SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 16, 1999
Colmena Corp. (Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation)
0-27842 (Commission File Number)
54-1778587 (IRS Employer Identification No.)
25100 Detroit Road, Westlake, Ohio 44145 (Address of principal executive
offices) (Zip Code)
Registrant's telephone number, including area code: (440) 871-5000
Not applicable. (Former name or former address, if changed since last
report)
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Item 2. Acquisition or Disposition of Assets
On March 16, 1999, the Registrant entered into an agreement with its
president, pursuant to which the three subsidiaries currently owned by the
Registrant are to be disposed of, as follows:
1. Techtel Communications, Inc. ("Techtel"), a Florida corporation:
20% of Techtel's common stock will be distributed to the Registrant's
stockholders pursuant to the Division of Corporate Finance's Staff Legal
Bulletin Number 4, after completion of the Registrant's audit for 1998, filing
of all the Registrant's delinquent reports with the Securities and Exchange
Commission (the "Commission") and the filing and effectiveness of a registration
statement on Commission Form 10-SB for Techtel. The balance will be used to
compromise or settle outstanding liabilities of Techtel, including liabilities
to Mr. Peplin.
2 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"):
All of the Subsidiaries common stock shall be transferred to Mr. Peplin,
who will thereafter, at the Registrant's expense, file for protection of the
Subsidiaries from creditors pursuant to Chapter 7 of the United States
Bankruptcy Code. Any proceeds remaining after completion of such proceeding will
be used to discharge obligations of Techtel or the Registrant and if any
proceeds remain after such payments (an unlikely event), such sums will be paid
to the Registrant.
The foregoing actions are being undertaken by the Registrant at the
recommendation of the Yankee Companies, Inc., a Florida corporation ("Yankees")
serving as the Registrant's strategic consultant, based on Yankees determination
that the current litigation and regulatory proceedings involving the
Subsidiaries and Techtel, are, in the aggregate, detrimental to any prospects
for the Registrant to continue or acquire any promising business ventures. As a
result of such divestitures, the Registrant hopes to limit or avoid financial
and regulatory exposure. No assurances can, however, be provided that the
Registrant's goals will be attained.
A copy of the Registrant's agreement with Mr. Peplin, together with the
resolution of the Registrant's Board of Directors approving such agreement, are
filed as exhibits hereto.
Item 5. Other
Anthony Q. Joffe currently a member of the Registrant's Board of Directors
has been elected as the Board Chairman. See Minutes annexed as an exhibit to
this report.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Item Page Description
10.b-3 3 Reorganization agreement with Richard C. Peplin, Jr.
99.b-2 9 Minutes of Directors Meeting approving reorganization
agreement with Richard C.Peplin, Jr.,dated January 12, 1999
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COLMENA CORP.,
A Delaware corporation
(Registrant)
Date: March 16, 1999 By: /s/Richard C. Peplin, Jr.
Richard C. Peplin, Jr., President
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 Richard C.
Peplin, Jr., an Ohio resident ("Mr. Peplin;" Colmena and Mr.
Peplin
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, Mr.
Peplin 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 Mr. Peplin
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
Peplin 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
Mr. Peplin and Colmena hereby agree to reorganize as follows:
1.1 Colmena hereby conveys to the order of Mr. Peplin (expecting that
Mr. Peplin 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 Mr. Peplin's 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 Mr. Peplin 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, Mr. Peplin, 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 Mr. Peplin, to a principal
of Yankees and to other persons, based on negotiations to be conducted by
Yankees.
1.5 Mr. Peplin, 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 Peplin 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. Richard Chamberlin, General Counsel
Colmena Corp.
14950 Southeast United States Highway 441; Summerfield, Florida 34491 Telephone
(352) 694-6714; Fax (352) 694-9178; and, e-mail [email protected]
with copies to
Richard C. Peplin, Jr., President
Colmena Corp.
25100 Detroit Road; Westlake, Ohio 44145; and to
and
The Yankee Companies, Inc.
902 Clint Moore Road, Suite 136; Boca Raton, Florida 33487
To Mr. Peplin:
Richard C. Peplin, Jr..
25100 Detroit Road; Westlake, Ohio 44145; 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 EDGAR 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/ Richard C/ Peplin, Jr. /s/
Richard C. Peplin, Jr., President
(CORPORATE SEAL)
Attest: /s/ Vanessa H. Lindsey /s/
Vanessa H. Lindsay, Secretary
Dated: March 16, 1999
Mr. Peplin:
- ---------------------------------
/s/ Richard C. Peplin, Jr. /s/
- --------------------------------- -------------------------------
Richard C. Peplin, Jr., on his own behalf
and on behalf of his designee
Dated: March 16,1999
Colmena Corp.
A publicly held Delaware corporation
Minutes of Special Meeting of Board of Directors
A special meeting of the Board of Directors for Colmena Corp. (the "Board"
and the "Company," respectively), was held by telephone conference on March 3,
1999, at 3:00 P.M., after provision of notice to all members by telephone and
facsimile transmission. A copy of such notice is appended hereto as exhibit "A".
All exhibits were provided to the participants by facsimile transmission.
The following Directors were present at the telephone conference meeting
held on March 3, 1999: Mr. Peplin, Mr. Gigliotti, Mr. Joffe, Ms. Field, and
Mr. Champion. Also present were Vanessa Lindsey, Secretary and G. Richard
Chamberlin, Esq., General Counsel.
The following Directors were absent: None.
The meeting was called to order by Mr. Joffe, the acting chairman,
Whereby a motion was made and duly seconded and unanimously approved by all
members present, that Anthony Q. Joffe be duly elected Chairman of the Board, to
serve as such, at the pleasure of the Board. Thereafter Mr. Joffe accepted the
position.
The meeting was called for the purpose of ratification and/or approval of a
certain Reorganization Agreement dated March 3, 1999 wherein Colmena conveys to
Mr. Peplin (expecting that Mr. Peplin will designate a newly organized
corporation) all of its rights, title and interest in and to all of the Capital
Stock of two of the Company's subsidiaries.
The Board members then discussed the following:
1. The Company 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.
("RCP") and Business Technology Systems, Inc., a Florida corporation ("BTS").
2. Richard C. Peplin, Jr.for the benefit of Colmena and its stockholders, is
willing, through a new corporation to be organized, to assume ownership and
control of two of the subsidiaries, for purposes of liquidating them under
Chapter 7 of the United States Bankruptcy Code or for the purposes of resolving
certain various financial and legal issues concerning the subsidiaries, provided
that Colmena agree to bear all expenses associated with such proceedings and any
other litigation involved, and further, that Colmena agree to spin 20% of
Techtel out to Colmena's stockholders, as permitted under Securities and
Exchange Commission ("SEC"), Division of Corporate Finance Staff Legal Bulletin
Number 4 the balance of 80% of it's stock to be used to set off existing debt
including debts owed to Mr. Peplin.
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3. The reorganization provides that Colmena 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 Bulletin Number 4, the remaining
80% to be used to settle outstanding liabilities of Techtel to Mr. Peplin, to a
principal of Yankees and to other persons, based on negotiations to be conducted
by Yankees.
4. To facilitate the above, Peplin requests that Colmena agree to pay all
reasonable costs required to effect a liquidation of the Subsidiaries by Mr.
Peplin's designee pursuant to Chapter 7 of the United States Bankruptcy Code or
to defend any resulting litigation or regulatory actions; provided that, all
work required is effected through Colmena's attorneys and that Mr. Peplin and
his designees waive any resulting conflicts of interest associated with such
representation.
5. That Mr. Champion indicated that the Chapter 7 Bankruptcy of International
Telemedia Associates, Inc., (hereinafter referred to as "ITA"), Case No.
98-755533-SWC, Northern District of Georgia, may result in the disbursement of
proceeds from sale to certain creditors including, RCP. Mr Peplin indicated that
pending litigation with the State of Illinois and prospective litigation with
the Federal Trade Commission, and other litigation issues would likely offset,
most, if not all of the proceeds so gained by RCP. Wherein, Mr. Peplin offered
to pay Colmena any net proceeds resulting from the difference between the total
proceeds received from the Trustee of Bankruptcy for ITA and those liabilities
of RCP that now exist, and those liabilities that may result from litigation now
pending with the State of Illinois, People v. RCP Communications, 98-CH-112,
Sangamon County, Illinois, and litigation that may be instituted by the Federal
Trade Commission.
6. Mr. Chamberlin addressed the Board for the purposes of discussing the
importance of preparing the draft for the 10-KSB for 1998 that is now past due.
Mr. Chamberlin requested that Penny Field forward the appropriate draft to him
in order that the proper due diligence can be completed. Mr. Chamberlin also
asked that all Board Members cooperate and make a priority an immediate response
to all due diligence requests.
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1 Resolved, that Anthony Q. Joffe be duly elected Chairman of the Board,
to serve as such, at the pleasure of the Board. Thereafter Mr. Joffe
accepted the position.
Please Initial:
Mr. Champion: ___ Mr. Joffe: ___ Ms. Field: ___ Mr. Peplin ___
Mr. Gigliotti ____
2. Resolved, that the Reorganization Agreement dated March 3, 1999, with
Richard Peplin, Jr. is hereby approved, ratified and accepted with the
following addition of a two new paragraphs 1.5 and 1.6 to be added to
page 2, Section One, to the effect that:
1.5 Mr. Peplin agrees to pay Colmena any net proceeds resulting from the
difference between the total proceeds received from the Trustee of Bankruptcy
for International Telemedia Associates, Inc. and those liabilities of RCP, BTS,
and Techtel, that now exist, and those liabilities that may result from
litigation now pending, including but not limited to litigation with the State
of Illinois, People v. RCP Communications, 98-CH-112, Sangamon County, Illinois,
and litigation that may be instituted by the Federal Trade Commission and other
possible litigation involving these three companies.
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.
With the addition of these new paragraphs,the Board hereby agrees to approve
and accept the provisions of the duly Amended Reorganization Agreement. The
Secretary of the Corporation is authorized to sign this Amended Reorganization
Agreement, binding the Board as if each board member, except for Mr. Peplin, who
excuses himself from so signing due to the conflict of interests that he has in
doing same.
Please Initial:
Mr. Peplin should not initial due to conflict of interests:
Mr. Joffe: ___ Ms. Field: ___ Mr. Champion ___ Mr. Gigliotti ____
Having adopted the foregoing resolutions, upon motion duly made, seconded and
unanimously adopted, the Board meeting was terminated.
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The foregoing, based on our best recollection and notes, constitute the
actions taken at such special meeting of the Board, and by our execution of
these minutes and initials on each page and under each resolution adopted, we do
so confirm, effective as of this 3rd day of March, 1999.
/s/ Anthony Q. Joffe /s/
------------
Anthony Q. Joffe
Chairman of the Meeting
Director
/s/ Richard Peplin /s/
--------------
Richard Peplin
except he withholds his vote on Resolution 2
for reasons of conflict of interest
President
/s/ Charles Champion /s/
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Charles Champion
Director
/s/ Penny L. Adams Field /s/
-------------
Penny Field
Director
/s/ Robert Gigliotti /s/
----------------
Robert Gigliotti
Director
