CUSIP No. 552 617 102
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SEC 1746 (11-02) Potential persons who are to respond to the collection of
information contained in this form are not required to respond unless
the form displays a currently valid OMB control number.
UNITED STATES [ OMB APPROVAL ]
SECURITIES AND EXCHANGE COMMISSION [OMB No. 3235-0145]
Washington, D.C. 20549 [Exp. Dec 31, 2005]
[Est avg burden ]
SCHEDULE 13D [hrs/response 11 ]
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
MACC Private Equities Inc.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
--------------------------------------------------------------------------------
(Title of Class of Securities)
552 617 102
--------------------------------------------------------------------------------
(CUSIP Number)
Kent Madsen
15 West South Temple, Suite 520
Salt Lake City, UT 84101
(801) 524-8939
Keith L. Pope
Parr, Waddoups, Brown, Gee & Loveless
185 South State Street, Suite 1300
Salt Lake City, UT 84111
(801) 532-7840
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
April 28, 2005
--------------------------------------------------------------------------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7 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 in 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).
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Atlas Management Partners, LLC (71-0950380) ("Atlas")
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
N/A
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
Utah
------------ -------------------------------------------------------------------
7
Sole Voting Power
804,689
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 0
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 0
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
804,689--Reporting person has the right to vote these shares
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.5%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
00
------------ -------------------------------------------------------------------
2
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Bridgewater International Group, LLC
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
AF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
Utah
------------ -------------------------------------------------------------------
7
Sole Voting Power
0
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 0
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 0
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
804,689
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.5%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
00
------------ -------------------------------------------------------------------
3
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Kent Madsen
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
PF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.
------------ -------------------------------------------------------------------
7
Sole Voting Power
3,700
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 804,689
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 3,700
------------- ----------------------------------------------------
10 Shared Dispositive Power
0
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
Mr. Madsen holds 3,700 shares in his own name and, as a Voting
Managing Director of Atlas, has shared control over the voting
power held by Atlas on an additional 804,689 shares.
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.7%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
IN
------------ -------------------------------------------------------------------
4
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Geoffrey T. Woolley
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
PF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) |_|
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.
------------ -------------------------------------------------------------------
7
Sole Voting Power
15,948
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 804,689
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 15,948
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
Mr. Woolley holds 15,948 shares in his own name, and, as a Voting
Managing Director of Atlas, Mr. Woolley has shared control over the
voting power held by Atlas on 804,689 shares.
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
35.2%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
IN
------------ -------------------------------------------------------------------
5
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Timothy A. Bridgewater
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
PF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.
------------ -------------------------------------------------------------------
7
Sole Voting Power
5,000
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 804,689
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 5,000
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
Mr. Bridgewater holds 5,000 shares in a retirement account over
which he has sole voting and dispositive powers, and, as a Voting
Managing Director of Atlas, Mr. Bridgewater has shared control
over the voting power held by Atlas on an additional 804,689
shares.
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.8%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
IN
------------ -------------------------------------------------------------------
6
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Todd Stevens
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
PF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.
------------ -------------------------------------------------------------------
7
Sole Voting Power
1,700
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 804,689
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 1,700
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
Mr. Stevens holds 1,700 shares in his own name and, as a Voting
Managing Director of Atlas, has shared control over the voting
power held by Atlas on an additional 804,689 shares.
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.6%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
IN
------------ -------------------------------------------------------------------
7
CUSIP No. 552 617 102
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------------ -------------------------------------------------------------------
1
Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Nick Efstratis
------------ -------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
------------ -------------------------------------------------------------------
3 SEC Use Only
------------ -------------------------------------------------------------------
4 Source of Funds (See Instructions)
PF
------------ -------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) [ ]
------------ -------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.
------------ -------------------------------------------------------------------
7
Sole Voting Power
500
Number of ------------- ----------------------------------------------------
Shares 8 Shared Voting Power
Beneficially
Owned by 804,689
Each ------------- ----------------------------------------------------
Reporting 9 Sole Dispositive Power
Person
With 500
------------- ----------------------------------------------------
10 Shared Dispositive Power
804,689
------------- ----------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
Mr. Efstratis holds 500 shares in his own name, and, as a Voting
Managing Director of Atlas, Mr. Efstratis has shared control
over the voting power held by Atlas on an additional 804,689
shares.
------------ -------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
------------ -------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
34.6%
------------ -------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
IN
------------ -------------------------------------------------------------------
8
CUSIP No. 552 617 102
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This Amendment No. 3 to Schedule 13D amends and supplements, and should be read
in conjunction with, the Schedule 13D filed on August 8, 2003, Amendment No. 1
thereto filed on October 10, 2003, and Amendment No. 2 thereto filed on March 9,
2005.
Item 1. Security and Issuer
The name of the issuer is MACC Private Equities Inc. ("MACC") and the
class of securities subject to this Form 13D is MACC's Common Stock (the "MACC
Shares"). MACC's business address is 101 Second Street, S.E., Suite 800, Cedar
Rapids, IA 52401.
Item 2. Identity and Background
The names of the reporting persons (the "Reporting Persons") filing
this Form 13D are: Atlas Management Partners, LLC, a Utah limited liability
company ("Atlas"), Bridgewater International Group, LLC, a Utah limited
liability company ("BIG"), Kent Madsen, Geoffrey Woolley ("Woolley"), Timothy A.
Bridgewater ("Bridgewater"), Todd Stevens ("Stevens"), and Nick Efstratis
("Efstratis"). Atlas was formed to operate as a management company to provide
services to MACC and holds the voting rights to 34.5% of the MACC Shares, over
which BIG has beneficial ownership and dispositive power. Each of Kent Madsen,
Woolley, Bridgewater, Stevens and Efstratis is a member and a Voting Managing
Director of Atlas. The business address of each of Atlas, Kent Madsen, Stevens,
and Efstratis is 15 West South Temple, Suite 520, Salt Lake City, UT 84101. The
business address of BIG and Bridgewater is 10500 South 1300 West, South Jordan,
Utah 84095. The business address of Woolley is 398 Columbus Avenue, Suite 320,
Boston, MA 02116. Each of Kent Madsen, Stevens and Efstratis is employed by
Wasatch Venture Fund, 15 West South Temple, Suite 520, Salt Lake City, UT 84101,
as a managing director. In addition, Kent Madsen is employed by Zions First
National Bank, One South Main Street, Salt Lake City, UT 84133 as a corporate
officer. Woolley is a founding manager of Dominion Ventures Inc., 398 Columbus
Avenue, Suite 320, Boston, MA 02116. Bridgewater is employed by BIG as managing
director.
Robert Madsen had originally granted Atlas the right to vote shares
held beneficially by him and was included as a Reporting Person on the initial
Schedule 13D. The voting agreement between Mr. Madsen and Atlas has been
terminated and this Amendment No. 3 is being filed to remove him as a Reporting
Person with respect to this report on Schedule 13D.
The required information relating to the members and managers of BIG is
set forth in Appendix A hereto, which is incorporated herein by this reference.
During the last five years, none of the Reporting Persons has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five years, none of the Reporting Persons has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction, the result of which has made it or him once or now
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 violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
In addition to the transactions that have been previously reported on
this Schedule 13D, the following acquisitions have occurred.
On September 22, 2004, Kent Madsen purchased 500 shares on the open
market at a price of $3.55 per share. On September 23, 2004, Mr. Madsen
purchased an additional 200 shares on the open market at a price of $3.55 per
share. These shares were purchased with the personal assets of Mr. Madsen.
9
CUSIP No. 552 617 102
-----------
On March 1, 2005, Todd J. Stevens purchased 700 shares on the open
market at a price of $2.77 per share. These shares were acquired with the
personal assets of Mr. Stevens.
On March 11, 2005, Geoffrey T. Woolley purchased 2000 shares on the
open market at a price of $3.65 per share. These shares were purchased with the
personal assets of Mr. Woolley.
Item 4. Purpose of Transaction
BIG acquired its shares of MACC under the terms of an agreement with
Zions First National Bank, a national banking association ("Zions"), which gave
Atlas, or an affiliate designated by it, the right to acquire all of the MACC
Shares held by Zions, consisting of approximately 804,689 shares, or 34.5% of
the outstanding stock of MACC, for an aggregate purchase price of $3.2 million.
In connection with this acquisition, BIG entered into a shareholder and voting
agreement with Atlas, granting Atlas the right effective upon execution to vote
the MACC Shares acquired by BIG from Zions for an initial period of six years.
The agreement may be extended for up to six years. BIG also agreed not to sell
these shares during an initial period of three years and to limitations on the
amount of MACC Shares it could sell during the following three-year period. From
the end of the initial lock-up period until the termination of the agreement,
Atlas holds a right of first purchase and a right of first refusal to purchase
any MACC Shares that BIG wishes to sell.
Kent Madsen, Woolley, Bridgewater, Stevens and Efstratis were appointed
Voting Managing Directors of Atlas pursuant to the Second Amended and Restated
Limited Liability Company Operating Agreement of Atlas (the "Restated
Agreement"). Pursuant to the terms of the Restated Agreement, the Voting
Managing Directors of Atlas have the authority to vote the MACC Shares held by
Atlas.
The MACC Shares held by BIG, Kent Madsen, Stevens, Efstratis and
Woolley were acquired for investment purposes. The Reporting Persons will review
their holdings from time to time and may increase or decrease their holdings in
MACC as future circumstances may dictate. Such transactions may be made at any
time without prior notice. There can be no assurance, however, that the
Reporting Persons will take any such actions.
Item 5. Interest in Securities of the Issuer
(a) and (b) The Reporting Persons collectively own 831,537 MACC Shares,
representing 35.7% of the outstanding MACC Shares. Please refer to the cover
pages of this Schedule 13D for the number of shares as to which each Reporting
Person has sole power to vote or to direct the vote, shared power to vote or to
direct the vote, sole power to dispose or to direct the disposition, or shared
power to dispose or to direct the disposition.
(c) Not applicable.
(d) No other person, other than the Reporting Persons and their owners,
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 831,537 MACC Shares owned
by the Reporting Persons.
(e) Not applicable.
10
CUSIP No. 552 617 102
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Other than as set forth herein, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the Reporting
Persons and any other person with respect to any securities of MACC, including
but not limited to transfer or voting of any of the securities, finders' fees,
joint ventures, loans or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies.
No securities are pledged or otherwise subject to a contingency, the occurrence
of which would give another person voting power or investment power over such
securities.
Item 7. Material to Be Filed as Exhibits
7(a). Agreement relating to group filing. (3)
7(b). Shareholder and Voting Agreement dated September 29,
2003, between Kent Madsen, Bridgewater International Group,
LLC and Atlas Management Partners, LLC. (1)
7(c). Shareholder and Voting Agreement dated September 29,
2003, between Kent Madsen, Robert Madsen and Atlas Management
Partners, LLC. (1)
7(d) Strategic Agreement dated September 29, 2003, by and
among Bridgewater International Group, LLC, Kent I. Madsen,
Robert T. Madsen, Geoffrey T. Woolley, and Atlas Management
Partners. (1)
7(e) Power of Attorney dated August 7, 2003, signed by Robert
Madsen. (2)
7(f) Mutual Release and Waiver of Claims and Termination of
Shareholder and Voting Agreements dated April 28, 2005. (3)
(1) Previously filed as an exhibit to Amendment No. 1 to the Schedule 13D,
as filed with the Commission on October 10, 2003.
(2) Previously filed as Exhibit #23 to the Form 3 of Robert Madsen, as
filed with the Commission on August 11, 2003.
(3) Filed herewith.
11
CUSIP No. 552 617 102
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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.
ATLAS MANAGEMENT PARTNERS, LLC,
a Utah limited liability company
April 28, 2005 By: /s/ KENT MADSEN
--------------- --------------------------------------------
Date Kent Madsen, Manager
BRIDGEWATER INTERNATIONAL GROUP, LLC,
a Utah limited liability company
April 28, 2005 By: /s/ TIMOTHY A. BRIDGEWATER
---------------- ---------------------------------------------
Date Timothy A. Bridgewater, Managing Director
April 28, 2005 /s/ KENT MADSEN
---------------- -------------------------------------------
Date Kent Madsen
April 28, 2005 /s/ KENT MADSEN
---------------- ------------------------------------------
Date Robert Madsen by Kent Madsen, as
Attorney-in-Fact pursuant to a Power of
Attorney dated August 7, 2003, a copy of
which is on file with the Commission and
incorporated herein by this reference.
April 28, 2005 /s/ GEOFFREY WOOLLEY
---------------- -------------------------------------------
Date Geoffrey Woolley
April 28, 2005 /s/ TIMOTHY A. BRIDGEWATER
---------------- -------------------------------------------
Date Timothy A. Bridgewater
April 28, 2005 /s/ TODD STEVENS
---------------- -------------------------------------------
Date Todd Stevens
April 28, 2005 /s/ NICK EFSTRATIS
---------------- -------------------------------------------
Date Nick Efstratis
12
CUSIP No. 552 617 102
-----------
Exhibit 7A
AGREEMENT
The undersigned agree that this Amendment No. 3 to Schedule 13D
relating to shares of the common stock of MACC Private Equities Inc. shall be
filed jointly on behalf of each of the undersigned.
ATLAS MANAGEMENT PARTNERS, LLC,
a Utah limited liability company
April 28, 2005 By: /s/ KENT MADSEN
---------------- ----------------------------------------
Date Kent Madsen, Manager
BRIDGEWATER INTERNATIONAL GROUP, LLC,
a Utah limited liability company
April 28, 2005 By: /s/ TIMOTHY A. BRIDGEWATER
---------------- ----------------------------------------
Date Timothy A. Bridgewater,
Managing Director
April 28, 2005 /s/ KENT MADSEN
---------------- -------------------------------------------
Date Kent Madsen
April 28, 2005 /s/ KENT MADSEN
---------------- -------------------------------------------
Date Robert Madsen by Kent Madsen, as
Attorney-in-Fact pursuant to a Power of
Attorney dated August 7, 2003, a copy of
which is on file with the Commission and
incorporated herein by this reference.
April 28, 2005 /s/ GEOFFREY WOOLLEY
---------------- -------------------------------------------
Date Geoffrey Woolley
April 28, 2005 /s/ TIMOTHY A. BRIDGEWATER
---------------- -------------------------------------------
Date Timothy A. Bridgewater
April 28, 2005 /s/ TODD STEVENS
---------------- -------------------------------------------
Date Todd Stevens
April 28, 2005 /s/ NICK EFSTRATIS
---------------- -------------------------------------------
Date Nick Efstratis
13
CUSIP No. 552 617 102
-----------
APPENDIX A
----------
CONTROL PERSONS OF BRIDGEWATER INTERNATIONAL GROUP, LLC
A. The sole manager of Bridgewater is Benjamin Jiaravanon. Mr.
Jiaravanon's address is Ancol Barat, Jl Ancol VIII/ No 1, Jakarta 14430
Indonesia. Mr. Jiaravanon is a citizen of Indonesia. Mr. Jiaravanon's principal
employment is by Charoen Pokphand Indonesia.
B. The sole member of Bridgewater is Aleksin. Aleksin is a corporation
formed under the laws of the British Virgin Islands. Aleksin's address is c/o
Offshore Incorporation Limited, PO Box 957, Offshore Incorporation Centre, Road
Town, Tortola, British Virgin Islands.
C. The directors of Aleksin are Sumet Jiaravanon and Eddy Susanto
Zaoputra. The business address for Mr. Jiaravanon and Mr. Zaoputra is Ancol
Barat, Jl Ancol VIII/ No 1, Jakarta 14430 Indonesia. Mr. Jiaravanon is a citizen
of Thailand. Mr. Jiaravanon's principal employment is as the Chairman of Charoen
Pokphand Indonesia. Mr. Zaoputra is a citizen of Indonesia. Mr. Zaoputra's
principal employment is as Chief Financial Officer of Charoen Pokphand
Indonesia.
D. The sole shareholder of Aleksin is Maze Industrial Ltd. ("Maze"). Maze
is a corporation formed under the laws of the British Virgin Islands. Maze's
address is c/o Offshore Incorporation Limited, PO Box 957, Offshore
Incorporation Centre, Road Town, Tortola, British Virgin Islands.
E. The directors of Maze are Sumet Jiaravanon and Eddy Susanto Zaoputra.
The business address for Mr. Jiaravanon and Mr. Zaoputra is Ancol Barat, Jl
Ancol VIII/ No 1, Jakarta 14430 Indonesia. Mr. Jiaravanon is a citizen of
Thailand. Mr. Jiaravanon's principal employment is as the Chairman of Charoen
Pokphand Indonesia. Mr. Zaoputra is a citizen of Indonesia. Mr. Zaoputra's
principal employment is as Chief Financial Officer of Charoen Pokphand
Indonesia.
F. The sole shareholder of Maze is Sumet Jiaravanon. Mr. Jiaravanon's
address is Ancol Barat, Jl Ancol VIII/ No 1, Jakarta 14430 Indonesia. Mr.
Jiaravanon is a citizen of Thailand. Mr. Jiaravanon's principal employment is as
the Chairman of Charoen Pokphand Indonesia. Mr. Sumet Jiaravanon is the father
of Mr. Benjamin Jiaravanon.
During the last five years, none of the persons named on this Appendix A has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five years, none of the persons named on this
Appendix A has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction, the result of which has made it
or him once or now 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 violation with respect to such laws.
14
CUSIP No. 552 617 102
Exhibit 7F
----------
MUTUAL RELEASE AND WAIVER OF CLAIMS
AND TERMINATION OF SHAREHOLDER AND VOTING AGREEMENTS
THIS MUTUAL RELEASE AND WAIVER OF CLAIMS AND TERMINATION OF SHAREHOLDER
AND VOTING AGREEMENTS (this "Agreement") is made and entered into as of the 28
day of April, 2005, by and between Atlas Management Partners, LLC, a Utah
limited liability company ("Atlas"), Bridgewater International Group, LLC, a
Utah limited liability company ("BIG"), Kent I. Madsen ("Madsen"), Robert A.
Madsen ("R. Madsen"), Todd J. Stevens ("Stevens"), Nick Efstratis ("Efstratis"),
Geoffrey T. Woolley ("Woolley"), and Tim Bridgewater ("Bridgewater"). The
parties referred to above are sometimes referred to herein individually as a
"Party" and, collectively, as the "Parties."
R E C I T A L S
WHEREAS, on or about September 29, 2003, BIG, Madsen, R. Madsen and
Atlas entered into a Strategic Agreement (the "Strategic Agreement") pursuant to
which the Parties agreed to acquire a controlling interest in MACC Private
Equities, Inc., a Delaware corporation ("MACC"), and pursuant to which Atlas
intended to be appointed the investment manager of MACC and its wholly owned
subsidiary MorAmerica Capital Corp.;
WHEREAS, on or about September 29, 2003, some of the Parties entered
into the following agreements in furtherance of the intent and purposes of the
Strategic Agreement:
(a) Assignment Agreement between Atlas and BIG pursuant to which
Atlas transferred to BIG all of its interest in a stock
purchase agreement with Zions First National Bank;
(b) Shareholder and Voting Agreement between BIG, Madsen and
Atlas pursuant to which BIG appointed Atlas as its proxy to
vote its shares of common stock in MACC, granted Atlas a
right of first refusal with respect to such shares, and
agreed to certain lock up provisions with respect to the
sale of such shares (the "BIG Shareholder Agreement");
(c) Shareholder and Voting Agreement between R. Madsen, Madsen
and Atlas pursuant to which R. Madsen appointed Atlas as its
proxy to vote its shares of common stock in MACC, granted
Atlas a right of first refusal with respect to such shares,
and agreed to certain lock up provisions with respect to the
sale of such shares (the "Madsen Shareholder Agreement");
and
1
(d) Term sheet between Atlas and Woolley (the "Woolley Term
Sheet");
WHEREAS, on or about March 1, 2004, Atlas was appointed investment
manager of MACC and MorAmerica Capital Corp.;
WHEREAS, in contemplation of the appointment of Atlas as investment
manager of MACC and MorAmerica Capital Corp., some of the Parties entered into
the following agreements effective on January 28, 2004, in furtherance of the
intent and purposes of the Strategic Agreement:
(a) Amended and Restated Articles of Organization for Atlas
(b) Second Amended and Restated Articles of Organization for
Atlas to add various of the Parties as Members and/or
Managers of Atlas
(c) Management Agreement between Atlas and BIG pursuant to which
Atlas appointed BIG as a manager of Atlas;
WHEREAS, the Strategic Agreement, together with the BIG Shareholder
Agreement, the Madsen Voting Agreement, the Woolley Term Sheet and the other
agreements entered into on or about September 29, 2003, and the agreements
entered into effective as of January 28, 2004 are collectively referred to
herein as the "Agreements;"
WHEREAS, the U.S. Small Business Administration, which regulates small
business investment companies such as MACC and MorAmerica Capital Corp., has
failed to approve the appointment of Atlas as investment manager of MACC and
MorAmerica Capital Corp.;
WHEREAS, for various reasons, including the fact that the Small
Business Administration failed to approve the appointment of Atlas as the
investment manager for MACC and MorAmerica Capital Corp., the Parties have
determined that it is in their respective best interests to amend, terminate, or
unwind the Agreements, and for Madsen, R. Madsen, Stevens, Efstratis and Woolley
(collectively referred to as the "Transferors") to transfer to BIG all of their
membership interest in Atlas;
WHEREAS, the Parties have agreed that in the event that the board of
directors of MACC does not approve the continuation of Atlas' appointment as
investment manager of MorAmerica Capital Corp. at its next meeting of the board
of directors, Madsen should resign as Chief Executive Officer of MACC, and any
affiliate thereof;
WHEREAS, in consideration of the Parties' respective ongoing good faith
negotiations with respect to the amendment, termination or unwinding of the
Agreements, and in an effort to prevent any disputes that may arise between the
Parties with respect to the Agreements, the Parties desire to release each other
from all claims that may have arisen under the Agreements, whether such claims
are known or unknown;
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NOW, THEREFORE, in consideration of the premises, covenants and
agreements made herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Release and Waiver.
------------------
(a) Each Party, in consideration of the covenants and agreements of
each of the other Parties, does hereby knowingly and voluntarily release and
forever discharge and hold harmless each of the other Parties, and any of their
respective subsidiaries, affiliates (including, but not limited to, Wasatch
Venture Fund, Zions Bank, Aleksin Investments Limited, and Benjamin Jiaravanon)
, predecessors, personal representatives, heirs, successors, or assigns, and the
respective agents, trustees, beneficiaries, officers, directors, shareholders,
attorneys, employees, independent contractors, partners, members, managers and
representatives of any of the foregoing (collectively, the "Released Parties"),
of and from any and all claims, demands, damages, action and causes of action or
suits at law or equity of whatsoever kind or nature arising from, or based upon,
any of the Agreements or the transactions contemplated by the Agreements,
including, but without limitation, any loss, liability, expense and/or
detriment, of any kind or character, in any way arising out of, connected with,
or resulting from the acts or omissions of the Released Parties or any of them,
any breach of contract, any breach of fiduciary duty, breach of any duty of fair
dealing, breach of confidence, cause of action or defenses based on the
negligence or intentional acts or omissions of the Released Parties or any of
them, cause of action resulting from or related to shareholder claims against
MACC, Atlas or management of MACC or its affiliates, and any and all related
matters occurring or taking place on or before the date of this Agreement
(collectively, the "Released Claims").
(b) Each Party hereby represents and warrants to the Released
Parties that it is the sole owner of any and all of the Released Claims and that
it has not assigned, pledged, or contracted to assign or pledge or otherwise
disposed of any of the Released Claims.
(c) This Agreement shall not be construed as an admission of
liability on the part of any of the Parties of any kind or nature whatsoever as
to any matter.
(d) This Agreement shall be binding upon each of the Parties and
their respective legal representatives, successors and assigns and shall inure
to the benefit of each of the Released Parties and their successors and assigns.
2. Limitation on Release and Waiver. The Released Claims shall be
limited to claims arising out of or connected with the Agreements. The Released
Claims do not include any claims arising out of any other relationship or
agreements that may exist between any of the Parties, including, but not limited
to the Promissory Note in the principal amount of $300,000 dated September 29,
2003 executed by Atlas in favor of BIG.
3. Unknown Facts. It is expressly agreed and understood that, except as
limited by Section 2 above, the release and waiver of claims set forth in this
Agreement releases all losses, injuries, damages, and claims of every kind and
character that the Parties have or may have against each other from the
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beginning of time to the date of execution of this Agreement arising out of or
connected with the Agreements. The Parties also acknowledge that they may
hereafter discover facts which occurred prior to the execution of this
Agreement, which are different from, or in addition to, those which they now
know to be true and agree that this Agreement and the releases contained herein
be and remain effective in all respects notwithstanding such different or
additional facts or discovery thereof. The Parties expressly waive the benefit
of any statute or rule of law, if any, which might otherwise limit the scope of
this Agreement because of unknown matters existing from the beginning of time to
the date of execution of this Agreement, whether material or otherwise.
4. Termination of BIG Shareholder Agreement and Madsen Shareholder
Agreement The parties agree that as of the date of this Agreement, the Madsen
Shareholder Agreement is hereby terminated and of no further force and effect,
and that from and after the date hereof, voting rights with respect to the
shares of MACC common stock held by R. Madsen shall revert to R. Madsen. The
guaranteed payment obligation to R. Madsen under the Atlas Operating Agreement
is also hereby terminated as of the date of this Agreement. All rights of Madsen
under the BIG Shareholder Agreement, or any other rights of Madsen under any
other agreement by which Madsen may have the right to vote BIG's shares of MACC
common stock, are hereby terminated and of no further force and effect. Atlas
and BIG may in the future terminate, modify or continue the BIG Shareholder
Agreement as modified herein.
5. Transfer of Economic Interest. Effective as of the effective date of
this Agreement, each of the Transferors hereby transfers and assigns to BIG all
of its economic interest (including its Profit Participation Percentage) in its
respective Membership Interest in Atlas.
6. Resignation. The Parties acknowledge that MACC intends, at its next
meeting of directors, to consider a proposal by Atlas that Atlas under BIG's
direction continue as Investment Manager of MACC and its affiliates. In the
event the Board of Directors of MACC rejects Atlas's proposal, Madsen shall have
the right to resign, effective immediately, as an officer (including Chief
Executive Officer), investment advisory and /or director of MACC and any of its
affiliates, and Madsen shall have the right to cause Atlas to resign, effective
immediately, as an investment advisor or investment manager of MACC and any of
its affiliates. The parties acknowledge that in his capacity as Chief Executive
Officer of MACC, Madsen's fiduciary duties will run solely to MACC and not to
Atlas. Atlas, together with its Members and Managers, hereby waive any claims
against Madsen for breach of fiduciary duties owed by Madsen to Atlas.
7. Transfer of Membership Interests. The Transferors hereby agree to
sell and transfer all of their Membership Interests in Atlas, subject to the
transfer of economic interests described in Section 5, to BIG, and BIG hereby
agrees to purchase all of Transferors' Membership Interests in Atlas, for an
aggregate of Ten Dollars ($10.00) and other good and valuable consideration,
which transfer shall occur at, and shall be considered effective as of, 9:00
a.m. Mountain Time on the day after the meeting of directors of MACC referred to
in Section 6.
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8. General Provisions.
(a) All of the terms of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the Parties and their respective
successors, permitted assigns, heirs, and legal representatives, and nothing in
this Agreement is intended to confer any right, remedy, or benefit upon any
other person.
(b) No assignment or delegation of this Agreement, including an
assignment or delegation by operation of law or of any of the rights or
obligations under this Agreement by either of the Parties shall be valid without
the written consent of the other Party.
(c) This Agreement supersedes all prior agreements or understandings
of the Parties on the subject matter of this Agreement. Any prior negotiations,
correspondence, agreements, proposals, or understandings relating to the subject
matter of this Agreement shall be deemed to be merged into this Agreement and to
the extent inconsistent with this Agreement, such negotiations, correspondence,
agreements, proposals, or understandings shall be deemed to be of no force or
effect. There are no representations, warranties, or agreements, whether express
or implied, or oral or written, with respect to the subject matter of this
Agreement, except as set forth in this Agreement.
(d) This Agreement may not be modified by any oral agreement, either
express or implied, and all amendments or modifications of this Agreement shall
be in writing and be signed by all of the Parties.
(e) The Section headings in this Agreement are for the purpose of
convenience only and shall not limit or otherwise affect any of the terms of
this Agreement.
(f) The failure of any of the Parties to insist, in any one or more
instances, upon strict performance of any of the terms or conditions of this
Agreement shall not be construed to constitute a waiver or relinquishment of any
right granted under this Agreement or of the future performance of any such
term, covenant, or condition, and the obligations of the appropriate Party with
respect to any such term or condition shall continue in full force and effect.
(g) Where the context requires, the singular shall include the
plural, the plural shall include the singular, and any gender shall include all
other genders.
(h) Each of the Parties hereby agrees, represents and warrants that
it has had advice of counsel of its own choosing in negotiations for and the
preparation of this Agreement, that it has read the provisions of this
Agreement, and that it is fully aware of its contents and legal effect.
(i) Except as otherwise expressly provided in this Agreement, each
Party to this Agreement will bear its respective expenses incurred in connection
with the preparation, execution, and performance of this Agreement and the
transactions contemplated hereby, including all fees and expenses of agents,
representatives, counsel, and accountants.
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(j) Should any of the Parties default in or breach of any of the
covenants contained in this Agreement, or in the event a dispute shall arise as
to the meaning of any term of this Agreement, the defaulting or non-prevailing
Party shall pay all costs and expenses, including reasonable attorneys' fees,
that may arise or accrue from enforcing this Agreement, securing an
interpretation of any provision of this Agreement, or in pursuing any remedy
provided by applicable law whether such remedy is pursued or interpretation is
sought by the filing of a lawsuit, an appeal, or otherwise.
(k) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Utah, which internal laws exclude any
provision or interpretation of such laws that would call for, or permit, the
application of the laws of any other state or jurisdiction, and any dispute
arising therefrom and the remedies available shall be determined solely in
accordance with such internal laws. Venue for any dispute arising from this
Agreement or the parties' relative rights and obligations hereunder shall be in
the Third Judicial District Court, in and for Salt Lake County, State of Utah,
and each Party hereto consents to the personal jurisdiction of said Court.
(l) This Agreement may be signed in one or more counterparts, each
of which shall be deemed an original and which taken together shall constitute a
single instrument. The delivery of a counterpart signature by facsimile shall be
effective as delivery of a manually signed original and the receiving party may
rely thereon for all purposes.
(The remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
ATLAS MANAGEMENT PARTNERS, LLC
A Utah limited liability company
By: /s/ KENT MADSEN
---------------------------------------
Its: Voting Managing Director
BRIDGEWATER INTERNATIONAL GROUP, LLC
A Utah limited liability company
By: /s/ TIM BRIDGEWATER
---------------------------------------
Its: Managing Director
/s/ KENT MADSEN
---------------------------------------
KENT I. MADSEN
/s/ ROBERT MADSEN
---------------------------------------
ROBERT A. MADSEN
/s/ TODD J. STEVENS
---------------------------------------
TODD J. STEVENS
/s/ NICK EFSTRATIS
---------------------------------------
NICK EFSTRATIS
/s/ GEOFFREY T. WOOLLEY
---------------------------------------
GEOFFREY T. WOOLLEY
/s/ TIM BRIDGEWATER
---------------------------------------
TIM BRIDGEWATER
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