Exhibit 10.12
SHAREHOLDERS AGREEMENT
This ownership and representation agreement ("Agreement") is entered
this 21st day of February, 2001, by and between CapSource Financial, Inc., a
Colorado corporation ("CapSource"), Transco de Mexico S.A. de C.V., a
corporation organized in the United Mexican States, and a subsidiary of
CapSource and Xxxxx Xxxxxxxx, an individual residing in the United Mexican
States ("Partner") (collectively the "Parties").
RECITALS
WHEREAS, on February 21, 2001, CapSource and Hyundai Precision America,
Inc. entered into an agreement ("Hyundai Agreement") whereby CapSource and its
assignees have the exclusive right to distribute certain Hyundai products in the
United Mexican States;
WHEREAS, CapSource has or will form a new Mexican subsidiary company
("Transco") to conduct business pursuant to the Hyundai Agreement;
WHEREAS, CapSource has or will make significant capital contributions
to Transco;
WHEREAS, Partner was instrumental in arranging the Hyundai Agreement
and CapSource envisions that Partner will also be instrumental in the success of
Transco;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants set forth herein, the parties agree to the following:
1. Stock Ownership. The shares of Transco shall be initially owned as
follows: eighty percent (80%) by CapSource ("Majority Shares") and twenty
percent (20%) by Partner ("Partner's Shares").
2. Representation. Partner acknowledges that the Board of Directors of
Transco ("Transco Board") has created a vacancy on the Transco Board by creating
a new directorship and has filled such vacancy by electing Partner. Transco
agrees that from the date of this Agreement and for so long as the Partner shall
be the owner of the Minority Shares, in each instance in which individuals are
nominated for election to the Transco Board, Transco shall cause to be nominated
for election to the Transco Board by the Transco Shareholders the Partner.
Partner may at his sole discretion choose not to stand for election to the
Transco Board of Directors and may resign from the Transco Board of Directors at
any time.
3. Management of Transco. The Transco Board shall oversee the business
of Transco and may exercise all powers of Transco, subject to the restrictions
imposed by this Agreement.
A. Meeting of the Transco Board. A meeting of the Transco Board
shall be held at least twice each year.
B. Quorum. At all meetings of the Transco Board, three (3)
members, represented in person or by proxy, shall constitute a
quorum of the transaction of business.
C. Vote. Each member of the Transco Board shall have one (1)
vote.
D. Actions of Transco. The following actions by Transco shall be
taken only by the Transco Board (subject to Shareholders'
approval where required by law): (i) approval or amendment of
Transco's one-year and five-year business plan; (ii)
selection, hiring and retention and compensation of Transco's
Managing Director; (iii) commencement, expansion, termination
or reduction of any line of business of Transco; (iv)
borrowing or lending by Transco other than
(A) short term borrowing in the ordinary course of business;
and (B) borrowing or lending expressly authorized in the then
currently approved business plan; (v) any guarantees of
payment or performance by a third party other than in the
ordinary course of business; (vi) transactions with the
Parties or their affiliates except in accordance with the
terms of this Agreement, or the entering into, or modification
of any contract or agreement to which any Party or any
affiliate is a party; (vii) any sale, exchange or other
disposition of any material amount of the property and assets
of Transco except in accordance with the then currently
approved business plan or any capital expenditure not in the
then currently approved business plan in excess of Ten
Thousand Dollars U.S. ($10,000); (viii) the creation of any
lien or encumbrance on any asset of Transco, other than a lien
arising by operation of law or in the ordinary course of
business; (ix) the establishment or acquisition or disposal of
any interest in any corporation or other entity; (x) any
merger or consolidation of Transco with any other corporation
or business; (xi) the voluntary dissolution of Transco; (xii)
any addition or alteration to, or amendment or repeal of, the
Articles of Association (or similar document) of Transco.
E. No Compensation of Directors. The directors of Transco shall
receive no compensation from Transco for their services as
directors. Travel and accommodation expenses of the directors
incurred in connection with the performance of duties as
directors shall be borne by Transco.
F. Managing Director. The Managing Director of Transco shall be
responsible for, and have the power and authority to, conduct
the day-to-day operations of Transco, subject to (i) this
Agreement; and (ii) the decisions of the Transco Board. The
Managing Director shall report to the Transco Board.
4. Convertibility of Minority Shares. The Partner shall have the option
to convert the Partner's Shares ("Conversion Rights") into shares of CapSource
("CapSource Common Stock") on the following terms and conditions:
A. Subject to adjustment as set forth below, the conversion ratio
shall be as set forth in Exhibit A ("Conversion Ratio") which
is attached and made a part of this Agreement.
B. The Partner shall have the right to convert fifty percent
(50%) (but not less than 50%) of the Partner's Shares at any
time pursuant to the Conversion Ratio.
C. The Conversion Ratio is subject to adjustment from time to
time as provided in this Section 4(c). In the event CapSource
shall at any time after the date of this Agreement (i) declare
or pay any dividend on the CapSource Common Stock in shares of
common stock; (ii) subdivide or split the outstanding
CapSource Common Stock into a greater number of shares; (iii)
combine or consolidate the CapSource Common Stock into a
smaller number of shares or effect a reverse split of the
outstanding CapSource Common Stock, then the Conversion Ratio
in effect at the time of the record date for such dividend or
of the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that
the Partner shall be entitled to receive, upon conversion the
aggregate number and kind of CapSource Common Stock, which, if
such conversion had been exercised immediately prior to such
date, the Partner would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification.
D. The Partner's conversion rights shall be terminated
immediately upon receipt from Hyundai of notice that Transco's
rights under the Hyundai have been terminated.
5. Restriction on Distributions. The parties acknowledge and agree that
the amount and timing of any distributions to shareholders will be at the sole
discretion of the Transco Board.
6. Buy/Sell Provisions. The parties agree to the following buy-sell
provisions:
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A. Offer. Subject to the conditions set forth below, at any time
after the date of this Agreement, either CapSource or Partner
("Electing Party") may offer to buy all, but not less than
all, of the shares of Transco owned by the other party
("Offeree") by delivering to the Offeree a written notice
("Buy-Sell Offer") stating the Electing Party's proposed
purchase price for the shares ("Purchase Price").
B. Reply Notice. The Offeree shall have sixty (60) days after the
receipt of the Buy-Sell Offer within which to send written
notice ("Reply Notice") to the Electing Party stating whether
the Offeree will either: (a) sell to the Electing Party all of
the Offeree's shares; or (b) buy from the Electing Party all
of the Electing Party's shares. If the Electing Party does not
receive a Reply Notice within the sixty (60) day reply period,
the Offeree shall be conclusively deemed to have accepted the
Electing Party's offer to purchase the Offeree's shares, and a
binding contract of purchase and sale shall be deemed to be
formed between the Electing Party and the Offeree at the
Purchase Price. If the Offeree elects to purchase, it shall
purchase all of the Electing Party's shares, at the applicable
Purchase Price per share.
C. Closing. The closing for the purchase of the shares pursuant
to this Section 6 ("Closing") shall be held at the principal
office of CapSource unless otherwise mutually agreed, on a
date selected by the purchasing party, but not more than sixty
(60) days after the formation of a purchase contract upon the
Offeror's receipt of a Reply Notice or the expiration of the
sixty (60) day reply period, as applicable, under Section 6(b)
above.
D. Payment of Purchase Price. The Purchase Price shall be paid in
cash at the Closing.
E. Default. If the purchasing party does not close the purchase
of shares under this Section 6 as a result of his default, the
selling party shall have the right (but not the obligation),
in addition to any other rights or remedies he may have to
elect, by a notice (to be effective immediately) to the
defaulting party, (a) to purchase the defaulting Party's
shares at a purchase price equal to eighty-five percent (85%)
of the Purchase Price of the defaulting party's shares; or (b)
to file suit for consequential and incidental damages arising
from the defaulting party's failure to close his purchase.
F. Conditions on Implementing Buy-Sell Procedure. Notwithstanding
anything to the contrary in this Section 6, if CapSource
invokes the Buy-Sell procedure the Partner shall have the
right to convert his shares in Transco as set forth in Section
4 of this Agreement within the sixty (60) day period set forth
in Section 6(b).
7. Drag Along Rights. If at any time any one or more of the
shareholders of Transco (the "Seller") shall propose to undertake a sale of
fifty percent (50%) or more of Transco's then issued and outstanding shares of
capital stock to a single entity or person in a single transaction or series of
related transactions ("Proposed Transaction"), then Partner shall, if requested
by such Seller, sell all of his Shares in such transaction on the same terms and
for the same consideration. Such Seller shall give Partner written notice of any
Proposed Transaction at least twenty (20) days prior to the date on which such
transaction shall be consummated, including the terms and conditions thereof,
and Partner shall have the obligation to sell his Shares on such same terms and
conditions in accordance with the instructions set forth in such notice. In such
event, Partner shall deliver the share certificate(s) (accompanied by duly
executed stock powers or other instrument of transfer duly endorsed in blank)
representing the shares of Transco to Transco or to an agent designated by
Transco, for the purpose of effectuating the transfer of the shares to the
purchaser and the disbursement of the proceeds of such transactions to the
Partner. Transco may, at its option, deposit the consideration payable for the
shares with a depository designated by it and thereafter each share certificate
shall represent only the right to receive the consideration payable in the
transaction.
8. Additional Investment. Should Transco, at the discretion of the
Transco Board, desire to obtain additional equity capital, the Partner shall
have the right (but not the obligation) to purchase such additional shares
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of Transco on the same terms and conditions as a new investor so that after such
new investment the Partner shall still own twenty percent (20%) of the issued
and outstanding shares of Transco.
9. Restriction on Transfer, Proxies, Etc. Except as set forth in this
Agreement Partner, in his capacity as shareholder, shall not, directly or
indirectly: (a) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Partner's Shares or any interest therein; (b) except as
contemplated hereby, grant any proxies or powers of attorney, deposit any
Partner's Shares into a voting trust or enter into a voting agreement with
respect to any Partner's Shares; or (c) take any action that would make any
representation or warranty of such Partner contained herein untrue or incorrect
or have the effect of preventing or disabling such Partner from performing, such
Partner's obligations under this Agreement.
10. Investment Representation Regarding CapSource Shares.
A. Securities Act. The Partner acknowledges that (a) the shares
being acquired by the Partner in CapSource pursuant to the
conversion provisions set forth in Section 4 are not and will
not be registered under the Securities Act and that CapSource
has any obligation to the Partner to register such shares; and
(b) that the Partner is sophisticated in financial affairs and
is able to evaluate the risks inherent in the shares, and is
acquiring the shares for investment for its own account, with
no present intention of dividing its participation with others
or reselling or otherwise distributing the same, subject,
nevertheless, to any requirement of law that the disposition
of its property shall at all times be within its control.
B. Resales. The Partner will not sell or transfer all or any part
of his shares in CapSource unless and until it shall first
have given notice to CapSource describing such sale or
transfer and furnished to CapSource either (i) an opinion,
reasonably satisfactory to counsel for CapSource skilled in
securities matters to the effect that the proposed sale or
transfer may be made without registration under the Securities
Act; or (ii) an interpretive letter from the staff of the
Securities and Exchange Commission ("SEC") to the effect that
no enforcement action will be recommended if the proposed sale
or transfer is made without registration under the Securities
Act of 1932, as amended, ("Act") in either case accompanied by
evidence that such transfer will be in compliance with
applicable state securities ("blue sky") laws; provided,
however, that the foregoing shall not apply with respect to
(1) any transfer pursuant to an effective registration
statement under the Act, or pursuant to Rule 144 thereunder;
(2) any transfers between a Purchaser and any institutional
affiliate of such Purchaser for its own account.
C. Legends. CapSource may place appropriate legends on the
certificates representing shares being acquired by the Partner
in CapSource pursuant to the conversion provisions set forth
in Section 4 and may refuse to transfer any of the securities
on its books should the holders thereof attempt to transfer
any of them otherwise than in compliance herewith and
therewith. Such legend shall be in substantially the following
form:
The sale, transfer or assignment of the securities represented
by this certificate are subject to the terms and conditions of
a certain Shareholders Agreement dated January __, 2001, among
Transco and certain of its holders of its outstanding capital
stock. Copies of such Agreement may be obtained at no cost by
written request made by the holder of record of this
certificate to the Secretary of Transco.
CapSource agrees to reissue certificates representing the shares being acquired
by the Partner in CapSource pursuant to the conversion provisions set forth in
Section 4 Securities without the legend provided for above at such time as (i)
the holder thereof is permitted to dispose of such Securities or Conversion
Shares pursuant to Rule 144 under the Act; (ii) the shares are sold to a
purchaser or purchasers who (in the opinion of counsel to such purchasers, in
form
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and substance reasonably satisfactory to CapSource and its counsel) are able to
dispose of such shares publicly without registration under the Act; or (iii)
such securities are registered under the Act.
11. Insider Transactions. The Parties agree that any transactions
between Transco and its officers, directors, shareholders or their affiliates,
including, without limitation, any sales of capital stock or assets of Transco,
will be on terms no less favorable to Transco than could be obtained from
unaffiliated third parties on an arm's-length basis and will require the
approval of a majority of Transco's disinterested directors.
12. Commissions. Transco will compensate Partner for the sales of
equipment made by the Partner at the same rate as Transco pays its other
employees for such sales. The Partner acknowledges and agrees that no
commissions will be paid to Partner on sales of equipment made by sub-agents of
Transco.
13. No Other Agreement. Partner represents that he has not granted and
is not a party to any proxy, voting trust or other agreement which is
inconsistent with or conflicts with the provisions of this Agreement, and
Partner shall not grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective permitted successors and
assignees, legal representatives and heirs. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the Parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. The administrator, executor or legal representative of the
Partner shall have the right to execute and deliver all documents and perform
all acts necessary to exercise and perform the rights and obligations of such
Partner under the terms of this Agreement.
15. Injunctive Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by the non-breaching party if any
party fails to comply with the provisions of this Agreement and that in the
event of any such failure, the non-breaching parties will not have an adequate
remedy at law. The non-breaching parties shall, therefore, be entitled to obtain
specific performance of the breaching party's obligations hereunder and to
obtain immediate injunctive relief. The breaching party shall not urge, as a
defense to any proceeding for such specific performance or injunctive relief,
that the non-breaching parties have an adequate remedy at law. If any action at
law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
16. Miscellaneous.
A. Notices and Consents. Whenever, under the provisions of this
Agreement, notice is required to be given to any party, it
shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, addressed to such
party at the party's address as it appears on the records of
Transco with postage thereon prepaid, and such notice shall be
deemed to be given forty-eight (48) hours after the notice is
deposited in the United States mail. Notice to a party may
also be given by facsimile and deemed received when sent
during regular business hours, or otherwise immediately upon
the opening of business the next regular business day. All
consents required or allowed in this Agreement must be in
writing and signed by the consenting party in order to be
effective.
B. Waiver of Notice. Any required notice may be waived in writing
by the Person entitled thereto.
C. Severability. Each provision hereof is intended to be
severable and the invalidity or illegality of any portion of
this Agreement shall not affect the validity or legality of
the remainder hereof.
D. Captions. Section captions in this Agreement are for
convenience only and shall not be used in interpreting its
provisions.
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E. Gender, Etc. The masculine gender shall include the feminine
and neuter genders and the singular shall include the plural.
F. Binding Agreement. Subject to the restrictions on assignment
herein, the provisions of this Agreement shall be binding
upon, and inure to the benefit of, the successors and assigns
of the parties. In addition, all references to a party
include, bind and inure to the benefit of the party's
partners, officers, directors, agents, employees, successors
in interest and assigns.
G. Applicable Law. All the provisions of this Agreement shall be
construed under the laws of Minnesota (without reference to
any conflicts of law principles). To the extent permitted by
governing law, this Agreement shall constitute a waiver by
each party of all rights under the laws of the United Mexican
States which are inconsistent with the provisions of this
Agreement.
H. Consent to Jurisdiction. Partner hereby submits to the
exclusive jurisdiction of the courts of general jurisdiction
of the State of Minnesota and the federal courts of the United
States of America, located in the District of Minnesota,
solely in respect of the interpretation and enforcement of the
provisions of this Agreement and any other agreement,
instrument or other document entered into in connection
herewith and hereby waives, and agrees not to assert, as a
defense in any action, suit or proceeding for the
interpretation or enforcement of this Agreement or any such
other agreement, instrument or other document, that it is not
subject thereto or that such action, suit or proceeding may
not be brought or is not maintainable in such courts or that
this Agreement or any such other agreement, instrument or
other document may not be enforced in or by such courts or
that its property is exempt or immune from execution, that the
suit, action or proceeding is brought in an inconvenient
forum, or that the venue of the suit, action or proceeding is
improper. Service of process with respect thereto may be made
upon Partner by mailing a copy thereof by registered or
certified mail, postage prepaid, to such party at its address
as provided in this Agreement, provided that service of
process may be accomplished in any other manner permitted by
applicable law.
I. Notices. All notices, requests, reports and other
communications pursuant to this Agreement shall be in writing,
either by letter (delivered by hand or commercial messenger
service or sent by certified mail, return receipt requested)
or telegram or telecopy, addressed as follows:
If to CapSource
CapSource Financial, Inc.
Attn: General Counsel
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to Transco
------------------------------------
------------------------------------
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With a copy to
CapSource Financial, Inc.
Attn: General Counsel
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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If to Partner
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J. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the matters
set forth herein and supersedes any prior understanding or
agreement, oral or written, with respect thereto.
K. Agreement in Counterparts. This Agreement may be executed in
several counterparts and all so executed shall constitute one
Agreement, binding on all the parties hereto, notwithstanding
that all the parties are not signatories to the original or
the same counterpart.
L. No Third-party Beneficiary. The provisions of this Agreement
are intended to be for the benefit of the Partner and
CapSource only and shall not confer any right or claim upon,
or otherwise inure to the benefit of, any creditor of, or
other third party having dealings with Transco or CapSource.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, or a counterpart hereof, as of the date first written above.
XXXXX XXXXXXXX
-------------------------------------
CAPSOURCE FINANCIAL, INC.
-------------------------------------
Xxxx X. Xxxxxxxxx
President
TRANSCO S.A. DE C.V.
-------------------------------------
Xxxxxx ________
Director General
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EXHIBIT A
CONVERSION RATIO
Subject to the provisions of Section 4. Convertibility of Minority
Shares, the Partner may convert on the following basis:
a) No conversion.
a. 200 shares for each trailer sold between 200 and 500
during Year 1 and 300 for each trailer sold in excess
of 500 during Year 1; and in no case less than 10,000
shares.
b. 200 shares for each trailer sold between 300 and 600
during Year 2 and 300 for each trailer sold in excess
of 900 during Year 2; and in no case less than 20,000
shares.
c. 200 shares for each trailer sold between 600 and 900
during Year 3 and 300 for each trailer sold in excess
of 1200 during Year 3; and in no case less than
30,000 shares.
d. 200 shares for each trailer sold between 900 and 1200
during Year 4 and 300 for each trailer sold in excess
of 1200 during Year 4; and in no case less than
40,000 shares.
1) 200 shares for each trailer sold between 900
and 1200 during year prior to conversion and
300 for each trailer sold in excess of 1200
during the year prior to conversion; and in
no case less than 40,000 shares.
For the purpose of calculating the conversion ratio Year 1 is the
calendar year 2001. Year 2 is the calendar year 2002. Year 3 is the calendar
year 2003. Year 4 is the calendar year 2004. Year 5 is the calendar year 2005.
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AGREEMENT
WHEREAS, the parties have entered into a Shareholders Agreement dated
February 21, 2001 ("Shareholders Agreement");
WHEREAS, the Shareholders Agreement grants an ownership interest and
certain other rights to Xxxxx Xxxxxxxx ("Conzuelo") in a Mexican subsidiary of
CapSource Financial, Inc. (designated as "Transco" in the Shareholders Agreement
but incorporated in Mexico as Remolques y Sistermas Aliados de Transportes, S.A.
de C.V., dba RESALTA, "RESALTA");
WHEREAS, the parties now desire to modify the Shareholders Agreement;
NOW THEREFORE, with the intention be modify the Shareholders Agreement
and with the further intention to be legally bound agree as follows:
17. Conversion of RESALTA Ownership Interest. Notwithstanding any
provision in the Shareholders Agreement to the contrary, Conzuelo hereby agrees
to transfer his entire ownership interest ("Ownership Interest") in RESALTA to
CapSource as of April 1, 2002.
18. Compensation to Conzuelo. Notwithstanding any provision in the
Shareholders Agreement to the contrary, in exchange for the transfer of the
Ownership Interest to CapSource, CapSource will issue to Conzuelo Ten Thousand
(10,000) shares of fully paid, non-assessable shares of CapSource Financial,
Inc. common stock ("Conversion Shares").
19. Representation on RESALTA Board of Directors. CapSource agrees that
for not less than one year from the date of this agreement that it will vote its
shares in RESALTA such that Conzuelo is elected a member of the Board of
Directors of RESALTA. The parties further agree that Conzuelo may resign form
the RESALTA Board of Directors at any time and such resignation will not effect
the compensation provided to Conzuelo in paragraph 2 above.
20. Restricted Shares. Conzuelo acknowledges and agrees that the
Conversion Shares are "restricted securities" under applicable U.S. federal
securities laws and that the Securities Act of 1933 and the rules of the U.S.
Securities and Exchange Commission (the "Commission") provide in substance that
holders may dispose of restricted securities only pursuant to an effective
registration statement under the Securities Act of 1933 or an exemption
therefrom. CapSource has no obligation or current intention to register any of
the Conversion Shares. Accordingly, under the Commission's rules, Conzuelo may
dispose of the Conversion Shares only in "private placements" which are exempt
from registration under the Securities Act, in which event the transferee will
acquire "restricted securities" subject to the same limitations as in the hands
of Conzuelo. Further, Conzuelo acknowledges and agrees that the certificate
representing the Conversion Shares will contain a ledged setting forth the above
restrictions.
21. Shareholders Agreement. Upon acceptance of this Agreement, the
Shareholders Agreement shall become null and void and neither party shall have
any further rights thereunder whatsoever.
22. Further Assurances. Each party agrees that they will execute such
documents and provide such cooperation, either in the U.S. or Mexico, to
effectuate the intent of this Agreement.
23. Applicable Law. All the provisions of this Agreement shall be
construed under the laws of Minnesota (without reference to any conflicts of law
principles). To the extent permitted by governing law, this Agreement shall
constitute a waiver by each party of all rights under the laws of the United
Mexican States which are inconsistent with the provisions of this Agreement.
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24. Consent to Jurisdiction. The parties hereby submit to the exclusive
jurisdiction of the courts of general jurisdiction of the State of Minnesota and
the federal courts of the United States of America, located in the District of
Minnesota, solely in respect of the interpretation and enforcement of the
provisions of this Agreement and any other agreement, instrument or other
document entered into in connection herewith and hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement of this Agreement or any such other agreement, instrument or
other document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in such courts or that this
Agreement or any such other agreement, instrument or other document may not be
enforced in or by such courts or that its property is exempt or immune from
execution, that the suit, action or proceeding is brought in an inconvenient
forum, or that the venue of the suit, action or proceeding is improper. Service
of process with respect thereto may be made upon a party by mailing a copy
thereof by registered or certified mail, postage prepaid, to such party at its
address as provided in this Agreement, provided that service of process may be
accomplished in any other manner permitted by applicable law.
25. Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto with respect to the matters set forth herein and
supersedes any prior understanding or agreement, oral or written, with respect
thereto.
26. Agreement in Counterparts. This Agreement may be executed in
several counterparts and all so executed shall constitute one Agreement, binding
on all the parties hereto, notwithstanding that all the parties are not
signatories to the original or the same counterpart.
27. Third-party Beneficiary. The provisions of this Agreement are
intended to be for the benefit of the Conzuelo and CapSource only and shall not
confer any right or claim upon, or otherwise inure to the benefit of, any
creditor of, or other third party having dealings with RESALTA or CapSource.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, or a counterpart thereof, as of the _____ day of April, 2002.
XXXXX XXXXXXXX:
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CAPSOURCE FINANCIAL, INC.:
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Xxxx Xxxxxxxxx
President
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