AGREEMENT
TO CONTROL IMPROPER USE OF MATERIAL INSIDE INFORMATION
This agreement to control improper use of material inside information (the
"Agreement") is made and entered into, by and between The Yankee Companies, LLC,
a Florida limited liability company ("Yankees"), and Colmena Corp., a publicly
held Delaware corporation with a class of securities registered under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act" and
the "Issuer;" respectively; Yankees and the Issuer being sometimes hereinafter
collectively referred to as the "Parties," or generically as a "Party").
PREAMBLE:
WHEREAS, the Parties desire to assure that the Issuer is in continuing full
compliance with its obligations to disseminate information concerning
its operations, financial condition and anticipated events on a timely
basis, as required by the Regulation FD promulgated by the United
States Securities and Exchange Commission ("Regulation FD" and the
"Commission," respectively); and
WHEREAS, pursuant to Yankees' status as an investor in and advisor to the
Issuer, Yankees may, from time to time, be asked to review and comment
on information concerning the Issuer that has not yet been publicly
released; and
WHEREAS, Yankees and its affiliates, on a continual basis, are engaged in the
sale of securities of the Issuer which they have purchased from the
Issuer or received as compensation from the Issuer and require a
mechanism to determine when such sales would be prohibited by Section
20A of the Exchange Act, as involving improper use of material inside
information (collectively hereinafter referred to as "Material Inside
Information"):
NOW, THEREFORE, in consideration of the premises and the sum of ten
dollars, the receipt and adequacy of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
WITNESSETH:
FIRST: The Issuer hereby agrees to provide Yankees and its members with
prompt written notice on each occasion that it provides Yankees or its
members with Material Inside Information, specifically identifying the
information so provided (the "Notice").
SECOND: Yankees and its members hereby agree that promptly after receipt of
the Notice, they will maintain the Material Inside Information in
confidence pursuant to Regulation FD,ss. 243.100 (b)(2)(ii), and will
refrain from placing any new instructions for transactions in the
Issuer's securities for a period of forty-eight hours, unless the
purchaser of the securities to be sold is provided with the specific
Material Inside Information involved, unless the purchaser of the
securities to be sold is provided with the specific Material Inside
Information involved and has also agreed to maintain the same in
confidentiality as provided herein (the "No New Sales Period"),
THIRD: The Issuer hereby agrees that it shall either issue a press release or
make a filing with the Commission disclosing the specific Material
Inside Information involved in the Notice, within the No New Sales
Period.
FOURTH: The Issuer's and Yankees' obligations under this Agreement shall be in
addition to, and not in lieu of, their existing obligations under
federal and state securities laws.
FIFTH: Miscellaneous Provisions:
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:
(1) To the Issuer:
Colmena Corp., 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
email xxxxxxxxxxxxxx@xxxxxxxxxxx.xxx;
Attention: Xxxxxxx X. Xxxxxxx, Secretary & Chief Administrative Officer
(2) To Yankees:
The Yankee Companies, LLC, 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000, Fax (000) 000-0000;
e-mail xxxxx@xxxxxxxxxxxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, Chief Executive Officer
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 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 the Issuer to retain independent legal and accounting counsel
to review this Agreement and its exhibits and incorporated materials
on its behalf.
(3) 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 Yankees' general counsel, who has reviewed, approved and
caused modifications on behalf of Yankees, from representing anyone
other than Yankees 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.
Agreement to Control Improper Use of Material Inside Information Page 2
(B) This Agreement may not be modified without the consent of a majority in
interest of Yankees' members.
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.
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Florida, except for any choice of
law provisions that would result in the application of the law of another
jurisdiction.
5.7 Third Party Reliance.
Legal counsel to and accountants for the Parties shall be entitled to rely
upon this Agreement.
5.8 Venue.
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.
5.9 Litigation.
(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:
Agreement to Control Improper Use of Material Inside Information Page 3
(1) (a) First, the issue shall be submitted to mediation before a
mediation service in Palm Beach County, Florida, to be selected
by lot from six alternatives to be provided, three by Yankees and
three by the Issuer.
(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 six
alternatives to be provided, three by Yankees and three by the Issuer.
(3) (a) Expenses of mediation shall be borne by Yankees, 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.
5.10 Benefit of Agreement.
(A) This Agreement may not be assigned by the Issuer without the prior written
consent of Yankees.
(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.
5.11 Interpretation.
(A) The words "include," "includes" and "including" when used herein shall be
deemed in each case to be followed by the words "without limitation."
(B) The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(C) 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.
(D) 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.
(E) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
Agreement to Control Improper Use of Material Inside Information Page 4
5.12 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.
5.13 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.
5.14 Status.
Nothing in this Agreement shall be construed or shall constitute an agency,
employment, partnership, or, joint venture relationship.
5.15 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.
5.16 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.
5.17 Waiver.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
5.18 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.
Agreement to Control Improper Use of Material Inside Information Page 5
(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 attorneys' fees throughout any negotiations, trials or
appeals, whether or not any suit is instituted.
5.19 Consultation with Counsel.
The Issuer has carefully read this Agreement and discussed its requirements
and other applicable limitations upon the sale, transfer or other disposition of
the Issuer's Securities acquired by Yankees, to the extent the Issuer felt
necessary, with legal counsel for the Issuer.
In Witness Whereof, the Issuer and Yankees have caused this Agreement to be
executed by themselves or their duly authorized respective officers, all as of
the last date set forth below:
Signed, sealed and delivered
In Our Presence:
The Issuer
/s/ Xxxxxx X. Xxxxxxx /s/
----------------------------
/s/ Xxxxxxxx Xxx Xxxxx /s/
____________________________ By: /s/ Xxxxxxx X. Xxxxx /s/
Xxxxxxx X. Xxxxx, President
Dated: May 10, 2002
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx, Secretary
The Yankee Companies, LLC
/s/ Xxxxx Xxxxxxxx /s/
----------------------------
/s/ Xxxx Xxxxxxx /s/
____________________________ By: /s/ Xxxxxxx Xxxxx Xxxxxx /s/
Xxxxxxx Xxxxx Xxxxxx
Member & Chief Executive Officer
Attest: /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 10, 2002
Agreement to Control Improper Use of Material Inside Information Page 6
