Engagement Agreement
This Engagement Agreement (the "Agreement") is entered into,
effective as of May 10, 2002, by and between Xxxxxxx X. Xxxxx, an
individual residing in the State of Florida ("Xx. Xxxxx"), 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 Xx. Xxxxx being sometimes
hereinafter collectively to as the "Parties" or generically as a
"Party".
Preamble:
WHEREAS, Xxxxxxx X. Xxxxx has been elected by Colmena's Board of Directors
as Colmena's president and chief executive officer at a board meeting held on
May 10, 2002 in Boca Raton, Florida; and
WHEREAS, Xx. Xxxxx 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. Xxxxx'x service
hereunder shall be deemed to commence as of May 10, 2002 for an initial term of
30 days, and then continue from month to month until the next election of
officers by Colmena's board or directors or unless earlier terminated by Colmena
as hereinafter set forth.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
initial term, on a continuing monthly 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 30th day
prior to termination of the then current term.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
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. Xxxxx'x engagement under this Agreement at
any time for cause.
(2) Such termination shall be evidenced by written notice thereof to Xx.
Xxxxx, which notice shall specify the cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xx. Xxxxx, 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. Xxxxx to follow the directions of Colmena's board of
directors, unless Xx. Xxxxx 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 or Change of Control:
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 such an event occurs 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. Xxxxx'x death;
however, all accrued compensation at such time shall be promptly paid
to Xx. Xxxxx'x estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to Xx. Xxxxx of all
amounts due him hereunder, Xx. Xxxxx 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
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 2
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 Engagement
2.1 Retention.
Colmena hereby engages Xx. Xxxxx and Xx. Xxxxx hereby accepts such
engagement, in accordance with the terms, provisions and conditions of
this Agreement.
2.2 General Description of Duties.
(a) Xx. Xxxxx shall be engaged as the president and chief executive officer
of Colmena and shall perform the duties associated therewith by Colmena's
bylaws.
(b) Without limiting the generality of the foregoing, Xx. Xxxxx shall:
(1) Serve as the principal point of contact between Colmena and:
(A) The media (print, electronic, voice and picture);
(B) The investment community;
(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 him by Colmena's
board of directors, subject to compliance with all applicable laws and
fiduciary obligations.
(c) Xx. Xxxxx covenants and agrees to perform his duties in
good faith and, subject to the exceptions specified in
Section 2.4, to devote substantially all of his business
time, energies and abilities to the proper and efficient
management and execution of such duties.
2.3 Status.
(a) Xx. Xxxxx 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
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 3
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. Xxxxx hereby covenants and agrees that he shall not
hold herself 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. Xxxxx 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. Xxxxx 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.
Colmena hereby recognizes that Xx. Xxxxx is involved with other
business ventures and hereby consents to his continuation in such
roles, provided that his role as Colmena's president and chief
executive officer shall takes appropriate priority in allocation
of time and resources to any activities pertaining to such roles,
and 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. Xxxxx 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. Xxxxx is describing the
securities of Colmena to a third party, Xx. Xxxxx 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. Xxxxx 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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 4
(d) Xx. Xxxxx 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. Xxxxx'x services to Colmena, Xx. Xxxxx
shall be entitled to:
(a) (1) Compensation of 50,000 shares of common stock per month
served, 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.
(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. Xxxxx pursuant to this agreement will never be
canceled by Colmena or at its direction for any reason except by
court order.
(b) Stock certificates will be issued to Xxxxxxx X. Xxxxx 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. Xxxxx within ten (10) days of the end
of each month in which Xx. Xxxxx performed the requested
services.
(3) Xx. Xxxxx 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. Xxxxx 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
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 5
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. Xxxxx 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. Xxxxx 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.
(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. Xxxxx 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. Xxxxx 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 Xx. Xxxxx 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. Xxxxx 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. Xxxxx 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 Xx. Xxxxx 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 Xx.
Xxxxx shall be entitled to a bonus in a sum equal to 5% of the
net proceeds of such funding.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 6
(2) In the event that Xx. Xxxxx generates business for the Consolidated
Corporation, then, on any sales resulting therefrom, Xx. Xxxxx 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
Xx. Xxxxx shall be entitled to any benefits generally made
available to employees of Colmena (rather than to a specified
employee or group of employees).
3.3 Indemnification.
Colmena will defend, indemnify and hold Xx. Xxxxx 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 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 Xx.
Xxxxx to incur any out of pocket expenses; provided, however,
that Xx. Xxxxx permits Colmena to select and supervise all
personnel involved in such defense and that Xx. Xxxxx 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) Xx. Xxxxx 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. Xxxxx 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. Xxxxx 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. Xxxxx, or by Xx. Xxxxx'x
partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or
indirectly acting for or with him.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 7
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. Xxxxx
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. Xxxxx hereby covenants and agrees that
Colmena shall have the following additional rights and remedies
in the event of a breach hereof:
(a) Xx. Xxxxx 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. Xxxxx 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.
4.3 Cumulative Remedies.
Xx. Xxxxx 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. Xxxxx 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. Xxxxx
hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any
limitation deemed unenforceable and, Xx. Xxxxx 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. Xxxxx 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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 8
4.5 Unauthorized Acts.
Xx. Xxxxx 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. Xxxxx 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 Xx. Xxxxx:
Xxxxxxx X. Xxxxx, 000 XX 00xx Xxxxxx, Xxxx Xxxxx, 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: Chairman of the Board; with a copy to
Xxxxxxx X. Xxxxxxx, Secretary
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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 9
(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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 10
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 Palm Beach
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 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. Xxxxx.
(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
Palm Beach County, Florida to be selected by lot, from four alternatives to
be provided, two by Colmena and two by Xx. Xxxxx.
(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. Xxxxx 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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 11
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.
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. Xxxxx 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. Xxxxx 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 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.
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 12
(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. Xxxxx
__________________________
__________________________ ___________________________
Xxxxxxx X. Xxxxx
Dated: July 22, 2002
Colmena Corp.,
a Delaware corporation
__________________________
__________________________ By: ___________________________
Xxxxxxx X. Xxxxxxx
Vice President & Secretary
(CORPORATE SEAL)
Dated: July 22, 2002
_____________________________________________________________________
Please Initial: Colmena: ____ Xx. Xxxxx: ___
Colmena Corp. Engagement Agreement Page 13
