CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into effective November
10, 1997, between COLMENA CORP., a Delaware corporation, with its principal
offices located at 00000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
referred to as the ("Company"), and XXXXXX XXXXXXXX, an individual resident of
Florida, with his principal offices located at 0000 Xxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (hereinafter Consultant").
1. Consulting Services
The Company hereby engages Consultant to perform the financial
consulting services listed below on the terms and conditions set forth in this
Agreement:
(A) Review the business operations of potential transaction
candidates;
(B) Meet with the appropriate shareholder groups in an effort to
resolve any valuation differences;
(C) Initiate and negotiate on behalf of the Company to explore
potential transactions;
(D) Analyze and evaluate the projected financial performance of the
Company;
(E) Assist in the formulation of a strategy for discussions with and
the presentation of a transaction proposal to any interested
parties;
(F) As mutually agreed, advise the Company regarding alternative
financing structures (including bridge loans) with which to
effect a transaction;
(G) Assist in negotiations of letters of intent and definitive
purchase or financing agreements with any interested parties and
their advisors;
(H) Provide, as deemed appropriate by Consultant, additional advisor
services related to a transaction.
(I) Assist in all international dealings and transactions.
Company acknowledges that Consultant is not a registered broker-dealer
and that Consultant cannot, and shall not be required hereunder to, engage in
the offer or sale of securities on behalf of the Company. While Consultant has
relationships and contacts with various investors, broker-dealers, and
investment funds, Consultant's participation in the actual offer or sale of the
Company securities shall be limited to that of an advisor to the Company and a
"finder" of investors, broker-dealers and funds. The Company acknowledges and
agrees that the solicitation and consummation of any purchases of the Company's
securities shall be handled by the Company or one or more NASD member firms
engaged by the Company for such purposes.
2. Term of Agreement
The term of this Agreement shall commence on the date hereof and shall
continue for a period of thirty six (36) months.
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3. Consideration to Consultants
3.1 As compensation for the services rendered hereunder, the
Company shall issue and deliver to Consultant, One Hundred,
Fifty Thousand (150,000) shares of the Company's common stock,
$.01 par value, which shares shall be registered by the
Company under the Securities Act of 1933, as amended, pursuant
to a Registration Statement on Form S-8, as soon as
practicable after the Company becomes eligible for use of such
form.
3.2 As additional consideration for the services of Consultant,
the Company agrees to indemnify and hold harmless Consultant
and each of its officers, directors, agents, employees and
controlling persons (collectively "Indemnified Persons") to
the fullest extent permitted by law, from and against any and
all losses, claims, damages, expenses (including reasonable
fees, disbursements and other charges of counsel), actions,
proceedings or investigations (whether formal or informal), or
threats thereof (all of the foregoing being hereinafter
referred to as "Liabilities"), based upon, relating to or
arising out of Consultant's engagement hereunder, including,
but not limited to Liabilities arising in connection with the
dissemination of information about the Company or the
Company's business, whether in any presentation, in person,
through the mails or otherwise; provided however, that the
Company shall not be liable under this paragraph to the extent
that it is finally judicially determined that such Liabilities
resulted primarily from the willful misconduct or gross
negligence of the Indemnified Person seeking indemnification.
In connection with the Company's obligation to indemnify for
expenses as set forth above, the Company further agrees to
reimburse each indemnified Person for all expenses (including
reasonable fees, disbursements and other charges of counsel)
as they are incurred by such indemnified Person; provided,
however, that if an Indemnified Person is reimbursed hereunder
for any expenses, the amount so paid shall be refunded if and
to the extent it is finally judicially determined that the
Liabilities in question resulted primarily from the willful
misconduct or gross negligence of such Indemnified Person.
4. Miscellaneous
4.1 Further Actions. At any time and from time to time, each party
agrees, at its or his expenses, to take such actions and to
execute and deliver such documents as may be reasonably
necessary to effectuate the purposes of this Agreement.
4.2 Entire Agreement; Modification. This Agreement sets forth the
entire understanding of the parties with respect to the
subject matter hereof and supersedes all existing agreements
among them concerning such subject matter, and may be modified
only by a written instrument duly executed by the party to be
bound.
4.3 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall
be mailed by certified mail, return receipt requested (or by
the most nearly comparable method if mailed from or to a
location outside of the United States), or delivered against
receipt to the party to whom it is to be given at the address
of such party set forth in the preamble to this Agreement (or
to such other address as the party shall have furnished in
writing in accordance with the provisions of this Section).
Any notice given to any corporate party shall be addressed to
the attention of the Corporation Secretary. Any notice of
other communication given by certified mail (or by such
comparable method) shall be deemed given at the time of
certification thereof (or comparable act), except for a notice
changing a party's address which will be deemed given at the
time of receipt thereof.
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4.4 Waiver. Any waiver by any party of a breach of any provision
of this Agreement shall not operate as or be construed tp be a
waiver of any other breach of that provision or of any breach
of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term o this
Agreement on one or more occasions will not be considered a
waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this
Agreement. Any waiver must be in writing and, in the case of a
corporate party, be authorized by a resolution of the board of
directors or by an officer of the waiving party.
4.5 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Company and
Consultant and their respective successors and assigns;
provided, however, that any assignment by any party of its
rights under this Agreement without the written consent of the
other party shall be void.
4.6 Severability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision in inapplicable to any
person or circumstance, it shall nevertheless remain
applicable to any other pers and circumstances.
4.7 Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
4.8 Counterparts; Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument. It shall be governed by and construed in
accordance with the laws of the State of Delaware, without
giving effect to conflict of laws.
4.9 Attorney's Fees. In the event of a dispute with respect to
this Agreement, the prevailing party shall be entitled to its
reasonable attorney's fees and other costs and expenses
incurred in litigating or otherwise resolving or settling such
dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
COLMENA CORP.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx., President
CONSULTANT:
By: /s/ Xxxxxx Xxxxxxxx, Chairman
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