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 XXXX XXXXXXX, an individual resident of Florida, with his
principal offices located at 00000 Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, 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 Consultant
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/ Xxxxxxx Xxxxxxx
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") is entered into this 1st day
of May, 1998, by and among COLMENA CORP., a Delaware corporation ("Colmena") and
XXXXXXX XXXXXXX, a resident of Florida ("Xxxxxxx").
A. Pursuant to that certain consulting agreement dated November
10, 1997, by and between Colmena and Xxxxxxx (the "Consulting
Agreement"), Colmena engaged Xxxxxxx to perform certain
services.
X. Xxxxxxx is no longer able to dedicate the time necessary to
perform the services required under the Consulting Agreement
and the parties desire to terminate the Consulting Agreement
on the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
herein set forth, and other valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Colmena and Xxxxxxx hereby agree as follows.
1. Termination of the Consulting Agreement.
Colmena and Xxxxxxx agree to terminate the Consulting Agreement effective
as of April 24, 1998, subject to the fulfillment by Xxxxxxx of the following
conditions and covenants:
(a) Concurrently with the execution hereof, Xxxxxxx shall
deliver to Colmena Forty-Three Thousand (43,000)
shares of Colmena common stock, $.01 par value
("Common Stock") issued and delivered to Xxxxxxx
pursuant to the Consulting Agreement; and
(b) Xxxxxxx shall pay to Colmena the sum of Two Hundred,
Ninety-Nine Thousand, Nine Hundred and Seventy-Five
Dollars ($299,975), representing all of the proceeds
received by Xxxxxxx from the sale of One Hundred
Thousand (100,000) shares of Common Stock received
under the Consulting Agreement, on or before May 8,
1998 by wire transfer to the following account:
Key Bank
North Olmsted, Ohio
ABA #000000000
Account Name: Colmena Corp.
Account No.: #358543000121
Except as hereinafter provided, payment of the foregoing sums and
satisfaction of the foregoing conditions and covenants by Xxxxxxx on the dates
specified for payment and or performance shall be accepted by Colmena as a
complete accord and satisfaction. Xxxxxxx further waives any right to any future
compensation pursuant to the Consulting Agreement.
(c) Xxxxxxx shall be entitled to retain, as compensation
for services rendered under the Consulting Agreement,
the proceeds from Seven Thousand (7,000) shares of
Common Stock received under the Consulting Agreement
and subsequently sold by Xxxxxxx. Colmena waives any
claims with respect to such 7,000 shares.
2. Mutual Release.
2.1 Release. Each of the parties does hereby release,
acquit and forever discharge the other, their
officers, directors, agents, employees, successors
and assigns, from any and all claims, demands,
actions, causes of action, damages, costs, or other
claims whatsoever in law or
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equity, which any party may have against any of the
other parties pertaining to, relating to, connected
with, or arising out of any matter or thing
whatsoever, including without limitation any incident
which occurred or which is alleged to have occurred
as hereinbefore described. In so doing, said parties,
release, relinquish, remise, waive forever,
discharge, absolve, and quit each other of and from
each, every and all things, including by way of
example, but not limitation, each, every and all
manner of actions, causes of action, liabilities,
debts, sums of money, controversies, indebtedness,
breaches of contract, breaches of duty or any
relationships, acts, omissions, promises, agreements,
representations, damages and any demand of any type,
nature, kind or description, whether in law or in
equity, or otherwise, by reason of any matters,
causes or things, whatsoever, whether known or
unknown, suspected or unsuspected, heretofore or now
existing which could, might or may be claimed to
exist form the beginning of time unto the date of
these presents.
2.2 Full Settlement. Each of the parties hereto does
hereby acknowledge and agree that it is their
intention that this Agreement shall be effective as a
full and final accord and satisfaction and settlement
of and as a bar to each and every claim, demand,
debt, account, reckoning, liability, obligation,
cost, expense, lien, action and cause of action,
heretofore referred to and released, which any party
hereto has, or has had against the other parties
hereto. In connection with such waiver and
relinquishment, each of the parties hereto
acknowledges that they are aware that they or their
attorney may hereafter discover facts different from
or in addition to the facts which they or their
attorney now know or believe to be true with respect
to the subject matter of this Agreement, but that it
is their intention to fully, finally, absolutely and
forever settle any and all claims, disputes and
differences which to now exist or heretofore have
existed between the parties to this Agreement and
that in furtherance of such intention the mutual
releases herein given shall be and remain in effect
as full and complete general mutual releases
notwithstanding the discovery of any such different
or additional facts. Each of the parties hereto does
hereby abandon, release, waive, and relinquish all
rights and benefits which they may acquire under any
statutory provision pertaining to the subject matter
of this Agreement.
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3. Miscellaneous Provisions.
3.1 Notices. All notices or other communications required
or permitted hereunder shall be in writing to the
party for whom it is intended at the address set
forth below, and shall be personally delivered or
sent by registered or certified mail, postage
prepaid, return receipt requested, telegraphed
delivered or sent by facsimile, telex, telecopy or
cable and shall be deemed received upon the earlier
of: (a) if personally delivered or sent by registered
or certified mail, the date of delivery to the
address of the person to receive such notice; (b) if
given by telegraph or cable, when delivered to the
telegraph company with charges prepaid; or (c) if
given by facsimile, telex or telecopy, when sent. Any
notice, request, demand, direction or other
communication sent by telegraph, cable, facsimile,
telex or telecopy must be confirmed within
forty-eight (48) hours by letter mailed or delivered
in accordance with the foregoing.
Colmena: COLMENA CORP.
00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx., President
Xxxxxxx: XXXXXXX XXXXXXX
C/o Schoeppl & Xxxxx, P.A.
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000-X
Xxxx Xxxxx, Xxxxxxx 00000-0000
Notice of change of address shall be given by written
notice in the manner detailed in this Section.
Rejection or other refusal to accept or the inability
to deliver because of changed address of which no
notice was given shall be deemed to constitute
receipt of the notice, demand, request or
communication sent.
3.2 Successors. This Agreement shall benefit and be
binding on the respective heirs, administrators,
successors and assigns of Colmena and Xxxxxxx.
3.3 Severability. If any term, provision, covenant or
condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall
remain in full force and effect and shall in no way
be affected, impaired or invalidated.
3.4 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the
State of Florida. If any legal action is necessary to
enforce the terms and provisions of this Agreement,
the parties hereby agree that the Superior Court of
located in the County of Palm Beach, shall be proper
venue for the bringing of such action.
3.5 Assignment. This Agreement shall not be assigned by
any party and any such attempt shall be null and void
3.6 Section Headings. The section headings used in this
Agreement are inserted for convenience and
identification only, and are not to be used in any
manner to interpret, define or to limit or extend the
scope, intent or extent of this Agreement or the
provisions hereof.
3.7 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto and supersedes any
prior written or oral agreement between them
respecting the subject matter of this Agreement.
There are no other representatives, agreements,
arrangements or understandings, oral or written,
among the parties hereto respecting the subject
matter in this Agreement which are not fully
expressed in this Agreement. Any alleged oral
representations or modifications concerning this
Agreement shall be of no force or effect.
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3.8 Amendment. This Agreement cannot be modified or
amended except by a writing signed by the parties
hereto.
3.9 Attorney Fees. If either party brings an action to
enforce the terms and provisions of this Agreement or
to declare rights hereunder, the prevailing party in
any such action shall be entitled to an award of its
reasonable attorney fees to be paid by the
non-prevailing party as determined by the court.
3.10 Knowing and Voluntary Execution. Colmena and Xxxxxxx
represent that they fully understand all of the
terms, provisions and effect of this Agreement and
they have been advised by independent legal counsel
and other professionals of their own choosing
regarding the consequences of this Agreement and that
they are entering into this Agreement voluntarily and
of their own free will.
3.11 Corporate Authority. Each individual executing this
Agreement on behalf of a corporation represents and
warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of such
corporation in accordance with a duly adopted
resolution of the Board of Directors of such
corporation and that this Agreement is binding upon
such corporation in accordance with its terms.
3.12 Counterparts. This Agreement may be executed
simultaneously or in any number of counterparts, each
of which shall be deemed an original, but all of
which together shall constitute one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
"COLMENA"
COLMENA CORP.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx., President
"XXXXXXX"
/s/ Xxxxxxx Xxxxxxx
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