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Exhibit 2.1
SWAP PROMISE AGREEMENT
UNSRA - CARMEL - KAUKAU
AGREEMENT 1
AGREEMENT, entered into in Santiago, Chile, this 8th day of September, 2000, by
and among Uniservice Corporation (hereinafter "UNSRA"), represented by Ricardo
Vilensky Cohen, National ID Card No. 6,370,999-9, both domiciled at Carmencita
25, Oficina 102, Las Condes, Santiago; Inmobiliaria Carmel (hereinafter
"Carmel") represented by Avram Fritch, National ID Card No. 14,518,568-8, both
domiciled in this city at Avda. Las Condes 7300, Las Condes; and Inversiones
KauKau S.A. (hereinafter "KauKau") represented by Ricardo Vilensky Cohen,
identified hereinabove, both domiciled at Carmencita 25, Oficina 102, Las
Condes.
ONE: PREAMBLE: The parties represent the following facts as a preamble to
entering into this Agreement:
1.- Carmel and KauKau hold shares of stock issued by public corporation REBRISA
S.A. as follows: (a) Carmel holds 623,579,295 shares of "A" Series stock and
21,752,701 shares of "B" Series stock; (b) KauKau holds 158,459,310 shares of
"A" Series stock and 841,151 shares of "B" Series stock.
2.- UNSRA is a public corporation incorporated under the laws of Florida, United
States of America, and its shares are traded on the stock exchanges (Nasdaq
SmallCap) of said country.
3.- UNSRA has expressed its bona fide interest in purchasing shares of stock at
REBRISA S.A. both from third parties as well as from such shares as are part of
the issue under the capital increase approved by said corporation at a
stockholders' meeting held on April 27, 2000, the minutes of which are executed
as a public instrument at the Notary's Office of Raul Undurraga Laso, Esq., on
May 15, 2000 (the "Capital Increase"). Additionally, UNSRA has expressed its
interest in purchasing the shares of stock held by Carmel and KauKau at Rebrisa
by swapping them for its own shares of stock. The foregoing is subject to:
a) UNSRA's successful completion of a placement of its own stock on the US
market in order to secure capital to purchase the shares at REBRISA S.A., which
placement shall be deemed successful in case UNSRA secures funds in an amount
equal to or greater than US$5,000,000, net of underwriting and placement
expenses;
b) the Chilean Superintendence of Securities and Insurance's approval of the
capital increase agreed at REBRISA on the terms provided by the stockholders'
meeting, the minutes whereof were mentioned hereinabove. It is hereby noted that
the Prospectus with the application for approval of the capital increase has
been filed with the Superintendence of Securities;
c) UNSRA's purchase of the shares of stock under the capital increase agreed by
REBRISA S.A. at least in the peso-equivalent of US$3,600,000, at a price not in
excess of Ch$2.10 per share.
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The above conditions have been provided solely in favor of UNSRA and UNSRA may
therefore waive them whenever it sees fit.
4.- It is likewise noted that Carmel has expressed its acceptance to UNSRA's
entry as a stockholder in REBRISA S.A. on the terms hereunder provided.
5.- Carmel and KauKau are willing, on the terms hereinbelow indicated, to swap
their equity holdings at REBRISA S.A. for UNSRA stock and are also willing to
assign, at the price of Ch$1,000, their preemptive option to subscribe for the
cash shares to be issued under the Capital Increase, all this in case UNSRA's
placement is successful.
6.- The parties are likewise fully aware that UNSRA entered into a stock
purchase and sale and swap promise agreement and a preemptive option assignment
agreement with B y C, Sideral Ltda. and Ernesto Labatut S., dated July 18, 2000,
all in connection with shares of stock at Rebrisa S.A and UNSRA.
7.- In light of the foregoing, the parties have agreed to enter into the
assignment of rights promise and swap promise as indicated in the following
clauses:
TWO: SWAP PROMISE AND ASSIGNMENT PROMISE:
I) SWAP PROMISE: UNSRA hereby promises to swap and transfer to Carmel, who in
turn promises to acquire, 1,525,360 (one million five hundred and twenty-five
thousand three hundred and sixty) "A" Series shares of its own capital stock in
exchange for 579,579,295 (five hundred and seventy-nine million five hundred and
seventy-nine thousand two hundred and ninety-five) shares of "A" Series stock
and 21,752,701 (twenty-one million seven hundred and fifty-two thousand seven
hundred and one) shares of "B" Series stock at REBRISA S.A.
In turn, UNSRA hereby promises to swap and transfer to KauKau, who in turn
promises to acquire, 336,738 (three hundred and thirty-six thousand seven
hundred and thirty-eight) "A" Series shares of its own capital stock in exchange
for 130,462,310 (one hundred and thirty million four hundred and sixty-two
thousand three hundred and ten) shares of "A" Series stock and 841,151 (eight
hundred and forty-one thousand one hundred and fifty-one) shares of "B" Series
stock at REBRISA S.A out of its total 158,459,310.
The price determined by the parties for the shares of "A" Series stock of UNSRA
is US$2.80 (two dollars and eighty cents) per share, and the price determined by
the parties for the shares of "A" and "B" Series stock of REBRISA S.A. is
Ch$3.05 (three pesos five cents) per share. The above price shall be deemed paid
through the reciprocal transfer of shares under this swap promise. No increase
or decrease in the exchange rate for the US dollar shall affect the number of
shares to be swapped hereunder.
The final swap agreement shall be entered into within 10 days subsequent to the
fulfillment of the conditions indicated in a), b), and c) of No.3 in Clause One
above. If more than 180 days elapse from the date hereof without the
aforementioned conditions having been met, UNSRA may send written notice of its
intent to waive the above conditions, in which case the swap promised
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hereunder shall be entered into. If nothing is notified and the conditions are
not met within the above term, they shall be deemed breached and this agreement
shall be terminated forthwith as of right, without any court declaration being
necessary, the parties thenceforth being free to act as they please.
The shares of REBRISA S.A. hereunder shall be transferred free and clear of all
liens, pledges, attachments or litigation. The promised sale shall include all
the rights and privileges to which the shares hereunder are entitled.
However, the UNSRA shares to be swapped hereunder shall be transferred free and
clear of all liens, and may entail certain temporary restrictions against
selling or disposing of the same applicable to the buyer if said buyer or the
owner thereof is a Director at UNSRA.
The parties shall deliver the stock certificates at the time of executing the
final swap agreements or within 5 days from the execution of the final
agreements.
II) PREEMPTIVE OPTION ASSIGNMENT PROMISE: Carmel and KauKau hereby promise to
assign and transfer to UNSRA or to its nominee, who in turn promises to purchase
and acquire, the preemptive purchase option which the promising sellers hold
under the law and REBRISA S.A.'s bylaws as stockholders therein, which option
resulted from the capital increase agreed by REBRISA S.A. at the stockholders'
meeting indicated above.
The price for the Preemptive Purchase Option held by Carmel at REBRISA S.A.
shall amount to Ch$1,000 (one thousand pesos), to be paid in full at the time of
execution of the final assignment agreement.
The price for the Preemptive Purchase Option held by KauKau at REBRISA S.A.
shall amount to Ch$1,000 (one thousand pesos), to be paid in full at the time of
execution of the final assignment agreement.
The final assignment agreement for the Preemptive Purchase Option shall be
entered into within 10 days subsequent to the fulfillment of the conditions
indicated in a), b), and c) of No.3 in Clause One above. If more than 180 days
elapse from the date hereof without the aforementioned conditions having been
met, they shall be deemed breached and this agreement shall be terminated
forthwith as of right, without any court declaration being necessary, the
parties thenceforth being free to act as they please.
The rights under the Preemptive Purchase Option hereunder shall be transferred
free and clear of all liens, pledges, attachments or litigation. The promised
assignment shall include all the rights and privileges to which the Options
hereunder are entitled.
In case the capital increase at Rebrisa, currently pending approval with the
Superintendence of Securities, is approved during the effective term of this
Agreement and the 30-day statutory period for stockholders to exercise their
preemptive option consequently starts running, then all the parties herein
involved, including Inversiones Kau Kau S.A., represented by Ricardo
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Vilensky Cohen, identified above, shall refrain from exercising their purchase
option during the term of this Agreement.
III) The agreements promised in numerals I and II above shall be executed
concurrently and simultaneously.
IV) During the effective term hereof, the parties shall refrain from purchasing
shares of stock at REBRISA S.A. separately unless they do so by mutual
agreement.
THREE: PENALTIES: In case any of the parties defaults on its obligations
hereunder and if said default is not cured within 10 days from the date on which
notice shall be served written notice demanding said cure, the defaulting party
shall pay the diligent party a penalty in the sum of US$100,000, which amount
has been agreed as late penalty.
FOUR: ARBITRATION: Any doubt or difficulty arising in connection with the
validity, applicability, performance or interpretation hereof shall be settled
briefly and summarily by an equitable arbitrator whose award shall be final. The
arbitrator shall be appointed by mutual agreement of the parties in dispute, and
failing such agreement the appointment shall be made by the courts of justice,
in which case the equitable arbitrator shall have worked as counsel at the
Supreme Court or as arbitrator at the Arbitration Center of the Santiago Chamber
of Commerce.
FIVE: CONVENTIONAL DOMICILE: For all legal effects in connection herewith, the
parties establish their domicile in the city of Santiago.
SIX: COUNTERPARTS: This instrument is executed in two counterparts in Spanish
and two counterparts in English, of identical content and date, with one such
counterpart remaining in the possession of each party hereto.
pp. INMOBILIARIA CARMEL S.A. pp. UNISERVICE CORPORATION
Avram Fritch pp. Inversiones Kaukau S.A.
Ricardo Vilensky C.
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