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); Xxxxx Xxxxx,
a Florida resident ("Xx. Xxxxx") and Xxx Xxxxx, Xx. Xxxxx'x spouse ("Xxx.
Xxxxx;" Xx. Xxxxx and Xxx. Xxxxx being hereinafter collectively referred to as
"Mr. & Xxx. Xxxxx"), Colmena and Mr. & Xxx. Xxxxx 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:
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:
Witnesseth:
First: Terms of Settlement
In consideration for the material and substantial assistance being rendered
by Xx. Xxxxx to Colmena on numerous matters and in settlement of all of their
outstanding claims against each other and their members, partners, officers,
directors, agents and affiliates, Mr. & Xxx. Xxxxx and Colmena hereby agree to
an accord and satisfaction of all of their rights, obligations and liabilities,
on the following terms:
A. In full payment of all obligations to Mr. & Xxx. Xxxxx and their affiliates
owed by Colmena., and its affiliates, from the beginning of time until the
date of this Agreement, as well as in consideration for the extinguishment
of all agreements between them, Colmena hereby agrees to:
1. Use its best efforts to include Mr. & Xxx. Xxxxx in any
settlements of the current dispute with Deutsche Financial
Services Corporation ("DFSC"); and
2. Immediately issue to Mr. & Xxx. Xxxxx, as joint tenants with
right of survivorship, 250,000 shares of Colmena's common stock,
$0.01 per share par value, such shares being issued in reliance
on the exemption from registration requirements under the
Securities Act of 1933, as amended (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 Section
517.061(11) thereof.
B. Mr. & Xxx. Xxxxx hereby represent, warrant and covenant as follows:
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(1) 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 Mr. & Xxx. Xxxxx to the effect that such registration
is not required as a result of applicable exemptions therefrom;
(2) 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;
(3) Mr. & Xxx. Xxxxx are each acquiring the Stock for their own
account, for investment purposes only, and not with a view to
further sale or distribution; and
(4) Mr. & Xxx. Xxxxx or 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 Mr. & Xxx.
Xxxxx' deemed appropriate.
C. In consideration for the foregoing, Mr. & Xxx. Xxxxx hereby relinquish all
rights, whether accrued or inchoate, under any agreements between them or
their affiliates and Colmena and its affiliates, other than those created
by this Agreement.
Second: Mutual Releases
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.
Third: Miscellaneous
3.1 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.
3.2 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:
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To Colmena:
0000 Xxxxx xxxxxxx Xxxxxxx; Xxxxxxxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, President; and to
The Yankee Companies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Xxxxxx, President
To Mr. & Xxx. Xxxxx:
0000 Xxxxxxxx Xxxxxx; Xxxx Xxxxx, Xxxxxxx
00000 Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail, xxxxxxxxxx@xxx.xxx.
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.
3.3 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.
3.4 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.
3.5 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.
3.6 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.
3.7 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
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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.
3.8 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.
3.9 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.
3.10 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.
3.11 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.
3.12 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.
3.13 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.
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3.14 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.
3.15 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.
* * *
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:
/s/ Witness signature Colmena Corp.
/s/ Witness signature
By:/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: June 8, 1999
/s/ witness signature Mr. & Xxx. Xxxxx:
/s/ witness signature
/s/ witness signaute
/s/ witness signature
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
/s/ Xxx Xxxxx
Xxx Xxxxx
Dated: _____________________
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