Settlement Agreement
This Settlement 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); Xx. Xxxxxx
Xxxxxxxxxxx, a Florida resident (Xx. Xxxxxxxxxxx"); and, SBV Holdings, Inc., a
Delaware corporation ("SBV;" Xx. Xxxxxxxxxxx, SBV and their affiliates being
hereinafter collectively or generically referred to as "The Loewenstern Group"),
Colmena and The Loewenstern Group being collectively referred to as the
"Parties" and each being sometimes hereinafter generically referred to as a
"Party").
Preamble:
WHEREAS, the Parties have engaged in a series of business agreements and
transactions involving Colmena and, for their mutual benefit, the Parties desire
to settle all outstanding issues and commitments, including, without limitation,
satisfaction of that certain convertible promissory note issued by Colmena to
SBV on or about October 1, 1998 (the "SBV Note"), in consideration for 1,844,444
shares of Colmena's common stock, $0.01 par value:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, in settlement of all of their
outstanding claims against each other and their members, partners, officers,
directors, agents and affiliates, and as an accord and satisfaction of all of
their rights, obligations and liabilities, hereby agree as follows:
Witnesseth:
First: The SBV Note
1.1 Colmena hereby agrees to immediately issue 1,844,444 shares of its
common stock, $0.01 per share par value, to SBV in consideration in
cancellation of the SBV Note, all interest owed on said Note and for a
General Release from SBV and Loewenstern, such shares being issued in
reliance on the exemption from registration requirements under the
Securities Act provided by Section 4(2) thereof, and the exemption
from registration under the Florida Securities and Investor Protection
Act, as amended (the "Florida Blue Sky Act"), provided by Sections
517.061 (11) thereof. The Parties hereby agree that the effective date
of this Agreement shall be the date upon which consideration for this
settlement has been paid and received between the Parties hereto.
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1.2 Piggy Back Registration Rights
A. If Colmena proposes to register any of its securities under the Securities
Act, it shall give written notice by registered mail, at least thirty (30)
days, prior to the filing of each registration statement to SBV.
B. If SBV notifies Colmena within twenty (20) days after receipt of any such
notice of its desire to include any securities received pursuant to this
Settlement Agreement in such proposed registration statement, Colmena shall
afford SBV the opportunity to have such securities registered under such
registration statement.
C. Colmena shall pay all costs (excluding any underwriting or selling
commissions or overcharges of any broker-dealer acting on behalf of SBV),
fees and expenses in connection with all registration statements filed
pursuant to this section.
Second Termination of Agreements & Mutual Releases
A. In full payment and cancellation of all obligations owed by any Party or
its affiliates to any other Party or its affiliates and for the general
releases of any and all claims that each party may be able to assert
against each other, from the beginning of time until the date of this
Agreement, as well as in consideration for the extinguishment of all
agreements between them:
1. Colmena hereby agrees to issue said shares of its common stock, $0.01
per share par value, to SBV as set forth above.
2. Each of the Parties hereby terminates all agreements with all of the
other Parties and their affiliates and hereby relinquishes all rights,
whether accrued or inchoate, under any agreements between them or
their affiliates and any other Party and its affiliates, other than
those created by this Agreement.
B. In consideration for the exchange of covenants reflected above but
excepting only the obligations created by this Agreement, the Parties
hereby each release, discharge and forgive the other, and each of the
others' subsidiaries, affiliates, members, officers, directors, partners,
agents and employees from any and all liabilities, whether current or
inchoate, from the beginning of time until the date of this Agreement,
other than as established specifically by this Agreement.
Third: Securities Law Representations
Xx. Xxxxxxxxxxx and SBV hereby each represent, warrant and covenant as
follows, concerning the shares of Colmena common stock, $0.01 par value, to be
issued to SBV pursuant to the terms of this Agreement (the "Stock"):
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A. All of the Stock will bear legends restricting its transfer, sale,
conveyance or hypothecation unless such Stock is either registered under
the provisions of Section 5 of the Securities Act and the Florida Blue Sky
Act, or an opinion of legal counsel, in form and substance satisfactory to
legal counsel to Colmena is provided by the person desiring to effect a
transfer or transaction, to the effect that such registration is not
required as a result of applicable exemptions therefrom.
B. Colmena's transfer agent shall be instructed not to transfer any of the
Stock unless Colmena advises it that such transfer is in compliance with
all applicable laws;
C. SBV is acquiring the Stock for its own account, for investment purposes
only, and not with a view to further sale or distribution;
D. Xx. Xxxxxxxxxxx, SBV and their advisors have examined Colmena's Exchange
Act filings posted on the United States Securities and Exchange
Commission's XXXXX system and are fully familiar with Colmena and its
operations as a result of their prior association therewith, having also
questioned Colmena's officers and directors as to all matters involving
Colmena as they deemed appropriate.
Fourth: Miscellaneous
4.1 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.
4.2 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:
0000 Xxxxx Xxxxxxx Xxxxxxx;
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, President;
and to
The Yankee Companies, Inc.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Xxxxxx, President
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To any of the component entities heretofore defined as
The Loewenstern Group:
0000 X.X. Xxxx Xxxxx Xxxxxxxxx
Xxxxx 00X, Xxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
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.
4.3 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.
4.4 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.
4.5 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.
4.6 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.
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4.7 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, pursuant to
requirements of this Agreement; 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.
4.8 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.
4.9 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.
4.10 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.
4.11 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.
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4.12 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.
4.13 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.
4.14 Counterparts.
(a) This Agreement may be executed in any number of
counterparts.
(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.
4.15 License.
(a) This Agreement is the property of the Yankee Companies, Inc,
a Florida corporation ("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
ef fective as of the last date set forth below.
Signed, sealed and delivered
In Our Presence:
Colmena Corp.
/s/ Xxxxx Xxxxxxxx /s/
/s/ Xxxxx Xxx Xxxxxxxx /s/ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 30, 2001
The Loewenstern Group:
SBV Holdings, Inc.
/s/ Xxxxx Xxxxxxx /s/
By: /s/Xxxxxx Xxxxxxxxxxx /s/
Xxxxxx Xxxxxxxxxxx, President, on
behalf of SBV Holdings, Inc.,
and its affiliates
Attest: _______________________________
Secretary
Dated: May 30, 2001
Xx. Xxxxxxxxxxx
/s/ Xxxxx Xxxxxxx/s/
_________________________________ /s/ Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx, on his own
behalf and on behalf of his affiliates
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