AGREEMENT FOR PURCHASE AND SALE OF ASSETS
By and among
RCP COMMUNICATIONS GROUP, INC.
COLMENA CORP.
And
BUSINES TECHNOLOGY SYSTEMS, INC.
TABLE OF CONTENTS Page
ARTICLE I PURCHASE AND SALES OF ASSETS 1
1.1 Purchase and Sale of Assets 1
1.2 Purchase Price 1
ARTICLE II REPRESENTATIVES AND WARRANTIES OF SELLER 2
2.1 Organization 2
2.2 Subsidiaries 2
2.3 Financial Statements 2
2.4 No Adverse Changes 2
2.5 Liabilities 3
2.6 Tax Returns 3
2.7 Leases 3
2.8 Tangible Personal Property 3
2.9 Tradenames and Licenses 3
2.10 Title to Assets 4
2.11 Service Contracts 4
2.12 Compliance with Laws 4
2.13 Litigation 4
2.14 No Violation or Breach 5
2.15 Authority and Consents 5
2.16 Disclosure 5
ARTICLE III BUYER'S REPRESENTATIONS AND WARRANTIES 5
3.1 Organization 5
3.2 Authority and Consent 5
ARTICLE IV SELLER'S OBLIGATIONS BEFORE CLOSING 6
4.1 Confidentiality 6
4.2 Conduct of Business in Normal Course 6
4.3 Exclusivity 6
4.4 Bulk Sales Law 6
ARTICLE V BUYER'S OBLIGATIONS BEFORE CLOSING 7
5.1 Confidentiality 7
5.2 Consents of Third Party 7
5.3 Sales Tax Documents 7
ARTICLE VI CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE 8
6.1 Buyer'S Due Diligence 8
6.2 Seller's Representations and Warranties 8
6.3 Performance by Seller 8
6.4 Material Adverse Change 9
6.5 Absence of Litigation 9
6.6 Board /Shareholder Approval 9
6.7 Florida Tax Clearance 9
6.8 Consents 9
6.9 Corporate Approval 9
6.10 Approval of Documentation 9
Page 96
<PAGE>
ARTICLE VII CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE 9
7.1 Consents 10
7.2 Accuracy of Buyer's Representations and Warranties 10
7.3 Buyer's Performance 10
7.4 Corporate Approval 10
7.5 Absence of Litigation 10
ARTICLE VIII OTHER AGREEMENT 10
8.1 Seth's Employment Agreement 10
ARTICLE IX THE CLOSING 11
9.1 Closing Date 11
9.2 Seller's Obligations at Closing 11
9.3 Buyer's Obligations at Closing 12
ARTICLE X SELLER'S OBLIGATIONS AFTER CLOSING 12
10.1 Seller's Indemnity 12
10.2 Seller's Name 12
ARTICLE XI BUYER'S OBLIGATIONS AFTER CLOSING 13
11.1 Buyer'S Indemnity 13
ARTICLE XII PUBLICITY 13
ARTICLE XIII COSTS 13
13.1 Finder's or Broker's Fees 13
13.2 Expenses 13
ARTICLE XIV FORM OF AGREEMENT 14
14.1 Effect of Headings 14
14.2 Entire Agreement; Waiver 14
14.4 Schedules 14
ARTICLE XV PARTIES IN INTEREST 14
15.1 Parties in Interest 14
15.2 Assignment 14
ARTICLE XVI REMEDIES 15
16.1 Specific Performance and Waiver of Rescission Rights 15
16.2 Recovery of Litigation Costs 15
16.3 Conditions of Permitting Termination 15
16.4 Defaults Permitting Termination 15
ARTICLE XVII NATURE AND SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS 16
ARTICLE XVII NOTICES 16
ARTICLE XIX GOVERNING LAW 17
ARTICLE XX SEVERABILITY 17
SCHEDULES AND EXHIBITS
SCHEDULE A - List of Assets
SCHEDULE B - List of Liabilities
SCHEDULE C - List of Trade Names and Licenses
EXHIBIT A - Current Income Statement and Balance Sheet
EXHIBIT B - Copy of all Leases
EXHIBIT C - Employment Contract
PAGE 97
<PAGE>
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement of Purchase and Sales of Assets ("Agreement") is made as
of February 19, 1998, between Colmena Corp., a Delaware corporation ("Colmena"),
the wholly-owned subsidiary of Colmena, RCP Communications Group, Inc., a
Delaware corporation (hereinafter collectively referred to as "Buyer") Buyer
having its principal office at 25100 Detroit Road, Westlake, Ohio 44145, and
Business Technology Systems, Inc., a Florida corporation ("Seller") having its
principal office at 4100 N. Powerline Road, Suite P6, Pompano Beach, Florida
33073.
Buyer desires to purchase from Seller and Seller desires to sell to
Buyer, on the terms and subject to the conditions of this Agreement, certain
assets and business of Seller in exchange for One Hundred Thousand Dollars
($100,000) cash, shares of common stock in Colmena, and assumption of certain
specified liabilities of Seller. In consideration of the mutual covenants,
agreements, representatives and warranties contained in this Agreement, the
parties agree as follows:
ARTICLE I
PURCHASE AND SALES OF ASSETS
1.1 Purchase Assets. Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell, convey, transfer, assign, and deliver to
Buyer, and Buyer agrees to purchase from Seller, certain assets, properties, and
communication business of Seller described on Schedule A (all of which are
sometimes collectively referred to as the "Assets").
1.2 Purchase Price.
As payment for the transfer of the Assets to Buyer, Buyer shall deliver at
the Closing, in accordance with the provisions of paragraph 9.3, the following:
(a) Cash One Hundred Thousand Dollars ($100,000) payable in cash or by
cashiers check.
(b) Common Stock. Issuance by Colmena to Seller of One Hundred Thousand
(100,000) shares of Colmena common stock, $.01 par value ("Shares"). The Shares
shall not be registered under the Securities Act of 1933, as amended (the "Act")
and shall constitute "restricted securities" as defined in the Act.
(c) Assumption of Certain Liabilities. Buyer agrees that on the Closing
Date it will assume and agree to perform and pay when due the Seller's
liabilities set forth on Schedule B.
Page 98
<PAGE>
(d) Piggyback Registration Rights. The Shares delivered Seller under this
Article 1 will carry piggyback registration rights expiring on the date one year
following the Closing (as herein defined); providing that if Colmena proposes to
register any of its securities under the Act (except for registrations on Forms
S-8 or 5-4 or their equivalent), it will give written notice by registered mail,
at least thirty (30) days prior t the filing of each such registration
statement, to Seller of its intention to do so. If Seller notifies the Buyer
within twenty (20) days after receipt of any such notice of its desire to
include any such Shares in such proposed registration statement, the Buyer shall
afford Seller the opportunity to have any such Shares registered under such
registration statement at the Buyer's sole cost and expense. These rights may be
exercised at any time on an unlimited number of occasions prior to expiration,
subject to the discretion of any underwriter of Colmena's securities requesting
that the Shares held by the Seller not be sold for a period not to exceed one
hundred and eighty (180) days from the effective date of such underwritten
public offering. If the underwriter believes that the total amount of securities
sought to be registered by the Seller and any other holder of similar rights
exceeds the amount of securities that the underwriter deems advisable to include
in the offering, only the pro rata number of Shares requested by the Seller with
all other holders of securities registration pursuant to piggyback registration
rights, if any, shall be so registerable.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants that:
2.1 Organization. Seller is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Florida, has all necessary
powers to own its properties and to carry on its business as now owned and
operated by it, and is duly qualified to do intrastate business and is in good
standing in all jurisdictions in which the nature of Seller's business or of its
properties makes such qualification necessary.
2.2 Subsidiaries. Seller does not own, directly or indirectly, any interest
or investment (whether equity or debt) in any corporation, partnership,
business, trust, or other entity.
2.3 Financial Statements. Exhibit A to this Agreement sets forth the
unaudited balance sheet of Seller as of December 31, 1997, and the profit and
loss statement of Seller for the period of January 1, 1997 through December 31,
1997.
2.4 No Adverse Changes. Since December 31, 1997, thee has not been any
changes in the financial condition or operation of Seller, except changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse.
Page 99
<PAGE>
2.5 Liabilities. Seller has no debts, liabilities, or obligations of any
nature, whether accrued, absolute, contingent, or otherwise, and whether due or
to become due, other than those set forth in the financial statements.
2.6 Tax Returns. Within the times and in the manner prescribed by law,
Seller has filed all federal, state, and local tax return required by law and
has paid all taxes, assessments, and penalties due and payable. The provisions
for taxes reflected in Seller's balance sheet as of December 31, 1997, are
adequate for any and all federal, state, county, and local taxes for the period
ending on the date of that balance sheet and for all prior periods, whether or
not disputed. There are no present disputes as to taxes of any nature payable by
Seller
2.7 Leases. Exhibit B to this Agreement is a complete and accurate
description of all equipment and a legal description of each parcel of real
property leased to Seller. All the leases listed in Exhibit B are valid and in
full force, and there does not exist any default or event that with notice or
lapse or time, or both, could constitute a default under any of these leases.
The zoning of each parcel of property described in Exhibit B permits the
presently existing improvements and the continuation of the business presently
being conducted on such parcel. Seller has not commenced, nor has Seller
received notice of the commencement of, any proceeding that would affect the
present zoning classification of any such parcel.
2.8 Tangible Personal Property. The books and records of Seller contain a
complete and accurate description, and specify, the location of all trucks,
automobiles, machinery, equipment, furniture, supplies, computer hardware, and
all other tangible personal property owned by, in the possession of, or used by
Seller ion connection with its business. No personal property used by Seller in
connection with its business is held under any lease, security agreement,
conditional sales contract, or other title retention or security arrangement, or
is other than in the possession and under the control of Seller. The tangible
personal property reflected in those books and records constitutes all such
tangible personal property necessary for the conduct by Seller of its business
as now conducted.
2.9 Tradenames and Licenses. Schedule C to this Agreement is, a schedule of
all trade names, trademarks, service marks, and copyrights and their
registrations, owned by Seller or in which its has any rights or licenses,
together with a brief description of each. Seller has no knowledge of any
infringement or alleged infringement by others of any such trade name,
trademark, service mark, or copyright. Seller has not infringed, and is not now
infringing, on any trade name, trademark, service mark, or copyright belonging
to any other person, firm or entity. Except as set forth in Schedule C, Seller
is not a party to any license, agreement, or arrangement, whether as licensor,
licensee, franchiser, franchisee, or other arise, with respect to any
trademarks, service marks, trade names, or applications for them, or any
copyrights. Seller owns, or hold adequate licenses or other rights to use, all
trademarks, service marks, trade names, and copyrights necessary for its
business as now, conducted by them, including, without limitation, those listed
in Schedule C, and that use does not, and will not, conflict with, infringe on,
or otherwise violate any rights of others. Seller has the right to sell or
assign to Buyer all such owned trademarks, trade names, service marks, and
copyrights, and all such licenses or other rights.
Page 100
<PAGE>
2.10 Title to Assets. Seller has good and marketable title to all its
assets and interests in assets, whether real, personal, mixed, tangible, or
intangible, which constitute all the assets and interests in assets that are
used in the business of Seller. All these assets are free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
mortgages, liens, pledges, charges, encumbrances, equities, claims, easements,
rights of way, covenants, conditions, or restrictions, except for: (1) those
disclosed in Seller's balance sheet attached hereto as Exhibit A, or in Schedule
B to this Agreement: (2) the lien of current taxes not yet due and payable; and
(3) possible minor matters that, in the aggregate, are not substantial in amount
and do not materially detract from or interfere with the present or intended use
of any of these assets or materially impair business operations. Seller is not
in default or in arrears in any material respect under any lease. All real
property, tangible and intangible personal property of Seller is in good
operating condition and repair, ordinary wear and tear expected.
2.11 Service Contracts. Seller has provided Buyer with copies of all
contracts pursuant to which Seller is obligated to provide services to its
customers. There is no default or event that, with notice or lapse of time or
both, would constitute a default by any party to any of these agreements. Seller
has not received notice that any party to any of these agreements intends to
cancel or terminate any of these agreements or to exercise or not exercise any
options under any of these agreements. Seller further represents that Seller is
entitled to freely assign the agreements to Buyer free and clear of all liens
and encumbrances.
2.12 Seller has complied in all material respects with all federal, state,
and local environmental protection laws and regulations and has not been cited
for any violation of any such law or regulation. No material capital
expenditures will be required for compliance with any applicable federal, state,
or local laws or regulations now in forec relating to the protection of the
environment. There is no pending audit known to Seller by any federal, state, or
local governmental authority.
Seller has not received notice of any violation of any applicable federal,
state, or local statute law, or regulation (including, without limitation, any
applicable building, zoning, environmental protection, or other law, ordinance,
or regulation) affecting its properties or the operation of its business; and to
the best of the knowledge of Seller, there are no such violations.
2.13 Seller represents that there is no pending, or, to the knowledge of
Seller, threatened, any suit, action, arbitration, or legal, administrative, or
other proceeding, or governmental investigation against or affecting Seller or
any of its business, assets, or financial condition. Seller has furnished or
made available to Buyer copies of all relevant court papers and other documents
relating to these matters. Seller is not in default with respect to any order,
writ, injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality.
Page 101
<PAGE>
No Violation or Breach. The consummation of the transactions contemplated
buy this Agreement will not result in or constitute any of the following:(1) a
breach of any term or provision of this Agreement, (2) a default or an event
that, with notice or lapse of time or both, would be a default, breach, or
violation of the articles of incorporation of bylaws of Seller or any lease,
license, promissory note, conditional sales contract, commitment, indenture,
mortgage, deed of trust, or other agreement, instrument, or arrangement to which
Seller is a party or by which it or its property is bound; (3) an event that
would permit any part to terminate any agreement or to accelerate the maturity
of any indebtedness or other obligation of Seller; or (4) the creation or
imposition of any lien, charge, or encumbrance on any of the properties of
Seller.
Authority and Contracts. Seller has the right, power, legal capacity, and
authority to enter into, and perform its obligations under this Agreement, and
no approvals or consents or any persons other than Sellers board of directors
and shareholders (if applicable) are necessary in connection with it. Prior to
the Closing Date (as hereinafter defined), the execution and delivery of this
Agreement by Seller will have been duly authorized by all necessary action on
the part of Seller.
2.16 Disclosure. None of the representations and warranties made by Seller,
or made in any certificate or memorandum furnished or to be furnished by Seller
or on its behalf, contains or will contain any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements made,
in the light of the circumstances under which they were made, not misleading.
ARTICLE III
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants that:
3.1 Organization. Buyer is a corporation duly organized, existing, and in
good standing under the laws of Delaware. The execution and delivery of this
Agreement and the consummation of this transaction by Buyer have been duly
authorized, and no further corporate authorization is necessary on the part of
Buyer.
3.2 Authority and Consent. No consent, approval, or authorization of, or
declaration, filing, or registration with, any United Stated federal or state
governmental or regulatory authority is required to be made or obtained by Buyer
in connection with the execution, delivery, and performance or this Agreement
and the consummation of the transactions contemplated by this Agreement.
Page 102
<PAGE>
ARTICLE IV
SELLER'S OBLIGATIONS BEFORE CLOSING
Seller covenants that from the sate of this Agreement until the Closing.
4.1. Confidentiality. Seller agrees to hold the essence of the proposed
asset purchase transaction and any information relating thereto as may be
provided to Seller by Buyer (the "Buyer Evaluation Material") in confidence. The
term "Buyer Evaluation Material": does not include information which (i) is
already in the Seller'S possession, provided that such information is not known
by the Seller to be subject to another confidentiality agreement with or other
obligation of secrecy to another party, or (ii) becomes generally available to
the public other than as a result of a disclosure by Seller or its directors,
officers, employees, agents or advisors, or (iii) becomes available to the
Seller on a non-confidential basis from a source other than the Buyer or its
advisors, provided that such source is not known by the Seller to be bound by a
confidentiality agreement with or other obligation of secrecy to the Buyer or
another party.
Seller agrees that Buyer Evaluation Material provided by the other party or
the agents of Buyer shall be used solely for the purpose of evaluation or
implementation of the asset purchase transaction and not for any other purpose,
and shall be kept strictly confidential except as required by a court of law or
regulatory authority.
In the event that this Agreement is terminated, then Seller shall promptly
redeliver to Buyer or destroy all written Buyer Evaluation Material and any
other material (including information maintained on computer disk or storage)
containing or reflecting any information in the Buyer Evaluation Material
(whether prepared by Seller, Buyer or others) and will not retain any copies,
extracts, or other reproductions in whole or in part of such written material.
4.2 Conduct of Business in Normal Course. Seller agrees to operate the
Assets in the ordinary course of its business and use its best efforts to
presume its commercial market position and its relationships with its employees,
selling agents, distributors, retail customers, suppliers, current contracts and
agreements to be included in the Assets.
4.3 Exclusivity. Buyer shall have the exclusive right to purchase the
Assets on the terms set forth in this Agreement.
4.4 Bulk Sales Law. Seller shall have given notice, in compliance with of
the Florida Commercial Code, of the bulk transfer contemplated by this
Agreement.
Page 103
<PAGE>
ARTICLE V
BUYER OBLIGATIONS BEFORE CLOSING
5 Confidentially. Buyer agrees to hold the essence of the proposed asset
purchase trans- action and any information relating thereto as may be provided
to Buyer by Seller the "Seller Evaluation Material") in confidence. The term,
"Seller Evaluation Material" does not include information which (i) is already
in the Buyers's possession, provided that such information is not known by Buyer
to be subject to another confidentiality agreement with or other obligation of
secrecy to another party, or (ii) becomes generally available to the public
other than as a result of a disclosure by Buyer or its directors, officers,
employees, agents or advisors, or (iii) becomes available to Buyer on a
non-confidential basis from a source other than Seller or its advisors, provided
that such source is not known by Buyer to be bound by a confidentiality
agreement with or other obligation of secrecy to Seller or another party.
Buyer agrees that the Seller Evaluation Material provided by Seller or the
agents of Seller shall be used solely for the purpose of evaluation or
implementation of the asset purchase transaction and not for any other purpose,
and shall be kept strictly confidential except as required by a could of law or
regulatory authority; provided, however, that any of such information may be
disclosed to Buyer's directors, officers, employees and representatives,
investors, or other constituencies who have direct interest in the business and
economic effects of the asset purchase transaction or who need to know such
information for the purpose of assisting Buyer in evaluating the asset purchase
transaction.
In the event this Agreement is terminated, then Buyer shall promptly
redeliver to Seller or destroy all written Seller Evaluation Material and any
other material (including information maintained on computer disk or storage)
containing or reflecting any information in the Seller Evaluation Material
(whether prepared by Buyer, Seller or others) and will not retain any copies,
extracts or other reproductions in whole or in part of such written material.
5.2 Consents of Third Parties. Buyer will use its best effort to assist
Seller in obtaining the consent of all necessary persons and agencies to the
assignment and transfer to Buyer of any and all properties, assets, and
agreements, including agreements with the United States government or any of its
agencies, to be assigned and transferrd under the terms of this Agreement. As
soon as reasonably practicable after the execution and delivery of this
Agreement, and in any event on or before the Closing Date, Buyer will obtain the
consents of all necessary persons to Buyer's performance of this Agreement and
to Buyer's assumption of any obligations under it.
5.3 Sales Tax Documents. Buyer agrees to furnish any documents reasonably
requested by Seller to comply with the provisions of the sales and use tax laws
of the State of Florida.
Page 104
<PAGE>
ARTICLE VI
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
The obligations of Buyer to purchase the Assets under this Agreement are
subject to the satisfaction, at or before the Closing, of all the conditions set
out below in this Article VI. Buyer may waive any or all of these conditions in
whole or in part prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Buyer of any of its other rights or
remedies, at law or in equity, if Seller shall be in default of any of its
representations, warranties, or covenants under this Agreement.
6.1 Buyer's Due Diligence. Buyer will, at no cost to Seller, have:
(a) Conducted an examination of Seller's existing service contracts to be
assumed as part of the Assets (including the transferability thereof) and
deemed, in its sole discretion, that such contracts are of adequate and
consistent quality for the business being acquired at its current commercial
scale and on terms and an economic basis satisfactory to Buyer.
(b) Received all consents, assignments, releases, waivers, or other third
party authorizations required to legally transfer the Assets and related
business obligations from Seller to Buyer.
(c) Conducted a customary due diligence investigation including:
(1) Assessment of the physical condition of the Asset;
(2) Review of licenses, trademarks, permits and other intangible Assets;
(3) Examination of financial statement \s for Seller's month-ended February
28, 1998, including year-to-date figures, and any supporting documentation or
schedules as may reasonably be requested by Buyer; and
(4) Review of service agreements with third parties.
6.2 Seller's Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Seller in this Agreement, or in
any written statement that shall be delivered to Buyer by Seller under this
agreement shall be true in all material respects on and as of the Closing Date
as though made at that time.
Page 105
<PAGE>
6.3 Performance by Seller. Seller shall have performed, satisfied, and
complied in all material respects with ll covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
6.4 Material Adverse Change. There shall not have been aby material adverse
change in the financial condition or the results of operations of Seller,
Seller's service business or the industry generally, and Seller shall not have
sustained any material loss or damage to its assets, whether or not \insured,
that materially affects its ability to conduct a material part of its business.
This does not include normal volume and price fluctuations associated with
natural supply and demand dynamics, but rather unforeseen structural damage
associated with catastrophic events or significant third-party distribution
outside of the normal course of business activity.
6.5 Absence of Litigation. No action, suit, or proceeding before any court
or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened on or before the Closing Date.
6.6 Board/Shareholder Approval. The execution and delivery of this
Agreement by Seller, and tile performance of the covenants and obligations under
it, shall have been duly authorized by all necessary Board and/or shareholder
action.
6.7 Florida Tax Clearance. Buyer shall have received tax receipts and/or
clearance certificates, as of a date not more than thirty (30) days before the
Closing Date, issued by the Florida Commissioner of Revenue for Seller relating
to sales and use taxes and, where applicable, state employee withholding,
unemployment taxes and corporate income taxes. Seller further agrees to maintain
and furnish to Buyer all tax records and to cooperate with Buyer in any future
audit by state or federal tax authorities.
6.8 Consents. All necessary agreements and consents of any parties to the
consummation of the transactions contemplated by the Agreement, or otherwise
pertaining to the matters covered by it, shall have been obtained by Seller and
delivered to Buyer.
6.9 Corporate Approval. The board of directors and, if required by law or
Seller's organizational documents, shareholders of Seller, shall have duly
authorized and approved the execution and delivery of this Agreement and all
corporate action necessary or proper to fulfill the Seller's obligations to be
performed under this Agreement.
6.10 Approval of Documentation. The form and substance of all certificates,
instruments, and other documents delivered to Buyer under this Agreement shall
be satisfactory in all reasonable respects to Buyer and its counsel.
Page 106
<PAGE>
ARTICLE VII
CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to sell and transfer the Assets under this
Agreement are subject to the satisfaction, at or before the Closing, of all the
following conditions. Seller may waive any or all of these conditions in whole
or in part without prior of any of its representations, warranties, or covenants
under this Agreement notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Seller of any of its other rights or
remedies, at law or in equity, if Buyer should be in default.
7.1 Consents. Seller shall have received all consents; releases, waivers or
other third party authorizations required to transfer the Assets and related
business obligations to Buyer.
7.2 All representations and warranties by Buyer contained in this Agreement
or in any written statement delivered by Buyer under this Agreement shall be
true on and as of the
Closing Date as though such representations and warranties were made on and
as of that date.
7.3 Buyer's Performance. Buyer shall have performed and complied with all
covenants and agreements and satisfied all conditions that it is required by
this Agreement to perform, comply with, or satisfy, before or at the Closing.
7.4 The board of directors and, if required by law or Buyer's
organizational documents, the shareholders of Buyer shall have duly authorized
and approved the execution and delivery of this Agreement and all corporate
action necessary or proper to fulfill the Buyer's obligations to be performed
under this Agreement on or before the Closing Date.
ARTICLE VIII
OTHER AGREEMENTS
8.1 On the Closing Date, Madhu Sethi and Colmena will execute the
Employment Agreement and Covenant Not to Compete in substantially the form of
Exhibit C hereto.
Page 107
<PAGE>
ARTICLE IX
THE CLOSING
9.1 Closing Date. The transfer of the Assets by Seller to Buyer (the
"Closing") shall take place at the offices of Business Technology Systems, Inc.,
at 10:00 a.m. Local time, on or after February 28, 1998, or such other date as
the parties may mutually determine.
9.2 Seller's Obligations AT Closing. At the closing, Seller shall deliver
or cause to be delivered to Buyer.
(a) Assignments of all leaseholds, property executed and acknowledged by
Seller, and accompanied by all consents of lessors required by this Agreement
and the leases being assigned;
(b) Executed counterparts of all notation agreements with the United States
government, its agencies and instrumentalities, and any other persons requiring
them;
(c) Instruments of assignment and transfer of all property of Seller listed
in Schedule A to this Agreement; and
(d) Documentation evidencing that notice was provided to Seller's creditors
pursuant to the bulk transfers provisions of the Florida Commercial Code.
Simultaneously with the consummation of the transfer, Seller, through its
officers, agents, and employees, will put Buyer into full possession and
enjoyment of all properties and assets to be conveyed and transferred by this
Agreement.
Seller, at any time before or after the Closing Date, will execute,
acknowledge, and deliver any further deeds, assignments, conveyances, and other
assurances, documents, and instruments of transfer, reasonably requested by
Buyer, and will take any other action consistent with the terms of this
Agreement that may reasonably be requested by Buyer for the purpose of
assigning, transferring, granting, conveying, and confirming to Buyer, or
reducing to possession, any or all property to be conveyed and transferred under
this Agreement. If requested by Buyer, Seller further agrees to prosecute or
otherwise enforce in its own name for the benefit of Buyer any claims, rights,
or benefits that are transferred to Buyer under this Agreement and that require
prosecution or enforcement in Seller's name. Any prosecution or enforcement of
claims, rights, or benefits under this paragraph shall be solely at Buyer's
expense, unless the prosecution or enforcement is made necessary by a breach of
this Agreement by Seller.
Page 108
<PAGE>
9.3 Buyer's Obligations at Closing. At the Closing, Buyer shall deliver to
Seller the following instruments and documents against delivery of the items
specified in paragraph 9.2:
(a) One Hundred Thousand Dollars ($100,000) payable in cash or cashiers
check:
(b) One Hundred Thousand (100,000) restricted Shares of Colmena;
(c) Instruments of assumption of the liabilities of Seller listed and
marked in Schedule B by an asterisk, executed by Buyer
ARTICLE X
SELLER'S OBLIGATIONS AFTER CLOSING
10.1 Seller's Indemnity. Seller shall indemnify, defend, and hold harmless
Buyer against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities., damages, recoveries, and deficiencies
including interest, penalties, and reasonable attorneys' fees, that Buyer shall
incur or suffer, that arise, result from, or relate to any breach of, or failure
by Seller to perform, any of its representations, warranties, covenants, or
agreements in this Agreement or in any schedule, certificate, exhibit, or other
instrument furnished or to be furnished by Seller under this Agreement.
Buyer shall promptly notify Seller of the existence of any claim, demand,
or other matter to which Seller's indemnification obligations would apply, and
shall give Seller a reasonable opportunity to defend the same at its own
expenses and with counsel of its own selection; provided that Buyer shall at all
times also have the right to fully participate in the defense at its own
expense. If Seller shall, within a reasonable time after this notice, fail to
defend, Buyer shall have the right, but not the obligation, to undertake the
defense of, and to compromise or settle (exercising reasonable business
judgment), the claim or other matter on behalf, for the account, and at the
risk, of Seller. If the claim i5 one that cannot by its nature be defended
solely by Seller (including, without limitation, any federal or state tax
proceeding), then Buyer shall make available all information and assistance that
Seller may reasonably request.
10.2 Seller's Name. Seller agrees that immediately after the Closing Date
it will take all action required to change its name to one that does not include
the terms "Business Technology Systems" and from and after the Closing Date,
Seller will not engage in any business or activity, except as required to
complete its liquidation and dissolution. Nothing in this Agreement shall
prevent Seller from dissolving promptly on or after the Closing Date.
Page 109
<PAGE>
ARTICLE XI
BUYER'S OBLIGATIONS AFTER CLOSING
11.1 Buyer Indemnity. Buyer agrees to indemnify and hold harmless Seller
against, and in respect of, any and all claims, losses, expenses, costs,
obligations, and liabilities they may incur by reason of Buyer's breach of or
failure to perform any of its warranties, guaranties, commitments, or covenants
in this Agreement, or by reason of any act or omission of Buyer, or any of its
successors or assigns, after the Closing Date, that constitutes a breach or
default under, or a failure to perform, any obligation, duty, or liability of
Seller under any loan agreement, lease, contract, order, or other agreement to
which it is a party or by which it is bound at the Closing Date, but only to the
extent to which Buyer expressly assumes these obligations, duties, and
liabilities under this Agreement.
ARTICLE XII
PUBLICITY
12.1 All notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
coordinated by and between Buyer and Seller.
No party shall act unilaterally in this regard without the prior written
approval of the others; however, this approval shall not be unreasonably
withheld.
ARTICLE XIII
COSTS
13.1 Finder'S or Broker's Fees. Each party represents that it has dealt
with no broker or finder in connection with any transaction contemplated by this
Agreement; and, as far as it knows, no broker or other person is entitled to any
commission or finder's fee in connection with any of these transactions. Seller
and Buyer each agree to indemnify and hold harmless one another against any
loss, liability, damage, cost, claim, or expenses incurred by reason of any
brokerage, commission, or finder's fee alleged to be payable because of any act,
omission, or statement of the indemnifying party.
Page 110
<PAGE>
13.2 Expenses. Each party shall pay all eo5ts and expenses incurred or to
be incurred by it in negotiating and preparing this Agreement, and in closing
and carrying out the transactions contemplated by this Agreement.
ARTICLE XIV
FORM OF AGREEMENT
14.1 Effect of Headings. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for convenience only and shall not
affect the construction or interpretation of any of its provisions.
14.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all the parties. No
waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party snaking the waiver.
14.3 Counterparts. This Agreement may be executed simultaneously in one of
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.4 Schedules. All Schedules and Exhibits attached hereto or referred to
herein are hereby incorporated by reference in this Agreement and are made a
part hereof.
ARTICLE XV
PARTIES IN INTEREST
15.1 Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action against any party to this Agreement.
Page 111
<PAGE>
15.2 Assignment. This Agreement shall be binding on, and shall inure to the
benefit of, the parties to it and their respective heirs, legal representatives,
successors, and assigns, provided, however, that Buyer may assign any of its
rights under this Agreement, to an affiliate of Buyer.
ARTICLE XVI
REMEDIES
16.1 Specific Performance and Waiver of Recission Rights. Each party's
obligation under this Agreement is unique. If any party should default in its
obligations under this Agreement, the parties each acknowledge that it would be
extremely impracticable to measure the resulting damages; accordingly, the
nondefaulting party or parties, in addition to any other available rights or
remedies, may sue in equity for specific performance, and the parties each
expressly waive the defense that a remedy in damages will be adequate.
Notwithstanding any breach or default by any of the parties of any of their
respective representations, warranties, covenants, or agreements under this
Agreement. If the purchase and sale contemplated by it shall be consummated at
the Closing, each of the parties waives any rights that it or they may have to
rescind this Agreement or the transaction consummated by it; provided, however,
that this waiver shall not affect any other rights or remedies available to the
parties under this Agreement Or under the law.
16.2 Recovery of Litigation Costs. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
16.3 Conditions Permitting Termination. Any party may on the Closing Date
terminate this Agreement, without liability to any other:
(a) If any bona fide action or proceeding shall be pending against any
party on the Closing Date that could result in an unfavorable judgement, decree,
or order that would prevent or make unlawful the performance of this Agreement;
or if any agency of the federal or of any state government shall have objected
at or before the Closing Date to this acquisition or to any other action
required by or in connection with this Agreement; or
(b) If the legality and sufficiency of all steps taken and to be taken by
the parties and their shareholders in carrying out this Agreement shall not have
been approved by counse; as required by this Agreement.
Page 112
<PAGE>
16.4 Defaults Permitting Termination. If either Buyer or Seller materially
default in the due and timely performance of any of its warranties, covenants,
or agreements under this Agreement, the nondefaulting party or parties may on he
Closing Date give notice of termination of this Agreement, in the manner
provided in Article XVII. The notice shall specify with particularity the
default or defaults on which the notice is based. The termination shall be
effective five (5) days after the Closing Date, unless the specified default or
defaults have been cured on or before this effective date for termination.
ARTICLE XVII
NATURE AND SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
No representations or warranties whatever are made by any party, except as
specifically set forth in this Agreement, or in an instrument, certificate,
opinion, or other writing provided for in this Agreement. All statements
contained n any of these instruments, certificates, opinion 5, or other writings
shall be deemed to be representations and warranties under this Agreement. The
representations, warranties, and indemnities made by the parties in this
Agreement or in other writings provided for in the covenants and agreements to
be performed or complied with by the respective parties under it before the
Closing C)ate, shall be deemed to be continuing and shall survive the Closing,
but shall expire three (3) years following the Closing Date, unless a specific
claim in writing with respect to these matters shall have been made, or an
action at law or in equity shall have been commenced or filed, before this
anniversary date. Nothing in this paragraph shall affect the obligations and
indemnities of the parties with respect to covenants and agreements contained in
this Agreement that are permitted to be performed, in whole or in part, after
the Closing Date.
ARTICLE XVIII
NOTICES
All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have deemed duly given on
the date of service of served personally on the party to whom notice is to be
given, or on the third business day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
To Seller Ila Sethi
Business Technology Systems, Inc.
4100 N. Powerline Road, Suite P6
Pompano Beach, Florida 33073
To Buyer: Richard C. Peplin, Jr.
Colmena Corp./RCP Communications Group, Inc.
25100 Detroit Road
Westlake, Ohio 44145
Any party may change its address for purposes of this paragraph by giving
the other parties written notice of the new address in the manner set forth
above.
ARTICLE XIX
GOVERNING LAW
This Agreement shall be construed in accordance with, and governed by, the
laws of the State of Florida.
Page 113
<PAGE>
ARTICLE XX
SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any
court of final jurisdiction it is the intent of the parties that all other
provisions of this Agreement be construed to remain fully valid, enforceable,
and binding on the parties.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it on
the day and year first above written.
BUSINESS TECHNOLOGY SYSTEMS, INC.
a Florida corporation
By: /s/ Ila Sethi
Ila Sethi, President
RCP COMMUNICATIONS GROUP, INC.
a Delaware corporation
By: /s/ Richard C. Peplin, Jr.
Richard C. Peplin, Jr., President
COLMENA CORP.
a Delaware corporation
By: /s/ Richard C. Peplin, Jr.
Richard C. Peplin, Jr., President
Page 114
