Engagement Agreement
This Engagement Agreement (the "Agreement") is entered into, effective as
of March 26, 2002,, by and between Xxxx Xxxxxxxxx, an individual residing in the
State of Florida ("Xx. Xxxxxxxxx"), and Colmena Corp., a Delaware publicly held
corporation with a class of securities registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended ("Colmena" and the "Exchange Act,"
respectively, Colmena and all of its subsidiaries, whether current or
subsequently formed or acquired, sometimes being collectively hereinafter
referred to as the "Consolidated Corporation," and Colmena and Xx. Xxxxxxxxx
being sometimes hereinafter collectively to as the "Parties" or generically as a
"Party".
Preamble:
WHEREAS, Colmena has directed The Yankee Companies, LLC, a Florida limited
liability company that serves as Colmena's strategic consultant ("Yankees"), to
recommend an individual to serve as its chief financial officer and controller;
and
WHEREAS, Yankees has recommended Xx. Xxxxxxxxx to Colmena's board of
directors based on his knowledge and experience in financial matters, including
the accounting services he has been providing to Colmena through his company,
CFO On Call; and
WHEREAS, Colmena's board of directors has determined that he is experienced
and well known in the financial community and is thoroughly knowledgeable with
the obligations and restrictions imposed on public companies by the Exchange Act
and the Securities Act of 1933, as amended (the "Securities Act") and has
requested that he serve as Colmena's chief financial officer and controller; and
WHEREAS, Xx. Xxxxxxxxx is agreeable to serving in this capacity on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of Xx. Xxxxxxxxx'x
engagement hereunder shall be deemed to commence as of March 26, 2002 and
continue until March 25, 2003, unless extended or earlier terminated by Colmena
as hereinafter set forth.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 60th day
prior to termination of the then-current term.
Colmena Corp. Engagement Agreement
1.3 Earlier Termination.
Colmena shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Section 1.4, for the following reasons:
(a) For Cause:
(1) Colmena may terminate Xx. Xxxxxxxxx'x engagement under this Agreement
at any time for cause.
(2) Such termination shall be evidenced by written notice thereof to Xx.
Xxxxxxxxx, which notice shall specify the cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xx. Xxxxxxxxx, through sickness or other
incapacity, to discharge his duties under this Agreement for 30
or more consecutive days or for a total of 60 or more days in a
period of twelve consecutive months;
(B) The refusal of Xx. Xxxxxxxxx to follow the directions of
Colmena's board of directors, unless Xx. Xxxxxxxxx believes in
good faith that such directions are contrary to law;
(C) Dishonesty; theft; or conviction of a crime involving moral
turpitude;
(D) 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.
(b) Discontinuance of Business:
In the event that Colmena discontinues operating its business or
experiences a change in control, this Agreement shall terminate as of the
last day of the month on which it ceases operation or such control changes
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.
(c) Death:
This Agreement shall terminate immediately on Xx. Xxxxxxxxx'x death;
however, all accrued compensation at such time shall be promptly paid to
Xx. Xxxxxxxxx'x estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to Xx. Xxxxxxxxx of all
amounts due him hereunder, Xx. Xxxxxxxxx or his 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.
Colmena Corp. Engagement Agreement Page 2
Article Two
Scope of Engagement
2.1 Retention.
Colmena hereby hires Xx. Xxxxxxxxx and Xx. Xxxxxxxxx hereby accepts such
engagement, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) Xx. Xxxxxxxxx shall be engaged as the chief financial officer and
controller of Colmena and shall perform the duties associated therewith by
Colmena's bylaws.
(b) Without limiting the generality of the foregoing, Xx. Xxxxxxxxx shall:
(1) Be responsible for coordinating all financial aspects of Colmena's
operations, including strategic financial planning, supervision of
Colmena's treasurer (if one has been appointed), and supervision of
outside auditors;
(2) Keep Colmena's Audit Committee of the board of directors fully
and timely informed of all matters under its jurisdiction
(3) Serve as Colmena's principal compliance officer and be
responsible for overseeing preparation and filing of all reports
of Colmena's activities required to be filed, either periodically
or on a special basis with the United States Internal Revenue
Service, the Securities and Exchange Commission (the
"Commission"), and with other federal, state or local
governmental agencies; and
(4) Perform such other duties as are assigned to him by Colmena's
board of directors, subject to compliance with all applicable
laws and fiduciary obligations.
(c) Xx. Xxxxxxxxx covenants and agrees to perform his duties in good faith and,
subject to the exceptions specified in Section 2.4, to devote the required
amount of his business time, energies and abilities to the proper and
efficient management and execution of such duties.
2.3 Status.
(a) Xx. Xxxxxxxxx shall serve as an independent contractor of Colmena and shall
have no authority to act as an agent thereof, or to bind Colmena or its
subsidiaries as a principal or agent thereof, all such functions being
reserved to its board of directors in compliance with the requirements of
its constituent documents, unless the board of directors shall otherwise
authorize.
(b) Xx. Xxxxxxxxx hereby covenants and agrees that he shall not hold himself
out as an authorized agent of Colmena unless such authority is specifically
assigned to him, on a case by case basis, by its board of directors
pursuant to a duly adopted resolution which remains in effect.
(c) Xx. Xxxxxxxxx hereby represents and warrants to Colmena that he is subject
to no legal, self regulatory organization (e.g., National Association of
Securities Dealers, Inc.'s bylaws) or regulatory impediments to the
provision of the services called for by this Agreement, or to receipt of
the compensation called for under this Agreement or any supplements
thereto; and, Xx. Xxxxxxxxx hereby irrevocably covenants and agrees to
immediately bring to the attention of Colmena any facts required to make
the foregoing representation and warranty continuously accurate throughout
the term of this Agreement, or any supplements or extensions thereof.
Colmena Corp. Engagement Agreement Page 3
2.4 Non-Exclusivity.
Xx. Xxxxxxxxx shall, unless specifically otherwise authorized by Colmena's
board of directors, devote his business time in a way that the affairs of
Colmena are satisfied; provided, however, that Colmena hereby recognizes that
Xx. Xxxxxxxxx is involved with other business ventures and hereby consents to
his continuation in such roles, provided that he will resolve any actual
conflicts of interest resulting from such roles in favor of Colmena whenever
possible and practical.
2.5 Limitations on Services
(a) The Parties recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules
and regulations of stock exchanges, the National Association of Securities
Dealers, Inc., in-house "due diligence" or "compliance" departments of
Licensed Securities Firms, etc.; accordingly, Xx. Xxxxxxxxx agrees that he
will not:
(1) Release any financial or other material information or data about
Colmena without the prior written consent and approval of Colmena's
General Counsel;
(2) Conduct any meetings with financial analysts without informing
Colmena's General Counsel and board of directors in advance of the
proposed meeting and the format or agenda of such meeting.
(b) In any circumstances where Xx. Xxxxxxxxx is describing the securities of
Colmena to a third party, Xx. Xxxxxxxxx shall disclose to such person any
compensation received from Colmena to the extent required under any
applicable laws, including, without limitation, Section 17(b) of the
Securities Act of 1933, as amended.
(c) In rendering his services, Xx. Xxxxxxxxx shall not disclose to any third
party any confidential non-public information furnished by Colmena or
American Internet or otherwise obtained by it with respect to Colmena,
except on a need to know basis, and in such case, subject to appropriate
assurances that such information shall not be used, directly or indirectly,
in any manner that would violate state or federal prohibitions on xxxxxxx
xxxxxxx of Colmena's securities.
(d) Xx. Xxxxxxxxx shall not take any action which would in any way adversely
affect the reputation, standing or prospects of Colmena or which would
cause Colmena to be in violation of applicable laws.
Article Three
Compensation
3.1 Compensation.
As consideration for Xx. Xxxxxxxxx'x services to Colmena, Xx. Xxxxxxxxx
shall be entitled to:
(a) (1) Compensation at the rate of $85.00 per hour of time actually devoted
to his duties as Colmena's chief financial officer and controller as
specified in Article 2.2, as well as reimbursement for all reasonable
expenses incurred by him in the course of his duties, plus $1,000 each
month in Colmena's common stock, provided that:
(a) He has not been discharged by Colmena for cause;
(b) He fully complies with the provisions of this Agreement,
including, without limitation, the confidentiality and
non-competition sections hereof.
Colmena Corp. Engagement Agreement Page 4
(2) (a) The compensation specified above in subsection (a) (1) shall be
paid at the end of each month. All compensation for services
shall be deemed fully earned as of the end of each month. Colmena
agrees that any stock certificates which are delivered to Xx.
Xxxxxxxxx pursuant to this agreement will never be canceled by
Colmena or at its direction for any reason except by court order.
(b) The number of shares of stock issued pursuant to this paragraph
will be calculated based on the shares' average closing
transaction price, as reported on such exchanges as the
securities may be traded on or, if not traded on any exchange, as
reported on an over-the-counter trading medium (such as the OTC
Bulletin Board), for the month then ending.
(c) Stock certificates will be issued to Xxxx Xxxxxxxxx or to his
designee, if he so requests in writing. Colmena will use
reasonable efforts to assure that its transfer agent delivers
stock certificates to Xx. Xxxxxxxxx within ten (10) days of the
end of each month in which Xx. Xxxxxxxxx performed the requested
services.
(3) Xx. Xxxxxxxxx hereby represents, warrants, covenants and acknowledges
that:
(A) The securities being 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 regulations 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;
(B) Xx. Xxxxxxxxx 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);
(C) 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;
(D) 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;
(E) Xx. Xxxxxxxxx is acquiring the Securities for his own account,
for investment purposes only, and not with a view to further sale
or distribution; and
(F) Xx. Xxxxxxxxx or his advisors have examined Colmena's books and
records and questioned its officers and directors as to such
matters involving Colmena as he deemed appropriate.
Colmena Corp. Engagement Agreement Page 5
(3) 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 Xx.
Xxxxxxxxx of such intent at least 15 business days prior to such
filing, and shall, if requested by him, include any shares theretofore
issued upon exercise of the Options in such registration or
notification statement, provided that Xx. Xxxxxxxxx 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 in conjunction with any such registration, Xx.
Xxxxxxxxx must comply with any reasonable restrictions on sales of the
registered securities generally required by an underwriter of
securities included in such registration statement.
(b) In addition to the compensation described above:
(1) In the event that Xx. Xxxxxxxxx arranges or provides funding for the
Consolidated Corporation on terms more beneficial than those reflected
in the Consolidated Corporation's current principal financing
agreements, copies of which are included among the Consolidated
Corporation's records available through the SEC's XXXXX web site, Xx.
Xxxxxxxxx shall be entitled, at its election, to either:
(A) A fee equal to 5% of such savings, on a continuing basis; or
(B) If equity funding is provided through Xx. Xxxxxxxxx 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
(C) If equity funding is arranged by Xx. Xxxxxxxxx and the
Colsolidated Corporation 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, then Xx. Xxxxxxxxx
shall be entitled to a bonus in a sum equal to 5% of the net
proceeds of such funding.
(2) In the event that Xx. Xxxxxxxxx generates business for the
Consolidated Corporation, then, on any sales resulting therefrom, Xx.
Xxxxxxxxx shall be entitled to a commission equal to 5% of the net
income derived by the Consolidated Corporation therefrom, on a
continuing basis.
3.2 Benefits
As an independent contractor, Xx. Xxxxxxxxx will not be entitled to any
benefits generally made available to Colmena employees, unless otherwise agreed
to in writing by Colmena's board of directors.
3.3 Indemnification.
Colmena will defend, indemnify and hold Xx. Xxxxxxxxx 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 him 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
Xx. Xxxxxxxxx to incur any out of pocket expenses; provided, however, that Xx.
Xxxxxxxxx permits Colmena to select and supervise all personnel involved in such
defense and that Xx. Xxxxxxxxx waives any conflicts of interest that such
personnel may have as a result of also representing Colmena, their stockholders
or other per sonnel and agrees to hold them harmless from any matters involving
such representation, except such as involve fraud or bad faith.
Colmena Corp. Engagement Agreement Page 6
Article Four
Special Covenants
4.1 Confidentiality.
(a) Xx. Xxxxxxxxx acknowledges that, in and as a result of his engagement
hereunder, he 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 funders; consequently,
as material inducement to the entry into this Agreement by Colmena, Xx.
Xxxxxxxxx hereby covenants and agrees that he shall not, at anytime during
or following the terms of his engagement hereunder, 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
him as a result of his engagement by Colmena, or Colmena's affiliates.
(b) In the event of a breach or threatened breach by Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx, or by Xx.
Xxxxxxxxx'x partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly
acting for or with him.
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 Xx. Xxxxxxxxx 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, Xx. Xxxxxxxxx hereby covenants and agrees
that Colmena shall have the following additional rights and remedies in the
event of a breach hereof:
(a) Xx. Xxxxxxxxx hereby consents to the issuance of a permanent injunction
enjoining him 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, Xx. Xxxxxxxxx hereby covenants and agrees
to pay over to Colmena, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(i) Any payment or compensation of any kind received by him because
of such violation before the issuance of such injunction, or
(ii) 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.
Colmena Corp. Engagement Agreement Page 7
4.3 Cumulative Remedies.
Xx. Xxxxxxxxx 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.
Xx. Xxxxxxxxx hereby represents, warrants and acknowledges that he 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, directors and other employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Xx. Xxxxxxxxx hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, Xx. Xxxxxxxxx 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, Xx. Xxxxxxxxx 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.
Xx. Xxxxxxxxx hereby covenants and agrees that he will not do any act or
incur any obligation on behalf of Colmena or American Internet 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
Xx. Xxxxxxxxx hereby irrevocably covenants and agrees that during the term
of this Agreement and after its termination, he 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 the Consolidated Corporation, its
constituent members, or their officers, directors, stockholders, employees,
agent or affiliates, whether related to the business of the Consolidated
Corporation, to other business or financial matters or to personal matters.
Article Five
Miscellaneous
5.1 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 Xx. Xxxxxxxxx:
Xxxx Xxxxxxxxx,
0000 Xxxxx Xxxxx Xxx, Xxxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Facsimile (000) 000-0000;
e-mail xxxxx@xxxxxxxxx.xxx
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 xxxxxxxxxxxxxx@xxxxxxxxxxx.xxx;
Attention: President; with a copy to
Xxxxxxx X. Xxxxxxx, Secretary
Colmena Corp.
0000 Xxxxxxxxx 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail, xxxxxxxxxx@xxxxxxxxxxxxxxx.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.
Colmena Corp. Engagement Agreement Page 8
(b) (1) The Parties acknowledge that 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.
(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.
(c) 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but 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.
5.7 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
Colmena Corp. Engagement Agreement Page 9
expenses, including reasonable attorneys' fees up to and including all
negotiations, trials and appeals, whether or not litigation is
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 four alternatives to be provided, two by Colmena
and two by Xx. Xxxxxxxxx.
(B) The mediation efforts shall be concluded within ten business
days after their in itiation 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 four alternatives to be provided, two by Colmena and two by
Xx. Xxxxxxxxx.
(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.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by Xx. Xxxxxxxxx without the prior
written consent of Colmena.
(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.
5.9 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.
Colmena Corp. Engagement Agreement Page 10
5.10 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.
5.11 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.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; rather, the
relationship established hereby is that of independent contractor to Colmena, as
the term "independent contractor" is defined by the United States Internal
Revenue Service. In conjunction therewith, Xx. Xxxxxxxxx shall be responsible
for his own tax reporting and payment obligations, and shall have the sole and
exclusive responsibility and liability for making all reports and contributions,
withholdings, payments and taxes to be collected, withheld, made and paid with
respect to the services to be performed hereunder, whether pursuant to any
social security, unemployment insurance, worker's compensation law or other
federal, state or local law now in force in effect or hereafter enacted. In
amplification of the foregoing, except as otherwise may be agreed by the Parties
in writing, Xx. Xxxxxxxxx shall be responsible for providing his own office
facilities and supporting personnel.
5.13 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 Commission.
5.14 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.
Colmena Corp. Engagement Agreement Page 11
(c) This Agreement shall not be more strictly interpreted against any Party as
a result of its authorship.
* * *
In Witness Whereof, the Parties have executed this Agreement, effective as
of the date set * forth above.
Signed, Sealed & Delivered
In Our Presence
Xx. Xxxxxxxxx
--------------------------
/s/ Xxxx Xxxxxxxxx /s/
-------------------------- ---------------------------
Xxxx Xxxxxxxxx
Colmena Corp.,
a Delaware corporation
--------------------------
__________________________ By: /s/ Xxxxxx X. Xxxxxxx /s/
Xxxxxx X. Xxxxxxx
President & Director
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx
Secretary
Colmena Corp. Engagement Agreement Page 12
