EXHIBIT 10.1 Yankee Consulting Agreement
Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into by and
between Colmena Corporation, a publicly held Delaware corporation with a classes
of equity securities registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and currently trading on the over
the counter bulletin board operated by but not a part of NASDAQ ("Client"); and,
The Yankee Companies, Inc., a Florida corporation ("Yankees"; Client and Yankees
being hereinafter collectively referred to as the "Parties" and generically as a
"Party").
Preamble :
WHEREAS, Client is engaged in the business more particularly described in the
reports filed by Client with the Securities and Exchange Commission ("SEC" or
"Commission"), as disclosed in the SEC's ▇▇▇▇▇ web site on the Internet at
"http//▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇▇; and
WHEREAS, Client's business has experienced material difficulties based on its
failure to obtain anticipated capital from its investment banker and from
operations, in both cases caused by a material default by a customer in its
payment obligations and by certain problems in one of its operating
subsidiaries, as a result of which its strategic plans are no longer viable; and
WHEREAS, Yankees has substantial strategic business experience, acumen and
contacts, and Client desires to avail itself of Yankees' services in conjunction
with development and implementation of alternative strategic plans and to assure
attainment of such goals by securing Yankees's assistance to recruit a new
management team, develop proper investment banking relationships, develop
ongoing access to debt and equity capital markets, and develop growth through
acquisition of complementary business operations; and
WHEREAS, Yankees is agreeable to making its services available to Client, on the
terms and subject to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration for Yankees's agreement to render the
hereinafter described services as well as of the premises, the sum of TEN ($10)
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:
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Witnesseth:
ARTICLE ONE
OBLIGATIONS OF THE PARTIES
1.1Description of Services
(A)Yankees's areas of expertise include corporate structure, organization and
reorganization; mergers, acquisitions and divestitures; strategic corporate
development; corporate financial and equity analysis; market strategy planning
and implementation; corporate communication, financial public relations and
stockholder relations consulting; business plan development and implementation;
marketing sales and analysis; executive and professional recruitment;
coordination and supervision of professional services; development and
implementation of regulatory compliance procedures (the "Services").
(B)During the Initial Term of this Agreement (as hereinafter defined), Yankees
shall provide Client with the Services, on a reasonable, as required basis,
consistent with Yankees's other business activities.
(C)Yankees shall be responsible for administering the expenditure of proceeds
derived by the Client from exercise of the hereinafter described Class A Options
in order to implement the strategic plans developed by Yankees and to settle and
discharge corporate obligations of the Client, and in conjunction with such
role, shall establish and operate banking accounts for the Client, in the
Client's name or otherwise, using such signatories as Yankees may deem
appropriate, in its sole and unfettered discretion.
(D)Because of Client's status under federal securities laws, in any
circumstances where Yankees is describing the securities of Client to a third
Party, Yankees shall disclose to such person the compensation received from
Client to the extent required under any applicable laws, including, without
limitation, Section 17(b) of the Securities Act of 1933, as amended; however,
the Parties acknowledge they do not contemplate that Yankees shall be involved
in any activities on behalf of Client requiring such descriptions or
disclosures, or that the Services involve any activities subject to regulation
under federal or state securities laws other than the prohibitions of the
Foreign Corrupt Practices Act, except for the introduction of Client and its
principals to licensed broker dealers in securities, securities analysts and
appropriate corporate information and stockholder relations specialists.
1.2 Fiduciary Obligation to Client
In rendering its services, Yankees shall not disclose to any third party
any confidential non-public information furnished by Client or otherwise
obtained by it with respect to Client.
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1.3 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. (collectively with its subsidiaries being hereinafter referred to as the
"NASD"), in-house "due diligence" or "compliance" departments of licensed
securities firms, etc.; accordingly, Yankees agrees that it will not release any
information or data about Client to any selected or limited person(s), entity,
or group if Yankees is aware that such information or data has not been
generally released or promulgated.
(B)Yankees shall restrict or cease, as directed by Client, all efforts on behalf
of Client, including all dissemination of information regarding Client,
immediately upon receipt of instructions (in writing by fax or letter) to that
effect from Client.
1.4 Yankees' Compensation:
(A)Except as described below with reference to certain of the services described
above, which are to be completed within the initial 365 days of this Agreement:
(1)Yankees will ▇▇▇▇ at its standard hourly rates for all work as to which
a prior written arrangement with different terms has not been entered into,
however, no hourly billable services will be provided except at Client's
specific request.
(2)Any documents prepared by Yankees or provided to Client's advisors, at
Client's request, on existing forms will be subject to a $50 per page initial
licensing fee augmented by the time spent in personalizing the subject form.
(B)Notwithstanding the provisions of Section 1.4(a) above, during the first 365
days of this Agreement (the "Initial Term"), Yankees will accept and Client will
pay to Yankees:
(1)Options (the "Class A Options") to purchase shares of Client's
outstanding or reserved common stock (all reserved common stock being treated as
outstanding for purposes of such calculation), on the following terms (the"Stock
Signing Fee."):
(a)The quantity of Client common stock subject to the Class A Options
shall be equal to approximately 51% of Client's outstanding or reserved common
stock, immediately following complete exercise of all the Class A Options;
(b)The Class A Option term will commence on the 10th day after
execution of this Agreement and will terminate at the close of business on the
365th day following the date of this Agreement, as evinced by the last date on
the execution page hereof;
(c)The terms of the shall be those reflected in the form of warrant
agreement annexed hereto and made a part hereof as composite exhibit 1.4(B),
which form shall constitute the basis for and terms of the Class A Options,
other than as specifically modified hereby
(d)The exercise price of the Class A Options will be based on the
number of shares outstanding at the time of exercise, pro rated in accordance
with the following formula: in the event that an aggregate of 7,750,000 shares
of capital stock are outstanding or reserved for future issuance (excluding
those reserved for the Class A Options issuable hereunder) under reasonably
definable terms (e.g. options, warrants, pending acquisitions, obligations under
employment agreements, etc.), then the number of shares purchasable would be
8,066,326 and the exercise price would be $0.005 per share, any increase or
decrease in the outstanding and reserved shares resulting in a corresponding
adjustment to the Class A Option exercise quantity and price;
(e)Yankees shall have the right to cashless exercise of the options,
as reflected in the form of warrant agreement annexed hereto and made a part
hereof as composite exhibit 1.4(B), as that concept is legally interpreted for
purposes of permitting tacking of holding periods under SEC Rule 144.
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(2)If, for any reason (other than a stock split also affecting Yankees's
shares issued as the Stock Signing Fee) Client's outstanding securities exceed
those contemplated as the basis for determining the Class A Option exercise
prices within 12 months following the end of the exercise term, then additional
shares in an amount to such difference on a pro rated basis (based on the
options exercised) shall be issued to Yankees.
(3)The foregoing compensation is in lieu of document license fees and of
required cash payments for up to an aggregate of 200 hours of Yankees's hourly
fees during the initial six month term of this Agreement (but not those of its
associated entities), and, for tax purposes, shall be valued at an aggregate of
$20,000.
(4)Client has been informed that a portion of the Stock Signing Fee will be
transferred by Yankees to third party independent consultants who will assist
Yankees in the performance of its duties hereunder.
(5)The Class A Options may be exercised, in whole or in part, there being
no minimum exercise requirements.
(C)In addition to the compensation described above with reference to services
during the Initial Term of this Agreement and whether or not the following
services are rendered during such Initial Term:
(1)In the event that Yankees arranges or provides funding for Client on
terms more beneficial than those reflected in Client's current principal
financing agreements, Yankees shall be entitled, at its election, to either:
(a)A fee equal to 25% of such savings, on a continuing basis; or
(b)If equity funding is provided though Yankees or any affiliates
thereof, a discount of 10% from the bid price for the subject equity securities,
if they are issuable as free trading securities, or, a discount of 50% 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); or
(b)If funding is provided by any person or group of persons introduced
to Client by Yankees or persons associated with Yankees, directly or indirectly,
but not is not provided by Yankees or its principals as described in the
preceding sb section, then Yankees shall be entitled to an introduction fee
equal to 5% of the aggregate proceeds so obtained; and
(2)In the event that Yankees generates business for Client, then, on any
sales resulting therefrom, Yankees shall be entitled to a commission equal to
10% of the gross income derived by Client therefrom, on a continuing basis.
(3)In the event that Yankees or any affiliate thereof arranges for an
acquisition by Client, then Yankees shall be entitled to compensation equal to
10% of the compensation paid for such acquisition, in addition to any
compensation negotiated and received from the acquired entity or its affiliates.
(D)Client will assure that its legal counsel promptly prepares all reports which
then existing holders of Client's securities (including Yankees, its affiliates
and successors in interest) are required to file with the Securities and
Exchange Commission as a result of Client's reporting status, including
Securities and Exchange Commission Forms 3, 4 and 5, Schedules 13(d) and
Schedules 13(g), and shall submit all such reports to the subject stockholders
for prompt execution and timely filing with the Securities and Exchange
Commission.
(E) (1)In addition to payment of fees, Client will be responsible for payment of
all costs and disbursements associated with Yankees's services either:
(a)Involving less than $50 per item and $200 in the aggregate during
the preceding 30 day period; or
(b)Reflected in an operating budget approved by Client; or
(c)Approved in writing by Client; provided, however, that the refusal
by Client to approve expenditures required for the proper performance of
Yankees's services will excuse performance of such services.
(2)All of Yankees's statements will be paid within 10 days after receipt.
(3)In the event additional time for payment is required, Yankees will have
the option of selling the account receivable and Client agrees to pay interest
thereon at the monthly rate of 1%.
(4)In the event collection activities are required, Client agrees to pay
all of Yankees's out of pocket costs associated therewith.
(5)There will be no change or waiver of the provisions contained herein,
unless such charge is in writing and signed by Client and Yankees.
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1.5 Client's Commitments
(A). (1)All work requiring legal review will be submitted for approval by
Client to Client's legal counsel prior to its use.
(2)Final drafts of any matters prepared for use by Yankees in conjunction
with the provision of the Services will be reviewed by Client and, if legally
required, by Client's legal counsel, to assure that:
(a)All required information has been provided;
(b)All materials are presented accurately; and,
(c)That no materials required to render information provided "not
misleading" are omitted.
(2)Only after such review and approval by Client and, if required, Client's
legal counsel, will any documents be filed with regulatory agencies or provided
to Yankees or third parties.
(3)(a)Financial data will be reviewed by competent, independent, certified
public accountants to be separately retained by Client.
(b)Such accountants will be required to review and approve all
financially related filings, prior to release to Yankees, other third parties or
submission to the appropriate regulatory authorities.
(B) (1)Client shall supply Yankees on a regular and timely basis with all
approved data and information about Client, its management, its products, and
its operations and Client shall be responsible for advising Yankees of any fact
which would affect the accuracy of any prior data and information supplied to
Yankees.
(2)Client shall use its best efforts to promptly supply Yankees with full
and complete copies of all filings with all federal and state securities
agencies; with full and complete copies of all shareholder reports and
communications whether or not prepared with Yankees's assistance, with all data
and information supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and with all product/services brochures,
sales materials, etc.
(3)Client shall promptly notify Yankees of the filing of any registration
statement for the sale of securities and/or of any other event which triggers
any restrictions on publicity.
(4)Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information, and data which it
supplies to Yankees and Client acknowledges its awareness that Yankees will rely
on such continuing representation in performing its functions under this
Agreement.
(5)Yankees, in the absence of notice in writing from Client, may rely on
the continuing accuracy of material, information and data supplied by Client.
ARTICLE TWO
TERM, RENEWALS & EARLIER TERMINATION
2.1 Term.
This Agreement shall be for an initial term of 730 days, commencing on the
date of its complete execution by all Parties, as evinced in the execution page
hereof (the "Initial Term").
2.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual 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.
2.3 Final Settlement.
(A)Upon termination of this Agreement and payment to Yankees of all amounts due
it hereunder, Yankees or its representative shall execute and deliver to Client
a receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to Client all records, manuals and written
procedures, as may be desired by Client for the continued conduct of its
business; and
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(B)Client or its representative shall execute and deliver to Yankees a receipt
for all materials returned and a release of all claims, except such claims as
may have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to Yankees all records, manuals and written
procedures, as may be desired by Yankees for the continued conduct of its
business.
ARTICLE THREE
YANKEES' CONFIDENTIALITY & COMPETITION COVENANTS
3.1 General Provisions.
(A)Yankees acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of special and
unique nature and value relating to such matters as Client's trade secrets,
systems, procedures, manuals, confidential reports; consequently, as material
inducement to the entry into this Agreement by Client, Yankees hereby covenants
and agrees that it shall not, at anytime during the term of this Agreement, any
renewals thereof and for two years following the terms of this Agreement,
directly or indirectly, use, divulge or disclose, for any purpose whatsoever,
any of such confidential information which has been obtained by or disclosed to
it as a result of its entry into this Agreement or provision of services
hereunder.
(B)In the event of a breach or threatened breach by Yankees of any of the
provisions of this Article Three, Client, in addition to and not in limitation
of any other rights, remedies or damages available to Client, whether at law or
in equity, shall be entitled to a permanent injunction in order to prevent or to
restrain any such breach by Yankees, or by its partners, directors, officers,
stockholders, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting for or with
it.
3.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Client and its clients as a result of a breach by Yankees of the covenants or
agreements contained in this Article Three, and in view of the lack of an
adequate remedy at law to protect Client's interests, Yankees hereby covenants
and agrees that Client shall have the following additional rights and remedies
in the event of a breach hereof:
(A)Yankees hereby consents to the issuance of a permanent injunction enjoining
it from any violations of the covenants set forth in this Article Three; and
(B)Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Client or its clients may sustain prior to the effective
enforcement of such injunction, Yankees hereby covenants and agrees to pay over
to Client, in the event it violates the covenants and agreements contained in
this Article Three, the greater of:
(1)Any payment or compensation of any kind received by it because of such
violation before the issuance of such injunction, or
(2)The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered by Client or
its clients as a result of such violation, the Parties hereto agreeing that such
liquidated damages are not intended as the exclusive remedy available to Client
for any breach of the covenants and agreements contained in this Article Three,
prior to the issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect Client and its clients from the injury caused by such
breaches would be injunctive relief.
3.3 Cumulative Remedies.
Yankees hereby irrevocably agrees that the remedies described in this
Article Three shall be in addition to, and not in limitation of, any of the
rights or remedies to which Client and its clients are or may be entitled to,
whether at law or in equity, under or pursuant to this Agreement.
3.4 Acknowledgment of Reasonableness.
(A)Yankees hereby represents, warrants and acknowledges that its members or
officers and directors have carefully read and considered the provisions of this
Article Three 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 Client, its members, officers, directors, consultants, agents and
employees; consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent jurisdiction,
Yankees hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and, Yankees hereby covenants and agrees that if so modified, the
covenants contained in this Article Three shall be as fully enforceable as if
they had been set forth herein directly by the Parties.
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(B)In determining the nature of this limitation, Yankees 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
these covenants not to compete or circumvent be imposed and maintained to the
greatest extent possible.
3.5 Exclusivity.
Yankees shall not be required to devote all of its business time to the
affairs of Client, rather it shall devote such time as it is reasonably
necessary in light of its other business commitments.
ARTICLE FOUR
Client' CONFIDENTIALITY & COMPETITION COVENANTS
4.1 General Prohibitions
(A)Client acknowledges that, in and as a result of its engagement of Yankees,
Client will be making use of confidential information of special and unique
nature and value relating to such matters as Yankees's business contacts,
professional advisors, trade secrets, systems, procedures, manuals, confidential
reports, lists of clients, potential customers and funders; consequently, as
material inducement to the entry into this Agreement by Yankees, Client hereby
covenants and agrees that it shall not, at anytime during the term of this
Agreement, any renewals thereof an for two years following the terms of this
Agreement, directly or indirectly, use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been obtained by or
disclosed to it as a result of its employment of Yankees, or Yankees's
affiliates.
(B)In the event of a breach or threatened breach by Client of any of the
provisions of this Article Four, Yankees, in addition to and not in limitation
of any other rights, remedies or damages available to Yankees, whether at law or
in equity, shall be entitled to a permanent injunction in order to prevent or to
restrain any such breach by Client, or by Client's partners, directors,
officers, stockholders, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting for or with
it.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Yankees as a result of a breach by Client of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Yankees's interests, Client hereby covenants and agrees that
Yankees shall have the following additional rights and remedies in the event of
a breach hereof:
(A)Client hereby consents to the issuance of a permanent injunction enjoining it
from any violations of the covenants set forth in this Article Four is and
(B)Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Yankees may sustain prior to the effective enforcement of
such injunction, Client hereby covenants and agrees to pay over to Yankees, in
the event it violates the covenants and agreements contained in this Article
Four, the greater of:
(1)Any payment or compensation of any kind received by it because of such
violation before the issuance of such injunction, or
(2)The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered by Yankees as a
result of such violation, the Parties hereto agreeing that such liquidated
damages are not intended as the exclusive remedy available to Yankees 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 Yankees from the injury caused by such breaches would be
injunctive relief.
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4.3 Cumulative Remedies.
Client hereby irrevocably agrees that the remedies described in this
Article Four shall be in addition to, and not in limitation of, any of the
rights or remedies to which Yankees is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(A)Client hereby represents, warrants and acknowledges that its officers and
directors have carefully read and considered the provisions of this Article Four
and, having done so, agree that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests of
Yankees, its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described restrictions shall be
held unenforceable by any court of competent jurisdiction, Client hereby
covenants, agrees and directs such court to substitute a reasonable judicially
enforceable limitation in place of any limitation deemed unenforceable and,
Client 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.
(B)In determining the nature of this limitation, Client hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute hereunder recognize that the Parties desire that these
covenants not to compete or circumvent be imposed and maintained to the greatest
extent possible.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
All notices, demands or other written 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 United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To Yankees:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇; Boca Raton, Florida 3418
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Administrative Officer
To Client:
Colmena Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; Telephone (▇▇▇) ▇▇▇-▇▇▇▇
or at such address, telephone and fax numbers
as are reflected on the SEC's ▇▇▇▇▇ Internet site;
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President & Chief Executive Officer
in each case, with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by Parties.
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5.3 Merger.
(A)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.
(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, other
than a conditions precedent, if any, 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.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Delaware (both substantive and procedural, other than choice of law
provisions) 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 in lieu of Litigation.
(A)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 Palm Beach County, Florida to be selected by lot from six
alternatives to be provided, three by Yankees and three by Client.
(b)The mediation efforts shall be concluded within ten business days
after their initiation 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, in the
manner set forth above for selection of a mediator;
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(3)(A)Expenses of mediation shall be borne by the Parties equally if
successful but if unsuccessful, expenses of mediation and of arbitration shall
be borne by the Party or Parties against whom the arbitration decision is
rendered.
(B)If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and arbitration shall be
borne ½ by Client and ½ by Yankees.
(B)Judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
(C)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.
5.8 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, jointly and severally, their successors, assigns,
personal representatives, estate, heirs and legatees.
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, 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.
5.12 Status.
(A)Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
(B)Throughout the term of this Agreement, Yankees shall serve an independent
contractor, as that term is defined by the United States Internal Revenue
Service, and in conjunction therewith, shall be responsible for all of his own
tax reporting and payment obligations.
(C)In amplification of the foregoing, Yankees shall, subject to reasonable
reimbursement on a pre-approved budgetary basis, be responsible for providing
its own office facilities and supporting personnel.
5.13 Counterparts.
(A)This Agreement may be executed in any number of counterparts delivered
through facsimile transmission.
(B)All executed counterparts shall constitute one Agreement notwithstanding that
all signatories are not signatories to the original or the same counterpart.
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5.14 License.
(A)(1)This Agreement is the property of Yankees.
(2)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.
(3)This Agreement shall not be construed more stringently or interpreted
less favorably against Yankees' based on authorship.
(B)Each of the Parties hereby acknowledge that Yankees is not a law firm and has
not provided it with any advice, legal or otherwise, in conjunction with this
Agreement, but rather, has suggested that it rely solely on its own experience
and advisors in evaluating or interpreting this Agreement.
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Colmena Corporation
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____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
Dated: _____________________
Attest:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
The Yankee Companies, Inc.
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____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
Dated: _____________________
Attest:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, Secretary
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