Agreement to Serve as Corporate Secretary
This agreement to serve as corporate secretary (the "Agreement") is
made and entered into by and between Colmena Corp., a publicly held Delaware
corporation with a class of securities registered under Section 12(g) of the
Securities Act of 1934, as amended ("Colmena" and the "Exchange Act,"
respectively), and Xxxxxxx X. Xxxxxxx, a Florida resident ("Xxx. Xxxxxxx").
Preamble:
WHEREAS, Xxx. Xxxxxxx currently serves as Secretary for Colmena; and
WHEREAS, Colmena has required, as a condition for service as an
officer, that all nominees enter into a form of agreement that delineates the
proposed officers's rights, duties and responsibilities; and
WHEREAS, the Parties agree that this Agreement provides important
directives outlining the duties, obligations, responsibilities and rights that
are expected of Colmena's officers and Xxx. Xxxxxxx desires to be an officer and
to serve thereon in compliance with the requirements of this Agreement and
Colmena's bylaws:
NOW, THEREFORE, intending to be legally bound, the Parties agree that
if Xxx. Xxxxxxx serves as Secretary for the current year, she will be bound by
the following obligations and shall have the following rights:
Witnesseth:
Article I
Term, Renewals, Earlier Termination
1.1 Term.
(A) Subject to the provisions set forth herein, the term of this Agreement
shall be deemed to commence immediately following Xxx. Xxxxxxx 's
election as Colmena's Secretary by Written Consent in Lieu of Special
Meeting of the Board of Directors dated January 12, 1999 and shall
continue until the latter of December 31, 2000 or the election,
qualification and assumption of office by Xxx. Xxxxxxx'x successor,
unless earlier terminated as hereinafter set forth.
(B) In the event that Xxx. Xxxxxxx is reelected or otherwise serves as
secretary after December 31, 2000, then, unless a new agreement
pertaining to her role as secretary is entered into specifically
superceding the provisions of this Agreement, this Agreement shall be
deemed continuously self renewing for so long as, or whenever Xxx.
Xxxxxxx serves as secretary, with the compensation called for hereunder
being duplicated for the ensuing year on terms modified solely as
follows:
(1) The term and exercise period of the new Xxxxxxx Options shall be
modified to reflect, as closely as possible, terms materially
similar to those that applied to the Xxxxxxx Option described in
Section 3.1 of this Agreement; and
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(2) The exercise price shall $0.02.
(3) The number of Options shall be prorated based on the part of the
year during which Xxx.Xxxxxxx serves and based on the roles in
which Xxx. Xxxxxxx serves as Colmena's secretary based on the
formula hereinafter set forth.
1.2 Earlier Termination.
(A) Colmena shall have the right to terminate this Agreement prior to the
expiration of its Term, subject to the provisions of Section 1.3, for
the following reasons:
(1) For Cause:
(a) Colmena may terminate Xxx. Xxxxxxx 's rights under this
Agreement at any time for cause.
(b) Such termination shall be evidenced by written notice
thereof to Xxx. Xxxxxxx , which notice shall specify
the cause for termination.
(c) For purposes hereof, the term "cause" shall mean:
(i) The inability of Xxx. Xxxxxxx , through
sickness or other incapacity, to discharge
his duties under this Agreement for 30 or
more consecutive days or for a total of 45
or more days in a period of twelve
consecutive months;
(ii) Dishonesty; theft; or conviction of a crime
involving moral turpitude;
(iii) Material default in the performance of his
obligations, services or duties required
under this Agreement or materially breach of
any provision of this Agreement, which
default or breach has continued for five
days after written notice of such default or
breach.
(2) Discontinuance of Business:
In the event that Colmena discontinues operating its business,
this Agreement shall terminate as of the last day of the month
on which it ceases operation with the same force and effect as
if such last day of the month were originally set as the
termination date hereof; provided, however, that a
reorganization of Colmena shall not be deemed a termination of
its business.
(3) Death:
This Agreement shall terminate immediately on Xxx. Xxxxxxx 's
death; however, all accrued compensation at such time shall be
promptly paid to Xxx. Xxxxxxx 's estate.
1.3 Final Settlement.
Upon termination of this Agreement and payment to Xxx. Xxxxxxx of all
amounts due her hereunder, Xxx. Xxxxxxx or her representative shall execute and
deliver to the terminating entity on a form prepared by the terminating entity,
a receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to Colmena all records, manuals and written
procedures, as may be desired by it for the continued conduct of its business.
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Article II
Performance of Duties as a Director
2.1 Performance of Duties
(A) Xxx. Xxxxxxx shall perform her duties as secretary, pursuant to the
requirements set forth in Colmena's certificate of incorporation and
bylaws (its "Constituent Documents"), in good faith, in a manner she
reasonably believes to be in the best interests of Colmena, and with
such care as is legally required for secretary under the laws of the
State of Delaware and the United States Securities and Exchange
Commission, (the "Commission") unless a higher standard of care is
specified in Colmena's Constituent Documents.
(B) In performing her duties, Xxx. Xxxxxxx shall be entitled to rely on
information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented
by:
(1) One or more officers or employees of Colmena whom Xxx. Xxxxxxx
reasonably believes to be reliable and competent in the matters
presented;
(2) Legal counsel, public accountants or other persons as to matters
which Xxx. Xxxxxxx reasonably believes to be within such persons'
professional or expert competence; or
(3) A committee of Colmena's board of directors upon which she does
not serve, duly designated in accordance with a provision of
Colmena's certificate of incorporation or bylaws, as to matters
within its designated authority, which committee Xxx. Xxxxxxx
reasonably believes to merit confidence.
(C) Xxx. Xxxxxxx shall not be considered to be acting in good faith if she
has knowledge concerning the matter in question that would cause such
reliance described in Section 2.1(B) to be unwarranted.
(D) If Xxx. Xxxxxxx is requested to provide comments on any corporate
matters through a written request delivered by hand, mail, fax or
e-mail, then, unless she affirmatively provides written comments
thereto or specifies in a written response that she is unable or
unwilling to provide comments thereto, she shall be presumed to have
approved the matter as accurate, complete and not misleading, and if
she has indicated her inability or unwillingness to comment on more
than three occasions within any fiscal year, she shall be presumed to
have refused to perform her duties as secretary in a manner justifying
her removal therefrom for cause under this Agreement.
2.2 Conflicts of Interest
(A) Neither Xxx. Xxxxxxx nor any affiliate thereof will enter into any
contract or other transaction with Colmena unless the fact of such
relationship or interest is disclosed or known to Colmena's board of
directors or committee which authorizes, approves or ratifies the
contract or transaction and it is approved by a vote or consent
sufficient for the purpose without counting the vote or consent of Xxx.
Xxxxxxx ; and, if stockholder approval is required, the fact of such
relationship or interest is disclosed or known to the stockholders
entitled to vote and they authorize, approve or ratify such contract or
transaction by vote or written consent.
2.3 Performance and Attendance
(A) Xxx. Xxxxxxx shall use her best efforts to participate in a timely
manner in all meetings of Colmena's board of directors or of
committees, and if unavailable in person, to make arrangements to
participate by teleconference or other legally available means.
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(B) Xxx. Xxxxxxx shall be responsible, together with the other members of
the board of directors, for review and approval prior to filing of all
data that Colmena is required to file with the Commission, with the
United States Internal Revenue Service (the "Service") and with
comparable state and local agencies.
2.4 Resignation
Xxx. Xxxxxxx may resign at any time by providing Colmena's board of
directors with written notice indicating the Secretary's intention to resign and
the effective date thereof.; provided, however, that resignation, whether
voluntary or presumptive (as provided above) shall result in a forfeiture of all
rights to compensation under this Agreement, other than as to compensation that
has accrued pursuant to the provisions of this Agreement.
Article III
Compensation
3.1 Secretary's Plan Options
(A) Xxx. Xxxxxxx is hereby granted an option to purchase 24,000 shares of
Colmena's common stock, exercisable beginning on January 1, 2001 and
ending on December 31, 2002, unless extended, at an exercise price of
$0.02 per share.
(B) The securities to be issued as compensation under this Agreement (the
"Securities") will be issued without registration under the provisions
of Section 5 of the Securities Act or the securities regulatory laws
and regula tions of the State of Florida (the "Florida Act") pursuant
to exemptions provided pursuant to Section 4(6) of the Act and
comparable provisions of the Florida Act;
(1) Xxx. Xxxxxxx shall be responsible for preparing and filing any
reports concerning this transaction with the Commission and with
Florida Division of Securities, and payment of any required
filing fees (none being expected);
(2) All of the Securities will bear legends restricting their
transfer, sale, conveyance or hypothecation unless such
Securities are either registered under the provisions of Section
5 of the Act and under the Florida Act, or an opinion of legal
counsel, in form and substance satisfactory to legal counsel to
Colmena is provided to Colmena's General Counsel to the effect
that such registration is not required as a result of applicable
exemptions therefrom;
(3) Colmena's transfer agent shall be instructed not to transfer any
of the Securities unless the General Counsel for Colmena advises
it that such transfer is in compliance with all applicable laws;
(4) Xxx. Xxxxxxx is acquiring the Securities for her own account, for
investment purposes only, and not with a view to further sale or
distribution; and
(5) Xxx. Xxxxxxx or her advisors have examined information concerning
Colmena contained on the Commission's Internet web site at
xxx.xxx.xxx, in the XXXXX archives, as well as Colmena's books
and records and have questioned Colmena's officers and directors
as to such matters involving Colmena as she or she deemed
appropriate.
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(C) In the event that Colmena files a registration or notification
statement with the Commission or any state securities regulatory
authorities registering or qualifying any of its securities for sale
or resale to the public as free trading securities, it will notify
Xxx. Xxxxxxx of such intent at least 15 business days prior to such
filing, and shall, if requested by her, include any shares theretofore
issued upon exercise of the Options in such registration or
notification statement, provided that Xxx. Xxxxxxx cooperates in a
timely manner with any requirements for such registration or
qualification by notification, including, without limitation, the
obligation to provide complete and accurate information therefor; and,
provided further that, the inclusion of such securities in such
notification or registration statement is not deemed by any
participating underwriter to be detrimental to a proposed offering of
Colmena's securities to the public or to the price or liquidity of
Colmena's publicly held securities.
3.2 Contingent Compensation
In addition to the compensation described above and in Section 3.1
(unless comparable compensation is provided for under the terms of a separate
employment or consulting agreement):
(A) In the event that Xxx. Xxxxxxx arranges or provides funding for Colmena
on terms more beneficial than those reflected in Colmena's current
principal financing agreements, copies of which are included among
Colmena's records available through the SEC's XXXXX web site, Xxx.
Xxxxxxx shall be entitled, at her election, to either:
(1) A fee equal to 5% of such savings, on a continuing basis; or
(2) If equity funding is provided through Xxx. Xxxxxxx or any
affiliates thereof, a discount of 5% from the bid price for
the subject equity securities, if they are issuable as free
trading securities, or, a discount of 25% from the bid price
for the subject equity securities, if they are issuable as
restricted securities (as the term restricted is used for
purposes of SEC Rule 144); and
(3) If equity funding is arranged for Colmena by Xxx. Xxxxxxx and
Colmena is not obligated to pay any other source compensation
in conjunction therewith, other than the normal commissions
charged by broker dealers in securities in compliance with the
compensation guidelines of the NASD, Xxx. Xxxxxxx shall be
entitled to a bonus in a sum equal to 5% of the net proceeds
of such funding.
(B) In the event that Xxx. Xxxxxxx generates business for Colmena, then, on
any sales resulting therefrom, Xxx. Xxxxxxx shall be entitled to a
commission equal to 5% of the net income derived by Colmena therefrom,
on a continuing basis.
3.3 Indemnification.
Colmena will defend, indemnify and hold Xxx. Xxxxxxx harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by her in good faith on behalf of Colmena, its affiliates or for other
persons or entities at the request of the board of directors of Colmena, to the
fullest extent legally permitted, and in conjunction therewith, shall assure
that all required expenditures are made in a manner making it unnecessary for
Xxx. Xxxxxxx to incur any out of pocket expenses; provided, however, that Xxx.
Xxxxxxx permits Colmena to select and supervise all personnel involved in such
defense and that Xxx. Xxxxxxx waives any conflicts of interest that such
personnel may have as a result of also representing Colmena, their stockholders
or other personnel and agrees to hold them harmless from any matters involving
such representation, except such as involve fraud or bad faith.
Page 407
Article Four
Special Covenants
4.1 Confidentiality.
(1) Xxx. Xxxxxxx acknowledges that, in and as a result of her duties
hereunder, she will be developing for Colmena, making use of,
acquiring and/or adding to, confidential information of special
and unique nature and value relating to such matters as Colmena's
trade secrets, systems, procedures, manuals, confidential
reports, personnel resources, strategic and tactical plans,
advisors, clients, investors and funding sources; consequently,
as material inducement to the entry into this Agreement by
Colmena, Xxx. Xxxxxxx hereby covenants and agrees that she shall
not, at anytime during or following the terms of her service as a
member of Colmena's board of directors, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever,
any of such confidential information which has been obtained by
or disclosed to her as a result of her association with Colmena,
or Colmena's affiliates.
(2) In the event of a breach or threatened breach by Xxx. Xxxxxxx of
any of the provisions of this Section 4.1, Colmena, in addition
to and not in limitation of any other rights, remedies or damages
available to Colmena, whether at law or in equity, shall be
entitled to a permanent injunction in order to prevent or to
restrain any such breach by Xxx. Xxxxxxx , or by Xxx. Xxxxxxx 's
partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or
indirectly acting for or with her.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to Colmena as a result of a breach by Xxx. Xxxxxxx of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect Colmena's interests, Xxx. Xxxxxxx hereby
covenants and agrees that Colmena shall have the following additional rights and
remedies in the event of a breach hereof:
(A) Xxx. Xxxxxxx hereby consents to the issuance of a permanent injunction
enjoining her from any violations of the covenants set forth in
Section 4.1 hereof; and
(B) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Colmena may sustain prior to the
effective enforcement of such injunction, Xxx. Xxxxxxx hereby
covenants and agrees to pay over to Colmena, in the event she violates
the covenants and agreements contained in Section 4.2 hereof, the
greater of:
(1) Any payment or compensation of any kind received by her because
of such violation before the issuance of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation, which
sum shall be liquidated damages, and not a penalty, for the
injuries suffered by Colmena as a result of such violation, the
Parties hereto agreeing that such liquidated damages are not
intended as the exclusive remedy available to Colmena for any
breach of the covenants and agreements contained in this Article
Four, prior to the issuance of such injunction, the Parties
recognizing that the only adequate remedy to protect Colmena from
the injury caused by such breaches would be injunctive relief.
Page 408
4.3 Cumulative Remedies.
Xxx. Xxxxxxx hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Colmena is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
Xxx. Xxxxxxx hereby represents, warrants and acknowledges that she has
carefully read and considered the provisions of this Article Four and,
having done so, agrees that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests
of Colmena, its officers, other directors and employees; consequently, in
the event that any of the above-described restrictions shall be held
unenforceable by any court of competent jurisdiction, Xxx. Xxxxxxx hereby
covenants, agrees and directs such court to substitute a reasonable
judicially enforceable limitation in place of any limitation deemed
unenforceable and, Xxx. Xxxxxxx hereby covenants and agrees that if so
modified, the covenants contained in this Article Four shall be as fully
enforceable as if they had been set forth herein directly by the Parties.
In determining the nature of this limitation, Xxx. Xxxxxxx hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute arising hereunder recognize that the
Parties desire that this covenant not to compete be imposed and maintained
to the greatest extent possible.
4.5 Unauthorized Acts.
Xxx. Xxxxxxx hereby covenants and agrees that she will not do any act
or incur any obligation on behalf of Colmena of any kind whatsoever, except as
authorized by its board of directors or by its stockholders pursuant to duly
adopted stockholder action.
4.6 Covenant not to Disparage
Xxx. Xxxxxxx hereby irrevocably covenants and agrees that during the
term of this Agreement and after its termination, she will refrain from making
any remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about Colmena, its constituent members, or their
officers, directors, stockholders, employees, agent or affiliates, whether
related to the business of Colmena, to other business or financial matters or to
personal matters.
Article V
Agreement to Comply with Legal Restrictions.
5.1 Colmena Securities.
(A) Xxx. Xxxxxxx is the record and beneficial owner of the Colmena
securities shown on the signature page hereto, which at the date hereof
are free and clear of any liens, claims, options, charges or other
encumbrances; does not beneficially own any other Colmena securities
and, has full power and authority to make, enter into and carry out the
terms of this Agreement.
(B) Xxx. Xxxxxxx agrees that any Colmena securities that she purchases or
with respect to which she otherwise acquires record or beneficial
ownership after the date of this Agreement ("New Colmena Securities")
shall be subject to the terms and conditions of this Agreement to the
same extent as if they were owned prior to the date of this Agreement.
Page 409
(C) Xxx. Xxxxxxx has full power and authority to execute this Agreement, to
make the representations, warranties and covenants herein contained and
to perform Secretary's obligations hereunder.
(D) Xxx. Xxxxxxx has no present plan or intention (a "Plan") to sell,
transfer, exchange, pledge or otherwise dispose of, including by means
of a distribution by a partnership to its partners, or a corporation to
its stockholders, or any other transaction which results in a reduction
in the risk of ownership (any of the foregoing being hereinafter
referred to generically as a "Sale") of any of the Colmena securities
that Xxx. Xxxxxxx currently owns or may acquire during the term of this
Agreement, or any securities that may be paid as a dividend or
otherwise distributed thereon with respect thereto or issued or
delivered in exchange or substitution therefor.
(E) If any of Xxx. Xxxxxxx 's representations in this Agreement cease to be
true at any during the term of this Agreement, Xxx. Xxxxxxx will
deliver to Colmena's general counsel a written statement to that
effect, specifying the nature of the change signed by Xxx. Xxxxxxx .
5.2 Transfer or Encumbrance.
(A) Xxx. Xxxxxxx agrees not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber Xxx. Xxxxxxx'x Colmena securities or
any New Colmena Securities acquired or to make any offer or agreement
relating thereto during the time that Xxx. Xxxxxxx serves as Colmena's
secretary and for an additional period of 90 days thereafter (the term
of this agreement), except:
(1) During such periods following the filing by Colmena of reports
with the Securities and Exchange Commission as may be
determined by the regulatory compliance committee of Colmena's
board of directors to provide currency of information required
to avoid violation of restrictions under the Securities Act
and the Exchange Act against trading on inside information.
(2) In full compliance with the requirements of:
(a) Rule 144 promulgated by the Commission under authority
granted by the Securities Act;
(b) Sections 13D and 16(a) of the Exchange Act, including
requirements pertaining to timely filing of Commission Forms
3, 4 and 5 or Schedule 13-D; and
(3) In full compliance with the procedures established by Colmena
(including requirements imposed upon its transfer agent) to
assure compliance with the foregoing.
(B) No transactions permitted pursuant to Section 5.2(A) shall be effected
until:
(1) Legal counsel representing Xxx. Xxxxxxx (which legal counsel
is reasonably satisfactory to Colmena), shall have advised
Colmena in a written opinion letter satisfactory to Colmena
and Colmena's legal counsel, and upon which Colmena and its
legal counsel may rely, that no registration under the
Securities Act would be required in connection with the
proposed sale, transfer or other disposition and that all
requirements under the Exchange Act, including Sections 13 and
16 thereof have been complied with; or
Page 410
(2) A registration statement under the Securities Act covering
Colmena's Stock proposed to be sold, transferred or otherwise
disposed of, describing the manner and terms of the proposed
sale, transfer or other disposition, and containing a current
prospectus, shall have been filed with the Securities and
Exchange Commission (the "Commission") and made effective
under the Securities Act; or
(3) An authorized representative of the Commission shall have
rendered written advice to Xxx. Xxxxxxx (sought by Secretary
or Secretary's legal counsel, with a copy thereof and all
other related communications delivered to Colmena) to the
effect that the Commission would take no action, or that the
staff of the Commission would not recommend that the
Commission take any action, with respect to the proposed
disposition if consummated; or
(4) Colmena's general counsel and president shall have
specifically consented to the transaction in wiring pursuant
to authority delegated in a specific resolution of the
regulatory affairs committee of Colmena's board of directors.
(C)
Xxx. Xxxxxxx also understands and agrees that stop transfer
instructions will be given to Colmena's transfer agent with respect to
certificates evidencing her Colmena securities and that there will be
placed on the certificates evidencing her Colmena securities legends
stating in substance: "The securities represented by this certificate
were issued without registration under the Securities Act of 1933, as
amended, or comparable state laws in reliance on the provisions of
Section 4(1), 3(b) or 4(2) of such act, and comparable state law
provisions or they have been held by a person deemed a control person
under Commission Rule 144 and subject to reporting obligations under
Section 13D of the Exchange Act and to reporting obligations and
trading restrictions under Section 16(a) of the Exchange Act. These
securities may not be transferred pledged or hypothecated unless they
are first registered under applicable federal, state or foreign laws,
or the transaction is demonstrated to be exempt from such requirements
to the Company's satisfaction, and, all required reports pertaining
thereto, including Commission Forms 3, 4, 5 and 144 and Commission
Schedule 13D have been filed with the Commission."
5.3 No Proxy Solicitations.
Xxx. Xxxxxxx will not, and will not permit any entity under her control
to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) with
respect to any meetings of Colmena's stockholders;
(B) Initiate a stockholders' vote or action by consent of Colmena
stockholders with respect to any stockholders action; or
(C) Become a member of a "group" [as such term is used in Section 13(d) of
the Exchange Act] with respect to any voting securities of Colmena.
Page 411
5.4 No Limitation on Discretion.
This Article is intended solely to apply to the exercise by Xxx.
Xxxxxxx in her individual capacity of rights attaching to ownership of the
Colmena securities and nothing herein shall be deemed to apply to, or to limit
in any manner the discretion of Xxx. Xxxxxxx with respect to, any action which
may be taken or omitted by her acting in her fiduciary capacity as a member of
Colmena's board of directors or any committee thereof.
Article VI
Miscellaneous
6.1 Notices.
(a) All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been
duly given on the first business day after mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
To Xxx. Xxxxxxx :
At the contact information provided in Section 6.20
To Colmena:
Colmena Corp.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail
xxxxxxxxxx@xxxxxx.xxx;
Attention: Xxxxxxx X. Xxxxx, President; with a copy to
General Counsel
Colmena Corp.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000 Telephone (352)
000-0000, Fax (000) 000-0000; and to
The Yankee Companies, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxxxxx@xxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, President
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.
(b) (1) The Parties acknowledge that the Yankee Companies, Inc., a
Florida corporation ("Yankees") serves as a strategic
consultant to Colmena and has acted as scrivener for the
Parties in this transaction but that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
Page 412
(2) Because of the inherent conflict of interests involved,
Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
(3) The decision by any Party not to use the services of legal
counsel in conjunction with this transaction shall be solely
at their own risk, each Party acknowledging that applicable
rules of the Florida Bar prevent Colmena's general counsel,
who has reviewed, approved and caused modifications on behalf
of Colmena, from representing anyone other than Colmena in
this transaction.
6.2 Amendment.
(A) No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by
the Party against which the enforcement of said modification, waiver,
amendment, discharge or change is sought.
(B) This Agreement may not be modified without the consent of a majority
in interest of Colmena's stockholders.
6.3 Merger.
(A) This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein.
(B) All prior agreements whether written or oral, are merged herein and
shall be of no force or effect.
6.4 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.
6.5 Severability.
If any provision or any portion of any provision of this Agreement, 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 effected thereby.
6.6 Governing Law.
This Agreement shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of Delaware, except for any
choice of law provisions that would result in the application of the law of
another jurisdiction, and except for laws involving the fiduciary obligations of
Colmena's officers and Director-Nominees, which shall be governed under Florida
law.
Page 413
6.7 Third Party Reliance.
Legal counsel to and accountants for the Parties shall be entitled to
rely upon this Agreement.
6.8 Venue.
Any proceeding arising between the Parties in any matter pertaining or
related to this Agreement shall, to the extent permitted by law, be held in
Broward County, Florida.
6.9 Dispute Resolution.
(A) 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, proceedings and appeals, whether or not formal
proceedings are initiated.
(B) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
(1) (a) First, the issue shall be submitted to mediation before a
mediation service in Broward County, Florida, to be selected
by lot from six alternatives to be provided, three by
Colmena and three by Xxx. Xxxxxxx .
(b) The mediation efforts shall be concluded within ten business
days after their initiation unless the Parties unanimously
agree to an extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties shall
submit the dispute to binding arbitration before an arbitration
service located in Broward County, Florida to be selected by lot,
from six alternatives to be provided, three by Colmena and three
by Xxx. Xxxxxxx .
(3) (a) Expenses of mediation shall be borne by Colmena, if
successful.
(b) Expenses of mediation, if unsuccessful and of arbitration
shall be borne by the Party or Parties against whom the
arbitration decision is rendered.
(c) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by the
Parties.
6.10 Benefit of Agreement.
(A) This Agreement may not be assigned by Xxx. Xxxxxxx without the prior
written consent of Colmena.
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(B) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties, their successors,
assigns, personal representative, estate, heirs and legatees.
6.11 Interpretation.
(A) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
(B) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(C) 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.
(D) 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.
(E) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
6.12 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.
6.13 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed or acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
6.14 Status.
Nothing in this Agreement shall be construed or shall constitute an
agency, employment, partnership, joint venture relationship.
6.15 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) 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.
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6.16 License.
(A) This Agreement is the property of Yankees and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(B) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
(C) This Agreement shall not be more strictly interpreted against any Party
as a result of its authorship.
6.17 Waiver.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
6.18 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.
(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.
6.19 Consultation with Counsel.
Xxx. Xxxxxxx has carefully read this Agreement and discussed its
requirements and other applicable limitations upon the sale, transfer or other
disposition of Colmena securities to the extent she felt necessary, with her own
legal counsel.
6.20 Information Concerning Xxx. Xxxxxxx 's Share Ownership.
(A) Colmena securities beneficially owned by Xxx. Xxxxxxx:
(1) __0________ shares of Colmena common stock; and
(2) __54,000__ shares of Colmena common stock subject to options,
warrants or other rights; and
(3) ___0________ other Colmena securities, as specifically described
in exhibit 6.20 annexed hereto and made a part hereof, if any.
(B) (1) Domicile Address: 000 XX 00xx Xxxxxx; Xxxxx, Xxxxxxx 00000
Street address City Zip code
(3) Telephone, fax and e-mail: 000-000-0000
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In Witness Whereof, Xxx. Xxxxxxx and Colmena have caused this Agreement
to be executed by themselves or their duly authorized respective officers, all
as of the last date set forth below:
Signed, sealed and delivered
In Our Presence:
/s/ Xxxxx Xxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
Dated: January 12, 2000
Colmena Corp.
/s/ Xxxxx Xxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx, Secretary
Dated: January 12, 2000
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