Employment Agreement
This Employment Agreement (the "Agreement") is entered into, effective as
of June 14, 2001, by and between Xxxxxxx X. Xxxxxxx, an individual residing in
the State of Florida ("Xxx. Xxxxxxx"), 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, being collectively hereinafter referred to as
the "Consolidated Corporation," and Colmena and Xxx. Xxxxxxx being sometimes
hereinafter collectively to as the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Colmena has directed The Yankee Companies, Inc., a Florida
corporation which serves as Colmena's strategic consultant ("Yankees") to
recommend an individual experienced with public companies, to serve as its vice
president for the current fiscal year; and
WHEREAS, Yankees has recommended Xxx. Xxxxxxx to Colmena's board of
directors based on her experience as well as her knowledge of Colmena from her
service as Colmena's secretary; and
WHEREAS, after interviewing Xxx. Xxxxxxx, Colmena's board of directors has
determined that she is experienced in and knowledgeable with the obligations and
restriction imposed on public companies by the Exchange Act and the Securities
Act of 1933, as amended (the "Securities Act") and has requested that she serve
as Colmena's vice president and secretary during the next fiscal year; and
WHEREAS, Xxx. Xxxxxxx 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:
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Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of Xxx. Xxxxxxx'x
employment hereunder shall be deemed to commence as of June 14, 2001 and
continue until June 13, 2002, 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.
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 Xxx. Xxxxxxx'x employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof to
Xxx. Xxxxxxx, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xxx. Xxxxxxx, through sickness or other
incapacity, to discharge her 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 Xxx. Xxxxxxx to follow the directions of
Colmena's board of directors, unless Xxx. Xxxxxxx 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 her obligations,
services or duties required under this Agreement or
materially breach of any provision of this Agreement,
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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, 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.
(c) Death:
This Agreement shall terminate immediately on Xxx. Xxxxxxx'x death;
however, all accrued compensation at such time shall be promptly paid to Xxx.
Xxxxxxx'x estate.
1.4 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.
Article Two
Scope of Employment
2.1 Retention.
Colmena hereby hires Xxx. Xxxxxxx and Xxx. Xxxxxxx hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) Xxx. Xxxxxxx shall be employed as the vice president and secretary of
Colmena and shall perform the duties associated therewith by Colmena's
bylaws.
(b) Without limiting the generality of the foregoing, Xxx. Xxxxxxx shall assist
the president in his or her duties, as requested by the president or the
board of directors, and may assist from time to time in the following:
(1) Serve as the principal point of contact between Colmena and:
(A) The media (print, electronic, voice and picture);
(B) The investment community;
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(C) Colmena's security holders;
(2) Be responsible for supervision of all of Colmena's other officers;
(3) Be responsible for Colmena's compliance with all applicable laws,
including federal, state and local securities laws and tax laws;
(4) Be responsible for supervision of Colmena's subsidiaries; and
(5) Perform such other duties as are assigned to her by Colmena's board of
directors, subject to compliance with all applicable laws and
fiduciary obligations.
(c) Xxx. Xxxxxxx covenants and agrees to perform her duties in good faith and,
subject to the exceptions specified in Section 2.4, to devote substantially
all of her business time, energies and abilities to the proper and
efficient management and execution of such duties.
2.3 Status.
(a) Xxx. Xxxxxxx shall serve as an employee 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) Xxx. Xxxxxxx hereby covenants and agrees that he shall not hold herself out
as an authorized agent of Colmena unless such authority is specifically
assigned to her, on a case by case basis, by its board of directors
pursuant to a duly adopted resolution which remains in effect.
(c) Xxx. Xxxxxxx 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, Xxx. Xxxxxxx 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.
2.4 Exclusivity.
Xxx. Xxxxxxx shall, unless specifically otherwise authorized by Colmena's
board of directors, on a case by case basis, devote her business time in a way
that the affairs of Colmena are satisfied; provided, however, that Colmena
hereby recognizes that Xxx. Xxxxxxx is involved with other business ventures and
hereby consents to her continuation in such roles, provided that she allocates
the necessary time and resources to the fulfilment of her duties to Colmena as
specified in this Agreement.
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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, Xxx. Xxxxxxx 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 Xxx. Xxxxxxx is describing the securities of
Colmena to a third party, Xxx. Xxxxxxx 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 her services, Xxx. Xxxxxxx 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) Xxx. Xxxxxxx 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 Xxx. Xxxxxxx'x services to Colmena, Xxx. Xxxxxxx shall
be entitled to:
(a) (1) Compensation at the rate of $5,000.00 per month, on a pro rata basis
(assuming a 40-hour work week) of time actually devoted to her duties
as Colmena's vice president and secretary as specified in Article 2.2,
provided that:
(a) She has not been discharged by Colmena for cause;
(b) She fully complies with the provisions of this Agreement,
including, without limitation, the confidentiality and
non-competition sections hereof.
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(2) (a) The compensation specified above in subsection (a) (1) shall be
paid at the end of each month, and may be paid as a combination
of cash and an amount of Colmena's common stock, the value of
such stock to be calculated as provided below. 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 Xxx. Xxxxxxx 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 Xxxxxxx X. Xxxxxxx or to her
designee, if she so requests in writing. Colmena will use
reasonable efforts to assure that its transfer agent delivers
stock certificates to Xxx. Xxxxxxx within ten (10) days of the
end of each month in which Xxx. Xxxxxxx performed the requested
services.
(3) Xxx. Xxxxxxx 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) 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);
(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) 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
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(F) Xxx. Xxxxxxx or her advisors have examined Colmena's books and
records and questioned its officers and directors as to such
matters involving Colmena as he deemed appropriate.
(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
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.
(b) In addition to the compensation described above:
(1) In the event that Xxx. Xxxxxxx 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, Xxx.
Xxxxxxx 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 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
(C) If equity funding is arranged for the Consolidated Corporation 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, the Xxx. Xxxxxxx
shall be entitled to a bonus in a sum equal to 5% of the net
proceeds of such funding.
(2) In the event that Xxx. Xxxxxxx generates business for the Consolidated
Corporation, then, on any sales resulting therefrom, Xxx. Xxxxxxx
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
Xxx. Xxxxxxx shall be entitled to any benefits generally made available to
all other employees (rather than to a specified employee or group of employees).
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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 the Consolidated Corporation, 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.
Article Four
Special Covenants
4.1 Confidentiality.
(a) Xxx. Xxxxxxx acknowledges that, in and as a result of her employment
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, Xxx.
Xxxxxxx hereby covenants and agrees that he shall not, at anytime during or
following the terms of her employment 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
her as a result of her employment by Colmena, or Colmena's affiliates.
(b) 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'x 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:
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(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 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 her 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.
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 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, 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 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.
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4.6 Covenant not to Disparage
Xxx. Xxxxxxx 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 Company, its constituent
members, or their officers, directors, stockholders, employees, agent or
affiliates, whether related to the business of the Consolidated Company, 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 Xxx. Xxxxxxx:
Xxx. Xxxxxxx X. Xxxxxxx,
0000 Xxxxxxxxx 00xx Xxxxxxx,
Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Facsimile (000) 000-0000;
e-mail xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
To Colmena:
Colmena Corp.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000;
and, e-mail xxxxxxxxxx@xxxxxx.xxx;
Attention: Chairman of the Board; with a copy to
Xxxxxx X. Xxxxxxx, President
Colmena Corp.
0000 Xxxxxxxxx 00xx Xxxxxxx,
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.
(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.
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(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.
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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 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 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 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 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.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by Xxx. Xxxxxxx 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.
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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; but, rather,
the relationship established hereby is that of employer- employee.
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 Securities and Exchange
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.
(c) This Agreement shall not be more strictly interpreted against any Party as
a result of its authorship.
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In Witness Whereof, the Parties have executed this Agreement, effective as
of the date set forth above.
Signed, Sealed & Delivered
In Our Presence
Xxx. Xxxxxxx
/s/ Xxxxx Xxx Xxxxxxxx /s/
/s/ Xxxxxxxx Xxxxxxx /s/ /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx
Dated: July 19, 2001
Colmena Corp.,
a Delaware corporation
/s/ Xxxxx Xxx Xxxxxxxx /s/
/s/ Xxxxxxxx /s/ By: /s/ Xxxxxx X. Xxxxxxx /s/
Xxxxxx X. Xxxxxxx
President & Chief Executive Officer
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Director & Chairman of the Board
Dated: July 19, 2001
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