CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into effective November
10, 1997, between COLMENA CORP., a Delaware corporation, with its principal
offices located at 00000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
referred to as the ("Company"), and XXXXXXX X. XXXXXXX, an individual resident
of Michigan, with his principal offices located at 00 Xxxxxxxxxx Xxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx, 00000 (hereinafter Consultant").
1. Consulting Services
The Company hereby engages Consultant to perform the financial consulting
services listed below on the terms and conditions set forth in this Agreement:
(A) Review the business operations of potential transaction
candidates;
(B) Meet with the appropriate shareholder groups in an effort to
resolve any valuation differences;
(C) Initiate and negotiate on behalf of the Company to explore
potential transactions;
(D) Analyze and evaluate the projected financial performance of the
Company;
(E) Assist in the formulation of a strategy for discussions with and
the presentation of a transaction proposal to any interested
parties;
(F) As mutually agreed, advise the Company regarding alternative
financing structures (including bridge loans) with which to
effect a transaction;
(G) Assist in negotiations of letters of intent and definitive
purchase or financing agreements with any interested parties and
their advisors;
(H) Provide, as deemed appropriate by Consultant, additional advisor
services related to a transaction.
Company acknowledges that Consultant is not a registered broker-dealer and
that Consultant cannot, and shall not be required hereunder to, engage in the
offer or sale of securities on behalf of the Company. While Consultant has
relationships and contacts with various investors, broker-dealers, and
investment funds, Consultant's participation in the actual offer or sale of the
Company securities shall be limited to that of an advisor to the Company and a
"finder" of investors, broker-dealers and funds. The Company acknowledges and
agrees that the solicitation and consummation of any purchases of the Company's
securities shall be handled by the Company or one or more NASD member firms
engaged by the Company for such purposes.
2. Term of Agreement
The term of this Agreement shall commence on the date hereof and shall
continue for a period of twenty-four (24) months.
3. Consideration to Consultants
3.1 As compensation for the services rendered hereunder, the Company
shall issue and deliver to Consultant, Fifty Thousand (50,000)
shares of the Company's common stock, $.01 par value, which
shares shall be registered by the Company under the Securities
Act of 1933, as amended, pursuant to a Registration Statement on
Form S-8, as soon as practicable after the Company becomes
eligible for use of such form.
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3.2 As additional consideration for the services of Consultant, the
Company agrees to indemnify and hold harmless Consultant and each
of its officers, directors, agents, employees and controlling
persons (collectively "Indemnified Persons") to the fullest
extent permitted by law, from and against any and all losses,
claims, damages, expenses (including reasonable fees,
disbursements and other charges of counsel), actions, proceedings
or investigations (whether formal or informal), or threats
thereof (all of the foregoing being hereinafter referred to as
"Liabilities"), based upon, relating to or arising out of
Consultant's engagement hereunder, including, but not limited to
Liabilities arising in connection with the dissemination of
information about the Company or the Company's business, whether
in any presentation, in person, through the mails or otherwise;
provided however, that the Company shall not be liable under this
paragraph to the extent that it is finally judicially determined
that such Liabilities resulted primarily from the willful
misconduct or gross negligence of the Indemnified Person seeking
indemnification. In connection with the Company's obligation to
indemnify for expenses as set forth above, the Company further
agrees to reimburse each indemnified Person for all expenses
(including reasonable fees, disbursements and other charges of
counsel) as they are incurred by such indemnified Person;
provided, however, that if an Indemnified Person is reimbursed
hereunder for any expenses, the amount so paid shall be refunded
if and to the extent it is finally judicially determined that the
Liabilities in question resulted primarily from the willful
misconduct or gross negligence of such Indemnified Person.
4. Miscellaneous
4.1 Further Actions. At any time and from time to time, each party
agrees, at its or his expenses, to take such actions and to
execute and deliver such documents as may be reasonably necessary
to effectuate the purposes of this Agreement.
4.2 Entire Agreement; Modification. This Agreement sets forth the
entire understanding of the parties with respect to the subject
matter hereof and supersedes all existing agreements among them
concerning such subject matter, and may be modified only by a
written instrument duly executed by the party to be bound.
4.3 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested (or by the most nearly
comparable method if mailed from or to a location outside of the
United States), or delivered against receipt to the party to whom
it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party
shall have furnished in writing in accordance with the provisions
of this Section). Any notice given to any corporate party shall
be addressed to the attention of the Corporation Secretary. Any
notice of other communication given by certified mail (or by such
comparable method) shall be deemed given at the time of
certification thereof (or comparable act), except for a notice
changing a party's address which will be deemed given at the time
of receipt thereof.
4.4 Waiver. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed tp be a
waiver of any other breach of that provision or of any breach of
any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term o this Agreement on one
or more occasions will not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be
in writing and, in the case of a corporate party, be authorized
by a resolution of the board of directors or by an officer of the
waiving party.
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4.5 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the Company and Consultant and
their respective successors and assigns; provided, however, that
any assignment by any party of its rights under this Agreement
without the written consent of the other party shall be void.
4.6 Severability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision in inapplicable to any
person or circumstance, it shall nevertheless remain applicable
to any other pers and circumstances.
4.7 Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
4.8 Counterparts; Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. It shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving
effect to conflict of laws.
4.9 Attorney's Fees. In the event of a dispute with respect to this
Agreement, the prevailing party shall be entitled to its
reasonable attorney's fees and other costs and expenses incurred
in litigating or otherwise resolving or settling such dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
COLMENA CORP.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx., President
CONSULTANT:
By: /s/ Xxxxxxx X. Xxxxxxx
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