Reorganization Agreement
This Reorganization Agreement (the "Agreement") is made and entered into by
and among Colmena Corp., a publicly held Delaware corporation with a class of
securities registered under Section 12(g) of the Securities and Exchange Act of
1934, as amended ("Colmena" and the "Exchange Act," respectively) and Xxxxxxx X.
Xxxxxx, Xx., an Ohio resident ("Xx. Xxxxxx;" Colmena and Xx.
Xxxxxx
being collectively referred to as the "Parties" and each being sometimes
hereinafter generically referred to as a "Party").
Preamble:
WHEREAS, Colmena is a publicly held holding company which owns a group of
operating subsidiaries, to wit Techtel Communications, Inc. ("Techtel"); T2U
Co.( formerly known as RCP Enterprises, Inc.), a Delaware corporation doing
business as RCP Communications Group, Inc. ("T2U") and Business Technology
Systems, Inc., a Florida corporation ("BTS"), T2U and BTS being hereinafter
collectively referred to as the "Subsidiaries;" and
WHEREAS, Colmena has retained the Yankee Companies, Inc., a Florida
corporation ("Yankees"), to assist it to resolve major strategic and operating
difficulties stemming from a lack of operating income occasioned by a default in
the payment of approximately $1,800,000 due to T2U, and Yankees has advised
Colmena that it is in the best interests of Colmena, because of economic and
regulatory problems involving Techtel and the Subsidiaries, to divest itself
thereof; and
WHEREAS, subject to the covenants and conditions set forth below, Xx.
Xxxxxx is, for the benefit of Colmena and its stockholders, willing, through a
new corporation to be organized, to assume ownership and control of the
Subsidiaries, for purposes of liquidating them under Chapter 7 of the United
States Bankruptcy Code, provided that Colmena agree to bear all expenses
associated with such proceedings and any other litigation involved, and further,
that Colmena agree to spin Techtel out to Colmena's stockholders, as permitted
under Securities and Exchange Commission ("SEC"), Division of Corporate Finance
Staff legal Bulletin Number 4; and
WHEREAS, Colmena is agreeable to the foregoing, provided that Xx. Xxxxxx
and his designee agree that any net assets remaining after liquidation of the
Subsidiaries be used to pay taxes and liabilities of Techtel guaranteed by
Xxxxxx or Colmena, with the net balance to be returned to Colmena:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
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Witnesseth:
First: Terms of Reorganization
Xx. Xxxxxx and Colmena hereby agree to reorganize as follows:
1.1 Colmena hereby conveys to the order of Xx. Xxxxxx (expecting that
Xx. Xxxxxx will designate a newly organized corporation) all of its right, title
and interest in and to all of the capital stock of the Subsidiaries.
1.2 Colmena hereby agrees to pay all reasonable costs required to effect
a liquidation of the Subsidiaries by Xx. Xxxxxx'x designee pursuant to Chapter 7
of the United States Bankruptcy Code and to defend any resulting litigation or
regulatory actions; provided that, all work required is effected through
Colmena's attorneys and that Xx. Xxxxxx and his designees waive any resulting
conflicts of interest associated with such representation
1.3 Subject to the covenants reflected in Section 1.2, which shall also
constitute conditions subsequent, Xx. Xxxxxx, on behalf of his designee, hereby
accepts the conveyance effected pursuant to Section 1.1
1.4 Colmena further hereby agrees to spin out 20% of the capital stock
of Techtel to its stockholders under the parameters established by SEC Division
of Corporate Finance Staff legal Bulleting Number 4, the remaining 80% to be
used to settle outstanding liabilities of Techtel to Xx. Xxxxxx, to a principal
of Yankees and to other persons, based on negotiations to be conducted by
Yankees.
1.5 Xx. Xxxxxx, on his own behalf and on behalf of his designees to
which the Subsidiaries are transferred, if any, hereby irrevocably agrees that
any net assets remaining after liquidation of the Subsidiaries will be used to
pay taxes and liabilities of Techtel guaranteed by Xxxxxx or Colmena, with the
net balance returned to Colmena, such net balance interest to be represented by
a security interest memorialized in one ore more Forms UCC-1 to be filed in each
state in which the Subsidiaries have any assets, whether tangible, intangible or
inchoate, such forms to be filed concurrently with the assignment of the
Subsidiaries securities.
1.6 The transactions contemplated hereby are to be effected as soon as
possible following execution of this Agreement by and through Colmena's officers
and general counsel.
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Second Miscellaneous
2.1 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is evinced by a written instrument, subscribed by
the Party against which such modification, waiver, amendment, discharge or
change is sought.
2.2 Notice.
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly given on the first business day
after mailing by United States registered or unaudited mail, return receipt
requested, postage prepaid, addressed as follows:
To Colmena:
G. Xxxxxxx Xxxxxxxxxx, General Counsel
Colmena Corp.
00000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxx 000; Xxxxxxxxxxx, Xxxxxxx 00000 Telephone
(000) 000-0000; Fax (000) 000-0000; and, e-mail XxxxxxxXx@xxx.xxx
with copies to
Xxxxxxx X. Xxxxxx, Xx., President
Colmena Corp.
00000 Xxxxxxx Xxxx; Xxxxxxxx, Xxxx 00000; and to
and
The Yankee Companies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
To Xx. Xxxxxx:
Xxxxxxx X. Xxxxxx, Xx..
00000 Xxxxxxx Xxxx; Xxxxxxxx, Xxxx 00000; and to
or such other address or to such other person as any Party shall designate to
the other for such purpose in the manner hereinafter set forth or as may be
reflected in the SEC's XXXXX Internet web site.
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2.3 Merger.
This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein. All prior agreements whether written or oral
are merged herein and shall be of no force or effect.
2.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
2.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
2.6 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceedings pertaining directly or indirectly to the rights
or obligations of the Parties hereunder shall, to the extent legally permitted,
be held in Palm Beach County, Florida.
2.7 Indemnification.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other Parties
harmless from any and all liabilities and damages (including legal or other
expenses incidental thereto),contingent, current, or inchoate to which they or
any one of them may become subject as a direct, indirect or incidental
consequence of any action by the indemnifying Party or as a consequence of the
failure of the indemnifying Party to act, whether pursuant to requirements of
this Agreement or otherwise; provided that, such claims are asserted by third
parties unrelated to the Parties.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be entitled
to recover from the indemnifying Party, all costs incurred including
reasonable attorneys' fees throughout any negotiations, trials or appeals,
whether or not any suit is instituted.
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2.8 Litigation.
In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
2.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
2.10 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
2.11 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
2.12 Further Assurances.
The Parties agree to do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement. 2.13
Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship, rather, the relationships
established hereby are those of settling debtor and creditor.
2.14 Counterparts.
(a)This Agreement may be executed in any number of counterparts.
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(b)All executed counterparts shall constitute one Agreement notwithstanding that
all signatories are not signatories to the original or the same counterpart.
(c)Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement, which
shall be the document filed with the Securities and Exchange Commission.
2.15 License.
(a)This Agreement is the property of Yankees.
(b)The use hereof by the Parties is authorized hereby solely for purposes of
this transaction and, the use of this form of agreement or of any derivation
thereof without Yankees' prior written permission is prohibited.
(c)The Parties hereby acknowledge that Yankees is not a law firm or regulated
entity and has not provided any Party with any advice concerning this Agreement,
rather, it has informed each Party, as a condition to their use of this form
that they must obtain independent legal advice.
* * *
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In Witness Whereof, the Parties have caused this Agreement to be executed
effective as of the last date set forth below.
Signed, Sealed and Delivered
In Our Presence:
Colmena Corp.
---------------------------------
_________________________________ By: /s/ Xxxxxxx C/ Xxxxxx, Jr. /s/
Xxxxxxx X. Xxxxxx, Xx., President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx, Secretary
Dated: March 16, 1999
Xx. Xxxxxx:
---------------------------------
/s/ Xxxxxxx X. Xxxxxx, Xx. /s/
--------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx, Xx., on his own behalf
and on behalf of his designee
Dated: March 16,1999
