Clarification Agreement
This Clarification Agreement (the "Agreement") is made and entered into by
and among Colmena Corp., a publicly held Delaware corporation with a class of
securities registered under Section 12(g) of the Securities and Exchange Act of
1934, as amended ("Colmena" and the "Exchange Act," respectively) and Xxxxxxx X.
Xxxxxx, Xx., an Ohio resident ("Xx. Xxxxxx;" Colmena and Xx. Xxxxxx being
collectively referred to as the "Parties" and each being sometimes hereinafter
generically referred to as a "Party").
Preamble:
Whereas, Colmena was a publicly held holding company which owned a group of
operating subsidiaries (hereinafter collectively referred to as the
"Subsidiaries") that the Parties intended to convey to Xx. Xxxxxx pursuant to
the terms of the reorganization agreement entered into between them on or about
March 25, 1999, a copy of which was filed with the United States Securities and
Exchange Commission (the "Commission") and is available at the Commission's
website at xxx.xxx.xxx in its XXXXX archives (the "Reorganization Agreement");
but
Whereas, the Parties, in documenting the transaction, inadvertently
excluded at least one subsidiary, Tio Xxxxxxx Cigar Corp., a Delaware
corporation, and the Parties now desire to clarify that all of Colmena's
Subsidiaries were conveyed to Xx. Xxxxxx as a result of the Reorganization
Agreement, except as specifically excluded therein:
Now, Therefore, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
Witnesseth:
First: Terms of Reorganization
1.1 Clarification
The Parties hereby agree that the Reorganization Agreement conveyed to Xx.
Xxxxxx all of Colmena's Subsidiaries, except as specifically excluded therein,
and that Tio Xxxxxxx Cigar Corp. was among the Subsidiaries so conveyed.
1.2 Further Amendment or Supplement of Reorganization Agreement
Any provisions in the Reorganization Agreement which are contrary to any
provisions in this Agreement are hereby amended and supplemented, as required to
give full scope and effect to the provisions of this Agreement.
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Second: Miscellaneous
2.1 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is evinced by a written instrument, subscribed by
the Party against which such modification, waiver, amendment, discharge or
change is sought.
2.2 Notice.
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly given on the first business day
after mailing by United States registered or unaudited mail, return receipt
requested, postage prepaid, addressed as follows:
To Colmena:
Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail xxxxxxxx@xxxxxxxxx.xxx;
Attention: Xxxxxx X. Xxxxxxx, President,
with a copy to
0000 Xxxxxxxxx 00xx Xxxxxxx;
Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail, xxxxx@xxxxxxxxxxxxxxx.xxx;
Attention: Xxxxx X. Xxxxxx, General Counsel;
To Xx. Xxxxxx:
Xxxxxxx X. Xxxxxx, Xx.. 00000 Xxxxxxx Xxxx; Xxxxxxxx, Xxxx 00000; and to 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 or as may be reflected in
the SEC's XXXXX Internet web site.
2.3 Merger.
This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein. All prior agreements whether written or oral
are merged herein and shall be of no force or effect.
2.4 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.
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2.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
2.6 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceedings pertaining directly or indirectly to the rights
or obligations of the Parties hereunder shall, to the extent legally permitted,
be held in Palm Beach County, Florida.
2.7 Indemnification.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other
Parties harmless from any and all liabilities and damages (including legal
or other expenses incidental thereto), contingent, current, or inchoate to
which they or any one of them may become subject as a direct, indirect or
incidental consequence of any action by the indemnifying Party or as a
consequence of the failure of the indemnifying Party to act, whether
pursuant to requirements of this Agreement or otherwise; provided that,
such claims are asserted by third parties unrelated to the Parties.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be
entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorney's fees throughout any negotiations, trials or
appeals, whether or not any suit is instituted.
2.8 Litigation.
In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorney's fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
2.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
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2.10 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
2.11 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
2.12 Further Assurances.
The Parties agree to do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement.
2.13 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship; rather, the relationships
established hereby are those of settling debtor and creditor.
2.14 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
(c) Execution by exchange of facsimile transmission shall be deemed
legally sufficient to bind the signatory; however, the Parties
shall, for aesthetic purposes, prepare a fully executed original
version of this Agreement, which shall be the document filed with
the Securities and Exchange Commission.
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2.15 License.
(a) This Agreement is the property of The Yankee Companies, Inc.
("Yankees).
(b) The use hereof by the Parties is authorized hereby solely for
purposes of this transaction, and the use of this form of
agreement or of any derivation thereof without Yankees' prior
written permission is prohibited.
(c) The Parties hereby acknowledge that Yankees is not a law firm or
regulated entity and has not provided any Party with any advice
concerning this Agreement; rather, it has informed each Party, as
a condition to their use of this form, that they must obtain
independent legal advice.
In Witness Whereof, the Parties have caused this Agreement to be executed
effective as of the last date set forth below.
Signed, Sealed and Delivered
In Our Presence:
Colmena Corp.
/s/ Xxxxxxxx Xxxxxxx/s/
/s/ Xxxxx Xxx Xxxxxxxx /s/ By: /s/ Xxxxxx X. Xxxxxxx /s/
Xxxxxx X. Xxxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx, Secretary
Dated: July 6, 2001
Xx. Xxxxxx
/s/ Xxxx Xxxxxx /s/
/s/ --------------------------------- /s/ Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx.,
on his own behalf and on
behalf of his affiliates
Dated: July 5, 2001
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