<PAGE> 1
-------------------------------
QMB APPROVAL
-------------------------------
QMB Number: 3235-0145
Expires: October 31, 1994
Estimated average burden hours
per form . . . . . . . . .14.90
-------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
SWING-N-SLIDE CORP.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
870775103
(CUSIP Number)
MORGAN, LEWIS & BOCKIUS LLP
CHRISTOPHER HILBERT, ESQ. 101 PARK AVENUE, NEW YORK NY 10178 (212) 309-6830
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
MAY 28, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 870775103 Page 2 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rohit Mojilal Desai
###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,710,224 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,710,224 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,710,224 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.79%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE RESPONSES TO ITEMS 1-7
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 870775103 Page 3 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Equity-Linked Investors-II
13-3427026
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,710,224 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,710,224 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,710,224 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.79%
14 TYPE OF REPORTING PERSON*
IV, PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE RESPONSES TO ITEMS 1-7
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 870775103 Page 4 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Desai Capital Management Incorporated
13-3229933
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,710,224 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,710,224 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,710,224 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.79%
14 TYPE OF REPORTING PERSON*
IA, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE RESPONSES TO ITEMS 1-7
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 870775103 Page 5 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rohit M. Desai Associates-II
13-3426754
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,710,224 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,710,224 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,710,224 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.79%
14 TYPE OF REPORTING PERSON*
--
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE RESPONSES TO ITEMS 1-7
<PAGE> 6
CUSIP NO. 870775103 Page 6 of 31
This Amendment No. 1 to Schedule 13D dated May , 1996 is
filed by Equity-Linked Investors-II ("ELI-II"), Rohit M. Desai Associates-II
("RMDA-II"), Desai Capital Management Incorporated ("DCMI") and Rohit M. Desai.
Item 1. Security and Issuer.
This statement relates to the Common Stock, $.01 par value, of
Swing-N-Slide Corp., a Delaware corporation (the "Company"). The address of the
Company's principal executive offices is 1212 Barberry Drive, Janesville,
Wisconsin 53545.
Item 2. Identity and Background.
This Statement is filed by Equity-Linked Investors-II
("ELI-II"), Rohit M. Desai Associates-II ("RMDA-II"), Desai Capital Management
Incorporated ("DCMI") and Rohit M. Desai, each of whom may be deemed to be the
beneficial owners of securities beneficially owned by ELI-II.
ELI-II is a New York limited partnership whose principal
business is investing in a portfolio of debt and equity securities.
RMDA-II is a New York general partnership and is the general
partner of ELI-II. RMDA-II has no business activities other than acting as
ELI-II's general partner. The partners of RMDA-II are Rohit M. Desai, Katharine
B. Desai and the Rohit M. Desai Family Trust (of which Katharine B. Desai and
Joseph F. McDonald are the trustees under a trust agreement dated July 1, 1987).
DCMI is a New York corporation whose principal business is
that of an investment adviser. DCMI acts as investment adviser to ELI-II. The
sole stockholder of DCMI is Rohit M. Desai. The directors of DCMI are Rohit M.
Desai and Katharine B. Desai. Rohit M. Desai, Katharine B. Desai, Frank J.
Pados, Damon H. Ball, Thomas P. Larsen, Timothy R. Kelleher, Tom W. Perlmutter,
Kathy T. Abramson and Catherine K. Janson (collectively, the "DCMI Persons" and
from time to time each individually referred to as a "DCMI Person") are officers
of DCMI.
<PAGE> 7
CUSIP NO. 870775103 Page 7 of 31
The address of the principal business and principal office of
DCMI is 540 Madison Avenue, 36th Floor, New York, New York 10022.
The present principal occupation and employment of Rohit M.
Desai, who is a citizen of the United States, is as the president, treasurer and
chairman of the board of directors of DCMI and as the managing general partner
of RMDA-II, the general partner of ELI-II. The present principal occupation and
employment of Katharine B. Desai, who is a United States citizen, is as the
secretary and director of DCMI. The present principal occupation and employment
of Joseph F. McDonald, who is a United States citizen, is as a member of the law
firm of Morgan, Lewis & Bockius LLP. The present principal occupation and
employment of Frank J. Pados, who is a United States citizen, is as executive
vice president of DCMI. The present principal occupation and employment of Damon
H. Ball, who is a United States citizen, is as senior vice president of DCMI.
The present principal occupation and employment of Daniel G. Pine, who is a
United States citizen, is as senior vice president of DCMI. The present
principal occupation and employment of Thomas P. Larsen, who is a United States
citizen, is as senior vice president of DCMI. The present principal occupation
and employment of Timothy R. Kelleher, who is a United States citizen, is as
vice president of DCMI. The present principal occupation and employment of Tom
W. Perlmutter, who is a United States citizen, is as vice president of DCMI. The
present principal occupation and employment of Kathy T. Abramson, who is a
United States citizen, is as vice president of DCMI. The present principal
occupation and employment of Catherine K. Janson, who is a United States
citizen, is as vice president of DCMI. The business address of each of these
individuals, except Joseph F. McDonald, is the same as that of DCMI. The
business address of Joseph F. McDonald is c/o Morgan, Lewis & Bockius LLP, 101
Park Avenue, New York, New York 10178.
During the last five years neither ELI-II, RMDA-II, DCMI, the
Rohit M. Desai Family Trust nor any of the DCMI Persons has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
During the last five years, neither ELI-II, RMDA-II, DCMI, the Rohit M. Desai
Family Trust, nor any of the DCMI Persons has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction resulting in a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or a
finding of any violation with respect to such laws.
<PAGE> 8
CUSIP NO. 870775103 Page 8 of 31
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the terms of the Operating Agreement dated
February 15, 1996 among ELI-II and the other Members (as such term is defined
therein) named therein, as amended (the "Operating Agreement"), on February 15,
1996, ELI-II purchased 11,000 Units (as such term is defined in the Operating
Agreement) of GreenGrass Capital LLC, a Delaware limited liability company
("GreenGrass Capital"). GreenGrass Capital is a general partner of GreenGrass
Holdings, a Delaware general partnership ("GreenGrass Holdings").
In making these purchases, ELI-II used working capital from
its operating account, which is funded by capital contributions from ELI-II's
limited partners and gains and proceeds from ELI-II's investment portfolio.
Pursuant to the terms of the Transaction Agreement between the
Company and GreenGrass Holdings dated January 4, 1996 (the "Transaction
Agreement), GreenGrass Holdings made the following purchases of the Company's
securities:
(a) On February 15, 1996, GreenGrass Holdings completed a cash
tender offer for 3,510,000 shares of the Common Stock at a
price of $6.50 per share, and
(b) On February 15, 1996, GreenGrass Holdings purchased $4,300,000
principal amount of the Company's 10% Convertible Debentures
(the "Debentures").
(c) On April 26, 1996, GreenGrass Holdings purchased at par
$700,000 principal amount of Debentures.
Each of GreenGrass Holdings and GreenGrass Capital is a
newly-organized entity formed for the purpose of making the cash tender offer
for the Company's Common Stock described above and effecting the other
transactions contemplated by the Transaction Agreement.
Item 4. Purpose of Transaction.
ELI-II has acquired its interest in GreenGrass Capital in the
ordinary course of its business solely for investment purposes.
ELI-II and the other Members listed therein are parties to the
Operating Agreement pursuant to which ELI-II purchased its
<PAGE> 9
CUSIP NO. 870775103 Page 9 of 31
interest in GreenGrass Capital. The Operating Agreement provides, among other
terms, that there will be three managers of GreenGrass Capital, one of whom is
to be ELI-II. The Operating Agreement also provides that, under certain
circumstances, (i) if the holders of equity units in GreenGrass Capital
representing indirectly a majority of the Common Stock of the Company sell their
equity units to a third party, all holders must agree to sell their units on the
same terms and conditions and (ii) if holders of equity units in GreenGrass
Capital representing indirectly 5% or more of the Common Stock of the Company
sell their equity units to a third party, all other holders will be afforded the
opportunity to join such sale on the same terms and conditions. In connection
with a permitted sale of equity units in GreenGrass Capital, in lieu of selling
units, holders may require GreenGrass Capital to redeem their units in exchange
for shares of the Company's Common Stock owned by GreenGrass Holdings. Pursuant
to the Operating Agreement, GreenGrass Capital has also assigned to ELI-II one
demand registration right for the shares of the Company's Common Stock held by
GreenGrass Capital. ELI-II is also entitled to certain piggyback registration
rights pursuant to the Operating Agreement.
Pursuant to the terms of the Transaction Agreement dated
January 4, 1996 between GreenGrass Holdings and the Company (the "Transaction
Agreement"), GreenGrass Holdings has the right to designate five members to the
board of directors of the Company. Pursuant to the Operating Agreement,
GreenGrass Capital has agreed that one of such designees shall be designated by
ELI- II. Pursuant thereto, Timothy R. Kelleher has been so designated by ELI-II,
and made a member of the board of directors of the Company.
Except as described above and as may be provided in the
Operating Agreement, neither ELI-II, RMDA-II, DCMI, the Rohit M. Desai Family
Trust, nor any DCMI Person has any plans or proposals (other than as may be
provided in the agreements described above) which relate to or would result in:
(a) the acquisition by any person of additional securities of
the Company or the disposition of securities of the Company, except that ELI-II
may from time to time and in furtherance of its investment programs, effect a
sale of its interest in GreenGrass Capital and/or the securities of the Company
indirectly affected thereby;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries;
<PAGE> 10
CUSIP NO. 870775103 Page 10 of 31
(c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management
of the Company (except as may be provided in the Company's charter or by-laws),
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the board;
(e) any material change in the present capitalization or
dividend policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) any change in the Company's charter or by-laws;
(h) causing a class of securities of the Company to be
delisted from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association;
(i) a class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or
(j) any action similar to those enumerated above.
Item 5. Interest in Securities of the Issuer.
ELI-II directly owns 11,000 equity units of GreenGrass
Capital, which represents approximately 39.4% of the outstanding equity units of
GreenGrass Capital.
GreenGrass Capital owns approximately 97.4% of the total
capital of GreenGrass Holdings.
GreenGrass Holdings owns directly:
(a) $5,000,000 principal amount of the
Debentures, and
(b) 3,510,000 shares of Common Stock of the
Company.
As a result of such holdings, ELI-II could be deemed to indirectly beneficially
own approximately 1,710,224 shares of the
<PAGE> 11
CUSIP NO. 870775103 Page 11 of 31
Company's Common Stock, subject to adjustment, which would constitute
approximately 26.79% of the outstanding shares of the Company's Common Stock.
As of such date, each of DCMI and Rohit M. Desai could be
deemed to be the beneficial owner, for purposes of this Schedule 13D, of
ELI-II's interest in GreenGrass Capital and indirectly such 1,710,224 shares of
the Company's Common Stock, which would constitute beneficial ownership of
approximately 26.79% of the outstanding shares of the Company's Common Stock.
The power to vote, to convert, to dispose of, or to direct the
voting, conversion or disposal of, any equity units of GreenGrass Capital held
by ELI-II (or any securities of the Company that may be obtained by ELI-II in
respect thereof) is vested in RMDA-II as general partner of ELI-II, but such
decisions (and similar decisions with respect to the rest of ELI- II's
investment portfolio) may also be made by DCMI under an investment and advisory
agreement between ELI-II and DCMI. Rohit M. Desai is the managing general
partner of RMDA-II and the sole stockholder, chairman of the board of directors,
president and treasurer of DCMI. Katharine B. Desai is the secretary and a
director of DCMI, a general partner of RMDA-II and a trustee of the Rohit M.
Desai Family Trust. The Rohit M. Desai Family Trust is a general partner of
RMDA-II. Joseph F. McDonald is a trustee of the Rohit M. Desai Family Trust.
Frank J. Pados is executive vice president of DCMI. Damon H. Ball, Thomas P.
Larsen and Daniel G. Pine are senior vice presidents of DCMI. Timothy R.
Kelleher, Tom W. Perlmutter, Kathy T. Abramson and Catherine K. Janson are vice
presidents of DCMI.
Accordingly for purposes of Schedule 13D, ELI-II, RMDA- II,
DCMI and Rohit M. Desai may each be deemed to share the power to vote or to
direct the vote and may be deemed to beneficially own the securities of the
Company held by GreenGrass Holdings.
Pursuant to Rule 13d-4 under the Securities Exchange Act of
1934, DCMI, RMDA-II, the Rohit M. Desai Family Trust, and each of the DCMI
Persons hereby declare that the filing of this Statement shall not be construed
as an admission that any person other than ELI-II is the beneficial owner of any
securities covered by this Statement.
No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the securities covered by this Statement.
<PAGE> 12
CUSIP NO. 870775103 Page 12 of 31
During the sixty days preceding the filing of this Schedule,
no transactions in the class of securities reported were effected by any persons
reporting on this Statement.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Neither ELI-II, RMDA-II, DCMI, the Rohit M. Desai Family
Trust, nor any DCMI Person is party to any other contract, arrangement,
understanding or relationship specifically relating to any securities of the
Company other than (i) the Operating Agreement and (ii) the Investment Agreement
dated as of February 15, 1996 among GreenGrass Capital, ELI-II and the other
Investors named therein (the "Investment Agreement") which sets forth certain
rights and obligations of the parties thereto with respect to their investment
in GreenGrass Capital.
ELI-II and the other Members listed therein are parties to the
Operating Agreement pursuant to which ELI-II purchased its interest in
GreenGrass Capital. The Operating Agreement provides, among other terms, that
there will be three managers of GreenGrass Capital, one of whom is to be ELI-II.
The Operating Agreement also provides that, under certain circumstances, (i) if
the holders of equity units in GreenGrass Capital representing indirectly a
majority of the Common Stock of the Company sell their equity units to a third
party, all holders must agree to sell their units on the same terms and
conditions and (ii) if holders of equity units in GreenGrass Capital
representing indirectly 5% or more of the Common Stock of the Company sell their
equity units to a third party, all other holders will be afforded the
opportunity to join such sale on the same terms and conditions. In connection
with a permitted sale of equity units in GreenGrass Capital, in lieu of selling
units, holders may require GreenGrass Capital to redeem their units in exchange
for shares of the Company's Common Stock owned by GreenGrass Holdings. Pursuant
to the Operating Agreement, GreenGrass Capital has also assigned to ELI-II one
demand registration right for the shares of the Company's Common Stock held by
GreenGrass Capital. ELI-II is also entitled to certain piggyback registration
rights pursuant to the Operating Agreement.
Pursuant to the terms of the Transaction Agreement, GreenGrass
Holdings has the right to designate five members to the board of directors of
the Company. Pursuant to the Operating Agreement, GreenGrass Capital has agreed
that one of such designees shall be designated by ELI-II. Pursuant thereto,
<PAGE> 13
CUSIP NO. 870775103 Page 13 of 31
Timothy R. Kelleher has been so designated by ELI-II, and made a member of the
board of directors of the Company.
ELI-II has contracted with DCMI for DCMI to provide investment
advisory and other services to ELI-II. Pursuant to its investment and advisory
contract, DCMI may exercise investment power and voting power with respect to
the investment portfolios of ELI-II. For its services under this investment and
advisory agreement DCMI receives a management fee from ELI-II generally based on
the value of its portfolio.
Item 7. Material to be Filed as Exhibits.
1. Joint Filing Agreement regarding the filing of this
Statement.
2. Investment and Advisory Agreement between ELI-II and DCMI.
3. Operating Agreement, dated February 15, 1996 among
GreenGrass Capital, ELI-II and the other Members listed therein, as amended,
filed with the Securities and Exchange Commission as Exhibit C-13 to the
Schedule 14D-1, as amended, filed by GreenGrass Holdings, GreenGrass Capital and
GreenGrass Management LLC on January 11, 1996.
4. Investment Agreement, dated February 15, 1996 among
GreenGrass Capital, ELI-II and the other Members listed therein, as amended,
filed with the Securities and Exchange Commission as Exhibit C-12 to the
Schedule 14D-1, as amended, filed by GreenGrass Holdings, GreenGrass Capital and
GreenGrass Management LLC on January 11, 1996.
<PAGE> 14
CUSIP NO. 870775103 Page 14 of 31
After reasonable inquiry and to the best of their knowledge
and belief, each of the undersigned certifies that the information set forth in
this Statement, is true, complete and correct.
Date: May , 1996 EQUITY-LINKED INVESTORS-II
By Rohit M. Desai Associates-II
General Partner
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
Managing General Partner
ROHIT M. DESAI ASSOCIATES-II
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
Managing General Partner
DESAI CAPITAL MANAGEMENT
INCORPORATED
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai, President
/s/ Frank J. Pados, Jr.
---------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
<PAGE> 15
EXHIBIT INDEX
Exhibit No. Description
---------- -----------
1. Joint Filing Agreement regarding the filing of this Statement.
2. Investment and Advisory Agreement between ELI-II and DCMI.
3. Operating Agreement, dated February 15, 1996 among GreenGrass
Capital, ELI-II and the other Members listed therein, as amended,
filed with the Securities and Exchange Commission as Exhibit C-13 to
the Schedule 14D-1, as amended, filed by GreenGrass Holdings,
GreenGrass Capital and GreenGrass Management LLC on January 11,1996.
4. Investment Agreement, dated February 15, 1996 among GreenGrass
Capital, ELI-II and the other Members listed therein, as amended,
filed with the Securities and Exchange Commission as Exhibit C-12 to
the Schedule 14D-1, as amended, filed by GreenGrass Holdings,
GreenGrass Capital and GreenGrass Management LLC on January 11,1996.
<PAGE> 1
CUSIP NO. 870775103 Page 15 of 31
Exhibit 1
The undersigned, EQUITY-LINKED INVESTORS-II, ROHIT M. DESAI
ASSOCIATES-II, DESAI CAPITAL MANAGEMENT INCORPORATED, and ROHIT M. DESAI hereby
agree to jointly execute and file, on behalf of each of the undersigned,
Amendment No. 1 to Schedule 13D, and any amendments thereto, with the Securities
and Exchange Commission under Rule 13d-1.
Date: May , 1996 EQUITY-LINKED INVESTORS-II
By Rohit M. Desai Associates-II
General Partner
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
Managing General Partner
ROHIT M. DESAI ASSOCIATES-II
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
Managing General Partner
DESAI CAPITAL MANAGEMENT
INCORPORATED
By /s/ Frank J. Pados, Jr.
------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai, President
/s/ Frank J. Pados, Jr.
---------------------------------------------
Frank J. Pados, Jr.
Attorney-in-fact for
Rohit M. Desai
<PAGE> 1
CUSIP NO. 870775103 Page 16 of 31
INVESTMENT AND ADVISORY AGREEMENT
INVESTMENT AND ADVISORY AGREEMENT, dated as of the 1st day of
October, 1987, by and between EQUITY- LINKED INVESTORS-II, a New York limited
partnership (the "Fund"), and DESAI CAPITAL MANAGEMENT INCORPORATED, a New York
corporation (the "Management Company").
W I T N E S S E T H:
In consideration of the mutual covenants, agreements and
conditions hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Section 1. Services to be Rendered by the Management Company to the
Fund.
(a) The Management Company will provide the Fund with
assistance in organizing and conducting an offering of limited partnership
interests in the Fund in the manner requested by Rohit M. Desai Associates-II,
the general partner of the Fund (the "General Partner").
<PAGE> 2
CUSIP NO. 870775103 Page 17 of 31
(b) Upon the formation of the Fund, the Management Company
will assist the Fund in providing the limited partners of the Fund with a
managed investment in equity-linked securities as discussed in the Fund's
private placement memorandum. The Management Company will provide the Fund with
investment and other advice and assistance in managing such a portfolio. The
Management Company will act as investment adviser for the Fund's investments.
The Management Company will locate, secure information with respect to and
evaluate and analyze prospective equity-linked investment opportunities and will
make recommendations as to which equity-linked securities should be purchased
and on what terms. The Management Company will also structure and negotiate
investments on behalf of the Fund and review and assist in the preparation of
all documentation and closings. After an investment is made by the Fund, the
Management Company will monitor investments and will make recommendations to the
Fund as to which securities should be held and which should be sold. Subject
always to the direction and control of the General Partner of the Fund, the
Management Company will perform the day-to-day investment and administrative
operations of the Fund and will supervise the management of the Fund's
<PAGE> 3
CUSIP NO. 870775103 Page 18 of 31
business, operations and affairs, including management of its investments and
matters incidental thereto. The Management Company will also furnish to the Fund
such office space, office supplies and equipment, and such bookkeeping,
recordkeeping and clerical services as the Fund may require for its reasonable
needs. In the performance of its duties, the Management Company will use its
best efforts to promote the interests of the Fund; however, the Management
Company shall at all times be an independent contractor and nothing in this
Agreement shall be construed to constitute the Management Company an agent or a
partner of the Fund or of the General Partner.
(c) The Management Company will assume and pay all expenses
that relate to its services under paragraph (b) above, including without
limitation expenses on account of rent, utilities, insurance, office supplies,
office equipment, travel, entertainment and salaries, other compensation, fringe
benefits and expenses of the Management Company's officers, directors, employees
and agents; provided, however, that the Management Company shall not be required
to pay (and if paid by the Management Company, shall be reimbursed
<PAGE> 4
CUSIP NO. 870775103 Page 19 of 31
by the Fund for payments of) (i) taxes on the business, investments or
operations of the Fund, (ii) professional fees and expenses related to the
business, investments or operations of the Fund, including without limitation
legal, auditing, accounting and investment banking fees and expenses, (iii)
custodian, commission or brokerage fees, (iv) interest on borrowings by the
Fund, (v) registration expenses regarding any of the Fund's securities, (vi)
fees to Advisory Board members and (vii) litigation and other extraordinary
expenses of the Fund. In addition, the Management Company shall be reimbursed by
the Fund for out-of-pocket expenses incurred in working with portfolio
investments in extraordinary circumstances such as work-outs, mergers and
acquisitions in an amount not exceeding in any year one half of one percent of
the product of (x) the aggregate capital subscriptions of all limited partners
of the Fund as of the beginning of such year times (y) the amount by which the
Inflation Adjustment (as defined in Section 3(d) hereof) exceeds one (1). The
Management Company shall not be obligated to pay any expenses of or for the Fund
not contemplated to be paid by the Management Company by this Section 1.
<PAGE> 5
CUSIP NO. 870775103 Page 20 of 31
Section 2. Other Interests of the Management Company, the Fund and
Others.
(a) It is understood that (i) any partner of the Fund (a
"Partner") or any partner of the General Partner may be a stockholder, director,
officer, employee or agent of, or be otherwise interested in, the Management
Company, any organization in which the Management Company may have an interest
or any organization which may have an interest in the Management Company, (ii)
any stockholder, director, officer, employee or agent of the Management Company
may be a partner of, or otherwise have an interest in, the General Partner or
the Fund and (iii) any stockholder, director, officer, employee or agent of the
Management Company, any Partner, any partner of the General Partner and any
employees of a Partner or of a partner of the General Partner, may act as
directors of or provide consulting or other services to one or more of the
entities in which the Fund may have an investment from time to time.
(b) The Management Company may render management and
investment advice of the type described in Section 1 hereof, and the Management
Company may
<PAGE> 6
CUSIP NO. 870775103 Page 21 of 31
offer equity-linked securities investment opportunities, to any other person,
including without limitation any corporation, partnership, association,
business, trust, individual or other entity (a "Person").
Section 3. Payments to be Made by the Fund.
(a) As full compensation for the services rendered and
expenses borne by the Management Company pursuant to Section 1(a) hereof, the
Fund shall pay fees ("Organizational and Initial Fees") to the Management
Company in an amount equal to 1% of the capital contributed to the Fund (other
than as reinvestment of Fund ordinary income distributions). This fee will be
payable to the Management Company on January 2, 1988, with respect to capital
contributions through that date, and upon each subsequent capital contribution,
provided that Mr. Desai is alive on January 2, 1988. The Organizational and
Initial Fee will be paid to the Management Company regardless of the extent to
which the Management Company incurs expenses and no accounting from the
Management Company to the Fund will be required in this connection.
<PAGE> 7
CUSIP NO. 870775103 Page 22 of 31
(b) As full compensation for the services rendered and
expenses borne by the Management Company pursuant to Section 1(b) hereof, the
Fund shall pay the Management Company management fees ("Management Fees")
calculated and paid as provided below in paragraphs (c), (d) and (e).
(c) The quarterly Management Fee will be the amount equal to
the product of (I) the Inflation Adjustment (as defined in paragraph (d) below)
times (II) the greater of (i) .25% of the net asset value (based on the Fund's
valuations) of the assets of the Fund as of the first business day (being a day,
other than a Saturday, Sunday or legal holiday in New York, on which Bankers
Trust Company is open for business in New York, New York) of such calendar
quarter or (ii) the lesser of (A) $500,000 or (B) .25% of the total assets
contributed or subscribed to the Fund as of the first business day (being a day,
other than a Saturday, Sunday or legal holiday in New York, on which Bankers
Trust Company is open for business in New York, New York) of such calendar
quarter. If additional contributions or subscriptions are made by existing or
additional partners of the Fund during a calendar quarter (after
<PAGE> 8
CUSIP NO. 870775103 Page 23 of 31
the first business day thereof), then the Management Fee for such quarter shall
be recalculated. Such recalculation shall use the formula contained in the first
sentence of this Section 3(c) except that the following amount shall be used for
item II(ii)(B) of such formula: .25% of the average daily amount during such
calendar quarter of the total assets contributed or subscribed to the Fund. If
such recalculation results in an increased Management Fee, then such additional
unpaid amount shall be promptly paid to the Management Company.
(d) The "Inflation Adjustment" shall be one (1) for the 1988
and 1989 calendar years and for each year thereafter shall be equal to a
fraction the numerator of which is equal to the revised Consumer Price Index of
the Bureau of Labor Statistics for All Urban Consumers, New York - Northeastern
New Jersey Area (1967=100) (the "Index") for December of the preceding year, and
the denominator of which shall be equal to the Index for December 1988.
Appropriate modification to the Inflation Adjustment shall be made if the Index
shall cease to be updated as of calendar year-end.
<PAGE> 9
CUSIP NO. 870775103 Page 24 of 31
(e) Management Fees shall begin accruing as of the date
hereof. The Management Fee for the calendar quarter in which the date hereof
occurs shall be computed as set forth above but shall be prorated according to
the number of days from the date hereof to the end of such calendar quarter;
such initial Management Fee shall be due and payable in full on the date hereof.
Subsequently, the quarterly Management Fee shall be paid in full on the first
business day (being a day, other than a Saturday, Sunday or legal holiday in New
York, on which Bankers Trust Company is open for business in New York, New York)
of each January, April, July and October of each year during the term of this
Agreement; provided, however, that payments on any such payment date may be
estimated based on the most recent available Inflation Adjustment or the most
recent available Fund asset valuation as of the first business day of a calendar
quarter, subject to appropriate adjustment (by payments to the Management
Company or the Fund, as the case may be) as soon as the proper Inflation
Adjustment or Fund asset valuation becomes available.
<PAGE> 10
CUSIP NO. 870775103 Page 25 of 31
(f) The amount of the Management Fees payable by the Fund
pursuant to this Section 3 shall not be reduced by the amount of any fees paid
to any stockholder, director, officer, employee or agent of the Management
Company or any of their affiliates by any Person (including, without limitation,
any Person in which the Fund has made an investment); including without
limitation directors' fees, investment banking fees and financial consulting
fees.
Section 4. Effective Period and Termination of this Agreement.
This Agreement shall become effective as of the date hereof
and shall remain in effect until the Fund is terminated and wound-up unless it
is sooner unilaterally terminated by the General Partner on behalf of the Fund
by giving not less than six months' prior written notice to the Management
Company.
Section 5. Indemnification and Liability.
(a) Neither the Management Company nor any stockholder,
officer, director, employee or agent thereof shall be liable to the Fund or any
Partner for (i) mistakes of judgment or for any act or omission
<PAGE> 11
CUSIP NO. 870775103 Page 26 of 31
suffered or taken by it or him (or her), or for losses due to any such mistakes,
action or inaction, except to the extent of willful misfeasance, bad faith or
gross negligence of such Person or (ii) for the willful misfeasance, gross
negligence, bad faith or other conduct of any officer, employee, representative,
consultant, independent contractor, broker or agent of such Person, provided
that such officer, employee, representative, consultant, independent contractor,
broker or agent was selected, engaged or retained in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the Fund.
The federal securities laws impose liabilities under certain circumstances on
persons who act in good faith, and therefore nothing herein shall in any way
constitute a waiver or limitation of any rights which may exist under any
federal securities laws.
(b) The Management Company and its stockholders, officers,
directors, employees and agents shall be fully protected and are hereby
indemnified, to the fullest extent permitted by applicable law, by the Fund out
of Fund assets against any and all liabilities, losses, damages and expenses
(including without
<PAGE> 12
CUSIP NO. 870775103 Page 27 of 31
limitation (1) legal fees and expenses and (2) any amounts paid in respect of
judgments, fines or settlement of litigation) suffered or incurred in any actual
or threatened claim, action or proceeding as a result or by reason of this
Agreement or employment by the Fund; provided, that the foregoing indemnity
shall not apply to the extent that any action or inaction by such indemnified
person is determined by a final judgment to have constituted gross negligence,
willful misfeasance or bad faith.
(c) The Management Company and its stockholders, officers,
directors, employees and agents may consult with legal counsel or accountants
selected by such Person and any action or omission suffered or taken in good
faith in reliance and in accordance with the opinion or advice of any such
counsel or accountants (provided it, she or he has been selected with reasonable
care) shall be full protection and justification with respect to the action or
omission so suffered or taken.
(d) The provisions of this Section 5 shall survive any
termination of this Agreement.
<PAGE> 13
CUSIP NO. 870775103 Page 28 of 31
Section 6. Binding Nature.
All covenants and agreements contained herein shall be binding
upon, and inure to the benefit of, the parties and their respective permitted
successors and permitted assigns; provided that neither party may assign this
Agreement without the written consent of the other party; provided, further,
that the Management Company may not assign this Agreement without the consent
referred to in Section 205(2) of the Investment Advisers Act of 1940.
Section 7. Notices.
Unless otherwise expressly specified or permitted by the terms
hereof, all notices, requests, demands and instructions hereunder shall be in
writing and shall be delivered by hand or shall be mailed by registered or
certified mail, postage prepaid, to the following addresses:
(i) if to the Fund,
Equity-Linked Investors-II
540 Madison Avenue
New York, NY 10022
Attn: Rohit M. Desai
<PAGE> 14
CUSIP NO. 870775103 Page 29 of 31
(ii) if to the Management Company,
Desai Capital Management
Incorporated
540 Madison Avenue
New York, NY 10022
Attn: President
or at such other address as any of the foregoing parties may from time to time
designate in writing to the other parties to this Agreement. Whenever any notice
is required to be given hereunder, such notice shall be deemed given and such
requirement satisfied only when such notice is delivered or, if mailed, when
received, unless otherwise expressly specified or permitted by the terms hereof.
Section 8. Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereby waive
<PAGE> 15
CUSIP NO. 870775103 Page 30 of 31
any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
Section 9. Requirement of Writing.
No term or provision of this Agreement may be amended, waived,
discharged or terminated orally, but only by an instrument in writing signed by
both Parties.
Section 10. Headings.
The headings of the various sections herein are for
convenience of reference only and shall not define, limit or otherwise affect
any of the terms or provisions hereof.
Section 11. Governing Law.
This Agreement and all rights hereunder shall be construed in
accordance with and governed by the laws of the State of New York (without
regard to any rules or principles of conflicts of laws that might look to any
jurisdiction outside of New York).
<PAGE> 16
CUSIP NO. 870775103 Page 31 of 31
Section 12. Entire Agreement.
This Agreement supersedes any and all oral or written
agreements or understandings heretofore made, and contains the entire agreement
of the parties, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective partner or officer, as the case may be,
thereunto duly authorized as of the day and year first above written.
DESAI CAPITAL MANAGEMENT
INCORPORATED
By /s/ Ronit M. Desai
-----------------------------------------
Rohit M. Desai,
President
EQUITY-LINKED INVESTORS-II
By Rohit M. Desai Associates-II,
General Partner
By /s/ Ronit M. Desai
-----------------------------------------
Rohit M. Desai,
Managing General Partner
