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UNITED STATES OMB APPROVAL
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549 -----------------------------
OMB Number 3235-0145
Expires: October 31, 2002
Estimated average burden
hours per response. . . 14.9
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SCHEDULE 13D
(RULE 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
BALLANTYNE OF OMAHA, INC.
-----------------------------------------
(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
058516105
-----------------------------------------
(CUSIP Number)
MARGARET L. DOYLE
ONE PACIFIC PLACE, 1125 SOUTH 103RD STREET,
SUITE 450, OMAHA, NE 68124 PH.(402) 393-1300
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
OCTOBER 3, 2001
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(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(e), 13d-1(f), or 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 Rule 13d-7(b) for other
parties to whom copies are to be sent.
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*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
Notes).
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CUSIP NO. 058516105 13D PAGE 2 OF 17 PAGES
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SEC 1746 (2-98) (Continued on following pages) (Page 1 of 17 Pages)
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
MCCARTHY GROUP, INC.
I.R.S. Identification No. 47-0697955
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(2) Check the appropriate box if a member of a group (SEE Instructions)
(a): /X/
(b): / /
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(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source of Funds (SEE Instructions)
WC/AF (SEE ITEM 3)
--------------------------------------------------------------------------------
(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
--------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.A. - ORGANIZED UNDER THE LAWS OF THE STATE OF NEBRASKA
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Number of (7) Sole voting power
shares 3,917,026 (1), (2)
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
3,593,141 (1)
-------------------------------------------------------
(10) Shared dispositive power
323,885 (2)
--------------------------------------------------------------------------------
(11) Aggregate amount beneficially owned by each reporting person
3,917,026 (1), (2)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares : / /
(SEE Instructions)
N/A
--------------------------------------------------------------------------------
(13) Percent of class represented by amount in row (11)
31.3% (3)
--------------------------------------------------------------------------------
(14) Type of reporting person (SEE Instructions)
CO (NEBRASKA CORPORATION)
================================================================================
(1) Includes 3,593,141 shares owned of record by BalCo Holdings, LLC ("BalCo").
McCarthy Group, Inc. ("MGI") is the sole manager of BalCo and, as such,
exercises sole voting and dispositive power over these shares. In addition, MGI
is the managing member of Fulcrum Growth Partners, L.L.C. ("Fulcrum"), the sole
equity member of BalCo.
(2) Includes a total of 323,885 shares owned of record by Dana C. Bradford,
Dennis M. O'Brien and Scott A. Schmidt. Each of Messrs. Bradford, O'Brien and
Schmidt has assigned all voting rights to these shares to MGI, along with
certain rights regarding disposition of these shares.
(3) The percentage reported in row (13) is calculated based upon 12,512,672
shares of common stock of Ballantyne of Omaha, Inc. (the "Issuer") issued and
outstanding as of July 31, 2001, as reported by the Issuer in its Quarterly
Report on Form 10-Q for quarter ended June 30, 2001.
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CUSIP NO. 058516105 13D PAGE 3 OF 17 PAGES
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
BALCO HOLDINGS, LLC
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(2) Check the appropriate box if a member of a group (SEE Instructions)
(a): /X/
(b): / /
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(3) SEC Use Only
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(4) Source of Funds (SEE Instructions)
WC/AF (SEE ITEM 3)
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(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
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(6) Citizenship or Place of Organization
U.S.A. - ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
--------------------------------------------------------------------------------
Number of (7) Sole voting power
shares 3,593,141 (1)
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
3,593,141 (1)
-------------------------------------------------------
(10) Shared dispositive power
0
--------------------------------------------------------------------------------
(11) Aggregate amount beneficially owned by each reporting person
3,593,141 (1)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares : / /
(SEE Instructions)
N/A
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(13) Percent of class represented by amount in row (11)
28.7% (2)
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(14) Type of reporting person (SEE Instructions)
OO (DELAWARE LIMITED LIABILITY COMPANY)
================================================================================
(1) Consists of 3,593,141 shares owned of record by BalCo Holdings, LLC
("BalCo"). McCarthy Group, Inc. ("MGI"), in its capacity as sole manager of
BalCo, exercises all voting and dispositive powers with respect to these shares
on behalf of BalCo.
(2) The percentage reported in row (13) is calculated based upon 12,512,672
shares of common stock of Ballantyne of Omaha, Inc. (the "Issuer") issued and
outstanding as of July 31, 2001, as reported by the Issuer in its Quarterly
Report on Form 10-Q for quarter ended June 30, 2001.
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CUSIP NO. 058516105 13D PAGE 4 OF 17 PAGES
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
FULCRUM GROWTH PARTNERS, L.L.C.
I.R.S. Identification No. 47-0819413
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(2) Check the appropriate box if a member of a group (SEE INSTRUCTIONS)
(a): /X/
(b): / /
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(3) SEC Use Only
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(4) Source of Funds (See Instructions)
WC/AF (SEE ITEM 3)
--------------------------------------------------------------------------------
(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
--------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.A. - ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
--------------------------------------------------------------------------------
Number of (7) Sole voting power
shares 0 (1)
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
0 (1)
-------------------------------------------------------
(10) Shared dispositive power
0
--------------------------------------------------------------------------------
(11) Aggregate amount beneficially owned by each reporting person
0 (1)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares : / /
(SEE Instructions)
N/A
--------------------------------------------------------------------------------
(13) Percent of class represented by amount in row (11)
0%
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(14) Type of reporting person (SEE Instructions)
OO (DELAWARE LIMITED LIABILITY COMPANY)
================================================================================
(1) Fulcrum Growth Partners, L.L.C. ("Fulcrum") owns a 100% membership interest
in BalCo Holdings, LLC ("BalCo"), the record owner of 3,593,141 shares, and
therefore has an economic interest in these shares, but not a beneficial
ownership interest as defined in Rule 13d-3.
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CUSIP NO. 058516105 13D PAGE 5 OF 17 PAGES
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
DANA C. BRADFORD
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(2) Check the appropriate box if a member of a group (SEE Instructions)
(a): /X/
(b): / /
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(3) SEC Use Only
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(4) Source of Funds (SEE Instructions)
PF (SEE ITEM 3)
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(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
--------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.A.
--------------------------------------------------------------------------------
Number of (7) Sole voting power
shares 0
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
0
-------------------------------------------------------
(10) Shared dispositive power
173,885 (1)
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(11) Aggregate amount beneficially owned by each reporting person
173,885 (1)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares :/ /
(SEE Instructions)
N/A
--------------------------------------------------------------------------------
(13) Percent of class represented by amount in row (11)
1.4% (2)
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(14) Type of reporting person (SEE Instructions)
IN (NEBRASKA RESIDENT)
================================================================================
(1) Consists of 173,885 shares owned of record by Dana C. Bradford in his
individual capacity. Mr. Bradford has assigned all voting rights to the shares
to McCarthy Group, Inc. ("MGI") and may not dispose of such shares without the
prior approval of MGI.
(2) The percentage reported in row (13) is calculated based upon 12,512,672
shares of common stock of Ballantyne of Omaha, Inc. (the "Issuer") issued and
outstanding as of July 31, 2001, as reported by the Issuer in its Quarterly
Report on Form 10-Q for quarter ended June 30, 2001.
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CUSIP NO. 058516105 13D PAGE 6 OF 17 PAGES
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
DENNIS M. O'BRIEN
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(2) Check the appropriate box if a member of a group (SEE Instructions)
(a): /X/
(b): / /
--------------------------------------------------------------------------------
(3) SEC Use Only
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(4) Source of Funds (SEE Instructions) OO/PF (SEE ITEM 3)
--------------------------------------------------------------------------------
(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
--------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.A.
--------------------------------------------------------------------------------
Number of (7) Sole voting power
shares 0
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
0
-------------------------------------------------------
(10) Shared dispositive power
100,000 (1)
--------------------------------------------------------------------------------
(11) Aggregate amount beneficially owned by each reporting person
100,000 (1)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares :/ /
(SEE Instructions)
N/A
--------------------------------------------------------------------------------
(13) Percent of class represented by amount in row (11)
0.8% (2)
--------------------------------------------------------------------------------
(14) Type of reporting person (SEE Instructions)
IN (NEBRASKA RESIDENT)
================================================================================
(1) Consists of 100,000 shares owned of record by Dennis M. O'Brien in his
individual capacity. Mr. O'Brien has assigned all voting rights to the shares to
McCarthy Group, Inc. ("MGI") and may not dispose of such shares without the
prior approval of MGI.
(2) The percentage reported in row (13) is calculated based upon 12,512,672
shares of common stock of Ballantyne of Omaha, Inc. (the "Issuer") issued and
outstanding as of July 31, 2001, as reported by the Issuer in its Quarterly
Report on Form 10-Q for quarter ended June 30, 2001.
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CUSIP NO. 058516105 13D PAGE 7 OF 17 PAGES
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(1) Names of reporting persons. I.R.S. Identification No. of above person
(entities only).
SCOTT A. SCHMIDT
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(2) Check the appropriate box if a member of a group (SEE Instructions)
(a): /X/
(b): / /
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(3) SEC Use Only
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(4) Source of Funds (SEE Instructions) PF (SEE ITEM 3)
--------------------------------------------------------------------------------
(5) Check If Disclosure Of Legal Proceedings Is Required Pursuant To
Items 2(d) or 2(e) / /
N/A
--------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.A.
--------------------------------------------------------------------------------
Number of (7) Sole voting power
shares 0
beneficially -------------------------------------------------------
owned by each (8) Shared voting power
reporting 0
person with: -------------------------------------------------------
(9) Sole dispositive power
0
-------------------------------------------------------
(10) Shared dispositive power
50,000 (1)
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(11) Aggregate amount beneficially owned by each reporting person
50,000 (1)
--------------------------------------------------------------------------------
(12) Check if the aggregate amount in row (11) excludes certain shares :/ /
(SEE Instructions)
N/A
--------------------------------------------------------------------------------
(13) Percent of class represented by amount in row (11)
0.4% (2)
--------------------------------------------------------------------------------
(14) Type of reporting person (SEE Instructions)
IN (NEBRASKA RESIDENT)
================================================================================
(1) Consists of 50,000 shares owned of record by Scott A. Schmidt in his
individual capacity. Mr. Schmidt has assigned all voting rights to the shares to
McCarthy Group, Inc. ("MGI") and may not dispose of such shares without the
prior approval of MGI.
(2) The percentage reported in row (13) is calculated based upon 12,512,672
shares of common stock of Ballantyne of Omaha, Inc. (the "Issuer") issued and
outstanding as of July 31, 2001, as reported by the Issuer in its Quarterly
Report on Form 10-Q for quarter ended June 30, 2001.
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CUSIP NO. 058516105 13D PAGE 8 OF 17 PAGES
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ITEM 1. SECURITY AND ISSUER
This statement on Schedule 13D (this "Statement") relates to the common
stock, par value $.01 per share (the "Common Stock"), of Ballantyne of Omaha,
Inc., a Delaware corporation, with principal offices located at 4350 McKinley
Street, Omaha, NE 68112 (the "Issuer").
ITEM 2. IDENTITY AND BACKGROUND
Pursuant to Rule 13d-1(k) under the Securities Exchange Act of 1934, as
amended (the "Act") and the agreement attached to this Statement as Exhibit
99(1), the undersigned, McCarthy Group, Inc. ("MGI"), hereby files this
Statement on behalf of MGI, BalCo Holdings, LLC ("BalCo"), Fulcrum Growth
Partners, L.L.C. ("Fulcrum"), Dana C. Bradford, Dennis M. O'Brien and Scott A.
Schmidt (each a "Reporting Person" and, collectively, the "Reporting Persons").
MGI currently owns a 20% membership interest in Fulcrum and is the sole Managing
Member of Fulcrum, and, as such, MGI is vested with, and exercises, full
discretion and authority with respect to the management and control of the
business activities and affairs of Fulcrum. Fulcrum owns a 100% membership
interest in BalCo, and MGI serves as the sole Manager of BalCo with discretion
and authority with respect to the management and control of the business
activities and affairs of BalCo. MGI, as the sole manager of BalCo, has voting
and dispositive control of the shares of Common Stock owned of record by BalCo.
Neither Fulcrum nor BalCo have any officers or directors, as each of them are
managed solely by MGI. Dana C. Bradford, Dennis M. O'Brien and Scott A. Schmidt
each have executed agreements assigning all voting rights to the shares of
Common Stock they own of record to MGI, together with certain rights regarding
the disposition of the shares of Common Stock.
BALCO
BalCo Holdings, LLC ("BalCo"), a Delaware limited liability company,
maintains its principal place of business at 1125 South 103rd Street, Suite 450,
Omaha, NE 68124, and is engaged in any lawful business or activities for which a
limited liability company may be formed under the Delaware Limited Liability
Company Act, including, without limitation, the acquisition and ownership of the
Common Stock. BalCo has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) and was not a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which BalCo 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 violation with respect to
such laws.
FULCRUM
Fulcrum Growth Partners, L.L.C. ("Fulcrum"), a Delaware limited liability
company, maintains its principal place of business at One Pacific Place, 1125
South 103rd Street, Suite 450, Omaha, NE 68124 and is engaged in any lawful
business or activities for which a limited liability company may be formed under
the Delaware Limited Liability Company Act,
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CUSIP NO. 058516105 13D PAGE 9 OF 17 PAGES
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including, without limitation, the ownership and operation of BalCo. Neither
Fulcrum nor, to the knowledge of Fulcrum, BalCo, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which neither Fulcrum nor BalCo 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 violation with respect to such laws.
MGI
McCarthy Group, Inc. ("MGI"), a Nebraska corporation, maintains its
principal place of business at One Pacific Place, 1125 South 103rd Street, Suite
450, Omaha, NE 68124 and is engaged in merchant banking and, through McCarthy &
Co. and McCarthy Group Asset Management, Inc. ("MGAMI"), investment banking and
investment management. MGAMI is an institutional investment manager, that
periodically files reports on Form 13F. Fulcrum and MGAMI have entered into a
Management Agreement, dated March 17, 1999 (the "Management Agreement"),
pursuant to which MGAMI provides, in exchange for a fee, investment advice to
Fulcrum and MGI, as the Managing Member of Fulcrum. Additionally, McCarthy &
Co., a Nebraska corporation, has entered into an Investment Services Agreement,
dated March 15, 1996 (the "Services Agreement"), under which McCarthy & Co. in
exchange for a fee has agreed to use its best efforts and provide services in
connection with the identification of suitable investments for MGI. However,
MGAMI and McCarthy & Co. do not, collectively or individually, have the right or
the ability to control or direct the voting or disposition of any securities of
the Issuer. Accordingly, MGAMI and McCarthy & Co. are not beneficial owners of
the Common Stock of the Issuer and, therefore, are not included as Reporting
Persons on this Statement.
Exhibit 99(2) to this Statement contains a list of and information
regarding the executive officers and directors of MGI required by General
Instruction C to this Statement, which exhibit is incorporated herein by
reference with respect to each such officer and director of MGI. MGI and, to the
knowledge of MGI, none of the other Reporting Persons or the persons listed on
Exhibit 99(2), have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or were a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
MGI, the other Reporting Persons or the individuals identified on Exhibit 99(2)
were or are 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.
DANA C. BRADFORD
Dana C. Bradford ("Bradford") is an individual resident of Nebraska,
maintains his principal place of business at 1125 South 103rd Street, Suite 450,
Omaha, NE 68124, and is a principal with McCarthy Group, Inc. ("MGI"). Bradford
has not been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) and was not a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction as a result of which Bradford
was or is subject to a judgment, decree or final order enjoining future
violations of,
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CUSIP NO. 058516105 13D PAGE 10 OF 17 PAGES
---------------------- ----------------------
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
DENNIS M. O'BRIEN
Dennis M. O'Brien ("O'Brien") is an individual resident of Nebraska,
maintains his principal place of business at One Pacific Place, 1125 South 103rd
Street, Suite 450, Omaha, NE 68124 and is a principal with McCarthy Group, Inc.
("MGI"). O'Brien has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which O'Brien 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 violation with respect to such laws.
SCOTT A. SCHMIDT
Scott A. Schmidt ("Schmidt") is an individual resident of Nebraska,
maintains his principal place of business at One Pacific Place, 1125 South 103rd
Street, Suite 450, Omaha, NE 68124 and is a principal with McCarthy Group, Inc.
("MGI"). Schmidt has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which Schmidt 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 violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
BalCo originally acquired 3,238,845 shares of Common Stock from GMAC
Commercial Credit LLC f/k/a BNY Financial Corporation on May 1, 2001 pursuant to
a letter agreement regarding the purchase of the Common Stock, dated April 30,
2001, for an aggregate cash payment of $1,250,000. BalCo then acquired an
additional 678,181 shares of the Common Stock from George Guttman on October 3,
2001 pursuant to a Stock Purchase Agreement dated October 1, 2001 for an
aggregate cash payment of $305,181. BalCo funded these purchases out of its
working capital, which is composed of contributions to capital made by the
Members of BalCo on a pro rata basis determined by their respective percentage
of ownership interest in BalCo. The contributions to the capital of BalCo made
by Fulcrum and MGI were derived from their respective working capital.
On October 4, 2001, MGI's membership interest in BalCo was totally redeemed
in exchange for 323,885 shares of Common Stock owned by BalCo, pursuant to an
Agreement Relating to Withdrawal and Redemption of Member Interest dated October
4, 2001. These shares were immediately sold to Bradford, O'Brien and Schmidt
individually pursuant to separate Stock Purchase Agreements each dated October
4, 2001. Bradford purchased 173,885 shares of Common Stock for $67,109, funded
by personal funds. O'Brien purchased 100,000 shares of Common Stock for $38,594
funded by a 30-day note to MGI which will be repaid from
---------------------- ----------------------
CUSIP NO. 058516105 13D PAGE 11 OF 17 PAGES
---------------------- ----------------------
O'Brien's personal funds. Schmidt purchased 50,000 shares of Common Stock for
$19,207 funded by personal funds.
ITEM 4. PURPOSE OF TRANSACTION
MGI, acting for and on behalf of BalCo, Fulcrum, Bradford, O'Brien and
Schmidt in the capacities set forth in Item 2, intends to monitor the business
and affairs of the Issuer closely and to periodically review the investment of
the Reporting Persons in securities of the Issuer. Depending upon the results of
such activities and such other facts and circumstances then existing, including
evaluation of the business and prospects of the Issuer, availability of funds,
alternative uses for funds and investments to which such funds of the Reporting
Persons may be dedicated and general market conditions, BalCo or one or more of
the other Reporting Persons may, from time to time, acquire additional Common
Stock or other debt or equity securities of the Issuer. Such additional
investments may occur at any time and may include purchases in one or more open
market or private transactions, including purchases by tender offer,
transactions with the Issuer or other similar investments or acquisitions. If
any of the Reporting Persons subsequently makes any such additional investments
or acquisitions of Common Stock or other Issuer securities, such investments or
acquisitions may be undertaken with a view to acquiring a greater or controlling
interest (possibly even a majority interest) in the Issuer and a commensurately
greater influence with respect to the business activities and affairs of the
Issuer. As a result of, or in connection with, any such investment or
acquisition, BalCo or one or more of the other Reporting Persons may propose,
effect or cause to occur any one or more of the following: an extraordinary
business transaction, such as a merger, reorganization or liquidation or similar
transaction, involving the Issuer or any of its hereafter existing subsidiaries;
either or both of a change in the present number of Directors and the present
composition of the Board of Directors of the Issuer; changes in the present
capitalization of the Issuer; and a change in the Issuer's corporate structure,
any of which may cause a class of securities of the Issuer to be delisted from a
national securities exchange or cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association.
In addition to the foregoing, any or all of the Reporting Persons may dispose of
some or all of the Common Stock or other Issuer securities from time to time,
whether now owned or hereafter acquired, if any such Reporting Person deems such
transaction to be in its best interest, except that Bradford, O'Brien and
Schmidt cannot sell their respective shares without the prior approval of MGI.
As mentioned above, BalCo or one or more of the other Reporting Persons
continue to evaluate the prospects of additional investment in the Issuer, but
at the present time, except as described in this Item 4, none of the Reporting
Persons presently has any plans or proposals which relate to or would result in:
(a) the acquisition by any Reporting Person of additional securities of the
Issuer or the disposition of securities of the Issuer; (b) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a
material amount of assets of the Issuer or any of its subsidiaries; (d) any
change in the present Board of Directors or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board; (e) any material change in the present
capitalization or
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CUSIP NO. 058516105 13D PAGE 12 OF 17 PAGES
---------------------- ----------------------
dividend policy of the Issuer; (f) any other material change in the Issuer's
business or corporate structure; (g) any changes in the Issuer's charter or
by-laws or other actions which may impede the acquisition of control of the
Issuer by any person; (h) causing a class of securities of the Issuer to be
delisted from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association; (i) causing a class of equity securities of the Issuer to become
eligible for termination of registration pursuant to Section 12(g)(4) of the
Act; or (j) any action similar to those enumerated in (a) through (i) of this
Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
MGI
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
3,917,026 shares of Common Stock representing 31.3% of the issued and
outstanding Common Stock.
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 3,917,026
(ii) shared power to vote or direct the vote: 0
(iii) sole power to dispose or direct the disposition of: 3,593,141
(iv) shared power to dispose or direct the disposition of: 323,885
Pursuant to the terms of the Stock Purchase Agreements described in
Item 6, MGI exercises sole voting power and shares dispositive power
over the shares of Common Stock owned of record by Messrs. Bradford,
O'Brien and Schmidt.
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
BALCO
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
3,593,141 shares of Common Stock representing 28.7% of the issued and
outstanding Common Stock.
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 3,593,141
(ii) shared power to vote or direct the vote: 0
(iii) sole power to dispose or direct the disposition of: 3,593,141
(iv) shared power to dispose or direct the disposition of: 0
---------------------- ----------------------
CUSIP NO. 058516105 13D PAGE 13 OF 17 PAGES
---------------------- ----------------------
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
FULCRUM
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
None
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 0
(ii) shared power to vote or direct the vote: 0
(iii) sole power to dispose or direct the disposition of: 0
(iv) shared power to dispose or direct the disposition of: 0
Fulcrum exercises no voting or dispositive power over any shares of
Common Stock. However, as sole equity member of BalCo, it has an
economic interest in 3,593,141 shares.
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
BRADFORD
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
173,885 shares of Common Stock representing 1.4% of the issued and
outstanding Common Stock.
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 0
(ii) shared power to vote or direct the vote: 0
(iii) sole power to dispose or direct the disposition of: 0
(iv) shared power to dispose or direct the disposition of: 173,885
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CUSIP NO. 058516105 13D PAGE 14 OF 17 PAGES
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Pursuant to the terms of the Stock Purchase Agreement described in
Item 6, Bradford has granted MGI the sole right to vote such shares
and may not sell such shares without the prior approval of MGI.
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
O'BRIEN
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
100,000 shares of Common Stock representing 0.8% of the issued and
outstanding Common Stock.
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 0
(ii) shared power to vote or direct the vote: 0
(iii) sole power to dispose or direct the disposition of: 0
(iv) shared power to dispose or direct the disposition of: 100,000
Pursuant to the terms of the Stock Purchase Agreement described in
Item 6, O'Brien has granted MGI the sole right to vote such shares and
may not sell such shares without the prior approval of MGI.
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
SCHMIDT
(a) Aggregate Number and Percentage of Common Stock Beneficially Owned:
50,000 shares of Common Stock representing 0.4% of the issued and
outstanding Common Stock.
(b) Number of shares of Common Stock over which Reporting Person has
(i) sole power to vote or direct the vote: 0
(ii) shared power to vote or direct the vote: 0
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CUSIP NO. 058516105 13D PAGE 15 OF 17 PAGES
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(iii) sole power to dispose or direct the disposition of: 0
(iv) shared power to dispose or direct the disposition of: 50,000
Pursuant to the terms of the Stock Purchase Agreement described in
Item 6, Schmidt has granted MGI the sole right to vote such shares and
may not sell such shares without the prior approval of MGI.
(c) Except with respect to the transactions reported in this Statement,
none of the Reporting Persons has effected any transactions involving
the Common Stock of the Issuer (or any other Issuer securities) during
the past sixty days.
(d) Not applicable.
(e) Not applicable.
The percentage figures reported in this Item 5 were calculated based upon
12,512,672 shares of the Common Stock of the Issuer issued and outstanding as of
July 31, 2001, as reported by the Issuer in its Quarterly Report on Form 10-Q
for Quarter ended June 30, 2001.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
Pursuant to the Operating Agreement of BalCo, dated as of April 20, 2001,
(the "BalCo Agreement"), a copy of which is attached hereto as Exhibit 99(3),
Fulcrum, the sole remaining Member of BalCo, has agreed that MGI shall be the
sole Manager of BalCo and, as such, MGI has the sole and exclusive right and
ability to vote or dispose of the Common Stock of the Issuer to which this
Statement relates.
Pursuant to an Agreement Relating to Withdrawal and Redemption of
Membership Interest dated October 4, 2001, a copy of which is attached hereto as
Exhibit 99(4), MGI withdrew as a member of BalCo and received a distribution
from BalCo of 323,885 shares of Common Stock as the redemption price for its
membership interest.
Pursuant to the Stock Purchase Agreements of Bradford, O'Brien and Schmidt,
each dated October 4, 2001 and each substantially in the form which is attached
hereto as Exhibit 99(5), each of them has assigned all voting rights with
respect to their respective shares of Common Stock to MGI and none of them may
sell their respective shares of Common Stock without obtaining the prior written
approval of MGI. In addition, O'Brien funded his acquisition of Common Stock by
entering into a 30-day note to MGI attached hereto as Exhibit 99(6).
The Issuer has entered into a Rights Agreement, dated as of May 25, 2000,
with ChaseMellon Shareholder Services, L.L.C., as amended by the First Amendment
to Rights Agreement, dated April 30, 2001, and further amended by the Second
Amendment to the Rights Agreement, dated July 18, 2001 (the "Rights Agreement").
Pursuant to action by the Board of Directors of the Issuer on October 2, 2001,
the Issuer has agreed to waive certain provisions of the Rights Agreement in
connection with the additional acquisition of the Common Stock by BalCo and the
addition of the three individuals to the Group.
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CUSIP NO. 058516105 13D PAGE 16 OF 17 PAGES
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The Limited Liability Company Agreement of Fulcrum, dated March 17, 1999,
between KFS Corporation, a Nebraska corporation ("KFS"), and MGI (the "Fulcrum
Agreement"), a copy of which is attached hereto as Exhibit 99(7), governs all of
the rights, interests and liabilities of the Members of Fulcrum and vests MGI
with full discretion and authority with respect to the management and control of
the business activities and affairs of Fulcrum. The Fulcrum Agreement prescribes
the respective rights of its Members with respect to the rights and interests in
and to the profits and losses distributable from, and any distributions of the
property of Fulcrum, including its ownership interest in BalCo and similar
rights in and to the profits and losses distributable from, and any
distributions of the property of BalCo, including the Common Stock. The
Management Agreement and the Services Agreement referenced in Item 2 do not
affect the ability of MGI to vote or control the Common Stock, and, therefore,
they are not included as exhibits to this Statement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following items are attached hereto as exhibits to this Statement:
Exhibit Description
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99(1) Joint Filing Agreement
99(2) Executive Officers and Directors of MGI
99(3) Operating Agreement of BalCo
99(4) Agreement Relating to Withdrawal and Redemption of Membership
Interest
99(5) Stock Purchase Agreement
99(6) O'Brien Note to MGI
99(7) Limited Liability Company Agreement of Fulcrum
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CUSIP NO. 058516105 13D PAGE 17 OF 17 PAGES
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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.
Date: October 10, 2001
MCCARTHY GROUP, INC.
By /s/ MICHAEL R. MCCARTHY
--------------------------------
Michael R. McCarthy, Chairman
FULCRUM GROWTH PARTNERS, L.L.C.,
a Delaware limited liability company
By McCarthy Group, Inc., its Managing
Member
By /s/ MICHAEL R. MCCARTHY
--------------------------------
Michael R. McCarthy, Chairman
BALCO HOLDINGS, LLC, a Delaware
limited liability company
By McCarthy Group, Inc., its Manager
By /s/ MICHAEL R. MCCARTHY
--------------------------------
Michael R. McCarthy, Chairman
/s/ DANA C. BRADFORD
-----------------------------------
Dana C. Bradford
/s/ DENNIS M. O'BRIEN
-----------------------------------
Dennis M. O'Brien
/s/ SCOTT A. SCHMIDT
-----------------------------------
Scott A. Schmidt