
deemed to become and thereafter be the maximum time period and/or geographical
area which such court deems reasonable and enforceable under the applicable law.
16. ENTITLEMENT TO EQUITABLE REMEDIES IN THE EVENT OF THE
BREACH OF THE COVENANTS OF NON-COMPETITION AND NON-SOLICITATION BY THE LONE WOLF
COVENANTORS OR BY THE CHURCHLINK COVENANTORS, RESPECTIVELY. Each of the Lone
Wolf Covenantors and each of the ChurchLink Covenantors hereby, respectively,
covenant and agree that a breach by any of them of their respective foregoing
covenants of non-competition, as set forth in Section 11 (as to the Lone Wolf
Covenantors), and in Section 12 (as to the ChurchLink Covenantors) and/or of
their respective foregoing covenants of non-solicitation, as set forth in
Section 13 (as to the Lone Wolf Covenantors) and in Section 14 (as to the
ChurchLink Covenantors), would result in irreparable harm to the respective
beneficiaries of those covenants (i.e., ChurchLink and the Lone Wolf
Covenantors), which would be difficult, if not impossible, to ascertain, and
thus that there would not be an adequate remedy at law available to ChurchLink,
or to the Lone Wolf Covenantors, as applicable, as those said beneficiaries in
such event by reason of that fact. As a result, all of the Lone Wolf Covenantors
and all of the ChurchLink Covenantors, respectively, specifically agree that in
the event of any such breach by any of them of either of those said covenants,
that ChurchLink or the Lone Wolf Covenantors, as applicable, as the respective
beneficiaries thereof, or their respective successors or assigns, shall have the
right to enforce those covenants set forth in Sections 11 and 13 and Sections 12
and 14 of this Agreement, above, respectively, by injunction or by such other
appropriate proceeding in equity. In addition, if any of the Lone Wolf
Covenantors or the ChurchLink Covenantors shall breach the respective covenants
set forth as to them in Sections 11 and 13 and 12 and 14 of this Agreement, as
applicable, then ChurchLink and the Lone Wolf Covenantors, as the respective
16
15
beneficiaries of the said respective covenants, if it or they so elect, shall
also be entitled to recover from the respective Covenantors thereunder, as
applicable, the court costs, expenses and reasonable attorneys' fees incurred by
ChurchLink or the Lone Wolf Covenantors, respectively, as such beneficiaries in
connection with enforcing its or their respective rights hereunder and/or
pursuing any remedies available to it or them in enforcing such respective
rights, whether at law or in equity.
17. NOTICES. Any notice or other communication required or
permitted under this Agreement, or convenient to Lone Wolf or Naylor in the
consummation of the transactions contemplated hereby, shall be deemed delivered
when: (i) three (3) days after deposited in a receptacle of the United States
Postal Service, as registered or certified mail, return receipt requested,
postage prepaid, (ii) sent by electronic facsimile transmission (if receipt is
verified), (iii) personally delivered, or (iv) one (1) day after received by an
overnight courier service (which obtains a receipt evidencing delivery) and
shall be addressed as follows:
(a) Prestige or Zenex:
If to Lone Wolf,
Marc Newman, President and Chief
Executive Officer
Lone Wolf Energy, Inc.
201 S. Robert S. Kerr Avenue, Suite 500
Oklahoma City, OK 73102
Telephone: (405) 749-9999
Facsimile: (405) 749-9929
(b) If to Naylor:
Ricky A. Naylor, President and
Chief Executive Officer
Naylor Concrete Construction Co., Inc.
821 S. W. 66th Street
Oklahoma City, OK 73139
Telephone: (405) 631-8200
Facsimile: (405) 634-2126
Notwithstanding the foregoing, a notice of a change of address
by a Party hereto shall not be effective until received by the Party to whom
such notice of a change of address is sent. In addition, notwithstanding the
foregoing, with respect to any Notice given or made by electronic facsimile
transmission or similar device, such Notice shall not be effective unless and
until (i) the electronic facsimile machine being used prints a written
confirmation of the
17
16
successful completion of such communication by the Party sending the Notice, and
(ii) a copy of such Notice is deposited in first class mail to the appropriate
address for the party to whom the Notice is sent.
18. SUCCESSORS; SURVIVAL. The terms and conditions of this
Agreement shall be binding upon and inure to the benefit of the respective
successors, assigns, heirs and personal representatives of each of the Parties
hereto and all of the representations, warranties, covenants and agreements made
by each of the Parties in this Agreement shall survive the Closing of this
Agreement and the consummation of the transactions contemplated hereby.
19. RENT; PARKING; HEALTHCARE. ChurchLink agrees, on the
Closing Date, to remit to Lone Wolf the sum of $404.78, as repayment, in full,
for parking expenses of ChurchLink for the month of April, 2001, which has
heretofore been advanced by Lone Wolf. Lone Wolf agrees that it shall rent to
ChurchLink space in the present location of ChurchLink at the offices of Lone
Wolf in Bank of Oklahoma Building, for a monthly rent of $1,822.00, without
deduction (but reduced proportionately for early termination), for the months of
April and May, 2001. Lone Wolf or Zenex covenant and agree to fully pay: (i) all
accounts payable of ChurchLink as of March 31, 2001, and (ii) all payroll tax
deposits for the March, 2001 payroll, on or before the Closing Date. Commencing
April 1, 2001: (x) ChurchLink's payroll obligations, all expenses of health
insurance, parking and other employee benefits for employees of ChurchLink and
all accounts payable of ChurchLink shall be the sole obligation of ChurchLink,
and (y) all accounts receivable, cash and assets of ChurchLink shall be the sole
property of ChurchLink and Lone Wolf shall relinquish and waive any and all
right, title or interest it might otherwise have or have had with regard
thereto.
20. CHURCHLINK ASSETS. Except as the parties hereto shall
otherwise agree in writing, the assets listed on EXHIBIT 1, attached hereto,
constitute the sole physical assets of ChurchLink. Lone Wolf shall claim no
right, title or interest in those assets. In addition, Lone Wolf hereby
relinquishes any and all right, title and interest it has, or might be deemed to
have, in and to all source codes and programming source codes of ChurchLink
currently used in its business and to all other intellectual or intangible
property of ChurchLink. Lone Wolf represents and warrants that, as of the
Closing Date, all of the assets of ChurchLink listed on EXHIBIT 1, all of its
source codes and all of its programming source codes are solely owned by
ChurchLink and are free and clear of all liens, encumbrances, pledges, security
interests, claims or restrictions thereon of any kind or nature whatsoever,
except for the security interests and pledges created and granted to Ricky
Naylor to secure repayment of the Zenex Loan. Specifically, Lone Wolf covenants
and agrees to obtain the termination of record of UCC-1 Financing Statement
Document No. N0002722 filed by ChurchLink with the Oklahoma County Clerk, State
of Oklahoma, from the Secured Party named therein, namely, Futur Omega, L.L.C.,
on or before the Closing Date, together with a release of the Guaranty made,
executed and delivered by ChurchLink to Futur Omega, L.L.C., the performance of
which is secured by that certain Security Agreement made, executed and delivered
to it by ChurchLink dated June 8, 2000, to which the above-referenced UCC-1
Financing Statement pertains.
21. AMERICAN EXPRESS AND MERIDIAN DATA EXPENSE BILLINGS. Lone
Wolf shall be responsible for and shall pay all American Express charges of
ChurchLink through the
18
17
period ending on March 31, 2001. Lone Wolf shall thereafter not be responsible
for any other such American Express charges of ChurchLink. All advance payments
made by Lone Wolf to Meridian Data for the account of ChurchLink shall remain in
place for the benefit of ChurchLink, but Lone Wolf shall have no responsibility
or liability for any expenses charged by Meridian Data for the account of
ChurchLink from and after April 1, 2001.
22. INDEMNITIES BY LONE WOLF, PRESTIGE AND ZENEX. Each of Lone
Wolf, Prestige and Zenex ("Lone Wolf Indemnitors") hereby covenant and agree
from and after the Closing Date hereunder, to indemnify, defend and hold
harmless ChurchLink and Naylor ("ChurchLink Indemnitees") from and against and
in respect of any and all Damages, as that term is defined in Section 24 below,
that the ChurchLink Indemnitees shall incur, suffer or have asserted against
them, or any of them, following the Closing Date, which arise, result from or
relate to:
(a) Any breach of the representations or warranties
contained in Section 8 or elsewhere in the Agreement, or in the
Schedules or Exhibits attached hereto or in the documents or
information provided by the Lone Wolf Indemnitors to any of the
ChurchLink Indemnitees with regard to the transactions to be
consummated hereby; or
(b) Any claims asserted against the ChurchLink
Indemnitees with respect to any actions or omissions of the Lone Wolf
Indemnitors occurring prior to the Closing Date including, without
limitation, any and all liabilities (of any kind or nature), claims or
causes of action, relating to the operation of the business of
ChurchLink by the Lone Wolf Indemnitors prior to the Closing Date.
23. INDEMNITIES BY CHURCHLINK AND NAYLOR CONCRETE. Each of
ChurchLink and Naylor Concrete ("ChurchLink Indemnitors") shall indemnify,
defend and hold harmless Lone Wolf, Prestige and Zenex ("Lone Wolf Indemnitees")
from and against and in respect of any and all Damages, as that term is defined
in Section 24, below, that the Lone Wolf Indemnitees, or any of them, shall
incur, suffer or have asserted against them following the Closing Date, which
arise, result from or relate to:
(a) Any breach of the representations and warranties
of Naylor in Section 9, or elsewhere in the Agreement, or in the
Schedules or Exhibits attached hereto or in the documents or
information provided by the ChurchLink Indemnitors to any of the Lone
Wolf Indemnitees with regard to the transactions to be consummated
hereby or
(b) Any claims asserted against the Lone Wolf
Indemnitees, or any of them with respect to any actions or omissions of
the ChurchLink Indemnitors occurring after the Closing Date with regard
to the business of ChurchLink, including, without limitation, all
liabilities, claims and causes of action relating to the operation of
ChurchLink's business by the ChurchLink Indemnitors after the Closing
Date.
24. NOTICE OF INDEMNIFICATION CLAIM BY INDEMNIFIED PARTY;
DEFINITION OF DAMAGES. Any action reasonably brought by any party seeking
indemnification from the indemnifying parties pursuant to the provisions of
Sections 22 and 23, above, as applicable (the
19
18
party claiming indemnifications and the party against whom such claims are being
asserted being called hereinafter, the "Indemnified Party and the "Indemnifying
Party," respectively), can be brought only if the Indemnified Party has given
the Indemnifying Party reasonably timely written notice specifying the basis for
such indemnification claim under the provisions of Sections 22 and 23, above, as
applicable, which the Indemnified Party believes is probable of resulting in
indemnification hereunder based on any then existing set of facts or
circumstances known to the Indemnified Party. For all purposes under this
Agreement including, specifically, the provisions of Sections 22 and 23, above,
the term "DAMAGES" shall be deemed to mean the amount of the damages, costs,
expenses or losses incurred by the Indemnified Party, including court costs and
reasonable attorney fees, by reason of the act or failure to act that gave rise
to such claim for indemnity under Section 22 or Section 23, above, as
applicable: (i) net of any recoveries from third parties or insurance proceeds
received by the Indemnified Party relating to the respective Damages, but the
Indemnified Party under Sections 22 or 23, as the case may be, shall not be
obligated to commence any legal action to seek any such recoveries or insurance
proceeds, and (ii) net of any tax savings realized by the Indemnified Party,
i.e., the ChurchLink Indemnitees or the Lone Wolf Indemnitees, as the case may
be, relating to the same or any other tax period by reason of or relating to the
matter giving rise to the Damages. The respective obligations of the
Indemnifying Party under Section 22, or under Section 23, as the case may be,
shall not be impaired by the bankruptcy, insolvency, receivership or other
accommodation for the benefit of the creditors of the said respective
Indemnifying Party, as the case may be.
25. INDEMNIFICATION PROCEDURES. All claims for indemnification
by a party under Sections 22 or 23, above, as applicable (the party claiming
indemnification and the party against whom such claims are being asserted being
called hereinafter the "Indemnified Party" and the "Indemnifying Party,"
respectively), shall be asserted and resolved as follows:
In the event that any claim or demand for which an
Indemnifying Party would be liable to an Indemnified Party is asserted against
or sought to be collected from such Indemnified Party by a third party, such
Indemnified Party shall with reasonable promptness give notice (the "Claim
Notice") to the Indemnifying Party of such claim or demand, specifying the
nature of and a specific basis for such claim or demand and the amount or the
estimated amount thereof to the extent then feasible (which estimate shall not
be conclusive of the final amount of such claim or demand). The Indemnifying
Party shall not be obligated to indemnify the Indemnified Party under this
Agreement with respect to any such claim or demand if the Indemnified Party
fails to notify the Indemnifying Party thereof in accordance with the terms of
this Agreement, and as a result of such failure, the Indemnifying Party's
ability to defend against the claim or demand is materially prejudiced. The
Indemnifying Party shall have twenty (20) days from the day of its receipt of
the Claim Notice (the "Notice Period") to notify the Indemnified Party (i)
whether or not it disputes the liability of the Indemnifying Party to the
Indemnified Party hereunder, with respect to such claim or demand, and (ii)
whether or not it desires, at the cost and expense of the Indemnifying Party, to
defend the Indemnified Party against such claim or demand, provided, however,
that any Indemnified Party is hereby authorized, but is not obligated, prior to
and during the Notice Period, to file any motion, answer or other pleading that
it shall deem necessary or appropriate to protect its interests or those of the
Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party
within the Notice Period that it desires to defend the Indemnified Party against
such claim or demand, the
20
19
Indemnifying Party shall have the right to control the defense against the claim
by all appropriate proceedings and any settlement negotiations, provided that to
the satisfaction of the Indemnified Party, the Indemnifying Party shall secure
the Indemnified Party against such contested claims by providing adequate
security. If the Indemnified Party desires to participate in, but not control,
any such defense or settlement, it may do so at its sole cost and expense. If
the Indemnifying Party fails to respond to the Indemnified Party within the
Notice Period, elects not to defend the Indemnified Party, or after electing to
defend, fails to commence or reasonably pursue such defense, then, the
Indemnified Party shall have the right, but not the obligation, to undertake or
continue the defense of, and to compromise or settle (exercising reasonable
business judgment), the claim or other matter all on behalf of, for the account
and at the risk of the Indemnifying Party. If requested by the Indemnifying
Party, the Indemnified Party agrees, at the Indemnifying Party's expense and
upon presentation of adequate security for the payment of such expenses, to
cooperate with the Indemnifying Party and its counsel in contesting any claim or
demand which the Indemnifying Party elects to contest, or, if appropriate and
related to the matter in question, in making any counterclaim against the person
asserting the third party claim or demand, or any cross-complaint against any
such person. Notwithstanding the foregoing, no claim as to which indemnification
is sought under the provisions of this Agreement may be settled in any event
without the prior written consent of the Indemnifying Party.
26. ADDITIONAL ACTIONS AND DOCUMENTS. Each of the Parties
hereto shall take or cause to be taken further actions, execute and deliver or
cause to be executed and delivered such further instruments and use best efforts
to obtain such requisite consents as any of the other Parties may from time to
time reasonably request in order to fully effectuate the purposes, terms and
conditions of this Agreement.
27. TIME. Time is of the essence of this Agreement.
28. MODIFICATION; ENTIRE AGREEMENT. This Agreement may only be
amended or modified by an instrument in writing executed by all of the Parties.
This Agreement constitutes the entire agreement among the Parties and supersedes
and replaces all prior written and oral negotiations, warranties, statements and
agreements among the Parties hereto with respect to the subject matter hereof.
29. PARTIAL INVALIDITY. If a part of this Agreement is
declared to be illegal or unenforceable by a court of competent jurisdiction,
then the remainder shall be construed as a valid, enforceable contract, if
practical.
30. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and the rights of the Parties shall be governed by,
the laws and decisions of the State of Oklahoma.
31. REMEDIES. On a breach of this Agreement, any non-breaching
party hereto may maintain an action for specific performance against the party
or Parties hereto who are alleged to have breached any of the terms, conditions,
representations, warranties or agreements herein contained, and exercise all
other rights and remedies at law or in equity to which such party may be
entitled. Should either party be required to institute an action to
21
20
enforce the terms of this agreement, the unsuccessful party to such action shall
be obligated to pay the prevailing party's costs, including court costs and
reasonable attorney's fees, incurred in such action.
32. FEES AND EXPENSES. Each of the Parties will pay its own
expenses incurred in connection with the preparation, negotiation, execution,
delivery and consummation of this Agreement and the transactions contemplated by
this Agreement.
33. ENTIRE AGREEMENT. This Agreement, including the schedules,
lists and other documents referred to in this Agreement which form a part of
this Agreement, embody the entire agreement and understanding of the Parties in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties, covenants or undertakings, other than those
set forth or referred to in this Agreement. This Agreement supersedes all prior
agreements and understandings between the Parties with respect to each subject
matter.
IN WITNESS WHEREOF, the Parties have executed this Agreement
effective on the date first above written.
LONE WOLF: LONE WOLF ENERGY, INC.,
a Colorado corporation
By: /s/ Marc W. Newman
---------------------------
Name: Marc w. Newman
Title: President
Date: April 12, 2001
PRESTIGE: PRESTIGE INVESTMENTS, INC.,
an Oklahoma corporation
By: /s/ Marc W. Newman
---------------------------
Name: Marc W. Newman
Title: President
Date: April 12, 2001
22
21
ZENEX: ZENEX LONG DISTANCE, INC.,
d/b/a Zenex Communications, Inc.
an Oklahoma corporation
By: /s/ Brian Gustas
---------------------------
Name: Brian Gustas
Title: President
Date: April 12, 2001
CHURCHLINK: CHURCHLINK.COM, INC.,
an Oklahoma corporation
By: /s/ Robert N. Boyles
---------------------------
Name: Robert N. Boyles
Title: President
Date: April 12, 2001
NAYLOR CONCRETE: NAYLOR CONCRETE CONSTRUCTION CO.,
INC., an Oklahoma corporation
By: /s/ Ricky A. Naylor
---------------------------
Name: Ricky A. Naylor
Title: President and Chief
Executive Officer
Date: April 12, 2001
RICKY NAYLOR: /s/ Ricky A. Naylor
------------------------------
RICKY A. NAYLOR, an individual
23