SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. )*
Universal Standard Medical Laboratories, Inc.
(Name of Issuer)
Common stock, no par value
(Title of Class of Securities)
913839106
(CUSIP Number)
Barbara McDonald; WestSphere Group; P.O. Box 309 63 SMB,
Grand Cayman, Cayman Islands, B.W.I., Tel.: 809-949-9845
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
September 19, 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 this 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 less than five percent 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.
<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>
SCHEDULE 13D
CUSIP No. 913839106
1) Names of Reporting Persons S.S. or I.R.S.
Identification Nos. of Above Persons. . . . . . . .
Portfolio Investment Company Limited
2) Check the Appropriate Box if a Member of a
Group (See Instructions). . . . . . . . . . . . . . .
(a). . . . . . . . . . . . . . . . . . . . ./ /
(b). . . . . . . . . . . . . . . . . . . . ./ /
3) SEC Use Only. . . . . . . . . . . . . . . . . . . . .
4) Source of Funds
See Item 3 . . . . . . . . . . . . . . . . . . .
5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e). . . . . . . . . . / /
6) Citizenship or Place of Organization
The Cayman Islands
Number of 7) Sole Voting Power
Shares Beneficially 2,178,223
Owned by
Each Reporting 8) Shared Voting Power
Person With None
9) Sole Dispositive Power
None
10) Shared Dispositive Power
2,178,223
11) Aggregate Amount Beneficially Owned by Each
Reporting Person. . . . . . . . . . . . . .2,178,223
12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions). . . . . . . . ./ /
13) Percent of Class Represented by Amount in Row (11)
34.0%
14) Type of Reporting Person
CO
<PAGE>
Item 1. Security and Issuer.
This statement relates to the common stock, no par value per share
(the "Shares") of Universal Standard Medical Laboratories, Inc., a
Michigan corporation (the "Company"). The Company's principal executive
office is located at 21705 Evergreen Road, Southfield, Michigan 48075.
Item 2. Identity and Background.
This statement is being filed on behalf of Portfolio Investment
Company Limited, a corporation organized under the laws of the Cayman
Islands, B.W.I., ("PICL"). PICL maintains its principal place of business
at Maples and Calder, Cayman International Trust Building, P.O. Box 309,
Panton Avenue, Kirk House, Grand Cayman, Cayman Islands, B.W.I.; Mailing
address: P.O. Box 309 63 SMB, Grand Cayman, Cayman Islands, B.W.I.
The principal business of PICL is the management of equity and debt
investments in U.S. companies.
PICL has entered into a Management Agreement dated September 19, 1996
(the "Management Agreement") with WestSphere Capital Associates, L.P., a
Delaware limited partnership ("WCA"), pursuant to which WCA acts as
investment manager for PICL whereby WCA will have investment power
including the power to dispose or to direct the disposition of Shares
owned by PICL. WestSphere Capital Inc., a Delaware corporation ("WCI"),
is the general partner of WCA. The address of each of WCA and WCI is c/o
WestSphere Capital Associates, 55 East 50th Street, 13th Floor, New York,
New York 10022. WCA and WCI have jointly filed a Schedule 13G regarding
their beneficial interest in the Shares as a result of their holding an
irrevocable proxy for each of the WestSphere Funds (as defined below).
Information concerning the executive officers and directors of each
of PICL, WCA and WCI is set forth in Schedule A to this statement.
Neither PICL nor, to the best of our knowledge, WCA, WCI or any person
named in Schedule A, during the last five years (i) has been convicted in
a criminal proceeding (excluding traffic violations and similar
misdemeanors); or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violations
with respect to such laws.
Item 3. Source and Amount of Funds or other Consideration.
PICL acquired the Shares from each of WestSphere Equity Holding,
Ltd., WestSphere Equity Holdings II, Ltd., WestSphere Funding, Ltd., CLF,
Ltd. and WestSphere Funding II, L.P., (the "WestSphere Funds") pursuant to
a Subscription and Share Purchase Agreement dated September 19, 1996
enclosed hereto as Exhibit 2. PICL acquired the Shares with the proceeds
of the offering outside of the United States pursuant to Regulation S of
the Securities Act of 1933, as amended, of US$8,000,000 of 9 1/4% Notes
Due 1999.
<PAGE>
Item 4. Purpose of Transaction.
PICL acquired the Shares pursuant to the Subscription and Share
Purchase Agreement as part of a financial restructuring of certain
obligations of WestSphere Funds. PICL acquired the Shares at a discount
to the market price for the Shares in exchange for (a) a cash payment,
(b) the assumption of the obligation to satisfy certain obligations of
the sellers and (c) a capital contribution by the sellers, which are
also shareholders of PICL, to PICL. Depending upon the Company's business
and prospects, upon PICL's debt obligations (affected by the valuation
of the Shares, other investments held by PICL and capital contributions
by PICL's shareholders) and upon future market developments (including,
without limitation, performance of the Shares in the market and general
economic conditions), PICL may from time to time dispose of all or a
portion of the Shares it holds. PICL has the right to put the Shares
to its Shareholders at a price that may be either above or below the
market price depending upon the market valuation of the Company at
that time.
Item 5. Interest in Securities of the Issuer.
(a) The table below sets forth the number and percentage of Shares
directly and indirectly held by each person named in Item 2
above:
<PAGE>
Number of Number of Number of
Shares Shares Shares Directly Approximate
Filing Party Directly Held Indirectly and Indirectly Percentages
Held Held
PICL 2,178,223 -- 2,178,223 34.0%<F1>
WCA<F2> -- 480,517 480,517 38.8%<F1>
WCI<F2> -- 480,517 480,517 38.8%<F1>
____________________
[FN]
<F1> Percentages of beneficial ownership are calculated assuming 392,000 Shares
issued and outstanding as of December 31, 1996, as reported in the Company's
Annual Report on Form 10-K.
<F2> Includes all the Shares owned by PICL. PICL has entered into a Management
Agreement whereby WCA will have investment power including the power to
dispose, or to direct the disposition of the Shares, and therefore WCA may be
deemed to be the beneficial owner of the Shares directly owned by PICL. WCI is
the general partner of WCA, and therefore may be deemed to be the beneficial
owner of the Shares directly owned by PICL. WCA and WCI disclaim this
beneficial interest. The numbers of Shares also include 45,710 Shares
owned by CLF, Ltd., 173,465 Shares owned by CLF L.P. and warrants held by
affiliates of WCA to purchase 83,117 Shares.
(b) PICL has the power to vote the Shares, PICL is managed by WCA
which has investment power, including the power to dispose or to
direct the disposition of the Shares. WCI is the general
partner of WCA.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer .
PICL has entered into the Management Agreement with WCA, pursuant to
which WCA acts as the investment manager in respect of the general
governance, administration and operations of PICL., including, without
limitation, the power to dispose or to direct the disposition of the
Shares.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Management Agreement, dated September 19, 1996.
Exhibit 2. Subscription and Share Purchase Agreement, dated September
19, 1996.
<PAGE>
SCHEDULE A
Directors and Executive Officers
Except as set forth below, the business address of each person is c/o
WestSphere Capital Associates, L.P., 55 East 50th Street, 13 floor, New York,
New York 10022.
Director of PICL Present Principal Occupation Address
Ryhal Gallagher Director of PICL c/o Maples & Calder
P.O. Box 309 63 SMB
Grand Cayman,
Cayman Islands,
B.W.I.
Executive Officers of PICL
Barbara McDonald Secretary c/o Maples & Calder
P.O. Box 309 63 SMB
Grand Cayman,
Cayman Islands,
B.W.I.
Barbara McDonald Secretary
General Partner of WCA
WCI
Executive Officers of WCA
Eduardo Bohorquez Chief Executive Officer
Nicholas Peters Managing Director
Joseph J. Vadapalas Managing Director
Directors and Executive Officers of WCI
Eduardo Bohorquez President and Chief Executive Officer
Nicholas Peters Executive Vice President
Joseph J. Vadapalas Executive Vice President
Citizenship of Directors and Executive Officers
Jose Bohorquez Colombia
Eduardo Bohorquez United States
<PAGE>
Joseph J. Vadapalas United States
Ryhal Gallagher Republic of Ireland
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
PORTFOLIO INVESTMENT COMPANY
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Its: Authorized Signatory
Date: September 30, 1996
<PAGE>
EXHIBIT INDEX
Exhibit 1. Management Agreement dated September 19, 1996.
Exhibit 2. Subscription and Share Purchase Agreement dated
September 19, 1996.
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (the "Agreement") is made by and between
WESTSPHERE CAPITAL ASSOCIATES, L.P., a Delaware limited partnership (the
"Manager"), and PORTFOLIO INVESTMENT COMPANY LIMITED, a Cayman Islands
corporation (the "Company").
WHEREAS, the Company is issuing US$8,000,000 Notes Due 1999 (the
"Notes") pursuant to a Fiscal Agency Agreement (the "Fiscal Agency Agreement"),
dated as of September 19, 1996, by and between the Company and The Bank of New
York, London Branch as fiscal agent (the "Fiscal Agent").
WHEREAS, the Manager represents that it, directly or through its
affiliates or personnel, is experienced and has expertise in corporate mergers
and acquisitions, equity dispositions and asset sales;
WHEREAS, the Company desires to engage the Manager as the manager and
administrator in respect of the general governance, administration and
operations of the Company, including the disposition of the Company's corporate
assets and servicing of the Company's corporate debts; and
WHEREAS, the Manager is able to provide certain of its personnel,
facilities, expertise, and resources to the Company for the rendering of such
management and administrative services and desires to render such services.
NOW, THEREFORE, in consideration of the foregoing recitals, the
premises and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Retention of Manager. The Company hereby retains the Manager to
act as its sole and exclusive manager and administrator, acting in its capacity
as an independent contractor and not as an employee or joint venture partner;
provided that the Company may, from time to time, with the prior written
consent of the Manager, contract with other parties to undertake specific
functions.
2. Duties of Manager. The manager shall manage the Company so as
to cause the Company to comply with its obligations under the Notes and the
Fiscal Agency Agreement. In this regard, the Manager's duties shall include,
without limitation, the following:
(a) the Company's compliance with its obligations under the
Notes and the Fiscal Agency Agreement, including, without limitation: (i)
the provision of any information and notices required to the Agent or the
Noteholders; (ii) the provision of payment certificates certifying
expenses payable under Section 5.2(b) of the Fiscal Agency Agreement;
(iii) the transfer and disposition of assets of the Company (unless
rendered unnecessary by a capital contribution by the Company's
shareholders) so as to generate payments into the Collection Account (as
defined in the Fiscal Agency Agreement) as necessary to meet the
obligations under the Notes; (iv) the payment of all moneys or funds
received by the Company directly to the Collection Account; and (v)
<PAGE>
exercise of the Put Option (as defined in the Subscription and Share
Purchase Agreement, dated as of September 19, 1996, by and among the
Company and the Investors (as defined therein)) if required in order to
avoid an Event of Default under the Notes;
(b) the Company's corporate governance, administration and
operations, including, without limitation: (i) the preparation of annual
financial statements; (ii) the preparation, execution, and delivery or
filing of all instruments, agreements, reports, tax returns, accounts, and
other documents with governmental authorities or otherwise; (iii)
compliance with all applicable laws including, without limitation, the
securities laws and regulations of the United States of America; (iv) the
retention and supervision of lawyers, auditors, investment managers,
custodians, escrow agents, depositaries and other professional advisors;
(v) the holding of and preparation for meetings of the Company's board of
directors and shareholders; and (vi) the issuance, sale, redemption, and
transfer of shares of the Company; and
(c) the Company's finances and investments, including, without
limitation: (i) determination of the value of the Company's investments
and, as permitted under the Company's contractual arrangements, amounts
available for distribution to shareholders as dividends or other similar
distributions, return of capital or liquidation proceeds and the
determination of the character of such distributions, whether as dividends
or a return of capital, and whether in cash or in kind; (ii) the timing
and desirability of the disposition or refinancing of any corporate assets
of the Company and any reinvestment of the proceeds therefrom; (iii) the
maintenance of appropriate insurance, reserves and accruals with respect
to the Company's liabilities, including contingent liabilities; (iv) the
voting of shares of corporations or other business entities held by the
Company; (v) the undertaking of borrowings and the giving of any security
by the Company; and (vi) the valuation of the Company's assets, holdings
or liabilities.
Provided, however, that all or a portion of the following functions
will be carried on at or from an office or offices located outside the United
States: (i) communicating with the Company's shareholders (including the
furnishing of financial reports); (ii) communicating with the general public on
the Company's behalf; (iii) soliciting sales of shares in the Company; (iv)
accepting subscriptions from new shareholders in the Company; (v) maintaining
the Company's principal corporate records and books of account; (vi) auditing
the Company's books of account; (vii) dispersing payments of dividends, legal
fees, accounting fees of the Company and the Company's officers' and directors'
salaries; (viii) publishing or furnishing any offering and redemption prices of
the Company's shares; (ix) conducting meetings of the Company's shareholders or
directors; and (x) making redemptions of the Company's shares.
In connection with any of the foregoing services and subject to any
other provisions of this Agreement, the Manager may retain such other
consultants, advisors, and administration service organizations as the Manager
deems necessary to perform its duties. The Manager agrees to pay expenses for
the services of such consultants advisors and service organizations relating to
its routine operations. However, the Company shall be responsible for those
expenses (including legal, accounting and other professional fees) relating to
the Company's operations. In addition, the Company shall be responsible for
those expenses relating to particular transactions undertaken, negotiated or
completed on behalf of the Company.
<PAGE>
3. Authority of the Manager. Except as specifically limited
herein, the Manager is hereby granted full and continuing authority and
discretion on behalf of the Company, subject to the Company's other contractual
obligations (including particularly, without limitation, the Fiscal Agency
Agreement) to do the following:
(a) undertake, negotiate, and complete dispositions of
investments and other assets of the Company on a basis and timing as
required to comply with the Company's obligations under the Notes and
Fiscal Agency Agreement;
(b) execute and deliver purchase and sale agreements, notices
to shareholders and other documents and instruments which may be necessary
or desirable to comply with the Company's obligations under the Notes and
the Fiscal Agency Agreement;
(c) hold and invest the Company's assets including: (i)
maintaining or delegating custody or control of the Company's assets to
the extent necessary or desirable on the basis of investment, fiscal, and
tax considerations; and (ii) determining the amount, if any, of the
Company's assets to be maintained in the form of cash or cash equivalents
from time to time;
(d) make all decisions and arrangements concerning the
acceptance of subscriptions for the Company's shares and any subsequent
transfers thereof so as to ensure payment into the Collection Account (as
defined in the Fiscal Agency Agreement);
(e) determine, in accordance with the Company's Articles of
Association and the laws of the Cayman Islands, questions regarding the
qualifications of shareholders to vote, the form and validity of proxies
and the validity of votes;
(f) affix the corporate seal, if any, to any and all corporate
documents delivered pursuant to the exercise of any other powers
contemplated by this Agreement; and
(g) supervise and direct the keeping of the Company's books of
account and other records.
Further, the Manager is hereby granted full and continuing authority
and discretion: (i) to undertake and perform any and all other management and
administrative duties on behalf of and to undertake and complete any and all
administrative, commercial, fiscal, investment, and other arrangements and
transactions for the Company as may in the discretion of the Manager be
considered to be required under the contractual arrangements to which the
Company is a party or in the best interests of the Company; and (ii) to
determine, in its sole discretion, to delegate such of its duties under this
Agreement to such other persons as the Manager may reasonably select.
To facilitate the exercise of the authority granted by the Company to
the Manager by this Agreement, the Company shall issue such revocable proxies
or powers of attorney as the Manager may from time to time reasonably request.
4. Limitation on Duties and Authority of the Manager.
Notwithstanding any provisions of this Agreement to the contrary, the Manager
shall not engage in activities on behalf of the Company which are inconsistent
<PAGE>
with the provisions of the Fiscal Agency Agreement, the Notes or the Company's
other contractual obligations.
5. Management Fees. As (i) compensation for the consulting,
investment and financial advisory, and other services provided by the Manager
to the Company hereunder, and (ii) an inducement to the Manager for committing
its resources to provide such services, the Manager shall be paid a fee (the
"Management Fee"). The Management Fee shall consist of an investment services
fee equal to US$30,000, payable in arrears in six installments of US$5,000
each, on each Payment Date (as defined in the Fiscal Agency Agreement).
6. Expenses of the Company. Except as provided elsewhere in this
Agreement, all expenses incurred by the Company shall be the sole
responsibility of the Company, including, without limitation, any costs and
out-of-pocket expenses incurred for the following: (i) the expenses associated
with the Company's formation and raising of capital; (ii) the actual or
proposed disposition of investments, including securities; (iii) direct,
out-of-pocket expenses involved in inspecting, evaluating, and monitoring the
investments of the Company; (iv) the organization, administration, and
maintenance of, and compliance with applicable law by, the Company; and (v)
legal, accounting, and other professional fees incurred on behalf of the
Company. Such amounts shall be payable, along with the investment services fee
of US$5,000 (payable each Payment Date) by presentation of a certificate of the
Company to the Fiscal Agent in accordance with Section 5.2(b) of the Fiscal
Agency Agreement.
7. Indemnification of Manager. The Manager and its officers,
employees, and agents (each an "Indemnified Party") shall be indemnified by the
Company and held harmless against any liability (including legal fees and
expenses) arising out of such Indemnified Party's service to the Company;
provided that any such Indemnified Party is not adjudged guilty of gross
negligence, willful misconduct or fraud in the performance of its duties. The
right to indemnification hereunder shall be in addition to any other rights to
which the Indemnified Party may be entitled.
8. Term.
(a) Termination of the Agreement. This Agreement shall be effective
as of the date hereof until six months following payment in full of the Notes,
and may be terminated by the Company only if shareholders representing over
fifty percent (50%) of the Company's total voting shares vote to terminate this
Agreement specifying that the Manager is guilty of gross negligence, willful
misconduct or fraud in the performance of its duties under this Agreement (a
termination for "Cause") or if so elected by a majority of the Noteholders upon
an Event of Default under the Notes.
(b) Termination and Establishment of Alternate Mechanisms or
Structures. In an attempt to minimize business risks and tax liabilities where
appropriate, the Manager may terminate this Agreement if the Manager
establishes an alternate mechanism or structure (including a partnership or
other entity through which services can be provided) to provide consulting,
financial and investment advisory, and other services substantially similar to
those provided for in this Agreement.
(c) Fees to the Manager in the Event of Termination for Cause. In
the event that shareholders representing over fifty percent (50%) of the
Company's total voting shares vote to terminate this Agreement specifying that
<PAGE>
the Manager is guilty of gross negligence, willful misconduct or fraud in the
performance of its duties under the Agreement, the Manager shall not be
entitled to receive any Management Fee for services rendered after the date the
gross negligence, willful misconduct or fraud was found by the court to have
occurred.
9. Other Activities Permitted. No provision of this Agreement
shall be construed to preclude the Manager or any officer, employee, or agent
thereof from engaging in other transactions and entering into other
relationships including transactions and relationships whereby the Manager may
provide services to other persons similar to its services to the Company, or
from making or disposing of investments in the same entities in which the
Company makes investments or making other investments without referring such
investment opportunities to the Company (notwithstanding the appropriateness of
such opportunities for the Company). The Company acknowledges that these
transactions or relationships may be on terms different than those offered by
the Manager to the Company, and that neither the Manager nor its officers,
employees, or agents shall have any obligation whatsoever to the Company or to
any shareholder of the Company, including, without limitation, any obligation
to disclose such transactions or relationships or to obtain any consent in
connection therewith.
10. Miscellaneous.
(a) The provisions of Section 5 (to the extent any obligations of
the Company thereunder remain unsatisfied), 6, 7 and 8 of this Agreement shall
survive this Agreement for a period equal to the greater of three (3) years or
the applicable statute of limitations relating to any cause of action or
obligation that may be related to such Sections.
(b) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which together shall be deemed
one and the same instrument.
(c) This Agreement shall be binding upon and inure to the benefit of
the respective successors and permitted assigns of each of the parties hereto.
(d) This Agreement may not be amended or otherwise modified except
in a writing signed by all parties to this Agreement.
(e) This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other
agreements, representations, understandings and the like in respect thereof.
(f) This Agreement shall be governed by and construed in accordance
with the internal laws of the Cayman Islands, without regard to the principles
governing the choice or conflicts of law.
<PAGE>
IN WITNESS THEREOF, we have hereunto set our hands on September 19,
1996.
WESTSPHERE CAPITAL ASSOCIATES, L.P.,
a Delaware limited partnership
By: /s/ Joseph J. Vadapalas
Name: Joe J. Valapalas
Title: Managing Director
PORTFOLIO INVESTMENT COMPANY LIMITED,
a Cayman Islands corporation
By: /s/ Pablo Stalman
Name: Pablo Stalman
Title: Attorney-in-Fact
SUBSCRIPTION AND SHARE PURCHASE AGREEMENT
THIS AGREEMENT, dated as of September 19, 1996, by an among
WESTSPHERE EQUITY HOLDINGS, LTD., a corporation organized and existing under
the laws of the Cayman Islands ("Equity"); WESTSPHERE EQUITY HOLDINGS II, LTD.,
a corporation organized and existing under the laws of the Cayman Islands
("Equity II"); WESTSPHERE FUNDING, LTD., a corporation organized and existing
under the laws of the Cayman Islands ("Funding"); WESTSPHERE FUNDING II, LTD.,
a corporation organized and existing under the laws of the Cayman Islands
("Funding II"); CLF, LTD., a corporation organized and existing under the laws
of the Cayman Islands ("CLF"); WESTSPHERE FUNDING II, L.P., a limited
partnership constituted and existing under the laws of the State of Delaware
("Funding II, L.P.") (together, the "Investors"); and PORTFOLIO INVESTMENT
COMPANY LIMITED, a corporation organized and existing under the laws of the
Cayman Islands (the "Company");
RECITALS
WHEREAS, the Company has been established by the Investors for the
purpose of holding and selling certain investments in corporations located in
the United States of America which initially consists in the USML Shares (as
hereinafter defined), the Holding Shares (as hereinafter defined) and the Note
(as hereinafter defined), together with any cash (including interest accrued
thereon) derived from such investments (together, the "Portfolio") all of which
are currently owned by the Investors as described in Schedule I hereto;
WHEREAS, each of the Investors desires to participate as an equity
investor in the Company by purchasing, and the Company wishes to sell, the
Shares (as hereinafter defined);
WHEREAS, the Company desires to purchase from each of the Investors,
and the Investors wishes to sell, the Portfolio;
NOW, THEREFORE, in consideration of the mutual promises, the
covenants and agreements contained herein together with other consideration,
the adequacy and receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
Definitions
1.1 Certain Definitions. As used in this Agreement, the following
definitions shall have the following meanings (such definitions to be equally
applicable to both singular and plural forms of the terms defined):
"Agreement": this Subscription and Share Purchase Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Law": as to any Person (a) the Certificate of
Incorporation, Memorandum of Association and Articles of Association or other
organizational or governing documents of such Person, (b) any law, treaty,
rule, regulation, ordinance, decree, injunction, writ or order or any
<PAGE>
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person.
"Closing": the closing of the purchase and sale of the Shares
pursuant to this Agreement to take place at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York.
"Closing Date": unless otherwise agreed by the parties hereto, the
date upon which the conditions set forth in Article VII of the Fiscal Agency
Agreement are satisfied.
"Company": as defined in the Recitals hereto.
"Fiscal Agency Agreement": refers to the Fiscal Agency Agreement,
dated as of the date hereof, by and between the Company and The Bank of New
York, London Branch, as fiscal and paying agent, as amended, supplemented or
otherwise modified from time to time.
"Governmental Approval": authorizations, consents, approvals,
waivers, exemptions, variances, franchises, permissions, permits and licenses
of, and filings and declarations with, any Governmental Authority.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holding": refers to Southland Food Services Holding Corporation, a
Delaware corporation.
"Holding Shares": means 90 fully paid and nonassessable shares of
the existing common stock of Southland Food Services Holding Corporation, a
Delaware corporation.
"Note": means a certain note issued to Funding II by Holding for the
aggregate amount of US$3.35 million.
"Notes Due 1999": as defined in Section 4.2.
"Person": any individual, firm, corporation, partnership, group,
trust, joint venture, Governmental Authority or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Placement Agent": refers to WestSphere Investment Management, S.A.
as placement agent under the Placement Agreement.
"Placement Agreement": means the Placement Agreement by and among
the Company, as issuer, and WestSphere Investment Management S.A., as placement
agent, executed on September 19, 1996 whereby the Company issued and the
Placement Agent agreed to place the Notes Due 1999 and provide certain
additional services to the Company.
"Shares": the shares of common stock of the Company as set forth in
the Articles of Association.
"US$" or "U.S. dollars: dollars in lawful currency of the United
States of America.
<PAGE>
"USML Shares": means 2,178,223 fully paid and nonassessable shares
of the existing common stock of Universal Standard Medical Laboratories, Inc.,
a Michigan company publicly registered with the U.S. Securities and Exchange
Commission and NASDAQ listed.
1.2 Additional Defined Terms. For facility of use certain
additional terms are defined within the Agreement at the point of reference.
ARTICLE II.
Subscription of Common Shares
Upon the terms and subject to the conditions of this Agreement, the
parties hereto agrees as follows
2.1 Subscription of Shares. At the Closing, each of the Investors
will subscribe the number of Shares of the Company set forth opposite the name
of such Investor on Schedule I hereto, at the subscription price of US$1.00 per
Share. The price of subscription will be deducted from the amounts payable to
each Investor by the Company for the Portfolio, in accordance with the
respective amounts otherwise payable by such Investor.
2.2 Delivery of Certificates. The issuance, sale and purchase of
the Shares shall be evidenced by the Company delivering or causing to be
delivered to each Shareholder one or more certificates representing the number
of Shares purchased by such Shareholder, such certificate or certificates to
be duly registered in the name of the Shareholder on the books of the Company
in accordance with the Articles of Association.
ARTICLE III.
Purchase of the Portfolio
Upon the terms and subject to the conditions of this Agreement, the
parties hereto agree as follows:
3.1 Purchase and Sale of Shares. 1. At the Closing, the Company
agrees to purchase and each Investor agrees to sell the USML Shares, Holding
Shares and Note (together, the "Portfolio") in amount and for the consideration
set forth opposite the name of each Investor on Schedule II hereto. The amount
of consideration is calculated at 58.31% of the estimated fair market value of
the Portfolio. The Investors acknowledge and agree that the discount to market
value is fair and reasonable in the light of their maintenance of an indirect
interest in the Portfolio through their ownership of the Company. The
consideration amount set forth in Schedule II, after adjustment in accordance
with Section 3.2 hereof, will be payable the first business day immediately
following Closing by wire transfer in immediately available funds to the
accounts designated by the Investors on Schedule IV hereto. At Closing, the
Investors shall deliver to the Company certificates evidencing the USML Shares
and the Holding Shares, duly endorsed in blank or with a duly executed stock
transfer power attached and the Note, duly assigned to the Company.
3.2 Repayment of Debt. In partial payment of the consideration,
the Company agrees to repay or arrange for the repayment of certain obligations
of certain Investors not in excess of an aggregate of US$3,000,000 (the
<PAGE>
"Investor Debt"). The persons to whom such Investor Debt is payable, together
with the amounts owing (interest and principal) are set forth in Schedule III
hereto. As a result, the consideration payable by the Company to such
Investors for the Portfolio is reduced in recognition of the Company's
agreement to repay the Investor Debt. The Company has entered into the
Placement Agreement with the Placement Agent, an affiliate of the Investors,
pursuant to which the Placement Agent has agreed to place the Notes Due 1999
and allocate the proceeds therefrom in accordance with the instructions
contained in such agreement, including, without limitation, the payment of the
amounts owed hereunder and the payment of the Investor Debt. The Placement
Agent shall use its best efforts to obtain an executed release from the
creditors of such Investors.
3.3 Irrevocability of Transfer. The Investors agree that, upon
satisfaction of the conditions to Closing set forth in Article VI of the Fiscal
Agency Agreement, the transfer of the Portfolio is irrevocable. In that
regard, the Investors accept any risk of nonpayment from the Placement Agent
and will look to the Placement Agent as third party beneficiaries under the
Placement Agreement for payment of the amounts owed hereunder and for evidence
of repayment of the Investor Debt and releases from the creditors for the
Investor Debt.
ARTICLE IV.
Put Right
4.1 Put Right. The Company shall have the right (a "Put Right") to
require at any time the Investors to purchase all, but not less than all, the
Portfolio, or whatever portion of the Portfolio is remaining at such time, at
the Put Price (as hereinafter defined). Each Investor acknowledges and agrees
that it will purchase, upon prior receipt of notification pursuant to this
Section 4.1, the Portfolio (or the remaining portion thereof) by paying its pro
rata share of the Put Price in accordance with its proportional interest in the
capital stock of the Company. The Company shall give written notice to the
Investors of its intention to exercise its Put Right with at least 30 days
prior to the date of exercise.
4.2 Put Price. The "Put Price" shall be equal to the sum of (i) the
interest accrued and payable on the notes issued by the Company pursuant to the
Fiscal Agency Agreement (the "Notes Due 1999") through the date of exercise,
(ii) the principal outstanding on the Notes Due 1999, (iii) any premium,
prepayment or other charge due and payable on the Notes Due 1999 in accordance
with the Fiscal Agency Agreement and (iv) additional amounts, if any, required
to pay the Company's fees and expenses related to the Notes Due 1999.
ARTICLE V.
Representations and Warranties
5.1 Representations and Warranties of the Investors. Each of the
Investors represents and warrants to each other party that, as of the date of
this Agreement and as of the Closing Date, with respect to itself:
(a) Organization and Standing. Such party:
(i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
<PAGE>
except for Funding II L.P. which is a limited partnership existing under
the laws of the Cayman Islands; and
(ii) has all requisite organizational power and authority
necessary to enable it to use its corporate name and to own, lease or
otherwise hold its properties and assets and to carry on its business as
presently conducted or intended.
(b) Authority. Such party has all requisite organizational power
and authority to enter into this Agreement to which it is a party and to
consummate the transactions intended hereby and thereby. The execution and
delivery by such party of this Agreement and the consummation by such party of
the transactions contemplated hereby and thereby, have been duly authorized by
all necessary organizational action on the part of such party. This Agreement
has been, or will at the Closing have been, duly executed and delivered by such
party and constitute, or will at the Closing constitute, its legal, valid and
binding obligations, enforceable against such party in accordance with their
respective terms. The execution and delivery by such party of this Agreement
does not and did not, and the consummation of the transactions and compliance
with the terms of this Agreement will not, conflict with, result in any
violation of or default (with or without notice or lapse of time or both)
under, give rise to a right of termination, cancellation or acceleration of any
material obligation or to the loss of any material benefit under or result in
or require the creation, imposition or extension of any lien upon any of its
properties or assets under (A) any contract, (B) any provision of its
constitutive documents or (C) any judgment or Applicable Law, except, with
respect to clauses (A) or (C), for such conflicts, violations, defaults, rights
or losses that, individually or in the aggregate, would not have a material
adverse effect on such party's ability to perform its obligations under this
Agreement in accordance with their respective terms. No Governmental Approval
or approval of any other Person is required to be obtained or made by such
party or any of its Affiliates in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby or
thereby.
(c) Ownership. Such party is the registered and beneficial owner of
all Portfolio listed opposite its name on Schedule II hereto, free and clear of
all liens, charges, encumbrances, security interests, options, pledges,
transfer restrictions or any other claims or third party rights.
5.2 Representations and Warranties of the Company
The Company represents and warrants to each other party that, as of the date of
this Agreement and as of the Closing Date, with respect to itself:
(a) Organization and Standing. The Company:
(i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; and
(ii) has all requisite corporate power and corporate authority
necessary to enable it to use its corporate name and to own, lease or
otherwise hold its properties and assets and to carry on its business as
presently conducted or intended.
(b) Authority. The Company has all requisite corporate power and
corporate authority to enter into this Agreement and to consummate the
transactions intended hereby and thereby. The execution and delivery by the
<PAGE>
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement has
been, or will at the Closing have been, duly executed and delivered by the
Company and constitute, or will at the Closing constitute, its legal, valid and
binding obligations, enforceable against the Company in accordance with their
respective terms. The execution and delivery by the Company of this Agreement
does not and did not, and the consummation of the transactions and compliance
with the terms of this Agreement to which it is a party will not, conflict
with, result in any violation of or default (with or without notice or lapse of
time or both) under, give rise to a right of termination, cancellation or
acceleration of any material obligation or to the loss of any material benefit
under or result in or require the creation, imposition or extension of any lien
upon any of its properties or assets under (A) any contract, (B) any provision
of its constitutive documents or (C) any judgment or Applicable Law, except,
with respect to clauses (A) or (C), for such conflicts, violations, defaults,
rights or losses that, individually or in the aggregate, would not have a
material adverse effect on the Company's ability to perform its obligations
under this Agreement in accordance with their respective terms. No
Governmental Approval or approval of any other Person is required to be
obtained or made by the Company or any of its Affiliates in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby or thereby.
(c) Authorized Capital. The authorized capital stock of the
Company consists of 50,000 shares of common stock, nominal (par) value US$1.00.
All issued and outstanding shares have been duly authorized and are validly
issued, fully paid and nonassessable. The Company does not have outstanding
any rights (preemptive or other) to subscribe for or to purchase, or any
warrants or options for the purchase of, or any agreements, understandings or
arrangements providing for or other obligations requiring the issuance
(contingent or other) of, or any calls, commitments or claims of any character
relating to, any shares of any class of its capital stock or any securities
convertible into or exchangeable for any such stock. The Company is not
subject to any obligations (contingent or other) to repurchase or otherwise
acquire or rescind the sale of any shares of any class of its stock or any
securities, rights or options related thereto.
ARTICLE VI.
Covenants
In order to induce the Investors to enter into this Agreement, the
Company agrees and covenants with the Shareholders that it will be subject to
the covenants set forth in Article VIII of the Fiscal Agency Agreement as if
the same appeared in their entirety herein.
ARTICLE VII.
Miscellaneous Provisions
7.1 Expenses. All costs and expenses incurred in connection with
this Agreement, shall be paid by the Company.
<PAGE>
7.2 No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
7.3 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns.
7.4 Assignment. No party may assign or otherwise transfer any of
its rights or obligations under this Agreement by operation of law or
otherwise, without the prior written consent of the other Parties, which
consent shall not be unreasonably withheld. Any purported or attempted
assignment contrary to the terms hereof shall be null and void and of no force
or effect.
7.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
7.6 Headings. The sections headings contained in this Agreement
are inserted for convenience only and are not part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.
7.7 Notices. Notices given under this Agreement shall be in
writing and shall be effective when actually delivered to such party by hand,
telex or telecopy to an officer of such party or on the date indicated on the
signed receipt if sent by mail, postage prepaid;
(a) if to the Investors, shall be delivered or sent by mail, telex or
facsimile transmission to WestSphere Investment Management S.A., Av.
Adolfo Davila 740, piso 4, oficina 18, Dock 5 Puerto Madero (1107), Buenos
Aires, Argentina, Attention: Armando C. Braun, Chairman, cc to: Walter
Fonseca, Director;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the Company at P.O. Box 309 63 SMB, Grand
Cayman, Cayman Islands, BWI, Attention: Barbara McDonald.
7.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the Cayman Islands.
7.9 Amendments and Waivers. This Agreement may be amended, modified,
superseded or canceled and any of its terms, covenants, representations,
warranties, undertakings or conditions may be waived only by an instrument in
writing signed by (or by some person duly authorized by) all of the parties
hereto or, in the case of a waiver, by the party waiving compliance.
7.10 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
<PAGE>
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
7.11 Exhibits and Schedules. The Exhibits and Schedules identified
in this Agreement are incorporated herein by reference and made a part hereof.
7.12 No Violation of Law. This Agreement shall not be construed to
require either party to be compelled to do any act or remain in any situation
in violation of any law applicable to such party.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
PORTFOLIO INVESTMENT COMPANY
LIMITED
By: /s/ Pablo Stalman
Pablo Stalman
Attorney-in-fact
WESTSPHERE EQUITY HOLDINGS, LTD.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
WESTSPHERE EQUITY HOLDINGS II, LTD.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
WESTSPHERE FUNDING, LTD.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
WESTSPHERE FUNDING II, LTD.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
CLF, LTD.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
<PAGE>
WESTSPHERE FUNDING II, L.P.
By: /s/ Joseph J. Vadapalas
Joseph J. Vadapalas
Attorney-in-fact
<PAGE>
SCHEDULE I
The following sets forth the names of the Investors and the number of
Shares to be purchased by each:
Name Shares
WestSphere Equity Holdings, Ltd. 21,695
WestSphere Equity Holdings II, Ltd. 1,015
WestSphere Funding, Ltd. 4,875
WestSphere Funding II, Ltd. 13,605
CLF, Ltd. 2,110
Funding II L.P. 6,700
Total 50,000
<PAGE>
SCHEDULE II
The following sets forth the securities comprising the
Portfolio to be sold by each Investor and the total consideration to be
received therefor (adjusted for any assumption of debt):
Investors PortfolioConsiderationNet Amount
(1) Equity 100,000 USML Shares
1,235,558 USML SharesUS$3,115,208 US$665,513
-Debt<2,449,695>
665.513
(2) Equity II 90 Holding Shares145,775 145,775
(3) Funding 300,018 USML Shares699,762 149,457
<550,305>
-Debt149,457
(4) Funding II US$3,350,000 Note1,953,385 1,953,385
(5) CLF 130,000 USML Shares303,212 303,212
(6) Funding II, L.P. 412,647 USML SharesUS$ 962,458 962,458
US$4,179,800
<PAGE>
SCHEDULE III
The following sets forth the persons who hold the Investor
Debt and the amount of such debt (principal and interest) held by each
such person:
Names Debt Amount
<PAGE>
SCHEDULE IV
The following sets forth the account numbers for each of the
Investors for wiring instructions:
BankAmerica International
335 Madison Avenue
New York, NY
Fedwire Number: 026009593
For Credit: BankAmerica Trust & Banking Corp.
(Cayman) Ltd.
Account No. 19489
For Further Credit: WestSphere Funding Ltd.
Account No. B1752
