Settlement Agreement
This Settlement Agreement (the "Agreement") is made and entered into by and
among Colmena Corp., a publicly held Delaware corporation with a class of
securities registered under Section 12(g) of the Securities and Exchange Act of
1934, as amended ("Colmena" and the "Exchange Act," respectively), and, Larry
Van Etten, a Florida resident ("Mr. Van Etten;" Mr. Van Etten and Colmena being
collectively referred to as the "Parties" and each being sometimes hereinafter
generically referred to as a "Party").
Preamble:
WHEREAS, the Parties have engaged in a series of business agreements and
transactions involving Colmena, and, for their mutual benefit, the Parties
desire to settle all outstanding issues and commitments:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
Witnesseth:
First: Terms of Settlement
In consideration for the material and substantial assistance being rendered
by Mr. Van Etten to Colmena on numerous matters and in settlement of all of
their outstanding claims against each other and their members, partners,
officers, directors, agents and affiliates (as that term is used for purposes of
federal securities laws), Mr. Van Etten and Colmena hereby agree to an accord
and satisfaction of all of their rights, obligations and liabilities, on the
following terms:
A. Subject to the requirements of paragraph B below, Colmena hereby agrees
to immediately issue to Mr. Van Etten 136,147 shares of Colmena's
common stock, $0.001 per share par value (the "Settlement Shares"), in
full payment of all obligations owed to Mr. Van Etten and his
affiliates by Colmena and its affiliates, from the beginning of time
until the date of this Agreement, as well as in consideration for the
extinguishment of all agreements between them.
B. The Settlement Shares are being issued in reliance on the exemption
from registration requirements under the Securities Act of 1933, as
amended (the "Securities Act"), provided by Section 4(2) thereof, and
the exemption from registration under the Florida Securities and
Investor Protection Act, as amended (the "Florida Blue Sky Act"),
provided by Section 517.061(11) thereof and in conjunction therewith,
Mr. Van Etten hereby represents, warrants and covenants as follows:
(1) All of the Stock will bear legends restricting its transfer,
sale, conveyance or hypothecation unless such Stock is either
registered under the provisions of Section 5 of the Securities
Act and the Florida Blue Sky Act, or an opinion of legal
counsel, in form and substance satisfactory to legal counsel
to Colmena is provided by Mr. Van Etten to the effect that
such registration is not required as a result of applicable
exemptions there from;
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(2) Colmena's transfer agent shall be instructed not to transfer
any of the Stock unless Colmena advises it that such transfer
is in compliance with all applicable laws;
(3) Mr. Van Etten is acquiring the Stock for his own account, for
investment purposes only, and not with a view to further sale
or distribution, except as permitted in accordance with the
Securities Act, the Florida Blue Sky Act, the rules and
regulations promulgated thereunder and subject to compliance
with the requirements of the preceding two paragraphs; and
(4) Mr. Van Etten or his advisors have examined Colmena's Exchange
Act filings posted on the United States Securities and
Exchange Commission's EDGAR system and are fully familiar with
Colmena and its operations as a result of his prior
association therewith, having also questioned Colmena's
officers and directors as to all matters involving Colmena as
Mr. Van Etten' deemed appropriate.
C. In consideration for the foregoing, Mr. Van Etten hereby relinquish all
rights, whether accrued or inchoate, under any agreements between him
or his affiliates and Colmena and its affiliates, other than those
created by this Agreement.
Second Mutual Releases
In consideration for the exchange of covenants reflected above but
excepting only the obligations created by this Agreement, the Parties hereby
each release, discharge and forgive the other, and each of the others'
subsidiaries, affiliates, members, officers, directors, partners, agents and
employees from any and all liabilities, whether current or inchoate, from the
beginning of time until the date of this Agreement.
Third: Miscellaneous
3.1 Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is evinced by a written instrument,
subscribed by the Party against which such modification, waiver, amendment,
discharge or change is sought.
3.2 Notice.
All notices, demands or other communications given hereunder shall be
in writing and 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:
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To Colmena:
Crystal Corporate Center; 2500 North Military Trail, Suite 225-D;
Boca Raton, Florida 34431
Attention: Anthony Q. Joffe, President; and to
The Yankee Companies, Inc.
Crystal Corporate Center; 2500 North Military Trail, Suite 225;
Boca Raton, Florida 34431
Attention: Leonard Miles Tucker, President
To Mr. Van Etten:
1601 North 15th Terrace; Hollywood, Florida 33020
Telephone (954) 929-9860, Fax (954) 929-0284; and, e-mail,
[email protected].
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.
3.3 Merger.
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. All prior agreements whether written or
oral are merged herein and shall be of no force or effect.
3.4 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.
3.5 Severability.
If any provision or any portion of any provision of this Agreement,
other than one of the conditions precedent or subsequent, 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.
3.6 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of Florida and any proceedings pertaining directly or indirectly to the
rights or obligations of the Parties hereunder shall, to the extent legally
permitted, be held in Palm Beach County, Florida.
3.7 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,
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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; provided that, such claims are asserted by
third parties unrelated to the Parties.
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.
3.8 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:
1. (A) First, the issue shall be submitted to mediation before a
mediation service in Broward County, Florida, to be selected
by lot from six alternatives to be provided, three by
Colmena and three by Mr. Van Etten.
(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 Broward County, Florida to be
selected by lot, from six alternatives to be provided, three
by Colmena and three by Mr. Van Etten.
3. (A) Expenses of mediation shall be borne equally by the Parties,
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.
3.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
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3.10 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.
3.11 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.
3.12 Further Assurances.
The Parties 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.
3.13 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship, rather, the relationships
established hereby are those of settling debtor and creditor.
3.14 Counterparts.
A. This Agreement may be executed in any number of counterparts.
B. All executed counterparts shall constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
C. 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.
3.15 License.
A. This Agreement is the property of the Yankee Companies, Inc, a Florida
corporation ("Yankees").
B. 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.
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C. The Parties hereby acknowledge that Yankees is not a law firm or
regulated entity and has not provided any Party with any advice
concerning this Agreement, rather, it has informed each Party, as a
condition to their use of this form that they must obtain independent
legal advice.
D. This Agreement will not be construed more or less favorably against a
Party on the basis of its authorship.
In Witness Whereof, the Parties have caused this Agreement to be executed
effective as of the last date set forth below.
Signed, sealed and delivered
In Our Presence:
Colmena Corp.
---------------------------------
_________________________________ By: /s/ Anthony Q. Joffe
Anthony Q. Joffe, President
(CORPORATE SEAL)
Attest: /s/ Vanessa H. Lindsey
Dated: May 11, 2000 Vanessa H. Lindsey, Secretary
Mr. Van Etten:
---------------------------------
--------------------------------- /s/ Larry Van Etten
Larry Van Etten
Dated: May 11, 2000
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